09-0020-cr
United States v. Cifonelli

                  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 17th day of November, two thousand eleven.
PRESENT:
            AMALYA L. KEARSE,
            PIERRE N. LEVAL,
            DENNY CHIN,
                      Circuit Judges.

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UNITED STATES OF AMERICA,
          Appellee,

                  -v.-                                09-0020-cr

DANIEL CIFONELLI,
          Defendant-Appellant.

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FOR DEFENDANT-APPELLANT:            ALAN M. NELSON, Lake Success, New
                                    York.

FOR APPELLEE:                       BURTON T. RYAN, JR., Assistant
                                    United States Attorney (Jo Ann M.
                                    Navickas, Assistant United States
                                    Attorney, on the brief), for
                                    Loretta E. Lynch, United States
                                    Attorney for the Eastern District
                                    of New York, Brooklyn, New York.

            Appeal from a judgment of the United States District

Court for the Eastern District of New York (Spatt, J.) entered
December 22, 2008, convicting Daniel Cifonelli of one count of

attempt to evade income tax and sentencing him to thirty months'

imprisonment, three years' supervised release, and restitution in

the amount of $59,272.
           UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

          We assume the parties' familiarity with the facts and

procedural history of the case, which we summarize as follows:

           On April 17, 2006, Cifonelli pled guilty to a single

count of attempted tax evasion in violation of 26 U.S.C. § 7201.

Following a Fatico hearing on September 6, 2006, the district

court determined that Cifonelli's Guideline range was 18 to 24

months.   The court then sentenced Cifonelli to an above-Guideline

sentence of 30 months' imprisonment with 3 years' supervised

release and restitution in the amount of $59,272.

           On April 6, 2007, Cifonelli moved for relief under

28 U.S.C. § 2255, alleging ineffective assistance of counsel

because his former attorney failed to file a notice of appeal,
object to the above-Guideline sentence, and contest the amount of

restitution.   By order dated November 24, 2008, the district

court granted the motion with respect to the failure to file a

notice of appeal, but rejected Cifonelli's arguments regarding

the sentence and amount of restitution.   It accordingly vacated

its original judgment and entered an amended judgment on November

24, 2008, with identical terms to allow for Cifonelli to file an

appeal.   The court then entered an identical second amended


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judgment on December 22, 2008 to allow Cifonelli additional time

to file an appeal.    Cifonelli appeals from this second amended

judgment.

            Cifonelli filed a notice of appeal on January 5, 2009.

He then filed a motion in the district court on July 16, 2009 to

vacate the restitution order and to modify his prison term.     This

Court issued a mandate on January 4, 2010, dismissing Cifonelli's

appeal for lack of prosecution.1   On January 5, 2010, the

district court held a hearing regarding Cifonelli's motion to

amend or correct its sentence and restitution order.    The court

noted that Cifonelli's appeal had been dismissed, restoring

jurisdiction to the district court, but concluded that it did not

have the authority to modify Cifonelli's sentence or restitution

order under 18 U.S.C. § 3582(c) or Fed. R. Crim. P. 35(a) and 36

because the window for correcting "clear error" had passed and

the requested changes were not "clerical."    The court also stated

that even if it did retain such authority, it would decline to

modify the judgment.    On March 16, 2011, this Court granted

Cifonelli's motion to recall its mandate and reinstate the

appeal.

            On appeal, Cifonelli argues that the district court

erred by: (1) ordering restitution in an amount greater than that

agreed upon in his plea agreement; (2) imposing a procedurally

unreasonable sentence that failed to determine the correct amount


     1
          Cifonelli's second attorney had been suspended from
practicing in this Court, and as a result, never filed any
opening brief.

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of restitution or memorialize in writing the reasons for imposing

a sentence above the Guideline range; and (3) imposing a

substantively unreasonable above-Guideline sentence of 30 months'

imprisonment.    We address each argument in turn.
     1.     Improper Restitution Amount

            Cifonelli claims that the amount of restitution was

improper because it exceeded the amount agreed upon in his plea

agreement by not accounting for money already paid to the

Internal Revenue Service ("IRS") in an amended tax return filed

for 2002.

            For violations of 26 U.S.C. § 7201, the district court

had no authority to impose restitution except pursuant to

18 U.S.C. § 3663(a)(3), which allows restitution to be ordered

"to the extent agreed to by the parties in a plea agreement."     In

pertinent part, Cifonelli's plea agreement provided:

            Restitution: An amount to be set by the Court,
            which is not greater than the dollar amount of
            the total losses suffered by the victims of
            the offense.       The parties agree that
            restitution with respect to the defendant's
            back taxes, penalties and interest may also be
            ordered by the Court.

(Plea Agreement at 2).

            Thus, the plea agreement provided for restitution in an

amount not greater than "the total losses suffered by the victims

of the offense," and here, the losses were the "back taxes,

penalties and interest" Cifonelli owed for the 2002 tax year.

The plea agreement did not, however, specify the amount.     At

Cifonelli's first sentencing proceeding in 2006, the district


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court imposed restitution in the amount of $59,272, relying upon

the probation officer's report of the amount of Cifonelli's 2002

tax liability, as told to the probation officer by IRS agents.

Although Cifonelli objected in a September 19, 2007 pro se

submission supporting his § 2255 application that he "had filed

amended tax returns and remitted any and all taxes due for the

year 2002," Letter of Pet'r at 3, Cifonelli v. United States,

No. 07 Civ. 1816 (E.D.N.Y. Sept. 19, 2007), he has not, either in

the district court or in this Court, ever pointed to any evidence

supporting his contention.

          Given his failure to provide any support for his

objection to the figure provided to the court by the IRS, we see

no error in the district court's reliance on that figure to

determine the amount of his tax liability, which is the amount of

restitution to which he consented in the plea agreement.

Cifonelli is wrong to suggest that the district court had no

authority to impose restitution in a specified amount to which he

did not agree.   The plea agreement did not require that he

consent to a specific amount, only that the amount ordered not

exceed his 2002 tax liability.   The district court imposed

restitution in the amount of Cifonelli's 2002 tax liability in

reasonable reliance on a figure provided by the IRS, and

Cifonelli submitted nothing except his naked objection to

contravene this figure.   His argument has no validity.




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     2.   Procedural Unreasonableness

          Cifonelli next contends that his sentence was

procedurally unreasonable because the district court incorrectly

calculated the amount of restitution, and further, it failed to

state with specificity in writing its reasons for imposing an

above-Guideline sentence pursuant to 18 U.S.C. § 3553(c)(2).

          First, with respect to the calculation of restitution,

for the reasons set forth above, we conclude that the district

court did not commit any error.

          Second, as to the issue of written memorialization of

the district court's reasons for imposing an above-Guideline

sentence, Cifonelli's claim fails.      The district court complied

with the requirements of § 3553(c)(2) and set forth its reasons

for an above-Guideline sentence in a Statement of Reasons filed

in connection with the December 22, 2008 judgment.     Although the

district court's written reasons were somewhat cursory, it had

provided a thorough explanation on the record of its rationale

for departing from the Guideline range.     See United States v.

Hall, 499 F.3d 152, 155 (2d Cir. 2007) (holding that an

"exhaustive statement of facts" is not required and explaining

that "[w]e do not understand Congress's intent in enacting

section 3553(c)(2) to have been to divert district courts'

attention from conducting a thoughtful, on-the-record,

face-to-face sentencing exchange with criminal defendants to

obsessing over the inclusion of every material sentencing fact in

a written order of judgment"), abrogated on other grounds by


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United States v. Elbert, 658 F.3d 220 (2d Cir. 2011).    Thus,

there was no procedural error.
     3.   Substantive Unreasonableness

           Cifonelli also contends that his sentence was

substantively unreasonable because it was six months above the

high end of the applicable Guideline range of 18 to 24 months.

Further, he asserts that the district court failed to consider

his age, poor health, remorse, and efforts to correctly amend his

taxes, and instead, focused on his state criminal charges and its

belief that he would receive no additional incarceration as a

result of his state charges.

           In examining a sentence for substantive reasonableness,

we review it under a "'deferential abuse-of-discretion

standard.'"   United States v. Cavera, 550 F.3d 180, 189 (2d Cir.
2008) (quoting Gall v. United States, 552 U.S. 38, 41 (2007)).

           Here, we conclude that the district court did not abuse

its discretion in imposing an above-Guideline sentence of 30

months.   In light of all the factors articulated by the district

court, including, in particular, Cifonelli's position as a

prominent school district official and the nature and

extensiveness of the relevant criminal conduct in that it

involved theft from the school district and tax evasion, and that

it persisted for four years, the sentence imposed was reasonable

and appropriate.

           Moreover, Cifonelli's assertion that the district court

failed to account for his poor health and old age is misplaced,


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as the court weighed Cifonelli's health among the factors it

discussed, and ultimately, recommended that Cifonelli serve his

sentence in a correctional facility that defense counsel

requested because of its good medical care.

          Finally, we reject Cifonelli's argument that the

district court failed to consider the fact that because he was

released on bail pending his federal appeal while still serving

his concurrent state prison sentence, upon returning to federal

prison, he will have served more than 30 months' total

incarceration for his federal and state crimes.      First, Cifonelli

did not raise this argument until his motion to amend or correct

his sentence, well after the district court issued the judgment

from which he now appeals, i.e., at a point at which the district

court did not have jurisdiction to modify the term of

imprisonment.   Second, as the district court explained at the

time, it did not intend for its sentence to run concurrently with

the later-imposed state sentence.      At the original sentencing,

the district court only took note of the fact that the state
court had apparently promised to impose a sentence that would run

concurrently with the federal sentence and that "[Cifonelli]

[was] not likely to experience any punitive measures" at the

state level.    (Sentencing Tr. 73, Sept. 6, 2006).

          Therefore, the district court's determination to impose

an above-Guideline sentence of 30 months was not "exceptional"

and fell "within the range of permissible decisions."     Cavera,
550 F.3d at 189 (internal citation and quotation marks omitted).


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                             CONCLUSION

            We have considered appellant's other arguments on

appeal and have found them to be without merit.    Accordingly, the

judgment of the district court is hereby AFFIRMED in its

entirety.

                           FOR THE COURT:
                           CATHERINE O'HAGAN WOLFE, CLERK




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