USA v. Amico, No. 08-1338 (2d Cir. 2009)
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08-1338-cr USA v. Amico 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ____________________________________ August Term, 2008 (Argued: Tuesday, July 7, 2009 Decided: July 21, 2009) Docket No. 08-1338-cr ___________________________________________________ UNITED STATES OF AMERICA, Appellee, -v.ROBERT J. AMICO, Defendant-Appellant. ___________________________________________________ Before: CALABRESI and HALL, Circuit Judges, and SESSIONS, District Judge.1 _________________________________________________ Appellant argues that the United States District Court for the Western District of New 31 York (Siragusa, J.) erred by not applying retroactively a 2001 amendment to the gross receipts 32 provision of the United States Sentencing Guidelines. The District Court s judgment is 33 AFFIRMED. 1 The Honorable William K. Sessions, III, Chief Judge of the United States District Court for the District of Vermont, sitting by designation. 1 1 2 3 4 5 6 7 8 9 10 11 _________________________ TERRANCE P. FLYNN, United States Attorney (MONICA J. RICHARDS, Assistant United States Attorney, of Counsel), Buffalo, N.Y., for Appellee. J. SCOTT PORTER, Seneca Falls, N.Y., for Defendant-Appellant. _____________________________________ PER CURIAM: Defendant-Appellant Robert J. Amico, pursuant to a plea agreement, pleaded guilty to 12 one count of participating in a continuing financial crimes enterprise, in violation of 18 U.S.C. § 13 225, and to one count of conspiracy to commit bank and mortgage fraud, in violation of 18 14 U.S.C. § 371. The parties agreed to apply the 1998 version of the United States Sentencing 15 Guidelines (Guidelines) to Amico s sentencing. The parties disagreed, however, about whether a 16 2001 amendment to the Guidelines applies retroactively. We join the Seventh, Sixth, and Tenth 17 Circuits in finding that it does not. 18 Section 2F1.1(b)(7)(B) of the 1998 Guidelines states, in relevant part, that if the offense 19 affected a financial institution and the defendant derived more than $1,000,000 in gross receipts 20 from the offense, increase by 4 levels. U.S.S.G. § 2F1.1(b)(7)(B) (1998). In 2001, the 21 Sentencing Commission amended this provision to state, in relevant part, that if the defendant 22 derived more than $1,000,000 in gross receipts from one or more financial institutions as a result 23 of the offense, increase by 2 levels. U.S.S.G § 2B1.1(b)(12)(A). If the 2001 Amendment is a 24 clarification, rather than a substantive change, it applies retroactively. See United States v. 25 Sabbeth, 277 F.3d 94, 96 (2d Cir. 2002). But like the district court, we adopt the reasoning of the 26 Seventh Circuit in United States v. Hartz, 296 F.3d 595, 599 (7th Cir. 2002), which held that the 2 1 2001 amendment substantively changes an unambiguous provision and therefore does not apply 2 retroactively. See also United States v. Swanson, 360 F.3d 1155, 1167 (10th Cir. 2004) 3 (adopting Hartz s reasoning); United States v. Monus, 356 F.3d 714, 718 (6th Cir. 2004) (same). 4 5 We have considered all of Amico s claims on appeal, and we find them to be without merit. Accordingly, the District Court s sentence is AFFIRMED. 3
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