United States v. Springer

United States Court of Appeals
For the First Circuit

No. 93-1642

UNITED STATES,

Appellee,

v.

JEFFREY SPRINGER,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

Breyer,* Chief Judge,

Boudin and Stahl, Circuit Judges.

Michael C. Bourbeau, by Appointment of the Court, with whom

Bourbeau and Bourbeau was on brief for appellant.

Margaret E. Curran, Assistant United States Attorney, with whom

Edwin J. Gale, United States Attorney, and Ira Belkin, Assistant

United States Attorney, were on brief for appellee.

July 7, 1994

*Chief Judge Stephen Breyer heard oral argument in this matter but did
not participate in the drafting or the issuance of the panel's
opinion. The remaining two panelists therefore issue this opinion
pursuant to 28 U.S.C. 46(d).

STAHL, Circuit Judge. Jeffrey Springer appeals the

sentence imposed after he pled guilty, pursuant to a plea

agreement, to one count of wire fraud, 18 U.S.C. 1343, and

one count of bank fraud, 18 U.S.C. 1344. Springer makes

three arguments, none of which was presented to the district

court in the first instance: 1) that the district court

erred in granting him only a two-level, rather than a three-

level, acceptance of responsibility reduction in his

sentencing guidelines offense level; 2) that the court did

not adequately consider his financial circumstances when it

ordered him to pay $1,018,347 in restitution; and 3) that he

received ineffective assistance of counsel because his

attorney failed to object to either the court's failure to

award him a three-level reduction for acceptance of

responsibility or to the restitution order. The government

says that we need not consider these questions because

Springer waived his right to appeal as part of his plea

agreement. Because we discern no plain error in the relevant

decisions made by the district court, see United States v.

Cabrozza, 4 F.3d 70, 84 (1st Cir. 1993), cert. denied, 114 S.

Ct. 1644 (1994), we need not address this issue, and affirm

defendant's sentence.

I.

Acceptance of Responsibility

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Springer was sentenced in May 1993. Pursuant to

the November 1992 version of the Guidelines (the version in

effect at the time of his sentencing), the district court

looked to the 1988 version of the Guidelines (the version in

effect at the time Springer committed his crime) to calculate

Springer's sentence. It did this because application of the

1992 version would have resulted in Springer receiving a more

severe sentence than he could have anticipated at the time of

his crime, see U.S.S.G. 1B1.11(b)(1) (Nov. 1992) (directing

courts to use Guidelines in effect at time offense was

committed if Guidelines in effect at time of sentencing would

violate the Constitution's ex post facto Clause). As part of

the calculation of Springer's sentence, the court granted

Springer the two-level downward adjustment for acceptance of

responsibility available under the 1988 version of the

Guidelines. See U.S.S.G. 3E1.1 (Nov. 1988). Springer now

argues that the district court erred because it did not

consider granting him a three-level reduction for acceptance

of responsibility, the maximum adjustment available under the

1992 version of the Guidelines. U.S.S.G. 3E1.1 (Nov.

1992).

The district court correctly looked to the 1988

Guidelines in determining the maximum permissible downward

adjustment for Springer's acceptance of responsibility. The

1992 Guidelines set forth what has been referred to as the

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"one book" rule. See U.S.S.G. 1B1.11(b)(2) (Nov. 1992).

This provision instructs the district court that when it

looks to an earlier version of the Guidelines to calculate a

sentence, it must apply all of the Guidelines in that earlier

version. It provides that a court cannot "apply . . . one

section from one edition . . . and another guideline section

from a different edition." Id.

There is no doubt that Springer received a lighter

sentence under the 1988 Guidelines than he would have

received under the 1992 version. For Springer's purposes,

there was one important difference between the two versions:

under the 1988 Guidelines, Springer's offense level was

increased by nine levels to account for the $1.8 million loss

he caused, while under the 1992 Guidelines, that same loss

would have resulted in a twelve-level increase. Compare

U.S.S.G. 2F1.1(b)(1)(J) (Nov. 1988) with U.S.S.G.

2F1.1(b)(1)(M) (Nov. 1992). This difference meant that, even

with a three-level reduction for acceptance of

responsibility, Springer's applicable guideline sentencing

range under the 1992 Guidelines would have been 24 to 30

months. Under the 1988 Guidelines, however, with the two-

level reduction for acceptance of responsibility, Springer's

sentencing range was 18 to 24 months.1

1. Springer was sentenced to 18 months in prison, the low
end of the Guideline.

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Springer advances three reasons why the court

should not have applied the "one book" rule, but instead

should have given him the benefit of both the 1992

Guidelines' acceptance of responsibility provision and the

1988 Guidelines' smaller increase for amount of loss. First,

he says that the "one book" guideline was not in effect at

the time of his offense and that its application here would

violate the ex post facto Clause. U.S. Const. Art. I, 9.

This is simply incorrect. The ex post facto Clause "forbids

the imposition of punishment more severe than the punishment

assigned by law when the act to be punished occurred."

Weaver v. Graham, 450 U.S. 24, 28 (1981). By looking to the

1988 Guidelines, the district court imposed the very

punishment provided for by law at the time Springer committed

the act for which he was being punished.

Springer's second argument is no more availing. He

argues that, by statute, he is entitled to the benefit of the

pre-sentence modifications of the Guidelines. He construes

18 U.S.C. 3553(a)(4), which directs the sentencing court to

"consider . . . the Guidelines . . . that are in effect on

the date the defendant is sentenced," as requiring

application of the November 1992 version of the "acceptance

of responsibility" provision. However, Springer

misunderstands the process by which the sentencing court

calculated his sentence. The sentencing court did apply the

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November 1992 Guidelines. It was the 1992 Guidelines that

instructed the court to look to the 1988 Guidelines because

of ex post facto concerns, and it was the 1992 Guidelines

that instructed the court to apply the "one book" rule and to

look to the 1988 Guidelines in order to determine the

appropriate reduction for acceptance of responsibility.

Thus, the sentencing court acted in accordance with

3553(a)(4). See also 18 U.S.C. 3553(a)(5) (Sentencing

court should "consider . . . any pertinent policy statement .

. . that is in effect on the date defendant is sentenced.").

Springer's third argument is that if the "one book"

rule applies, he will be treated differently than other 1988

offenders sentenced after the 1992 amendment to the

acceptance of responsibility provision (or, at least,

differently than those for whom application of the 1992

guidelines does not create ex post facto concerns). This

argument is a red herring. What matters is that Springer

will be treated the same as all those convicted of the same

offense at the same time, regardless of when they are

sentenced. This is consistent with the concerns of Congress

and the Guidelines' goal of uniformity. Cf. 18 U.S.C.

3553(a)(6) (Sentencing court should "consider . . . the need

to avoid unwarranted sentence disparities among defendants .

. . who have been found guilty of similar conduct.").

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Accordingly, we do not discern any error, let alone

any plain error, in the district court's failure to award

Springer a three-level reduction for acceptance of

responsibility.

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II.

Restitution Order

As a condition of supervised release, the

sentencing court ordered Springer to pay restitution of

$1,018,347 to the bank from which Springer had secured a

construction loan in the amount of $1,460,000 (using as a

basis for his credit worthiness fraudulent personal tax

returns). Springer argues that the sentencing court did not

sufficiently consider his ability to pay restitution. We

disagree.

In fashioning a restitution order, a court must

consider "the financial resources of the defendant, the

financial needs and earning ability of the defendant, and

such other factors as the court deems appropriate." 18

U.S.C. 3664(a). The court need not make specific findings

respecting these considerations as long as "the record on

appeal reveals that the judge made implicit findings or

otherwise adequately evinced his consideration of the[]

factors [listed in 18 U.S.C. 3664(a)]." United States v.

Savoie, 985 F.2d 612, 618 (1st Cir. 1993).

Here, it appears that the sentencing court

sufficiently considered these factors. Springer says that he

was a college dropout with a sporadic work history, no

assets, and more than $900,000 in liabilities, and thus

clearly unable to pay over $1 million in restitution.

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However, the sentencing court had all of this information

before it in the pre-sentence investigation report ("PSR").

Moreover, it explicitly adopted the PSR's findings. Cf.

Savoie, 985 F.2d at 619. Furthermore, at the sentencing

hearing, the court made the following comments on the

restitution order:

You have a very large
restitution obligation and the
Court -- you don't really have
much assets now. The Court has
no doubt that at some point you
probably will.

This statement by the court does not reflect "the possibility

of an unforeseen windfall," as Springer suggests. Instead,

we construe it as evincing a firm belief, on the part of the

district court, that Springer eventually will be able to meet

his obligation. This is consistent with the many other

statements made by the court to the effect that Springer was

a talented individual who could be successful if he

redirected his energies to lawful activities. In fact, this

sanguine view of Springer's future was the primary reason

given by the court for sentencing Springer at the low end of

the Guideline range.

It appears that the sentencing court had the

relevant information before it and considered the appropriate

factors in making its restitution order. No more is

required. Cf. United States v. Brandon, 17 F.3d 409, 461

(1st Cir.) ($500,000 restitution order upheld for indigent

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defendant who had prospect of future inheritance and ability

to obtain gainful employment), petition for cert. filed,

U.S.L.W. (June 13, 1994) (No. 93-2001).2

Accordingly, we find no plain error in the district

court's restitution order.

III.

Ineffective Assistance of Counsel

Springer argues that he received ineffective

assistance of counsel because his attorney did not raise the

issue of the court's failure to consider the three-level

reduction for acceptance of responsibility and because his

attorney did not protest the size of the restitution order.

Because Springer was not entitled to a three-level reduction,

his attorney cannot be blamed for not raising the issue.

Insofar as the failure to object to the restitution order may

give rise to an ineffective assistance claim, we will, in

accordance with our usual practice, not entertain it for the

first time on direct appeal. This is because the claim here

would require us to go beyond the sentencing record and

consider such things as sentencing counsel's strategy. See

United States v. Beasley, 12 F.3d 280, 285 (1st Cir. 1993).

2. If the court's restitution order, the satisfaction of
which is a condition of Springer's supervised release, does
turn out to be unreasonably onerous, we see no reason why the
district court cannot, in the future, modify it. See 18

U.S.C. 3663(g).

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IV.

Conclusion

For the reasons stated above, we affirm Springer's

sentence.

Affirmed.

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