United States v. Whitney

March 28, 1994 [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1494

UNITED STATES,

Appellee,

v.

ELLERTON P. WHITNEY, III,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Shane Devine, U.S. District Judge]

Before

Breyer, Chief Judge,

Torruella and Boudin, Circuit Judges.

Ellerton P. Whitney, III on brief pro se.

Peter S. Papps, United States Attorney, and Nancy E. Hart,

Assistant United States Attorney, on brief pro se.

Per Curiam. In 1991, defendant Ellerton Whitney was

convicted on four counts of defrauding a bank, in violation

of 18 U.S.C. 1344, and on seventeen additional counts of

making false statements on bank loan applications, in

violation of 18 U.S.C. 1014. He received a prison term of

thirty-six months. On appeal, we affirmed his convictions

but remanded for resentencing because of an acknowledged ex

post facto violation in the application of the sentencing

guidelines. United States v. Whitney, 991 F.2d 786 (1st Cir.

1993) (per curiam) (table). Defendant was thereafter

resentenced to a prison term of twenty-seven months. He

again appeals (this time on a pro se basis),1 advancing some

fourteen challenges to his new sentence and his underlying

convictions. With one minor exception, we find each of his

arguments unpersuasive.

I. Issues Barred on "Law of the Case" Grounds

The first six issues proffered by defendant involve

substantive challenges to his convictions. These reduce to

three separate allegations: (1) that his absence from the

"charge conference" requires a new trial; (2) that numerous

counts in the indictment were multiplicitous; and (3) that

1. At trial, defendant chose to conduct his own defense,
with counsel appearing on a standby basis. He handed over
the reins to his counsel for purposes of the first sentencing
proceeding and the first appeal. Similarly, defendant was
represented by counsel at the resentencing proceeding
(although he was there afforded wide latitude to argue on his
own behalf). He has now again opted for pro se status.

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the evidence at trial revealed allegedly fraudulent loans at

variance with those charged in the indictment. We decline to

consider each of these allegations under the law of the case

doctrine.

In the earlier appeal, the multiplicity and variance

issues were specifically raised and specifically rejected by

this court. As we explained in United States v. Rivera-

Martinez, 931 F.2d 148, 150 (1st Cir.), cert. denied, 112 S.

Ct. 184 (1991), "a decision of an appellate tribunal on a

particular issue, unless vacated or set aside, governs the

issue during all subsequent stages of the litigation in the

nisi prius court, and thereafter on any further appeal."

Defendant has pointed to no "exceptional circumstances," id.

at 151, that would warrant disregarding this rule here. In

turn, the "charge conference" issue, although not raised in

the earlier appeal, is subject to the same disposition.

[A] legal decision made at one stage of a civil or
criminal case, unchallenged in a subsequent appeal
despite the existence of ample opportunity to do
so, becomes the law of the case for future stages
of the same litigation, and the aggrieved party is
deemed to have forfeited any right to challenge
that particular decision at a subsequent date.

United States v. Bell, 988 F.2d 247, 250 (1st Cir. 1993);

accord, e.g., United States v. Connell, 6 F.3d 27, 30-31 (1st

Cir. 1993). Again, no exceptionalcircumstances are apparent.2

2. Defendant's standby counsel did attend the conference.
The court noted for the record that defendant "was expressly
invited to participate in that conference but elected not to

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The district court properly confined the proceedings on

remand to the scope of our mandate. Defendant's present

attempt to "take serial bites at the appellate apple," id. at

30, must necessarily fail.3

II. Calculation of Loss

By aggregating the total amount of funds loaned to

defendant, the presentence report calculated that the three

banks in question sustained losses in excess of $2 million.

Defendant's attorney disputed this finding below on the

ground that it failed to account for some $500,000 in

collateral which had been recovered. The district court

sustained this objection and determined that the losses in

question, for purposes of U.S.S.G. 2F1.1(b), exceeded $1

million but were less than $2 million.4

do so." And defendant voiced no objection below to his
absence.

3. Defendant's attempt to revive his multiplicity claim in
the guise of a sentencing issue--by challenging the
imposition of $1050 in special assessments--is inventive but
unavailing. The only sentencing calculation involved therein
was the multiplication of $50 by the number of counts on
which he was convicted (21).

4. This yielded a 9-level addition to the base offense level
of 6. After adding two levels for more than minimal
planning, see 2F1.1(b)(2), and declining to add two levels

for obstruction of justice, the court arrived at an offense
level of 17. With a criminal history category of I,
defendant was therefore subject to a sentencing range of 24
to 30 months. The court selected a prison term in the middle
of this range.

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Defendant advances two challenges to this finding.

First, in a reprise of his variance argument, he contends

that the three loans charged in the indictment actually

consisted of some seven or more, and that the jury

permissibly could have convicted him on only a portion

thereof (totalling less than $1,000,000). This argument need

not be pursued at any length. To the extent defendant

alleges improper variance or seeks to challenge the

evidentiary sufficiency of his convictions, we decline to

address such contentions for the reasons just cited. The

guidelines state that, for purposes of 2F1.1(b)(1), "the

loss need not be determined with precision." U.S.S.G.

2F1.1, comment. (n.8). Especially considering that

additional losses resulted from uncharged conduct that was

part of a common scheme or plan, and so was properly

admissible in this context, see U.S.S.G. 1B1.3(a)(2), we

find no error in the court's determination.

Second, defendant contends that he should not be held

accountable for the full extent of the banks' losses,

inasmuch as other factors--such as dereliction on the part of

banking personnel--contributed thereto. Yet the loss table

in 2F1.1 "presumes that the defendant alone is responsible

for the entire amount of victim loss specified in the

particular loss range selected by the sentencing court."

United States v. Gregorio, 956 F.2d 341, 347 (1st Cir. 1992).

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To the extent that such amount is thought to overstate the

seriousness of a defendant's offense for reasons of "multiple

causation," the appropriate remedy is for the court in its

discretion to effect a downward departure. See, e.g., United

States v. Brandon, F.3d , No. 92-1447, slip op. at 111

n.83 (1st Cir. 1994) ("The Guidelines treat multiple

causation only as a possible ground for downward departure --

a matter within the sound discretion of the sentencing

court."); United States v. Johnson, F.3d , n.7 (3d

Cir. 1994); United States v. Shattuck, 961 F.2d 1012, 1017

(1st Cir. 1992); Gregorio, 956 F.2d at 347; U.S.S.G. 2F1.1,

comment. (n.11) (1988); id., comment. (n.7(b)) (1992).

The court here declined to depart downward on this

basis. It is apparent (and defendant does not dispute) that

the court so decided as a matter of discretion, rather than

out of any mistaken perception that it lacked the power to do

so. Its decision in this regard is therefore not appealable.

See, e.g., United States v. McAndrews, 12 F.3d 273, 276 (1st

Cir. 1993); United States v. Soltero-Lopez, 11 F.3d 18, 20

(1st Cir. 1993).

III. Other Issues Concerning Refusal to Depart

In a series of arguments imbued with a distinct "kitchen

sink" quality, defendant argues that the court erred in

failing to depart downward on account of his age, education,

vocational skills, employment, family and community ties,

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rehabilitation and poverty. No extended discussion of these

points is necessary. Under U.S.S.G. 5H1, the first five

factors are "not ordinarily relevant" in determining whether

a downward departure is warranted. See, e.g., United States

v. Rivera, 994 F.2d 942, 948 (1st Cir. 1993) (discussing

"discouraged departures"). Defendant suggests that the

district court thought itself precluded from even considering

a departure on these grounds. To the contrary, it is clear

that the court simply concluded that such factors were not

"present in a manner that is unusual or special." Id. As to

the latter two factors, we need not decide the extent, if

any, to which they might provide a basis for a downward

departure. Here as well, it is apparent that the court found

that a departure was unwarranted as a matter of discretion.

As a result, each of defendant's arguments in this regard is

likewise unappealable. We might add that defendant has

pointed to no personal circumstances that would suggest his

case is in any way exceptional.5

5. We likewise reject two collateral arguments advanced by
defendant in this regard. First, he contends that a remand
for resentencing is necessary because of the allegedly "new
rule" that was later announced in Rivera. Yet the

"modification" that we there adopted pertains only to our
standard of review. See 994 F.2d at 950-51.

Second, defendant argues that the policy statements in
5H1.1-.6 contravene the statutory directive in 28 U.S.C.
994(d) and are therefore invalid. In particular, pointing to
994(d)'s reference to "establishing categories of
defendants," he suggests that this provision was not meant to
discourage reliance on such factors in individual cases.
This argument not only overlooks 28 U.S.C. 994(e), see,

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IV. Restitution

The district court ordered that defendant pay a total of

$197,000 to the three banks in question. Defendant now

argues that such order was unsupported by the evidence on

record, was unaccompanied by requisite findings of fact, and

was barred by reason of his indigency. Except in one minor

respect, we find no error.

In determining whether to order restitution and the

amount thereof, a sentencing court must "consider the amount

of the loss sustained by any victim as a result of the

offense, the financial resources of the defendant, the

financial needs and earning ability of the defendant and the

defendant's dependents, and such other factors as the court

deems appropriate." 18 U.S.C. 3664(a). Defendant's first

argument, which apparently contests the district court's

calculation as to the "amount of the loss," can be summarily

rejected. This "fact-intensive" determination is reviewed

"only for clear error." United States v. Savoie, 985 F.2d

612, 617 (1st Cir. 1993). No such error occurred here; as

e.g., United States v. Mondello, 927 F.2d 1463, 1470 (9th

Cir. 1991) ("Commission's decision to deem the six factors
'not ordinarily relevant' to departure determinations accords
fully with Congress' expression in ... 994(e) ... of the
'general inappropriateness' of considering them in
sentencing"), but is otherwise meritless, see, e.g., United

States v. Jones, F.3d , 1994 WL 61035, at *4 (4th Cir.

1994) ("the legislative mandate [in 994(d)] is clear and
the Commission has complied with that mandate").

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mentioned above, the court supportably found that the actual

losses were well in excess of $197,000.

Our decision in Savoie also disposes of defendant's

second argument. We there stated that the sentencing judge

"need not make open-court findings on the statutory factors

when issuing a restitution order so long as the record on

appeal reveals that the judge made implicit findings or

otherwise adequately evinced his consideration of those

factors." Id. at 618. The record here makes clear that the

court duly considered the statutory factors. They were

examined at trial (over which the sentencing judge presided),

were discussed in detail in the presentence report, and were

thereafter argued at some length at the resentencing

hearing.6

6. In a related argument, defendant also complains of the
court's failure to provide reasons for its decision to impose
a prison term of twenty-seven months. He relies on 18 U.S.C.
3553(c)(1), which provides that, if (among other
conditions) the applicable sentencing range "exceeds 24
months," the court must explain its reasons "for imposing a
sentence at a particular point within the range."
Defendant misinterprets this provision. An expression
of reasons is required under 3553(c)(1)--not when the high
end of the range exceeds 24 months, nor when the actual
sentence exceeds that duration--but rather when "the width of
the guideline range (i.e., the difference between the high
and low ends of the range)" does so. United States v.

Thomas, F.3d , 1994 WL 67986, at *9 n.2 (8th Cir.

1994) (en banc); accord, e.g., United States v. Upshaw, 918

F.2d 789, 792 (9th Cir. 1990), cert. denied, 499 U.S. 930

(1991). As the applicable range here (24 to 30 months)
spanned only six months, 3553(c)(1) is inapplicable.

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Defendant's third argument is likewise unavailing. As

evidenced by 3664(a)'s reference to "earning ability," it

has been widely held that "indigency is not a bar to an order

of restitution." United States v. Purther, 823 F.2d 965, 970

(6th Cir. 1987); accord, e.g., Brandon, supra, slip op. at

116-17. The record here is replete with evidence of

defendant's professional accomplishments and business acumen;

he himself spoke of his "entrepreneurial enthusiasm" at

resentencing. Resent. Tr. at 18. On the basis thereof, the

court supportably found that defendant's future earning

potential was sufficient to warrant a substantial order of

restitution--notwithstanding his current financial plight.7

Our one disagreement is with the fact that the court

ordered that restitution be paid "immediately." Because it

is undisputed that defendant is presently indigent and is

thus unable to comply with such a directive, we think the

court inadvertently abused its discretion to this limited

extent.8 See, e.g., United States v. Ramilo, 986 F.2d 333,

7. Pointing out that no restitution had been imposed at his
initial sentencing, defendant also charges that the court
acted in a vindictive manner. We find this contention
groundless. It suffices to note that, whereas the court had
ordered that defendant be detained pending his initial
appeal, the court this time around has released him on bail
(over the government's objection).

8. The district court can hardly be faulted in this regard,
inasmuch as defendant voiced no such objection following
entry of the restitution order. Defendant did, however,
advert to the point earlier in his lengthy allocution. In
turn, while he has not raised this matter directly on appeal,

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335 (9th Cir. 1993) (restitution order "must be based on some

evidence the defendant may be able to pay the amount fixed

when required to do so"); United States v. Clark, 901 F.2d

855, 857 (10th Cir. 1990) (vacating restitution order

requiring immediate payment on this basis). We therefore

shall remand so that an appropriate payment schedule may be

established. The court at that time may also set a date for

the resumption of defendant's service of his prison term.

That part of the restitution order requiring immediate

payment is vacated, the judgment is otherwise affirmed, and

the case is remanded for the limited purpose of establishing

an appropriate schedule for the payment of restitution.

defendant has made passing reference thereto in his brief.
Especially considering his pro se status, we deem the issue
properly before us.

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