     14-4730
     United States v. Brizard

                                      UNITED STATES COURT OF APPEALS
                                         FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER

 1   RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
 2   SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY
 3   FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
 4   WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
 5   MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
 6   NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A
 7   COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 8          At a stated term of the United States Court of Appeals for the Second Circuit, held at
 9   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
10   on the 31st day of August, two thousand seventeen.
11
12   PRESENT:
13              BARRINGTON D. PARKER,
14              GERARD E. LYNCH,
15              SUSAN L. CARNEY,
16                          Circuit Judges.
17   _________________________________________
18
19   UNITED STATES OF AMERICA,
20
21                       Appellee,
22
23                               v.                                  No. 14-4730
24
25   MARVIN BRIZARD,
26
27              Defendant-Appellant.
28   _________________________________________
29
30   FOR APPELLANT:                                    Lawrence Gerzog, Esq., New York, NY.
31
32   FOR APPELLEE:                                     Emily Berger, Tanisha R. Payne, Assistant
33                                                     United States Attorneys for Bridget M.
34                                                     Rohde, Acting United States Attorney,
35                                                     Eastern District of New York, Brooklyn,
36                                                     NY.
37
 1          Appeal from judgment of the United States District Court for the Eastern District of
 2   New York (Glasser, J.).

 3          UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
 4   ADJUDGED, AND DECREED that the December 22, 2014 judgment entered by the
 5   District Court is AFFIRMED.

 6          Marvin Brizard appeals the sentence that the District Court imposed on him after his
 7   conviction by a jury of conspiracy to file fraudulent tax returns, filing fraudulent tax returns,
 8   wire fraud, and aggravated identity theft. The District Court sentenced Brizard to 84 months’
 9   imprisonment. That reflected a downward variance from the applicable Guidelines range of
10   94-111 months. The court also imposed forfeiture and restitution obligations and a term of
11   supervised release. On appeal, Brizard argues for the first time that the District Court’s
12   sentence was procedurally and substantively unreasonable. We assume the parties’ familiarity
13   with the underlying facts and the procedural history of the case, to which we refer only as
14   necessary to explain our decision to affirm.

15          We review unpreserved claims of procedural errors in sentencing for plain error. See
16   United States v. Wagner-Dano, 679 F.3d 83, 89 (2d Cir. 2012). We find none here. Brizard
17   argues that the District Court erred by failing to consider the sentencing factors set out in 18
18   U.S.C. § 3553(a) other than his criminal conduct, and failing to explain the sentence it
19   imposed, as required by 18 U.S.C. § 3553(c). The sentencing transcript reveals, however, that
20   the District Court explained the basis for Brizard’s sentence on the record and in detail,
21   considering (in addition to characteristics of Brizard’s offense) his personal circumstances
22   and his attempt to deflect culpability for his actions to others. On plain error review, that
23   explanation sufficed. See United States v. Cavera, 550 F.3d 180, 193 (2d Cir. 2008) (en banc)
24   (explaining that, in imposing sentence, “a brief statement of reasons will generally suffice
25   where the parties have addressed only straightforward, conceptually simple arguments to the
26   sentencing judge” (internal quotation marks omitted)).

27          Brizard also asserts that the District Court erred procedurally when it failed to ensure
28   that Brizard himself had read and understood the presentence report, as required by Federal

                                                     2
 1   Rule of Criminal Procedure 32(i)(1)(A). But upon questioning by the District Court,
 2   Brizard’s attorney acknowledged, in Brizard’s presence and without objection from Brizard,
 3   that he had “reviewed the presentence report with [his] client.” Appellant’s App. 18. On
 4   plain error review, that acknowledgement satisfies Rule 32. See United States v. Algahaim, 842
 5   F.3d 796, 800 (2d Cir. 2016).

 6          Brizard next contends that the District Court plainly erred by failing, during the
 7   sentencing hearing and in the written judgment, to specify that he is responsible for
 8   restitution on a joint and several basis with his codefendant. When sentencing Brizard’s
 9   codefendant, the District Court (Cogan, J.) ordered that the codefendant be responsible for
10   restitution jointly and severally with Brizard in the exact amount that Brizard was ordered to
11   repay. See Judgment, United States v. Antoine, No. 1:12-CR-772 (BMC), ECF No. 14, at 5
12   (E.D.N.Y. Jun. 17, 2015). Because “there is no legal basis to permit an award that allows a
13   victim to recover more than his due,” United States v. Nucci, 364 F.3d 419, 424 (2d Cir. 2004),
14   the amount of restitution for which Brizard is ultimately responsible must be reduced if his
15   codefendant makes payments toward the total restitution owed, regardless of whether the
16   judgment form denotes that Brizard is jointly and severally liable, see United States v. Frenkel,
17   682 F. App’x 20, 23–24 (2d Cir. 2017). The District Court’s oversight in failing to mark the
18   obligation as joint and several, even if error, therefore does not amount to plain error. See id.1

19          Brizard also challenges the substantive reasonableness of his sentence. Our Court has
20   not decided whether plain error review applies to an unpreserved challenge to the
21   substantive reasonableness of a sentence, see United States v. Verkhoglyad, 516 F.3d 122, 134
22   (2d Cir. 2008), but we need not reach that issue here. Instead, as we have in similar
23   circumstances, we “assume for purposes of this appeal that the abuse-of-discretion standard
24   applies.” United States v. Thavaraja, 740 F.3d 253, 258 n.4 (2d Cir. 2014). Brizard urges that
25   this Court’s decision in Algahaim, in which we vacated a sentence “driven by the loss

     1
      Although the District Court’s error does not require remand, we note here, as we did in Frenkel,
     that “we would expect the government to notify [Brizard] should others pay [to the victim] monies
     that would reduce the amount of restitution owed by [Brizard] so that he [can] move for a
     modification of the restitution order.” 682 F. App’x at 24.

                                                      3
 1   amount,” compels vacatur of his sentence here. 842 F.3d at 800. Unlike in Algahaim,
 2   however, the District Court chose the sentence for Brizard that it did not only in light of the
 3   loss amount, but also because of Brizard’s conduct: the court noted that Brizard “took
 4   advantage” of his victims, continued the criminal scheme over an extended, six-year period,
 5   and—even at sentencing—avoided taking personal responsibility for the crime, preferring to
 6   maintain that he was “caught up with some bad people,” in the face of trial testimony
 7   revealing that Brizard oversaw the fraudulent scheme. Appellant’s App. 26-27. We perceive
 8   no abuse of discretion in the below Guidelines sentence.

 9                                               * * *

10          We have considered Brizard’s remaining arguments on appeal and conclude that they
11   are without merit. The judgment of the District Court is AFFIRMED.

12
13                                                       FOR THE COURT:
14                                                       Catherine O’Hagan Wolfe, Clerk of Court




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