United States v. Gierbolini-Rivera

United States Court of Appeals
For the First Circuit

No. 15-2076

UNITED STATES OF AMERICA,

Appellee,

v.

ARQUÍMEDES A. GIERBOLINI-RIVERA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Aida M. Delgado-Colón, U.S. District Judge]

Before

Torruella, Selya, and Lynch,
Circuit Judges.

Joseph C. Laws, on brief for appellant.
Julia M. Meconiates, Assistant United States Attorney, Rosa
Emilia Rodríguez-Vélez, United States Attorney, and Thomas F.
Klumper, Assistant United States Attorney, Acting Chief, Appellate
Division, on brief for appellee.

August 14, 2018
 TORRUELLA, Circuit Judge. Defendant-Appellant

Arquímedes A. Gierbolini-Rivera ("Gierbolini") pled guilty to one

count of theft in connection with health care, in violation of

18 U.S.C. § 669(a), and to one count of wire fraud, in violation

of 18 U.S.C. § 1343. Gierbolini now challenges the procedural and

substantive reasonableness of his upwardly variant sentence.

After careful review, we affirm.

I. Background

Because Gierbolini pled guilty, we draw the facts from

the plea colloquy, the unchallenged portions of the Presentence

Investigation Report ("PSR"), and the sentencing hearing

transcript. See United States v. Fernández-Santos, 856 F.3d 10,

14 n.1 (1st Cir. 2017).

In January 2000, Gierbolini was hired as an accountant

by Modern Radiology, PSC. 1 Gierbolini's responsibilities

consisted of preparing financial reports for external audits and

tax purposes, as well as making payments for all of his employer's

corporate expenses, including general payroll. To perform these

1 Modern Radiology was a professional services corporation that
provided "radiological health care services such as sonograms,
CT Scans, MRIs and X-rays, among others. [It] had contracts to
provide services to patients under several different medical
plans" and was considered a "health care benefit program" under
18 U.S.C. § 24(b).

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duties, Gierbolini was entrusted with managing Modern Radiology's

operating account, which he would use to make approved payments.

In or around 2005, Gierbolini devised and implemented a

scheme to defraud Modern Radiology through regularly scheduled

transfers of thousands of dollars to his personal accounts. In

the course of his regular employment duties, Gierbolini would use

Microsoft Excel to prepare a spreadsheet detailing the amount to

be paid on each pay period to each employee, via a direct deposit

wire transfer from Modern Radiology's operating account to each

employee's personal account. The spreadsheet's rows and columns

identified, respectively, the employees' names and the amount each

employee was to be paid for a given period. The last column of

the spreadsheet showed the net total amount to be paid to each

employee. At the bottom of that column, Gierbolini created a cell

that added up all of the net total amounts to be paid to each

employee -- resulting in the total amount to be withdrawn from

Modern Radiology's operating account for a given pay period. But,

in that same last column, Gierbolini would also enter an

additional, unauthorized, sum of money into an otherwise-empty

cell. He would then conceal the contents of this extra cell by

changing the font color to white so that it would be invisible

against the spreadsheet's white background. This unauthorized

amount was still included, however, in the net total to be

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withdrawn from Modern Radiology's account. After paying each

employee their amount due for that pay period, Gierbolini would

then wire himself the unauthorized amount included in the "empty"

cell. By only ever presenting Modern Radiology management with

black and white printouts of his spreadsheets, on which the

unauthorized amounts were invisible, and by always taking out the

same amount, Gierbolini was able to defraud Modern Radiology for

years. He carried out this scheme in every pay period from January

2005 to February 2010. Altogether, Gierbolini completed 217

unauthorized transfers for a total of $984,596.95.

In 2013, Gierbolini was charged with fifty-three counts

of theft in connection with health care, in violation of 18 U.S.C.

§ 669(a), and twenty-eight counts of wire fraud, in violation of

18 U.S.C. § 1343. Gierbolini pled guilty to one count of each

charge,2 pursuant to a plea agreement.3

In the plea agreement, the parties calculated a total

offense level of twenty. To arrive at that level, they started

with a base offense level of seven, pursuant to United States

Sentencing Guidelines ("U.S.S.G.") § 2B1.1. They then found

applicable a two-level enhancement for Gierbolini's abuse of a

2 In return, the government requested that the remaining counts
be dismissed, which the district court did.
3 The plea agreement also contained two forfeiture provisions.

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position of trust in a manner that significantly facilitated the

commission or concealment of the offense, see id. § 3B1.3, a

fourteen-level enhancement because the offense involved losses

greater than $400,000 but not over $1,000,000, see id.

§ 2B1.1(b)(1)(H), and a three-level reduction for Gierbolini's

timely acceptance of responsibility, see id. § 3E1.1. This, in

conjunction with Gierbolini's Criminal History Category of I,

yielded a Guidelines sentencing range ("GSR") of thirty-three to

forty-one months' imprisonment. Gierbolini reserved the right to

argue for a sentence at the lower end of the proposed GSR, while

the government could argue for a sentence at the high end of the

GSR.

The PSR tracked the plea agreement's calculation of the

GSR. The PSR also stated that, in March 2015, the U.S. Probation

Officer had interviewed the president of Modern Radiology, who

reported that Gierbolini's conduct caused him "substantial

financial hardship" and, "as a result of defendant's fraudulent

acts coupled with [Puerto Rico's] current fiscal situation,"

Modern Radiology was "facing a precarious financial situation."

Gierbolini did not object to these statements in the PSR. Shortly

thereafter, Modern Radiology filed for Chapter 11 bankruptcy.

At the sentencing hearing, the court stated that it had

reviewed the plea agreement, the stipulated facts contained in

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that agreement, the PSR, Modern Radiology's submissions in support

of a forfeiture order, and letters submitted by Gierbolini's

friends, relatives, and members of the community. Gierbolini did

not object to the consideration of any of these materials. Defense

counsel attested that he had reviewed the PSR with Gierbolini

"several times," and that there was nothing further to add or

clarify. Gierbolini confirmed that he had reviewed the PSR with

his attorney and that "the information contained in the report

[was] correct."

A representative of Modern Radiology attended the

sentencing hearing, accompanied by counsel. Without objection

from any party, Modern Radiology's counsel stated for the record

that Modern Radiology had "no opinion as to the sentence to be

imposed." He clarified that Modern Radiology was present because

of "the forfeiture issue" only, and limited his statements to a

request for discovery to locate any additional assets belonging to

Gierbolini that could be forfeited. Gierbolini opposed this

request, and the court denied it.

The district court then explained that it had considered

the 18 U.S.C. § 3553(a) sentencing factors. The court referenced

Gierbolini's history and characteristics, including his age, good

upbringing, education, employment as an accountant and attorney,

good physical and mental health, lack of substance abuse history,

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three dependents, and his status as a first time offender. The

district judge commented that she was "really trouble[d]" by

several aspects of the case, including that Gierbolini "had a good

upbringing," with parents who taught him "what the law is and how

it is to be respected." Moreover, the court noted that while

Gierbolini was committing these fraudulent actions as an

accountant, he was also studying to be a lawyer. The judge

explained that this showed "double the blatant disregard . . . for

the law, for society, for the person [who] had trusted [Gierbolini]

and given [him] a position, a good salary." Finally, the court

contrasted Gierbolini's case with those in which defendants are

motivated by illness, addiction, or "total despair." Of evident

concern to the judge was the apparent lack of any discernable need

or motivation underlying Gierbolini's conduct.

After calculating the same GSR as that which the plea

agreement and PSR contained, the court found that the GSR did not

"properly reflect the seriousness of the offense and [did] not

necessarily promote respect for the law or reflect the harm caused

to the victim." Specifically, the court focused on two factors

that it found "highly important and of significant weight."

First, the court reiterated its concern that Gierbolini was both

an accountant and a lawyer, and yet appeared to have "no qualms"

about abusing his position of trust repeatedly and regularly over

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a span of at least five years.4 Second, the court emphasized the

"substantial harm and financial hardship to the victim which ha[d]

turned them to becoming insolvent." Thus, the court imposed an

upwardly variant sentence of sixty months of imprisonment on each

count of conviction, to run concurrently, and to be followed by

three years of supervised release. The court also ordered

Gierbolini to forfeit $394,300, and to pay $590,296 in restitution

to the victim, Modern Radiology. Gierbolini did not object to the

sentence imposed.

Twelve days later, Gierbolini filed a motion for

reconsideration of his sentence. The next day, he filed a notice

of appeal with this court. Upon the district court's request,

while retaining jurisdiction, we remanded the case to the district

court to allow it to rule on Gierbolini's motion for

reconsideration. The district court ultimately denied the motion

for reconsideration.5

4 At the sentencing hearing, the government noted, without
objection, that it was limited in the charges it could bring
against Gierbolini: first, by the statute of limitations, which
allowed indictment only for conduct after December 18, 2013; and
second, due to "a lack of documentation" by the victim of
Gierbolini's pre-2005 conduct.
5 Both parties agree that because Gierbolini was not sentenced in
accordance with the parties' recommendations, the waiver of
appellate rights provision in his plea agreement does not bar this
appeal. See United States v. Fernández–Cabrera, 625 F.3d 48, 51
(1st Cir. 2010).

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 II. Discussion

Gierbolini challenges both the procedural and

substantive reasonableness of his sentence. We review sentencing

decisions under the U.S.S.G. for "reasonableness, regardless of

whether they fall inside or outside of the applicable GSR."

United States v. Turbides-Leonardo, 468 F.3d 34, 40 (1st Cir.

2006). Our review is bifurcated. We first ensure that the district

court has committed no significant procedural error, such as

"failing to calculate (or improperly calculating) the Guidelines

range, treating the Guidelines as mandatory, failing to consider

the section 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen

sentence -- including an explanation for any deviation from the

Guidelines range." United States v. Trinidad-Acosta, 773 F.3d

298, 309 (1st Cir. 2014) (quoting United States v. Rivera-Moreno,

613 F.3d 1, 8 (1st Cir. 2010)). "[I]f the sentence is procedurally

sound, we then ask whether the sentence is substantively

reasonable." United States v. Rossignol, 780 F.3d 475, 477

(1st Cir. 2015). We undertake this inquiry, which focuses on the

duration of the sentence in light of the totality of the

circumstances, United States v. Del Valle-Rodríguez, 761 F.3d 171,

176 (1st Cir. 2014), while remaining mindful that "[t]here is no

one reasonable sentence in any given case but, rather, a universe

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of reasonable sentencing outcomes." United States v. Clogston,

662 F.3d 588, 592 (1st Cir. 2011) (citing United States v. Martin,

520 F.3d 87, 92 (1st Cir. 2008)). And, although the district

court must consider a "myriad of relevant factors," the weighting

of those factors is "within the court's informed discretion." Id.

at 593. A sentence is substantively reasonable so long as the

sentencing court has provided a "plausible sentencing rationale"

and reached a "defensible result." Martin, 520 F.3d at 96 (citing

United States v. Jiménez-Beltre, 440 F.3d 514, 519 (1st Cir.

2006)).

A. Procedural Reasonableness

With regard to procedural reasonableness, Gierbolini

argues that the district court did not adequately explain its

chosen sentence. He asserts that the advisory GSR already

accounted for a fourteen-level enhancement for the amount involved

in the offense and a two-level enhancement for abuse of a position

of trust, and that the district court therefore erred by failing

to identify additional factual support for why his sentence fell

outside of the GSR. Furthermore, Gierbolini argues that the

district court was "influenced by the presence of the victim in

court and the unwarranted intervention of his lawyer," and also

took into account impermissible considerations related to the

victim as part of its sentencing decision. Specifically, he

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asserts that his upwardly variant sentence was based on the

unsupported fact that his conduct had caused Modern Radiology's

insolvency. He maintains that Modern Radiology's bankruptcy was

a result of mismanagement and "millions of dollars" of debt, and

therefore, should not have been considered an aggravating factor

during sentencing.

We generally apply the deferential abuse of discretion

standard to preserved challenges to the procedural reasonableness

of a sentence.6 Del Valle-Rodríguez, 761 F.3d at 176. However,

when a defendant fails to preserve an objection to the procedural

reasonableness below, the plain error standard supplants that

customary standard of review. United States v. Rondón-García,

886 F.3d 14, 20 (1st Cir. 2018). Under the plain error standard,

the defendant must show: "(1) that 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." United States v. Medina-Villegas, 700 F.3d 580, 583

6 Under this standard, "we afford de novo review to the sentencing
court's interpretation and application of the sentencing
guidelines, assay the court's factfinding for clear error, and
evaluate its judgment calls for abuse of discretion."
United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir. 2015).

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(1st Cir. 2012) (quoting United States v. Duarte, 246 F.3d 56, 60

(1st Cir. 2001)).

Gierbolini urges us to apply the abuse of discretion

standard "because of [his] objection below." Yet, the sentencing

transcript reveals no objection. If Gierbolini suggests that his

objection was preserved in his motion for reconsideration, "such

after-the-fact motions are insufficient to evade plain-error

review." United States v. Pedroza-Orengo, 817 F.3d 829, 833 n.5

(1st Cir. 2016) (citing United States v. Almonte-Reyes, 814 F.3d

24, 27 n.4 (1st Cir. 2016)). Accordingly, because Gierbolini failed

to preserve his procedural challenges below, we review them for

plain error. See United States v. Fernández-Hernández, 652 F.3d

56, 71 (1st Cir. 2011). However, we find no error, plain or

otherwise.

Gierbolini's primary procedural challenge is that the

district court's explanation of his sentence was inadequate

because the reasons relied on by the district court in justifying

his sentence were already included in the GSR calculation. We

disagree.

A sentence outside the advisory range typically ought to

be accompanied by greater explanation than need accompany a

guideline sentence. Turbides-Leonardo, 468 F.3d at 41.

Furthermore, "[w]hen a factor is already included in the

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calculation of the guidelines sentencing range, a judge who wishes

to rely on that same factor to impose a sentence above or below

the range must articulate specifically the reasons that this

particular defendant's situation is different from the ordinary

situation." United States v. Zapete-García, 447 F.3d 57, 60

(1st Cir. 2006).

Here, the sentencing court complied with these

requirements. After calculating the GSR, the judge considered the

§ 3553(a) factors, including mitigating factors. The court noted

that the GSR accounted for Gierbolini's abuse of his position of

trust and for the amount stolen. The court, however, expressed

its concern that the GSR did not "properly reflect the seriousness

of the offense and [did] not necessarily promote respect for the

law or reflect the harm caused to the victim." The court listed

several specific facts motivating its finding that the GSR was

inadequate, including Gierbolini's abuse of trust, the harm the

victim suffered, and Gierbolini's apparent lack of compunction

about repeating the crime regularly over the course of several

years. Regarding the abuse of trust, the court highlighted that

Gierbolini made 217 fraudulent transactions over the span of

several years, while enjoying the complete trust of his employer.

The court found that the sentencing guidelines (including the

position-of-trust enhancement) did not adequately account for the

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duration, breadth, or consistency of this criminality. Moreover,

the district court found that Gierbolini's profession and legal

knowledge amounted to "double the blatant disregard . . . for the

law, for society, [and] for the person [who] had trusted [him]."

Thus, it was on the basis of these specific facts that the court

found Gierbolini's abuse of trust to be extraordinary.

Similarly, the court emphasized "the substantial harm

and financial hardship to the victim" resulting from Gierbolini's

stealing of almost a million dollars. Although the GSR

calculations already accounted for the total amount stolen from

Modern Radiology, the district court also noted the detrimental

effect that Gierbolini's actions had on Modern Radiology's

solvency, which led, in part, to substantial "financial hardship"

and its eventual filing for bankruptcy. These were additional

facts not accounted for in the GSR calculations.

Although Gierbolini complains of the district court's

reliance on the "unsupported fact" that his conduct had caused

Modern Radiology's insolvency, and maintains that Modern

Radiology's bankruptcy was not caused by his actions but rather

was a result of mismanagement and "millions of dollars" of debt,

we discern no error.

In the PSR, the Probation Officer noted that Modern

Radiology's insolvency was a result of Gierbolini's fraudulent

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acts, coupled with Puerto Rico's current fiscal crisis, resulting

in a "substantial financial hardship." Gierbolini did not object

either to the PSR's identification of the causes of Modern

Radiology's insolvency, or to the district court's statement that

his conduct had resulted in substantial harm and financial hardship

to the victim. Because Gierbolini did not contest the PSR or the

substance of the factual allegations, the district court properly

relied on the facts set forth in the PSR, as they bore "sufficient

indicia of reliability." United States v. Cyr, 337 F.3d 96, 100

(1st Cir. 2003) (noting that when there is no objection, the

district court is entitled to rely on the facts in the PSR (citing

United States v. Taylor, 277 F.3d 721, 724 (5th Cir. 2001)));

see also Rondón-García, 886 F.3d at 25 ("This failure to object

constitutes a waiver of [the defendant's] right to challenge the

information contained in the PSR.").7 Thus, the district court

did not commit procedural error by considering that Modern

Radiology had filed for bankruptcy as a result, in part, of

Gierbolini's conduct.8

7 Moreover, at sentencing, Gierbolini acknowledged that Modern
Radiology had "move[d] its situation to the Bankruptcy Court."
8 We also reject Gierbolini's contention that the district court
was "influenced by the presence of the victim in court and the
unwarranted intervention of his lawyer," who, despite
acknowledging that he did not "have a right to intervene in this
matter" as a "criminal matter," nevertheless addressed the court.
Contrary to Gierbolini's contentions, pursuant to 18 U.S.C.

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 In sum, the district court, which "need[ed] only

identify the main factors behind its decision," United States v.

Vargas-García, 794 F.3d 162, 166 (1st Cir. 2015) (citing Turbides-

Leonardo, 468 F.3d at 40-41), adequately set forth its reasons for

imposing an upwardly variant sentence and, in so doing, properly

relied on facts included in the PSR to which Gierbolini not only

failed to object, but even expressly indicated were correct.

B. Substantive Reasonableness

Finally, Gierbolini alleges that the district court

improperly weighed the § 3553(a) factors and various mitigating

circumstances, and also that it engaged in reverse "socioeconomic

discrimination" by considering that he had "a good upbringing and

came from a good family," and thus he had no excuse for his unlawful

conduct. According to Gierbolini, "nothing in [his mitigating

factors] make[s] the [GSR] of 33 to 41 months inappropriate as to

Mr. Gierbolini." Thus, he says, the upward variance was

unjustified.

§ 3771(a)(4), the victim had the right not only to attend the
public proceeding, but also to be "reasonably heard." Moreover,
the victim's statement that he had no "right to intervene in this
matter," referred to the bar on the victim's intervention as a
party to the criminal case pursuant to 21 U.S.C. § 853(k)(1).
Thus, the district court did not commit procedural error by
allowing the victim's representative to address the court.

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 In considering a preserved challenge to the substantive

reasonableness of a sentence, we apply the abuse of discretion

standard, "taking into account the totality of the circumstances."

United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir. 2015).

Gierbolini, however, did not object below. In such cases, it is

unclear whether the abuse of discretion standard or the plain error

standard applies. Id. at 228. We need not decide this issue,

however, because Gierbolini's claim fails under either standard.

In essence, Gierbolini's claim is that the district

court placed too little weight on the mitigating factors. But,

the record shows that the district court properly considered the

§ 3553(a) sentencing factors, including mitigating factors. In

addressing mitigating factors, the district court noted that

Gierbolini had three dependents, "a good upbringing" in which "good

values were taught," no prior criminal record, and the "potential

to rehabilitate." Nonetheless, the court determined that, despite

these mitigating factors, the seriousness of the offense --

including the duration, breadth, and consistency of Gierbolini's

criminal acts and the harm inflicted on the victim -- the need for

deterrence, and to promote respect for the law -- in light of

Gierbolini's "blatant disregard . . . for the law, for society,

for the person that had trusted [him] and given [him] a position,

a good salary" -- outweighed the mitigating factors. The district

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court is afforded broad discretion in weighing the § 3553(a)

factors to determine the sentence, and this court "will not disturb

a well-reasoned decision to give greater weight to particular

sentencing factors over others." United States v. Gibbons,

553 F.3d 40, 47 (1st Cir. 2009).

Here, the district court gave a plausible explanation

and reached a defensible result in light of Gierbolini's criminal

acts against a trusting employer every two weeks, for at least

four years, to the tune of nearly one million dollars, and for no

apparent reason except personal enrichment. No more is required.

III. Conclusion

For the foregoing reasons, Gierbolini's sentence is

affirmed.

Affirmed.

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