USCA1 Opinion
[NOT FOR PUBLICATION]
United States Court of Appeals
For the First Circuit
____________________
No. 96-2350
UNITED STATES,
Appellee,
v.
FRANCIS BOOTS,
Defendant - Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Campbell, Senior Circuit Judge, ____________________
and Stahl, Circuit Judge. _____________
_____________________
David W. Bate for appellant. _____________
F. Mark Terison, Assistant United States Attorney, with whom _______________
Jay P. McCloskey, United States Attorney, and Margaret D. __________________ ____________
McGaughey, Assistant United States Attorney, were on brief for _________
appellee.
____________________
June 25, 1997
____________________
Per Curiam. Francis Boots ("Boots") was convicted, Per Curiam. ___________
following a jury trial, of conspiracy, in violation of 18 U.S.C.
371, to commit three offenses:
1) to devise a scheme or artifice using
the wires in interstate commerce with
intent to defraud Canada and the Province
of Nova Scotia of excise duties and tax
revenues, in violation of 18 U.S.C.
1343; 2) to devise a scheme or artifice
to deprive the residents of the
Passamaquoddy Reservation in Maine of the
honest services of their police chief, in
violation of 18 U.S.C. 1343 and 1346;
and 3) to travel interstate with the
intent to facilitate bribery, a crime
under Maine state law, in violation of 18
U.S.C. 1952.
United States v. Boots, 80 F.3d 580, 582-83 (1st Cir.), cert. _____________ _____ _____
denied, 417 S. Ct. 263 (1996) ("Boots I"). ______ _______
Following conviction by the district court, Boots and
his co-defendants appealed to this court. We reversed in part
and remanded for resentencing. Id. at 595. On November 22, ___
1996, the district court sentenced Boots to fourteen months
imprisonment. He now appeals the sentence.
Boots first argues that he was entitled to a two-point
reduction in his sentencing level for acceptance of
responsibility. This issue was reviewed by this court in Boots I _______
and, therefore, the ruling in Boots I -- which affirmed the ________
district court's denial of a downward departure for acceptance of
responsibility -- is the law of the case. Boots is, therefore,
precluded from seeking review of the issue unless "the evidence
on a subsequent trial was substantially different, controlling
authority has since made a contrary decision of law applicable to
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such issues, or the decision was clearly erroneous and would work
an injustice." Cohen v. Brown Univ., 101 F.3d 155, 168 (1st Cir. _____ ___________
1996), cert. denied, 117 S. Ct. 1469 (1997). ____________
Boots alleges that the district court's statement on
remand that he had been truthful with the court was enough to
allow reconsideration of our earlier decision. We disagree.
Although it is true that the district court commented on Boots'
truthfulness, this choice of words by the sentencing court is
insufficient to overcome the law of the case doctrine. As we
stated in Cohen v. Brown University, "only a few exceptional _____ _________________
circumstances can overcome the interests served by adherence to
the [law of the case] doctrine and those exceptions are narrowly
circumscribed." Id. It is insufficient for appellant Boots ___
simply to point to comments by the district court that differ
from comments made by that court prior to Boots I without showing _______
that these comments amount to substantially different evidence.
As he has failed to show that substantially different evidence
was presented, we affirm the district court's decision as to the
acceptance of responsibility issue.1
Boots' second argument is that the district court erred
in imposing a fourteen month sentence. He does not dispute that
the district court correctly calculated his offense level to be
thirteen, which implies a sentence range of twelve to eighteen
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1 We add that even if we decided that the law of the case
doctrine did not apply, we would be required to affirm the
district court decision unless it were clearly erroneous, which
it is not. See United States v. Royer, 895 F.2d 28, 30 (1st Cir. ___ _____________ _____
1990).
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months. He claims, however, that in choosing a sentence of
fourteen months, the court impermissibly considered tax revenue
loss suffered by Canada.
As a general rule, it is established that this court
ordinarily has no jurisdiction to review a sentence within the
applicable sentencing guideline range if that range was correctly
determined. United States v. Panet-Collazo, 960 F.2d 256, 261 ______________ _____________
(1st Cir. 1992). Since there is no indication that the
sentencing court's affixation of the fourteen-month term was
otherwise "in violation of law,"2 18 U.S.C. 3742(a)(1), we lack
jurisdiction to consider this claim. See United States v. Col n, ___ _____________ _____
884 F.2d 1550 (2d Cir. 1989).
Affirmed. Affirmed ________
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2 On plain error review, we conclude that the district court's
consideration of the Canadian tax revenue loss, although not a
predicate for wire fraud, see United States v. Boots, 80 F.3d 580 ___ _____________ _____
(1st Cir.), cert. denied, 417 S. Ct. 263 (1996), was not improper ____________
given that the guidelines permit the court to consider "any
information . . . unless otherwise prohibited by law." U.S.S.G.
1B1.4. We note also that other circuits have allowed
consideration of foreign convictions in determining sentencing
within the applicable range. See United States v. Soliman, 889 ___ _____________ _______
F.2d 441 (2d Cir. 1989) (interpreting United States v. Tucker, _____________ ______
404 U.S. 443 (1972)). See also United States v. Fleishman, 684 ________ _____________ _________
F.2d 1329 (9th Cir. 1982).
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