09-2703-cr
USA v. Lynch

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUMM ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY 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
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 30th day
of August, two thousand ten.

Present:
            ROBERT A. KATZMANN,
            PETER W. HALL,
                        Circuit Judges,
            JOHN GLEESON,*
                        District Judge.
________________________________________________

UNITED STATES OF AMERICA,

               Appellee,

                      v.                                           No. 09-2703-cr

GREGORY LYNCH,

            Defendant-Appellant.
________________________________________________

For Defendant-Appellant:                     Thomas G. Dennis, Federal Defender, Deirdre
                                             Murray, Assistant Federal Defender, Thomas
                                             McCudden, Research and Writing Attorney,
                                             Hartford, CT


       *
       The Honorable John Gleeson, United States District Judge for the Eastern District of
New York, sitting by designation.
For Appellee:                                    Rahul Kale,William J. Nardini, Assistant United
                                                 States Attorneys for David B. Fein, United States
                                                 Attorney for the District of Connecticut, Bridgeport,
                                                 CT


       Appeal from the United States District Court for the District of Connecticut (Dorsey, J.).

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court be and hereby is AFFIRMED.

       Defendant Gregory Lynch appeals from a judgment of conviction entered June 22, 2009

(Dorsey, J.), following a guilty plea, convicting him of conspiring to commit bank fraud, and

sentencing him principally to 46 months’ imprisonment. We assume the parties’ familiarity with

the facts and procedural history of this case.

       On appeal, Lynch argues that his sentence of 46 months’ imprisonment is procedurally

unreasonable because the district court miscalculated his criminal history score by improperly

including his prior conviction for breach of the peace. He contends that pursuant to U.S.S.G §

4A1.2(c), his conviction for breach of the peace is “similar to” the offense of “[d]isorderly

conduct or disturbing the peace,” and thus should not have been included in the calculation of his

criminal history. We need not reach the merits of Lynch’s argument, however, because even if

the district court did commit error, that error was harmless.

       “Where we identify procedural error in a sentence, but the record indicates clearly that

‘the district court would have imposed the same sentence’ in any event, the error may be deemed

harmless . . . .” United States v. Jass, 

, 68 (2d Cir. 2009) (citing United States v.

Cavera, 

, 197 (2d Cir. 2008) (en banc)). The district court here made plain that

regardless of whether it included Lynch’s breach of the peace conviction in the calculation of


                                                   -2-
Lynch’s criminal history, the court would place Lynch in Criminal History Category III.

Accordingly, any error was harmless.

       We have reviewed Lynch’s remaining arguments and conclude that they lack merit.

Accordingly, for the foregoing reasons, the judgment of the district court is hereby AFFIRMED.



                                            FOR THE COURT:
                                            CATHERINE O’HAGAN WOLFE, CLERK




                                              -3-