[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
Nos. 97-1681
97-1682
UNITED STATES OF AMERICA,
Appellee,
v.
FRANK RICHARD MERLINO,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Selya and Boudin, Circuit Judges,
and Dowd,* Senior District Judge.
Bjorn Lange, Assistant Federal Defender, for appellant.
Jean B. Weld, Assistant United States Attorney, with whom
Paul M. Gagnon, United States Attorney, was on brief, for the
United States.
November 12, 1997
*Of the Northern District of Ohio, sitting by designation.
Per Curiam. In these sentencing appeals there are
Per Curiam.
two, but they may for practical purposes be treated as a single
unit defendant-appellant Frank Richard Merlino challenges the
district court's use of an upward departure under USSG 4A1.3
(Nov. 1992). By order dated October 9, 1997, we directed the
district court to file a written report amplifying the basis for
the extent of the departure. The court promptly complied. We
then afforded the parties an opportunity for supplemental
briefing.
We have carefully examined the record, including but
not limited to the presentence investigation report, the
transcript of the sentencing hearing, and the district court's
supplementary report of its departure findings. We have also
studied the parties' briefs, entertained oral argument, and
consulted the applicable legal authorities. This review
persuades us beyond serious question that the district court had
both a solid factual basis for concluding that Merlino's criminal
history score substantially underrepresented his criminal past
and a sound legal basis for the ensuing upward departure. See
United States v. Brewster, No. 97-1448, slip op. at 16-18 (1st
Cir. Oct. 2, 1997) (describing requirements for invoking USSG
4A1.3); United States v. Black, 78 F.3d 1, 9-10 (1st Cir. 1996);
United States v. Aymelek, 926 F.2d 64, 73 (1st Cir. 1991)
(similar). Our review also convinces us that the district court
followed the proper protocol and did not abuse its discretion in
determining the extent of the departure. See Brewster, supra,
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slip op. at 20-23 (discussing reasonableness requirement for such
departures); United States v. Hardy, 99 F.3d 1242, 1253 (1st Cir.
1996) (similar).
Because these determinations are heavily influenced by
the particular facts of Merlino's case, we do not think that a
detailed discussion would serve a useful purpose. From the very
inception of the federal sentencing guidelines, we have cautioned
that "[s]entencing appeals prosecuted . . . in the tenuous hope
that lightning may strike ought not to be dignified with exegetic
opinions, intricate factual synthesis, or full-dress explications
of accepted legal principles." United States v. Ruiz-Garcia, 886
F.2d 474, 477 (1st Cir. 1989). We then wrote, in words that have
particular pertinence today: "Assuredly, a criminal defendant
deserves his day in court; but we see no purpose in wasting
overtaxed judicial resources razing castles in the air." Id.
We need go no further. This case which presents no
fairly debatable question is a paradigmatic example of an
instance in which summary disposition is appropriate.
Affirmed. See Loc. R. 27.1.
Affirmed. See Loc. R. 27.1.
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