United States Court of Appeals
For the First Circuit
No. 99-1842
UNITED STATES OF AMERICA,
Appellee,
v.
SANJAY SAXENA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Torruella, Chief Judge,
Selya, Circuit Judge,
and Casellas,* District Judge.
Cheryl J. Sturm for appellant.
Victor A. Wild, Assistant United States Attorney, with whom
Donald K. Stern, United States Attorney, was on brief, for
appellee.
October 3, 2000
_______________
*Of the District of Puerto Rico, sitting by designation.
SELYA, Circuit Judge. Defendant-appellant Sanjay
Saxena serves up a salmagundi of alleged errors. The main
ingredient is his contention that the government reneged on
obligations that it undertook in a plea agreement. Other
morsels include the district court's failure specifically to
inform him of the consequences of his guilty plea and its
alleged missteps in the course of sentencing. Although the
appellant's bill of fare contains some food for thought, close
perlustration shows that it lacks any real substance.
Accordingly, we affirm the judgment below.
I. BACKGROUND
The appellant, a software engineer by training,
immersed himself in the investment advisory business in 1992.
At that time, he founded a business, called Vital Information,
which published newsletters (e.g., "The Weekly Wealth Letter")
offering financial advice to would-be investors. Representing
that the insights contained in the newsletters derived from a
computerized system designed to forecast the optimal times at
which to buy and sell specific securities, the appellant held
out hopes of huge profits. As the newsletters' readership
increased, the appellant used them as a platform from which to
market investment contracts — actually, syndicated partnership
3
interests — aimed at exploiting the computer program that he had
developed.
Despite his lack of a verifiable track record, the
appellant managed to lure a coterie of customers. Eventually,
his activities attracted the attention of the Securities and
Exchange Commission (SEC). After investigating the
circumstances, the SEC filed a civil complaint accusing the
appellant of selling unregistered securities. The appellant
settled the civil case by pledging, inter alia, to make full
restitution to disappointed subscribers. He fulfilled this
promise, but a federal grand jury nonetheless indicted him for
selling unregistered securities, 15 U.S.C. § 77e(a), prohibited
transactions by a registered investment adviser, id. § 80b-6(1)
& (2), mail fraud, 18 U.S.C. § 1341, false and fraudulent
claims, id. § 287, and money laundering, id. § 1957.
After some procedural skirmishing, not relevant here,
the appellant entered into a nonbinding plea agreement. See
Fed. R. Crim. P. 11(e)(1)(B). In it, the appellant agreed to
plead guilty to seventeen counts of selling unregistered
securities, five counts of engaging in prohibited transactions,
nine counts of mail fraud, and one count of making false and
fraudulent claims. In exchange, the government promised to drop
the other charges and to recommend a 24-month prison term and a
4
fine. The 24-month target was based upon a prediction that the
district court would fix the guideline sentencing range (GSR) at
24-30 months (adjusted offense level 17; criminal history
category I). The parties recognized that this prediction's
accuracy depended on a three-level reduction for acceptance of
responsibility, see USSG §3E1.1, and the government agreed to
recommend that the court grant that reduction.
The district court conducted a change-of-plea hearing
on March 23, 1999. Once the appellant had confessed his guilt,
the court dismissed the extraneous counts and continued the
matter for preparation of a presentence investigation report
(PSI Report) by the probation department. In the meantime, the
appellant remained free on bail.
During the interval when the PSI Report was in process,
the SEC informed the United States Attorney's office that the
appellant was soliciting subscriptions for a newsletter on the
Internet and assuring potential investors that the insights
contained therein would guide them to astronomical profits. As
was true of the appellant's earlier venture, the main selling
point for the new periodical involved a computer-driven timing
formula. The solicitations sought one-year subscriptions,
notwithstanding the appellant's knowledge that his immurement
would begin within a few months, and did so through a web site
5
that included the appellant's picture and his "personal
guarantee."
The Assistant United States Attorney (AUSA) who was
handling the case believed that he had a duty to bring this
information to the attention of the probation department, and he
did so. The probation officer incorporated the information into
the PSI Report and refused to recommend a downward adjustment
for acceptance of responsibility.
The district court convened the disposition hearing on
June 28, 1999. The AUSA continued to stand by the plea
agreement, advocating an acceptance-of-responsibility credit.
He did, however, respond to the court's specific inquiry by
describing the appellant's new venture (as he understood it).
Ultimately, the court decided not to award any credit for
acceptance of responsibility and fixed the GSR at 33 to 41
months (adjusted offense level 20; criminal history category I).
Despite this development, the AUSA continued to
recommend a 24-month term of incarceration. The court spurned
this recommendation, instead imposing a 33-month sentence. The
court also ordered a three-year term of supervised release, a
$100,000 fine, the usual special assessment, and payment of
restitution in the sum of $13,616 (related mostly to
6
unemployment benefits illegitimately collected by the appellant
while running Vital Information). This appeal ensued.
II. ANALYSIS
The appellant's assignments of error can be distilled
into four categories. We deal separately with each of them.
A. Repudiation of the Plea Agreement.
The mainstay of this appeal is the appellant's charge
that the prosecutor functionally repudiated the plea agreement
by informing the probation officer of his post-plea activities,
and made a bad situation worse by uttering pointed remarks about
those activities to the court. Since this claim was not aired
before the sentencing court, the appellant faces a formidable
standard of appellate review. When a defendant has knowledge of
conduct ostensibly amounting to a breach of a plea agreement,
yet does not bring that breach to the attention of the
sentencing court, we review only for plain error. See Johnson
v. United States, 520 U.S. 461, 466 (1997); United States v.
Olano, 507 U.S. 725, 731-32 (1993); see also Fed. R. Crim. P.
52(b). Establishing plain error requires a quadripartite
showing: that there was error; that it was plain; that the
error affected the defendant's substantial rights; and that the
error adversely impacted the fairness, integrity, or public
repute of judicial proceedings. See Johnson, 520 U.S. at 467;
7
Olano, 507 U.S. at 732. We sometimes have treated this last
prong as a miscarriage-of-justice standard. See e.g., United
States v. Alicea, 205 F.3d 480, 484 (1st Cir. 2000).
With the standard of review in place, we turn to the
facts. The appellant asserts that the government, though
arguably adhering to the letter of the plea agreement (it did,
after all, recommend both an adjustment for acceptance of
responsibility and the agreed sentence) contravened the spirit
of the agreement when it presented information regarding the
appellant's post-plea activities to the district court.1 This
assertion raises potentially difficult questions concerning how
best to reconcile competing centrifugal and centripetal forces:
the prosecution's solemn duty to uphold forthrightly its end of
any bargain that it makes in a plea agreement, see Santobello v.
New York, 404 U.S. 257, 262 (1971), and its equally solemn duty
to disclose information material to the court's sentencing
determinations, see United States v. Hogan, 862 F.2d 386, 389
(1st Cir. 1988). While these responsibilities admittedly can
tug in different directions, we conclude that the government
here kept the balance steady and true.
1
Since the probation officer functions as an arm of the
court, see United States v. Charmer Indus., Inc., 711 F.2d 1164,
1170 (2d Cir. 1983), we treat the AUSA's disclosure of
information to the probation officer as the functional
equivalent of disclosure to the court.
8
The mere furnishing of the information gives us little
pause. By statute, "[n]o limitation shall be placed on the
information concerning the background, character, and conduct of
a person convicted of an offense which a court of the United
States may receive and consider for the purpose of imposing an
appropriate sentence." 18 U.S.C. § 3661. In view of the clear
language of this statute, the sentencing judge "has a right to
expect that the prosecutor and the probation department, at the
least, [will] give him all relevant facts within their ken . .
. ." Hogan, 862 F.2d at 389. In a nutshell, the government has
an unswerving duty to bring all facts relevant to sentencing to
the judge's attention. See United States v. Mata-Grullon, 887
F.2d 23, 24 (1st Cir. 1989) (per curiam); United States v.
Voccola, 600 F. Supp. 1534, 1538 (D.R.I. 1985).
The information gleaned from the SEC was plainly within
the compass of this duty. That information bore an easily
discernible relationship to the offense conduct and, viewed
objectively, cast doubt on the sincerity of the appellant's
professions of remorse. Thus, the government, having learned
the facts, was obliged to disclose them. See, e.g., Hogan, 862
F.2d at 389; Voccola, 600 F. Supp. at 1538-39.
The AUSA's handling of the information at the time of
sentencing presents a somewhat different question. A defendant
9
who has entered into a plea agreement with the government, and
himself fulfills that agreement, is entitled to the benefit of
his bargain. See Santobello, 404 U.S. at 262 (explaining that
"when a plea rests in any significant degree on a promise or
agreement of the prosecutor, so that it can be said to be part
of the inducement or consideration, such promise must be
fulfilled"). Satisfying this obligation requires more than lip
service on a prosecutor's part. The Santobello rule
"proscribe[s] not only explicit repudiation of the government's
assurances, but must in the interests of fairness be read to
forbid end-runs around them." Voccola, 600 F. Supp. at 1537.
There are, however, limits to what a defendant
reasonably may expect. See, e.g., United States v. Benchimol,
471 U.S. 453, 455-56 (1985); United States v. Ramos, 810 F.2d
308, 313 (1st Cir. 1987). The government's obligation to
furnish relevant information to the sentencing court does not
vanish merely because the government has a corollary obligation
to honor commitments made under a plea agreement. These two
obligations coexist — and prosecutors must manage them so as to
give substance to both.
Of course, this sort of legal funambulism requires
careful balancing. The prosecutor must remain aware of the
possibility of conflict. He must discharge both duties
10
conscientiously. And he may not attempt to use one duty as an
instrument for thwarting the other.
It is against this backdrop that we analyze the
appellant's charge that the prosecutor here played fast and
loose. The record reveals that, after listening to an extended
discourse by defense counsel regarding the post-plea
subscription scheme, the court asked the AUSA if he had anything
to say in rebuttal. The AUSA responded:
The government is bound by its plea
agreement and will honor its plea agreement
as it should. The information that the
Court is referring to here, of course, is
post-plea agreement matters [sic] and not
known to the government previously.
I would comment in this way in response to
what you've just been told by counsel, that
the defendant submitted some information to
some investors. The fact of the matter is
that the information that I received from
the SEC was found on the Internet and
available virtually to the entire financial
community and potential investors, it wasn't
some minor matter as I understand it. And
it was more than just you can earn some
money, it had huge figures on it. And in
many ways, your Honor, I submit that it
mirrors the past activity because it has
this deadline of application and so forth.
I'm sure the Court has read the material
itself, the last portion of it is "My
Guarantee by Sanjay Saxena." So it's not
just the timing of it that concerned the
government enough to have provided the
material to probation, to the probation
department, but also the substantive nature
of it that concerns us.
11
At this time, your Honor, the government
does not know how much money the defendant
may have obtained by this solicitation, or
if there is any money under management by
the defendant as a result, and I think only
the Court can make that inquiry, the
government was not in a position to do so.
The judge eventually decided that the appellant had not
demonstrated an entitlement to a downward adjustment for
acceptance of responsibility. He subsequently asked the
prosecutor for a specific sentencing recommendation. The
prosecutor replied:
The government's recommendation in this case
is pursuant to our plea agreement. And I'm
well aware, your Honor, of the fact that my
recommendation is below what the Court has
determined the guidelines applicable to be.
Nonetheless, bound by that agreement the
government does recommend a sentence of 24
months which, of course, was based on the
calculations [of] the parties . . . .
Surveying the record in its entirety, we are persuaded
that the AUSA's commentary, though not a model of
circumspection, did not transgress the plea agreement. We
consider it important that the AUSA's remarks came at the
court's urging and in direct response to defense counsel's
attempt to put an innocent gloss on the post-plea activities.
In context, the comments appear reasonably calculated to furnish
the court the information that it needed to place those
activities in perspective.
12
We also deem it noteworthy that the AUSA approached the
matter cautiously. He interspersed his statements with
disclaimers about the sketchiness of the available information
and the limited extent of the government's knowledge. Perhaps
most important, he resolutely stood by the bottom-line
recommendation that the government had committed to make, urging
a 24-month sentence even after the court had indicated that it
would not award an acceptance-of-responsibility adjustment.
Despite these countervailing factors, the appellant
lobbies for a contrary conclusion. His argument places great
weight on two cases in which this court held that the government
breached plea agreements. Neither decision assists his cause.
In United States v. Clark, 55 F.3d 9 (1st Cir. 1995),
the government's sentencing memorandum, after acknowledging that
the plea agreement's terms obligated the government not to
oppose an adjustment for acceptance of responsibility, went on
to state that such largesse would be inappropriate based on
post-plea activities undertaken by the defendant. See id. at
12. Because the second statement effectively nullified the
government's feeble attempt to meet its original commitment, we
found that the government had breached the plea agreement. See
id. That is a far cry from the case at hand, in which the
13
prosecutor reported the newly-discovered facts to the court, but
nevertheless stuck by the government's agreed recommendations.
The appellant's second case, United States v. Canada,
960 F.2d 263 (1st Cir. 1992), is even more readily
distinguishable. There, we held that the prosecutor violated a
plea agreement because she "failed affirmatively to recommend 36
months, as promised, and she went on to emphasize [the
defendant's] supervisory role in the offense and then to urge
the judge to impose 'a lengthy period of incarceration' and to
send 'a very strong message.' " Id. at 269. Here, unlike in
Canada, the government at no point suggested — or even
insinuated — that the circumstances called for a different
sentence than the one it had agreed to recommend.
We will not paint the lily. Weighing, on the one hand,
the nature of the information relayed by the SEC and its
potential relevance to the sentencing determinations that the
judge was about to make, and, on the other hand, the
prosecutor's comments and the context in which they arose, we
hold that the government adequately balanced its promise-keeping
and disclosure obligations. See Mata-Grullon, 887 F.2d at 24-25
(holding that the government did not attempt an impermissible
end-run around a plea agreement promise when the prosecutor made
the agreed recommendation, but accurately informed the court of
14
the purity and danger of the drugs involved in the offense of
conviction). Thus, we discern no error — plain or otherwise —
in the handling of the disposition hearing.
B. The Plea Colloquy.
The appellant next complains that the sentencing court
violated Federal Rule of Criminal Procedure 11(e)(2) by failing
to inform him, at the change-of-plea hearing, that he would not
be able to withdraw his guilty plea if the court decided to
forgo the recommended 24-month sentence. While we accept the
basic premise of this complaint, we find the court's deviation
to have been harmless. Accordingly, we deny relief. See Fed.
R. Crim. P. 11(h) (stipulating that "[a]ny variance from the
procedures required by [Rule 11] which does not affect
substantial rights shall be disregarded").
Where, as here, the government and the defendant have
entered into a nonbinding plea agreement that embodies a
recommended sentence, Rule 11(e)(2) requires the court to
"advise the defendant that if the court does not accept the
recommendation . . . the defendant nevertheless has no right to
withdraw the plea." The court below omitted this advice. The
question, then, is whether that oversight constitutes reversible
15
error. That question must be asked despite the appellant's
failure to seek withdrawal of his plea in the district court.
See United States v. Santo, ___ F.3d ___, ___ (1st Cir. 2000)
[No. 99-1899, slip op. at 9-10]; United States v. McDonald, 121
F.3d 7, 10 (1st Cir. 1997).
We asked a similar question in United States v.
Noriega-Millán, 110 F.3d 162 (1st Cir. 1997), another case in
which the trial judge neglected to comply with the letter of
Rule 11(e)(2). We undertook a harmless-error analysis 2 and
proceeded to study whether the bevue had adversely affected the
defendant's substantial rights. See id. at 166-67. In the
course of that exercise, we emphasized that "Rule 11's core
concerns are absence of coercion, understanding of the charges,
and knowledge of the consequences of the guilty plea," and found
that, under the circumstances of the case, the trial court's
omission had not endangered these concerns. Id. at 167. We
based this finding on a combination of facts, including (1) the
court's admonition to the defendant that it did not have to
2 We left open the question whether harmless error or plain
error — a measure less favorable to the defendant — constituted
the correct standard of review. See Noriega-Millán, 110 F.3d at
166 n.4. The case at bar arises in a similar posture, but our
recent decision in United States v. Gandia-Maysonet, ___ F.3d
___, ___ (1st Cir. 2000) [No. 98-1141, slip op. at 9-11],
clearly indicates that the appellant's claim must survive plain-
error review.
16
indulge the agreed sentencing recommendation, and (2) language
in the plea agreement that specifically warned the defendant
that he would not be allowed to retract his plea. See id. at
164, 167. Accordingly, we regarded the error as harmless. See
id. at 168.
We believe that this case and Noriega-Millán are birds
of a feather. Here, as there, the court made statements at the
change-of-plea hearing that put the defendant on plain notice
that it was not bound by the plea agreement. Indeed, the court
below, at a later stage of the hearing, reinforced this message
by telling the appellant quite pointedly that once he pleaded
guilty, there was "no taking it back . . . no starting over."
While this statement's temporal separation from the earlier
statements defeats the government's argument that the
combination coalesced to meet the formal requirement of Rule
11(e)(2), it nonetheless is relevant to our inquiry.
Moreover, as in Noriega-Millán, the written plea
agreement in this case speaks loudly. Paragraph nine is
entitled "Court Not Bound By Agreement." As the caption
indicates, the provision spells out that the court is not wed to
the government's sentencing recommendations. It then states:
Defendant may not withdraw his plea of
guilty regardless of what sentence is
imposed. Nor may Defendant withdraw his
plea because the U.S. Probation Office or
17
the sentencing judge declines to follow the
Sentencing Guidelines calculations or
recommendations of the parties.
The appellant signed the plea agreement, acknowledging at the
time that he had read it and understood its contents. This
acknowledgment cannot be brushed aside as mere boilerplate:
Chief Judge Young questioned the appellant intensively at the
change-of-plea hearing, and the appellant stated unequivocally
that he had read the agreement completely, that he had discussed
it "multiple times" with his attorney, and that he fully
comprehended it.
That ends this aspect of the matter. The court's
admonitions, the appellant's statements, and the contents of the
plea agreement combined to put the appellant on ample notice of
the consequences of his plea. Armed with such knowledge, the
appellant's decision to change his plea was unlikely to have
been better informed by a more precise presentation of the
applicable ground rules. In other words, had the court told the
appellant explicitly that he would not be allowed to retract his
plea if the court rejected the recommended sentence, the sum
total of the appellant's knowledge would not have been increased
and his willingness to plead would, in all probability, have
18
been unaffected.3 The court's error was therefore both harmless,
see Noriega-Millán, 110 F.3d at 167, and not plain.
C. Acceptance of Responsibility.
The appellant also assails the lower court's refusal
to reduce his offense level for acceptance of responsibility.
His principal line of attack focuses on the lack of specific
subsidiary findings. He is waging a losing battle.
The sentencing guidelines prescribe that a defendant's
offense level should be trimmed by two levels, and sometimes
three, if he accepts responsibility for the offense of
conviction. See USSG §3E1.1. But a defendant is not entitled
to this adjustment as an inevitable concomitant of a guilty
plea. See USSG §3E1.1, cmt. (n.3). Rather, he must demonstrate
that he has taken full responsibility for his actions, and he
must do so candidly and with genuine contrition. See United
States v. Ocasio-Rivera, 991 F.2d 1, 4 (1st Cir. 1993); United
States v. Royer, 895 F.2d 28, 30 (1st Cir. 1990). Moreover,
"[t]he defendant has the burden of proving his entitlement to an
acceptance-of-responsibility credit, and the sentencing court's
determination to withhold the reduction will be overturned only
3We note that the appellant couches his argument in terms of
per se reversible error, carefully refraining from any claim
that the court's omission actually misled him. As previously
mentioned, that argument is foreclosed in this circuit. See
Noriega-Millán, 110 F.3d at 166-67.
19
if it is clearly erroneous." Ocasio-Rivera, 991 F.2d at 4
(internal citations omitted).
In this case, the appellant's post-plea activities —
the occurrence of which is not disputed — did not involve the
sale of unregistered securities per se. But by continuing to
couch offers of investment advice in pie-in-the-sky hyperbole,
under circumstances that easily could gull potential subscribers
into thinking that the appellant's hand would be on the tiller
throughout the subscription period, the appellant displayed a
high degree of insensitivity to the root causes of his original
problem. By the same token, these actions plainly revealed a
lack of understanding of the basic fallacy inherent in the
scheme that had put him in the dock. Thus, the court could well
have thought that, by pleading guilty, the appellant had
intended to acknowledge only that the technical requirements of
the securities laws had caused his venture to founder, and that
his subsequent actions showed a predilection to continue sailing
much too close to the wind.
In the last analysis, actions often speak louder than
words. Cf. Royer, 895 F.2d at 30 (emphasizing that "merely
mouthing empty platitudes should not entitle an offender" to a
downward adjustment under USSG §3E1.1). Because the appellant's
post-plea activities reasonably could be construed as exhibiting
20
conduct inconsistent with a full and ungrudging acceptance of
responsibility, the district court's ruling had a solid
foundation. See, e.g., United States v. Carrington, 96 F.3d 1,
9-10 (1st Cir. 1996); United States v. O'Neil, 936 F.2d 599,
600-01 (1st Cir. 1991). No more is exigible. See Royer, 895
F.2d at 30 (approving the denial of an acceptance-of-
responsibility credit when "the court had a plausible basis for
arriving at the conclusion").
The appellant seems to recognize this reality, and
spends most of his time arguing that the court made inadequate
findings on the subject. We have not heretofore imposed a
requirement that a sentencing court accompany a denial of a
downward reduction for acceptance of responsibility with
elaborate factfinding, and we decline today to place such a
burden upon the district courts. We are particularly reluctant
to do so when, as now, the reason for declining to grant the
adjustment — the appellant's course of conduct during the
interval between the change-of-plea hearing and the disposition
hearing — is readily apparent. We believe that such an approach
is in line with preferred practice. See United States v. Blas,
947 F.2d 1320, 1330 (7th Cir. 1991).
The appellant's criticism of the lack of findings has
another dimension. He charges that the sentencing court
21
neglected its obligations under Federal Rule of Criminal
Procedure 32(c)(1). The rule reads in pertinent part:
For each matter controverted, the court must
make either a finding on the allegation or a
determination that no finding is necessary
because the controverted matter will not be
taken into account in, or will not affect,
sentencing.
This effort is misguided. What the appellant
advertises as factual disputes are nothing of the kind. As we
illustrate below, the facts germane to acceptance of
responsibility are not in controversy.
The appellant claims that a factbound dispute exists
based on the text of paragraph 45 of the PSI Report. This
paragraph states in substance that the appellant's solicitation
of one-year subscriptions to his newsletter does not comport
with acceptance of responsibility, given the near-certain
prospect of his incarceration during that period. The appellant
rails that this is inaccurate because the newsletter possibly
could be run by others in his absence. This is not an argument
over the facts, but an argument over the persuasiveness of the
conclusion reached in the PSI Report (and subsequently adopted
by the district court). The appellant's attempt to contest the
PSI Report's assertion that the newsletter was fraudulent
suffers from the same infirmity; it is the significance of the
activities, not the activities themselves, that are in question.
22
The short of it is that the disagreements concerning
the appellant's post-plea activities center not on factual
discrepancies, but, rather, on the opinions of the probation
officer and the conclusions drawn by the sentencing court from
the undisputed facts. Rule 32(c)(1) imposes an obligation upon
the court to resolve contested facts that are material to a
sentencing decision, but that obligation does not extend to
opinions and conclusions. See United States v. Cureton, 89 F.3d
469, 474 (7th Cir. 1996); United States v. Osorio, 929 F.2d 753,
764 n.5 (1st Cir. 1991). Hence, Rule 32(c)(1) is inapposite to
the acceptance-of-responsibility issue.
D. The Fine.
Finally, the appellant alleges that the court below
erred in failing to make specific findings of fact when it fined
the appellant. This argument deserves short shrift.
The appellant's thesis consists of two parts. First,
he renews his reliance on Rule 32(c)(1) and suggests that the
court failed to resolve disputed issues of fact before imposing
the $100,000 fine. This suggestion overlooks that Chief Judge
Young, after hearing argument from both sides, expressly adopted
the findings and conclusions contained in the PSI Report. Thus,
"[t]he only logically inferable conclusion is that the court
rejected each and all of appellant's fact-based challenges to
23
the PSI Report." United States v. Savoie, 985 F.2d 612, 621
(1st Cir. 1993).
The second half of the appellant's thesis posits that
the sentencing court failed to consider the factors required by
18 U.S.C. § 3572(a), which provides that the court, in
determining the incidence and amount of a fine, shall consider,
inter alia, the defendant's income and financial resources; the
burden placed on the defendant and his dependents; the pecuniary
loss, net of restitution, suffered by others as a result of the
defendant's actions; and the need to deprive the defendant of
ill-gotten gains. See United States v. Merric, 166 F.3d 406,
408 (1st Cir. 1999) (discussing statutory purport). The
statute, however, does not require a sentencing court to follow
a rigid format, utter magic words, or employ a mechanical
formula. As long as the court gives consideration to the
factors discussed in section 3572(a), the statute is satisfied.
See id.; see also Savoie, 985 F.2d at 620.
In this case, the court complied sufficiently with
section 3572(a). In scrutinizing the record, we start with a
presumption of correctness — a presumption that, as long as the
sentencing court was presented with adequate record evidence, it
will be deemed to have considered the statutory criteria. See
Merric, 166 F.3d at 408; United States v. Wilfred Am. Educ.
24
Corp., 953 F.2d 717, 719-20 (1st Cir. 1992). The record here
reveals no sound basis for dispelling this presumption.
The relevant section of the PSI Report, which the court
explicitly adopted, contained all the necessary information
concerning the appellant's financial condition, the likely
impact of a fine on his family, and the details of the
restitution that he already had made. In addition, defense
counsel provided the court with abundant information concerning
factors adversely affecting the appellant's ability to pay.
Finally, although the GSR provided for a fine of between $7,500
and $7,000,000, the court opted to set the amount near the low
end of this range. We view this as some additional evidence
that the court paid attention to the required factors and did
not simply pull a punitive figure out of thin air. See, e.g.,
United States v. Peppe, 80 F.3d 19, 22-23 (1st Cir. 1996).
Taking all of this into account we hold, without serious
question, that the district court complied adequately with
section 3572(a). See Merric, 166 F.3d at 408 ("Where the
pertinent information is presented in the district court, this
court will assume that the district court considered it.").
III. CONCLUSION
We need go no further. To the extent that the
appellant raises other points, they are insufficiently
25
developed, obviously incorrect, or both. The short of it is
that the appellant was lawfully sentenced.
Affirmed.
26
United States v. Saxena
Court: Court of Appeals for the First Circuit
Date filed: 2000-10-03
Citations: 229 F.3d 1
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