08-4610-cr
USA v. Savoca

                                 UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                                  August Term 2008

(Argued: July 16, 2009                                                                Decided: February 25, 2010)

                                               Docket No. 08-4610-cr

UNITED STATES OF AMERICA,

                    Appellee,

                    v.

LAWRENCE SAVOCA ,

                    Defendant,

SALVATORE SAVOCA ,

                    Defendant-Appellant.




Before SACK and PARKER, Circuit Judges and GOLDBERG , Judge.*
                                   ____________________

        Defendant Salvatore Savoca appeals from a September 9, 2008 amended judgment entered

in the United States District Court for the Southern District of New York (Stephen C. Robinson,

Judge). Savoca challenges the procedural and substantive reasonableness of his sentence. He also

insists that he was entitled to a new sentencing hearing upon the vacatur of his original sentence.

We conclude that the sentence imposed by the District Court was procedurally correct and

substantively reasonable, and that a complete resentencing was not required in this case.

        Affirmed.


        *
            The Honorable Richard W. Goldberg, United States Court of International Trade, sitting by designation.
                                                THEODORE S. GREEN , Green & Willstatter, New
                                                York, New York, for Defendant-Appellant.

                                                ELLIOTT B. JACOBSON , Assistant United States
                                                Attorney (Katherine Polk Failla, Assistant United
                                                States Attorney, Of Counsel, on the brief), for Lev L.
                                                Dassin, Acting United States Attorney for the
                                                Southern District of New York, New York, New
                                                York, for Appellee.


RICHARD W. GOLDBERG , Judge:

        Salvatore Savoca appeals from an amended judgment of conviction entered on September 9,

2008 in the United States District Court for the Southern District of New York by District Judge

Stephen C. Robinson.

        On April 22, 2004, Savoca pled guilty before Magistrate Judge George A. Yanthis to

attempted robbery, in violation of 18 U.S.C. § 1951(a), and to carrying and discharging a firearm

during the commission of a crime, in violation of 18 U.S.C. § 924(c)(1)(A)(iii). The District Court

accepted his plea on the recommendation of the Magistrate Judge. Savoca was sentenced to a total

of 190 months imprisonment, consisting of 70 months for attempted robbery and a statutorily

mandatory consecutive term of 120 months for discharging a firearm during the crime.

        After sentencing, Savoca filed a motion to vacate, set aside, or correct his sentence pursuant

to 28 U.S.C. § 2255. He alleged that his appellate counsel was ineffective by failing to file a timely

notice of appeal. Following the recommendation of Magistrate Judge Lisa Margaret Smith, the

District Court granted the motion. The District Court vacated Savoca’s sentence, entered an

amended judgment of conviction to permit a timely appeal to be filed, and resentenced him to the

same sentence that had originally been imposed.
        Savoca appeals his sentence arguing that (1) it is procedurally unreasonable because in

applying an enhancement for obstruction of justice, the District Court impermissibly took into

account his testimony at his co-defendant’s trial after pleading guilty, but prior to his sentencing; and

because he should have received credit for acceptance of responsibility; (2) his sentence is

substantively unreasonable; and (3) the District Court should have conducted a complete

resentencing hearing after vacating the original sentence. We conclude, inter alia, that the District

Court permissibly considered Savoca’s testimony at his co-defendant’s trial in determining his

sentence. Thus, for the reasons stated in this opinion, we find that Savoca’s sentence was both

procedurally and substantively reasonable, and that a new sentencing hearing was not required. We,

therefore, affirm his sentence as imposed by the District Court.

                                          BACKGROUND

        Salvatore Savoca and his brother, Lawrence, were indicted on several counts relating to the

attempted armed robbery and shooting of Michael Geary. Count One charged the co-defendants

with conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a). Count Two

charged the co-defendants with attempted robbery, in violation of 18 U.S.C. §§ 1951(a) and 2.

Count Three charged the co-defendants with using, carrying, and discharging a firearm during the

commission of a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii) and 2. Count Four

charged Lawrence Savoca with being a convicted felon in possession of a firearm, in violation of 18

U.S.C. § 922(g)(1).

        On June 21, 2001, Salvatore Savoca and his brother, Lawrence, specifically targeted Michael

Geary for robbery believing that he would be carrying home cash from the tavern that he owned.

Lawrence Savoca left Salvatore Savoca at Geary’s home and drove his vehicle a few blocks away to

await his return. When Geary arrived home, Salvatore Savoca attempted to rob him outside of his


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house. When Geary resisted, Salvatore Savoca shot him in the thigh and fled from the scene.

       Pursuant to a plea agreement, Salvatore Savoca pled guilty to Counts Two and Three of the

indictment on April 22, 2004. The plea agreement included a three-level reduction in offense level

for acceptance of responsibility, which yielded a United States Sentencing Guidelines (“the

Guidelines”) range of 157 to 166 months imprisonment, of which 120 months was a mandatory

consecutive term of imprisonment under 18 U.S.C. § 924(c).

       Lawrence Savoca opted to proceed to trial. Salvatore Savoca testified at his brother’s trial,

which took place after Salvatore Savoca’s guilty plea. Salvatore Savoca attempted to discharge his

brother of any responsibility by claiming that a bookmaker named “Joey,” and not Lawrence

Savoca, had aided him in the commission of the crime. This testimony may have been related to a

Government investigation into a gambler named “Joe Lafaglia,” who was eventually found to have

been in Las Vegas, Nevada at the time of the attempted robbery and shooting. At trial, Lawrence

Savoca was convicted of all charges against him.

       On February 4, 2005, after the conclusion of Lawrence Savoca’s trial, Salvatore Savoca was

sentenced. At the sentencing hearing, the District Court concluded that the jury, in refusing to

believe Salvatore Savoca’s testimony, found that he had committed perjury. Judge Robinson also

stated that he believed that Salvatore Savoca had committed perjury. Accordingly, Judge Robinson

denied Salvatore Savoca any reduction in offense level for acceptance of responsibility and imposed

a two-level enhancement for obstruction of justice. Under the adjusted offense level, Salvatore

Savoca faced a Guidelines range of 183 to 198 months imprisonment. He was ultimately sentenced

to 190 months of imprisonment. In so doing, the District Court noted that it would have imposed

the same “reasonable sentence” under 18 U.S.C. § 3553(a), even had the advisory Guidelines yielded

a lesser range of imprisonment.


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        Salvatore Savoca, on January 13, 2006, filed a motion to vacate, set aside, or correct his

sentence pursuant to 28 U.S.C. § 2255, alleging that his appellate counsel had been ineffective in

failing to file a timely notice of appeal after he requested him to do so. Following a hearing held by

Magistrate Judge Smith, the District Court adopted the Magistrate Judge’s report and

recommendation. In an order issued on June 4, 2008, the District Court granted Savoca’s motion,

vacated the sentence, and stated that a resentencing hearing would be scheduled. At the hearing on

September 9, 2008, both parties agreed that the District Court had two options: 1) enter an amended

judgment from which a notice of appeal could be taken, or 2) exercise discretion and determine a

new appropriate sentence for Savoca. The District Court decided that the Defendant should not

reap an unforeseen benefit from his ineffective counsel, nor had any relevant change in the law

occurred, and concluded that no new sentencing should be conducted. The Court went on to state

that, given the seriousness of the offense, and considering Savoca’s record of arrests and

convictions, his testimony at his brother’s trial, his admitted drug and gambling problems, and

allegations that he had physically abused a live-in girlfriend, there was no reason to revise the

original sentence. The District Court decided to enter an amended judgment with the same

sentence that had been originally imposed. A notice of appeal from the amended judgment was

timely filed on September 11, 2008.

                                            DISCUSSION

        Savoca bases his appeal on three grounds. He first claims that his testimony at Lawrence

Savoca’s trial was impermissibly factored into his sentence calculation, and that he should have been

given credit for accepting responsibility. The Sentencing Guidelines range, according to Savoca’s

argument, was incorrectly calculated, and his sentence is, therefore, procedurally unreasonable.

Secondly, Savoca claims that his sentence is also substantively unreasonable. Finally, he argues that


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because the District Court vacated his sentence and ordered a resentencing hearing, a complete

resentencing should have been conducted, instead of merely the issuance of an amended judgment

with the original sentence reimposed.

I. Savoca’s Sentence is Procedurally Reasonable

        Procedural error by the District Court includes “failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the §

3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain

the chosen sentence–including an explanation for any deviation from the Guidelines range.” Gall v.

United States, 552 U.S. 38, 51 (2007).

        A. The District Court properly took Savoca’s perjured testimony into account for sentencing
        purposes

        In reviewing an enhancement for obstruction of justice, this Court upholds the District

Court’s findings of fact unless they are clearly erroneous. 18 U.S.C. § 3742(e) (2006); United States v.

Cassiliano, 137 F.3d 742, 745 (2d Cir. 1998). A legal interpretation that the facts constituted an

obstruction of justice is reviewed de novo. Id.

        Under U.S. Sentencing Guidelines Manual § 3C1.1, an enhancement for obstruction of

justice may be imposed if the obstructive conduct occurred during the “investigation, prosecution,

or sentencing of the instant offense of conviction.” Here, Savoca states that the counts to which he

pled guilty, attempted robbery and weapon possession, did not involve a conspiracy, nor did they

require at least two actors. Therefore, according to Savoca, his testimony at Lawrence Savoca’s trial,

did not constitute the prosecution of his own “instant offense of conviction,” and thus, cannot

qualify for an obstruction of justice enhancement.

        However, Savoca’s argument fails to acknowledge the amendment to the Sentencing



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Guidelines and Commentary effective November 1998, which clarified that an obstruction of justice

enhancement applies to conduct that occurred with respect to “an otherwise closely related case,

such as that of a co-defendant.” U.S. Sentencing Guidelines Manual § 3C1.1 cmt. n. 1 (1998). The

Commentary in the Guidelines Manual is considered authoritative unless it “violates the

Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that

guideline.” Stinson v. United States, 508 U.S. 36, 38 (1993). An obstruction of justice enhancement

specifically applies to “committing . . . perjury.” U.S. Sentencing Guidelines § 3C1.1 cmt. n. 4(b).

        Here, it is undisputed that Savoca and his brother were co-defendants who were indicted

together. Cf. United States v. Brown, 321 F.3d 347, 353 (2d Cir. 2003) (declining to apply a two-level

enhancement for obstruction of justice where the District Court made no specific findings that

Brown was a defendant or potential defendant in another case or that it was an “otherwise closely

related case”). The offenses to which Savoca pled guilty and for which his brother was convicted

were joint in nature, and were charged accordingly.1 The required “close relationship” between

Salvatore Savoca’s and Lawrence Savoca’s cases is necessarily satisfied.

        As to Savoca’s obstructive conduct, an obstruction enhancement based on perjury must be

supported by a finding that “the defendant’s statements unambiguously demonstrate an intent to

obstruct.” United States v. Kelly, 147 F.3d 172, 178 (2d Cir. 1998). The district court must determine

by clear and convincing evidence that the defendant provided “false testimony concerning a material

matter with the willful intent to provide false testimony.” Id. (quoting United States v. Walsh, 119 F.3d

115, 121 (2d Cir. 1997).)




        1
          Count Two of the Indictment charged that “...Lawrence Savoca and Salvatore Savoca, the defendants,
attempted to commit robbery....” Count Three charged that “...Lawrence Savoca and Salvatore Savoca, the defendants,
during and in relation to a crime of violence...used and carried a firearm....”

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        While testifying at his co-defendant’s trial, Savoca lied as to the identity of the other actor in

the crime, stating that it was another individual, and not Lawrence Savoca, who assisted him. At

Savoca’s sentencing, the District Court determined that such testimony constituted perjury. The

District Court explained that, had Savoca been found credible by the jury, then Lawrence Savoca

could not have been convicted because he would not have been identified as participating in the

crime. This finding of fact by the District Court was not clearly erroneous.

        Therefore, the subsequent application of an obstruction of justice enhancement was

appropriate given the co-defendant relationship between Salvatore Savoca and Lawrence Savoca, the

joint nature of the offenses, and Savoca’s commission of perjury during his testimony at Lawrence

Savoca’s trial. Further, since Savoca had not yet been sentenced when he committed the perjury in

question, it “occurred during the course of the investigation, prosecution, or sentencing” of the

“instant offense of conviction,” as defined in U.S. Sentencing Guidelines § 3C1.1.

        B. The District Court properly denied Savoca credit for acceptance of responsibility

        Savoca also contends that he should not have been denied a Sentencing Guidelines

reduction for acceptance of responsibility pursuant to U.S. Sentencing Guidelines § 3E1.1. This

contention is primarily based on his argument that the obstruction of justice enhancement was not

warranted.

        Under § 3E1.1, sentencing judges may reduce a defendant's offense level if he “clearly

demonstrates acceptance of responsibility for his offense.” Merely pleading guilty to an offense

does not ensure the application of the reduction. United States v. Defeo, 36 F.3d 272, 277 (2d Cir.

1994). Except in extraordinary cases, the application of an enhancement for obstruction of justice

ordinarily indicates that the defendant has not accepted responsibility to warrant a reduction in his

guidelines calculation. U.S. Sentencing Guidelines § 3E1.1 cmt. n. 4. Because the “sentencing judge


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is in a unique position to evaluate a defendant's acceptance of responsibility,” his determination is

given great deference on review. Id. at cmt. n. 5. Here, the District Court was acting within its

discretion in denying the reduction based upon its determination that Savoca committed perjury

prior to being sentenced. To determine that Savoca accepted responsibility, but perjured himself as

to significant elements of the offense is incongruous. This argument is without merit.

II. Savoca’s Sentence is Substantively Reasonable

        The court shall “impose a sentence sufficient, but not greater than necessary” to “reflect the

seriousness of the offense . . . ; . . . to afford adequate deterrence to criminal conduct; . . . to protect

the public from further crimes of the defendant; and . . . to provide the defendant with needed

educational or vocational training, medical care, or other correctional treatment in the most effective

manner.” 18 U.S.C. § 3553(a). A sentence is reviewed for its reasonableness, and this Court asks

whether the sentencing judge “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.” United States v.

Fernandez, 443 F.3d 19, 27 (2d Cir. 2006) (alterations in original). Savoca argues that the sentence of

190 months was more than necessary to account for the stated factors, and, given his difficult

personal history, it is substantively unreasonable.

        However, “[a] sentencing judge has very wide latitude to decide the proper degree of

punishment for an individual offender and a particular crime.” United States v. Cavera, 550 F.3d 180,

188 (2d Cir. 2008) (en banc). Here, the sentencing judge imposed a sentence within the properly

calculated guideline range, which is typically considered to be “within the broad range of sentences

that would be reasonable in the particular circumstances.” Fernandez, 443 F.3d at 27. Afterward, the

judge indicated that he imposed a sentence that he considered reasonable, and stated that even “if

the guideline range turned out to be lower I would have given the same sentence that I did today.”


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The judge stated that the facts of this crime were “particularly egregious” given that Savoca “chose

to rob, shoot and then literally left on the driveway to die a friend.” Since the judge clearly

appreciated the factors set forth in 18 U.S.C. § 3553(a), we conclude that Savoca’s sentence was

substantively reasonable. Savoca’s argument fails.

III. A Complete Resentencing was not Necessary

        Savoca filed a post-sentencing petition pursuant to 28 U.S.C. § 2255, claiming ineffective

assistance of counsel due to his counsel’s failure to timely file an appeal. Upon granting his petition,

the District Court vacated the original sentence and scheduled the matter for resentencing. At the

resentencing hearing, both parties agreed that the District Court had two options: to enter a new

judgment imposing the same sentence in open court with defense counsel present, or resentence

Savoca, if the District Court discerned any useful purpose in further considering the sentence. See

Garcia v. United States, 278 F.3d 134, 138 (2d Cir. 2002). Savoca’s counsel argued that the District

Court should conduct a complete resentencing and consider his good behavior while in prison, and

the impact of his sentence on his family. The District Court instead exercised the first option and

entered a new judgment with the original sentence, explaining that there had been no changes in the

law that would require the Court to rethink the original sentence.

        On appeal, Savoca argues that because the District Court vacated the original sentence prior

to the resentencing hearing and directed a resentence, the Court had already elected to conduct a

complete resentencing proceeding pursuant to Federal Rules of Criminal Procedure 32. According

to Savoca, the Court procedurally could not proceed to simply enter a new judgment at the hearing

because the June 4, 2008 order stated that “a re-sentencing will be scheduled.” Savoca argues that

this indicates the decision of the Court to completely resentence him. He points to the fact that the

Court chose to have him present for the proceeding and solicited arguments from counsel as


                                                   10
evidence that a complete resentencing should have occurred. See McHale v. United States, 175 F.3d

115, 119 n.4 (2d Cir. 1999) (“Courts remanding for entry of a new judgment appear to regard it as a

ministerial act, not a formal resentencing that might require the presence of the defendant.”). As a

remedy, Savoca requests that the matter be remanded for resentencing.

       Savoca provides virtually no support for this argument. Upon granting his petition and

vacating the sentence, the District Court had discretion in determining whether any useful purpose

would be served in reconsidering the sentence. See Garcia, 278 F.3d at 138. Here, the District Court

stated that there had been no change in law that would impact the sentencing, nor did it believe that

Savoca should receive a windfall from his ineffective assistance of counsel. The District Court also

reiterated some of the reasons for the prior sentence it imposed. The District Court was under no

obligation to conduct a complete resentencing, and it did not abuse its discretion in refusing to

conduct one. It properly exercised its option to enter a new judgment with the same sentence. This

argument is without merit.

                                          CONCLUSION

       For the foregoing reasons, we conclude that Savoca’s sentence is procedurally and

substantively reasonable. We also conclude that a complete resentencing is conducted at the

discretion of the District Court, and the Court did not abuse its discretion in simply resentencing

Savoca to the original sentence. Accordingly, the September 9, 2008 amended judgment issued by

the District Court is AFFIRMED.




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