United States v. Antonakopoulos

United States Court of Appeals
For the First Circuit

No. 03-1384

UNITED STATES OF AMERICA,

Appellee,

v.

STELIOS ANTONAKOPOULOS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.

Victor A. Wild, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, and Cynthia A. Young,
Assistant United States Attorney, were on brief for appellee.

Terrance J. McCarthy for appellant.

February 22, 2005
 LYNCH, Circuit Judge. In this case we set forth our

standards for review of unpreserved claims of sentencing errors in

the aftermath of United States v. Booker, 543 U.S. ___, 125 S. Ct.

738 (2005).

Defendant Stelios Antonakopoulos was convicted by a jury

on August 2, 2002 on one count of bank fraud, under 18 U.S.C.

§§ 1344 and 2, and one count of theft/embezzlement by a bank

officer, under 18 U.S.C. § 656. He defrauded the National Bank of

Greece (NBG) in November 1990, and embezzled funds from the

Mercantile Bank and Trust Company (MBT) in Boston, in July of 1991.

Antonakopoulos had been Branch Manager of the Boston Branch of NBG

from March 1983 to July 20, 1988, at which time he became President

and a member of the Board of Directors of MBT. He was sentenced to

30 months' imprisonment, largely based on the calculation of loss

amount under the Sentencing Guidelines. He was also ordered to pay

$350,000 in restitution.

Antonakopoulos has appealed his sentence, arguing that

the district court erred on both points -- the amount of loss was

lower and so his sentence should be shorter and the restitution was

excessive. On appeal he also argues for the first time that a

jury, not a judge, should have calculated the loss amount. From

this he argues he is entitled to a remand for resentencing under

Booker.

-2-
 The government now concedes that a portion of the

restitution amount ordered was in error under the statutory scheme

in place at the time of the offense. It requests that the

restitution amount be reduced from $350,000 to $100,000. We order

the reduction in the restitution amount accordingly. We reject all

of Antonakopoulos's other claims, including his Booker claim as it

is presented, but leave one door open under Booker.

I.

The district court's calculation of loss attributable to

the defendant and the amount of restitution is described herein.

The details of how the frauds were perpetrated are not described,

other than to say defendant kept helping himself to money to which

he was not entitled in order to buy stocks on the Athens Stock

Exchange (ASE) and then, as the stock prices fell, to pay off

previous loans obtained by fraud. The defendant thought that

Athens would be named to host the 1996 Olympic Games, and that as

a result, the stocks would soar in value. He had hoped to get

himself half a million dollars for his retirement fund. When

Athens was not named as host and the stock prices fell, his fraud

became a sort of Ponzi scheme covering up his victimizing of banks

and bank customers.

The scheme, in count one, was executed in July 1990 when

Antonakopoulos caused the NBG wrongly to advance a loan of $50,000

in the name of Michael Mavris, a relative of Antonakopoulos who

-3-
lived in California. Antonakopoulos actually deposited the loan

proceeds into an account that he had opened in the name of his

brother Nikolaos, and not Michael Mavris. These funds were used to

purchase stocks on the ASE. Neither Nikolaos nor Marvis was aware

of these machinations.

From November 7, 1990 to November 9, 1990, the defendant

caused NBG to wrongly advance $190,000 in the name of his brother,

Nikolaos (count two). Antonakopoulos deposited the funds in the

account he opened in his brother's name. The funds were used in

part to pay off the previous loan then in default. On November 29,

1990, Antonakopoulos created a loan for $170,000 from MBT to the

name of Nondas Lagonakis, using Lagonakis's name without his

permission or knowledge. The proceeds from this loan were used to

pay off an earlier loan the defendant had obtained by fraud and to

continue to buy stocks on the ASE. Although the $170,000 loan was

not charged in the indictment, evidence of it was admitted by the

district court at trial under Fed. R. Evid. 404(b).

In July 1991, in an effort to cover up his previous fraud

by paying off those loans, Antonakopoulos embezzled $100,000 from

the account of an MBT customer, Maurice Frances, without Frances's

knowledge or permission (count three). Antonakopoulos was able to

hide this transaction from Frances because he arranged for

Frances's monthly statements to be held at MBT, and not sent

directly to Frances in Greece.

-4-
 After eight days of trial, the jury convicted the

defendant on counts two and three and deadlocked on count one.

The Pre Sentence Report

Applying the November 1, 1990 Sentencing Guidelines

Manual, the Pre-Sentence Report (PSR) calculated Antonakopoulos's

offense level alternatively under the embezzlement and theft

guideline, U.S.S.G. § 2B1.1, which has a base offense level of 4,

and under the fraud guideline, U.S.S.G. § 2F1.1, which has a base

offense level of 6. Under both, if the loss exceeds a certain

amount, the guidelines required an upward adjustment.1 The PSR

concluded that under either guideline the amount of loss was more

than $350,000, but less than $500,000. In calculating loss, the

PSR found that the convictions on counts two and three meant the

defendant was responsible for the loss resulting from the $190,000

Nikolaos Antonakopoulos loan in November 1990, and the embezzlement

of $100,000 from the account of Maurice Frances in July 1991. This

$290,000 loss figure was coupled with the loss associated with

other fraudulent loans made by the defendant; those loans met the

relevant conduct definition because they were "part of the same

course of conduct and have been proven by a preponderance of the

evidence."2 U.S.S.G. § 1B1.3(a)(1). The PSR added the outstanding

1
Under U.S.S.G. § 2B1.1, the amount was $100; under U.S.S.G.
§ 2F1.1, the amount was $5,000.
2
The loans outlined in the PSR as relevant conduct included a
May 31, 1990 loan to Nikolaos in the amount of $47,000; three loans

-5-
balance of each of those loans and determined that the total loss

was $435,600. This calculation of loss enhanced the defendant's

sentence (a) by 11 levels under U.S.S.G. § 2B1.1 and (b) by 9

levels under U.S.S.G. § 2F1.1. This produced a total offense level

of 15 under either guideline, subject to further enhancements. In

fact the PSR may have understated the loss because it considered

only the outstanding loan balances. Cf. United States v. Walker,

234 F.3d 780 (1st Cir. 2000).

The PSR also recommended enhancing Antonakopoulos's

offense level by a total of six additional levels, including two

levels for more than minimal planning, under U.S.S.G. § 2F1.1(b)(2)

or 2B1.1(b)(5); two levels for obstruction of justice, under

U.S.S.G. § 3C1.1; and two levels for role in the offense, under

U.S.S.G. § 3B1.3. The PSR concluded that Antonakopoulos's total

offense level under either the fraud or embezzlement guideline was

21, his criminal history category was I, and his guideline

sentencing range was 37 to 46 months' imprisonment.

to Nondas Lagonakis in the amounts of $100,000, $170,000, and
$85,000, issued on June 27, 1990, November 29, 1990, and May 10,
1991 respectively; and a loan in the amount of $50,000 to Michael
Mavris. The only relevant conduct considered by the district court
in calculating loss was the $170,000 loan to Lagonakis. While not
prohibited from considering the amount of the Mavris loan, on which
there was acquittal, the court declined to do so in the calculation
of loss.

-6-
Court's Sentencing

The district court calculated the defendant's guideline

range under U.S.S.G. § 2B1.1, finding that the defendant's crimes

were most analogous to embezzlement. As for calculation of loss,

the court considered only what it deemed to be the three

transactions fully developed at trial: the $190,000 loan to

Nikolaos in November of 1990, the $170,000 loan to Lagonakis in

November of 1990,3 and the $100,000 embezzlement from Frances's

account. These produced a total loss of $460,000. With the

exception of the $170,000 loan to Lagonakis, the district court did

not consider the other "relevant conduct" in its calculation. Had

it done so, the loss amount would have been greater and, most

likely, the sentence would have been greater.

The district court rejected the defendant's request to

reduce the amount of loss based on any repayments made by the

defendant on these loans, relying on Walker, 234 F.3d at 783-84.

Based on loss between $350,000 and $500,000, the district court

enhanced the defendant's base offense level from 4 to 15, as the

PSR recommended.

The district court declined the government's request to

enhance the defendant's sentence for obstruction of justice. The

other two enhancements -- for more than minimal planning and for

3
The defendant did not object to the characterization of this
loan as relevant conduct under U.S.S.G. § 1B1.3(a)(1).

-7-
role in the offense -- were not directly addressed by the court at

the sentencing hearing, but they were clearly included in the

court's final determination of the offense level, which was 19.

The court did not grant the defendant's motion for two

downward departures: the first based on post-offense rehabilitation

and the second based on family circumstances. As to the first, the

defendant argued that since his illegal conduct he "has been

unblemished and free from incident," and cited his exemplary work

record, his constant and committed caring for his son, and his

active participation in his church. The district court replied,

"the first one [based on post-offense rehabilitation] I don't think

is a difficult one. Presentence rehabilitation wouldn't even be an

issue in this case had it not taken so long to bring this case to

trial from the time of the original offense." The court's

conclusion on this point was made irrespective of the fact that

this is a rare ground of departure under the guidelines.4

Although not presented to us as part of the defendant's

Booker argument, our own review of the record shows that the

4
The court continued by stating:

But putting that observation aside, I think United States
v. Craven [239 F.3d 91 (1st Cir. 2001)] more or less
rules out a departure on that ground in this case. . . .
[T]his is a hen's teeth rare departure and . . .
generally . . . the Court['s consideration] should be
directed to . . . whether rehabilitation began pre arrest
or post arrest. Where it is post arrest it would be [a]
hen's teeth rare circumstance, the award of a departure
on that ground.

-8-
defendant also asked for a downward departure based on family

circumstances under U.S.S.G. § 5K2.0 -- he argued that he was an

"irreplaceable" care taker for his adult son who suffered serious

and permanent brain injuries as the result of a 1993 automobile

accident. The court considered and rejected the request, stating:

What is difficult about this case is obviously
the situation with the defendant's son, which
anyone would have a compassionate reaction to.
And I don't understand the government not to
have that reaction.
I am however persuaded, by Mr. Wild's
memorandum that there are adequate alternative
means of care. Therefore, I do not believe
that the very high standard established by
[United States v. Pereira, 272 F.3d 76 (1st
Cir. 2001)] permits a departure for that
ground in this case either.
I do think the situation of the son is an
adequate ground actually to impose a sentence
at the minimum that the guideline range
otherwise calls for, which by my calculation I
believe to be 30 to 37 months.

The court correctly determined that the appropriate

offense level was 19, with a criminal history category of I,

resulting in a guideline range of 30 to 37 months. The court

sentenced the defendant to 30 months' imprisonment, the bottom end

of the range.

In an entirely different calculation, one which does not

affect the defendant's sentence of imprisonment, the district court

ordered restitution in the amount of $165,000 to be paid to MBT and

$185,000 to be paid to Lagonakis as mandated by U.S.S.G. § 5E1.1.

-9-
 II.

Effect Of Unpreserved Booker Error on Sentences

Oral argument in this case was heard on February 8, 2005

after the Supreme Court decided United States v. Booker, 543 U.S.

___, 125 S. Ct. 738 (2005). We address for the first time this

circuit's standards for unpreserved claims of Booker error in cases

on direct appeal.5

To summarize our position at the outset, we intend to

apply, in accordance with Justice Breyer's admonition, conventional

plain-error doctrine where a Booker error exists but has not been

preserved. See id. at 769; United States v. Olano, 507 U.S. 725,

731-32 (1993). The Booker error is that the defendant's Guidelines

sentence was imposed under a mandatory system. The error is not

that a judge (by a preponderance of the evidence) determined facts

under the Guidelines which increased a sentence beyond that

authorized by the jury verdict or an admission by the defendant;

the error is only that the judge did so in a mandatory Guidelines

system. A mandatory minimum sentence imposed as required by a

statute based on facts found by a jury or admitted by a defendant

is not a candidate for Booker error. The first two Olano

requirements –- that an error exists and that it is plain at the

time of appeal –- are satisfied whenever the district court treated

5
This opinion is, of course, without prejudice to petitions
for rehearing and rehearing en banc.

-10-
the Guidelines as mandatory at the time of sentencing. But to meet

the other two requirements –- that this error affected defendant's

substantial rights and would impair confidence in the justice of

the proceedings –- we think that ordinarily the defendant must

point to circumstances creating a reasonable probability that the

district court would impose a different sentence more favorable to

the defendant under the new "advisory Guidelines" Booker regime.

We follow the more flexible standard for plain error articulated in

United States v. Dominguez Benitez, 542 U.S. ___, 124 S. Ct. 2333

(2004). We engage in case by case review and we reject certain

automatic reversal rules.

We explain our position, starting by describing what we

regard as the Booker error, and what is an "unpreserved" Booker

error, and then address in turn the content of plain-error review

in a Booker situation, the standard to be used at the third and

fourth prongs, and our rejection of automatic reversal rules.

A.

Booker reaffirmed the principle of Apprendi v. New

Jersey, 530 U.S. 466 (2000), that "[a]ny fact (other than a prior

conviction) which is necessary to support a sentence exceeding the

maximum authorized by the facts established by a plea of guilty or

a jury verdict must be admitted by the defendant or proved to a

jury beyond a reasonable doubt," but did so only insofar as the

sentence resulted from a mandatory system imposing binding

-11-
requirements on sentencing judges. Booker, 125 S. Ct. at 756.

Justice Stevens' opinion for the Court stressed that it was the

mandatory nature of the Guidelines which raised constitutional

concerns:

If the Guidelines as currently written could
be read as merely advisory provisions that
recommended, rather than required, the
selection of particular sentences in response
to differing sets of facts, their use would
not implicate the Sixth Amendment. . . .
The Guidelines as written, however, are not
advisory; they are mandatory and binding on
all judges.

Id. at 750. And Justice Breyer's opinion stated:

[W]ithout this provision--namely the provision
that makes the relevant sentencing rules . . .
mandatory and impose[s] binding requirement on
all sentencing judges--the statute falls
outside the scope of Apprendi's requirement.

Id. at 764 (internal quotation marks omitted).

The Court, as part of its remedy, struck two provisions

from the Sentencing Reform Act. Id. at 765. It excised from the

statute the provision which had mandated that judges sentence

within the Guidelines range. See 18 U.S.C. § 3553(b)(1) ("[T]he

court shall impose a sentence of the kind, and within the range,

referred to in subsection (a)(4) [which in turn referred to the

Guidelines] . . . ."). It also excised the provision which gave

the courts of appeals de novo review over certain aspects of

sentencing. 18 U.S.C. § 3742(e). The remainder of the Sentencing

-12-
Reform Act is intact and the Guidelines must be considered by the

district courts in sentencing. Booker, 125 S. Ct. at 767.

Justice Breyer's opinion in Booker directly addressed the

issue of how the courts of appeals should address unpreserved

claims of Booker error, holding: "[W]e expect reviewing courts to

apply ordinary prudential doctrines, determining, for example,

whether the issue was raised below and whether it fails the 'plain-

error' test." Id. at 769. Under the post-Booker approach,

"district courts, while not bound to apply the Guidelines, must

consult those Guidelines and take them into account when

sentencing," subject to review by the courts of appeals for

"unreasonableness." Id. at 767.

B.

Forfeited Error

We briefly address what a "forfeited" error is as to

Booker, so as to raise plain-error review.

The error under Booker is, as we have said, that the

defendant was sentenced under a mandatory Guidelines system. A

variety of arguments led the Supreme Court to that conclusion,

wending from Apprendi, through Ring v. Arizona, 536 U.S. 584 (2002)

and Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531 (2004), to

Booker. The argument that a Booker error occurred is preserved if

the defendant below argued Apprendi or Blakely error or that the

Guidelines were unconstitutional. This is broader in scope than

-13-
the argument that the mandatory Guidelines system was

unconstitutional. Generally, there is no Booker argument if the

sentence imposed was a statutory mandatory minimum sentence

resulting from facts found by a jury or admitted by the defendant.6

Here the defendant agrees that the Booker issue was not

preserved, so at most he is entitled to plain-error review. The

government, for its part, concedes that the Booker issue was

forfeited and not waived.7 Like many other choices criminal

defendants make, there may be some risks to defendants in seeking

Booker remands.8

Content of Plain-Error Review

Under Olano, for the court of appeals to notice and

correct an error not objected to in the district court, "[t]here

must be an 'error' that is 'plain' and that 'affect[s] substantial

rights.'" Olano, 507 U.S. at 732. If those three factors are all

6
We need not address here substantial assistance departures
below mandatory minimum sentences, 18 U.S.C. § 3553(e), or safety
valve departures, 18 U.S.C. § 3553(f), and what effect if any
Booker had on them. See United States v. Crosby, No. 03-1675, 2005
WL 240916, at *4 n.8 (2d Cir. Feb. 2, 2005).
7
"[F]orfeiture is the failure to make the timely assertion of
a right, waiver is the intentional relinquishment or abandonment of
a known right." Olano, 507 U.S. at 733 (internal quotation marks
and citation omitted).
8
In traditional remands for new trials or for resentencing
made at defendant's behest, a judge may at times impose a higher
sentence under the Guidelines in effect at the time of the original
sentencing. We do not address what constraints may exist on the
resentencing judge.

-14-
met, the court of appeals then has discretion to correct the error

only if it "seriously affects the fairness, integrity or public

reputation of judicial proceedings." Id. at 736 (internal

quotation marks and alteration omitted). Olano also makes it clear

that under plain-error analysis "[i]t is the defendant rather than

the Government who bears the burden of persuasion with respect to

prejudice." Id. at 734.

The first two prongs of the Olano test as to Booker error

are satisfied whenever defendant's Guidelines sentence was imposed

under a mandatory Guidelines system. There was "error" and it was

"plain" at least at the time of appellate consideration. See

Johnson v. United States, 520 U.S. 461, 468 (1997). So far, all

circuits have reached the same conclusion.

The more significant questions arise as to application of

the third and fourth prongs to unpreserved Booker claims. In

Olano, the court gave some definition to the phrase "affecting

substantial rights" in the third prong by requiring a defendant to

make a showing of prejudice. Olano, 507 U.S. at 735. The Olano

court stressed that "[n]ormally . . . the defendant must make a

specific showing of prejudice to satisfy the 'affecting substantial

rights' prong" of the plain-error test. Id.

Choosing Among Third Prong Plain-Error Standards

The Supreme Court has used different formulations,

varying with context, as to the content of the defendant's burden

-15-
to show his "substantial rights" have been affected. Clearly, the

prejudice alleged from the mandatory Guidelines system must relate

to some degree of likelihood of the error having affected his

sentence. The Supreme Court has articulated at least "four

assertedly different standards of probability relating to the

assessment of whether the outcome of trial would have been

different if error had not occurred." Dominguez Benitez, 542 U.S.

___, 124 S. Ct. at 2342 (Scalia, J., concurring) (emphasis in

original). This poses the question of which is the most

appropriate standard to apply to Booker errors.

A Booker error strikes us as qualitatively different from

an inquiry into the likely effect of a trial error on a verdict of

conviction. The different articulated standards for prejudice

which Justice Scalia cited all involve trial error: the question

was what degree of effect was required on the outcome of a verdict

of guilt. See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)

(assessing prejudice standard for overturning conviction based on

trial error on collateral review); Strickland v. Washington, 466

U.S. 668, 694 (1984) (assessing prejudice standard for overturning

conviction based on ineffective assistance of counsel claims);

United States v. Agurs, 427 U.S. 97, 111-13 (1976) (assessing

prejudice standard for overturning convictions based on Brady

violation claims); Chapman v. California, 386 U.S. 18, 24 (1967)

(assessing prejudice standard for overturning conviction on direct

-16-
review for constitutional errors). On trial error claims, because

there is a record of all evidence introduced (or excluded) at

trial, it is often easier to determine whether there was any likely

effect on the verdict of guilt, than it is to predict the effect

here of a possible new and more lenient sentence under the Booker

regime.

In claims of sentencing error in non-capital cases, the

Supreme Court has addressed the question of plain-error review, but

only as to the fourth Olano prong. In United States v. Cotton, 535

U.S. 625, 631-32 (2002), the Court applied plain-error analysis to

an Apprendi error. The Apprendi attack was on an enhanced

statutory maximum9 based on drug quantity which was not specified

in the indictment. Cotton reversed the court of appeals ruling

which had vacated the sentence and remanded for resentencing. Id.

at 634. Cotton did not address whether the defendant's substantial

rights were affected. It skipped to the fourth prong and said the

error "did not seriously affect the fairness, integrity, or public

reputation of judicial proceedings" where the evidence as to

quantity of drugs was overwhelming. Id. at 632-33. Cotton does

not itself address the third prong of the plain-error test.

9
Cotton, however, can also be viewed as closer in category to
claims that due to a trial error the verdict of guilt should be
vacated. It is relatively easy, as in Cotton, to evaluate whether
the presented evidence of drug quantity was overwhelming,
regardless of whether it was for purposes of verdict or sentencing.
In Cotton it was clear no other outcome was possible and so the
fourth prong of Olano could not be met.

-17-
 For Booker purposes, the Supreme Court's most recent

articulation of the third prong of the plain error test, in

Dominguez Benitez, 124 S. Ct. at 2333, strikes us as most apt. The

Court extended, to an unpreserved claim of a Rule 11 violation, the

general tethering of the prejudice requirement to an effect on

outcome. Id. at 2340. The Court adopted a standard that:

[A] defendant who seeks reversal of his
conviction after a guilty plea, on the ground
that the district court committed plain error
under Rule 11, must show a reasonable
probability that, but for the error, he would
not have entered the plea. A defendant must
thus satisfy the judgment of the reviewing
court, informed by the entire record, that the
probability of a different result is
sufficient to undermine confidence in the
outcome of the proceeding.

Id. (internal quotation marks omitted). Dominguez Benitez also

held that "[t]he reasonable-probability standard is not the same

as, and should not be confused with, a requirement that a defendant

prove by a preponderance of the evidence that but for error things

would have been different." Id. at 2340 n.9.

The Court in Dominguez Benitez formulated its standard by

noting the contrast between the Rule 11 problem it addressed and

the trial error claims presented in Strickland, supra, and Brady v.

Maryland, 373 U.S. 83 (1963). Both Strickland and Brady claims,

inter alia, may be presented in post-conviction proceedings, at

which evidence may be taken. By contrast, the defendant presenting

a Rule 11 claim will rarely, if ever, be able to obtain relief in

-18-
post-conviction proceedings. Dominguez Benitez, 124 S. Ct. at 2340

n.9. Without today deciding the issue of whether Booker may be

raised in post-conviction relief, the Dominguez Benitez reasoning

seems more apt here.

C.

Rejection of Automatic Plain-Error Rules

We need not discuss the exact relationship between the

"reasonable probability of a different outcome" third prong

standard of Dominguez Benitez and Olano's fourth prong. But we

reject two per se arguments, whether made under the third or fourth

prong. We reject a per se remand rule solely on the basis that a

defendant's sentence was enhanced by judicial fact finding beyond

that authorized by facts found by the jury or admitted by the

defendant (a Blakely error), and we reject a per se remand rule

solely on the basis that the Guidelines are no longer mandatory.

Blakely Error

For several reasons, we reject the view that a Blakely

error automatically requires a Booker remand. This is a necessary

consequence of our view of the nature of the Booker error. At

least two circuits view the nature of the error as we do. See

United States v. Rodriguez, No. 04-12676, 2005 WL 272952 (11th Cir.

Feb. 4, 2005); United States v. Crosby, No. 03-1675, 2005 WL 240916

(2d Cir. Feb. 2, 2005). As Judge Newman said in Crosby: "As a

result of the Remedy Opinion in Booker/Fanfan, . . . the maximum

-19-
lawful sentence is the statutory maximum sentence, and because

judicial fact-finding under advisory guidelines cannot increase

that lawful maximum, judicial fact-finding now encounters no Sixth

Amendment difficulties." 2005 WL 240416, at *3 n.6.

It may be that other circuits view this differently.

Earlier, of course, under Blakely, the possible error was thought

to be that the judge, based on facts found by him, had increased

the sentence beyond that authorized solely by the facts found by

the jury or admitted by the defendant. Some circuits may have

found such situations sufficient unto themselves to constitute

Booker error and to warrant remand under Booker. See, e.g., United

States v. Milan, Nos. 02-6245/6302, 2005 WL 309934 (6th Cir. Feb.

10, 2005); United States v. Oliver, No. 03-2126, 2005 WL 233779

(6th Cir. Feb. 2, 2005); United States v. Hughes, No. 03-4172, 2005

WL 147059 (4th Cir. Jan 24, 2005).10 That situation standing alone

-- that the judge found additional facts which raised the sentence

authorized solely by the jury verdict or guilty plea -- in our view

10
An argument has been made in United States v. Milan, Nos.
02-6245/6302, 2005 WL 309934, at *7 (6th Cir. Feb. 10, 2005), that
because the Supreme Court "remanded Booker's case for
resentencing," the Court must have decided "that the error in his
case was reversible, i.e., was not harmless and affected Booker's
substantial rights." Id. We do not think such an inference can be
made from Booker's remand. There were only two questions on which
the Supreme Court granted certiorari, and neither dealt with the
circuit court's decision to remand the case for resentencing.
Booker, 125 S. Ct. at 747 n.1. Further, the circuit court had
remanded, without discussing plain-error review, because the
government had waived any such argument. Booker v. United States,
375 F.3d 508, 515 (7th Cir. 2004).

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is insufficient to meet the third and fourth Olano prongs on plain-

error review. We explain why.

It is far from necessarily true, as a per se remand rule

assumes, that a judge who found the facts underlying an enhanced

sentence would have reached a different result under a post-Booker

regime. In these situations a judge's factual findings, unless

they were found to be clearly erroneous, are far more likely than

not to be the same if the case were remanded. The fact that the

judge initially did the fact finding on a certain factor is surely

a different matter than what the judge would have done with that

factor if the Guidelines were not mandatory. The use of judicial

fact finding, then, ordinarily cannot alone meet the "reasonable

probability" standard of the third Olano prong.

A second reason for rejecting such an automatic plain-

error rule in Blakely situations is that there is nothing

inherently unreliable about judicial fact finding that raised a

sentence beyond that authorized solely by the jury verdict or

guilty plea. Under Booker, a judge may do such fact finding in

determining the Guidelines range. Nothing in Booker requires

submission of such facts to a jury so long as the Guidelines are

not mandatory. That judicial fact finding was used certainly, in

-21-
our view, cannot itself mean that the fourth prong of Olano is met;

more is needed.11

Further, to find plain error automatically in Blakely

situations would be inconsistent with pre-Booker law. Even before

Booker, and after Blakely, this circuit had rejected any such

automatic rule of reversal and remand for resentencing when a judge

engaged in fact finding that raised the defendant's sentence beyond

that authorized by the jury verdict or guilty plea. See United

States v. Morgan, 384 F.3d 1 (1st Cir. 2004). So did the Supreme

Court in Cotton, 535 U.S. at 634.

We also do not adopt the contrary per se rule that a

Blakely type situation cannot meet the standard of a reasonable

probability of a different sentence. The burden is on the

defendant to convince us on specific facts.

Non-Mandatory Guidelines

The plain-error standard is not met by a simple assertion

that the defendant was sentenced under a mandatory Guidelines

11
Nor is this structural error. In certain structural error
cases, those which "undermin[e] the fairness of a criminal
proceeding as a whole," errors can be corrected regardless of an
individualized showing of prejudice to the defendant. Dominguez
Benitez, 124 S. Ct. at 2339; Olano, 507 U.S. at 735; see Arizona v.
Fulminante, 499 U.S. 279, 309-310 (1991) (providing examples of
structural error). Because sentencing under a mandatory system is
not an error that "undermines the fairness of a criminal proceeding
as a whole," as we discuss above, a Booker type error is not a
structural error; the defendant must convince us of prejudice.
Indeed, had the majority in Booker thought there was structural
error, it would have said so.

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system, and so is entitled to remand. In our view, one cannot

possibly say that all sentences imposed before Booker threatened

the fairness, integrity, or public reputation of judicial

proceedings, or undermined our confidence in the outcome of the

sentence, simply because the Guidelines were mandatory. As to the

"reasonable probability" test under the third prong, it is not met

by the mere assertion that the court might have given the defendant

a more favorable sentence.

D.

Booker Remand Considerations

It would be a fool's errand for us to try now to describe

all situations in which remand may be warranted under plain-error

review. We offer a few observations.

First, where in a pre-Booker world we would have remanded

for procedural12 or substantive error in the application of the

Guidelines, that would normally lead to a Booker remand. Where, as

in pre-Booker cases, we engage in plain-error review and find it

clear that the district court has made a sentencing error under the

Guidelines, the correction of which ordinarily would have led to a

lower sentence in the pre-Booker era, there is a strong argument

for remand. See, e.g., United States v. Sedoma, 332 F.3d 20, 29

12
The Ninth Circuit's decision in Ameline may fall into this
category because the sentencing court violated pre-Booker circuit
precedent, but we are uncertain. See United States v. Ameline, No.
02-30326, 2005 WL 350811, at *7-*8 (9th Cir. Feb. 10, 2005).

-23-
(1st Cir. 2003) (resentencing granted in plain-error review of a

grouping error which led the district court to increase defendant's

sentence by 58 months). This means that in some cases we will

continue to review pre-Booker type claims of Guideline error where

it is plausible that the error committed affected the sentence.

Accord United States v. Rodriguez, No. 04-12676, 2005 WL 272952

(11th Cir. Feb. 4, 2005). There may of course be other errors,

whether based on sentencing or not, that could also lead to a

remand, such as when the government is in breach of a plea

agreement.

Second, as Crosby points out, there is also the category

of claims about either aggravating or mitigating circumstances that

existed at the time of the original sentence but which were not

available for consideration under the mandatory Guidelines regime.

Crosby, 2005 WL 240916, at *11.

Finally, history shows that the mandatory nature of the

Guidelines has produced particular results which led trial judges

to express that the sentences imposed were unjust, grossly unfair,

or disproportionate to the crime committed, and the judges would

otherwise have sentenced differently. See, e.g., United States v.

Jackson, 30 F.3d 199, 203 (1st Cir. 1994); United States v.

Studley, 907 F.2d 254, 259-60 (1st Cir. 1990); see also United

States v. You; 382 F.3d 958, 967 (9th Cir. 2004); United States v.

Thompson, 367 F.3d 1045, 1046 (8th Cir. 2004); United States v.

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Thames, 214 F.3d 608, 611 (5th Cir. 2000); United States v.

Vizcaino, 202 F.3d 345, 347 (D.C. Cir. 2000). Where the district

judge has said as much about a Guidelines sentence, that is a

powerful argument for remand. If the resulting sentence after

remand is itself unreasonable, the government can appeal. By like

token, if the district judge has said at sentencing that he would

have reached the same result regardless of the mandatory nature of

the Guidelines, that is a powerful argument against remand.

A district judge's expression that he would have

sentenced a defendant more favorably if the Guidelines were not

mandatory is certainly not the only vehicle for a remand. The

existence of prejudice should not turn on how vocal the district

judge was. Even in cases where the judge was silent, there may be

cases in which the appellate panel is convinced by the defendant

based on the facts of the case that the sentence would, with

reasonable probability, have been different such that both the

third and fourth prongs have been met, and remand will be

warranted.

Our sister circuits have taken a variety of positions on

plain error review of Booker errors, some of which differ from

ours. Compare United States v. Crosby, No. 03-1675, 2005 WL 240916

(2d Cir. Feb. 2, 2005) (remanding all cases of claimed Booker error

to district court to decide whether to resentence and to do so if

they wish); with United States v. Ameline, No. 02-30326, 2005 WL

-25-
350811 (9th Cir. Feb. 10, 2005) (finding plain error when judicial

fact finding raised sentence above that authorized solely by jury

verdict); United States v. Oliver, No. 03-2126, 2005 WL 233779 (6th

Cir. Feb. 2, 2005) (same); United States v. Hughes, No. 03-4172,

2005 WL 147059 (4th Cir. Jan 24, 2005) (same); and with United

States v. Bruce, No. 03-3110, 2005 WL 241254 (6th Cir. Feb. 3,

2005) (declining to exercise discretion to notice claim of plain

error on fourth prong of Olano, despite judicial fact finding that

raised defendant's sentence above that authorized solely by facts

admitted in guilty plea, because evidentiary support for district

court's upward departure was sufficiently "overwhelming"); and with

United States v. Rodriguez, No. 04-12676, 2005 WL 272952 (11th Cir.

Feb. 4, 2005) (finding no plain error under third prong of Olano

when defendant merely claimed that under advisory system, sentence

might have been lower if enhancement issue had gone to jury).

There is no reason for us to comment further or to

attempt to distinguish those cases. The situation created by

Booker, although subject to familiar rules as to preserved and

unpreserved claims, is an unusual one and transitory in nature.

There may well be a range of entirely reasonable choices as to

plain error review, which vary with the circumstances of the

circuit.

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 III.

Application of These Standards to Antonakopoulos

Antonakopoulos's primary argument is a Blakely type

argument that Booker automatically requires resentencing because

the court, rather than the jury, made the following findings to

enhance his sentence beyond that authorized by the jury verdict

alone: (1) the amount of loss, (2) his role in the offense, and

(3) the offense involved more than minimal planning. We have just

rejected the premise of this argument.

If the district court had committed clear error in those

three findings on which enhancements were based, that would provide

a basis for a remand. The court did not err. We take

Antonakopoulos to argue that independent of the order of

restitution, the district court erred in the calculation as to the

amount of loss for purposes of determining the applicable

Guidelines range. Factual findings as to the amount of loss by the

district court are reviewed for clear error; the appropriate method

for calculating loss amounts under U.S.S.G. § 2B1.1 is a question

of law and is reviewed de novo. United States v. Walker, 234 F.3d

780, 783 (1st Cir. 2000). Antonakopoulos preserved this issue.

The defendant argues that the district court erred by

failing (a) to credit the repayments that he claims were made to

MBT and other victims and (b) to recognize that the loss

attributable to the Lagonakis loan was actually attributable to the

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"vagaries of the stock market, not any actions of Mr.

Antonakopoulos." These arguments are without merit. Nor is there

any merit to a suggestion that there was no factual basis for his

enhancements based on role in the offense and more than minimal

planning.

At sentencing, the district court calculated the loss by

adding the two loans established at trial -- the $190,000 loan in

the name of Nicklas Antonakopoulos and the $170,000 loan in the

name of Nondas Lagonakis -- and the $100,000 embezzled from the MBT

account of Maurice Frances, which MBT ultimately paid to Maurice

Frances. The defendant does not challenge the amount of the loans

and the use of U.S.S.G. § 2B1.1. His argument is that the district

court did not consider the alleged repayments he made. The court

would have erred if it had done what Antonakopoulos requested. See

Walker, 234 F.3d at 783 (In sentencing under U.S.S.G. § 2B1.1, the

"sentencing court properly calculated loss by summing the amounts

of the [transactions] without regard for any repayments made [by

the defendant] at other times."). The loss calculation is

determined by the risk to which the bank was exposed at the time of

the embezzlement without consideration of any intention or even the

actual act of repayment of the funds. Id. at 783-84.

The district court gave the defendant several breaks at

sentencing. It chose not to consider, although it easily could

have, loss figures from relevant conduct which would have produced

-28-
a sentencing range of 33 to 41 months. Instead, the court adhered

to a lower loss figure, which gave a range of 30 to 37 months, and

then gave the lowest point on that range -- a sentence of 30

months.

There is another type of Booker argument available but

which Antonakopoulos has not made: that there is a reasonable

probability that the district court, freed of mandatory guidelines,

would have given him a lower sentence. Because this case

establishes the standard for such a claim, we think it fairer to

give Antonakopoulos and his counsel time to consider whether he

wishes to advance the argument. If so, the prosecution must have

a chance to respond.

At sentencing the defendant sought a downward departure

based in part on the fact that his son was brain damaged and he had

been his son's caretaker. The court determined that others can

also provide care, and indeed have done so during his imprisonment.

The main grounds on which he sought remand, under Blakely, are now

gone. This ground, that of family circumstances, is still open and

is not frivolous.

If defendant wishes to pursue this remaining type of

Booker resentencing claim, he should advise this court and submit

a supplemental brief within ten days, in compliance with our rules,

not to exceed 15 pages. The brief should address the standards

articulated in the opinion. The government shall have five days to

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file a response of no greater length. If the defendant does not

make such a supplemental filing within the time allotted, he will

be deemed to have waived this option and judgment shall enter

accordingly.

IV.

Restitution Order

At the time of the conduct in question, U.S.S.G.

§ 5E1.1(a)(1) stated that the court "shall . . . [e]nter a

restitution order if such order is authorized under 18 U.S.C.

§§ 3663-3664." U.S.S.G. § 5E1.1(a)(1) (emphasis added). 18 U.S.C.

§ 3663 states: "The court, when sentencing a defendant convicted of

an offense under this title . . . may order, in addition to . . .

any other penalty authorized by law, that the defendant make

restitution to any victim of such offense . . . ." 18 U.S.C.

§ 3663. An order of restitution is a separate calculation from the

calculation of loss, and the amount of restitution has no bearing

on the defendant's Guidelines range or term of imprisonment.13

We review restitution orders for abuse of discretion and

the subsidiary findings of fact for clear error. United States v.

Cutter, 313 F.3d 1, 6 (1st Cir. 2002). If the appellant's

challenge is based on a legal conclusion, we review that conclusion

de novo. Id. Where the defendant has failed to object below, as

13
The defendant presents no serious claim of Booker error as
to restitution.

-30-
is the case here, we review only for plain error. United States v.

Theodore, 354 F.3d 1, 8 (1st Cir. 2003).

The district court awarded restitution in the amount of

$350,000. The restitution amount included $165,000 to MBT and

$185,000 to Nondas Lagonakis. The government concedes error as to

$250,000, and argues that the appropriate amount of restitution is

$100,000 to MBT.14 This amount represents the money MBT paid to

Frances to replace the $100,000 Antonakopoulos embezzled from

Frances's account and on which Antonakopoulos was convicted under

count three.

Not content with the government's concession, the

defendant argues that this reduced amount of $100,000 is plain

error because the court, in ordering any restitution to MBT for the

money embezzled from the account of Maurice Frances, failed to take

into account the payments previously made to Frances by the

defendant. A simple principle disposes of the argument. The loss

was to MBT; any repayment Antonakopoulos relies on was to Frances,

not MBT. Defendant's complicated machinations in the fraud have

come back to bite him. There was no error, much less plain error.

14
The calculation of restitution is governed by statute, and
the government concedes that at the time the charged conduct
occurred, there was no statutory basis upon which the district
court could have granted restitution to MBT for the additional
$65,000 or to Lagonakis for $185,000. We accept the government's
concession without addressing the merits of its argument.

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 V.

We affirm the conviction and reject certain challenges to

the sentence, as made. We order a reduction in the amount of

restitution to $100,000 to MBT. We retain jurisdiction for such

further proceedings as are described herein.

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