24-835 (Con) U.S. v. Orena
In the United States Court of Appeals For the Second Circuit
August Term, 2024
(Argued: December 12, 2024 Decided: July 31, 2025)
Docket Nos. 23-7133(L), 24-835(Con) *
UNITED STATES OF AMERICA,
Appellee,
–v.–
VICTOR J. ORENA, AKA VICTOR J. ORENA, AKA LITTLE VIC, MICHAEL SESSA,
Defendants-Appellants,
PASQUALE AMATO, CARMINE SESSA, LAWRENCE A. FIORENZA, LAWRENCE MAZZA, JOSEPH RUSSO, AKA JO JO, ANTHONY RUSSO, AKA CHUCKIE, ROBERT ZAMBARDI, AKA BOBBY ZAM, JOSEPH MONTELEONE, SR., AKA JOE MONTE, SR., ALPHONSE PERSICO, AKA ALLIE BOY, JOSEPH TOMASELLO, AKA JOE T, THEODORE PERSICO, AKA TEDDY, RICHARD FUSCO, AKA RICHIE, JAMES DELMASTRO, AKA JAMES DELMASTRO,
Defendants. †
* The lead appeal, 23-7133, was previously determined by order filed on May 10, 2024.
† The Clerk of Court is respectfully instructed to amend the caption as set forth above. Before: ROBINSON, PÉREZ, and NATHAN, Circuit Judges.
This case arises from Defendant-Appellant Victor J. Orena’s convictions for his role in the “Colombo Family War”—a power struggle between two factions of an organized crime family that led to a spate of assassinations and other violent crimes. In 1992 after a trial, the jury found Orena guilty of nine charges, including use and carrying of a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1). In 2021, Orena successfully brought a § 2255 petition to vacate the § 924(c)(1) conviction in light of United States v. Davis, 588 U.S. 445 (2019). He sought de novo resentencing on the remaining counts. The district court denied his request and, instead, corrected the judgment to excise Orena’s conviction and consecutive sentence on the § 924(c) charge, but leaving the balance of his sentence on the remaining eight counts of conviction the same.
Orena appeals from this judgment of the United States District Court for the Eastern District of New York (Komitee, J.). He argues that the district court was required to conduct de novo resentencing on all of the remaining counts. Specifically, Orena contends that our recent decision in Kaziu v. United States, 108 F.4th 86 (2d Cir. 2024) requires de novo resentencing whenever a judge of the habeas court is not the original sentencing judge and there are changed circumstances.
We conclude that Kaziu is meaningfully distinguishable from this case, and that the district court acted within its discretion in declining to conduct a full resentencing where the habeas judge had just decided a motion for sentence reduction pursuant to 18 U.S.C. § 3582(c)(1)(A), in which he had thoroughly assessed and ruled on the 18 U.S.C. § 3553(a) factors. In that context, the court considered and ruled on the effect of most of the changed circumstances on which Orena relies in requesting a full resentencing. Insofar as Orena argues that he should be resentenced because his original sentence predated the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 245 (2005), which established that the United States Sentencing Guidelines are advisory, not mandatory, we conclude that, on the record here, resentencing is not compelled on this basis. Finally, the remaining 2 “sentencing” arguments Orena made to the district court sought only to undermine the validity of his remaining counts of conviction and would not be proper considerations as to his sentence for those charges. Therefore, the district court did not exceed its discretion when it declined to conduct de novo resentencing.
For the reasons set forth below, we AFFIRM the district court’s judgment.
DAVID I. SCHOEN, Montgomery, AL, for Defendant- Appellant.
DEVON LASH (Nicholas J. Moscow, on the brief), Assistant United States Attorneys, for Breon Peace, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee.
ROBINSON, Circuit Judge:
This case arises from Defendant-Appellant Victor J. Orena’s convictions for
his role in the “Colombo Family War”—a power struggle between two factions of
an organized crime family that led to a spate of assassinations and other violent
crimes. In 1992 after a trial, the jury found Orena guilty of nine charges, including
use and carrying of a firearm in relation to a crime of violence, in violation of 18
U.S.C. § 924(c)(1). In 2021, Orena successfully brought a petition under 28 U.S.C.
§ 2255 to vacate the § 924(c)(1) conviction in light of United States v. Davis, 588 U.S.
445 (2019). He sought full resentencing “de novo,” or anew, on the remaining
3 counts. 1 The district court denied Orena’s request and, instead, entered an
amended judgment that corrected Orena’s sentence to excise his conviction and
consecutive sentence on the § 924(c) charge, but left the balance of his sentence on
the remaining eight counts of conviction the same.
Orena appeals from this judgment of the United States District Court for the
Eastern District of New York (Komitee, J.). He argues that the district court was
required to conduct de novo resentencing. Specifically, Orena contends that our
recent decision in Kaziu v. United States, 108 F.4th 86 (2d Cir. 2024), requires de novo
resentencing upon vacatur of a count of conviction whenever a habeas judge is not
the original sentencing judge and there are changed circumstances.
But this case presents meaningfully different circumstances from Kaziu.
Though the habeas judge was not the original sentencing judge and there are
changed circumstances, here, the habeas judge had just decided a motion for
sentence reduction pursuant to 18 U.S.C. § 3582(c)(1)(A). In that context, he had
thoroughly evaluated the factors under 18 U.S.C. § 3553(a) that drove the original
sentence and would drive any resentencing, and he had considered the effect of
1 Significantly, vacatur of the § 924(c) conviction did not affect the Sentencing Guidelines calculation for the sentence on the remaining counts, to which Orena’s § 924(c) sentence was consecutive. If Orena’s § 924(c) conviction had impacted the Guidelines calculation on the remaining counts, that would be a different case. We do not consider whether resentencing would be required in that circumstance.
4 most of the changed circumstances on which Orena relies in requesting a full
resentencing.
Insofar as Orena argues that he should be resentenced because his original
sentence predated the United States Supreme Court’s decision in United States v.
Booker, 543 U.S. 220, 245 (2005), which established that the United States Sentencing
Guidelines are advisory, not mandatory, we conclude that, on this record,
resentencing is not compelled on this basis.
Finally, the remaining “sentencing” arguments that Orena made to the
district court sought to undermine the validity of his remaining counts of
conviction and would not be proper considerations as to his sentence for those
charges. Therefore, the district court did not abuse its discretion when it declined
to conduct de novo resentencing.
In reaching this conclusion, we eschew a bright line rule that always requires
resentencing after vacatur of a conviction whenever the resentencing would not
be strictly ministerial. But we do not take issue with our observation in United
States v. Peña that “[i]t may be that in most cases in which resentencing would not
be strictly ministerial, a district court abuses its discretion when it denies de novo
5 resentencing.” 58 F.4th 613, 623 (2d Cir. 2023). 2 We simply conclude that under
the unique circumstances here, the district court did not exceed its discretion.
For the reasons set forth more fully below, we AFFIRM the district court’s
judgment.
BACKGROUND
This case arises from Orena’s convictions for his role in the “Colombo
Family War” that led to the attempted assassinations, woundings, or successful
assassinations of at least twenty-eight individuals, three of whom were innocent
bystanders.
In 1992, Orena was convicted of nine counts, including conspiracy to
murder Thomas Ocera, the murder of Thomas Ocera in aid of racketeering,
conspiracy to murder members of the Persico faction of the Colombo Family in aid
of racketeering, and using and carrying a firearm in relation to a crime of violence
in violation of 18 U.S.C. § 924(c). 3
2When quoting the appendix, the parties’ briefs, and caselaw, we omit all internal quotation marks, footnotes, ellipses, and citations, and accept all alterations, unless otherwise noted.
3 Specifically, Orena was convicted of racketeering, in violation of 18 U.S.C. § 1962(c); racketeering conspiracy, in violation of 18 U.S.C. § 1962(d); conspiracy to murder Thomas Ocera,
6 These convictions followed a month-long jury trial at which the
Government introduced evidence that Orena was appointed as the Acting Boss of
the Colombo Family during the incarceration of Carmine Persico, the Official Boss
of the Colombo Family. Though Orena’s appointment to Acting Boss was
contingent on his promise to relinquish control to Carmine Persico’s son, Alphonse
Persico, upon the son’s release from prison, Orena began an internal campaign to
permanently retain control over the Colombo Family. The Family was divided
between those who supported Orena and those who supported Alphonse Persico.
In late 1991, the Colombo Family War erupted in earnest, with members from each
faction attempting to assassinate members of the other. Orena and others in his
faction conspired to murder at least eleven individuals, actually murdered two,
and killed an innocent bystander.
in violation of 18 U.S.C. § 1959(a)(5) and New York Penal Law §§ 125.25 and 105.15; the murder of Thomas Ocera in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1) and New York Penal Law §§ 125.25 and 20.00; conspiracy to murder members of the Persico faction of the Colombo Family in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5) and New York Penal Law §§ 125.25 and 105.15; conspiracy to make extortionate extensions of credit, in violation of 18 U.S.C. § 892; conspiracy to make extortionate collections of credit, in violation of 18 U.S.C. § 894; use and carrying of a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1); and unlawful possession of firearms by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
7 The sentencing court 4 (Weinstein, J.) imposed three concurrent life sentences
for racketeering, racketeering conspiracy, and murder; three ten-year concurrent
sentences for the two murder-conspiracy counts and for illegal possession of
firearms; and two twenty-year concurrent sentences for the two loansharking
counts. For the use and carrying of a firearm in relation to a crime of violence, in
violation of 18 U.S.C. § 924(c)(1), the sentencing court sentenced Orena to five
years to run consecutively. In its sentencing memorandum and order, the
sentencing court emphasized “[t]he drain on the city’s human and economic
resources,” costs of which were “measured in the billions of dollars” as well as the
death and injury of many individuals. United States v. Sessa, 821 F. Supp. 870, 874
(E.D.N.Y. 1993). As a result, “[c]onsiderations of incapacitation and general
deterrence overwhelm[ed] all other factors in the sentencing,” and imprisonment
for life was required. Id. at 874–75. This court affirmed Orena’s conviction and
sentence on direct appeal. United States v. Orena, 32 F.3d 704, 707–08 (2d Cir. 1994).
Orena subsequently sought post-conviction relief more than once, including
through a 28 U.S.C. § 2255 petition. He argued that an FBI agent secretly conspired
4 Because different judges presided over the sentencing court on the one hand and this habeas proceeding on the other hand, we distinguish between the two. Judge Weinstein was the “sentencing judge” or the “sentencing court.” Judge Komitee was the “habeas judge” or the “habeas court.”
8 with a Colombo Family member, who also served as a confidential FBI informant,
to instigate the intra-Family conflict and to commit the murders for which Orena
was convicted. The sentencing court 5 denied the motions following several
evidentiary hearings. Orena v. United States, 956 F. Supp. 1071, 1076–77 (E.D.N.Y.
1997) (denying Rule 33 motion and dismissing § 2255 petition); Orena v. United
States, 299 F. Supp. 2d 82, 83-84 (E.D.N.Y. 2004) (denying Rule 60(b) motion).
In 2020, Orena sought leave to file a successive § 2255 petition on two
grounds: (1) his § 924(c) conviction was invalid in light of Davis, and
(2) wrongfully withheld and newly available evidence demonstrated his actual
innocence. The Second Circuit granted leave to file a successive § 2255 petition
based on the challenge to his § 924(c) conviction in light of Davis, and it did not
consider Orena’s other contention.
On remand, the government conceded that the § 924(c) conviction must be
vacated and originally took the position that full resentencing on the remaining
counts was required. Orena initially argued that full litigation of the § 2255
petition was required to address his argument that wrongfully withheld and
newly available evidence demonstrated his actual innocence; and he agreed that
5 Judge Weinstein presided over Orena’s earlier habeas petitions.
9 full de novo resentencing would be required. Before resolving Orena’s actual
innocence claims, and on Orena’s request because of his declining health, the
district court held the § 2255 action in abeyance pending resolution of Orena’s
parallel motion for sentence reduction under 18 U.S.C. § 3582.
To support his motion for sentence reduction, Orena presented evidence
that he suffers from many serious medical conditions and requires assistance with
routine tasks. The government opposed sentence reduction, focusing its
opposition on the sentencing factors under 18 U.S.C. § 3553(a).
In October 2021, the habeas court (Komitee, J.) denied the motion for sentence
reduction. Because the government did not dispute that Orena presented
extraordinary and compelling reasons for a sentence reduction, the habeas court
focused its analysis on the 18 U.S.C. § 3553(a) factors. It detailed Orena’s singular
role in the Colombo Family and the number of deaths that resulted from his
crimes, as well as the “crippling effects” on New York City’s economy. Gov’t
App’x 7. The habeas court declined to consider Orena’s new evidence attacking the
integrity of his convictions because such “arguments are properly made in a
petition for habeas relief.” Id. at 6 n.4. The habeas court concluded that it was “left
with the inescapable conclusion that any sentence short of the life term imposed
by Judge Weinstein would insufficiently reflect the seriousness of the offense
10 conduct here and fail to provide just punishment,” and denied Orena’s sentence
reduction motion. Id. at 8. The Second Circuit affirmed, concluding the habeas
court rightly refused to weigh Orena’s new evidence because the proper avenue
for challenging the underlying convictions was a § 2255 petition, not a sentence
reduction motion. United States v. Amato, 48 F.4th 61, 65–66 (2d Cir. 2022).
At that point, because of his deteriorating health, Orena no longer sought a
hearing on the actual innocence branch of his § 2255 petition. Instead, he
requested that the court conduct a full de novo resentencing on the counts of
conviction that remained after vacatur of the § 924(c) conviction. Orena
subsequently objected to the revised Pre-Sentence Report primarily on the basis
that it did not incorporate the new evidence regarding alleged government
misconduct that formed the basis for Orena’s first and second § 2255 petitions. At
that point, the government took the position that de novo resentencing was no
longer required in light of our intervening decision in Peña.
The habeas court then denied Orena’s motion for de novo resentencing.
United States v. Orena, No. 92-cr-00351, 2024 WL 1199901, at *3 (E.D.N.Y. Mar. 20,
2024). The habeas court explained its decision to exercise its discretion to decline
to conduct a full resentencing as follows. First, the habeas court noted that Orena
relied primarily on his age and health challenges, and the associated unlikelihood
11 that he would reoffend, in arguing for a lower sentence. Id. at *2. The habeas court
emphasized that it had already considered these factors in denying Orena’s
motion for compassionate release. Id.
Second, the habeas court observed that, while the United States Sentencing
Guidelines were mandatory at the time of Orena’s original sentencing—a potential
reason to resentence here—the sentencing judge expressly disavowed reliance on
the Guidelines and instead imposed life sentences based on a § 3553(a) analysis.
Id.
Finally, the habeas court rejected Orena’s argument that new evidence
required de novo resentencing because: (1) the evidence was not actually new, but
relied on the same conspiracy between the FBI and the Colombo Family member
that Judge Weinstein previously rejected; and (2) any challenges to the validity of
Orena’s conviction must be brought via a § 2255 petition rather than as a basis for
resentencing on unchallenged convictions. Id. at *2–3. The habeas court entered an
amended judgment that excised Orena’s conviction and consecutive sentence on
the § 924(c) charge, but it left the balance of his sentence the same. Id. at *3.
Orena timely appealed and challenges the habeas court’s refusal to conduct
a de novo resentencing.
12 DISCUSSION
Section 2255 vests district courts with discretion to choose between four
statutorily prescribed remedies upon granting a § 2255 petition: (1) vacate and set
aside the judgment; (2) resentence; (3) grant a new trial; or (4) correct the sentence.
28 U.S.C. § 2255(b). “De novo resentencing requires the district court to ‘reconsider
the sentences imposed on each count, as well as the aggregate sentence,’
formulating anew the appropriate sentence for each unreversed conviction under
the individualized assessment required by § 3553(a).” Kaziu, 108 F.4th at 88
(quoting United States v. Rigas, 583 F.3d 108, 118 (2d Cir. 2009)). We review a
district court’s decision to not conduct de novo resentencing for abuse of discretion.
See id. at 92.
Orena argues that our evolving caselaw on the subject, and particularly our
decision in Kaziu, compels a de novo resentencing. He contends that he has serious
medical issues, has maintained a perfect disciplinary record, and does not pose a
risk to the public, and that the district court should reassess his sentence for these
reasons. He further argues that the court should resentence him because when he
was originally sentenced, the Sentencing Guidelines were viewed as mandatory.
Finally, he contends that he should be resentenced because he has new
13 information challenging the integrity of the Government’s investigation of him
and others.
We disagree. After considering this Court’s recent caselaw on the issue, we
consider Orena’s various contentions.
I. Peña and Kaziu
Two recent Second Circuit decisions lay the groundwork for our analysis
here. In Peña, we rejected the argument that de novo resentencing is always required
whenever a court vacates one or more of a defendant’s convictions pursuant to a
§ 2255 petition. 58 F.4th at 618–19. Peña was convicted of five counts: conspiracy
to commit murder for hire; substantive murder of two individuals for hire; and
two counts of use of a firearm to commit murder, in violation of 18 U.S.C. §§ 2 and
924(j). Id. at 615–16. In light of Davis, the government consented to the vacatur of
Peña’s § 924(j) convictions, and the district court vacated those counts and the
associated sentences. Id. at 617. However, the district court declined to conduct
de novo resentencing because the vacatur would not impact the sentences for his
other convictions, which carried mandatory terms of life imprisonment. Id.
We held that resentencing was not “mandatory” under these circumstances.
Id. at 618. And we concluded that the district court did not abuse its discretion in
declining to conduct de novo resentencing because resentencing would have been
14 “strictly ministerial” in light of the mandatory life sentences on the remaining,
non-vacated counts. Id. at 623. We explicitly declined to define every
“circumstance[] under which a district court abuses its discretion in denying de
novo resentencing.” Id. But we noted, “It may be that in most cases in which
resentencing would not be strictly ministerial, a district court abuses its discretion
when it denies de novo resentencing.” Id.
In Kaziu, we were similarly asked to consider whether the district court
exceeded its discretion by declining to conduct a de novo resentencing after some
but not all counts were vacated. 108 F.4th at 91. The jury had found Kaziu guilty
on four counts: conspiracy to commit murder in a foreign country, conspiracy to
provide material support to terrorists, attempt to provide material support to a
foreign terrorist organization, and conspiracy to use a firearm in a crime of
violence under 18 U.S.C. §§ 924(c) and 924(o). Id. at 87–88. As in Peña, Kaziu’s
firearms-related conviction, for which he was sentenced to a term of
imprisonment, was invalid in light of Davis. Id. at 88. Pursuant to Kaziu’s petition
under 28 U.S.C. § 2255, the district court vacated Kaziu’s firearms-related
conviction and associated sentence and reduced Kaziu’s sentence on another
count—but over Kaziu’s objection it did so without conducting a de novo
resentencing. Id. at 89–90.
15 On appeal, we recognized that our recent decision in Peña foreclosed the
argument that “resentencing is categorically required whenever a conviction is
vacated on collateral attack.” Id. at 91. And we noted that Peña did not address
the limits on a district court’s discretion in choosing among remedies under
§ 2255(b), following vacatur of a count of conviction, in cases in which
resentencing would not be “strictly ministerial.” Id.
In assessing those limits, we identified two considerations that were
particularly relevant in Kaziu’s case. First, we recognized that the various counts
of conviction collectively comprise the body of facts and convictions that drive a
court’s sentence. If one count of conviction is overturned, “the constellation of
offenses of conviction has been changed and the factual mosaic related to those
offenses that the district court must consult to determine the appropriate sentence
is likely altered.” Id. at 92 (quoting United States v. Quintieri, 306 F.3d 1217, 1227–
28 (2d Cir. 2002)). And we recognized that concern “grows more sensitive” when
the original sentencing judge, who knows the role that each count of conviction
played in the overall “factual mosaic” underlying the sentence, is no longer
present. Id. at 92–93. That was the case in Kaziu.
Second, we concluded that one factor that may be relevant to a court’s
discretion to decline to conduct a de novo resentencing is whether the defendant
16 plausibly asserts “changed circumstances that suggest that the original rationale
underlying the sentence . . . no longer applies.” Id. at 93. Kaziu argued “he is
nonviolent, has reordered his relationship with Islam, and has positioned himself
to be a productive member of society,” reflecting “a foundational departure from
the type of person Kaziu was when he was originally arrested, convicted, and
sentenced.” Id. at 93.
Given these two factors “in tandem,” we concluded that the district court
exceeded its discretion in declining to conduct a full, de novo resentencing after
vacating the § 924(c) conviction. Id. at 94.
II. Orena
This case adds a new wrinkle that changes the calculus. The habeas judge,
while not the original judge, had just conducted the same analysis of the § 3553(a)
factors considering most of the changed circumstances Orena relies on here, in the
context of Orena’s motion for sentence reduction under 18 U.S.C. § 3582.
Moreover, for the reasons set forth below, on this record, the fact that he was
originally sentenced at a time when the Sentencing Guidelines were viewed as
mandatory does not compel resentencing now. And though Orena frames his
arguments stemming from alleged government misconduct in its investigation of
him and others as new information relevant to his sentence, most of these claims
17 have been previously adjudicated, and he fails to connect these arguments to his
sentence as opposed to the underlying convictions. We consider each of these
conclusions in turn.
A. The § 3582 Motion
True, resentencing would not be “strictly ministerial” for Orena like it was
in Peña; he is not subject to statutory mandatory minimums on one or more of his
remaining counts. Thus, it is theoretically possible that on resentencing Orena
could receive a lower sentence. And Orena is right that the habeas judge, who
declined Orena’s request for de novo resentencing after striking the § 924(c)
conviction, was not the original sentencing judge. Plus, there are significant
changed circumstances from Orena’s original sentencing in 1992—Orena has
serious health issues and requires assistance to meet even his basic needs. He
poses a minimum threat to others.
But Orena’s argument that Kaziu is dispositive here ignores the critical fact
that the would-be resentencing judge—Judge Komitee—is the same judge who
had just considered and rejected Orena’s sentence reduction motion on grounds
that would be dispositive at a resentencing. In the context of that § 3582 motion,
the government did not dispute that Orena’s medical decline constituted an
exceptional circumstance potentially warranting sentence reduction. As a
18 consequence, Judge Komitee’s disposition of the § 3582 motion turned on his
evaluation of the § 3553(a) sentencing factors. He concluded that Orena fell in a
category of cases “in which the offenders’ criminal history is so long, and their
victims so numerous, that even serious health conditions do not suffice to merit
relief.” Gov’t App’x 5. Judge Komitee explained that Orena “was a singular figure
in the annals of the Colombo family” who oversaw “a campaign of violence that
resulted in a swath of death and serious injury.” Id. at 6. In addition to
emphasizing the human toll, Judge Komitee invoked Judge Weinstein’s estimate
that the “direct and indirect costs” of organized crime “to the honest people of the
[New York City] metropolitan area are measured in the billions of dollars.” Id. at
8.
Judge Komitee acknowledged many of the factors Orena emphasizes here,
including his “undeniably serious” medical issues, his activities in prison, and the
Bureau of Prisons’ determination that he poses a “minimum” risk for violence. Id.
But the court was “left with the inescapable conclusion that any sentence short of
the life term imposed by Judge Weinstein would insufficiently reflect the
seriousness of the offense conduct here and fail to provide just punishment.” Id.
If the habeas court—Judge Komitee presiding—were to conduct a de novo
resentencing now, it would consider the same information and arguments and
19 would apply the same § 3553(a) factors to determine “a sentence sufficient, but not
greater than necessary” to promote the purposes of sentencing. 18 U.S.C.
§ 3553(a). But he just did that. And he concluded that the factors Orena relies on
do not warrant a lower sentence. The district court did not exceed its discretion in
declining to repeat the exercise in a de novo resentencing proceeding. Under these
unique facts, resentencing would have been “an empty formality.” Peña, 58 F.4th
at 623.
B. Booker
One “changed circumstance” Orena identifies that the district court did not
address in his sentence reduction motion is the fact that at the time of his original
sentencing in 1993, the Sentencing Guidelines were mandatory, but they are now
recognized as advisory. See Booker, 543 U.S. at 245 (holding that Sentencing
Guidelines are advisory and not mandatory). He contends that the district court
abused its discretion in declining to resentence in light of that fact.
Orena may well be right that it could be an abuse of discretion not to
resentence where the sentencing judge may have felt bound by the Sentencing
Guidelines calculation. Cf. United States v. Fagans, 406 F.3d 138, 142 (2d Cir. 2005)
(on direct appeal, remanding for resentencing where defendant preserved
objection to district court treating Guidelines as mandatory post-Booker); United
20 States v. Crosby, 397 F.3d 103, 119–20 (2d Cir. 2005) (on direct appeal, remanding
for consideration of whether to resentence where defendant did not preserve this
objection); see also United States v. Russo, 643 F. Supp. 3d 325, 333–34 (E.D.N.Y. 2022)
(concluding that, in context of motion for sentence reduction under 18 U.S.C.
§ 3582(c), the change in sentencing law brought about by Booker was a factor
supporting the conclusion that extraordinary and compelling reasons existed to
support sentence reduction).
But the record doesn’t support the suggestion that the Sentencing
Guidelines were a driving force behind Orena’s underlying sentence. The habeas
court in this § 2255 action excerpted the following from Judge Weinstein’s original
sentencing decision to drive the point home:
The Guidelines are of little assistance in these cases. They focus myopically on mechanical aspects of the offenses. Their formulaic scheme fails to account for the overall picture of these defendants developed during three trials and in three thorough and exhaustive presentence reports. These criminals must be punished in the proper context of their lives and their overall actions, not in the vacuum of “units,” “offense levels” and “adjustments” created by the Guidelines.
Orena, 2024 WL 1199901, at * 2 (quoting Sessa, 821 F. Supp. at 875).
Moreover, Judge Komitee’s own conclusion that no reduction in Orena’s
sentence was warranted was based on an assessment of the § 3553(a) factors, not
on Orena’s underlying Guidelines calculation. On this record, we cannot conclude 21 that the district court exceeded its discretion in declining to vacate the entirety of
the pre-Booker sentence and conduct a full de novo resentencing.
C. Allegations Regarding the Government’s Investigation
In connection with Orena’s motion for sentence reduction, the habeas court
did not consider his claims that new evidence undermines the integrity of the
government’s investigation that led to Orena’s conviction. The habeas court rightly
concluded that these assertions were immaterial to a motion for sentence
reduction under § 3582(c), and they could only be considered in the context of a
petition for habeas relief. Gov’t App’x 6 n.4; Amato, 48 F.4th at 65–66 (affirming
denial of Orena’s sentence reduction motion).
But, as noted above, in an effort to expedite the proceedings, Orena
withdrew his § 2255 petition based on these allegations. Now he argues that the
allegations bear not only on his convictions, but on his sentence, so the habeas court
should conduct a full resentencing considering this information.
In particular, Orena points to allegedly new evidence of FBI corruption in
connection with his prosecution which “undermines key sentencing conclusions
Judge Weinstein came to in 1993.” Appellant’s Br. at 28. For example, Orena
points to information, not disclosed by the government during his own
prosecution, that a co-conspirator and key instigator of violence in the Colombo
22 Family internecine conflict, Gregory Scarpa, Sr., acted as a government informant
and falsely attributed several murders with which he was involved to others. He
further contends that the FBI agent who interfaced with Scarpa, Roy Lindley
Devecchio, himself engaged in misconduct, including providing information to
Scarpa that got people killed. Moreover, Orena points to information indicating
that Frank Sparaco, one of the government’s highest level confidential informants,
told the government well before Orena’s trial for the Ocera murder, that John
Gotti, not Orena, had authorized the “hit” on Ocera. Id. at 36. In Orena’s view,
this information “undermines [the sentencing court’s] findings as to uncharged
and unproven relevant conduct,” such that resentencing here is compelled. Id. at
30.
There are two problems with Orena’s arguments. First, most of the “new”
information is not new at all; it’s been the subject of prior challenges to his
convictions, including challenges decided by Judge Weinstein.
Second, although Orena says these allegations are relevant to his sentence,
his arguments reveal that he in fact seeks to collaterally challenge his convictions
by raising these arguments in a resentencing hearing, rather than challenging them
directly in a § 2255 petition as he initially sought to do before he changed course.
He fails to connect the government’s claimed misconduct to his personal
23 culpability, and his arguments belie his claim that he seeks only to argue that his
sentence, rather than his other convictions, are compromised by the government’s
investigation.
For example, Orena emphasizes that when juries in subsequent
prosecutions of others implicated in the Colombo war were privy to information
about the government’s investigation they acquitted—facts that may speak to the
materiality of the information for purposes of a Brady challenge, but do not
mitigate Orena’s culpability for sentencing purposes.
And he points to more recent information “that directly and completely
undermines the integrity of the charge that Mr. Orena killed Thomas Ocera, the
primary charge accounting for the life sentence.” Id. at 35. This argument squarely
challenges the underlying convictions on which Orena’s sentence was based, not
the sentence based on those convictions. And, as the district court recognized,
resentencing is not the proper forum for collaterally attacking his other
convictions. Orena, 2024 WL 1199901, at *3 (citing Amato, 48 F.4th at 63).
For these reasons, the district court did not exceed its discretion in
concluding that Orena’s allegations challenging the integrity of the government’s
investigation were really challenges to the validity of his convictions, which must
be brought pursuant to 28 U.S.C. § 2255 or § 2241.
24 CONCLUSION
Peña left open more questions than it answered. The Court concluded in the
context of a § 2255 petition leading to vacatur of a count of conviction and its
associated sentence that the decision whether to conduct a de novo resentencing on
the remaining counts falls within the district court’s discretion. Peña, 58 F.4th at
620. But it expressly refrained from probing the limits of that discretion, and, in
fact, observed, “It may be that in most cases in which resentencing would not be
strictly ministerial, a district court abuses its discretion when it denies de novo
resentencing.” Id. at 623.
By its nature, discretion requires consideration of myriad factors and is not
readily amenable to bright-line rules. The purposes of our sentencing laws guide
the exercise of discretion here. Cf. Application of Gianoli Aldunate, 3 F.3d 54, 57 (2d
Cir. 1993) (holding that district court’s “exercise of discretion was properly guided
by the purposes of the statute”). That includes ensuring that a defendant serves a
sentence that is “sufficient, but not greater than necessary” to serve the sentencing
purposes set forth in § 3553(a)(2), 18 U.S.C. § 3553(a), and recognizing that because
“[a] criminal sentence is a package of sanctions that the district court utilizes to
effectuate its sentencing intent . . . a district court’s original sentencing intent may
25 be undermined by altering one portion of the calculus,” Pepper v. United States, 562
U.S. 476, 507 (2011).
This Court has had the opportunity to consider the impact on this
discretionary decision of several factors: the fact that the would-be resentencing
judge did not impose the original sentence, Kaziu, 108 F.4th at 92–93; changed
circumstances since the original sentencing that potentially alter the applicability
of various sentencing factors, id. at 93–94; and, now, the would-be resentencing
judge’s recent assessment and ruling on the application of the § 3553(a) sentencing
factors in the context of a contemporaneous motion for sentence reduction. Future
cases will no doubt highlight other factors that may affect the scope of a district
court’s discretion in particular cases.
It may be the case that “in most cases in which resentencing would not be
strictly ministerial, a district court abuses its discretion when it denies de novo
resentencing.” Peña, 58 F.4th at 623. But on this record, for the above reasons, we
conclude that the district court did not exceed the limits of its discretion in denying
de novo resentencing. The district court’s amended judgment is AFFIRMED.