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holding that defendant "had no right to be told at the plea hearing that his sentence might run consecutively to his undischarged federal sentence"
Summary of this case from Escalante v. ConnollyOpinion
No. 07-1928-cr.
January 27, 2010.
Appeal from a judgment of the United States District Court for the Southern District of New York (Preska, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the sentence be AFFIRMED and the matter REMANDED to allow the district court to amend the written judgment.
Laurie S. Hershey, Law Offices of Laurie S. Hershey, Esq., Manhasset, NY, for Appellant.
John J. O'Donnell (Preet Bharara, Andrew L. Fish, on the brief), United States Attorneys Office of the Southern District of New York, New York, NY, for Appellee.
PRESENT: DENNIS JACOBS, Chief Judge, GUIDO CALABRESI and DEBRA ANN LIVINGSTON, Circuit Judges.
SUMMARY ORDER
Defendant-Appellant Jose Antonetti appeals his sentence on the grounds that the district court abused its discretion by: sentencing him more severely than his similarly-situated co-defendants, giving insufficient weight to his difficult background, and sentencing him beyond the maximum period explained to him by the court in the plea hearing. We assume the parties' familiarity with the underlying facts, the procedural history, and the issues presented for review.
First, Antonetti argues that his sentence is improper because it created an unwarranted sentencing disparity between him and his co-defendants. A district court may, in its discretion, "consider disparities between codefendants." United States v. Frias, 521 F.3d 229, 236 (2d Cir. 2008); see also id. at n. 8. If a district court chooses to do so, we require only that the court's reasoning be "logical[]" and consistent with the factors listed in 18 U.S.C. § 3553(a)(1). See United States v. Wills, 476 F.3d 103, 110 (2d Cir. 2007) (internal quotation marks omitted), abrogated on other grounds by United States v. Cavera, 550 F.3d 180, 191 (2d Cir. 2008) ( in banc). Here, Antonetti and his co-defendants are not so similarly-situated as to render any sentencing disparity unjustified. See United States v. Fernandez, 443 F.3d 19, 32 (2d Cir. 2006). The district court did not err in this regard.
Second, Antonetti that the district court failed mitigating weight to his background. In a district court must "satisfy us that it parties' arguments and that it has a exercising [its] own legal decision-making authority." Cavera, 550 F.3d at 193. A "brief statement of reasons" generally suffices; "we do not require robotic incantations that the district court has considered each of the § 3553(a) factors." Id. (internal quotation marks omitted). In this case, the district court clearly met its obligations when it explicitly recognized defense counsel's argument regarding Antonetti's background.
Third, Antonetti contends that his sentence is improper because it violated the plea agreement and exceeded the district court's explanation at the plea hearing that the maximum possible sentence was twenty years. Antonetti was sentenced to 168 months' imprisonment — 72 months fewer than the 20-year maximum. Antonetti seems to argue that because 91 months of the 168-month sentence were to run consecutively to his undischarged federal sentence, the court actually imposed a sentence of 259 months (168 + 91), which is 19 months greater than the applicable maximum. Antonetti's position has no basis in the law; that 91 months of his sentence were set to run consecutively does not change the fact that he received a 168-month sentence. See United States v. Parkins, 25 F.3d 114, 118-19 (2d Cir. 1994). Moreover, Antonetti had no right to be told at the plea hearing that his sentence might run consecutively to his undischarged federal sentence. See Wilson v. McGinnis, 413 F.3d 196, 199 (2d Cir. 2005).
We do agree with both parties, however, that the written judgment erroneously shows the sentence as being 161 months rather than the 168 months that was actually imposed. We therefore remand this case for the limited purpose of allowing the district court to correct the written judgment in this regard. See United States v. Jacques, 321 F.3d 255, 263 (2d Cir. 2003) (explaining that when there is a conflict between an unambiguous oral sentence and the written judgment, the oral sentence controls and "the proper remedy is to remand for amendment of the written judgment").
Finding no merit in Antonetti's remaining arguments, we hereby AFFIRM the sentence and REMAND to allow the district court to amend the written judgment.