18-3272-cr
United States v. Merlino

                                 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 7th day of November, two thousand nineteen.

PRESENT:            JOSÉ A. CABRANES,
                    JOSEPH F. BIANCO,
                                  Circuit Judges,
                    EDWARD R. KORMAN,
                                  District Judge. *


UNITED STATES OF AMERICA,

                            Appellee,                      18-3272-cr

                            v.

JOSEPH MERLINO, AKA JOEY

                            Defendant-Appellant,

PASQUALE PARRELLO, AKA PATSY, AKA PAT, EUGENE
O'NOFRIO, AKA ROOSTER, COMAD IANNIELLO, ISRAEL TORRES,
AKA BUDDY, ANTHONY ZINZI, AKA ANTHONY BOY,
ANTHONY VAZZANO, AKA TONY THE WIG, AKA MUSCLES
ALEX CONIGLIARO, FRANK BARBONE, RALPH BALSAMO,
PASQUALE MAIORINO, AKA PATTY BOY, JOHN SPIRITO, AKA



     *
    Judge Edward R. Korman, of the United States District Court for the Eastern District of New
York, sitting by designation.

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JOHNNY JOE, VINCENT CASABLANCA, AKA VINNY, MARCO
MINUTO, PAUL CASSANO, AKA PAUL CASSONE, DANIEL
MARINO, JR., AKA DANNY, JOHN LEMBO, AKA JOHNNY,
MITCHELL FUSCO, AKA MITCH, REYNOLD ALBERTI, AKA
RANDY, VINCENT TERRACCIANO, AKA BIG VINNY, JOSEPH
TOMANELLI, AKA JOE, AGOSTINO CAMACHO, AKA AUGIE,
NICHOLAS DEVITO, AKA NICKY, ANTHONY CASSETTA, AKA
TONY THE CRIPPLE, NICHOLAS VUOLO, AKA NICKY THE WIG,
BRADFORD WEDRA, MICHAEL POLI, AKA MIKE POLIO,
PASQUALE CAPOLONGO, AKA PAT C, AKA MUSTACHE PAT,
AKA.FISH, AKA PATSY, ANTHONY DEPALMA, AKA HARPO,
AKA HARP, JOHN TOGNINO, AKA TUGBOAT, MARK
MAIUZZO, AKA STYMIE, JOSEPH DIMARCO, HAROLD
THOMAS, AKA HARRY, RICHARD LACAVA, AKA RICHIE,
VINCENT THOMAS, AKA VINNY, ANTHONY CAMISA, AKA
ANTHONY THE KID, FRANK TRAPANI, AKA HARPO, ANTHONY
CIRILLO, CARMINE GALLO, JOSEPH FALCO, AKA JOE CLUB,
FRANCESCO DEPERGOLA, AKA FRANK, RALPH SANTANIELLO,
LAURENCE KEITH ALLEN, AKA KEITH ALLEN, CRAIG BAGON,
BRADLEY SIRKIN, AKA BRAD, WAYNE KREISBERG,

                       Defendants.


FOR APPELLEE:                                             Anna M. Skotko, Assistant United States
                                                          Attorney (Max Nicholas, Assistant United
                                                          States Attorney, on the brief), for Geoffrey S.
                                                          Berman, United States Attorney, Southern
                                                          District of New York, New York, NY.

FOR DEFENDANT-APPELLANT:                                  Edwin J. Jacobs, Jr., Jacobs & Barbone,
                                                          P.A., Atlantic City, NJ, and John C.
                                                          Meringolo, Meringolo & Associates, P.C.,
                                                          New York, NY.

       Appeal from an October 19, 2018 judgment of the United States District Court for the
Southern District of New York (Richard J. Sullivan, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is
AFFIRMED.

      Defendant-Appellant Joseph Merlino (“Merlino”) appeals from an October 19, 2018
judgment convicting him, following a guilty plea, of one count of interstate transmission of wagering

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information, in violation of 18 U.S.C. §§ 1084 and 2. Merlino was sentenced principally to 24
months’ imprisonment, to be followed by a one-year term of supervised release, and imposed a $100
mandatory special assessment. Although his advisory term of imprisonment under the United States
Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) was 10 to 16 months, the statutory maximum
sentence was 24 months. Merlino appeals both the procedural and substantive reasonableness of his
sentence. We assume the parties’ familiarity with the underlying facts, the procedural history of the
case, and the issues on appeal.

        “We review the procedural and substantive reasonableness of a sentence under a deferential
abuse-of-discretion standard.” United States v. Yilmaz, 910 F.3d 686, 688 (2d Cir. 2018) (citation
omitted). “A district court commits procedural error where it fails to calculate (or improperly
calculates) the . . . Guidelines range, treats the . . . Guidelines as mandatory, fails to consider the [18
U.S.C.] § 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails adequately to
explain the chosen sentence.” United States v. Robinson, 702 F.3d 22, 38 (2d Cir. 2012) (citation
omitted).

          Our review of a sentence for substantive reasonableness is “particularly deferential.” United
States v. Broxmeyer, 699 F.3d 265, 289 (2d Cir. 2012). We will set aside a sentence as substantively
unreasonable only if it is “so shockingly high, shockingly low, or otherwise unsupportable as a
matter of law that allowing [it] to stand would damage the administration of justice.” Id. (internal
quotation marks and citation omitted).

                                    I. Procedural Reasonableness

        Merlino argues that the District Court procedurally erred by failing to “credit” him for the
time he spent in custody (i.e., 108 days) on a violation of supervised release in the Eastern District of
Pennsylvania—a sentence that was later vacated by the Third Circuit. Merlino argues that he is
entitled to this “credit” pursuant to U.S.S.G. § 5G1.3(b) because he experienced a term of
imprisonment resulting from a prior violation of supervised release that, in turn, constitutes
“relevant conduct” to the instant offense of conviction. Even assuming, for the sake of argument
only, that the prior violation of supervised release constitutes “relevant conduct” under the
Guidelines, Merlino’s procedural challenge lacks merit.

        If the prior violation of supervised release constitutes “relevant conduct,” then the District
Court was permitted, but not required, to “credit” the 108 days that Merlino served in the Eastern
District of Pennsylvania. Merlino relies on U.S.S.G. § 5G1.3(b). But that provision requires the
District Court to “credit” the time served on a prior sentence only where the sentence is subject to an




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“undischarged term of imprisonment.” U.S.S.G. § 5G1.3(b) (emphasis added).1 That is not the case
here. Because the Third Circuit vacated the sentence of imprisonment resulting from the violation of
supervised release and ordered Merlino to be released from custody, there is no “undischarged
term” that the District Court could have considered.

         To the extent Merlino argues that the 108 days qualify as a “discharged term of
imprisonment,” then the Guidelines permit, but do not require, a “downward departure” in the
sentence for the instant offense of conviction. U.S.S.G. § 5G1.3(b), Application Note 5 (“In the case
of a discharged term of imprisonment, a downward departure is not prohibited if [U.S.S.G. § 5G1.3(b)]
would have applied to that term of imprisonment had the term been undischarged.”) (emphasis
added). In other words, the Guidelines expressly commit the decision to “credit” a prior discharged
term of imprisonment by a “downward departure” to the District Court’s discretion. Id.; see also
U.S.S.G. § 5K2.23 (“A downward departure may be appropriate if the defendant (1) has completed
serving a term of imprisonment; and (2) [U.S.S.G. § 5G1.3(b)] would have provided an adjustment
had that completed term of imprisonment been undischarged at the time of sentencing for the
instant offense.”) (emphasis added).2




1
 U.S.S.G. § 5G1.3(b) states in relevant part that “[i]f . . .a term of imprisonment resulted from
another offense that is relevant conduct to the instant offense of conviction,” then “the court shall
adjust the sentence [for the instant offense] for any period of imprisonment already served on the
undischarged term of imprisonment if the court determines that such period of imprisonment will
not be credited to the federal sentence by the Bureau of Prisons” and shall impose the current
sentence “to run concurrently to the remainder of the undischarged term of imprisonment.”
2
  Notably, the two district court decisions relied upon by Merlino wholly undermine his position on
appeal. See United States v. Malloy, 845 F. Supp. 2d 475, 482–83 (N.D.N.Y. 2012) (explaining that the
mandatory “[§] 5G1.3 deals with the imposition of a sentence, which is subject to an undischarged
term of imprisonment,” whereas the discretionary “§ 5K2.23 . . . addresses a situation where an
adjustment under section 5G1.3 is unavailable because the term of imprisonment for relevant
conduct has been discharged” (internal quotation marks, alterations, and citations omitted)); United
States v. Rosado, 254 F. Supp. 2d 316, 320 (S.D.N.Y. 2003) (finding that “there is no undischarged
term of imprisonment that would make § 5G1.3(b) applicable,” but holding that the discharged term
“served in jail should be credited by way of this permitted, but discretionary, downward departure”
recognized in Application Note 5 to § 5G1.3) (emphasis added). Similarly, Merlino’s reliance on our
summary order in United States v. Boyle is misplaced since that order had no precedential effects and,
in any event, has no bearing on the question presented in this case. 283 F. App’x 825, 827 (2d Cir.
2007) (holding that “the district court’s retrospective application of the revised Guidelines worked to
the disadvantage of the appellant, violating the Ex Post Facto Clause”), aff’d on other grounds, 556 U.S.
938 (2009).




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         Merlino has not pointed to any part of the record that shows that the District Court abused
its discretion. To the contrary, in the process of determining the appropriate sentence, the District
Court acknowledged its review of, among other things, “Merlino’s appeal in the Third Circuit for a
violation of supervised release” and “all the opinions in that case.” Joint App. at 295. Despite its
acknowledgment of Merlino’s prior term of imprisonment, the District Court stated at sentencing
that it had “no hesitation in imposing the maximum sentence [permissible under the statute], which
is 24 months.” Id. at 342–43.

       In the circumstances presented here, we have no difficulty concluding that the District Court
was not obligated to “credit” Merlino for the 108 days served in the Eastern District of Pennsylvania
and that it did not “abuse its discretion” in excluding the credit from the sentence imposed.

                                   II. Substantive Reasonableness

        Merlino also argues that his sentence is substantively unreasonable because the District
Court’s use of charged criminal conduct that did not result in a conviction at trial, as relevant
conduct at sentencing, violated his Fifth and Sixth Amendment rights under the U.S. Constitution.
In making this argument, Merlino admits that: (1) he “did not raise a Fifth or Sixth Amendment
challenge” at the time of sentencing and, thus, his constitutional claim should be reviewed on appeal
for “plain error”; and (2) the claim is contrary to precedent and is being made only to preserve it in
the event the law changes while the appeal is pending. Appellant Br. at 12.

        “Plain error review requires a defendant to demonstrate that (1) there was error, (2) the error
was plain, (3) the error prejudicially affected his substantial rights, and (4) the error seriously affected
the fairness, integrity or public reputation of judicial proceedings.” United States v. Burden, 860 F.3d
45, 53 (2d Cir. 2017).

        Here, as Merlino expressly concedes, “the error was not ‘plain’ . . . because binding
precedent including, e.g., United States v. Watts, 519 U.S. 148 (1997), currently forecloses” Merlino’s
constitutional objection. Appellant Br. at 12; see, e.g., Watts, 519 U.S. at 157 (“[A] jury’s verdict of
acquittal does not prevent the sentencing court from considering conduct underlying the acquitted
charge, so long as that conduct has been proven by a preponderance of the evidence.”); see also, e.g.,
United States v. Vaughn, 430 F.3d 518, 526 (2d Cir. 2005) (holding that “a district court may sentence
a defendant taking into account acquitted conduct”).

       Finally, in the circumstances presented, we conclude that a 24-month sentence is simply not
substantively unreasonable.




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                                        CONCLUSION

        We have reviewed all of the remaining arguments raised by Merlino on appeal and find them
to be without merit. For the foregoing reasons, we AFFIRM the October 19, 2018 judgment of the
District Court.


                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk of Court




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