     11-3714-cr
     United States v. Mazza

                          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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 15th day of November, two thousand twelve.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                REENA RAGGI,
 9                JON O. NEWMAN,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Appellee,
15
16                    -v.-                                               11-3714-cr
17
18       CHEYNE MAZZA,
19                Defendant-Appellant,
20
21       JOSEPH CASSETTI, JAMES CANAVAN,
22       STERLING MAZZA, PHILIP NEGRON, and
23       GARY EICHENSEHR,
24                Defendants.
25       - - - - - - - - - - - - - - - - - - - -X
26
27       FOR APPELLANT:                        Michael S. Hillis, New Haven,
28                                             Connecticut.

                                                  1
 1
 2   FOR APPELLEES:             David X. Sullivan, Sandra S.
 3                              Glover, for David B. Fein,
 4                              United States Attorneys Office
 5                              for the District of Connecticut,
 6                              New Haven, Connecticut.
 7
 8        Appeal from a judgment of the United States District
 9   Court for the District of Connecticut (Bryant, J.).
10
11        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
12   AND DECREED that the judgment of the district court be
13   AFFIRMED.
14
15        Cheyne Mazza challenges his sentence, arguing that the
16   district court erred in applying the United States Federal
17   Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) by [1]
18   refusing to grant a reduction for acceptance of
19   responsibility and [2] counting a prior Connecticut
20   conviction in determining criminal history category
21   notwithstanding that Connecticut afterward decriminalized
22   the conduct giving rise to that conviction. We assume the
23   parties’ familiarity with the underlying facts, the
24   procedural history, and the issues presented for review.
25
26        This Court reviews the procedural reasonableness of a
27   district court’s sentence for abuse of discretion. United
28   States v. Cavera, 550 F.3d 180, 187 (2d Cir. 2008). “A
29   district court commits procedural error where it fails to
30   calculate the Guidelines range . . . , makes a mistake in
31   its Guidelines calculation, or treats the Guidelines as
32   mandatory.” Id. at 190 (citations omitted).
33
34        1.  In refusing a reduction for acceptance of
35   responsibility under U.S.S.G. § 3E1.1 (2009), the district
36   court did not abuse its discretion by considering the
37   untimeliness of the plea. See U.S.S.G. § 3E1.1 cmt. 1(h)
38   (“In determining whether a defendant qualifies under
39   subsection (a), appropriate considerations include . . . the
40   timeliness of the defendant’s conduct in manifesting the
41   acceptance of responsibility.”); id. cmt. 6 (“The timeliness
42   of the defendant’s acceptance of responsibility is a
43   consideration under both subsections.” (emphasis added)).
44   Defendant’s reliance on United States v. Kumar, 617 F.3d
45   612, 636 (2d Cir. 2010), is unpersuasive because in this
46   case, the timeliness of Defendant’s plea was not the only
47   factor upon which the district court based its decision to

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 1   deny the reduction. Moreover, Defendant pled guilty on the
 2   morning of jury selection. See id. at 637 (emphasizing that
 3   Kumar did not plead “‘on the morning of trial’” (quoting
 4   United States v. Teyer, 322 F. Supp. 2d 359, 376 (S.D.N.Y.
 5   2004)).
 6
 7        2.  The district court did not base its denial of a
 8   reduction on Defendant’s request for a Fatico hearing, as
 9   Defendant argues. The district court refused the reduction
10   in part on Defendant’s request for a Fatico hearing because
11   the request was “totally and completely frivolous.”
12   (Sentencing Hr’g Tr. 50, Aug. 29, 2011.) Relatedly, a
13   defendant’s refusal to admit to his role as leader of the
14   conspiracy (the subject of the Fatico hearing) is in itself
15   a proper basis upon which the district court denied
16   Defendant a reduction for acceptance of responsibility. See
17   United States v. Zhuang, 270 F.3d 107, 110 (2d Cir. 2001)
18   (denying reduction where defendant asserted that he “was
19   paid to do the job, [and] that he was merely a ‘middle
20   person’”).
21
22        3.  Defendant was not denied a reduction for
23   acceptance of responsibility for refusing to admit to
24   uncharged conduct. He was denied the reduction for refusing
25   to admit to his role in the conspiracy, which, as Zhuang
26   holds, was proper. In any event, Defendant’s reliance on
27   United States v. Oliveras, 905 F.2d 623, 629-30 (2d Cir.
28   1990), is unavailing, as the court in Oliveras relied on
29   language in section 3E1.1 that has since been changed.
30
31        4.  The district court properly calculated Defendant’s
32   criminal history category. One of Defendant’s prior
33   convictions was for possession of a small amount of
34   marijuana, conduct that the Connecticut legislature
35   subsequently decriminalized. See Conn. Gen. Stat. §
36   21a-279a (2011); id. § 53a-24(a) (“Every offense which is
37   not a ‘crime’ is a ‘violation’. Conviction of a violation
38   shall not give rise to any disability or legal disadvantage
39   based on conviction of a criminal offense.”); id. §
40   53a-27(b) & (c). However, a state’s classification of
41   conduct as a “violation” or a “crime” is irrelevant for the
42   purpose of calculating a defendant’s prior criminal history
43   under U.S.S.G. § 4A1.1(c). As the Application Notes to
44   section 4A1.1 explain: “To minimize problems with imperfect
45   measures of past crime seriousness, criminal history
46   categories are based on the maximum term imposed in previous
47   sentences rather than on other measures, such as whether the

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 1   conviction was designated a felony or misdemeanor.”
 2   U.S.S.G. § 4A1.1(c) cmt. background. Exceptions for certain
 3   minor infractions (such as traffic violations and loitering)
 4   are listed in section 4A1.2(c), but drug possession is not
 5   among them. See United States v. Jenkins, 989 F.2d 979, 979
 6   (8th Cir. 1993) (holding that the district court correctly
 7   applied criminal history points to defendant’s prior state
 8   marijuana convictions that were “merely infractions under
 9   Nebraska law”). Moreover, a state’s reclassification that
10   occurs after a conviction has become final does not apply
11   retroactively. The Guidelines’ concern with “[r]epeated
12   criminal behavior [as] an indicator of a limited likelihood
13   of successful rehabilitation” suggests that the only
14   relevant consideration is whether the defendant has engaged
15   in criminal behavior in the past. U.S.S.G. Ch. 4, pt. A,
16   intro. cmt. Defendant’s behavior was criminal at the time
17   he engaged in it, and as such, is an “indicator of a limited
18   likelihood of successful rehabilitation.” Id.; see
19   generally McNeill v. United States, 131 S. Ct. 2218 (2011)
20   (holding that state’s subsequent lowering of punishment for
21   crime of prior conviction did not render conviction
22   inapplicable to Federal Armed Career Criminal Act).
23
24        Finding no merit in Mazza’s remaining arguments, we
25   hereby AFFIRM the judgment of the district court.
26
27
28                              FOR THE COURT:
29                              CATHERINE O’HAGAN WOLFE, CLERK
30




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