     14-1806
     United States of America v. Steven Bertuglia

                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 4th day of February, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                GUIDO CALABRESI,
 8                RICHARD C. WESLEY,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               14-1806
16
17       STEVEN BERTUGLIA,
18                Defendant-Appellant.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        Philip L. Weinstein, Federal
22                                             Defenders of New York, Inc., New
23                                             York, New York.
24
25       FOR APPELLEES:                        Charles N. Rose, Emily Berger,
26                                             Assistant United States
27                                             Attorneys (for Loretta E. Lynch,
28                                             United States Attorney for the

                                                  1
 1                              Eastern District of New York),
 2                              Brooklyn, New York.
 3
 4        Appeal from a judgment of the United States District
 5   Court for the Eastern District of New York (Bianco, J.).
 6
 7        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 8   AND DECREED that the judgment of the district court be
 9   AFFIRMED.
10
11        Steven Bertuglia appeals from a judgment of the United
12   States District Court for the Eastern District of New York
13   (Bianco, J.), sentencing him to concurrent terms of 180
14   months’ imprisonment for two counts of bank robbery in
15   violation of 18 U.S.C. § 2113(a). We assume the parties’
16   familiarity with the underlying facts, the procedural
17   history, and the issues presented for review.
18
19        Bertuglia’s only argument on appeal is that the
20   district court erred in classifying him as a “career
21   offender” under the Sentencing Guidelines, over Bertuglia’s
22   timely objection.1 We need not consider this argument,
23   because the district court explained repeatedly that the
24   disputed classification made no difference to the sentence
25   imposed:
26



         1
              There is a circuit split on the question whether
     burglary of a non-residential building qualifies as a per se
     “crime of violence” under the career offender guideline.
     Compare United States v. Brown, 514 F.3d 256 (2d Cir. 2008);
     United States v. Hascall, 76 F.3d 902 (8th Cir. 1996), with
     United States v. Giggey, 551 F.3d 27 (1st Cir. 2008) (en
     banc); United States v. Matthews, 374 F.3d 872 (9th Cir.
     2004); United States v. Hoults, 240 F.3d 647 (7th Cir.
     2001); United States v. Wilson, 168 F.3d 916 (6th Cir.
     1999); United States v. Harrison, 58 F.3d 115 (4th Cir.
     1995); United States v. Spell, 44 F.3d 936 (11th Cir. 1995);
     United States v. Jackson, 22 F.3d 583 (5th Cir. 1994);
     United States v. Smith, 10 F.3d 724 (10th Cir. 1993). As
     the split arises from different readings of the career
     offender guideline, the United States Sentencing Commission
     is well situated to resolve it by clarifying whether non-
     residential burglary qualifies as a “crime of violence”
     under U.S.S.G. § 4B1.2(a)(2).
                                  2
 1            [E]ven if the guideline range were different,
 2            because of the career offender provision, . . . I
 3            would impose the exact same sentence. So even if
 4            the Second Circuit were to determine that this
 5            burglary was not a crime of violence, . . . I
 6            would impose the exact same sentence in this case,
 7            the 15 year sentence, because I believe that this
 8            defendant is someone, based upon his history, [for
 9            whom] that sentence is necessary to achieve all
10            the factors of sentencing, based upon the reasons
11            that I’ve already given. So even if his guideline
12            range were the 70 to 87 months, I’d give him the
13            same sentence as the non-guideline sentence of 15
14            years for all the reasons I’ve given.
15
16   Sentencing Tr. at 19-20.
17
18        “[G]uideline disputes that would not have affected the
19   ultimate sentence need not be adjudicated on appeal.”
20   United States v. Shuster, 331 F.3d 294, 296 (2d Cir. 2003);
21   see also United States v. Borrego, 388 F.3d 66, 69 (2d Cir.
22   2004) (“[T]o require the court to rule on issues which would
23   have no effect on the sentence would merely require
24   performance of a meaningless academic exercise.”). Because
25   the district court could have--and would have--imposed the
26   same sentence, even without the career offender enhancement,
27   there is nothing for us to decide on appeal.
28
29        For the foregoing reasons, we hereby AFFIRM the
30   judgment of the district court.
31
32                              FOR THE COURT:
33                              CATHERINE O’HAGAN WOLFE, CLERK
34
35
36




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