10-3580-cr
United States v. DeCecco
                            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 23rd day of March, two thousand twelve.

PRESENT: JOHN M. WALKER, JR.,
         GERARD E. LYNCH,
         CHRISTOPHER F. DRONEY,
                        Circuit Judges.

————————————————————————

UNITED STATES OF AMERICA,
                        Appellee,

                           v.                                            No. 10-3580-cr

STEVEN DECECCO,
                                      Defendant-Appellant.

————————————————————————

FOR APPELLANT:                  LAURIE HERSHEY, Manhasset, New York.

FOR APPELLEE:                   PAUL A. MURPHY, Assistant United States Attorney
                                (Sandra S. Glover, on the brief), for Deirdre M. Daly, Acting
                                United States Attorney for the District of Connecticut,
                                Bridgeport, Connecticut.

          Appeal from the United States District Court for the District of Connecticut (Janet

C. Hall, Judge).
       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

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

       Defendant-appellant Steven DeCecco appeals from his judgment of conviction,

following a guilty plea, of embezzling more than $2.5 million from his employer while he

served as its controller. The district court sentenced him principally to 96 months’

imprisonment. On appeal, he challenges his sentence as unreasonable and argues that the

conduct of his defense counsel was ineffective. We assume the parties’ familiarity with

the facts, procedural history, and issues on appeal.

I. Sentencing

       DeCecco argues that his sentence is both procedurally and substantively

unreasonable. He claims that he should have received a two-level reduction to his offense

level under the Guidelines calculation for acceptance of responsibility, and that 96

months was an unreasonably long sentence. Both arguments are meritless.

       “We review sentencing decisions for reasonableness using an abuse-of-discretion

standard.” United States v. Tran, 519 F.3d 98, 107 (2d Cir. 2008) (internal quotation

marks omitted). Whether to credit a defendant for acceptance of responsibility and how

to calculate his sentence are both discretionary decisions. The court could have granted

credit to DeCecco for acceptance of responsibility, and could have sentenced him to a

shorter period of incarceration, but the court was not required to do either. The court’s

sentencing decisions did not constitute an abuse of discretion.




                                              2
       A. Acceptance of Responsibility

       As the district court noted, although DeCecco confessed to his crimes once caught

and promptly pled guilty, he nevertheless lied to government agents and hid various

assets in an effort to prevent their forfeiture. The district court regarded this subterfuge as

diminishing DeCecco’s acceptance of responsibility: although DeCecco might have

admitted his wrongdoing, he sought to continue supporting himself and his family “with

somebody else’s money,” and thus had not truly “accepted responsibility to the victim.”

That was an entirely reasonable basis on which to deny DeCecco acceptance-of-

responsibility credit. Indeed, the Sentencing Commission advises that the downward

adjustment is “ordinarily” not to be granted when a defendant has received an upward

adjustment for obstruction of justice, as DeCecco did here. See U.S.S.G. § 3E1.1,

comment (n.4). “Unless a district court’s determination as to whether a defendant has

accepted responsibility is ‘without foundation,’ it may not be disturbed.” United States v.

Zhuang, 270 F.3d 107, 110 (2d Cir. 2001). Here, the district court had a strong

foundation for concluding that DeCecco had not accepted responsibility. Thus, we will

not disturb that conclusion.

       B. Substantive Unreasonableness

       DeCecco also argues that his sentence, despite being within the Guidelines range,

was substantively unreasonable because “a sentence of 96 months for a defendant with no

criminal history points who has committed a non-violent offense does not serve any of the

sentencing goals of 18 U.S.C. § 3553(a) and constitutes an abuse of discretion.” DeCecco


                                              3
insists that “a far more lenient sentence” was “required” because (1) the Guidelines loss

table, see U.S.S.G. § 2B1.1(b), is irrational, arbitrary, and overstates the seriousness of his

offense; (2) his sentence does not serve the goal of deterrence, since he had “never served

any time in prison” before this conviction and is in an age group that makes him

statistically unlikely to reoffend; and (3) his sentence does not serve the goal of providing

restitution to victims because for 96 months DeCecco will be out of the workforce and

unable to make his victims whole.

       None of these arguments is availing. First, nothing in the record suggests that

DeCecco’s fraud should be seen as less serious than a typical $2.5 million fraud such that

DeCecco necessarily deserved a more lenient sentence than the typical fraud defendant.

And as the district court noted, while loss was “a very heavy contributor to Mr.

DeCecco’s guidelines,” the loss table does not “overstate the seriousness of his offense”

because, among other reasons, DeCecco’s fraud had “a significant impact” on his victim,

amounting to roughly 10% of the company’s annualized revenue. Furthermore, our Court

and our sister circuits have affirmed even longer sentences of imprisonment for frauds

similar in size to DeCecco’s. See, e.g., United States v. Feldman, 647 F.3d 450, 465-66

(2d Cir. 2011) (affirming a 188-month prison sentence for a $1.1 million healthcare

fraud); United States v. Naranjo, 634 F.3d 1198, 1206 (11th Cir. 2011) (affirming a 120-

month prison sentence for a $2.7 million Ponzi scheme). For these reasons, the district

court’s conclusion that the Guidelines loss calculation did not overstate the seriousness of

DeCecco’s offense was not an abuse of discretion.



                                              4
       Second, as to deterrence, DeCecco presented this argument to the district court,

and the court considered it in the course of determining his sentence. The weight to be

accorded this factor is within the discretion of the district court. We will not vacate a

sentence as unreasonable where, as here, the district court considered all of the

defendant’s “arguments, the applicable Guidelines range, and the factors enumerated in

§ 3553(a)” and the defendant “fail[s] to identify any way in which the district court

exceeded the bounds of allowable discretion, committed an error of law in the course of

exercising discretion, or made a clearly erroneous finding of fact.” See Tran, 519 F.3d at

107 (internal quotation marks omitted). “The weight to be afforded any given argument

made pursuant to one of the § 3553(a) factors is a matter firmly committed to the

discretion of the sentencing judge and is beyond our review, as long as the sentence

ultimately imposed is reasonable in light of all the circumstances presented.” United

States v. Fernandez, 443 F.3d 19, 32 (2d Cir. 2006). That the district court weighed the

deterrence factor differently than DeCecco would have liked is not an abuse of discretion.

       Third, while the district court was statutorily required to consider “the need to

provide restitution to any victims of the offense,” see 18 U.S.C. § 3553(a)(7), the court

was not required to grant DeCecco leniency so that he can begin paying restitution to his

victims as quickly as possible. DeCecco presented this argument, like his deterrence

argument, to the district court, and the court considered it in determining his sentence.

However, “the requirement that a sentencing judge consider an 18 U.S.C. § 3553(a) factor

is not synonymous with a requirement that the factor be given determinative or



                                              5
dispositive weight in the particular case, inasmuch as it is only one of several factors that

must be weighted and balanced by the sentencing judge.” Fernandez, 443 F.3d at 32.

Again, the court did not abuse its discretion merely because it disagreed with DeCecco

about whether and to what extent the restitution factor weighed in favor of leniency. See

id.

       In sum, DeCecco’s sentence was neither procedurally nor substantively

unreasonable, but was instead “well within the broad range of reasonable sentences that

the [d]istrict [c]ourt could have imposed in the circumstances presented.” See id. at 34.

II. Ineffective Assistance of Counsel

       For the first time on appeal, DeCecco argues that his defense counsel at trial

provided constitutionally ineffective assistance by (1) failing to argue effectively for an

acceptance-of-responsibility sentencing reduction and acknowledging that this was not

the sort of “extraordinary” case that merited an acceptance reduction; (2) failing to

contest any of the seizures of DeCecco’s property; and (3) arguing to the district court

that DeCecco was “addicted to stealing.”

       The government urges us to “refrain from adjudicating these issues at this time

because the record on appeal is incomplete,” and because the appropriate tool for raising

these claims is a 28 U.S.C. § 2255 habeas corpus petition. However, the government

contends that if we do address DeCecco’s ineffective-assistance claims, we should reject

them because the representation provided by defense counsel was not substandard and did

not prejudice DeCecco.


                                              6
       Because the present record is sufficient for us to conclude that DeCecco’s defense

counsel did not provide ineffective assistance, we find it efficient to address his claims

now. None of the instances of allegedly ineffective assistance to which DeCecco points

caused him prejudice. See Strickland v. Washington, 466 U.S. 668, 693 (holding that

“[e]ven if a defendant shows that particular errors of counsel were unreasonable,” he

“must show that they actually had an adverse effect on the defense,” and not merely “that

the errors had some conceivable effect on the outcome of the proceeding”). The district

court clearly decided to deny acceptance-of-responsibility credit on the merits, and did

not rely on defense counsel’s concession that this is not an “extraordinary” case; DeCecco

points to no argument that counsel could have made that would have had any reasonable

prospect of changing the court’s conclusion in that regard. As for the failure to object to

any forfeitures of DeCecco’s property, the forfeitures were part of an administrative

proceeding that was entirely separate from DeCecco’s criminal case. The judgment under

review was thus unaffected by any argument counsel made or could have made with

respect to the administrative forfeiture.

       Finally, defense counsel’s statement to the district court that DeCecco is “addicted

to stealing” was clearly a tactical decision designed to make DeCecco sympathetic and to

suggest that he was not fully responsible for his criminal actions. It is well established

that “actions or omissions that might be considered sound trial strategy do not constitute

ineffective assistance.” United States v. Berkovich, 168 F.3d 64, 67 (2d Cir. 1999)

(internal quotation marks omitted). In any event, DeCecco provides no basis for

                                              7
believing that the comment adversely affected his sentence. Accordingly, DeCecco’s

claims of ineffective assistance of counsel fail.

                                      CONCLUSION

       We have considered DeCecco’s other arguments and find them to be without

merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.


                                    FOR THE COURT:
                                    Catherine O’Hagan Wolfe, Clerk of Court




                                              8
