UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1694
UNITED STATES OF AMERICA,
Appellee,
v.
ROBERT BENJAMIN,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Torruella, Cyr and Stahl,
Circuit Judges.
Theodore Lawrence Craft, with whom Robert Benjamin pro se
was on brief for appellant.
Paul G. Levenson, Assistant United States Attorney, with
whom Donald K. Stern, United States Attorney, was on brief for
appellee.
July 13, 1994
TORRUELLA, Circuit Judge. Robert Benjamin appeals his
sentence and order to pay restitution after he pled guilty to a
single count of interstate transportation of stolen property in
violation of 18 U.S.C. 2314.
BACKGROUND
In 1985, Stanley Sreda ("Sreda"), a retired farmer,
hired Robert Benjamin ("Benjamin"), a self-employed advisor and
tax accountant, to manage Sreda's investments and authorized
Benjamin to buy and sell securities on Sreda's behalf. During
the course of their business relationship, Benjamin embezzled
substantial sums of money from Sreda. After Sreda discovered
that Benjamin had embezzled money from him, Sreda and Benjamin
entered into a civil agreement ("the Agreement") whereby Benjamin
conveyed his personal residence and land to Sreda.
The Agreement stipulated that Sreda would put the
property, which was heavily mortgaged, up for sale to recover the
money which Benjamin had embezzled. The bank which held a
mortgage on the property, however, foreclosed and took the
property. According to Benjamin, Sreda, who owned the property
subject to the mortgage, took no actions to sell the property nor
made any payments on the mortgage. Sreda then filed a civil
action to recover the money embezzled. Benjamin defaulted in the
civil action.
In this case, the government filed an Information
charging Benjamin with interstate transportation of $460,449.85
in embezzled monies. Benjamin pled guilty to the charge. The
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pre-sentence report ("PSR") calculated the actual loss suffered
by Sreda to be $665,943, consisting of $460,449.85 attributable
to 13 checks that Benjamin wrongfully converted and $205,494,
discovered after the plea, attributable to bearer bonds which
Benjamin fraudulently redeemed.
Following the Sentencing Guidelines, the district court
found Benjamin to have an offense level of 17 and a criminal
history category of 1, calling for a sentence of 24 to 30 months
incarceration and 24 to 36 months of supervised release. The
court based its calculation of the total offense level on the
$460,000 loss alleged in the indictment, plus an additional loss
of $205,000 which it counted as "relevant conduct" under U.S.S.G.
1B1.3. The district court sentenced Benjamin to 30 months'
incarceration followed by 36 months of supervised release. The
district court also ordered Benjamin to pay $460,000 in
restitution.
On appeal, Benjamin contends that (1) the district
court's calculation of his offense level was excessive and
improper; (2) the district court erred in including the $205,000
not included in the indictment in its calculation of loss in
determining "relevant conduct" for purposes of sentencing; (3)
the sentence was wrongfully inconsistent with the plea agreement;
and (4) the district court abused its discretion by failing to
mitigate its restitution order in light of the civil agreement
between Benjamin and Sreda.
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DISCUSSION
Benjamin's first contention has no merit. The sentence
imposed was the result of a straightforward and correct
application of the Sentencing Guidelines and Benjamin has
articulated no reason why it should be deemed "excessive" or
"improper."
Of the remaining issues raised by Benjamin, the only
issue preserved for appeal is whether the district court erred by
failing to mitigate restitution. Benjamin's remaining
contentions were not argued before the district court below and,
absent exceptional circumstances, they will not be addressed for
the first time on appeal. United States v. Curzi, 867 F.2d 36,
44 (1st Cir. 1989); see also United States v. Shattuck, 961 F.2d
1012, 1015 (1st Cir. 1992) ("[w]e do not review sentencing
guideline disputes which were not preserved before the district
court") (citation omitted).
At sentencing, counsel for Benjamin acknowledged that
he had read the PSR and expressly waived any challenge to the
factual accuracy of the PSR. Counsel also conceded that the
correct amount for calculating loss for purposes of relevant
conduct at sentencing was $665,000 as stated in the report.
Benjamin is bound by these findings because on appeal, a
defendant may not challenge the findings in his PSR if he has
failed to object to that report in the district court. United
States v. Haggert, 980 F.2d 8, 11 (1st Cir. 1992) (citing United
States v. Fox, 889 F.2d 357, 359 (1st Cir. 1989)).
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We can reverse Benjamin's sentence based on claims not
raised below, only for "plain error." United States v. Olivier-
D az, 13 F.3d 1, 5 (1st Cir. 1993). Benjamin has failed,
however, to persuade us that such error took place. To meet the
plain error standard there must be: (1) a reviewable error (2)
that is "clear" or "obvious" and (3) affects "substantial
rights." Id.
There is no plain error in this case because this court
has previously entertained and rejected the same substantive
arguments presently made by Benjamin. In United States v. Fox,
889 F.2d 357, 350-61 (1st Cir. 1989), we rejected a challenge to
the district court's consideration of "relevant conduct" that had
been set forth in a PSR, but that was not part of the specific
offense to which defendant had pled guilty. In the present case,
the district court correctly considered Benjamin's embezzlement
of the additional $205,000 stated in the PSR as a factor in
determining the guideline range under U.S.S.G. 1B1.3, the
"relevant conduct" provision.
Our review of the transcript confirms that the
government met its obligations under the plea agreement and
Benjamin concedes that there was no bad faith or breach of
promise by the government. The agreement indicated that the
district court was not bound by the agreement and might not
follow the parties' guidelines calculations or sentencing
recommendations. Yet, Benjamin contends that the court's
consideration, in determining his sentence, of the $205,000 loss
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not charged in the Information violated the plea agreement. In
Fox, we rejected the contention that the court's consideration of
such "relevant conduct" in sentencing violated due process where
a pre-sentence investigation subsequent to the plea agreement
between the defendant and the United States revealed additional
information relevant to sentencing. Fox, 889 F.2d at 362-63; see
also United States v. Oyegbola, 961 F.2d 11, 14-15 (1st Cir.
1992), cert. denied, 113 S. Ct. 47 (U.S. 1992) (there was no
breach of plea agreement where subsequent investigation by
Probation Department revealed additional relevant conduct).
Because Fox and Oyegbola control this case and because the
district court's rulings were a straightforward application of
the guidelines to the uncontested factual findings of the PSR, we
find no plain error.
RESTITUTION ORDER
The district court has considerable discretion in
framing a restitution order. United States v. Lombardi, 5 F.3d
568, 573 (1st Cir. 1993).
Benjamin maintains that the property tendered to Sreda
could have been sold for a considerable amount of money in
mitigation of Sreda's loss. In essence, Benjamin argues that it
is unfair to require him to restore the victim's loss a second
time where the victim's own negligence in failing to put the
property up for sale prior to foreclosure contributed to the
loss.
While this argument is somewhat appealing, we are
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unable to find any error, much less an abuse of discretion, with
the district court's order of restitution in this case.
Title 18 U.S.C., section 3664(a), establishes the
factors to be considered by the court in determining whether to
order restitution:
The court . . . shall 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.
In formulating its restitution order, the district
court considered the appropriate factors. The court acknowledged
the amount of loss suffered by the victim: $460,000 caused by
the offense conduct charged as well as $205,000 caused by
Benjamin's relevant conduct. The court limited its order of
restitution to $460,000, correctly noting that it could not
"properly take into account the amount of the relevant conduct
for the purposes of restitution." See Hughey v. United States,
495 U.S. 411, 420 (1990) ("the loss caused by the conduct
underlying the offense of conviction establishes the outer limits
of a restitution order").1 The district court also considered
Benjamin's financial ability to make restitution, stating:
1 Section 3663 was amended on November 29, 1990, to allow broad
restitution for offenses involving "as an element a scheme, a
conspiracy, or a pattern of criminal activity." Pub. L. No. 101-
647, 2509, 104 Stat. 4789, 4863 (Crime Control Act of 1990);
United States v. Cronin, 990 F.2d 663, 666 (1st Cir. 1993). That
amendment does not apply here, however, because the offense of
conviction did not include a plan, scheme or conspiracy as an
element of the offense.
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I have ordered you to make the $460,000
restitution. And, if you can, you will;
and if you can't, at the end of three
years you will be relieved of the
obligation. But, frankly, while I have
been told all the money went into the
house, I guess I haven't seen that
proven. And, perhaps you will win the
lottery. And if you do, Mr. [Sreda]
should be a beneficiary of that as well.
The district court was aware of Benjamin's attempt to
make restitution by conveying his house and land to Sreda. At
sentencing, the government contended that Sreda did not get any
money out of the property. There was no evidence before the
court as to what amount of restitution might have been available
had the property been sold. The district court specifically
asked Benjamin whether he had an appraisal of the property as of
the date it was tendered. Benjamin responded that he did not and
he failed to present other evidence showing the full value of the
house and land when they were tendered. In light of this
evidentiary void, even if the district court had considered it
appropriate to reduce the amount of restitution to account for
Benjamin's previous attempt to repay Sreda and any negligence on
behalf of Sreda, it would have been virtually impossible for the
district court to quantify these factors. The district court,
therefore, simply had no basis to reduce the restitution order.
Thus, we conclude that the district court did not abuse its
discretion in basing its order of restitution on the amount of
loss suffered by Sreda.
Affirmed.
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