United States v. Gilleo
683 F. App'x 85
| 2d Cir. | 2017Background
- Defendant Shane Gilleo pleaded guilty to Hobbs Act robbery (18 U.S.C. §§ 1951, 2) on December 1, 2015.
- Parties disputed at a Fatico hearing whether Gilleo used a firearm or a BB gun during the robbery and whether he brandished it. The District Court found Gilleo had brandished a firearm.
- District Court applied a five-level Sentencing Guidelines enhancement for brandishing a firearm (U.S.S.G. § 2B3.1(b)(2)(C)), a two-level obstruction enhancement for perjury (U.S.S.G. § 3C1.1), denied a reduction for acceptance of responsibility (U.S.S.G. § 3E1.1), and declined to reopen the Fatico hearing for additional evidence about BB-gun availability.
- Gilleo was sentenced to 78 months’ imprisonment; he appealed raising four challenges to those findings and adjustments.
- The Second Circuit reviewed factual findings for clear error and legal interpretations de novo (with mixed standards where appropriate) and affirmed the District Court in all respects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether weapon was a firearm (Guidelines brandishing enhancement) | Government: District Court correctly found firearm; five-level enhancement proper | Gilleo: Weapon was a BB gun; only a three-level dangerous-weapon enhancement applies | Affirmed — factual finding firearm not clearly erroneous; victim credible, expert testimony given less weight |
| Obstruction enhancement for perjury | Government: Gilleo willfully and materially committed perjury at the Fatico hearing, supporting § 3C1.1 | Gilleo: Testimony reflected defense position, not willful falsehood; not perjury | Affirmed — court found willful, material falsehoods; mixed review upheld factual findings |
| Denial of acceptance-of-responsibility reduction (§ 3E1.1) | Government: obstruction finding and inconsistent testimony justify denial | Gilleo: Guilty plea should warrant reduction | Affirmed — denial supported by obstruction enhancement and factual finding; not an extraordinary case meriting reduction |
| Denial to reopen Fatico hearing for additional BB-gun availability evidence | Government: additional evidence had limited probative value given credibility findings | Gilleo: District Court denied due process by not allowing further evidence about silver BB guns at Wal-Mart | Affirmed — no abuse of discretion; proffered evidence had limited probative value relative to credibility determinations |
Key Cases Cited
- United States v. Johnson, 378 F.3d 230 (2d Cir.) (standard for factual findings at sentencing)
- United States v. Halloran, 821 F.3d 321 (2d Cir.) (preponderance standard; clear-error review)
- United States v. Bershchansky, 788 F.3d 102 (2d Cir.) (clear-error standard and deference where two permissible views exist)
- United States v. Cuevas, 496 F.3d 256 (2d Cir.) (deference to district court credibility determinations)
- United States v. Fiore, 381 F.3d 89 (2d Cir.) (mixed standard for obstruction enhancement review)
- United States v. Zagari, 111 F.3d 307 (2d Cir.) (elements of perjury-based obstruction enhancement)
- United States v. Taylor, 475 F.3d 65 (2d Cir.) (deference to district court on acceptance-of-responsibility findings)
- United States v. Malki, 609 F.3d 503 (2d Cir.) (obstruction finding can negate acceptance reduction)
- United States v. Perez, 295 F.3d 249 (2d Cir.) (district court discretion on sentencing fact-finding procedures)