15-3044
United States v. Renz

                             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 Courthouse, 40 Foley Square, in the City of New York, on the 3rd day of
November, two thousand sixteen.

Present:
         ROBERT A. KATZMANN,
               Chief Judge,
         RICHARD C. WESLEY,
         SUSAN L. CARNEY,
               Circuit Judges.
________________________________________________

UNITED STATES OF AMERICA,

           Appellee,

                        v.                                         No. 15-3044

DONALD J. RENZ,

         Defendant-Appellant.
________________________________________________

For Appellee:                                       Ransom P. Reynolds, John D. Hoggan, Jr.,
                                                    Assistant United States Attorneys, for
                                                    Richard S. Hartunian, United States

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                                                     Attorney for the Northern District of New
                                                     York, Albany, NY.

For Defendant-Appellant:                             James P. Egan, Appellate Attorney, for Lisa
                                                     A. Peebles, Federal Public Defender,
                                                     Syracuse, NY.

       Appeal from the United States District Court for the Northern District of New York

(Suddaby, C.J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the District Court is AFFIRMED.

       Defendant Donald Renz appeals from the judgment of the United States District Court for

the Northern District of New York (Suddaby, C.J.) ordering that his sentence of 57 months’

imprisonment – 33 months for using a counterfeit access device in violation of 18 U.S.C. §

1029(a)(1), (c)(1)(A)(i), and 24 months for aggravated identity theft in violation of 18 U.S.C. §

1028A(a)(1), (c)(4) – run consecutively to a state sentence of 41 months’ imprisonment imposed

on Renz for violating the terms of his state parole. Below, Renz urged the District Court to

impose a concurrent sentence on the ground that Renz’s sentence for the state parole violation

punished him for the same misconduct as his federal charge for using a counterfeit access device.

The District Court rejected this argument, finding that the state and federal sentences involved

different misconduct and that Renz should not otherwise be “rewarded” with a concurrent

sentence for the fact that the misconduct charged in the federal indictment occurred while Renz

was on parole. On appeal, Renz argues that the former conclusion is clearly erroneous and that

the latter rests on a misunderstanding of the law. We assume the parties’ familiarity with the

procedural history and facts of this case.


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       We review a district court’s decision to impose a consecutive sentence for abuse of

discretion. United States v. Matera, 489 F.3d 115, 124 (2d Cir. 2007). “A district court ‘abuses’

or ‘exceeds’ the discretion accorded to it when (1) its decision rests on an error of law (such as

application of the wrong legal principle) or a clearly erroneous factual finding, or (2) its

decision—though not necessarily the product of a legal error or a clearly erroneous factual

finding—cannot be located within the range of permissible decisions.” United States v. Brady,

417 F.3d 326, 332–33 (2d Cir. 2005) (quoting Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 169

(2d Cir. 2001)).

       First, the District Court’s decision to impose a consecutive sentence did not rest on a

clearly erroneous factual finding. The District Court denied Renz’s request for a concurrent

sentence after rejecting Renz’s claim—on which his request depended—that his sentence for his

state-parole violation involved “the exact same conduct” as one of the federal charges for which

he was to be sentenced. App. at 86. Although Renz may be correct that the District Court’s

rationale for making this finding was confused, the finding itself is indisputably correct. Renz

was sentenced in state court for possessing a credit card-making machine without lawful reason,

but he pleaded guilty in federal court, as relevant here, to “knowingly and with intent to defraud

us[ing] a counterfeit access device, in that [he] made a purchase using information from a credit

card issued to another person.” App. at 10. Thus, the District Court did not clearly err in finding

that the two sentences would punish different misconduct.

       Second, we find no legal error in the District Court’s comment that it did not intend to

“reward” Renz with a concurrent sentence. After rejecting Renz’s assertion regarding the scope



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of the offense conduct in the state and federal cases, the District Court concluded that this case

did not present “a situation where [the defendant is] going to be rewarded because he’s on parole

and he violates.” App. at 83. Renz interprets this to mean that the District Court’s sentencing

determination improperly turned only on whether Renz deserved to be “rewarded.” The better

understanding of the District Court’s comment, however, is that Renz, having failed to establish

that his federal and state cases concerned the same misconduct, was not entitled to a concurrent

sentence solely because he had engaged in the misconduct while on state parole. We have

upheld similar reasoning before. See United States v. Lagatta, 50 F.3d 125, 128 (2d Cir. 1995)

(finding no error where district court declined to impose a concurrent sentence “because it would

have . . . given [the defendant] ‘a free ride’”). Further, that the District Court engaged in a

proper sentencing determination is borne out by its explicit statement that it considered the §

3553(a) factors and the commentary in the Sentencing Guidelines regarding when a consecutive

or concurrent sentence should be imposed. See 18 U.S.C. § 3553(a); U.S.S.G. § 5G1.3 cmt.

n.4(C).

          We have considered all of Renz’s arguments and find in them no basis for reversal.

Accordingly, for the foregoing reasons, the judgment of the District Court is AFFIRMED.

                                           FOR THE COURT:
                                           CATHERINE O’HAGAN WOLFE, CLERK




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