   16-3271 (L)
   United States v. Ray

                     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 ASUMMARY ORDER@).       A PARTY
CITING TO 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
   31st day of October, two thousand seventeen.

   PRESENT:
            DENNIS JACOBS,
            GERARD E. LYNCH,
                 Circuit Judges,
            PAUL A. CROTTY,*
                 District Judge.
   _____________________________________

   UNITED STATES OF AMERICA,
            Appellee,

              -v.-                                    16-3271 (Lead)
                                                      16-3281 (Con)
   STEVEN RAY,
            Defendant-Appellant.
   ____________________________________

   FOR DEFENDANT-APPELLANT:      JASON E. ABBOTT, Fitzimmons, Nunn
                                 & Plukas, LLP, Rochester, NY.


        *   Judge Paul A. Crotty, United States District Court for
   the Southern District of New York, sitting by designation.
FOR APPELLEE:                 JOSEPH J. KARASZEWSKI, Assistant
                              United States Attorney, for James
                              P. Kennedy, Jr., Acting United
                              States Attorney for the Western
                              District of New York, Buffalo, NY.

     Appeal from a judgment of the United States District Court
for the Western District of New York (Larimer, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.

     Steven Ray pleaded guilty in the United States District
Court for the Western District of New York (Larimer, J.) to a
two-count information charging him with mail fraud and forgery
of Treasury checks, and to obstruction of justice in connection
with the sentencing on the mail fraud and forgery counts. He
raises procedural and substantive challenges to his sentence.
We assume the parties’ familiarity with the underlying facts,
the procedural history, and the issues presented for review.

     In advance of sentencing on the mail fraud and forgery
counts, Ray’s counsel submitted a letter to the court that was
ostensibly written by J.L., a “paraplegic young man” for whom
Ray had previously given care.            When the government
demonstrated that this letter too was a forgery, Ray threatened
and intimidated J.L. into writing a new letter to submit to the
district court. An indictment followed, and Ray pleaded guilty
to one count of obstructing an official proceeding.          The
district court, considering both the original information and
subsequent indictment together, sentenced Ray to an
above-Guidelines sentence of 84 months’ imprisonment. 1 Ray
appeals.      We review sentences using a “deferential
abuse-of-discretion standard.” United States v. Cavera, 550
F.3d 180, 189 (2d Cir. 2008) (en banc) (internal quotation marks
and citation omitted).

     1.  Ray challenges the two-level vulnerable-victim
enhancement to the obstruction charge. See id. at 190 (“A
district court commits procedural error where it . . . makes
a mistake in its Guidelines calculation[.]”). However, the

1
    The applicable Guidelines range was 57 to 71 months.
Guidelines dictated that the obstruction count be grouped with,
and subsumed by, the more severe mail fraud and forgery counts.
See U.S.S.G. §§ 3D1.2(a), 3D1.3(a).        And as Ray's brief
concedes, “the vulnerable victim enhancement ha[d] no practical
effect on [his] overall total offense level.” Pet’r’s Br. 15.
Accordingly, any error in applying that enhancement was
harmless. United States v. Cramer, 777 F.3d 597, 603 (2d Cir.
2015) (“An error in Guidelines calculation is harmless if
correcting the error would result in no change to the Guidelines
offense level and sentencing range.”).

     2.   Ray claims that the district court failed to apply an
acceptance of responsibility reduction. See U.S.S.G. 3E1.1(a)
(“If the defendant clearly demonstrates acceptance of
responsibility for his offense, decrease the offense level by
2 levels.”). This argument easily fails. “A district court’s
decision to deny credit for acceptance of responsibility,
primarily a factual determination, will be upheld unless it is
‘without foundation.’” United States v. Kumar, 617 F.3d 612,
635 (2d Cir. 2010) (quoting United States v. Harris, 13 F.3d
555, 557 (2d Cir. 1994)).

     The district court cited Ray's statement (during a
polygraph examination) that, notwithstanding his guilty plea,
he was innocent of the fraud and forgery charges and believed
he did not owe restitution. In any event, when (as here) an
obstruction enhancement is applied under U.S.S.G § 3E1.1, the
defendant is usually not entitled to an acceptance of
responsibility reduction. See U.S.S.G § 3E1.1 cmt.n.4. For
these reasons, we decline to disturb the district court’s
determination.

     3.  Ray also challenges the substantive reasonableness of
his sentence. “We will . . . set aside a district court’s
substantive determination only in exceptional cases where the
trial court’s decision ‘cannot be located within the range of
permissible decisions.’” Cavera, 550 F.3d at 189 (quoting
United States v. Rigas, 490 F.3d 208, 238 (2d Cir. 2007)).




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     The above-Guidelines sentence was not an abuse of
discretion. Ray was a key figure in serious criminal activity
involving more than 100 fraudulent checks, totaling more than
a quarter million dollars; he repeatedly attempted to cover up
his criminal activity by lying to investigators; he submitted
a forged document to the court; and he intimidated J.L. in an
effort to mask his deception. We cannot say that the district
court’s decision to impose a sentence of 84 months was outside
the range of permissible decisions.

     Ray challenges the imposition of an above-Guidelines
sentence based on conduct already captured by a two-level
obstruction enhancement applied to the mail fraud and forgery
counts. “When a factor is already included in the calculation
of the [G]uidelines sentencing range, a judge who wished to rely
on that same factor to impose a sentence above or below the range
must articulate specifically the reasons that this particular
defendant’s situation is different from the ordinary situation
covered by the [G]uidelines calculation.” United States v.
Sindima, 488 F.3d 81, 86 (2d Cir. 2007) (alterations in
original) (internal quotation marks and citation omitted).

     Based on our review of the record, the district court did
not abuse its discretion here. The court acknowledged that the
obstruction charge resulted in a two-point enhancement on the
mail fraud and forgery counts, but explained that in its view,
the enhancement was insufficient to account for Ray’s conduct.
Because the vulnerable-victim finding had no effect on the
Guidelines calculation, and because the court determined that
Ray “took advantage of J.L. to get him to sign [the letter] by
bullying,” App’x at 310-11, the court did not abuse its
discretion in finding the obstruction here distinct from the
“ordinary situation covered by the [G]uidelines.” Sindima, 488
F.3d at 86 (alteration in original) (internal quotation marks
and citation omitted).




                                4
     Ray argues that his sentence cannot be justified in light
of sentences handed down by other courts in this Circuit for
similar conduct.     However, “there is a wide variety of
culpability amongst defendants,” id. at 192, and courts are
required only to consider “sentence disparities among
defendants with similar records who have been found guilty of
the same conduct,” 18 U.S.C. § 3553(a)(6).      We reject the
comparisons suggested by Ray and find that the district court
did not abuse its discretion with respect to § 3553(a)(6).

     4.   Finally, Ray argues that the district court “ignored”
alleged    mischaracterizations     within   the    government’s
sentencing materials and thereby failed to rule on disputed
points in violation of Fed. R. Crim. P. 32(i)(3)(B).2 Pet’r’s
Br. 21. Since the objection is unpreserved, we review only for
plain error. See United States v. Wagner-Dano, 679 F.3d 83,
90 (2d Cir. 2012). “To be ‘plain,’ an error must be so obvious
that ‘the trial judge and prosecutor were derelict in
countenancing it, even absent the defendant’s timely assistance
in detecting it.’” Id. at 94 (quoting United States v. Frady,
456 U.S. 152, 163 (1982)). In any event, the alleged government
misrepresentations, considered individually and collectively,
were at most on the periphery of the district court’s sentencing
calculus. Ray’s argument is accordingly rejected.

     For the foregoing reasons, and finding no merit in Ray’s
other arguments, we hereby AFFIRM the judgment of the district
court.

                             FOR THE COURT:
                             Catherine O’Hagan Wolfe, Clerk




2
  “At sentencing, the court . . . must--for any disputed portion
of the presentence report or other controverted matter--rule
on the dispute or determine that a ruling is unnecessary either
because the matter will not affect sentencing, or because the
court will not consider the matter in sentencing.” Fed. R.
Crim. P. 32(i)(3)(B).

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