     07-1928-cr
     United States v. Antonetti

                          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
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 27 th day of January, two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                GUIDO CALABRESI,
 9                DEBRA ANN LIVINGSTON,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Appellee,
15
16                    -v.-                                                07-1928-cr
17
18       JOSE ANTONETTI,
19                Defendant-Appellant.
20       - - - - - - - - - - - - - - - - - - - -X
21
22       APPEARING FOR APPELLANT:               LAURIE S. HERSHEY, Law Offices
23                                              of Laurie S. Hershey, Esq.,
24                                              Manhasset, New York.
25
26       APPEARING FOR APPELLEE:                JOHN J. O’DONNELL (Preet
27                                              Bharara, Andrew L. Fish, on the
28                                              brief), United States Attorneys
29                                              Office of the Southern District
30                                              of New York, New York, New York.
31

                                                  1
 1        Appeal from a judgment of the United States District
 2   Court for the Southern District of New York (Preska, J.).
 3
 4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 5   AND DECREED that the sentence be AFFIRMED and the matter
 6   REMANDED to allow the district court to amend the written
 7   judgment.
 8
 9        Defendant-Appellant Jose Antonetti appeals his sentence
10   on the grounds that the district court abused its discretion
11   by: sentencing him more severely than his similarly-situated
12   co-defendants, giving insufficient weight to his difficult
13   background, and sentencing him beyond the maximum period
14   explained to him by the court in the plea hearing. We
15   assume the parties’ familiarity with the underlying facts,
16   the procedural history, and the issues presented for review.
17
18   [1] First, Antonetti argues that his sentence is improper
19   because it created an unwarranted sentencing disparity
20   between him and his co-defendants. A district court may, in
21   its discretion, “consider disparities between co-
22   defendants.” United States v. Frias, 521 F.3d 229, 236 (2d
23   Cir. 2008); see also id. at n.8. If a district court
24   chooses to do so, we require only that the court’s reasoning
25   be “logical[]” and consistent with the factors listed in 18
26   U.S.C. § 3553(a)(1). See United States v. Wills, 476 F.3d
27   103, 110 (2d Cir. 2007) (internal quotation marks omitted),
28   abrogated on other grounds by United States v. Cavera, 550
29   F.3d 180, 191 (2d Cir. 2008) (in banc). Here, Antonetti and
30   his co-defendants are not so similarly-situated as to render
31   any sentencing disparity unjustified. See United States v.
32   Fernandez, 443 F.3d 19, 32 (2d Cir. 2006). The district
33   court did not err in this regard.
34
35   [2] Second, Antonetti argues that the district court failed
36   to give sufficient mitigating weight to his background. In
37   imposing sentence, a district court must “satisfy us that it
38   has considered the parties’ arguments and that it has a
39   reasoned basis for exercising [its] own legal decisionmaking
40   authority.” Cavera, 550 F.3d at 193. A “brief statement of
41   reasons” generally suffices; “we do not require robotic
42   incantations that the district court has considered each of
43   the § 3553(a) factors.” Id. (internal quotation marks
44   omitted). In this case, the district court clearly met its
45   obligations when it explicitly recognized defense counsel’s
46   argument regarding Antonetti’s background.

                                  2
 1   [3] Third, Antonetti contends that his sentence is improper
 2   because it violated the plea agreement and exceeded the
 3   district court’s explanation at the plea hearing that the
 4   maximum possible sentence was twenty years. Antonetti was
 5   sentenced to 168 months’ imprisonment--72 months fewer than
 6   the 20-year maximum. Antonetti seems to argue that because
 7   91 months of the 168-month sentence were to run
 8   consecutively to his undischarged federal sentence, the
 9   court actually imposed a sentence of 259 months (168 + 91),
10   which is 19 months greater than the applicable maximum.
11   Antonetti’s position has no basis in the law; that 91 months
12   of his sentence were set to run consecutively does not
13   change the fact that he received a 168-month sentence. See
14   United States v. Parkins, 25 F.3d 114, 118-19 (2d Cir.
15   2005). Moreover, Antonetti had no right to be told at the
16   plea hearing that his sentence might run consecutively to
17   his undischarged federal sentence. See Wilson v. McGinnis,
18   413 F.3d 196, 199 (2d Cir. 1998).
19
20   [4] We do agree with both parties, however, that the
21   written judgment erroneously shows the sentence as being 161
22   months rather than the 168 months that was actually imposed.
23   We therefore remand this case for the limited purpose of
24   allowing the district court to correct the written judgment
25   in this regard. See United States v. Jacques, 321 F.3d 255,
26   263 (2d Cir. 2003) (explaining that when there is a conflict
27   between an unambiguous oral sentence and the written
28   judgment, the oral sentence controls and “the proper remedy
29   is to remand for amendment of the written judgment”).
30
31        Finding no merit in Antonetti’s remaining arguments, we
32   hereby AFFIRM the sentence and REMAND to allow the district
33   court to amend the written judgment.
34
35
36                              FOR THE COURT:
37                              CATHERINE O’HAGAN WOLFE, CLERK
38
39
40
41




                                  3
