586 F. App'x 11
2d Cir.2014Background
- Matthew Getto was convicted after a bench trial on stipulated facts of conspiracy to commit wire and mail fraud via telemarketing; original sentence was 150 months, $8.2M restitution, $10M forfeiture.
- This Court affirmed conviction but remanded for resentencing because the district court failed to make particularized findings on number of victims and loss amount. United States v. Getto, 729 F.3d 221 (2d Cir. 2013).
- On remand the district court sentenced Getto to 144 months, and ordered $8.2M restitution and $8.2M forfeiture.
- At resentencing the court applied an 18-level loss enhancement (finding loss between $2.5M and $7M) and a vulnerable-victim enhancement based on victims’ age and some victims’ diminished mental capacity.
- Getto appealed, raising procedural challenges to the Guidelines calculations, the vulnerable-victim enhancement, sentencing disparity considerations, use of the prior sentence as a baseline, and the sufficiency of particularized findings for restitution/forfeiture.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Getto) | Held |
|---|---|---|---|
| Whether district court erred by not making specific factual findings on loss amount | Court’s loss finding (18-level) was supported by intended-loss evidence and sentencing record | District court misread Getto’s PSR admission ($2.28M) and thus improperly applied an 18-level (rather than 16-level) enhancement | Error in construing admission but harmless: record supports intended loss > $2.5M, so 18-level application upheld |
| Whether vulnerable-victim enhancement under U.S.S.G. §3A1.1 was proper | Victims (elderly, some with dementia) were singled out and their vulnerability bore nexus to scheme | Enhancement improper as overbroad/class-based generalization | Affirmed: court made individualized findings and heard evidence (e.g., testimony about a victim with dementia) showing nexus and targeting |
| Whether district court refused to consider sentencing disparity under §3553(a)(6) | Court considered defense argument about co-conspirators serving less time in Israel but declined to give leniency | Court ignored disparity argument entirely | Rejected: record shows the court considered the argument and rejected it on the merits |
| Whether court impermissibly used prior sentence as a baseline on resentencing | Prior sentence served only as context; court recalculated and imposed lower sentence | Court treated prior sentence as baseline constraining resentencing | Rejected: court recalculated offense level lower than before and reduced sentence; no impermissible reliance |
| Whether restitution/forfeiture required particularized findings tying losses to Getto’s scope of agreement | Government argues amounts are supported by the record and prior proceedings | Getto says court failed to make particularized findings as to his conspiratorial scope vs. overall conspiracy | Not considered on appeal (argument waived for failure to raise earlier) |
Key Cases Cited
- United States v. Thavaraja, 740 F.3d 253 (2d Cir. 2014) (standard of review for procedural reasonableness)
- Gall v. United States, 552 U.S. 38 (2007) (deferential abuse-of-discretion review of sentences)
- United States v. Cavera, 550 F.3d 180 (2d Cir. 2008) (what constitutes procedural error in sentencing)
- United States v. Jass, 569 F.3d 47 (2d Cir. 2009) (harmless-error doctrine where sentence would have been the same)
- United States v. Certified Envtl. Servs., Inc., 753 F.3d 72 (2d Cir. 2014) (definition of loss under fraud guideline)
- United States v. Lacey, 699 F.3d 710 (2d Cir. 2012) (sentencing court must make a reasonable estimate of loss)
- United States v. Kerley, 544 F.3d 172 (2d Cir. 2008) (vulnerable-victim enhancement standards)
- United States v. McCall, 174 F.3d 47 (2d Cir. 1998) (when class membership can support vulnerable-victim enhancement)
- United States v. Johnson, 567 F.3d 40 (2d Cir. 2009) (district court may but need not consider sentencing disparity under §3553(a)(6))
- United States v. Quintieri, 306 F.3d 1217 (2d Cir. 2002) (failure to raise an argument earlier waives it on later appeal)