United States v. Harrison

March 7, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 95-2009

UNITED STATES,

Appellee,

v.

PATRICIA C. HARRISON,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Torruella, Chief Judge,

Cyr and Stahl, Circuit Judges.

Samuel J. Buffone, with whom Brian S. Chilton and Ropes &

Gray were on brief for appellant.

Carolyn Stafford Stein, Assistant United States Attorney,

with whom Donald K. Stern, United States Attorney, was on brief

for appellee.

TORRUELLA, Chief Judge. Defendant-Appellant Patricia
TORRUELLA, Chief Judge.

C. Harrison appeals from the sentence imposed by the district

court after her plea of guilty to seventy-seven counts of bank

fraud in violation of 18 U.S.C. 1344.1 Appellant, who is

currently serving her prison sentence, requests that her sentence

be vacated and that we remand for resentencing. For the reasons

stated below, we affirm the district court's sentence.

BACKGROUND
BACKGROUND

On December 17, 1991, a federal grand jury returned an

indictment against Patricia C. Harrison and her husband Stephen

G. Harrison, charging them with one hundred counts of bank fraud

in violation of 18 U.S.C. 1344 and with one count of bankruptcy

fraud in violation of 18 U.S.C. 152. Appellant moved to

dismiss the indictment on May 18, 1992, on the ground that the

bank fraud counts were multiplicitous. Six months later, on

November 16, 1992, the district court denied Appellant's motion

and on January 12, 1993, a federal grand jury returned a

superseding indictment, which merged a number of the bank fraud

counts from the original indictment into a lesser number of

counts. The superseding indictment alleged three separate

1 This section provides, in pertinent part:

Whoever knowingly executes . . . a scheme
or artifice -- (1) to defraud a financial
institution; or (2) to obtain any of the
moneys . . . [of] a financial
institution, by means of false or
fraudulent pretenses . . . [shall be
guilty of a crime].

18 U.S.C. 1344 (1988) & Supp. II (1990).

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schemes by which Appellant and her husband defrauded the banks

involved. On April 10, 1995, Appellant pled guilty to seventy-

seven of the seventy-nine counts of bank fraud charged in the

superseding indictment.

In the plea agreement, Appellant acknowledged that she

was subject to separate punishments of up to five years'

imprisonment on each of the counts but one, for which she was

subject to a maximum penalty of up to thirty years. Appellant

also agreed to pay a special assessment of $50 on each of the

seventy-seven counts to which she pled guilty. The pre-sentence

report ("PSR") calculated Appellant's offense level in accordance

with the plea agreement, with two exceptions, only one of which

is relevant to this appeal. The PSR calculated the appropriate

loss range under U.S.S.G. 2F1.1(b)(1)(K) to be more than

$5,000,000 because the victim bank lost principal in the amount

of $10,998,072.67. This differed from the plea agreement, which

provided for a loss of between $2-$5 million. In her pre-hearing

sentencing memorandum, Appellant asked the district court to

depart from the applicable guideline range for two reasons: (i)

the amount of loss overstated the seriousness of her offense; and

(ii) her husband's illness. Apart from these arguments,

Appellant did not object to the PSR's amount of loss or guideline

calculation, or to any of the offense conduct detailed in the PSR

that was the basis for those findings.

At the sentencing hearing, and after hearing argument

from the parties regarding the appropriate loss amount, the

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district court found the loss for purposes of 2F1.1 to be

between $2-5 million. In addition, the district court found that

the total offense level was 18, with a corresponding guideline

sentencing range of twenty-seven to thirty-three months'

imprisonment. The district court made a three-level downward

departure, on the basis of circumstances surrounding the ill

health of Appellant's husband, bringing the total to level

fifteen, with a corresponding range of eighteen to twenty-four

months. Appellant's total offense level of fifteen was made up

of the following elements: a base offense level of six under

2F1.1(a); a ten-level enhancement under 2F1.1(b)(1) to reflect

the amount of loss, found to be between $2-$5 million; a two-

level enhancement for more than minimal planning under

2F1.1(b)(2)(A); a two-level enhancement for supervising others in

the commission of the offense under 3B1.1(c); and a three-level

downward departure based on the ill health of Appellant's

husband. Combined with a criminal history category of I,

Appellant's resulting total offense level was fifteen.

On August 7, 1995, the district court sentenced

Appellant to 24 months in prison and ordered her to pay

restitution in the amount of $10,998,072.67, the amount lost by

the victim bank as found in the PSR by the district court. The

district court also imposed a three year period of supervised

release and a special assessment of $3,850.

This appeal followed. We have jurisdiction pursuant to

18 U.S.C. 3742(a) (1994).

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STANDARD OF REVIEW
STANDARD OF REVIEW

We review for clear error factbound matters in

sentencing, mindful that such factual findings need only be

supported by a preponderance of the evidence, and review de novo

questions of law, including the applicability of a relevant

guideline. United States v. Mart nez-Mart nez, 69 F.3d 1215,

1224 (1st Cir. 1995).

DISCUSSION
DISCUSSION

Appellant entered into an unconditional plea agreement,

whereby she agreed to plead guilty to the seventy-seven counts of

bank fraud, to subject herself to separate punishment on each of

these counts, and to pay a special assessment on each of those

counts. Appellant does not challenge her conviction but, rather,

challenges the sentence imposed by the district court. Appellant

contends that the seventy-seven counts of bank fraud are facially

multiplicitous because the superseding indictment supports, at

most, only three counts of bank fraud. See, e.g., United States

v. Broce, 488 U.S. 563, 574 (1989) (establishing the principle

that a defendant who pleads guilty to a criminal charge may

subsequently assert a claim of multiple punishment in violation

of the Double Jeopardy Clause only if the violation is apparent

on the face of the indictment itself); United States v. Lilly,

983 F.2d 300, 302-04 (1st Cir. 1992) (holding that an indictment

for bank fraud is multiplicitous when it charges a defendant with

multiple counts for each "single execution of a unitary scheme").

Because the seventy-seven counts were multiplicitous, Appellant

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argues, she was prejudiced in the view of the sentencing court

and her sentence violates Double Jeopardy principles.

While our review of the district court's application

and interpretation of the Sentencing Guidelines is plenary,

Mart nez-Mart nez, 69 F.3d at 1224, "[w]e have repeatedly stated

in the sentencing context, as well as in other areas, that issues

not presented to the district court will not be addressed for the

first time on appeal." United States v. Haggert, 980 F.2d 8, 10

(1st Cir. 1992). We have also stated that "[a]rguments not

raised below will be entertained on appeal only in 'horrendous

cases where a gross miscarriage of justice would occur' and, in

addition, where the newly asserted ground 'is so compelling as

virtually to insure appellant's success.'" Id. (quoting Johnston

v. Holiday Inns, 595 F.2d 890, 894 (1st Cir. 1979)). Here, these

straightforward rules leave Appellant's sails flapping idly in

the wind.

Although "a defendant's unconditional guilty plea does

not automatically waive the right to appeal matters incident to

sentencing as opposed to guilt," United States v. Cordero, 42

F.3d 697, 699 (1st Cir. 1994), we nonetheless find Appellant's

multiplicity argument waived. Even though she only raises this

argument as to her sentencing, we find controlling the fact that

Appellant had ample opportunity to challenge the sentence imposed

and raise her multiplicity argument as to sentencing before the

district court.

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The record before us clearly shows that Appellant never

objected on grounds of multiplicity or raised this argument

during the change of plea hearing, in her pre-hearing sentence

memorandum, or during the sentencing hearing. The PSR calculated

Appellant's offense level to be twenty-one. Appellant did not

file any objections to the PSR. In her pre-sentence memorandum,

Appellant argued on two grounds that the district court depart

from the applicable guideline sentencing range, but neither of

them concerned the multiplicity of the counts. Indeed, besides

supporting a finding of Appellant's failure to object, the record

shows that the district court specifically drew Appellant's

attention to the government's evidence regarding the counts

charged, pointed out the portion of the agreement identifying the

maximum penalties to which defendant could be subject on each

count, and notified Appellant of the possibility of the

imposition of restitution.

Appellant insists, however, that she did not waive her

multiplicity challenge, arguing that it was preserved for appeal

because she challenged the original indictment on multiplicity

grounds. Appellant relies on two cases, United States v.

Molinaro, 11 F.3d 853, 858 n.9 (9th Cir. 1993), cert. denied, 115

S. Ct. 668 (1994), and United States v. Fuesting, 845 F.2d 664

(7th Cir. 1988), for the proposition that she was not required to

challenge the superseding indictment after her motion to dismiss

the original indictment was denied. We need not rule on the

merit of Appellant's argument, because what controls is

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Appellant's subsequent act of voluntarily and intelligently

pleading guilty to all seventy-seven counts, coupled with her

failure to make any objection to the superseding indictment, to

the seventy-seven counts, to the offense conduct contained in the

PSR, or to the sentence imposed. Thus, we decline to consider

this argument.2

Appellant also argues that the district court's fraud

loss calculation was erroneous under 2F1.1(b)(1)(K), which

increases the level of punishment according to the amount of

"loss" caused by the fraud. We find, however, that Appellant

waived any claim of error in the court's calculation of loss

under 2F1.1, because no objection was made to the accuracy of

the facts set forth in the offense conduct section of the PSR, to

the amount of loss found by the district court, or to the

district court's guideline calculation. Because Appellant failed

to object to the district court's determination as to the amount

of loss for purposes of 2F1.1, her sentence can be reversed on

this basis only upon a showing of "plain error." See Fed. R.

Crim. P. 52(b).3 To meet the plain error standard there must

2 We note that even if the counts were multiplicitous, remand
for resentencing would not be an appropriate remedy. Appellant
received identical sentences on each of the seventy-seven counts,
and it is undisputed that all of the offense conduct that was the
basis for those sentences would be equally relevant to
resentencing on the remaining counts. Accordingly, remand would
be an empty and needless exercise. See Lilly, 983 F.2d at 305

n.11.

3 This rule provides, in pertinent part, that "[p]lain errors or
defects affecting substantial rights may be noticed although they
were not brought to the attention of the court." Fed. R. Crim.
P. 52(b).

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be: (i) a reviewable error (ii) that is "clear" or "obvious" and

(iii) affects "substantial rights." United States v. Benjamin,

30 F.3d 196, 197 (1st Cir. 1994). We retain the discretion not

to correct an error, however plain, unless the error "'seriously

affect[s] the fairness, integrity or public reputation of

judicial proceedings.'" United States v. Olano, U.S. ,

, 113 S. Ct. 1770, 1779 (1993) (quoting United States v.

Atkinson, 297 U.S. 157, 160 (1936)); see United States v.

Olivier-D az, 13 F.3d 1, 5 (1st Cir. 1993) (quoting same

language).

Far from constituting plain error, the district court's

finding as to the amount of loss attributable to Appellant's

conduct under 2F1.1(b)(1)(K) was fully supported by the record.

The PSR found that the actual loss to the victim bank was

$10,998,072.67 in principal and $7,858,292.69 in interest on

Appellant's loan. At the hearing, the court was therefore

prepared to adopt the PSR's determination that loss for purposes

of 2F1.1 was more than $5,000,000. According to the transcript

of the sentencing hearing, the district court adopted the lower

$2,000,000 to $5,000,000 loss range "in light of the need to

calibrate the loss attributable to [Appellant's] actions more

fairly." Contrary to Appellant's claim, nowhere in our review of

the record do we find any evidence that the district court's

finding was based on "speculation." We note further that

Appellant fully conceded the accuracy of these figures at her

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change of plea hearing and at sentencing. Accordingly, we find

no "clear" or "obvious" error by the district court. Even if we

were to find any, there is no evidence that the alleged error

affected her "substantial rights" or her sentence.

Finally, Appellant argues that the district court erred

in ordering restitution under 18 U.S.C. 3664, which establishes

the factors to be considered by the court in determining an order

of restitution, in excess of $10 million, an amount which

exceeded the loss range used by the district court for purposes

of 2F1.1. We find, however, that Appellant waived her claim

regarding the restitution order because she failed to object to

the PSR's calculation of the victim bank's actual loss as

$10,998,072.67 in principal, to the PSR's determination that

restitution in that amount was appropriate, or to the district

court's order of restitution in that amount. As with the amount

of loss, we can reverse the restitution order only for plain

error. Olivier-D az, 13 F.3d at 5. Appellant conceded below and

does not deny on appeal that the actual amount of loss in

principal to the victim bank was in excess of $10 million.

Accordingly, the district court's order of restitution in that

amount was fully appropriate, and, because it is fully supported

by the record, it does not constitute plain error. We find no

evidence of harm to Appellant's "substantial rights" by the

district court's decision to hold Appellant responsible for the

entire loss resulting from her fraud.

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For the foregoing reasons, the sentence imposed by the

district court is Affirmed.

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