18-48-cr
United States v. Asaro
                                                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 23rd day of April, two thousand and nineteen.

Present:
                             PETER W. HALL,
                             GERARD E. LYNCH,
                                 Circuit Judges,
                             PAUL G. GARDEPHE,
                                 District Judge.*


United States of America,

                            Appellee,

v.                                                                               18-48-cr

John J. Gotti, Michael Guidici, Matthew Rullan,
AKA Fat Matt,
             Defendants,

Vincent Asaro,

                            Defendant-Appellant.



                                                            
*Paul G. Gardephe, United Stated District Judge for the Southern District of New York, sitting by
designation.
For Appellee:                    KEITH D. EDELMAN, Assistant United States
                                 Attorney, for Richard P. Donoghue, United States
                                 Attorney for the Eastern District of New York,
                                 Brooklyn, New York.

For Defendant-Appellant:         RICHARD M. LANGONE, Langone & Associates, PLLC,
                                 Garden City, New York.



      Appeal from a judgment entered January 4, 2017 in the Eastern District of

New York. (Ross, J.)

      UPON      DUE      CONSIDERATION,           IT   IS    HEREBY       ORDERED,

ADJUDGED, AND DECREED that the district court’s judgment is AFFIRMED.

      Vincent Asaro appeals from the district court’s judgment sentencing him to 96

months’ imprisonment and three years’ supervised release following his conviction

for using a telephone to facilitate arson, in violation of the Travel Act, 18 U.S.C. §

1952 (a)(3)(B). We assume the parties’ familiarity with the underlying facts and

procedural history, which we describe only as necessary to explain our decision to

affirm.

      We review a district court’s sentencing decision for reasonableness under an

abuse-of-discretion standard. United States v. Skys, 637 F.3d 146, 152 (2d Cir. 2011).

In so doing, we review factual findings for clear error and rulings of law de novo.

United States v. Pica, 692 F.3d 79, 89 (2d Cir. 2012). The district court did not exceed

the bounds of its discretion when it sentenced Asaro to 96 months’ imprisonment

followed by 3 years’ supervised release.

      The principle articulated in United States v. Watts, 519 U.S. 148, 157 (1997),

that “a jury’s verdict of acquittal does not prevent the sentencing court from

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considering conduct underlying the acquitted charge, so long as that conduct has been

proven by a preponderance of the evidence,” guides our decision in this case. An

acquittal does not necessarily mean a jury found the defendant innocent; rather it

indicates there exists reasonable doubt as to his guilt. Id. at 155. After the Supreme

Court’s decision in United States v. Booker, 543 U.S. 220 (2005), we reaffirmed that

under Watts a district court may consider acquitted conduct at sentencing. United

States v. Vaughn, 430 F.3d 518, 527 (2d Cir. 2005) (holding that “district courts may

find facts relevant to sentencing by a preponderance of the evidence, even where the

jury acquitted the defendant of that conduct.” (internal citations omitted)).

      The district court did not err when it considered acquitted conduct in

sentencing Asaro. The court found Asaro’s long history of violent behavior to be

proven by “not only just a preponderance of the evidence but by overwhelming

evidence” based on Asaro’s 2015 RICO trial at which the government presented

evidence of crimes alleged to have been committed by Asaro during a period of over

forty years. App. 153. While acknowleding that Watts allows sentencing judges to

consider acquitted conduct, Asaro argues that judges may only consider related

acquitted conduct and that Asaro’s past alleged crimes are not related to the present

crime because the arson was “the result of a personal vendetta fueled by road rage.”

Appellant’s Br. 25.

      We are not persuaded. Under Watts, the distinction between unrelated and

related conduct is irrelevant.      In Watts, the Supreme Court approved the

consideration of acquitted conduct at sentencing as evidence of the defendant’s



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“character and conduct,” holding that such consideration would not “result in

‘punishment’ for any offense other than the one of which the defendant was

convicted,” but rather would recognize that the “present offense was carried out in a

manner that warrants increased punishment.” 519 U.S. at 155. Here, although the

1969 murder and the 1978 robbery did not “stem from a common nucleus of operative

fact” as the 2012 arson offense, those earlier offenses nevertheless informed the

court’s assessment of the danger Asaro posed to the community, in light of his

“lifelong history of violent crime,” and spoke to the level of specific deterrence

needed—each of which the court found relevant under §3553(a) in exactly the way

approved by Watts. That history also informed the district court’s understanding of

the seriousness of the present crime. Asaro’s insistence that the instant offense “was

not an organized crime-related [crime]” is belief by the fact that he used organized-

crime associates whom he could command because of his status as a crime boss. The

crime was thus not merely an isolated instance, however reprehensible, of road rage,

but an example of his continued ability to exert the power of the underworld to

intimidate and harm law-abiding citizens.1

              Asaro also asserts defense counsel was ineffective when counsel failed to advise

him about the possibility that the judge may rely on acquitted conduct when imposing




                                                            
1
  Even if we accept Asaro’s argument that a sentencing judge cannot consider unrelated acquitted
conduct, his claim is without merit. This arson and his past conduct are related because all of his
relevant actions involve organized crime. Asaro relied on crime family associates to carry out the
arson of John Doe’s car—every single individual involved was affiliated with a local crime family.
Asaro may have been personally offended when John Doe cut his car off, yet Asaro utilized his crime
family connections to carry out the arson.

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a sentence. Asaro asks that we hold this appeal in abeyance and remand to the

district court for an evidentiary hearing on that claim.

              When faced with an ineffective assistance of counsel claim on direct appeal,

“we may do one of three things: (1) decline to hear the claim, permitting the appellant

to raise the issue as part of a subsequent §2255 petition; (2) remand the claim to the

district court for necessary fact-finding; or (3) decide the claim on the record before

us.” Billy-Eko v. United States, 8 F.3d 111 (2d Cir. 1993). This circuit has a “baseline

aversion to resolving ineffectiveness claims on direct appeal.” United States v. Leone,

215 F.3d 253, 256 (2d Cir. 2000). This aversion, however, is not a rigid rule and “in

no way limits our discretion to hear an ineffective assistance of counsel claim on direct

appeal, or, when appropriate, to remand such a claim” for further fact-finding. Id.

              On the record before us, we do not have the facts necessary to assess

appropriately Asaro’s ineffective assistance of counsel claim.2 We thus refrain from

deciding it.

              We have considered Asaro’s remaining arguments and find them to be without

merit.

              The judgment is AFFIRMED.

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




                                                            
2
 Whether Asaro’s trial counsel would have informed him of the possibility that the acquitted conduct
could be considered at sentencing and whether knowing that he would have definitely gone to trial is
beyond the record before us.

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