UNITED STATES V. DELGIORNO, NO. 13-625-CR (2D CIR. MAR. 27, 2014) (STRAUB, SACK, AND LOHIER) (SUMMARY ORDER), AVAILABLE HERE
This defendant appealed his sentence and claimed that the sentencing court committed procedural error by failing to calculate the guidelines, properly consider the 3553(a) factors, and adequately explain the sentence imposed. All challenges failed. The district court calculated the guidelines given its review and “explicitl adopt[ion]” of the presentence report’s accurate guideline calculations. At the hearing, it also noted the low end of the range when explaining that it would not impose a guidelines sentence. The district court also provided an adequate explanation for the below guideline sentence imposed, including aggravating and mitigating factors.
As to the defendant’s 3553(a) argument, the Court affirmed, but voiced concern about whether the sentence “had an air of inevitability” based upon comments by the district court at the defendant’s plea hearing. At that hearing, the district court noted an “agreement” it had with the defendant, which included a two-year sentencing adjournment. If the defendant did not get into any trouble, he would receive no jail time. But, if he did get into trouble, he would go to jail. The defendant apparently got into trouble, prompting the district court to impose jail time per its earlier promise. The Court quickly concluded that the district court’s written statement of reasons for the sentence unambiguously demonstrated consideration of the 3553(a) factors prior to imposition of sentence.