10-1635-cr
United States v. Zimmardi

                                    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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 22nd day of February, two thousand eleven.

PRESENT:

          JOSÉ A. CABRANES,
          DENNY CHIN,
                       Circuit Judges,
          PAUL A. CROTTY,
                       District Judge.*


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UNITED STATES OF AMERICA,

                               Plaintiff-Appellee,

          v.                                                                               No. 10-1635-cr

SALVATORE ZIMMARDI,

                               Defendant-Appellant.

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          The Honorable Paul A. Crotty, of the United States District Court for the Southern
          *

District of New York, sitting by designation.

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FOR DEFENDANT-APPELLANT:                               Laurie S. Hershey, Manhasset, NY.

FOR APPELLEE:                                          Susan Corkery and John J. Durham, Assistant
                                                       United States Attorneys, of counsel (Loretta E.
                                                       Lynch, United States Attorney for the Eastern
                                                       District of New York, on the brief), Office of
                                                       the United States Attorney for the Eastern
                                                       District of New York, Brooklyn, NY.


       Appeal from a judgment of the United States District Court for the Eastern District of New
York (Leonard D. Wexler, Judge).

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

        Defendant-Appellant Salvatore Zimmardi (“defendant” or “Zimmardi”) appeals from a
judgment of the District Court convicting him, pursuant to his guilty plea, of being a felon-in-
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Zimmardi was sentenced principally to
imprisonment for 84 months. On appeal, Zimmardi claims that his sentence was procedurally and
substantively unreasonable because the District Court allegedly failed to consider the history and
characteristics of the defendant in accordance with 18 U.S.C. § 3553(a). Zimmardi also claims that,
if we remand the action for resentencing, he should be sentenced by a different judge. We assume
the parties’ familiarity with the facts and procedural history of the action.

         We review all sentences using a “deferential abuse-of-discretion standard.” United States v.
Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (in banc) (internal quotation marks omitted). Our review
has “two components: procedural review and substantive review.” Id. We “first ensure that the
district court committed no significant procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence—including an explanation for any deviation from the Guidelines
range.” Gall v. United States, 552 U.S. 38, 51 (2007). We then review the substantive reasonableness
of the sentence and reverse only when the Court’s sentence “cannot be located within the range of
permissible decisions.” United States v. Cavera, 550 F.3d at 189 (internal quotation marks omitted).

        The District Court properly calculated the sentencing guidelines, but chose, following three
evidentiary sentencing hearings, to impose a sentence above the Guidelines range and above the 60
months requested by the government. During the sentencing hearings, the District Court found that
defendant posed a “danger to society.” This finding was based upon a recorded conversation in

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which defendant seemed to be planning to hire someone to murder a woman who had filed a police
report that led to defendant’s 2001 arrest and subsequent imprisonment for Attempted Lewd or
Lascivious Assault on a Child. Although the District Court imposed a sentence two years longer
than that sought by the government, we find no procedural error in the District Court’s sentencing,
nor to do we find the sentence substantively unreasonable. Because we affirm the judgment of the
District Court, we need not address defendant’s claim that this case should be assigned to another
judge.

                                        CONCLUSION
       We have considered all of defendant’s claims on appeal and have found them to be without
merit. Accordingly, the judgment of the District Court is AFFIRMED.



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




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