10-1240-cr
United States v. Lasko

                                    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
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
the 24th day of May, two thousand eleven.

PRESENT:

          ROGER J. MINER,
          JOSÉ A. CABRANES,
          CHESTER J. STRAUB,
                        Circuit Judges.

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UNITED STATES OF AMERICA,

                     Appellee,

                     -v.-                                                                    No. 10-1240-cr

LAWRENCE L. LASKO,

                     Defendant-Appellant.
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FOR DEFENDANT APPELLANT:                                       JONATHAN S. FOLLENDER, Arkville, NY.

FOR APPELLEE:                                                  BRENDA K. SANNES, Assistant United States Attorney
                                                               (Thomas P. Walsh, Assistant United States Attorney,
                                                               on the brief), for Richard S. Hartunian, United States
                                                               Attorney for the Northern District of New York,
                                                               Syracuse, NY.




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       Appeal from a March 31, 2010 judgment of the United States District Court for the
Northern District of New York (Thomas J. McAvoy, Judge).

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

        Lawrence L. Lasko was convicted of conspiracy to manufacture methamphetamine in
violation of 21 U.S.C. § 846 after a jury trial. He subsequently pleaded guilty to one count of
possessing a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g). On
March 1, 2004, the District Court sentenced Lasko to 210 months of incarceration, four years of
supervised release, and imposed a $200 special assessment.

          On direct appeal, this Court affirmed Lasko’s conviction but remanded the case for
consideration of re-sentencing pursuant to United States v. Crosby, 397 F.3d 103 (2d Cir. 2005). United
States v. Lasko, 146 F. App’x 530, 532 (2d Cir. 2005) (non-precedential summary order). The District
Court concluded on remand that re-sentencing was not warranted because the original sentence
remained “appropriate and reasonable” in light of the parties’ submissions and “the sentencing
factors set forth at 18 U.S.C. § 3553(a).” United States v. Lasko, 03-cr-210 (N.D.N.Y. June 12, 2006).

        Although Lasko failed to file a timely notice of appeal of the District Court’s June 12, 2006
order confirming the original sentence, on November 17, 2008, he filed a motion pursuant to 28
U.S.C. §2255 challenging the sufficiency of the evidence to support his conviction and asserting that
he had been provided with constitutionally ineffective assistance of counsel. The District Court
rejected Lasko’s substantive claims but granted the motion in part for the limited purpose of
permitting Lasko an opportunity to appeal its June 12, 2006 order on remand. See United States v.
Lasko, 03-cr-210 (N.D.N.Y. Dec. 15, 2009). Accordingly, an amended judgment was entered on
March 31, 2010. Lasko appeals from that judgment. We assume the parties’ familiarity with the facts
and procedural history on appeal.

Crosby Remand

        On appeal, Lasko argues that the District Court committed procedural error by, among
other things, failing properly to consider the 18 U.S.C. § 3553(a) criteria; applying a six-level
enhancement under the United States Sentence Guidelines for creating a substantial risk of harm to
a minor; and failing to engage in a “comparative sentencing inquiry” to determine if the original
sentence would still stand in light of the fact that the Guidelines are no longer mandatory after
United States v. Booker, 543 U.S. 220 (2005). When considering an appeal from a decision not to re-
sentence a defendant following a Crosby remand, we review both the procedure whereby the District
Court decided not to re-sentence and the substance of the undisturbed sentence for reasonableness.
United States v. Williams, 475 F.3d 468, 471 (2d Cir. 2007). As part of that review, however, issues
that “were decided—or that could have been decided—during prior proceedings” are foreclosed by
the law of the case doctrine. Id.


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         With the exception of the District Court’s consideration of the § 3553(a) factors, all of
Lasko’s arguments on appeal pertaining to the reasonableness of his sentence are barred under the
law of the case doctrine because they were made, or could have been made, at a prior stage of this
litigation. See County of Suffolk v. Stone & Webster Eng’g Corp., 106 F.3d 1112, 1117 (2d Cir. 1997) (“[A]
decision made at a previous stage of litigation, which could have been challenged in the ensuing
appeal but was not, becomes the law of the case; the parties are deemed to have waived the right to
challenge that decision, for it would be absurd that a party who has chosen not to argue a point on a
first appeal should stand better as regards the law of the case than one who had argued and lost.”
(alterations and citations omitted)). We conclude therefore that those arguments are without merit.

          With regard to the District Court’s consideration of the § 3553(a) factors, we have “imposed
no . . . requirement that a sentencing judge precisely identify either the factors set forth in § 3553(a) or
specific arguments bearing on the implementation of those factors in order to comply with her duty
to consider all the § 3553(a) factors along with the applicable Guidelines range.” United States v.
Fernandez, 443 F.3d 19, 29 (2d Cir. 2006) (emphasis in original). “As long as the judge is aware of
both the statutory requirements and the sentencing range or ranges that are arguably applicable, and
nothing in the record indicates misunderstanding about such materials or misperception about their
relevance, we will accept that the requisite consideration has occurred.” United States v. Rose, 496
F.3d 209, 213 (2d Cir. 2007) (internal quotation marks omitted). This presumption is especially
strong when “the sentencing judge makes abundantly clear that she has read the relevant
submissions and that she has considered the § 3553(a) factors.” Fernandez, 443 F.3d at 29.

        Here, the record reflects that the District Court, which expressly referenced the § 3553(a)
factors in its June 12, 2006 order, “[was] aware of both the statutory requirements and the
sentencing range or ranges that are arguably applicable.” Rose, 496 F.3d at 213. Moreover, Lasko
has not pointed to anything in the record that would “indicate[ ] misunderstanding about such
materials or misperception about their relevance.” Id. (internal quotation marks omitted).
Accordingly, we have no difficulty concluding that the District Court complied with the
requirements of § 3553(a). We therefore hold that the District Court did not err when it declined to
revise Lasko’s sentence following the remand from this Court pursuant to Crosby.

Ineffective Assistance Claim

        Lasko also argues that the District Court erred in denying his § 2255 motion because his
counsel’s failure to object, at both his initial sentencing and during his Crosby resentencing, to the
six-level enhancement under the Guidelines for creating a substantial risk of harm to a minor
constituted ineffective assistance of counsel. These claims are barred under the law of the case
doctrine because they too were decided against Lasko at a prior stage of this litigation. See Stone &
Webster Eng’g Corp., 106 F.3d at 1117.

       At his 28 U.S.C. § 2255 proceeding following his resentencing before the District Court,
Lasko argued that his counsel for his initial sentencing was ineffective because he “was less than


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even mildly aggressive” and that his Crosby re-sentencing counsel was as well for he “ignor[ed] all
factors present for resentencing.” In its December 15, 2009 order, the District Court found these
arguments meritless and dismissed Lasko’s claims, finding no evidence of ineffective assistance
under Strickland v. Washington, 466 U.S. 668 (1994). The District Court subsequently denied Lasko’s
request for a certificate of appealability on the issue, and on June 8, 2010, we also denied Lasko’s
motion for a certificate of appealability, finding that he had not “made a substantial showing of the
denial of a constitutional right.” Accordingly, Lasko’s claims of ineffective assistance, both as to his
initial counsel and his Crobsy counsel, have already been addressed and dismissed by this Court.

               We conclude therefore that Lasko’s ineffective assistance of counsel claims are
barred under the law of the case doctrine.

                                           CONCLUSION

        We have considered all of Lasko’s arguments on appeal and find them to be without merit.
For the reasons stated above, the order of the District Court is AFFIRMED.



                                                FOR THE COURT,
                                                Catherine O’Hagan Wolfe, Clerk of Court




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