19-3622 United States v. Pizzuti
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 11th day of February, two thousand twenty-one.
PRESENT: JOHN M. WALKER, JR., ROBERT D. SACK, STEVEN J. MENASHI, Circuit Judges. ________________________________________
United States of America,
Appellee,
v. 19-3622
Michael Pizzuti,
Defendant-Appellant,
Angelo Dipietro, Angelo Capalbo, Maurizio Sanginiti, Harold Bringman, Nicola Murdocca, AKA Nick, Joseph Genua,
Defendants. *
________________________________________
* The Clerk of Court is directed to amend the caption as set forth above. FOR APPELLEE: Benjamin Woodside Schrier, Karl Metzner, Won S. Shin, Assistant United States Attorneys, for Audrey Strauss, United States Attorney for the Southern District of New York, New York, NY.
FOR DEFENDANT-APPELLANT: Michael Pizzuti, pro se, Tuckahoe, NY.
Appeal from a judgment of the United States District Court for the Southern District of
New York (Preska, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
In 2005, Michael Pizzuti was convicted of attempted extortion, extortion conspiracy, and
obstruction of justice, as well as brandishing a firearm in relation to a crime of violence in violation
of 18 U.S.C. § 924(c). He was sentenced to a total of 219 months’ imprisonment, comprised of a
135-month term on the first three counts and an 84-month consecutive term on the § 924(c) count.
In 2019, the Government consented to vacatur of the § 924(c) count in light of United
States v. Davis, 139 S. Ct. 2319 (2019), and the district court resentenced Pizzuti to an aggregate
term of 210 months’ imprisonment on the remaining counts. This increase for the term on these
counts occurred because, when Pizzuti was originally sentenced, the court did not include a five-
level enhancement for Pizzuti’s brandishing of a firearm because that conduct was the basis of his
§ 924(c) conviction. See U.S.S.G. § 2K2.4 application note 4. Once that conviction was vacated,
however, the enhancement was included, increasing the recommend guidelines sentence for the
non-§ 924(c) convictions. As the Supreme Court has recognized, this process occurs with some 2 regularity after a defendant has a § 924(c) conviction vacated. Davis, 139 S. Ct. at 2336 (“[W]hen
a defendant’s § 924(c) conviction is invalidated, courts of appeals routinely vacate the defendant’s
entire sentence on all counts so that the district court may increase the sentences for any remaining
counts if such an increase is warranted.”) (internal quotation marks omitted).
Pizzuti was represented by counsel at his resentencing and now appeals pro se from the
district court’s amended judgment. In this appeal, Pizzuti argues that he received ineffective
assistance of counsel at his resentencing. We assume the parties’ familiarity with the underlying
facts, the procedural history of the case, and the issues on appeal.
“When faced with a claim for ineffective assistance of counsel on direct appeal, we may:
(1) decline to hear the claim, permitting the appellant to raise the issue as part of a subsequent
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255; (2) remand the claim to the district
court for necessary factfinding; or (3) decide the claim on the record before us.” United States v.
DeLaura, 858 F.3d 738, 743 (2d Cir. 2017). The Supreme Court has explained that “in most cases
a motion brought under § 2255 is preferable to direct appeal for deciding claims of ineffective
assistance” because the trial record is “often incomplete or inadequate” with regard to such claims.
Massaro v. United States, 538 U.S. 500, 504-05 (2003). This guidance does not apply, however,
to cases in which “the defendant ... argues no ground of ineffectiveness that is not fully developed
in the trial record.” United States v. Williams, 205 F.3d 23, 35 (2d Cir. 2000). Accordingly, we
have decided ineffective assistance claims on direct appeal “when their resolution is beyond any
doubt” or when it “would be in the interest of justice” to do so. United States v. Khedr, 343 F.3d
96, 100 (2d Cir. 2003) (internal quotation marks omitted).
3 Such is the case here. Pizzuti argues that his counsel’s performance was deficient because
she failed to advance two legal arguments that the district court lacked constitutional authority to
resentence him on the remaining counts after his § 924(c) conviction was vacated. This claim does
not depend on any facts outside the trial record and its resolution is beyond any doubt.
The primary argument Pizzuti claims his counsel should have pursued is this: The Double
Jeopardy Clause “protects against multiple punishments for the same offense.” North Carolina v.
Pearce, 395 U.S. 711, 717 (1969). When it comes to revising a sentence imposed for specific
crimes, this protection “prohibits alterations to sentences carrying a legitimate expectation of
finality.” United States v. Kyles, 601 F.3d 78, 84 (2d Cir. 2010) (emphasis added); see United
States v. DiFrancesco, 449 U.S. 117, 137 (1980) (holding that a sentence may be altered if the
defendant’s “legitimate expectations are not defeated”). Pizzuti says that he had a legitimate
expectation of finality regarding his sentence on the three non-§ 924(c) counts when that sentence
expired in 2015. Therefore, it violates the Double Jeopardy Clause to resentence him to an
increased term on those counts.
This argument is foreclosed by our precedents. We have explained that “[w]hen a
defendant elects to challenge one part of a sentencing package whose constituent parts are truly
interdependent, review of the entire sentencing package does not constitute a double jeopardy
violation.” United States v. Mata, 133 F.3d 200, 202 (2d Cir. 1998) (internal quotation marks
omitted). And “the Guidelines provision allowing either an ... enhancement on a ... conviction or
a mandatory ... sentence under section 924(c)—but never both—renders [a defendant’s] sentence
truly interdependent.” Id.
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19-3622 United States v. Pizzuti
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 11th day of February, two thousand twenty-one.
PRESENT: JOHN M. WALKER, JR., ROBERT D. SACK, STEVEN J. MENASHI, Circuit Judges. ________________________________________
United States of America,
Appellee,
v. 19-3622
Michael Pizzuti,
Defendant-Appellant,
Angelo Dipietro, Angelo Capalbo, Maurizio Sanginiti, Harold Bringman, Nicola Murdocca, AKA Nick, Joseph Genua,
Defendants. *
________________________________________
* The Clerk of Court is directed to amend the caption as set forth above. FOR APPELLEE: Benjamin Woodside Schrier, Karl Metzner, Won S. Shin, Assistant United States Attorneys, for Audrey Strauss, United States Attorney for the Southern District of New York, New York, NY.
FOR DEFENDANT-APPELLANT: Michael Pizzuti, pro se, Tuckahoe, NY.
Appeal from a judgment of the United States District Court for the Southern District of
New York (Preska, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
In 2005, Michael Pizzuti was convicted of attempted extortion, extortion conspiracy, and
obstruction of justice, as well as brandishing a firearm in relation to a crime of violence in violation
of 18 U.S.C. § 924(c). He was sentenced to a total of 219 months’ imprisonment, comprised of a
135-month term on the first three counts and an 84-month consecutive term on the § 924(c) count.
In 2019, the Government consented to vacatur of the § 924(c) count in light of United
States v. Davis, 139 S. Ct. 2319 (2019), and the district court resentenced Pizzuti to an aggregate
term of 210 months’ imprisonment on the remaining counts. This increase for the term on these
counts occurred because, when Pizzuti was originally sentenced, the court did not include a five-
level enhancement for Pizzuti’s brandishing of a firearm because that conduct was the basis of his
§ 924(c) conviction. See U.S.S.G. § 2K2.4 application note 4. Once that conviction was vacated,
however, the enhancement was included, increasing the recommend guidelines sentence for the
non-§ 924(c) convictions. As the Supreme Court has recognized, this process occurs with some 2 regularity after a defendant has a § 924(c) conviction vacated. Davis, 139 S. Ct. at 2336 (“[W]hen
a defendant’s § 924(c) conviction is invalidated, courts of appeals routinely vacate the defendant’s
entire sentence on all counts so that the district court may increase the sentences for any remaining
counts if such an increase is warranted.”) (internal quotation marks omitted).
Pizzuti was represented by counsel at his resentencing and now appeals pro se from the
district court’s amended judgment. In this appeal, Pizzuti argues that he received ineffective
assistance of counsel at his resentencing. We assume the parties’ familiarity with the underlying
facts, the procedural history of the case, and the issues on appeal.
“When faced with a claim for ineffective assistance of counsel on direct appeal, we may:
(1) decline to hear the claim, permitting the appellant to raise the issue as part of a subsequent
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255; (2) remand the claim to the district
court for necessary factfinding; or (3) decide the claim on the record before us.” United States v.
DeLaura, 858 F.3d 738, 743 (2d Cir. 2017). The Supreme Court has explained that “in most cases
a motion brought under § 2255 is preferable to direct appeal for deciding claims of ineffective
assistance” because the trial record is “often incomplete or inadequate” with regard to such claims.
Massaro v. United States, 538 U.S. 500, 504-05 (2003). This guidance does not apply, however,
to cases in which “the defendant ... argues no ground of ineffectiveness that is not fully developed
in the trial record.” United States v. Williams, 205 F.3d 23, 35 (2d Cir. 2000). Accordingly, we
have decided ineffective assistance claims on direct appeal “when their resolution is beyond any
doubt” or when it “would be in the interest of justice” to do so. United States v. Khedr, 343 F.3d
96, 100 (2d Cir. 2003) (internal quotation marks omitted).
3 Such is the case here. Pizzuti argues that his counsel’s performance was deficient because
she failed to advance two legal arguments that the district court lacked constitutional authority to
resentence him on the remaining counts after his § 924(c) conviction was vacated. This claim does
not depend on any facts outside the trial record and its resolution is beyond any doubt.
The primary argument Pizzuti claims his counsel should have pursued is this: The Double
Jeopardy Clause “protects against multiple punishments for the same offense.” North Carolina v.
Pearce, 395 U.S. 711, 717 (1969). When it comes to revising a sentence imposed for specific
crimes, this protection “prohibits alterations to sentences carrying a legitimate expectation of
finality.” United States v. Kyles, 601 F.3d 78, 84 (2d Cir. 2010) (emphasis added); see United
States v. DiFrancesco, 449 U.S. 117, 137 (1980) (holding that a sentence may be altered if the
defendant’s “legitimate expectations are not defeated”). Pizzuti says that he had a legitimate
expectation of finality regarding his sentence on the three non-§ 924(c) counts when that sentence
expired in 2015. Therefore, it violates the Double Jeopardy Clause to resentence him to an
increased term on those counts.
This argument is foreclosed by our precedents. We have explained that “[w]hen a
defendant elects to challenge one part of a sentencing package whose constituent parts are truly
interdependent, review of the entire sentencing package does not constitute a double jeopardy
violation.” United States v. Mata, 133 F.3d 200, 202 (2d Cir. 1998) (internal quotation marks
omitted). And “the Guidelines provision allowing either an ... enhancement on a ... conviction or
a mandatory ... sentence under section 924(c)—but never both—renders [a defendant’s] sentence
truly interdependent.” Id. Therefore, “there is no double jeopardy violation when vacatur of a
section 924(c) conviction leads to resentencing on an interdependent sentence,” even if it involves
4 an increased term of imprisonment. Id. This rule still applies when a defendant, such as Pizzuti,
“had finished serving his original ... sentence for his [related non-§ 924(c)] convictions at the time
of his resentencing” so long as the defendant “was still serving the overall term on his larger
sentencing package,” as Pizzuti was here. United States v. Triestman, 178 F.3d 624, 631 (2d Cir.
1999).
Pizzuti contends that his lawyer should have advanced a similar argument that the district
court lacked jurisdiction to resentence him. Again, we have held that “in the context of a truly
interdependent sentence such as where a mandatory consecutive sentence affects the applicable
offense level under the guidelines,” the “language of [28 U.S.C.] § 2255 provides sufficient
statutory authority for a district court to exercise its jurisdiction to resentence defendants as may
appear appropriate.” United States v. Gordils, 117 F.3d 99, 104 (2d Cir. 1997) (internal quotation
marks omitted).
For these reasons, Pizzuti cannot demonstrate, as he must, “that ‘in light of all the
circumstances,’ the acts or omissions of [his] counsel ‘were outside the wide range of
professionally competent assistance,’ and ... that ‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.’” United
States v. Nolan, 956 F.3d 71, 79 (2d Cir 2020) (quoting Strickland v. Washington, 466 U.S. 668,
690, 694 (1984)). Given our precedents, the arguments that Pizzuti claims his counsel should have
raised about double jeopardy and jurisdiction would have failed. Therefore, his counsel’s decision
not to present these arguments did not amount to incompetence and there is no reasonable
probability that the outcome of his case would have been different had his counsel done as he
5 suggests. See United States v. Regalado, 518 F.3d 143, 149 n.3 (2d Cir. 2008) (“[F]ailure to make
a meritless argument does not amount to ineffective assistance.”).
We have considered all of Pizzuti’s remaining arguments, which are without merit.
Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court