20-3677 United States v. Pica
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term 2023
(Argued: October 19, 2023 Decided: July 1, 2024)
No. 20-3677
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UNITED STATES OF AMERICA,
Appellee,
-v.-
ANTHONY PICA,
Defendant-Appellant.
Before: LIVINGSTON, Chief Judge, KEARSE and CARNEY, Circuit Judges.
Defendant-Appellant Anthony Pica challenges his sentence of 264 months’ imprisonment, following a jury trial, on the basis that the United States District Court for the Eastern District of New York (Amon, J.) erroneously applied U.S.S.G. § 2A1.1, the Sentencing Guideline for first-degree murder, in sentencing him. Having been convicted of conspiracy to commit robbery and attempted robbery, Pica argues that the district court should have sentenced him under U.S.S.G. § 2B3.1. We hold that the district court properly applied U.S.S.G. § 2A1.1, pursuant to U.S.S.G. § 2B3.1(c)’s cross-reference thereto, based on its
1 determination that a co-participant’s act of murdering the robbery victim was relevant conduct under U.S.S.G. § 1B1.3(a)(1)(B). Accordingly, the amended judgment of the district court is AFFIRMED.
FOR APPELLEE: FRANK TURNER BUFORD, Assistant United States Attorney (Susan Corkery, Assistant United States Attorney, on the brief), for Breon Peace, United States Attorney for the Eastern District of New York, Brooklyn, NY.
FOR DEFENDANT-APPELLANT: MATTHEW B. LARSEN, Federal Defenders of New York Appeals Bureau, New York, NY.
DEBRA ANN LIVINGSTON, Chief Judge:
In this appeal from an amended judgment of the United States District Court
for the Eastern District of New York (Amon, J.) sentencing Anthony Pica
principally to 264 months’ imprisonment, we consider whether a co-participant’s
fatal assault on the victim during the course of an armed robbery is relevant
conduct, within the meaning of United States Sentencing Guideline (“U.S.S.G.”)
§ 1B1.3(a)(1)(B), that can be attributed to the defendant for sentencing purposes. 1
1 Guideline 1B1.3(a)(1)(B) specifies that relevant conduct includes: in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all acts and omissions of others that were– (i) within the scope of the jointly undertaken criminal activity, (ii) in furtherance of that criminal activity, and
2 Considering the facts of this case, we conclude that it is. We therefore AFFIRM
the district court’s amended judgment sentencing Pica to a 264-month term of
imprisonment.
BACKGROUND
I. Factual Background 2
The relevant facts underlying Pica’s conviction and sentence are
undisputed. Pica, Salvatore Maniscalco, Jr., and John Delutro learned on a day
late in April 2008 that Louis Antonelli, a jeweler, would have with him a large
amount of jewelry and cash later that day. They set out to rob Antonelli of those
possessions. Shortly before the robbery attempt, Maniscalco and Delutro
surveilled the intersection of Broadway and Castleton Avenue in Staten Island and
determined that Antonelli could be approached as he exited a basement storage
area at this location. Based on this surveillance, Pica collaborated with
Maniscalco and Delutro to formulate a plan.
(iii) reasonably foreseeable in connection with that criminal activity; that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense. 2 The factual background presented here is derived from the parties’ submissions, uncontroverted testimony presented at sentencing, and Pica’s revised presentence report (“PSR”).
3 Tasked with assembling the robbery team, Pica reached out to his childhood
friend, Christopher Prince, and together they recruited Charles Santiago—who
was known as a “wild, hot-headed” individual—to participate in the robbery.
PSR ¶ 8. Pica drove with Prince to Santiago’s home. In his initial conversation
with Pica, Santiago indicated that he had a gun. Santiago then brought the gun
out to Prince’s car, which prompted Pica to suggest that Santiago drive in a
separate vehicle to the location of the planned robbery. Pica and Prince
subsequently recruited Joseph Gencarelli, another of Pica’s friends, to drive
Santiago to the site. While Pica understood that Santiago would use the gun to
“stick up” Antonelli, id. ¶ 9, Pica told Santiago that Antonelli was not to be harmed
because he was an “earner,” id. ¶ 8.
Pica, Prince, Santiago and Gencarelli were present during the robbery
attempt. Santiago, carrying the gun, drove to the location with Gencarelli; Pica
and Prince drove separately in their own vehicle. The plan was for Pica and
Prince to serve as look-outs for law enforcement, while Santiago and Gencarelli
robbed Antonelli of his possessions. In terms of executing the robbery, Santiago
was to use the gun to “stick up” Antonelli as he exited the storage basement and
4 approached his parked car. Id. ¶ 9. Meanwhile, Gencarelli would seize the
jewelry.
Upon arriving at the location of the planned robbery, Santiago and
Gencarelli approached Antonelli’s car but hesitated when they noticed items
bearing the logo of the New York Police Department inside the vehicle.
Concerned about Antonelli’s potential affiliation with the police and the possible
presence of law enforcement in the area generally, Santiago and Gencarelli
returned to Gencarelli’s car and called Prince and Pica to ask whether they should
continue with the robbery. Pica directed them to proceed.
Soon thereafter, Pica tipped off Santiago and Gencarelli that Antonelli
would be exiting the storage basement. After once again leaving Gencarelli’s car,
Santiago and Gencarelli approached Antonelli as he arrived at his vehicle. While
Gencarelli looked for jewelry in Antonelli’s car, Santiago pointed his gun at
Antonelli and instructed him to refrain from “do[ing] anything stupid” or from
moving. Id. ¶ 11. When Antonelli disregarded these warnings, Santiago shot
him twice. Santiago and Gencarelli then fled the scene, without any jewelry or
cash, communicating by cell phone to Pica and Prince that they should do the
same. Antonelli later died from his gunshot wounds.
5 II. Procedural Background
A. Pica’s Convictions and Initial Sentencing
Pica was convicted, following a jury trial, of four offenses: (1) conspiracy to
commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) (Count One); (2)
attempted Hobbs Act robbery, also in violation of § 1951(a) (Count Two); (3) using
and carrying a firearm during and in relation to a crime of violence, in violation of
18 U.S.C. § 924(c) (Count Three); and (4) causing the death of another during the
commission of a violation of § 924(c), in violation of 18 U.S.C. § 924(j) (Count Four).
As to Counts One, Two, and Four, the district court imposed a concurrent sentence
of 240 months’ imprisonment. As to Count Three, the district court sentenced
Pica to 120 months’ incarceration, to run consecutively to the 240-month term.
At Pica’s sentencing hearing, the district judge emphasized that the conduct
for which Pica was convicted—“a robbery in which a man’s life was taken”—was
“extraordinarily serious.” App’x at 43. The district court discussed Pica’s
“substantial role” in orchestrating the attempted robbery. Id. at 44. While the
district judge stated that she did not “believe . . . that it was Mr. Pica’s intention
that the weapon be used,” Pica nevertheless “clearly understood, in directing that
[a gun] be taken, that [the use of that gun] was a serious and distinct possibility.”
6 Id. Thus, because “that possibility came to fruition,” the district court concluded
that “Mr. Pica bears responsibility for that.” Id.
In sentencing Pica, the district court relied on the Guidelines range that had
been set forth in Pica’s PSR. Neither party objected to the district court’s use of
the PSR to sentence Pica. The PSR first discussed § 2B3.1, the Guideline
applicable to Hobbs Act robbery, and concluded that the murder of Antonelli was
relevant conduct under U.S.S.G. § 1B1.3(a)(1)(B). As a result, the PSR applied
Guideline 2B3.1(c)’s cross-reference to Guideline 2A1.1, the first-degree murder
Guideline, in calculating Pica’s Guidelines range. The application of Guideline
2A1.1, with its base offense level of 43, resulted in a recommended life sentence.
Pica appealed to this Court. Without challenging his 360-month sentence,
Pica argued that the judgment of conviction should be vacated on the grounds that
the district court made various evidentiary errors at trial and that the government
presented insufficient evidence to support Count Four. Finding no merit to these
arguments, we affirmed the district court’s judgment.
B. Pica’s Second Sentencing Proceeding
Pica thereafter filed a petition pursuant to 28 U.S.C. § 2255 to vacate his
convictions on Counts Three and Four based on new precedent from the United
7 States Supreme Court. On March 17, 2020, the district court granted Pica’s
petition, concluding that in light of the Supreme Court’s decision in United States
v. Davis, 588 U.S. 445 (2019), Pica’s convictions for conspiracy to commit Hobbs
Act robbery and attempted Hobbs Act robbery could no longer serve as predicate
crimes of violence for purposes of his convictions under 18 U.S.C. § 924(c) and
924(j). Accordingly, the district court vacated Pica’s convictions on Counts Three
and Four and ordered a resentencing hearing.
The district court held the resentencing hearing on September 24, 2020. At
the hearing, the district judge indicated that the Guidelines range had not changed
from Pica’s initial sentencing, resulting in a recommended life sentence. This was
consistent with the calculation in Pica’s updated PSR, which again set Pica’s
Guidelines range with reference to Guideline 2A1.1, the first-degree murder
Guideline. 3 The district judge explained that its original sentence of 360 months
was substantially below the recommended term of life imprisonment due in part
to Pica’s lack of intent with respect to the murder of Antonelli: “[T]he Court took
into account the issue of [Pica’s] mens rea, the fact that he – it was not his intention
3 The district court recognized that, because Counts One and Two (Pica’s remaining convictions) each had a statutory maximum term of 20 years’ imprisonment, the Guidelines range was now effectively capped at a 40-year term of imprisonment.
8 that the victim be killed, and the Court took that into account in granting a
substantial departure from the Guideline sentence at that time.” App’x at 68–69.
At the same time, Pica “knew that Santiago was . . . a volatile individual,” and the
district court’s view as to Pica’s significant role in the offense had not changed.
Id. at 69. As at the initial sentencing hearing, neither party objected to the district
court’s calculation of the Guidelines range.
Noting that “[t]he central facts” of the crime—namely, those pertaining to
the attempted robbery and death of the victim—remained the same, the district
judge resentenced Pica principally to 264 months’ imprisonment. 4 Id. at 69–71.
Specifically, the district judge imposed a 240-month term of imprisonment as to
Counts One and Two, with 24 months on Count Two to run consecutively to the
sentence imposed on Count One, with the rest to run concurrently. This appeal
followed.
DISCUSSION
On appeal, Pica challenges the district court’s use of Guideline 2A1.1 for
first-degree murder in sentencing him, contending that the murder of Antonelli
4 The district court arrived at this sentence after taking into account Pica’s efforts at post-offense rehabilitation.
9 was not relevant conduct under U.S.S.G. § 1B1.3(a)(1)(B). We review for plain
error challenges to the district court’s calculation of the Guidelines range that are
raised, as here, for the first time on appeal. See United States v. Bennett, 839 F.3d
153, 159 (2d Cir. 2016). Under the plain error standard, Pica must demonstrate
that: “(1) there is an error; (2) the error is clear or obvious, rather than subject to
reasonable dispute; (3) the error affected [Pica’s] substantial rights, which in the
ordinary case means it affected the outcome of the district court proceedings; and
(4) the error seriously affects the fairness, integrity or public reputation of judicial
proceedings.” United States v. McCrimon, 788 F.3d 75, 78 (2d Cir. 2015) (quoting
United States v. Marcus, 560 U.S. 258, 262 (2010)). For the following reasons, we
discern no error in the determination that Guideline 2A1.1 is applicable, much less
error that is plain.
***
The Sentencing Guidelines provide that, “in the case of a jointly undertaken
criminal activity,” another’s act can be considered as relevant conduct in
sentencing the defendant when the act is “(i) within the scope of the jointly
undertaken criminal activity, (ii) in furtherance of that criminal activity, and (iii)
reasonably foreseeable in connection with that criminal activity.” U.S.S.G.
10 § 1B1.3(a)(1)(B)(i)–(iii). Pica challenges the first of these three requirements on
appeal, arguing that his instruction to Santiago that Antonelli was not to be
harmed—combined with the district court’s finding that Pica did not intend for
Antonelli to die—places Antonelli’s murder outside the scope of the attempted
armed robbery in which Pica engaged. This argument is without merit.
At the start, we have identified a range of factors that may be relevant in
assessing the scope of a jointly undertaken criminal activity, including, inter alia,
any “explicit agreement or implicit agreement fairly inferred from the conduct” of
the defendant and other participants; “whether the participants pool
their . . . resources, or whether they work independently”; “whether the defendant
assisted in designing and executing the illegal scheme”; and “what role the
defendant agreed to play in the operation, either by an explicit agreement or
implicitly by his conduct.” United States v. Studley, 47 F.3d 569, 575 (2d Cir. 1995)
(citation omitted).
Here, there is no dispute that Pica agreed with others to commit an armed
robbery, enlisted co-participants in that attempt, and engaged in it himself,
knowing at all relevant times that a gun would be used to coerce the victim to part
11 with his property. 5 Pica “design[ed] or develop[ed]” the scheme, id. at 576,
assembling the robbery team and recruiting Santiago, among others, to execute the
robbery with Pica. Pica then traveled to the robbery site, pressed Santiago and
Gencarelli to proceed despite their hesitations, and provided them with live
updates on Antonelli’s location. Pica also directly participated in the robbery
attempt, serving as a look-out while Santiago and Gencarelli tried to obtain
Antonelli’s possessions.
In such circumstances, and contrary to Pica’s present claim, it is not
necessary that Pica desired Antonelli to die in order for his murder to constitute
relevant conduct under § 1B1.3(a)(1)(B). Antonelli’s death was not intended by
5 Pica’s undisputed role in the robbery attempt distinguishes this case from Studley, where we vacated, holding that the district court’s findings as to relevant conduct were insufficient to attribute to the defendant “the entire loss caused by the telemarketing operation” for which he worked as a salesman. 47 F.3d at 570. Despite the defendant’s “aware[ness] that the other sales representatives were defrauding customers,” the scope of the defendant’s jointly undertaken criminal activity did not encompass other representatives’ fraudulent activities, given that the defendant “did not design or develop the telemarketing scam,” did not “work[] in any way to further the scheme outside of his sales efforts,” and rather than “assist[ing] other representatives with their sales,” he “compet[ed] against the other sales representatives for commissions.” Id. at 576. Here, by contrast, there is no dispute that Pica planned and attempted to execute an armed robbery in which a “wild, hot-headed” co-participant, whom Pica recruited, would obtain the victim’s property by brandishing a gun. PSR ¶ 8. These facts are sufficient to attribute to Pica the death caused during the armed robbery attempt in which he participated.
12 Pica, but it was well within the scope of his jointly undertaken criminal activity.
As the district court noted in sentencing him, Pica played “a substantial role” in
orchestrating the robbery attempt, moving it forward knowing full well that “part
of [the] planning” for which he was responsible “included that someone would
have a weapon.” App’x at 44; see also id. at 69 (noting that the “central facts” at
Pica’s first and second sentencing hearings remained the same).
The commentary to § 1B1.3(a)(1)(B), which serves as an aid in interpreting
the Guideline, confirms that Pica’s argument lacks merit. See United States v.
Johnson, 964 F.2d 124, 127 (2d Cir. 1992) (noting that policy statements and
commentary can be used “as interpretive guides to . . . the Guidelines”); see also
Studley, 47 F.3d at 574–75 (referencing the Application Notes, and the examples
contained therein, in analyzing Guideline 1B1.3(a)(1)(B)). Indeed, the
commentary offers an example of relevant conduct that is not meaningfully
distinguishable from the present case:
[T]wo defendants agree to commit a robbery and, during the course of that robbery, the first defendant assaults and injures a victim. The second defendant is accountable for the assault and injury to the victim (even if the second defendant had not agreed to the assault and had cautioned the first defendant to be careful not to hurt anyone) because the assaultive conduct was within the scope of the jointly undertaken criminal activity (the robbery), was in furtherance of that criminal activity (the robbery), and was reasonably foreseeable in
13 connection with that criminal activity (given the nature of the offense).
U.S.S.G. § 1B1.3 Application Note 3(D). As with this example, Pica “agree[d] to
commit a robbery” with his co-participants, one of whom “assault[ed]” the victim
“during the course of that robbery,” id. Also consistent with the example, Pica
“cautioned” his co-participant not to harm the victim, id. Pica argues that this
example is nonetheless inapposite because it is found in a section of the
Application Notes addressing the “Reasonably Foreseeable” prong of the relevant
conduct test, rather than the “Scope” prong. In advancing this argument,
however, Pica wholly disregards the example’s text, which explicitly states that
the first defendant’s assaultive conduct, in such circumstances, is “within the
scope of the jointly undertaken criminal activity.” Id.
The example’s conclusion—that the assault upon and injury to a victim at
the hands of one participant in the joint commission of a robbery is relevant
conduct as to the others—is fully applicable in this case. As relevant here, Hobbs
Act robbery involves obtaining property from another “against his will, by means
of actual or threatened force, or violence, or fear of injury . . . .” 18 U.S.C.
§ 1951(b)(1). From the start, Pica planned the robbery intending the threatened
use of deadly force for its accomplishment. In such circumstances, whatever
14 Pica’s preferences as to injury to the victim, it was well within “the scope of the
specific conduct and objectives embraced by the defendant’s agreement” that
deadly force might actually be employed, and not just threatened. Studley, 47
F.3d at 574 (emphasis omitted) (citation omitted).
Pica’s argument to the contrary primarily relies on United States v. Johnson,
378 F.3d 230, 239 (2d Cir. 2004), where we held that a co-conspirator’s murder of a
rival labor coalition member was not within the scope of the defendant’s extortion
conspiracy. But Johnson is factually inapposite. In that case, the defendant
agreed to participate in a conspiracy among coalition members to extort money
and no-show jobs from contractors at various construction sites over an eight-year
period. Id. at 234. Towards the end of the conspiracy, in September 1997, a co-
conspirator, Eric Mulder, killed a member of a rival labor coalition, Erick Riddick.
Id. Riddick’s murder was possibly unrelated to the extortion conspiracy and
occurred in circumstances suggesting that Johnson had minimal—if any—
involvement in its commission.
In attributing Riddick’s murder to Johnson for sentencing purposes, the
district court relied principally on a purported offer of payment from Johnson to
Mulder for the Riddick murder. Significantly, we concluded that the record did
15 not establish that Johnson ever offered such a payment. Id. at 239. Without the
finding that Johnson had paid for Riddick to be murdered, the record evidence
only tenuously connected Johnson to Riddick’s murder and the murder to the
extortion conspiracy. This led us to conclude that the district court erred in
determining that the scope requirement had been satisfied. Id. The contrasting
facts of Johnson—and our application of the relevant conduct test in that context—
thus reinforce, and in no way undercut, our conclusion that Antonelli’s murder
was within the scope of Pica’s agreement to rob him.
At bottom, Pica’s contrary argument—that because he instructed Santiago
not to harm the victim and hoped that such harm would not occur, the Antonelli
murder falls outside the scope of his “jointly undertaken criminal activity,” see
§ 1B1.3(a)(1)(B)—misunderstands the nature of our scope inquiry. Ultimately,
Pica planned, agreed to commit, and then actively engaged in the effort to commit
an inherently violent crime involving a deadly weapon. See United States v.
McCoy, 58 F.4th 72, 74 (2d Cir. 2023) (noting that Hobbs Act robbery is categorically
a crime of violence). Pica urged the crime forward, knowing that Santiago was
armed and would “stick up” the victim that Pica had identified for him. PSR ¶ 9.
In such circumstances, Pica cannot argue that Antonelli’s murder was not relevant
16 conduct to the crime that Pica himself put in motion. Pica’s hope that actual harm
to the victim would prove unnecessary does not absolve him of responsibility for
the consequences of his jointly undertaken criminal activity.
Finally, Pica argues that the district court failed to make particularized
findings as to scope. Pica is correct that well-established precedent in this Circuit
requires district courts to make particularized findings as to both scope and
foreseeability before attributing the conduct of others to the defendant for
sentencing purposes. See Studley, 47 F.3d at 574–75; Johnson, 378 F.3d at 235–36.
First, the district court must determine “the scope of the criminal activity agreed
upon by the defendant.” United States v. Mulder, 273 F.3d 91, 118 (2d Cir. 2001)
(citation omitted). Second, if it concludes that the defendant’s agreement
embraced the conduct at issue, the district court considers whether that conduct
was “foreseeable to the defendant.” Id. (citation omitted). Only if both elements
are satisfied can the district court attribute the acts or omissions of a co-participant
to the defendant. See Studley, 47 F.3d at 574–75.
In the proceedings below, the district court failed to make an explicit finding
as to scope. We decline to remand on this basis, however, having concluded that
the district court’s factual findings indisputably establish that the murder of
17 Antonelli was within the scope of Pica’s agreement to commit an armed robbery.
To be sure, our holding in this regard does not change a district court’s obligation
to make particularized findings as to scope and foreseeability—consistent with our
precedents in Studley, Mulder, and Johnson—before attributing a co-participant’s
acts or omissions to the defendant. Remand is unnecessary in this case, however,
given the district court’s findings that Pica had “a substantial role” in planning
and orchestrating a robbery attempt in which a co-participant “would have a
weapon,” knowing that use of the gun “was a serious and distinct possibility.”
App’x at 44; id. at 69. These factual findings are more than sufficient to establish
that the scope of Pica’s agreement to commit an armed robbery encompassed the
victim’s murder. In such circumstances, where we are satisfied that the district
court spoke “generally to the pertinent considerations” underlying its relevant
conduct determination, United States v. Manas, 272 F.3d 159, 167 (2d Cir. 2001), and
the facts are undisputed, we do not require the district court to “utter ‘robotic
incantations’” to determine that the scope requirement was adequately addressed,
United States v. Corsey, 723 F.3d 366, 374 (2d Cir. 2013) (citation omitted).
In sum, we discern no error, much less plain error, in the district court’s
conclusion during two separate sentencing proceedings that the murder of
18 Antonelli was relevant conduct pursuant to U.S.S.G. § 1B1.3(a)(1)(B), triggering
application of the first-degree murder Guideline. Accordingly, we affirm the
district court’s amended judgment.
CONCLUSION
The murder of Antonelli, which occurred during the armed robbery attempt
that Pica helped plan and execute, was reasonably foreseeable to Pica and was
within the scope of his jointly undertaken criminal activity. The district court
therefore did not err, much less plainly so, in determining that the Antonelli
murder was relevant conduct under U.S.S.G. § 1B1.3(a)(1)(B) and in applying
Guideline 2A1.1, pursuant to § 2B3.1(c)’s cross-reference thereto, on that basis.
Accordingly, we AFFIRM the district court’s amended judgment.