United States v. Dirosa

United States Court of Appeals
For the First Circuit

No. 13-1643

UNITED STATES,

Appellee,

v.

PETER DIROSA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Lynch, Chief Judge,
Howard and Thompson, Circuit Judges.

Alan D. Campbell for appellant.
Margaret D. McGaughey, Assistant United States Attorney, with
whom Thomas E. Delahanty II, United States Attorney, was on brief,
for appellee.

August 4, 2014
 THOMPSON, Circuit Judge. Peter DiRosa was sentenced to

57 months in prison after a jury found him guilty of one count of

wire fraud. The charge resulted from a transaction in which DiRosa

and an associate, Thomas Renison, convinced then-75-year-old Frank

Jablonski to invest $600,000 in an elaborate scheme surrounding a

real estate development project in Polgardi, Hungary. On appeal,

DiRosa challenges the denial of his sufficiency-of-the-evidence-

based motion for acquittal, the admission of certain testimony, and

his sentence. After careful consideration, we wholly affirm.

BACKGROUND

A. The Dynamic Duo

Ironically DiRosa and Renison met some eleven years ago

while both were involved in charitable work for the same parish.

Renison was a 25-year veteran in the insurance and finance

businesses. DiRosa, according to his introduction, was a project

developer in eastern Europe. DiRosa said his current venture

involved building a resort in Polgardi, Hungary showcasing the

country's natural hot springs, a popular tourist attraction. The

resort, he boasted, would also have several golf courses, and

eventually a casino, for guests to enjoy.

DiRosa told Renison that he had already met with several

high-ranking Hungarian officials who were on board with the

project, as well as an architect and advertising executive from New

York. He also represented that the project was very close to being

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funded and the land very close to being secured. DiRosa asked

Renison to be a "type of [] partner in the deal" and be primarily

responsible for overseeing the administration of benefits for the

resort's estimated two to three thousand potential employees.

Additionally, Renison, a self-proclaimed "avid golfer," would be

given the opportunity to work with a golf majors champion to create

and manage the resort's courses, notwithstanding his lack of

experience in golf course management.

DiRosa and Renison traveled to Hungary on a number of

occasions - mostly on Renison's dime - to check in on the project's

progress. While on these trips, the pair often met with, among

others, the attorney for the project, Ildiko Sardy, and Sardy's

husband, Janos Danyi, who was the project's accountant.

B. Jablonski's "Investment"

When all the shenanigans with Jablonski began, he was a

75-year-old retiree who had been living with his wife, Marguerite,

in Kennebunk, Maine. Prior to retiring, Jablonski made a living as

a management consultant. After his employer discontinued its

management of Jablonski's 401(k) account, Jablonski found himself

in need of financial planning services. At that time, Jablonski

had been working with an insurance broker to obtain medical

insurance for himself and his wife. The broker referred him to

Renison, who Jablonski ultimately hired to invest his retirement

funds into a variable annuity.

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In May 2008, DiRosa told Renison that his project needed an

investor - one who was willing to provide $600,000 to be placed in

an escrow account and used as collateral to purchase farmland in

Hungary that would be converted into commercial property. Renison

immediately thought of Jablonski as the ideal candidate for the

investment.

Renison contacted Jablonski about the investment

opportunity and, over the course of several conversations (both on

the telephone and at Jablonski's home), he promoted the duo's idea.

While Renison did most of the talking during the "[t]wo or three"

meetings that were conducted over the course of a week or two,

DiRosa was always present. Jablonski was told that he would

receive a $400,000 profit for his investment, would be reimbursed

for the $52,000 surrender charge he would incur for withdrawing the

money prematurely from his retirement account, would earn interest

on the money while it sat in the escrow account, and would receive

$6,500 per month to replace the income he would lose from taking

the money out of the annuity. In addition, he was assured that his

money would never leave the escrow account. That entire process,

Renison declared, including recoupment of all profits and fees,

would take six months at the most, and in actuality he expected it

would wrap up much sooner. As Renison delivered his spiel, DiRosa

never corrected, clarified, or contradicted any of the assertions

Renison made.

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 Jablonski was also given written materials compiled by

DiRosa that purported to describe the project in more detail,

including a marketing brochure about the resort and an accounting

report. The brochure contained information about the resort's key

management and its advisory board, boasting a membership cohort of

prominent public figures such as a U.S. Congressman and a

professional golfer (the same one with whom Renison was supposed to

manage the resort's golf course). The accounting report represented

that the project was slated to make a $29 million dollar profit in

its first year. What Jablonski was not told, however, was that this

advisory board was not only nonoperational, it was nonexistent, and

that the $400,000 profit he was promised was contingent on the

project being fully funded, which, of course, at the time it was

not.

Convinced he would be foolish to pass on such a promising

investment, on May 27, 2008, Jablonski signed a loan document

drafted by DiRosa reflecting the terms of their agreement. Because

of his prior relationship with Jablonski, Renison, rather than

DiRosa, signed the agreement. The next day, the pair accompanied

Jablonski to a local bank to facilitate the wiring of the funds

overseas. DiRosa had a heavy hand in this process, assisting the

bank tellers and Jablonski throughout. Bank records indicate that

on June 3, 2008, $600,000 was transferred from Jablonski's account

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to an account in Hungary held in the name of Sardy & Associates

Attorneys.

C. Have Funds, Will Travel

Following the June 3rd transfer, Jablonski's $600,000

went on a whirlwind world tour. Between June and September 2008,

the funds were transferred back and forth numerous times between

several Hungarian accounts held by Sardy. Additionally, during that

time and over the course of several transactions, approximately

$100,000 in cash was withdrawn from one of Sardy's accounts. In

September 2008, approximately $518,000 was transferred via two

separate transactions from Sardy's account into an Austrian bank

account in the name of Danyi (remember, he is Sardy's husband).

Eventually, $225,000 of that money came back stateside and was

transferred from Danyi's account to an account held in the name of

DiRosa's wife, Eileen.

A few months later, Renison and DiRosa met up and Renison

confided that things for him were "kind of financially tight."

DiRosa indicated that he could loan Renison some money, and shortly

thereafter, Renison had two checks in hand, one in the amount of

$100,000 and the other in the amount of $5,000. Both checks were

written out of Eileen DiRosa's account, which the $225,000 had gone

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into earlier. When Renison asked DiRosa where he got the money

from, DiRosa said a friend named "Ernie" had lent it to him.1

Unfortunately for Jablonski, the funds traveled

everywhere except back to him. Six months after the transfer - the

maximum amount of time Renison had said it would take Jablonski to

recoup his investment - Jablonski had been repaid a mere $60,000,

which he assumed to be the ten percent interest his investment had

yielded while in the escrow account. Jablonski was promised an

additional $100,000 for the delay, but alas never saw a dime more.

Throwing salt on the wound, Jablonski belatedly found out he was

going to be hit with a hefty tax bill; because he pulled the funds

from his retirement account, he was taxed based on an annual income

of $700,000 instead of his usual $100,000.

Finally suspecting something was awry, Jablonski and his

wife filed a civil suit against DiRosa. Their attorney communicated

with both DiRosa and Sardy via email on several occasions, but

attempts to secure an accurate status on the funds owed to Jablonski

- much less the money itself - remained fruitless.

Perhaps feeling he had reached a dead end, the

Jablonskis' attorney contacted the Federal Bureau of Investigation.

After the FBI interviewed the Jablonskis, DiRosa, and Renison, among

1
DiRosa later admitted in his testimony that he lied to
Renison about where the money came from, and that he had actually
received it from a line of credit on the property in Hungary that
he asked Sardy to arrange.

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others, on May 24, 2011, the government filed a criminal complaint

against both DiRosa and Renison in the United States District Court

for the District of Maine. The complaint alleged that Renison and

DiRosa conspired to commit wire fraud and committed wire fraud in

violation of 18 U.S.C. § 1343. A grand jury indicted DiRosa on the

wire fraud charge only, and the complaint against Renison was

dismissed with the government's consent. DiRosa pleaded not guilty.

D. DiRosa's Trial and Sentencing

A three-day jury trial began on January 28, 2013. During

trial, the jury heard testimony from, among others,2 DiRosa,

Jablonski, and Renison (he was testifying under a grant of

immunity). The district court twice denied DiRosa's oral motion for

judgment of acquittal and the jury found him guilty.

DiRosa's sentencing hearing took place a few months

later. The U.S. Sentencing Guidelines (the "Guidelines") called for

a sentence between 46 and 57 months, however, the district court

judge increased the range to 57 to 71 months, finding that false

(and perhaps perjurious) statements made by DiRosa throughout the

proceedings warranted an obstruction of justice enhancement. At the

sentencing hearing, the district court heard statements from

supporters on both sides. On one side, Jablonski's son described

the toll the fraud took on his parents. On the other, DiRosa's wife

2
We will address the testimony of two such individuals
shortly.

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and several of his friends vouched for his good character and

commitment to his family. They also noted his years of public

service, which included a 14-year stint on the board of directors

for the town of Manchester, Connecticut, as well as his serving as

the town's deputy mayor and mayor.

The government requested the full 71 months because of

the nature and severity of DiRosa's lies, Jablonski's substantial

financial loss, and DiRosa's apparent lack of remorse for his

actions. DiRosa requested a dramatic downward variance - a 30-day

prison term followed by 14 months of home confinement - based

primarily on his age, prior public service, family ties, and the

need to care for his ill wife, her mother, and his aging father.

The district court sentenced DiRosa to 57 months in

prison - the very lower end of the enhanced guideline range - to be

followed by three years of supervised release. The district court

described DiRosa's conduct as "a most serious offense" and also

suggested that DiRosa felt no remorse for his actions. Indeed, the

district court thought DiRosa was "still taking that Kool-Aid of

this Polgardi castle." DiRosa timely appealed. He raises several

issues for our consideration.

DISCUSSION

A. Motion for Acquittal

DiRosa first argues that the district court should have

granted his motion for acquittal because the government failed to

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prove that he made any false statements to Jablonski, an essential

element of wire fraud. We review the district court's denial of a

motion for acquittal de novo, and must "decide whether, after

assaying all evidence in the light most amiable to the government,

and taking all reasonable inferences in its favor, a rational

factfinder could find, beyond a reasonable doubt, that the

prosecution successfully proved the essential elements of the

crime." United States v. Hatch, 434 F.3d 1, 4 (1st Cir. 2006). We

"need not believe that no verdict other than a guilty verdict could

sensibly be reached, but must only satisfy [ourselves] that the

guilty verdict finds support in a plausible rendition of the

record." Id. We have described the barriers to challenging a

motion for acquittal as "daunting." Id.

"[T]he elements of wire fraud are a 'scheme to defraud,'

the accused's 'knowing and willful participation in the scheme with

the intent to defraud,' and the use of interstate or foreign 'wire

communications' to further that scheme."3 United States v. Denson

689 F.3d 21, 24 (1st Cir. 2012), cert. denied, 133 S. Ct. 996

(2013)(quoting United States v. Cassiere, 4 F.3d 1006, 1011 (1st

Cir. 1993)). The misrepresentations made with the intent to defraud

must be material, which we have described as having "a natural

tendency to influence, or is capable of influencing, the decision"

3
There is no dispute that foreign wiring was used to wire
Jablonski's money from his bank in Maine to Sardy's bank in
Hungary.

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of the person or persons it is addressed to. Méndez Internet Mgmt.

Servs., Inc. v. Banco Santander de Puerto Rico, 621 F.3d 10, 15 (1st

Cir. 2010).

DiRosa claims that "there was no evidence that he made a

material, false representation that caused Jablonski to wire funds

to Hungary." That is, DiRosa says that Renison did all of the

talking during their meetings, as well as provided Jablonski with

all of the written materials (including the loan document), and that

it was Renison, and not DiRosa, who caused Jablonski to wire the

funds. But this claim is superficial.

In United States v. Woodward, 149 F.3d 46 (1st Cir.

1998), the defendant made an argument much like the one DiRosa makes

here. In that case, the defendant, a Massachusetts state

representative, was convicted of (among other things) wire fraud

based on telephonic communications that were used to book a hotel

room in Florida for a conference, at which the defendant was

planning to "accept[] gratuities . . . with the intent to defraud

the public of its right to his honest services." Id. at 63. The

defendant, himself, did not actually make the call to reserve the

room so he argued that he had not caused the use of interstate

wiring (that being the telephone call) to effectuate the meeting.

Id. at 63-64. We affirmed his conviction and said it was enough

that the defendant could have reasonably foreseen that the

reservation was going to be made for him and that the use of

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interstate wiring (i.e., a telephone call) would be used to secure

it. Id. Because the call secured the hotel room, which in turn

ensured the location for the fraudulent gratuity to be exchanged,

the call "played an essential role in the scheme." Id. at 64.

Our reasoning in Woodward sinks DiRosa's argument. He

claims that his participation was merely incidental to causing

Jablonski to wire the money and that it was Renison who did all the

heavy lifting. Even assuming this to be the case, it was certainly

reasonable for DiRosa to foresee - and indeed it was what he hoped

for - that the misrepresentations Renison made would result in the

foreign wiring of funds for his Hungarian real estate development

project. The misrepresentations were undoubtedly material as well,

given that their very purpose was to convince Jablonski to wire the

funds. Further, the use of international wiring here played even

more of an essential role in DiRosa's scheme than did the telephone

call in Woodward.

Even putting all that aside, there is more. The

government presented evidence that DiRosa was in charge of creating

some of the critical marketing material that was presented to

Jablonski, namely the pamphlets which listed the advisory board and

board of directors working on the project as well as the project's

profit report. DiRosa's own testimony revealed that at the time the

material was presented to Jablonski, no such advisory board existed

but rather it was more of a "wish list" of individuals he was hoping

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would come on board. The highly recognizable six-time professional

golf champion was therefore not a member of the non-existent

advisory board, and neither was the Congressman. The board of

directors, consisting of "top European and American executives," did

not exist. Not only was DiRosa not the president of Resort Holdings

International as represented in the brochure, he testified at trial

that he could not remember whether the company had ever even

existed. And, not surprisingly, the materials failed to mention the

fact that the project was not yet fully funded. DiRosa was also the

one who assisted in the actual wiring of the funds at Jablonski's

bank. On top of all that, we have the fact that $225,000 of

Jablonski's money ended up in DiRosa's wife's bank account.

Given all this, there was no shortage of evidence in the

record from which a jury could have reasonably concluded that the

government proved all of the essential elements of wire fraud under

18 U.S.C. § 1343. See, e.g., United States v. Appolon, 715 F.3d

362, 369 (1st Cir. 2013) (affirming defendant's wire fraud

conviction, finding that despite defendant's claim that he played

a peripheral role in a mortgage fraud scheme a "compilation of

evidence [gave] rise to the reasonable inference" that he was an

"active participant in the transaction" who acted with the specific

intent to defraud).

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 B. Admission of Kiselak's and Mesite's Testimony

DiRosa also has qualms about the district court's

admission of testimony at various points within the trial. His

first claim of error relates to the testimony of Stephen Kiselak and

Stephen Mesite, two individuals that DiRosa had solicited in the

late 1990s and in early 2000 to invest in the same Hungarian

development project.

Prior to trial, the government moved in limine to admit

the Kiselak and Mesite testimony, pursuant to Federal Rule of

Evidence 404(b),4 arguing that the testimony was specially relevant

to prove DiRosa's intent to defraud Jablonski because he used the

same representations, promised the same "exceedingly high, and

exceedingly rapid, returns on the victims' investments" and, like

for Jablonski, "the promised returns did not materialize." In

response, DiRosa argued that this "prior bad act evidence" should

be excluded because it tended to show his propensity to commit crime

and was unfairly prejudicial. DiRosa also argued that the

transactions involving Kiselak and Mesite were too remote in time

to warrant admissibility, since they occurred some ten years prior

to his interaction with Jablonski.

4
This rule prohibits the admission of evidence of "a crime,
wrong, or other act . . . to prove a person's character in order to
show that on a particular occasion the person acted in accordance
with the character." Fed. R. Evid. 404(b)(1). However, such
evidence may be admissible for other purposes, including to prove,
among other things, intent. Id. at 404(b)(2).

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 The district court granted the government's motion,

finding it "readily apparent that these other acts have special

relevance because of the 'degree of similarity to the charged [wire

fraud] crime.'" The district court also stated that these incidents

showed that DiRosa "had reason to know" that when he solicited

Jablonski for funds, that Jablonski would not receive any return on

his investment. At the outset of trial, DiRosa's attorney urged the

court to reconsider its ruling, but the court declined to do so, and

the pair went ahead and testified. On the stand, Kiselak and Mesite

described loans they had given to DiRosa for the same development

project in Hungary, neither of which had ever been repaid, and which

were based on false promises similar to those Renison and DiRosa

offered to Jablonski.

On appeal, DiRosa makes the same claims he did below,

i.e., the evidence proffered by Kiselak and Mesite was highly

prejudicial, minimally probative, and the incidents too remote in

time. We review the district court's admission of prior-acts

evidence under Rule 404(b) for abuse of discretion. See United

States v. Doe, 741 F.3d 217, 229 (1st Cir. 2013); Appolon, 715 F.3d

at 372-73.

Normally our inquiry is twofold. We first consider

whether the evidence has special relevance under Rule 404(b), and

then next determine whether, pursuant to Rule 403, the disputed

evidence, even if specially relevant, should nonetheless be excluded

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based on considerations of unfair prejudice. See United States v.

Varoudakis, 233 F.3d 113, 118 (1st Cir. 2000). DiRosa cites both

Rule 404 and Rule 403 in his brief but at oral argument his counsel

pressed the Rule 403 prejudice piece, conceding that the subject

testimony had some relevance. As a result, we bypass the question

of special relevance and proceed to a Rule 403 inquiry.

Federal Rule of Evidence 403 provides that a court "may

exclude relevant evidence if its probative value is substantially

outweighed by a danger of . . . unfair prejudice."5 Fed. R. Evid.

403; see also Doe, 741 F.3d at 229. Unfair prejudice "speaks to the

capacity of some concededly relevant evidence to lure the factfinder

into declaring guilt on a ground different from proof specific to

the offense charged." Old Chief v. United States, 519 U.S. 172, 180

(1997). We stress that "it is only unfair prejudice which must be

avoided . . . because [b]y design, all evidence is meant to be

prejudicial." Varoudakis, 233 F.3d at 122 (internal citation

omitted).

5
Rule 403 offers up some other bases for exclusion, namely
"confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence." Fed. R. Evid.
403. We see no indications that any of these grounds justify
exclusion. DiRosa does not suggest otherwise, except for one brief
reference to the potential for the testimony to "confuse[] the jury
as to what DiRosa was on trial for." However, DiRosa only argues
the unfair prejudice piece of Rule 403, and so any claim related to
juror confusion is waived. See González-Morales v. Hernández-
Arencibia, 221 F.3d 45, 48 n.3 (1st Cir. 2000) (finding that the
parties' failure to develop the argument waived it).

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 Here, both Kiselak's and Mesite's testimony was highly

probative. The testimony was offered to show that DiRosa acted with

the intent to defraud Jablonski - an essential element of the

charged crime - because DiRosa employed similar tactics and offered

similar false promises to solicit money from Kiselak and Mesite.

Indeed, the similarity is quite uncanny (a fact which makes us less

concerned than DiRosa with the decade-long gap between the pitches).

As with Jablonski, DiRosa promised that Kiselak's and Mesite's

investments would be repaid promptly, and that they would be

profitable, but these promises never came to fruition. In that same

vein, the testimony is probative of the fact that when DiRosa

solicited the investment from Jablonski, he arguably knew, based

upon his prior dealings with Kiselak and Mesite, that Jablonski

would not be recouping his investment (let alone a profit) within

six months as was promised, if ever. DiRosa was soliciting money

from Jablonski to fund the very same project that ten years earlier

had failed to materialize.

Though the close similarity between DiRosa's interactions

with Kiselak/Mesite and Jablonski certainly puts us on alert for

possible unfair prejudice resulting from criminal propensity

evidence, we are satisfied that is not what happened here. See Old

Chief, 519 U.S. at 180-81 (explaining that, under 403, one improper

ground for conviction is "generalizing a defendant's earlier bad act

into bad character and taking that as raising the odds that he did

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the later bad act now charged"). Criminal propensity considerations

need to be taken "in light of the totality of the circumstances,

including the government's need for the evidence given other

available testimony, to prove the issue identified pursuant to the

404(b) special relevance analysis." Varoudakis, 233 F.3d at 122.

In the instant matter, Kiselak's and Mesite's testimony was crucial

to the government's case, as it was the only evidence available to

show that at the time he approached Jablonski for the money for his

project in Hungary, DiRosa had reason to believe that Jablonski was

not likely to recoup any, much less all, of his investment. DiRosa

points to no "other, non-prejudicial evidence" the government could

have used instead.

An abuse of discretion showing is not an easy one to

make. We afford deference to the district court's weighing of

probative value versus unfair effect, only in "extraordinarily

compelling circumstances" reversing that "on-the-spot judgment" from

"the vista of a cold appellate record." Doe, 741 F.3d at 229. This

is not one of those circumstances. The court did not abuse its

discretion in admitting the testimony.

C. Admission of Jablonski's Testimony

Next, DiRosa argues that the district court erred in

allowing Jablonski to testify at length as to statements made by

Renison during their meetings because the statements are inadmissible

hearsay. The district court allowed the testimony in as statements

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made by a co-conspirator, and DiRosa argues that this was error

because the government failed to prove by a preponderance of the

evidence that he and Renison were acting in a conspiracy. The

government retorts that the testimony was indeed admissible as co-

conspirator statements, see Fed. R. Evid. 801(d)(2)(E), or in the

alternative as adoptive admissions, see id. 801(d)(2)(B). We agree

the testimony was properly admitted by the court under the co-

conspirator/joint venture aegis.6

Our review of the district court's decision on this issue

is for plain error only, as DiRosa seems to concede7 in his brief

that he did not properly preserve his objection8 to the testimony at

trial. See United States v. Sánchez-Berríos, 424 F.3d 65, 73 (1st

Cir. 2005). "Review for plain error entails four showings: (1) that

6
Given this determination, we need not delve into the merits
of the government's adoptive admissions argument, see United States
v. Miller, 478 F.3d 48, 51 (1st Cir. 2007) (explaining the doctrine
of adoptive admissions rests on the notion that "a party's
agreement with a fact stated by another may be inferred from (or
'adopted' by) silence"), though, at a minimum, the argument has
some surface appeal.
7
In his brief, DiRosa says that he raised an objection to
Jablonski's testimony at trial, but he concedes that the objection
was "perhaps belated[]" and proceeds to fashion his argument under
the plain error standard of review.
8
We do not mean to imply that DiRosa's counsel should have
objected to the testimony. The decision not to object may indeed
have been a tactical one, e.g., Jablonski's testimony could have
persuaded the jury that the more vocal Renison was the one to
blame. See Strickland v. Washington, 466 U.S. 668, 689
(1984)(recognizing that counsel has "wide latitude" when making
tactical decisions). In any event, it is not an issue we need to
decide.

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an error occurred (2) which was clear or obvious and which not only

(3) affected the defendant's substantial rights, but also (4)

seriously impaired the fairness, integrity, or public reputation of

judicial proceedings." Id.

Federal Rule of Evidence 801(d)(2)(E) provides that a

statement is not hearsay if it "is offered against an opposing party

and . . . was made by the party's coconspirator during and in

furtherance of the conspiracy." To admit a statement under this

rule, four elements must be satisfied by a preponderance of the

evidence: (1) the existence of a conspiracy; (2) the defendant's

membership in the conspiracy; (3) the declarant's membership in the

conspiracy; and (4) that the declarant's statement was made in

furtherance of the conspiracy. United States v. Colón-Díaz, 521 F.3d

29, 35-36 (1st Cir. 2008).

Here a preponderance of the evidence showed that a

conspiracy existed, and both DiRosa and Renison were part of it.

First, the complaint charged both DiRosa and Renison with conspiracy.

The fact that DiRosa was not ultimately indicted for conspiracy, or

that Renison was not named as a co-conspirator, is not especially

surprising given that Renison testified for the government under a

grant of immunity. Nor is it particularly important that DiRosa was

not so indicted, as the applicability of the co-conspirator exception

is not conditioned on a conspiracy being charged in the indictment.

See United States v. Washington, 434 F.3d 7, 13 (1st Cir. 2006).

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Further, the testimony offered at trial established the relationship

between DiRosa and Renison, as well as their combined goal of getting

Jablonski to invest in the Hungarian project. And it was also

established that DiRosa was no uninformed, innocent bystander during

the meetings with Jablonski. He knew that virtually all of the

supposed chapter and verse that Renison presented to Jablonski was

false, yet by his own admission DiRosa took no exception to any of

Renison's statements. On top of that, he benefitted handsomely from

Renison's lies, with $225,000 of Jablonski's money ending up in

DiRosa's wife's account. A feat made possible when DiRosa - in what

can certainly be characterized as a ratification of all that Renison

said - assisted in effectuating the wire transfer at the bank.

The court also supportably found that Renison's comments

were in furtherance of DiRosa and Renison's joint venture. Surely

it would be difficult to fashion a workable argument to the contrary.

It is clear that Renison's touting of the project's laurels was done

in an (ultimately successful) attempt to get Jablonski to hand over

his savings. See United States v. Piper, 298 F.3d 47, 54 (1st Cir.

2002) (providing that generally speaking "a coconspirator's statement

is considered to be in furtherance of the conspiracy as long as it

tends to promote one or more of the objects of the conspiracy").

In sum, we see no reason to conclude that the district

court erred, plainly or otherwise, in admitting the testimony against

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DiRosa. Because we discern no error, we need not address the

remaining prongs of the plain error test.

D. Sentence

Finally, DiRosa takes issue with the district court's

imposition of a 57-month, within-Guidelines sentence. Our review of

sentencing decisions is for abuse of discretion, which, as we have

said, is really an assessment for reasonableness. See Denson 689

F.3d at 26. Our assessment "involves a procedural as well as a

substantive inquiry." United States v. Politano, 522 F.3d 69, 72

(1st Cir. 2008)(citing Gall v. United States, 522 U.S. 38, 51

(2007)). This means we first decide whether the district judge made

any procedural missteps, such as improperly calculating the

Guidelines range or failing to adequately explain the sentence. See

id. And then we move on to whether the sentence imposed is actually

substantively reasonable. See id. A plausible rationale and

defensible result is the so-called "linchpin of a reasonable

sentence." United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008).

DiRosa frames his challenge solely as a substantive one

but in reality - though the dividing line between these two types of

challenges is not the clearest - he appears to be mounting more of

a procedural attack. Particularly, he complains that the district

court failed to adequately explain why it would not award DiRosa the

reduced sentence he sought based on the various mitigating factors

advanced by DiRosa, e.g., his clean criminal record, history of

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public service, and family care-taking responsibilities. See

Politano, 522 F.3d at 72 (providing failure to satisfactorily explain

a sentence as an example of a procedural error). Giving DiRosa the

benefit of the doubt, we address both the procedural and substantive

reasonableness prongs, starting with the former.

Simply said, we see nothing wrong with the district

court's explanation of DiRosa's sentence. To start, the district

court considered many, if not all of the mitigating circumstances set

forth by DiRosa. In his sentencing colloquy, the judge noted several

of DiRosa's virtuous personal characteristics. He spoke about how

friends and family had written letters and had spoken at DiRosa's

sentencing hearing about his good character, and how they were

shocked that he was involved in any type of criminal activity. The

judge also recognized that "for a number of years [DiRosa] was

impassioned in his desire to serve the public."

While the district court may not have discussed each of

the factors DiRosa set forth in turn (e.g., his clean record, age,

and his responsibilities caring for his wife, her mother, and his

father), the court need not explicitly do so in a checklist-type

fashion. See, e.g., United States v. Zapata, 589 F.3d 475, 487 (1st

Cir. 2009) (stating that "[a]lthough the court did not explicitly

discuss the personal characteristics of the defendant that were

highlighted by defense counsel, that does not mean it failed to

consider them"). Moreover, a within-Guidelines sentence, such as

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DiRosa's, "requires less explanation" than one that falls outside the

Guidelines. United States v. Madera-Ortiz, 637 F.3d 26, 30 (1st Cir.

2011). Here we have no trouble discerning the court's rationale; its

explanation was sufficient.

By the same token, DiRosa's sentence was substantively

reasonable. The court considered DiRosa's virtuous characteristics

but found more significant "the nature and circumstances of the

offense, the need to promote respect for the law, just punishment,

and deterrence." Simply "identifying potentially mitigating factors"

does not guarantee DiRosa that he will receive a reduced sentence.

Madera-Ortiz, 637 F.3d at 30. Nor can DiRosa successfully challenge

the substantive reasonableness of his sentence because the district

court, when weighing his virtuous characteristics against the more

nefarious factors (the deceit, loss, and harm resulting from his

actions) came up with a sentence that disfavored him. See id.

The district court made a judgment call - well within the

wide latitude it is afforded - and on balance, the court came up with

a lower end of the Guidelines 57-month prison sentence. A successful

challenge to a sentence falling within the Guidelines is not an easy

one to make; "fairly powerful mitigating reasons" must be given and

we must be persuaded that the district judge was "unreasonable in

balancing pros and cons." United States v. Stone, 575 F.3d 83, 95

(1st Cir. 2009). DiRosa has made no such showing.

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 Left with no procedural blunders and an eminently

reasonable sentence, we find the court did not abuse its discretion.

DiRosa's sentence stands.

CONCLUSION

For the reasons set out at length above, each of DiRosa's

offerings on appeal fails to convince. DiRosa's conviction and

sentence are AFFIRMED.

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