13-3155-cr
United States v. Torriero

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
A SUMMARY ORDER 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
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
4th day of December, two thousand fourteen.

Present:
         ROBERT A. KATZMANN,
                     Chief Judge,
         PIERRE N. LEVAL,
         PETER W. HALL,
                     Circuit Judges.
________________________________________________

UNITED STATES OF AMERICA,

           Appellee,

                   v.                                           No.13-3155-cr

DONALD TORRIERO, AKA SEALED DEFENDANT #2,

           Defendant-Appellant,

JULIUS DESIMONE, AKA SEALED DEFENDANT #1, MAZZA & SONS, INC., AKA
SEALED DEFENDANT #5, DOMINICK MAZZA, AKA SEALED DEFENDANT #4, CROSS
NICASTRO, AKA SEALED DEFENDANT #3,

         Defendants.
________________________________________________
For Defendant-Appellant:          BRUCE R. BRYAN, Syracuse, NY.

For Appellee:                     THEKLA HANSEN-YOUNG (Allen M. Brabender and Todd W.
                                  Gleason, on the brief), for Sam Hirsch, Acting Assistant
                                  Attorney General, Washington, DC.


       Appeal from the United States District Court for the Northern District of New York
(Hurd, J.).

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court be and hereby is AFFIRMED.

       Donald Torriero appeals from an August 7, 2013 judgment of conviction and sentence

entered by the United States District Court for the Northern District of New York (Hurd, J.). The

district court sentenced Torriero principally to a term of imprisonment of thirty-six months after

Torriero pleaded guilty to one count of conspiracy in violation of 18 U.S.C. § 371 and two

counts of wire fraud in violation of 18 U.S.C. § 1343. We assume the parties’ familiarity with the

underlying facts, procedural history, and issues on appeal.

       Torriero contends that his sentence was substantively unreasonable. We disagree. This

sentence is not “shockingly high, shockingly low, or otherwise unsupportable as a matter of

law.” United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009). The advisory range

recommended by the United States Sentencing Guidelines for his crime was sixty-three to

seventy-eight months’ imprisonment, but the district court sentenced him to just thirty-six

months’ imprisonment after considering the same factors that Torriero raises in his appeal.

       Torriero further argues that the district court’s sentence was procedurally unreasonable

because it applied section 2B1.1 of the Guidelines rather than section 2Q1.2 in calculating his

offense level. We disagree. The district court was required by Part D of Chapter 3 of the


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Guidelines to group Torriero’s three counts and then apply the guideline that resulted in the

highest offense level. See U.S. Sentencing Guidelines Manual § 3D1.3. In this case, the fraud-

related guideline of section 2B1.1 resulted in a higher offense level than the environmental

crimes-related guideline of section 2Q1.2. The cross-reference of section 2B1.1(c)(3) on which

Torriero relies applies “only if the conduct alleged in the count of the indictment of which the

defendant is convicted establishes the elements of another offense.” United States v. Genao, 343

F.3d 578, 583 (2d Cir. 2003). Because Torriero’s offense conduct in the wire-fraud counts of the

indictment did not establish an environmental crime, the district court did not err in applying

section 2B1.1.

       We have considered Torriero’s remaining arguments and find them to be without merit.

For the reasons stated herein, the judgment of the district court is AFFIRMED.



                                                 FOR THE COURT:
                                                 CATHERINE O’HAGAN WOLFE, CLERK




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