09-5171-cr
United States v. Danzi


                           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 THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.
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 22nd day of February, two thousand eleven,

Present:       ROSEMARY S. POOLER,
               PETER W. HALL,
                          Circuit Judges.
               BRIAN M. COGAN,*
                          District Judge.

_____________________________________________________

UNITED STATES OF AMERICA,

                                      Appellee,

                         -v-                                        09-5171-cr

MICHAEL DANZI,

                                      Defendant-Appellant.


Appearing for Appellee:        David B. Fein, United States Attorney for the District of
                               Connecticut; H. Gordon Hall, Assistant United States Attorney,
                               Sandra S. Glover, Assistant United States Attorney, of counsel,
                               New Haven, CT.

Appearing for Appellant:       Randall D. Unger, Law Office of Randall D. Unger, Bayside, NY.



       *
       The Honorable Brian M. Cogan, United States District Court for the Eastern District of
New York, sitting by designation.
       Appeal from the United States District Court for the District of Connecticut (Kravitz, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Defendant-Appellant Michael Danzi (“Danzi”) pleaded guilty pursuant to a plea
agreement to Count Three of an indictment charging him with conspiracy to smuggle more than
$10,000 in U.S. currency out of the Untied States, in violation of 31 U.S.C. § 5332 and 18
U.S.C. § 371, and to a one-count information charging him with conspiracy to distribute
marijuana in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846. On December 8, 2009,
Judge Mark R. Kravitz of the United States District Court for the District of Connecticut,
sentenced Danzi to a non-Guidelines sentence of forty-eight months’ imprisonment, three years
of supervised release, and a mandatory assessment of two hundred dollars. Danzi now appeals.
We assume the parties’ familiarity with the underlying facts, procedural history, and
specification of issues for review.

        Danzi raises only one challenge on appeal: that the district court clearly erred in basing
its sentence on a finding that at least 100 kilograms of marijuana were attributable to Danzi, thus
imposing a procedurally unreasonable sentence.

        As an initial matter, the standard of review for sentencing is one of “reasonableness.”
United States v. Booker, 543 U.S. 220, 260-62 (2005). Reasonableness review is akin to a
“deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 52 (2007).
Review to determine whether a sentence is “reasonable” involves both “an examination of the
length of the sentence (substantive reasonableness) as well as the procedure employed in arriving
at the sentence (procedural reasonableness).” United States v. Johnson, 567 F.3d 40, 51 (2d Cir.
2009). In this case, appellant only alleges procedural unreasonableness, in that the district court
based its Guidelines determination on an erroneous drug quantity. To impose a procedurally
reasonable sentence district courts must “(1) normally determine the applicable Guidelines
range, (2) consider the Guidelines along with the other factors under § 3553(a), and (3)
determine whether to impose a Guidelines sentence or a non-Guidelines sentence.” United
States v. Villafuerte, 502 F.3d 204, 206-07 (2d Cir. 2007); accord Gall, 552 U.S. at 53.

         A sentencing court’s legal application of the Guidelines is reviewed de novo, while the
court’s underlying factual findings are reviewed for clear error, acknowledging the lesser
standard of proof at sentencing of preponderance of the evidence. See United States v. Gaskin,
364 F.3d 438, 464 (2d Cir. 2004); see also 18 U.S.C. § 3742(e). In deciding upon a sentence, a
district court has the discretion to rely on the wide array of facts available to it, including
information set forth in the pre-sentence report, as well as circumstantial evidence. See United
States v. Sisti, 91 F.3d 305, 312-13 (2d Cir. 1996). In particular, a district court’s determination
of drug quantity is a finding of fact subject to clear error review. See United States v. Jones, 531
F.3d 163, 176 (2d Cir. 2008). “A finding is clearly erroneous when although there is evidence to
support it, the reviewing court on the entire evidence is left with the definite and firm conviction
that a mistake has been committed.” United States v. Guang, 511 F.3d 110, 122 (2d Cir. 2007)
(citing United States v. Cuevas, 496 F.3d 256, 267 (2d Cir. 2007) (internal quotation marks
omitted).


                                                 2
        While the Sentencing Guidelines are no longer mandatory, district courts should begin by
determining the base offense level, U.S.S.G. § 1B1.1, which in this case is established by “all
acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or
willfully caused by defendant,” and “all reasonably foreseeable acts and omissions of others in
furtherance of the jointly undertaken criminal activity.” U.S.S.G. § 1B1.3(a)(1)(A)-(a)(1)(B).

        “The quantity of drugs attributable to a defendant is a question of fact,” and “if the
evidence-direct or circumstantial-supports a district court’s preponderance determination as to
drug quantity, we must sustain that finding.” Jones, 531 F.3d at 175. In a drug case, the
Guidelines provide that where the “amount [of drugs] seized does not reflect the scale of the
offense, the court shall approximate the quantity of the controlled substance.” U.S.S.G. § 2D1.1,
cmt. 12. The court’s estimate of the drug quantity must be based on “specific evidence,” which
has been defined as “evidence that points specifically to a drug quantity for which the defendant
is responsible.” United States v. Shonubi, 103 F.3d 1085, 1089-90 (2d Cir. 1997). “In making
such an estimate, the court has broad discretion to consider all relevant information.” United
States v. Blount, 291 F.3d 201, 215-16 (2d Cir. 2002).

       The district court held two hearings to determine the appropriate quantity upon which to
base Danzi’s sentence, and issued a Ruling and Order on October 9, 2009, detailing its findings.
The court found that “there is ample evidence to support the Court’s finding that it is more likely
than not that, for purposes of sentencing, at least 100 kilograms of marijuana is attributable to
both Brian and Michael Danzi.” The court emphasized that the “holding does not rely on any
one piece or type of evidence, or even a particular method of approximating the quantity of
marijuana,” but instead “is based on the composite of the various strands of specific evidence
which, taken as a whole, collectively confirm by a preponderance of the evidence that the
Defendants were involved in a marijuana conspiracy of such scope and duration that the estimate
of 100 kilograms of marijuana attributable to them appears to be a very conservative one.”

         The challenges Danzi raises on appeal are nearly identical to those he raised to the
district court before, during, and after the quantity hearings. The court adequately addressed
Danzi’s many objections, in a careful and conscientious Ruling and Order which was the result
of a two-day hearing, and which we now find contains no error, and certainly no clear error.
Thus, for substantially the same reasons as set forth in the district court’s Order, we find Danzi’s
arguments on appeal to be without merit.

       Accordingly, the judgment of the district court hereby is AFFIRMED.


                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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