09-5169-cr
United States v. Costa

                                    UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to summary orders filed on or
after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and
this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this court, a
party must cite either the Federal Appendix or an electronic database (with the notation “summary
order”). A party citing a summary order must serve a copy of it on any party not represented by
counsel.

         At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
the 20th day of May, two thousand eleven.

PRESENT:

          JOSÉ A. CABRANES,
          DENNY CHIN,
                       Circuit Judges,
          JANE A. RESTANI
                       Judge.*

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UNITED STATES OF AMERICA

                     Appellee,

                     -v.-                                                                       No. 09-5169-cr

ANTHONY COSTA,

                     Defendant-Appellant.
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FOR DEFENDANT-APPELLANT:                                       Christopher J. Cassar, Huntington, NY.

FOR APPELLEE:                                                  Stephen J. Meyer, Assistant United States Attorney
                                                               (David C. James, Assistant United States Attorney, on
                                                               the brief), for Loretta E. Lynch, United States Attorney
                                                               for the Eastern District of New York, Brooklyn, NY.

          *   The Honorable Jane A. Restani, of the United States Court of International Trade, sitting by designation.

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        Appeal from an August 9, 2006 judgment of the United States District Court for the Eastern
District of New York (Frederic Block, Judge).

    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the order of the District Court is AFFIRMED.

        On May 12, 2005, defendant-appellant Anthony Costa pleaded guilty to bank fraud in
violation of 18 U.S.C. § 1344. On August 9, 2006, Costa was sentenced principally to 51 months of
incarceration, to run consecutively to a 57-month sentence entered on September 27, 2005, by the
United States District Court for the District of New Jersey in an unrelated case.1 Costa appeals from
the August 9, 2006 judgment of the District Court.2 We assume the parties’ familiarity with the facts
and the complex procedural history of this case.

       On appeal, Costa challenges the judgment of the District Court on four independent
grounds.

Ineffective Assistance

         Costa argues that he received ineffective assistance of counsel in violation of the Sixth
Amendment to the United States Constitution. Before turning to the merits of Costa’s claim, we
note that because, in most cases, “a motion brought under § 2255 is preferable to direct appeal for
deciding claims of ineffective assistance,” Massaro v. United States, 538 U.S. 500, 504 (2003), we begin
with a “baseline aversion to resolving ineffectiveness claims on direct review,” United States v. Salameh,
152 F.3d 88, 161 (2d Cir. 1998). Nevertheless, it is well settled that where “resolution of the Sixth
Amendment claim on direct appeal is beyond doubt or in the interest of justice,” we may address the
merits of an ineffective assistance claim on direct review. United States v. Gaskin, 364 F.3d 438, 468
(2d Cir. 2004) (internal quotation marks omitted). This is especially so where “(1) . . . the defendant
has a new counsel on appeal; and (2) argues no ground of ineffectiveness that is not fully developed
in the trial record.” United States v. Williams, 205 F.3d 23, 35 (2d Cir. 2000). Because Costa’s claim
meets these requirements, we proceed to consider his claim on direct appeal.



         1  On December 18, 2003, Costa struck an individual in a Manhattan restaurant whom Costa believed was
cooperating with the Federal Bureau of Investigation and had been responsible for Costa’s 1993 arrest for conspiracy to
possess forged securities for which he served a 15-month prison sentence. On June 1, 2005, Costa pleaded guilty to
retaliating against a government witness in violation of 18 U.S.C. § 1513. For the sake of convenience, all references to
the “District Court” in this summary order refer to the Court from which Costa appeals—the United States District
Court for the Eastern District of New York (Frederic Block, Judge).
          2 Although Costa failed to file a timely notice of appeal following the August 9, 2006, judgment of the District

Court, he subsequently brought a motion pursuant to 28 U.S.C. § 2255 attacking the judgment on the ground, among
other things, that his attorney’s failure to file a timely notice of appeal constituted ineffective assistance of counsel. The
District Court granted the §2255 motion for the limited purpose of permitting Costa to appeal the August 9, 2006,
judgment of the District Court but denied the substantive claims. This appeal followed.
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        Costa alleges that counsel’s failure to (1) arrange for him to be sentenced in the Eastern
District of New York before being sentenced in the District of New Jersey; (2) object to an
imposition of a consecutive sentence; and (3) request a hearing pursuant to United States v. Fatico, 603
F.2d 1053 (2d Cir. 1979), demonstrates that his counsel’s performance “fell below an objective
standard of reasonableness,” Strickland v. Washington, 466 U.S. 668, 688 (1984), and that “there is a
reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different,” id. at 694. We disagree.

        First, Costa seems to believe that had his counsel arranged to have him sentenced in the
Eastern District of New York before he was sentenced in the District of New Jersey, he would not
have received consecutive sentences. However, he offers no basis to believe that it was within his
counsel’s power to arrange such a sequence. In fact, the record reveals that had Costa not
committed yet another crime— the so-called “pawn shop fraud”—which induced the U.S.
Attorney’s Office for the Eastern District of New York to exercise its discretion to reevaluate its
agreement not to object to concurrent sentences pursuant to the plea agreement, he might well have
avoided consecutive sentences. Moreover, because the pawn shop fraud occurred after his
sentencing in the District of New Jersey, and while he was released on bail pending sentencing in the
Eastern District of New York, there is no reason to believe that even if Costa’s trial counsel had the
power to dictate the District Courts’ schedules, it would have been advantageous for him to do so.
Most importantly, any attempt to manipulate the sequence of Costa’s multiple sentencing hearings is
precisely the kind of strategic decision which lies firmly within the ambit of a trial counsel’s
discretion. See Wilson v. Mazzuca, 570 F.3d 490, 502 (2d Cir. 2009) (errors that give rise to an
ineffectiveness claim do not stem “from a sound trial strategy, but instead ar[i]se from oversight,
carelessness, ineptitude, or laziness”) (quotation marks omitted). Costa’s first argument is therefore
without merit.

         Second, Costa suggests that his counsel’s failure to object to consecutive sentences
constituted ineffective assistance of counsel. However, following the pawn-shop fraud Costa
entered into a new agreement with the government—the “Sentencing Agreement”—in which both
parties “agreed” that, notwithstanding the terms of the plea agreement, consecutive sentences
“would be reasonable and appropriate.” Brief for Defendant-Appellant 9. In exchange for the
modifications in the Sentencing Agreement, the government agreed not to charge Costa for the
commission of a felony while on pre-trial release in violation of 18 U.S.C. § 3147, or for making
false statements to the U.S. Probation Office for the Eastern District of New York in violation of 18
U.S.C. § 1001. It therefore appears that counsel’s strategic decision to support the Sentencing
Agreement substantially benefited Costa, in which case he is unable to demonstrate the prejudice
required to support a claim for ineffective assistance. United States v. Caracappa, 614 F.3d 30, 49 (2d
Cir. 2010) (strategic decisions which benefit the client cannot establish prejudice and therefore
cannot be the basis for an ineffective assistance claim). In any event, this too falls under the rubric
of trail strategy that is “virtually unchallengeable.” Gaskin, 364 F.3d at 468. Costa’s second
argument is therefore also without merit.

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         Third, Costa argues that his counsel’s failure to request a Fatico hearing regarding the pawn-
shop fraud rendered his assistance constitutionally deficient. In fact, counsel decided not to pursue
a Fatico hearing after Costa conceded the facts related to the pawn-shop fraud in the government’s
June 7, 2006 remand letter to the District Court and the District Court explicitly indicated that those
facts supported consecutive sentences. This strategic decision falls within the range of reasonable
professional assistance, United States v. Lee, 818 F.2d 1052, 1056 (2d Cir. 1987), and in the absence of
what evidence, if any, a Fatico hearing might have established, we cannot conclude that counsel’s
failure to request one prejudiced Costa in any way, Hurel Guerrero v. United States, 186 F.3d 275, 282
(2d Cir. 1999). Costa’s third argument is therefore without merit as well.

Due Process

        Costa argues that having agreed not to object to concurrent sentences in the plea agreement,
the government’s decision to request consecutive sentences at sentencing deprived Costa of due
process in violation of his rights under the Fifth Amendment to the United States Constitution.
However, as discussed above, the plea agreement explicitly provided that “[i]f information relevant
to sentencing, as determined by the [U.S. Attorney’s] Office [for the Eastern District of New York],
becomes known to the office after the date of this agreement, the Office will not be bound” by its
promises with respect to sentencing. The government was therefore freed from its obligations
under the plea agreement because new information relevant to sentencing—that is, the pawn-shop
fraud—became known to the government after the execution of that agreement. As we noted in
United States v. Habbas, the terms of a plea agreement such as Costa’s, which base the government’s
obligations under the plea agreement on “information known to the government,” serve “the
important purpose of clarifying the government’s freedom to advocate for a higher guideline range
when its change of position is based on its subsequent acquisition of aggravating information.” 527
F.3d 266, 272 n.1 (2d Cir. 2008) (emphasis in original). This is no less the case with respect to the
government’s freedom to advocate for consecutive sentences, as is the case here.

Abuse of Discretion

        Costa argues that the District Court erred in imposing a consecutive sentence without
adequately considering the factors required under 18 U.S.C. § 3584 and U.S.S.G. § 5G1.3(c). We
disagree. We review a District Court’s decision to impose consecutive sentences for “abuse of
discretion.” United States v. Matera, 489 F.3d 115, 124 (2d Cir. 2007); see also United States v. Maria, 186
F.3d 65, 71 (2d Cir. 1999) (noting that section 5G1.3(c) vests “broad discretion” in the sentencing
court to fashion an appropriate sentence). A district court has abused its discretion if it has (1)
“based its ruling on an erroneous view of the law,” (2) made a “clearly erroneous assessment of the
evidence,” or (3) “rendered a decision that cannot be located within the range of permissible
decisions.” Sims v. Blot, 534 F.3d 117, 132 (2d Cir. 2008) (internal quotation marks omitted). In
determining whether to impose a consecutive sentence, the sentencing court “shall consider, as to

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each offense for which a term of imprisonment is being imposed, the factors set forth in section
3553(a).” 18 U.S.C. § 3584(b). In view of the fact that (1) Costa agreed to consecutive sentences in
his Sentencing Agreement with the government and (2) the District Court explicitly reviewed the
history and characteristics of the defendant, the need to afford adequate deterrence and the need to
protect the public from further crimes of the defendant—all of which are factors the court is
required to consider under § 3553(a)— the District Court did not err, much less abuse its discretion,
in imposing a sentence to run consecutive to that of the District of New Jersey.

Credit for Acceptance of Responsibility

          Finally, Costa argues that, in light of his plea agreement, the District Court erred in declining
to apply a two-point sentencing reduction under U.S.S.G. § 3E1.1(a) for demonstrating acceptance
of responsibility for his offense. It is well settled that the assessment of a defendant’s contrition,
credibility, and candor is a matter for the sentencing judge, see, e.g., United States v. Rivera, 96 F.3d 41,
43 (2d Cir. 1996), and that a judge’s unique position entitles his determination to “great deference on
review,” Guidelines § 3E1.1 Application Note 5. As a result, the sentencing judge’s finding as to
whether the defendant has adequately demonstrated an acceptance of responsibility will not be
disturbed unless it is “’without foundation.’” United States v. Fernandez, 127 F.3d 277, 285 (2d Cir.
1997). Indeed, it is clearly established that a district court decision is not “without foundation” when
it concludes that criminal conduct following the entry of a plea of guilty and making false statements
to the U.S. Probation Office are inconsistent with acceptance of responsibility. Id.; see also United
States v. Karro, 257 F.3d 112, 116-17 (2d Cir. 2001) (affirming district court’s decision not to credit
defendant with acceptance of responsibility pursuant to U.S.S.G. § 3E1.1 where defendant made
false statements to the U.S. Probation Office). We therefore hold that the District Court did not err
in declining to credit Costa for acceptance of responsibility following the revelation of the pawn-
shop fraud and the fact that he made false statements to the U.S. Probation Office.

                                             CONCLUSION

        We have considered all of Costa’s arguments on appeal and find them to be without merit.
For the reasons stated above, the order of the District Court is AFFIRMED.



                                                  FOR THE COURT

                                                  Catherine O’Hagan Wolfe, Clerk of Court




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