     14-2797-cr (L)
     United States v. Johansen

                                      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 for the Second Circuit, held at the
 2   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
 3   7th day of January, two thousand fifteen.
 4
 5   Present:    ROSEMARY S. POOLER,
 6               DEBRA ANN LIVINGSTON,
 7               CHRISTOPHER F. DRONEY,
 8                           Circuit Judges.
 9   _____________________________________________________
10
11   UNITED STATES OF AMERICA,
12
13                                      Appellee,
14
15
16                               v.                                          14-2797-cr(L),
17                                                                           14-2799(CON)
18
19
20   JOHN JOHANSEN,
21
22                           Defendant-Appellant.
23   __________________________________________
24
25
26   Appearing for Appellant:           Alan S. Futerfas (Ellen B. Resnik, on the brief), Law Offices of
27                                      Alan S. Futerfas, New York, NY.
28
29   Appearing for Appellee:            Daniel A. Spector, Assistant United States Attorney, of Counsel
30                                      (Amy Busa, Assistant United States Attorney, of Counsel), for
31                                      Loretta E. Lynch, United States Attorney for the Eastern District
32                                      of New York, Brooklyn, NY.
33
34
 1         Appeal from the United States District Court for the Eastern District of New York
 2   (Townes, J.).
 3
 4
 5        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
 6   AND DECREED that the judgments of said District Court be and they hereby are AFFIRMED.
 7
 8
 9           John Johansen appeals from the July 31, 2014 judgments of the United States District
10   Court for the Eastern District of New York (Townes, J.) principally sentencing him to 28
11   months’ imprisonment and imposing forfeiture and restitution orders. We assume the parties’
12   familiarity with the underlying facts, procedural history, and specification of issues for review.
13
14           We review a district court’s sentencing decisions for procedural error under a “deferential
15   abuse-of-discretion standard,” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008)
16   (internal quotation marks omitted), which “incorporates de novo review of questions of law
17   (including interpretation of the Guidelines) and clear-error review of questions of fact,” United
18   States v. Legros, 529 F.3d 470, 474 (2d Cir. 2008).
19
20           “A district court commits procedural error where it . . . selects a sentence based on
21   clearly erroneous facts . . . .” United States v. Robinson, 702 F.3d 22, 38 (2d Cir. 2012). To hold
22   that a factual finding is “clearly erroneous,” we must be “left with the definite and firm
23   conviction that a mistake has been committed.” Cavera, 550 F.3d at 204 (internal quotation
24   marks omitted). However, where “the district court’s account of the evidence is plausible in light
25   of the record viewed in its entirety, the court of appeals may not reverse it even though
26   convinced that had it been sitting as the trier of fact, it would have weighed the evidence
27   differently.” United States v. Mi Sun Cho, 713 F.3d 716, 722 (2d Cir. 2013) (quoting Anderson v.
28   City of Bessemer City, N.C., 470 U.S. 564, 573–74 (1985) (internal quotation marks omitted)).
29
30           Johansen argues that the district court committed procedural error by relying on an
31   erroneous factual finding about his financial condition and by impermissibly considering his
32   inability to pay the forfeiture money judgment in imposing sentence.
33
34           We do not agree with Johansen’s characterization of the record. The transcript of the
35   sentencing hearing does not support Johansen’s assertion that the district court found that he
36   transferred property to others in order to render himself judgment-proof. Rather, the district court
37   accurately described Johansen’s assets and commented that the victims of his scheme were
38   unlikely to receive restitution given his impecunious state. The district court’s remarks evince no
39   indication that it considered Johansen’s inability to pay restitution as an aggravating factor in
40   imposing sentence. See Williams v. Illinois, 399 U.S. 235, 240–42 (1970) (holding that an
41   individual may not be held in continued confinement beyond the statutory maximum because of
42   his failure to pay a fine). The district court also accurately described Johansen’s failure to pay
43   the forfeiture money judgment. The transcript of the sentencing proceeding does not support
44   Johansen’s contention that the district court considered this factor in selecting the term of
45   imprisonment. Accordingly, we find no procedural error.
46
47

                                                      2
1           We have considered the remainder of Johansen’s arguments and find them to be without
2   merit. The judgments of the district court hereby are AFFIRMED.
3
4
5                                                     FOR THE COURT:
6                                                     Catherine O’Hagan Wolfe, Clerk
7




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