Geritano v. United States

120 F. App'x 871

• Court: Court of Appeals for the Second Circuit
• Decided: February 9, 2005
• Docket: No. 04-1285
• Status: Published

Opinion

SUMMARY ORDER

Petitioner Gennaro Geritano appeals from the January 30, 2004, judgment of the District Court denying his post-judgment motion to modify his sentence, which was imposed on September 14, 1998. Specifically, petitioner contends that the District Court miscalculated his sentence by “double counting” his use of a firearm and that an amendment to Section 2K2.4 of the U.S. Sentencing Guidelines (“U.S.S.G.”), arguably applicable to petitioner under 18 U.S.C. § 3582(c)(2), clarifies that such double counting is improper. See U.S.S.G. § 2K2.4, cmt., n. 2, amend. 599 (2000).

Contrary to petitioner’s assertion, however, his use of a firearm was not double counted in the computation of his sentence. Petitioner pleaded guilty to four counts of extortion under 18 U.S.C. § 1951 and one count of carrying or using a firearm in connection with a crime of violence under 18 U.S.C. § 924(c). The four extortion counts, two of which were subject to sentencing enhancements due to petitioner’s use of a firearm in connection with those offenses, resulted in a sentence of 70 months’ imprisonment. The firearm count under § 924(c) resulted in a consecutive sentence of 60 months’ imprisonment, but it related to a fifth extortion attempt not charged in the superseding information. Consequently, petitioner’s use of a firearm was not double counted, and the amendment he relies upon affords him “no relief, for none of the punishments imposed [in connection with the four extortion counts] ... was enhanced on account of his use or possession of a firearm” during his fifth extortion attempt. United States v. Campbell, 300 F.3d 202, 216 (2d Cir.2002); see also U.S.S.G. § 2K2.4, cmt., n. 2 (2000) (“[I]f a defendant is convicted of two armed bank robberies, but is convicted under 18 U.S.C. § 924(c) in connection with only one of the robberies, a weapon enhancement would apply to the bank robbery which was not the basis for the 18 U.S.C. § 924(c) conviction.”). Cf. United States v. Pringle, 350 F.3d 1172, 1179 (11th Cir.2003) (recognizing that the amended Sentencing Guidelines did not bar a firearms enhancement to the defendant’s , sentence where the other counts for which the defendant was convicted did not “form the basis of [the defendant’s] § 924(c) conviction”).

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We have considered all of defendant’s arguments and have found each of them to be without merit. Accordingly, the judgment of the District Court is hereby AFFIRMED.