Parente v. United States

August 23, 1994

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-2289

LOUIS ROBERT PARENTE,

Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]

Before

Torruella, Chief Judge,

Selya and Stahl, Circuit Judges.

Louis Robert Parente on brief pro se.

Donald K. Stern, United States Attorney, and Duane J. Deskins,

Assistant United States Attorney, on brief for appellee.

Per Curiam. In 1991, Louis Robert Parente pled

guilty to armed bank robbery, and was sentenced to a prison

term and ordered to pay restitution and, to the extent

restitution was not paid, a fine. He did not appeal his

sentence, but in 1993 filed a motion to vacate, set aside, or

correct his sentence under 28 U.S.C. 2255. The district

court denied his motion, and Parente now appeals. We affirm.

Only two issues are properly before us. The first

is Parente's claim that his attorney rendered him ineffective

assistance of counsel by failing to argue at sentencing that

he did not have the ability to pay a fine or restitution.

The second is his claim that his attorney rendered him

ineffective assistance of counsel at sentencing by failing to

argue for a downward departure on the grounds that Parente

suffered from "divorce traumatic stress syndrome" and that

his crime constituted "aberrant behavior."1 Although

1. Parente raised other claims below, which he appears to
have abandoned on appeal. Those claims were that Parente's
attorney had rendered ineffective assistance of counsel
because he failed to correct or clarify certain statements in
the presentence report; that Parente should have been given
the retroactive benefit of amended U.S. Sentencing Guideline
3E1.1, which permitted an additional reduction in base
offense level for acceptance of responsibility if certain
conditions were met; that, for various reasons, a prior state
conviction should not have been included as a criminal
conviction in his presentence report; that the imposition of
both restitution and a fine on Parente constituted "double
jeopardy"; and that Parente's counsel was ineffective because
he had not requested that a competency hearing be held to
determine whether Parente was mentally ill at the time he
committed the crime.

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Parente raises new claims on appeal, we decline to consider

those claims. Our review of the record shows that declining

to consider the new claims would not result in any "gross

miscarriage of justice" and that the new claims are not "so

compelling as virtually to insure appellant's success." See

Hernandez-Hernandez v. United States, 904 F.2d 753, 763 (1st

Cir. 1990) (citing Johnston v. Holiday Inns, 595 F.2d 890,

894 (1st Cir. 1979)).

Parente has alleged ineffective assistance of

counsel. Accordingly, he must show that his counsel's

representation of him at sentencing fell below an objective

standard of reasonableness. Strickland v. Washington, 466

U.S. 668, 687-88 (1984). He must also show that the

deficient performance prejudiced him, i.e., that there is a

"reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would

have been different." Id. at 687, 694. Parente bears a very

heavy burden of proof, and there is a strong presumption that

counsel's representation was reasonable. Lema v. United

States, 987 F.2d 48, 51 (1st Cir. 1993).

I. Ability to Pay

Parente claims that his attorney should have argued

at sentencing that Parente could not pay a fine or

restitution in the amount ordered by the court. The district

court imposed a fine of $74,410 and restitution of $74,410,

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but ordered that the fine be remitted dollar for dollar to

the extent that Parente actually paid restitution. Although

the amount of the fine and restitution would total $148,820,

Parente now appears to accept the view that, in reality, he

was only expected to pay a single sum of $74,410. But he

claims that his counsel should have argued that he could not

pay a fine or restitution in that amount since the

presentence report (PSR), relying on a financial statement by

Parente, showed that he had a negative net worth of

approximately $23,000; it also indicated a negative monthly

cash flow of some $500. Parente also argues that he received

only half of the armed robbery proceeds of $74,410, an

argument for which there is no record support.2

The PSR gives other information that bears on the

question of Parente's ability to pay the $74,410 restitution

award. On June 29, 1988, five days after the robbery to

which he pled guilty, Parente began depositing money in a

Rhode Island bank, and on that day he also opened a safety

deposit box at that bank. By February 8, 1989, Parente had

deposited $35,250 into his accounts at the bank. He closed

2. Parente cites statements apparently made in confessions
by him and Paul Aubin, his co-defendant. Parente's counsel
filed a motion to suppress Parente's confession, however, and
we infer from the record that a similar motion was filed by
Aubin. Having uncovered information tending to corroborate
defense claims that the confessions were coerced by police
officers, the government chose not to challenge the motion to
suppress, and neither Parente nor the government has made
either confession part of the record.

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them on February 27, 1989, but the PSR does not indicate what

Parente then did with the money. On June 29, 1988, Parente

had also used $13,000 in cash to buy a truck. Parente's

financial statement listed a "1977 Jeep AMC Pick-Up" worth

$700 as an asset, but the PSR does not say whether that jeep

was the "truck" Parente bought in 1988 for $13,000 in cash,

or, if it was not, what happened to that truck. According to

the PSR, Parente graduated from technical high school and

later received an Associate in Science degree in

Architectural Drafting Technology from the New England

Institute of Technology; in addition, Parente's estimate was

that he had received a net average wage of $15,000 per year

as a self-employed subcontractor, apparently during the

three-year period from 1988-90, although that work became

slower in 1991.

The sentencing transcript contains other pertinent

information. When the question of restitution arose,

Parente's counsel informed the court that there had been a

civil action against Parente for the $74,410 taken in the

robbery, that he and Parente's counsel in the civil case had

advised "that they submit the judgment in that regard," and

that he believed that "that's been accomplished in a sense by

a civil judgment. If it has not been already done, it will

be done, . . . ." Counsel's comments appear intended to

argue to the court that, since restitution would essentially

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be made through a civil judgment against Parente, there was

no need for the court to require restitution at sentencing.

The court seems to have understood counsel to have argued for

the somewhat different proposition that the recommended

amount of restitution (or restitution and fine) should in no

event exceed $74,410. The court expressly asked for a

statement of Parente's assets and was referred to the section

of the PSR entitled "Defendant's Ability to Pay." That

section stated Parente's negative net worth and negative

monthly cash flow. Presumably after reviewing that

information, the court said that it had been "troubled by the

absence of explanation of what happened to the money [stolen

from the bank]," and that it believed that restitution should

take priority over a fine. The government recommended that

$74,410 be assessed as restitution, which would "spill over

into a fine" if Parente were unable to pay it, contemplating

apparently the immediate payment of the entire amount of

restitution. In response, the court indicated its preference

for imposing a fine of $74,410 and restitution of $74,410,

"but with the understanding that the priority is to be given

to the restitution and that the fine will be remitted to the

extent that restitution has actually been paid." Its intent

was to "excuse the fine to the extent that restitution is

actually paid." If Parente did not immediately pay the full

restitution, the court instructed him to pay restitution

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during the 36-month period of supervised release following

his prison term, according to a schedule set up by the chief

probation officer. The court also waived interest on the

fine it had imposed.

In light of the facts recounted above, we think

that Parente has not met his heavy burden of showing that his

counsel's failure to argue ability to pay was ineffective

assistance of counsel. The court itself raised the question

of Parente's ability to pay, and apparently consulted the

details in the PSR about Parente's assets. The prosecutor

also referred to it, suggesting a fine if Parente could not

make restitution. Strictly speaking, therefore, there was no

need for counsel to raise the issue -- it was already under

consideration. Moreover, the court showed concern about

Parente's failure to explain what had happened to the funds

stolen from the bank, suggesting its skepticism about

Parente's alleged negative net worth, and manifesting its

belief that Parente should restore the sums he had taken.

Accordingly, as the government contends, arguing that Parente

could not pay a fine or restitution might have backfired by

highlighting Parente's failure to account for the funds

despite his apparent acceptance of responsibility. Doing so

might have given the court cause to increase Parente's prison

term or the amount of the fine. Finally, it is unlikely that

an argument that Parente had no ability to make restitution

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would have been successful. The court permitted Parente to

pay restitution in installments after his release from jail

during the three-year period of his supervised release. The

PSR suggested that, if Parente returned to his prior self-

employment, he might be expected to net $15,000 per year

during that period, for a total of $45,000. It also

indicated that, in 1988-89, Parente had significant assets

which had not been accounted for, i.e., $35,250 in cash and a

truck valued at $13,000. Those assets, together with the

sums that Parente reasonably could be expected to earn after

his release from prison, would have been sufficient to make

restitution.3 Consequently, Parente's counsel could

reasonably have decided that an inability to pay argument

would not succeed. He apparently made the only good argument

he had -- that the court should not require any restitution

since a civil judgment already was pending or had entered

which effectively required Parente to make such restitution.

Given all of the above facts, Parente's counsel cannot be

said to have rendered ineffective assistance because he did

not argue that Parente had no ability to pay a

fine/restitution of $74,410.

II. Downward Departure

A. Divorce Traumatic Stress Syndrome

3. Further evidence of Parente's financial resources is that
he retained his own defense counsel rather than obtaining
court-appointed counsel.

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Parente claims that his counsel was ineffective

because he did not argue for a downward departure on the

ground that Parente suffered from "divorce traumatic stress

syndrome." Parente adverts only perfunctorily to this claim

in his appellate briefs, presenting no developed

argumentation on the point.4 Therefore, he has essentially

waived the claim. See United States v. Zannino, 895 F.2d 1,

17 (1st Cir.), cert. denied, 494 U.S. 1082 (1990). We note

that, in any event, the Sentencing Guidelines applicable at

the time Parente was sentenced provided that "[m]ental and

emotional conditions are not ordinarily relevant in

determining whether a sentence should be outside the

guidelines," see U.S.S.G. Manual 5H1.3 (1990), with certain

exceptions that would not have applied to Parente. See also

United States v. Russell, 917 F.2d 512, 516 (11th Cir. 1990),

cert. denied, 499 U.S. 953 (1991) (convicted armed bank

robber could not justify downward departure on the ground

that he had a "dependent personality disorder").

B. Aberrant Behavior

Parente also says that counsel rendered ineffective

assistance because he did not argue for a downward departure

4. Parente's submissions to the district court alleged that
he had a "syndrome" caused by the marital conflict between
his parents and by his lack of relationship with his father;
this syndrome allegedly left him "vulnerable . . . to be[ing]
easily influenced by others due to a lack of self-esteem,
confidence and economic ability."

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on the ground that Parente's commission of the crime was

"aberrant behavior." On appeal, Parente's argument appears

to be that Paul Aubin, his co-defendant, whose special

knowledge about automated teller machines permitted him to

successfully rob those machines, induced Parente to commit

the robbery by communicating that knowledge to him. Parente

also appears to argue that the armed robbery to which he pled

guilty was his only crime. Parente's arguments are

meritless.

First, at the time Parente was sentenced,

Sentencing Guideline 5K2.12 permitted downward departures

for crimes committed under "coercion and duress," but not the

type of inducement or enticement alleged here. Section

5K2.12 permitted a court to depart downward if a defendant

had committed an offense "because of serious coercion,

blackmail or duress," explaining that "[o]rdinarily coercion

will be sufficiently serious to warrant departure only when

it involves a threat of physical injury, substantial damage

to property or similar injury resulting from the unlawful

action of a third party or from a natural emergency."

Parente does not say that Aubin threatened him with physical

injury or substantial damage to property, but essentially

only that Aubin induced him to commit the crime by giving him

the information that permitted him to do so successfully.

Thus, it clearly was not ineffective assistance of counsel

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for Parente's counsel not to argue for a downward departure.

See United States v. Russell, supra, 917 F.2d at 516

(downward departure not authorized under 5K2.12 where the

defendant, who had been convicted of armed bank robbery,

introduced no evidence that he was physically coerced into

committing his crime or that he did so under threat of injury

to his person or property, which is "all the guideline on

coercion or duress can reasonably be interpreted to cover")

(citing United States v. Pozzy, 902 F.2d 133, 139 (1st Cir.),

cert. denied, 498 U.S. 943 (1990)).

Second, the record shows that the armed robbery to

which Parente pled guilty was not an isolated criminal

offense, as he suggests. The PSR shows a 1984 conviction for

receiving stolen goods. (Although Parente challenged the

validity of that conviction below, he has not done so on

appeal.) In addition, the PSR states that, in 1989, after

committing the robbery at issue here, Parente was charged

with conspiracy to commit robbery, possession of a firearm,

and carrying a firearm in connection with an apparent plan to

rob another automated teller machine. References in

Parente's submissions below indicate that he was later

convicted of that charge in state court. Thus, Parente's

counsel would have had no factual basis for arguing for a

downward departure on the ground that Parente's commission of

armed robbery was an isolated offense. Even had factual

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grounds for such an argument existed, however, the court

could not have departed downward. See U.S.S.G. Manual

4A1.3 ("The lower limit of the range for a Category I

criminal history is set for a first offender with the lowest

risk of recidivism. Therefore, a departure below the lower

limit of the guideline range for a Category I criminal

history on the basis of the adequacy of criminal history

cannot be appropriate."). Consequently, counsel's failure to

argue for a departure downward on the ground of "aberrant

behavior" was not ineffective assistance.

Affirmed.5

5. The facts and legal arguments having been adequately
presented in the briefs and record, we hereby deny Parente's
request for oral argument. See Loc. R. 34.1(a).

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