USCA1 Opinion
March 7, 1996 [NOT FOR PUBLICATION]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).
-2-
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
-3-
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).
-4-
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
-5-
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.
-6-
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
-7-
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).
-8-
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
____________________
-9-
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.
-10-
For the foregoing reasons, the sentence imposed by the
district court is Affirmed. ________
-11-