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United States Court of Appeals for the Second Circuit
April 23, 2019, Decided
[*174] SUMMARY ORDER
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the district court's judgment is AFFIRMED.
Vincent Asaro appeals from the district court's judgment sentencing him to 96 months' imprisonment and three years' supervised release following his conviction for using a telephone to facilitate arson, in violation of the Travel Act, 18 U.S.C. § 1952 (a)(3)(B). We assume the parties' familiarity with the underlying facts and procedural history, which we describe only as necessary to explain our decision to affirm.
] We review a district court's sentencing decision for reasonableness under an abuse-of-discretion standard. United States v. Skys, 637 F.3d 146, 152 (2d Cir. 2011). In so doing, we review factual findings for clear error and rulings of law de novo. United States v. Pica, 692 F.3d 79, 89 (2d Cir. 2012). The district court did not exceed [**2] the bounds of its discretion when it sentenced Asaro to 96 months' imprisonment followed by 3 years' supervised release.
The principle articulated in United States v. Watts, 519 U.S. 148, 157, 117 S. Ct. 633, 136 L. Ed. 2d 554 (1997), that "a jury's verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proven by a preponderance of the evidence," guides our decision in this case. An acquittal does not necessarily mean a jury found the defendant innocent; rather it indicates there exists reasonable doubt as to his guilt. Id. at 155. After the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), we reaffirmed that under Watts a district court may consider acquitted conduct at sentencing. United States v. Vaughn, 430 F.3d 518, 527 (2d Cir. 2005) (holding that "district courts may find facts relevant to sentencing by a preponderance of the evidence, even where [*175] the jury acquitted the defendant of that conduct." (internal citations omitted)).
The district court did not err when it considered acquitted conduct in sentencing Asaro. The court found Asaro's long history of violent behavior to be proven by "not only just a preponderance of the evidence but by overwhelming evidence" based on Asaro's 2015 RICO trial at which the government presented evidence of crimes alleged [**3] to have been committed by Asaro during a period of over forty years. App. 153. While acknowleding that Watts allows sentencing judges to consider acquitted conduct, Asaro argues that judges may only consider related acquitted conduct and that Asaro's past alleged crimes are not related to the present crime because the arson was "the result of a personal vendetta fueled by road rage." Appellant's Br. 25.
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767 Fed. Appx. 173 *; 2019 U.S. App. LEXIS 12324 **; 2019 WL 1777104
United States of America, Appellee, v. John J. Gotti, Michael Guidici, Matthew Rullan, AKA Fat Matt, Defendants, Vincent Asaro, Defendant-Appellant.
Notice: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.
Subsequent History: US Supreme Court certiorari denied by Asaro v. United States, 2020 U.S. LEXIS 1070 (U.S., Feb. 24, 2020)
Prior History: [**1] Appeal from a judgment entered January 4, 2017 in the Eastern District of New York. (Ross, J.).
United States v. Asaro, 2017 U.S. Dist. LEXIS 202516 (E.D.N.Y., Dec. 7, 2017)
sentencing, acquitted, district court, ineffective assistance of counsel claim, preponderance of evidence, direct appeal, arson, supervised release, present crime, road rage, fact-finding, imprisonment, ineffective, aversion, violent, proven, hear
Criminal Law & Procedure, Appeals, Standards of Review, Abuse of Discretion, Sentencing, Proportionality & Reasonableness Review, Clear Error Review, De Novo Review, Imposition of Sentence, Evidence, Evidence, Burdens of Proof, Preponderance of Evidence, Factors, Trials, Verdicts, Sentencing Guidelines, Adjustments & Enhancements, Counsel, Effective Assistance of Counsel, Reviewability