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United States v. Iovino

United States Court of Appeals, Second Circuit

February 2, 2015

UNITED STATES OF AMERICA, Appellee,
v.
PETER IOVINO, Defendant-Appellant

 Argued January 13, 2015

Appeal from a judgment of conviction entered in the United States District Court for the Southern District of New York (Vincent L. Briccetti, J.), which sentenced the defendant principally to 60 months' imprisonment. We conclude that the district court properly applied the four-level Sentencing Guidelines enhancement for crimes involving more than fifty victims, because Iovino defrauded a condominium association whose 70-odd members were consequently required to pay higher common charges. Accordingly, the judgment of the district court is AFFIRMED.

ANDREW BAUER (Justin Anderson, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, New York, for Appellee.

JEREMY GUTMAN, New York, New York, for Defendant-Appellant.

Before: KATZMANN, Chief Judge, KEARSE and RAGGI, Circuit Judges.

OPINION

Per Curiam

This case calls on us to clarify how sentencing courts should count the number of victims of a fraud when deciding whether to apply a multiple-victim enhancement under section 2B1.1(b)(2) of the U.S. Sentencing Guidelines. Appellant Peter Iovino appeals from a judgment of conviction entered on January 6, 2014 by the United States District Court for the Southern District of New York (Briccetti, J.). Iovino, who was employed as the property manager of a condominium association, was charged with one count of wire fraud for embezzling funds from the condominium association and one count of bank fraud for taking out an unauthorized loan in the condominium association's name. Iovino pleaded guilty to both counts, and was principally sentenced to 60 months' imprisonment.

On appeal, Iovino contends that the district court miscalculated his Sentencing Guidelines range when it increased his offense level by four levels pursuant to United States Sentencing Guidelines § 2B1.1(b)(2)(B),

Page 579

which applies to offenses that " involve[] 50 or more victims." Iovino argues that the district court erred by finding that each owner of a unit in the condominium (hereinafter " tenant" ) qualified as a victim, rather than just the condominium association itself.

Because we conclude that the district court properly counted the individual tenants as victims, and therefore properly applied the § 2B1.1(b)(2)(B) enhancement, we AFFIRM the judgment and sentence of the district court.

I. BACKGROUND

Beginning in 2000, Peter Iovino was employed as the property manager of the Bedford Terrace Condominium Association (" Bedford Terrace" ), which is occupied by more than 70 tenants. As property manager, Iovino was responsible for paying Bedford Terrace's vendors, managing its finances, and reporting to the association's Board of Managers at the Board's monthly meetings. Although Iovino had access to Bedford Terrace's bank accounts, he was not allowed to withdraw funds without the signed approval of at least two Board members.

In 2011, the Board discovered that Iovino had taken out an unauthorized loan in the name of Bedford Terrace. Further investigation revealed that Iovino had also made several unauthorized withdrawals from Bedford Terrace's bank accounts. Iovino concealed his withdrawals by providing the ...


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