11-1360-cr (L)
United States v. Robare

                                    UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to summary orders 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
Richard C. Lee United States Courthouse, 141 Church Street, in the City of New Haven,
Connecticut, on the 27th day of April, two thousand twelve.

PRESENT:
          GUIDO CALABRESI,
          JOSÉ A. CABRANES,
          DENNY CHIN,
                       Circuit Judges.

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UNITED STATES OF AMERICA,
          Appellee,

                     -v.-                                                                                Nos. 11-1360 (Lead)
                                                                                                              11-3214 (Con)

ROGER BRUCE ROBARE, JR.,
      Defendant-Appellant.

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FOR APPELLEE:                                                            MICHAEL C. OLMSTED (Robert A. Sharpe, on
                                                                         the brief), Assistant United States Attorneys, for
                                                                         Richard S. Hartunian, United States Attorney,
                                                                         Northern District of New York, Syracuse,
                                                                         NY.

FOR DEFENDANT-APPELLANT:                                                 RICHARD L. MOTT, Albany, NY.
     Appeal from a judgment of the United States District Court for the Northern District of
New York (Frederick J. Scullin, Jr., Judge) entered March 24, 2011.

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

      Defendant-appellant Roger Robare appeals a judgment of conviction entered March 24,
2011. We assume the parties’ familiarity with the factual history and proceedings below.

        Briefly, Robare was indicted on August 22, 2007, in a two-count indictment charging him
with the unlawful possession of a prohibited firearm (sawed-off shotgun with no serial number), in
violation of 26 U.S.C. §§ 5845(a)(2), 5861(c), and 5871, and being a felon in possession of that same
shotgun, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

        On February 14, 2008, the grand jury issued a superseding indictment charging Robare with
four offenses: (1) possession of a sawed off shotgun (serial number 58835), in violation of 26 U.S.C.
§§ 5845(a)(2), 5861(c), and 5871; (2) possession of an unregistered shotgun, in violation of 26 U.S.C.
§§ 5841, 5861(d), and 5871; (3) being a felon in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2); and (4) being a felon in possession of ammunition, in violation of 18
U.S.C. §§ 922(g)(1) and 924(a)(2).

       On November 1, 2008, the Government moved to dismiss Count Three, which motion was
granted. [A 26.] On November 10, 2008, the case went to trial and a jury, on November 14, 2008,
returned a verdict of guilty on the remaining three counts.

        Extensive post-trial motions followed, including a motion to vacate the conviction. On
January 3, 2011, the District Court granted Robare’s motion to vacate the conviction on Count Two,
and denied the remainder of the post-trial relief. See Memorandum, Decision and Order, United
States v. Robare, No. 07-cr-00373 (N.D.N.Y. Jan. 3, 2011), ECF No. 149.

        On March 24, 2011, judgment was entered based upon the jury verdict of November 14,
2008. On March 30, 2011, Robare was sentenced, principally to a period of incarceration of 96
months on each of the two remaining counts, to run concurrently. On April 5, 2011, Robare filed a
timely notice of appeal.

        On appeal, Robare raises substantially the same arguments that the District Court considered
and rejected in its Order of January 3, 2011. For the reasons stated in that comprehensive Order,
we affirm the judgment of the District Court. See Memorandum, Decision and Order, United States
v. Robare, No. 07-cr-00373 (N.D.N.Y. Jan. 3, 2011), ECF No. 149. As to Robare’s ineffective
assistance of counsel claims, we dismiss without prejudice to their being raised in a petition for
habeas corpus pursuant to 28 U.S.C. § 2255.



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                                        CONCLUSION
        We have considered all of Robare’s arguments on appeal and find them to be without merit.
For the reasons stated above, the March 24, 2011 judgment of the District Court is AFFIRMED.




                                             FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk




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