17-3739-cr
United States v. Ressler

                                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 United States Courthouse, 40 Foley Square, in the City of New York on the
25th day of October, two thousand eighteen.

Present:         ROSEMARY S. POOLER,
                 RAYMOND J. LOHIER, JR.,
                 SUSAN L. CARNEY,
                            Circuit Judges.

_____________________________________________________

UNITED STATES OF AMERICA,

                                  Appellee,

                           v.                                                  17-3739-cr

PETER RESSLER,

                        Defendant-Appellant.
_____________________________________________________

Appearing for Appellant:          Dennis C. Vacco, Lippes Mathias Wexler Friedman LLP (Eric M.
                                  Soehnlein, on the brief), Buffalo, N.Y.

Appearing for Appellee:           Christopher W. Schmeisser, Assistant United States Attorney
                                  (Sandra S. Glover, Assistant United States Attorney, on the brief)
                                  for John H. Durham, United States Attorney for the District of
                                  Connecticut, New Haven, CT.

Appeal from the United States District Court for the District of Connecticut (Covello, J.).
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Appellant Peter Ressler appeals from the November 8, 2017 judgment of the United
States District Court for the District of Connecticut (Covello, J.), sentencing him principally to
sixty-three months of imprisonment following his conviction, after a plea of guilty, to wire fraud,
18 U.S.C. § 1343, embezzlement from a bankruptcy estate, id. § 153, and bankruptcy fraud, id.
§ 157. We assume the parties’ familiarity with the underlying facts, procedural history, and
specification of issues for review.

        Ressler first argues that the government breached his plea agreement by advocating for a
guidelines-range sentence, rather than telling the court that the parties agreed Ressler was
entitled to a downward departure or variance. He contends that the government’s repeated
mention of the applicable guidelines range signaled to the district court that a guidelines-range
sentence was appropriate, and that the government’s presentation minimized the steps he took to
cooperate with the government and to help mitigate the harm to his victims.

        We review this unpreserved argument for plain error. Puckett v. United States, 556 U.S.
129, 133-34 (2009). “To prevail on plain error review, an appellant must show that (1) there is
error, (2) it is plain, (3) it affects a substantial right, and (4) it seriously affects the fairness of the
judicial proceedings, resulting in a miscarriage of justice.” United States v. MacPherson, 590
F.3d 215, 218-19 (2d Cir. 2009). For an alleged breach of a plea agreement to be “plain,” the
breach must “be clear or obvious, rather than subject to reasonable dispute.” Puckett, 556 U.S. at
135.

        We cannot say that the government clearly or obviously breached the plea agreement. At
no point did the government explicitly say to the district court that Ressler was not entitled to a
downward departure or variance. The government’s statements that a guidelines-range sentence
was an appropriate starting point was not a clear or obvious breach. Moreover, the agreement
does not indicate what degree of departure or variance Ressler’s conduct warranted. Thus,
nothing in the agreement clearly required the government to characterize Ressler’s mitigation
efforts in the same light Ressler would have preferred. We do not find a clear or obvious breach
in the government’s characterizations of Ressler’s mitigation and cooperation efforts.

       Ressler next argues that the district court violated 18 U.S.C. § 3553(c) by not disclosing
whether it adopted the probation office’s sentencing recommendation. The parties dispute what
standard of review applies and whether the appellate waiver in Ressler’s plea agreement bars this
claim. We need not resolve those issues, however, because we find no error.

        Section 3553(c) “require[s] the sentencing judge to articulate a reason that demonstrates
that [s]he thoughtfully discharged [her] statutory obligation, with a degree of care appropriate to
the severity of the punishment ultimately selected.” United States v. Rosa, 11 F.3d 315, 344 (2d
Cir. 1993) (internal quotation marks omitted). “It is sufficient for the court to advert to a given
factor or factors in selecting a point within the [guidelines] range.” Id.




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        Here, the district court provided ample reasoning for the sentence it imposed. The court
first noted the appropriate guidelines range. It then specifically listed the materials it considered
and identified the factors on which it relied, including the seriousness of Ressler’s offense
conduct and his acceptance of responsibility, cooperation with the government, efforts at
mitigation, lack of criminal history, and employment efforts. This plainly satisfies the
requirements of Section 3553(c).

        We have considered the remainder of Ressler’s arguments and find them to be without
merit. Accordingly, the order of the district court hereby is AFFIRMED.


                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




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