     06-0548-cr
     United States v. Iannuzzi


                                 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in
     the City of New York, on the 11 th day of March, two thousand ten.

     PRESENT:
                        DENNIS JACOBS,
                                 Chief Judge,
                ROSEMARY S. POOLER,
                REENA RAGGI,
                                 Circuit Judges.
     _______________________________________

     United States ,
                   Appellee,

                         v.                                            06-0548-cr, 06-0582-cr
                                                                       NAC
     Anthony Iannuzzi,
                 Appellant.
     ______________________________________

    FOR APPELLANT:                       Roland Acevedo, Seiff Kretz & Abercrombie, New York,
                                         NY.

    FOR APPELLEE:                        Deidre A. McEvoy (Guy Petrillo on the brief) of counsel to
                                         Preet Bharara, United States Attorney for the Southern
                                         District of New York, New York, NY.


        UPON DUE CONSIDERATION it is hereby ORDERED, ADJUDGED, AND
    DECREED that the decision of the district court be AFFIRMED.
        Anthony Iannuzzi ("Iannuzzi") appeals from a judgment entered in the United States
District Court for the Southern District of New York (Alvin K. Hellerstein, J.) on January 17,
2006. The first indictment, issued on April 20, 2004, charged Iannuzzi with conspiracy to commit
wire and bank fraud in violation of 18 U.S.C. § 371, and wire fraud in violation of 18 U.S.C. §
1343. The second indictment, filed on February 9, 2005, charged Iannuzzi with conspiracy to
commit the aforementioned crimes. On January 12, 2006, Judge Hellerstein imposed a sentence of
sixty months with respect to the first indictment, and a consecutive thirty month term on the
second indictment.

       On appeal, Iannuzzi argues that the district court abused its discretion and imposed an
unreasonable sentence by 1) concluding that the loss amounts exceeded $1 million dollars, 2)
finding that he employed "sophisticated means" during the offence, and that the offence involved
more than fifty victims, and 3) failing to consider the disparities in the sentences between
appellant and similarly situated co-conspirators. We assume parties’ familiarity with the facts, the
proceedings below, and the specification of the issues on appeal.

         We review a sentence imposed by a district court only for "reasonableness" and identify an
abuse of discretion regardless of whether the sentence is "inside, just outside, or significantly
outside the Guidelines range." United States v. Jones, 531 F.3d 163, 170 (2d Cir. 2008) (citing
United States v. Booker, 543 U.S. 220 (2005) and Gall v. United States, 552 U.S. 38 (2007)). We
first ask whether the challenged sentence was imposed without procedural error, and then we
consider if, under the totality of the circumstances, the sentence was reasonable. United States v.
Williams, 524 F.3d 209, 214 (2d Cir. 2008).

         In Gall, the Supreme Court identified several factors that can render a sentence
unreasonable: "(1) 'failing to calculate (or improperly calculating) the Guidelines range,' (2)
'treating the Guidelines as mandatory," (3) 'failing to consider the [18 U.S.C.] § 3553(a) factors,'
(4) 'selecting a sentence based on clearly erroneous facts,' or (5) 'failing to adequately explain the
chosen sentence-including an explanation for any deviation from the Guidelines range.'" Jones,
531 F.3d at 170 (quoting Gall, 552 U.S. at 50-53).


         In determining whether a defendant is liable for jointly undertaken criminal activity, a
district court must first determine the "scope of the criminal activity agreed upon by the
defendant." United States v. Mulder, 273 F.3d 91, 118 (2d Cir. 2001) (internal citation and
quotation marks omitted). Second, and "only if it finds that the scope of the activity to which the
defendant agreed was sufficiently broad to include the conduct in question . . . [then] the court
must make a particularized finding as to whether the activity was foreseeable to the defendant."
Id. (internal citation and quotation marks omitted). A district court is more likely to find that an
enterprise was jointly undertaken if defendants "pool their profits and resources," and also
considers "the defendant['s] assist[ance] in designing and executing the illegal scheme." Id.

       We find no error with respect to the district court’s determination that Iannuzzi agreed to


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the scope of the criminal conduct at issue. One of Iannuzzi's business partners, Stephen Moore
("Moore"), who was also the government's principal witness, testified at trial that Iannuzzi was
opposed to the "points for cash" scheme at its inception. Moore, however, also testified that
Iannuzzi later changed his mind and agreed to the “points for cash scheme.” All of the trades that
were part of the “points for cash” scheme passed through Itrade accounts, and Iannunzzi, as an
owner of Itrade, enjoyed a financial benefit from these trades. Iannuzzi’s sustained involvement in
the scheme, which was substantially documented in the record, supports the district court’s
decision with respect to the scope of his agreement to the crimes.

        We do not accept Iannuzzi's argument that the district court erred in finding that the
one-million dollar loss amount was foreseeable as part of its Guidelines analysis. A district court
need only make a “reasonable estimate” of the loss amount. U.S.S.G. § 2B1.1 comment n3.C;
United States v. Carborni, 204 F.3d 39, 47 (2d Cir. 2000). Under Section 1B1.3(a) of the
Guidelines, the loss amount attributable to a defendant includes not only the "acts and omission
committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by
defendant," id. (1)(A), but also, "in the case of jointly undertaken criminal activity . . . all
reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken
criminal activity . . . .," Id. (1)(B). Under Guidelines Section 2B.1, the sentencing court measures
the loss as the greater of the intended loss and actual loss. Intended loss includes not only the loss
“that was intended to result form the offense,” and also “pecuniary harm that would have been
impossible or unlikely to occur . . . .” Id. cmt 3(A)(ii).

        There was ample evidence in the record to support the district court’s estimate of the
intended loss amount. Iannuzzi admitted, on tape, for example, that Itrade was liable to its
customers for approximately $1.64 million. Iannuzzi later acknowledged that Itrade only had
$814,575 in cash reserves at that time. Consequently, we reject Iannuzzi’s arguments challenging
the district court’s estimate of the loss amount as more than $1 million.

         Iannuzzi next challenges the district court's determination that an adjustment pursuant to
Guidelines Section 2B1.1(b)(2) was appropriate, because the offense involved more than 50
victims. Even if we were to agree with defendant that 63 of the victims were improperly included
in the calculation of the total number of purposes for this Guidelines adjustment, there would still
have been significantly more than fifty victims to the scheme. We therefore find no error in the
district court’s determination of the number of victims.

        We do not accept Iannuzzi's argument that the district court erred in applying a two-level
sophisticated means enhancement pursuant to Guidelines Section 2B1.1(b)(9), because the nature
of his involvement in the scheme was not sophisticated. We have found that "even if each step in
the scheme was not elaborate," where "the total scheme was sophisticated in the way all the steps
were linked together," a sophisticated means enhancement may be properly applied. United States
v. Jackson, 346 F.3d 22, 25 (2d Cir. 2003), vacated on other grounds sub nom., Lauerson v.
United States, 543 U.S. 1097 (2005). We cannot find error in the district court's determination that
the "points for cash" scheme was complex enough to warrant the addition of a sophisticated
means enhancement.

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        Finally, we reject the defendant's contention that the district court erred when it imposed a
different sentence upon the defendants who carried out the "points for cash" scheme. Under 18
U.S.C. § 3353(a)(6), district courts are instructed to "avoid unwarranted sentence disparities
among defendants with similar records who have been found guilty of similar conduct." We have
held that a district court may impose different sentences on defendants under Section 3353(a)(6) if
defendants are not similarly situated. United States v. Fernandez, 443 F.3d 19, 32 (2d Cir. 2006).
We find that the district court did not err in imposing lighter sentences upon Moore, who was a
cooperating witness, and the other defendants, who were not convicted as part of the same scheme
at Itrade.

        We have considered Iannuzzi’s other claims on appeal and find them to be without merit.
For the foregoing reasons, we AFFIRM the judgment of the district court.

                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




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