     16-2361
     United States v. Persico

                         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
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   21st day of April, two thousand seventeen.
 5
 6   PRESENT: JOHN M. WALKER, JR.,
 7            DENNIS JACOBS,
 8            BARRINGTON D. PARKER,
 9                          Circuit Judges.
10
11   - - - - - - - - - - - - - - - - - - - -X
12   United States of America,
13            Appellee,
14
15                -v.-                                           16-2361
16
17   Carmine Persico,
18            Appellant.*
19
20
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22
23   FOR APPELLANT:                          ANTHONY DIPIETRO (Gianna M. Del
24                                           Grippo, on the brief), White
25                                           Plains, NY.

           *   The Clerk of Court is respectfully directed to amend
     the official caption to conform with the above.
                                                1
 1   FOR APPELLEE:                 MATTHEW D. PODOLSKY (Michael
 2                                 Ferrara, on the brief), Assistant
 3                                 United States Attorney, for Joon H.
 4                                 Kim, Acting United States Attorney
 5                                 for the Southern District of New
 6                                 York.
 7
 8        Appeal from a final order of the United States District Court
 9   for the Southern District of New York (Duffy, J.).
10        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
11   DECREED that the final order of the district court be AFFIRMED.
12
13        Carmine Persico appeals from an order entered on June 24,
14   2016, by the United States District Court for the Southern
15   District of New York (Duffy, J.), denying his motion to correct
16   his sentence pursuant to the version of Federal Rule of Criminal
17   Procedure 35(a) that was in effect when he was sentenced thirty
18   years ago (“Former Rule 35(a)”). We assume the parties’
19   familiarity with the underlying facts, the procedural history,
20   and the issues presented for review.

21        In 1986, the government prosecuted Persico (and several
22   others) as the head of an organized crime “family.” United
23   States v. Salerno, 868 F. 2d 524, 528 (2d Cir. 1989). The
24   government offered evidence at trial that Persico was the boss
25   of the Colombo crime family and that he sat on the “Commission”
26   that acted as a ruling body over La Cosa Nostra. After an
27   eleven-week trial, Persico was convicted of (1) conspiracy to
28   violate the Racketeer Influenced and Corrupt Organizations Act
29   (“RICO”), in violation of 18 U.S.C. § 1962(d); (2) substantive
30   RICO violations, in violation of 18 U.S.C. § 1962(c); (3)
31   conspiracy to commit extortion and twelve counts of extortion
32   or attempted extortion, in violation of 18 U.S.C. § 1951(a);
33   and (4) aiding and abetting six labor bribery violations of 18
34   U.S.C. §§ 2 and 186(b)(1). Salerno, 868 F.2d at 527. United
35   States District Judge Richard Owen sentenced Persico to a total
36   of 100 years of imprisonment.

37        Persico’s direct appeal argued (among other things) that
38   the sentence was overly severe, that the evidence was
39   insufficient, that Persico’s prosecution violated the Double
40   Jeopardy Clause, that the jury should have been sequestered,

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 1   and that the government violated its obligations under Brady
 2   v. Maryland, 373 U.S. 83 (1963). This court rejected his
 3   arguments and affirmed his conviction and sentence. Salerno,
 4   868 F. 2d at 528.

 5        Persico moved to vacate his conviction pursuant to 18 U.S.C.
 6   § 2255. Judge Owen denied that motion in 1991, and this court
 7   affirmed the denial. United States v. Salerno, 964 F.2d 172,
 8   180 (2d Cir. 1992).

 9        More than two decades later, Persico has filed the present
10   motion under Former Rule 35(a). Because Persico committed his
11   offenses prior to November 1, 1987, Former Rule 35(a) applies.
12   United States v. Blackmer, 909 F.2d 66, 67 (2d Cir. 1990) (per
13   curiam), vacated on other grounds, 499 U.S. 944 (1991). That
14   rule provided that “[t]he court may correct an illegal sentence
15   at any time and may correct a sentence imposed in an illegal
16   manner within” 120 days after the sentence is imposed or after
17   other triggering events that signify the end of the appeal
18   process. Fed. R. Crim. P. 35 (1985).

19        Persico argues that his sentence was illegal because it is
20   substantively unreasonable, violates due process by reliance
21   on factual inaccuracies, and is unlawful as a result of Brady
22   violations. United States District Judge Kevin Duffy (to whom
23   the case was reassigned after the motion was filed) observed
24   that sentence modification under Former Rule 35(a) is
25   discretionary, and exercised his discretion to deny the motion.
26   He nevertheless addressed the merits of Persico’s arguments “for
27   the sake of completeness,” App. 12, and rejected them all.

28        Our review of the denial of a motion under Former Rule 35(a)
29   “is limited to the question of abuse of discretion.” United
30   States v. Sambino, 799 F.2d 16, 16 (2d Cir. 1985) (per curiam).
31   “A district court has abused its discretion if it based its ruling
32   on an erroneous view of the law or on a clearly erroneous
33   assessment of the evidence or rendered a decision that cannot
34   be located within the range of permissible decisions.” In re
35   Sims, 534 F.3d 117, 132 (2d Cir. 2008) (internal quotation marks,
36   alterations and citations omitted).

37        “[T]he wide latitude provided in the older versions of Rule
38   35 for a sentence correction . . . was not required by the Due

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 1   Process Clause. A defendant has no due process right to continue
 2   to challenge his conviction in perpetuity.” United States v.
 3   Rivera, 376 F.3d 86, 91–92 (2d Cir. 2004). “[T]he use of the
 4   word ‘may’ in the rule indicates that courts are free to apply
 5   reasonable and prudential limitations on the correction of
 6   illegal sentences.” United States v. Woods, 986 F.2d 669, 675
 7   (3d Cir. 1993). Persico offers no basis to disturb the district
 8   court’s decision, which is easily located within the range of
 9   permissible decisions, especially in light of the fact that
10   Persico was convicted and sentenced approximately thirty years
11   ago and has already had the opportunity to raise challenges on
12   direct appeal and collaterally under § 2255.

13        Moreover, to the extent that Persico’s arguments are
14   directed at decisions that were made as part of his trial or
15   earlier, we observe that “a motion under [Former] Rule 35 can
16   only be used to correct an illegal sentence, and not to correct
17   trial errors or errors in other pre-sentencing proceedings.”
18   United States v. Schiff, 876 F.2d 272, 274 (2d Cir. 1989). The
19   Supreme Court has construed “illegal sentence” narrowly when
20   interpreting Former Rule 35, see Hill v. United States, 368 U.S.
21   424, 430 & n.8 (1962), and the former rule is not “a vehicle
22   to reopen final judgments long since past ripe for review,”
23   Woods, 986 F.2d at 675 (quotation marks omitted). It does not
24   provide a means to raise arguments that are substantially similar
25   to those Persico more appropriately raised in earlier stages
26   of this case. We find no error, let alone abuse of discretion,
27   in the district court’s decision.

28        Accordingly, and finding no merit in appellant’s other
29   arguments, we hereby AFFIRM the order of the district court.

30                                FOR THE COURT:
31                                CATHERINE O’HAGAN WOLFE, CLERK




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