United States v. Saxena

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

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developed, obviously incorrect, or both. The short of it is

that the appellant was lawfully sentenced.

Affirmed.

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