United States v. Wallace

United States Court of Appeals
For the First Circuit

No. 07-1884

UNITED STATES OF AMERICA,

Appellee,

v.

TIMI WALLACE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. William E. Smith, U.S. District Judge]

Before

Torruella, Selya, and Lipez,
Circuit Judges.

Camille A. McKenna, with whom Mann and Mitchell was on brief,
for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Robert Clark Corrente, United States Attorney, and Lee H.
Vilker, Assistant United States Attorney, were on brief, for
appellee.

July 23, 2009
 LIPEZ, Circuit Judge. On October 15, 2004, after a four-

day trial, a jury convicted appellant Timi Wallace of various

crimes related to the September 2000 armed robbery of a firearms

store in Providence, Rhode Island. He was sentenced to twenty-five

years in prison (300 months). Wallace appealed, challenging both

the validity of his convictions and the sentence imposed by the

trial court. In a detailed opinion, we affirmed Wallace's

convictions, but held that several sentencing errors required a

remand. See United States v. Wallace, 461 F.3d 15 (1st Cir. 2006).

At the resentencing hearing, the district court imposed a 294-month

term of imprisonment, six months less than its prior sentence.

Wallace now appeals for a second time, raising a number of

challenges to the sentence imposed by the district court on remand.

These objections fall into three categories. First,

Wallace raises for the first time two claims of error that,

although they were available to him, he did not pursue in his first

appeal. Second, he explicitly asks us to reconsider two objections

that we resolved against him in the first appeal. We find all of

the preceding claims barred by the law of the case doctrine.

Finally, Wallace challenges the district court's decision to depart

upwardly from the United States Sentencing Guidelines on the basis

of his underrepresented criminal history and the extreme

psychological injuries suffered by the victims of the robbery, and

asserts that his sentence, taken as a whole, was unreasonable.

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Although these last claims are properly before us, we affirm the

district court in all respects.

I.

Because our opinion in the first appeal describes the

offense, the trial, and the first sentencing in detail, see

Wallace, 461 F.3d at 19-24, we limit ourselves to those facts which

are most relevant to his claims of error in this appeal.

A. The Offense

On September 25, 2000, appellant's brother, Nickoyan

Wallace ("Nickoyan"), entered a firearms dealership in Providence,

Rhode Island, and asked to see certain merchandise. The store's

owner, Donn DiBiasio, and his assistant, Donna Gallinelli, were on

duty. As Gallinelli was retrieving the items that Nickoyan had

requested, appellant entered the store, brandishing a semi-

automatic weapon known as a "TEC-9." He then ran up to DiBiasio,

pointed the gun at him, and yelled "Don't move." When Gallinelli

tried to escape, Nickoyan drew a handgun which he pointed at her,

ordering her to stop. Next, Nickoyan leapt over the counter and

forced Gallinelli to open the display case, specifically demanding

that she retrieve certain high-caliber weapons. He stole six of

these high-caliber handguns and, heeding appellant's instruction to

hurry up, fled the store with his brother.

Although Nickoyan was arrested and tried almost

immediately, appellant, using a variety of aliases and other

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deceptive tactics, managed to evade arrest until July 2004. After

a four-day jury trial, he was convicted of obtaining six firearms

by robbery, in violation of 18 U.S.C. § 1951 (Count I of the

indictment); conspiracy to obtain the firearms by armed robbery,

also in violation of 18 U.S.C. § 1951 (Count II); theft of firearms

from a federally licensed firearms dealer, in violation of 18

U.S.C. § 922(u) (Count III); and brandishing a firearm during and

in relation to a crime of violence, in violation of 18 U.S.C. §

924(c)(1)(A)(ii) (Count IV).

B. The First Sentencing

Grouping Counts I and II, the 18 U.S.C. § 1951 charges,

for a base offense level of 20 under the Guidelines, the pre-

sentence report ("PSR") recommended a two-level enhancement for

physical restraint of victims, a one-level enhancement for theft of

a firearm, and a two-level enhancement for obstruction of justice

through perjury, yielding an adjusted offense level of 25.1 For

Count III of the indictment, stealing a firearm from a federally

licensed dealer, the PSR started at a base offense level of 20. To

this base offense level, the PSR added a three-level enhancement

because the number of firearms unlawfully received or possessed

1
The PSR, as well as all subsequent court proceedings,
applied the 1998 Guidelines Manual, and we therefore do the same.
See Wallace, 461 F.3d 22 n.3. Accordingly, all references to the
Guidelines refer to the 1998 Manual, unless otherwise noted.

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during the offense was between eight and twelve;2 a two-level

enhancement because the firearms were stolen; and the same two-

level enhancements for physical restraint of victims and

obstruction of justice that were applied to the robbery counts.

The adjusted offense level for Count III was therefore 29. Because

Counts I - III involved the same victims and conduct, the PSR

adopted the higher of the two offense levels (29). See Wallace,

461 F.3d at 23 (citing U.S.S.G. § 3D1.2(b)). Finally, Count IV of

the indictment, the brandishing count, carried a mandatory eighty-

four month (seven-year) consecutive term.

Since Wallace had no criminal convictions, the PSR

classified him as criminal history category I. In combination with

the adjusted offense level of 29 for Counts I-III, this category

yielded a sentencing range of 87-108 months, to run consecutively

with the 84 months required by the brandishing count.

At sentencing, the district court concluded that the

guidelines range calculated by the PSR was inadequate, and decided

to depart upwardly five levels to an offense level of 34. It also

assigned a criminal history category of III to account for his

commission of the crime while under indictment for another felony.3

2
Although Wallace was convicted of stealing six firearms from
the store, the multiple weapons enhancement included the two guns
that the defendant and his co-conspirator brandished during the
robbery. See U.S.S.G. § 2K2.1(b)(C); Wallace, 461 F.3d at 35.
3
As we discuss infra, the district court's finding that
Wallace was under indictment for another felony was erroneous. As

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All told, the court sentenced appellant to 216 months for Counts I

and II, 120 months for Count III (to be served concurrently with

the term for Counts I and II), and 84 months for Count IV to be

served consecutively. Thus, Wallace received a total sentence of

300 months, or 25 years, in prison.

C. The First Appeal

In his first appeal, Wallace challenged his convictions

as well as the sentence, both of which he assailed on numerous

grounds. Because our reasons for upholding the convictions are

irrelevant to this appeal, we provide a brief summary of the

sentencing portion of our decision only.

Wallace had argued "that the sentence was based on error

. . . both in terms of the court's calculation of the advisory

guidelines range and its application of the guidelines provisions

to depart upwardly from that range." 461 F.3d at 30.4 We first

addressed Wallace's claims of error in the PSR's recommended

advisory guidelines range, holding that the district court properly

imposed both the two-level enhancement for the physical restraint

of a victim and the three-level enhancement for the number of

the PSR correctly noted, there had been a complaint lodged in
Massachusetts state court accusing appellant of murdering his own
brother, Tasfa Wallace, but the case had not yet proceeded to an
indictment.
4
Wallace also challenged the substantive reasonableness of
his sentence. Because of our other rulings, we did not need to
reach this issue on his first appeal.

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firearms involved in the offense. We then considered the

sentencing court's upward departure from the guidelines, and

concluded that both appellant's use of a dangerous instrumentality

in the commission of the offense and the disruption of government

functions caused by appellant's four-year evasion of arrest were

proper grounds for an upward departure. However, we also found

that the sentencing court had erred in upwardly departing on the

basis of (i) obstruction of justice; (ii) extreme psychological

injury to the victims of the offense; (iii) facilitation of

criminal purpose; and (iv) defendant's criminal history category.

We found that the district court's decision to depart upwardly on

three of these grounds, without any factual basis in the record, in

combination with an insufficient explanation as to a fourth ground,

constituted plain error that had affected Wallace's substantial

rights. Id. at 44. Accordingly, the case was "remanded for

resentencing." Id. at 45.

D. Resentencing

At resentencing, the district court first reviewed the

PSR and reiterated its earlier findings that: the total offense

level for Counts I-III was 29; defendant's criminal history

category was I; and the brandishing charge carried a mandatory 84-

month sentence. Defense counsel then "reiterat[ed] all the prior

objections that were filed by prior counsel," referring,

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apparently, to the original objections to the PSR which had been

filed before the first sentencing. The court responded:

I don't think we need to have much discussion
about those issues, because, unless there's
something new, I think those were argued
before me previously. They were denied. The
Court of Appeals in its thorough opinion
reviewed the basis for those objections and
rejected them.
So I would simply incorporate what is
said by the Court of Appeals with respect to
those objections, and to the extent they're
reiterated here, then they're denied.

Next, Mr. DiBiasio, the owner of the gun store who was on duty at

the time of the robbery, testified in detail about the impact of

the crime on his life and mental health.

After this testimony and argument from counsel, and on

the government's motion, the court again decided to depart upwardly

from the guidelines sentencing range. The departure was based on

four different grounds, two of which we had affirmed in the first

appeal and two of which we had reversed. Specifically, the court

reimposed a two-level increase for Wallace's use of dangerous

weapons during the offense and a one-level increase for his

disruption of government function, both of which we had previously

found to be appropriate grounds for an upward departure. However,

in light of our holding that the upward departure for extreme

psychological injury to the victim had been insufficiently

justified at the original sentencing, the court explained at length

on remand why a two-level departure was indeed warranted. Taken

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together, and starting from the base offense level of 29, these

grounds for departure yielded a total offense level of 34 (29 + 2

+ 1 + 2). Finally, the district court chose to impose on remand

only a one-level criminal history departure, placing appellant in

criminal history Category II. We had previously reversed the

district court's original two-level criminal history departure.

The revised Guidelines analysis thus yielded a total

offense level of 34, a criminal history category of II, and a

guidelines sentencing range of 168-210 months on Counts I-III, plus

the mandatory 84-month term from the brandishing charge. After

weighing the factors enumerated in 18 U.S.C. § 3553, the court

chose a sentence at the top of the guidelines range and imposed a

term of imprisonment of 294 months, or 6 months fewer than its

prior sentence. Finally, the court explained why Wallace's

sentence of 294 months imprisonment, as compared with Nickoyan's

204-month term, did not create an inappropriate sentencing

disparity.

E. Wallace's Challenges to Resentencing

In the instant appeal, the government argues that several

of Wallace's numerous challenges to the sentence imposed on remand

are barred, in one way or another, by the law of the case doctrine.

These potentially precluded claims fall into two categories.

First, there are two grounds for departure - the dangerous weapons

and disruption of government function grounds - that we upheld as

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valid in Wallace's first appeal, but that he now asks us to

"reconsider." Second, there are two enhancements - for obstruction

of justice and for appellant's use of stolen weapons - that were

first imposed at the initial sentencing and which, after Wallace

failed to challenge them in the first appeal, were reimposed on

remand. After setting forth the law of the case doctrine as it

applies here, we address briefly each issue in both categories in

turn, and then move to those objections that are properly before

us.

II.

A. Law of the Case Doctrine

Under the law of the case doctrine, "'when a court

decides upon a rule of law, that decision should continue to govern

the same issues in subsequent stages in the same case.'" Naser

Jewelers, Inc. v. City of Concord, 538 F.3d 17, 20 (1st Cir. 2008)

(quoting Arizona v. California, 460 U.S. 605, 618 (1983)). We

have explained that this doctrine has two branches. The first

branch - the so-called "mandate rule" - "prevents relitigation in

the trial court of matters that were explicitly or implicitly

decided by an earlier appellate decision in the same case." United

States v. Moran, 393 F.3d 1, 7 (1st Cir. 2004). The second branch

binds successor appellate panels in a second appeal in the same

case. Id. Both branches are implicated here.

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 1. The mandate rule

We explained the mandate rule in United States v. Bell,

988 F.2d 247, 250 (1st Cir. 1993):

The black letter rule . . . is that a legal
decision made at one stage of a civil or
criminal case, unchallenged in a subsequent
appeal despite the existence of ample
opportunity to do so, becomes the law of the
case for future stages of the same litigation,
and the aggrieved party is deemed to have
forfeited any right to challenge that
particular decision at a subsequent date
. . . . Abandoning this prudential principle
would threaten the important policy
considerations underlying the law of the case
doctrine, such as "stability in the
decisionmaking process, predictability of
results, proper working relationships between
trial and appellate courts, and judicial
economy."

(citation omitted).

In United States v. Ticchiarelli, 171 F.3d 24 (1st Cir.

1999), the defendant had originally been sentenced as a manager or

supervisor of a conspiracy. Id. at 28. In his first appeal, he

raised a number of issues, but did not challenge the district

court's determination that he was a manager for sentencing

purposes. Id. On remand, the district court denied his request to

reopen this issue, invoking the law of the case doctrine. Id. On

appeal, we considered "whether the district court was correct in

not hearing the matter again," id., and found that it was:

The court was plainly correct [in refusing to
reopen the issue]. This is not a question of
what leeway there is to explore on remand an
issue directly related to the matter being

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 remanded. This is rather a question of
whether a party, not having appealed from an
aspect of explicit findings and conclusions at
sentencing, is free on remand as to a
different unrelated issue to require the court
to hear that aspect again.

Id. We rejected the argument that because we had not addressed the

issue in the first appeal, the district court was free to

reconsider the issue. That argument missed "the basic point" of

the doctrine: that "findings and conclusions that are not appealed

and are not related to the issues on appeal are treated as

settled." Id. at 29.5

However, we have also recognized that, "even where . . .

an appellate court's mandate does not contemplate resurrecting an

issue on remand, the trial court may still possess some limited

discretion to reopen the issue in very special situations." Bell,

988 F.3d at 250-51. The standard for reconsidering an issue under

the mandate rule requires a showing of what we have termed

"exceptional circumstances": a change in controlling legal

authority, significant new evidence not earlier obtainable with due

5
We also reject Wallace's argument that the result of his
prior appeal was a "general remand" that allowed the district court
to review all sentencing matters de novo. "Although some circuits
do generally allow de novo resentencing on remand, the First
Circuit does not." United States v. Cruzado-Laureano, 527 F.3d
231, 234 (1st Cir. 2008) (citations omitted). This is the thrust
of our decision in Ticchiarelli - that upon a resentencing after a
remand, the district court may only consider "such new arguments or
new facts as are made newly relevant by the court of appeals'
decision - whether by the reasoning or by the result." Id. at 235
(citing Ticchiarelli, 171 F.3d at 32).

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diligence, or the prospect of a serious injustice. See Bell, 988

F.3d at 251.

2. Subsequent Appellate Panel Rule

This branch of the law of the case doctrine "contemplates

that a legal decision made at one stage of a criminal or civil

proceeding should remain the law of that case throughout the

litigation, unless and until the decision is modified or overruled

by a higher court." Moran, 313 F.3d at 7. A panel's

reconsideration of a ruling made by a previous panel in the same

case may be proper "if the initial ruling was made on an inadequate

record or was designed to be preliminary or tentative," if there

has been "a material change in the controlling law," if "newly

discovered evidence bears on the question," or if reconsideration

would "avoid manifest injustice." Ellis v. United States, 313 F.3d

636, 647-48 (1st Cir. 2002). "A finding of manifest injustice

requires a definite and firm conviction that a prior ruling on a

material matter is unreasonable or obviously wrong," as well as a

finding of prejudice. Id. at 648-49 & 648 n.5.

3. Wallace's Waiver Argument

Wallace argues that we should not apply the law of the

case doctrine to any of his claims because the government did not

explicitly raise the law of the case at resentencing before the

district court, and hence should be precluded from invoking it on

appeal. In support of this argument, appellant cites United States

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v. Lorenzo-Hernández, 279 F.3d 19, 22 (1st Cir. 2002), where we

refused to punish the defendant for the district court's failure to

apply the mandate rule because "the government did not present" the

argument to the district court. We stated that "[i]f the

government wishes to assert at resentencing before the district

court after remand that certain issues resolved earlier should not

be revisited, it should say so then." Id. Thus, to the extent

appellant may rely on this case, it is only for its implications

about the proper application of the mandate rule. Since oral

argument in this case, we have again rejected the government's

argument that the mandate rule should have barred an appellant's

claim after resentencing because the government had "failed to make

th[e] argument to the district court." United States v. Olivero,

552 F.3d 34, 41 n.4 (1st Cir. 2009).

Both of these cases are inapposite. In each, the

district court at resentencing fully considered the defendant's

sentencing challenge, with no substantive opposition from the

government, which then sought to invoke the mandate rule for the

first time on appeal. Thus, much of the efficiency gains provided

by the doctrine were already lost. Here, however, after Wallace's

cursory statement that he "reiterat[ed] all the prior objections

[to the PSR] that were filed by prior counsel," the district court

properly replied that there was no need for discussion of those

issues, "unless there [was] something new," because those issues

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"were argued before [the court] previously. They were denied."

The court also incorporated by reference anything we had said with

respect to those objections in Wallace's first appeal, and noted

that, to the extent those objections were reiterated at

resentencing, they were denied. Accordingly, without referring to

the law of the case doctrine explicitly, the court essentially

applied the mandate rule to Wallace's arguments; the government

never had occasion to raise it. Under these circumstances, with

the district court applying the law of the case doctrine itself,

there was no need for the government to invoke the doctrine below,

and Lorenzo-Hernández and Olivero do not apply.6

6
Wallace also argues that the government's failure to raise
the law of the case below precludes us from applying the subsequent
appellate panel rule to those issues that he explicitly asks us to
"reconsider." We fail to see how a doctrine directed at subsequent
appellate panels can be waived by failure to raise it at the trial
level. We also note that the dicta in Lorenzo-Hernández and
Olivero should not be understood to suggest that the government
waives all law of the case arguments by failing to raise them in
the district court. Frankly, we are uneasy with this dicta, which
would impose a burden on us to reconsider issues already decided.
The prudential law of the case doctrine is ultimately directed at
conserving judicial resources and preserving the integrity of our
own processes. See, e.g., Ellis, 313 F.3d at 647; United States v.
Rivera-Martinez, 931 F.2d 148, 149 (1st Cir. 1991). We therefore
reject any intimation in our cases that we cannot raise the law of
the case issue sua sponte if we deem it appropriate. See, e.g.,
Maxfield v. Cintas Corp. No. 2, 487 F.3d 1132, 1135 (8th Cir.
2007); Bollinger v. Or., 172 F. App'x 770, 771 (9th Cir. 2006);
DiLaura v. Power Auth. of State of N.Y., 982 F.2d 73, 76 (2d Cir.
1992).

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B. Objections Not Raised in the First Appeal

1. Obstruction of Justice Enhancement

The original PSR recommended a two-level sentencing

enhancement under U.S.S.G. § 3C.1.1 for obstruction of justice

based on Wallace's perjury. He timely objected. At the initial

sentencing, the court stated that an upward departure beyond the

two-level enhancement was appropriate. In his first appeal,

Wallace did not challenge the application of the two-level

enhancement for obstruction of justice as recommended by the PSR;

instead, he appealed only the court's subsequent upward departure

from that two-level enhancement. See Wallace, 461 F.3d at 38 n.12.

In this appeal, Wallace attempts to use the court's

response to his reiteration of all original objections to the PSR

(stating that his objections had been reviewed and rejected on

appeal) to argue that the district court erroneously concluded that

we had affirmed the obstruction of justice enhancement. As Wallace

correctly points out, because he elected not to challenge the

district court's application of the two-level enhancement in his

first appeal, we did not consider it. Wallace misguidedly insists

that this fact actually helps his position, claiming that when he

reincorporated all of his original objections to the PSR at

resentencing, the objection to the obstruction of justice

enhancement was somehow resurrected and, therefore, it is

appropriate for us to consider it in this second appeal.

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 We will not reach appellant's argument that the

enhancement was erroneously applied. When Wallace failed to

challenge the obstruction of justice enhancement the first time

around, it became the law of the case. See Bell, 988 F.2d at 250.

The district court appropriately noted that, unless there was

something new, appellant's original objections to the PSR did not

merit discussion and, "to the extent they [were reiterated at

resentencing]," were once again denied. Thus, the district court

properly applied the mandate rule and refused to consider Wallace's

cursory objection to this enhancement.

Nor does this claim fit within any of the recognized

exceptions to the mandate rule. We explicitly reject the argument

(found only in Wallace's reply brief) that failure to reexamine the

issue would result in a serious injustice. He argues that the

enhancement was unwarranted because the district court made no

findings regarding his perjury at either sentencing, citing United

States v. Dunnigan, 507 U.S. 87 (1993), for the proposition that

such findings were required. However, the jury had already found

that Wallace committed perjury, see Wallace, 461 F.3d at 22, and,

in fact, the court endorsed this finding at the first sentencing.

Because we are not compelled to conclude that the ruling was

"unreasonable or obviously wrong" or that Wallace was prejudiced by

the district court's failure to make more specific findings (if

any were required), his attempt to show any injustice fails.

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 2. Stolen Weapons Enhancement

In the initial PSR, the Probation Office proposed a two-

level enhancement under U.S.S.G. § 2K2.1(b)(4), which instructs the

court: "[i]f any firearm was stolen, or had an altered or

obliterated serial number, increase by two levels." Over

defendant's objection, the district court applied this enhancement.

However, Wallace did not challenge the enhancement on appeal, and

it was reimposed at resentencing, subject only to the same summary

"objection" as all of Wallace's initial objections to the PSR. At

this stage in the litigation, Wallace's claim that the district

court's imposition of the stolen weapons enhancement was

inappropriate because "it should not apply in cases where the

firearm was stolen during the course of the instant offense" is

barred by the law of the case doctrine. Just as with the

obstruction of justice enhancement, the district court's implicit

invocation of the mandate rule was proper.

Furthermore, his attempt to invoke an exception to the

doctrine fails in light of United States v. Brown, 169 F.3d 89, 93

(1st Cir. 1999). There, relying upon application note 12 to

U.S.S.G. § 2K2.1, we rejected appellant's argument that the

district court "double counted" the stolen nature of the firearm.

Id. Here, as in Brown, Wallace's offense level was not determined

under U.S.S.G. § 2K2.1(a)(7) (the catch-all provision for crimes

involving the unlawful receipt or possession of firearms), which

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already "takes into account that the firearm . . . was stolen."

U.S.S.G. 2K2.1 cmt. n. 12.7 Thus, there was no double counting,

and the stolen weapons enhancement was properly applied in view of

application note 12, Brown, and the case law from other circuits.8

Accordingly, there is no error, let alone injustice, in the

imposition of this enhancement that would preclude application of

the law of the case doctrine.

C. "Reconsidering" Issues Decided in the First Appeal

Wallace also explicitly asks us to "reconsider" our prior

decision on the dangerous weapons and the disruption of government

function grounds for departure. We decline to do so.

1. Dangerous Weapons Departure

Wallace argues that his use of a dangerous weapon during

the robbery was an improper basis for an upward departure because

his use of that weapon, the TEC-9, was already accounted for by

7
Instead, it was determined under U.S.S.G. § 2K2.1(a)(4)(B),
which prescribes a base offense level of 20 if "the offense
involved a firearm described in 26 U.S.C. § 5845(a) or 18 U.S.C. §
921(a)(30); and the defendant (i) is a prohibited person; or (ii)
is convicted under 18 U.S.C. § 922(d)." According to the PSR,
Wallace was a "prohibited person" within the meaning of 18 U.S.C.
§ 922(g) because he was a fugitive from justice at the time of the
offense (since he was a suspect in connection with the murder of
his brother) and also because he admitted being an unlawful,
addicted user of marijuana at the time of the offense. See
U.S.S.G. § 2K2.1, cmt. n. 6.
8
See, e.g., United States v. Goff, 314 F.3d 1248, 1249-50
(10th Cir. 2003); United States v. Hurst, 228 F.3d 751, 764 (6th
Cir. 2000); United States v. Shepardson, 196 F.3d 306, 311-14 (2d
Cir. 1999).

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various other Guidelines provisions. The application of the

subsequent appellate panel branch of the law of the case doctrine

to this claim is straightforward. We have already held that

appellant's use of a dangerous weapon was a valid basis for the

upward departure, 461 F.3d at 36, and Wallace cannot meet the heavy

burden required to invoke an exception under the law of the case

doctrine. He cites no newly discovered evidence or intervening

legal authority that requires us to reconsider, and there can be no

credible claim that our failure to do so would work a "manifest

injustice" in this case. As a general matter, we have long held

that double-counting is "less sinister than the name implies.”

United States v. McCarty, 475 F.3d 39, 46 (1st Cir. 2007)

(quotation marks and citation omitted). "This is because two (or

more) guidelines will often rely on the same underlying facts,

although accounting for different sentencing concerns." Id.

(citing Wallace, 461 F.3d at 36). Wallace cannot cite any

Guidelines that explicitly prohibit the "double-counting" he

alleges here, and the other enhancements he cites clearly

"account[] for different sentencing concerns." McCarty, 475 F.3d

at 46. Therefore, this claim is barred by the law of the case

doctrine.

2. Disruption of Government Function

We similarly refuse to revisit our prior affirmance of

the district court's decision to depart upwardly based on

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appellant's disruption of government functions. See Wallace, 461

F.3d at 36-37. We held that the departure was justified by

Wallace's deliberate evasion of arrest, which required the

government to expend significant resources in trying him

separately, four years after the initial trial of his co-

conspirator. Id. at 37. He now argues that there were

insufficient factual findings in the record to support the

departure because the government cannot prove that its ability to

prosecute the underlying crime was "materially prejudiced" by

Wallace's evasion of arrest.

Here, too, his arguments are unavailing. Our prior

opinion provided a full explanation as to why the departure was

justified even on the record as it stood after the first sentencing.

Id. at 36-37. On remand, the district court, in addition to citing

our decision that the departure was appropriate, reiterated its own

reasons for imposing the departure. The reasonableness of this

explanation precludes any argument that the application of this

departure works a manifest injustice in Wallace's case. Therefore,

this claim is also barred by the law of the case doctrine.

III.

Appellant raises two specific challenges to the sentence

imposed on remand that, unlike the claims barred by the law of the

case doctrine, are appropriate for our consideration. "We review

claims of legal errors in sentencing . . . de novo," and, where a

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defendant has properly preserved his objection, we review the

district court's factual findings for clear error. Wallace, 461

F.3d at 33.

A. Extreme Psychological Injury

Appellant argues that the district court improperly

imposed a two-level increase for extreme psychological injury under

U.S.S.G. § 5K2.3, which then provided:

If a victim or victims suffered psychological
injury much more serious than that normally
resulting from commission of the offense, the
court may increase the sentence above the
authorized guideline range. The extent of the
increase ordinarily should depend on the
severity of the psychological injury and the
extent to which the injury was intended or
knowingly risked.

Normally, psychological injury would be
sufficiently severe to warrant application of
this adjustment only when there is a
substantial impairment of the intellectual,
psychological, emotional, or behavioral
functioning of a victim, when the impairment
is likely to be of an extended or continuous
duration, and when the impairment manifests
itself by physical or psychological symptoms
or by changes in behavior patterns. The court
should consider the extent to which such harm
was likely, given the nature of the
defendant's conduct.

When this case was first before us, we held that there

was insufficient evidence in the record to warrant an upward

departure for extreme psychological injury. Id. at 39. We noted

that the district court, in explaining the departure, had merely

repeated portions of the trial testimony establishing that the

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victims were "terrorized" during the time of the robbery, but had

not pointed to any evidence of the victims's "physical or

psychological symptoms or [] changes in behavior patterns," or the

"extended and continuous duration" of any such injuries, as required

by § 5K2.3. Id. At that time, the only evidence in the record

regarding the "long-term after-effects" of the robbery was Mr.

DiBiasio's trial testimony that he still "dream[s] about [the

defendant's] face." We specifically noted that the "witnesses did

not testify about their sustained psychological injury at trial.

No medical or psychiatric records were presented. According to the

PSR, no victim impact statement appears to have been submitted by

any of the victims." Id. at 40.

The government addressed the deficiencies in the record

on extreme psychological injury by having Mr. DiBiasio testify in

some detail at the resentencing hearing. Mr. DiBiasio described the

"terrifying experience" of having a heavy semi-automatic weapon with

"a large capacity magazine" pointed "about five to six inches from

[his] face" during the robbery for what "seemed like an eternity"

while appellant shouted "[d]on't move, don't move, don't move."

Immediately after the robbery, Mr. DiBiasio experienced a number of

physical symptoms, such as light-headedness, dizziness, and chest-

pains, and was initially unable to answer the questions posed to him

by an officer on the scene.

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 Later, Mr. DiBiasio learned that appellant was wanted for

the murder of his brother, and that he and Nickoyan were still at

large. Understandably, this affected Mr. DiBiasio a great deal:

"These two men, dangerous when armed, capable of murdering their own

brother were on the loose. There were only two people who could

identify them. I was one of them, and Donna was the other one."

He was "positive" that Wallace knew that DiBiasio could identify

him, because "he stared at me long enough, and I stared at him long

enough." This caused him to fear for his life, as well as for the

lives of his family and his employees. "Timi Wallace remained on

the loose for nearly four years, four years of constant terror," he

explained. "Was he behind corners? Was he hiding? Was he waiting

for me?" Mr. DiBiasio stated that, as a result of the robbery, Ms.

Gallinelli quit her job at the store, and he was unable to find a

replacement because potential employees - as well as potential

customers - were too afraid to come into the store after the

robbery. As a result, business was poor and eventually the store

closed. Mr. DiBiasio testified that "It affected me emotionally.

I had a tough time sleeping at night. I had nightmares reliving

this whole situation . . . Life at home became terrible, as was my

temper. So much so that my wife and I were having constant

arguments." He said that the continuing stress caused estrangement

from his wife, which eventually led to divorce and also strained his

relationship with his children. Mr. DiBiasio also stated that he

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had a heart attack in September 2001, while appellant was still at

large, and that he attributed this to the stress of the robbery's

aftermath. He told the court that "As I lay in that hospital, I

wish that I had died."

Mr. DiBiasio also reported that the robbery also had

lasting effects on Gallinelli, who was in a "terrible condition"

following the robbery. He stated that because of the constant

terror caused by appellant's fugitive status, she moved out of her

house because "her address or approximate location had been in the

paper." She also quit her job at Mr. DiBiasio's store.

Wallace, who timely objected to the imposition of this

departure below, now contends that the additional evidence provided

at the second sentencing through the testimony of Mr. DiBiasio was

an insufficient basis for the departure. He argues that Mr.

DiBiasio did not produce evidence - for example, medical or

psychiatric records - that would establish that he suffered

psychological injuries more serious than those that would normally

follow the commission of an armed robbery, that he changed his

behavior in any significant way, or that his functioning was

substantially impaired. He also asserts, citing authorities from

other circuits, that Mr. DiBiasio's testimony regarding the effect

of the robbery on his family members is irrelevant because they were

not present during the robbery.

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 Appellant correctly points out that we have, in the past,

remarked on the absence of sufficient evidence in the record -

including the absence of medical records - to support the departure.

See, e.g., Wallace, 461 F.3d at 40; United States v. Pelkey, 29 F.3d

11, 16 (1st Cir. 1994). However, our discussion in those earlier

cases focused on the absence of evidence of any kind that would

support the imposition of the departure; we have never stated that,

in the face of other credible evidence, the absence of medical

documentation is dispositive and precludes the departure. Other

circuits have similarly rejected any such requirement. See, e.g.,

United States v. Morrison, 153 F.3d 34, 54-55 (2d Cir. 1998) ("A

sentencing court does not need to hear the testimony of

psychologists or psychiatrists to impose an upward departure based

on psychological injury."); United States v. Anderson, 5 F.3d 795,

805 (5th Cir. 1993) (imposing departure on the basis of a victim

impact statement alone and distinguishing cases refusing to impose

the departure based on lack of medical records by noting the absence

in those cases of any other credible evidence of extreme

psychological injury); see also United States v. Bowker, 372 F.3d

365, 390-92 (6th Cir. 2004), vacated on other grounds, 543 U.S. 1182

(2005); United States v. Sawyer, 180 F.3d 1319, 1324 (11th Cir.

1999); United States v. Miller, 993 F.2d 16, 21 (2d Cir. 1993).

In this case, there was ample evidence to support the

departure without medical records. After hearing Mr. DiBiasio's

-26-
testimony at resentencing, the district court noted: "This is an

example of how a violent crime can have an effect that rolls like

the ripples of a rock hitting a pond out from the center and touches

so many different people beyond the people who are directly

involved." The court noted that, aside from the "terrorizing nature

of the crime," the fact that Mr. DiBiasio (and Ms. Gallinelli) could

identify the defendant, who they later learned had been accused of

murdering his own brother, led to "four years of non-stop worry and

fear" while Wallace was on the run. This was sufficient to show

that the effects had been "of an extended or continuous duration."

The court cited the evidence that Mr. DiBiasio's functioning had

been impaired: "his whole attitude changed. He became more

irritable. He became argumentative and that, in turn, led to,

essentially, separation from his wife and estrangement from his

children." Finally, the court pointed to changes in the victims'

behavior - noting that even beyond Mr. DiBiasio's powerful testimony

as to his own condition, he had recounted that Ms. Gallinelli was

"a basket case" who quit her job and had to move for fear that she

-27-
would be found by the appellant.9 There was no error in the court's

decision to impose the departure for extreme psychological injuries.

B. Criminal History Category

Under U.S.S.G. § 4A1.3(a)(1) (2005)10, "[i]f reliable

information indicates that the defendant's criminal history category

substantially under-represents the seriousness of the defendant's

criminal history or the likelihood that the defendant will commit

other crimes, an upward departure may be warranted." The Guidelines

specifically note several types of information that may support this

departure, including "[w]hether the defendant was pending trial or

sentencing on another charge at the time of the instant offense."

U.S.S.G. § 4A1.3(a)(2)(D). If the sentencing court determines that

the departure is appropriate, the court "shall determine the extent

of [the] departure . . . by using, as a reference, the criminal

9
At oral argument, appellant's counsel insisted that the
district court inappropriately considered the destruction of Mr.
DiBiasio's business itself as part of the psychological injury
resulting from the crime. This claim is inaccurate. Indeed, the
court explicitly noted that "I don't think I can consider the
destruction of the business, although I do think I can consider the
impact that that has on one's psyche. You build a business over a
lifetime and it's the culmination of your life's work, and to see
that destroyed cannot help but have an impact on the victim."
10
With respect to this departure only, the government cites
the 2005 edition of the Guidelines because (1) this court seems to
have used this edition in the prior appeal, see 461 F.3d at 41-42;
(2) the government relied on this edition at the resentencing,
without objection, and (3) none of the post-1998 changes in
language or numbering would affect the outcome. We agree and, for
the purposes of this departure only, will also refer to the 2005
Manual.

-28-
history category applicable to defendants whose criminal history or

likelihood to recidivate most closely resembles that of the

defendant's." U.S.S.G. § 4A1.3(a)(4)(A).

In the first appeal, we held that the district court's

adoption of a two-level horizontal departure without an adequate

justification for the substantial increase was clear error. We

noted first that the commission of the robbery at a time when - as

we assumed - Wallace knew that he was under indictment for another

serious crime may "arguably [be] indicative of his likelihood to

commit other crimes." Wallace, 461 F.3d at 41 (quotation marks and

citation omitted). We compared this situation to "the example

listed in the guidelines of committing an 'offense while on bail or

pretrial release for another serious offense,'" id. at 42 (quoting

U.S.S.G. § 4A1.3(2)(D)), because "[i]n both scenarios, no

adjudication of guilt has occurred, but the defendant's commission

of a crime during a period in which one would expect a careful

abidance to the law arguably demonstrates his or her propensity for

criminal behavior, at least for the purposes of sentencing." Id.

However, we also acknowledged that the imposition of a two-level

departure "essentially added 4-6 points to Wallace's criminal

history points." If he had committed the robbery while under any

criminal justice sentence,11 only two points would have been added

11
Defined by the Guidelines as "probation, parole, supervised
release, imprisonment, work release, or escape status." U.S.S.G.
§ 4A.1.1(d).

-29-
to his criminal history classification under U.S.S.G. § 4A.1.1(d).

Id. "Without any explanation of why the court chose a departure of

this extent," we could not conclude that it was justified. Id. at

42. We also commented that, on remand, the required explanation

might include "at least an indication of why a one category increase

is inadequate in this case." Id. at 43 (internal quotation marks

and citation omitted).

At resentencing, the district court determined that,

while an upward departure on the basis of underrepresented criminal

history was warranted, a one-level increase would suffice. Wallace

now argues that this increase was an error because at the time he

committed the robbery, the Massachusetts criminal proceeding was at

the complaint stage and had not yet resulted in an indictment. He

claims that this fact renders the charges insufficient to warrant

an upward departure.

Wallace is correct that, in all of the previous

proceedings, including his first appeal and the resentencing, the

Massachusetts criminal complaint was mistakenly referred to as an

"indictment." In reality, although appellant was ultimately

indicted for murder by a Suffolk County Superior Court Grand Jury,

this indictment did not occur until after the robbery.

Nevertheless, the logic set forth in our first decision, endorsed

by the district court, still applies.

-30-
 At resentencing, the district court found that certain

evidence introduced at trial, including evidence of appellant's

flight and use of aliases, indicated that he was well aware of the

state criminal proceedings at the time of the robbery. That was

true regardless of whether those proceedings were at the complaint

or the indictment stage. The court specifically noted our earlier

conclusion that Wallace would be "hard-pressed" to deny the

connection between the murder charge and his evasive activities, see

id. at 42, after he himself proposed such a link in the course of

making other arguments in his first appeal.12 The sentencing court

endorsed our prior logic that the timing of the commission of the

robbery at a time when "one would expect a careful abidance to the

law . . . demonstrated his propensity for criminal behavior."

Finally, the court explained that it had chosen a one-level

departure based on our analogy to U.S.S.G. § 4.A1.1(d) concerning

the commission of a robbery while on supervised release. There was

no abuse of discretion in this choice.13

12
In the first appeal, in a challenge to certain remarks made
by the prosecution in closing, Wallace argued that his flight and
the use of aliases might have reflected his attempt to evade the
murder charge, rather than flight based on the robbery charges.
See Wallace, 461 F.3d at 42.
13
Appellant also advances an additional argument, for the
first time on appeal, that the criminal history departure
represented impermissible double-counting because the multiple
weapons enhancement he received for Count III was premised in part
on the fact that he possessed the firearms as a "prohibited person"
- a designation that was based on findings that he was "a fugitive
from justice" and "an unlawful user of or addicted to any

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 IV.

Finally, appellant challenges the substantive

reasonableness of his sentence on two grounds. First, he argues

that there was a significant disparity between his sentence and his

co-conspirator's sentence and, therefore, the sentencing court did

not properly heed 18 U.S.C. § 3553(a)'s instruction that it consider

"the need to avoid unwarranted sentencing disparities among

defendants with similar records who have been convicted of similar

conduct." He notes that Nickoyan Wallace was sentenced to a term

of imprisonment 90 months shorter than appellant's, despite having

been convicted of the same crimes. Appellant also attacks his

sentence on the ground that the government "drastically changed its

position" between the first sentencing (at which it recommended a

sentence of 184 months, which was within the advisory Guidelines

range) and resentencing (where it moved for upward departures and

recommended a term of 294 months).

We review a defendant's challenge to the substantive

reasonableness of his sentence for abuse of discretion. United

States v. Cruz-Rodríguez, 541 F.3d 19, 32 (1st Cir. 2008). We

afford the district court "wide discretion" in sentencing decisions.

controlled substance." He now contends that his designation as a
"fugitive from justice" makes the imposition of the criminal
history departure redundant. Arguments raised for the first time
on appeal are considered waived. See United States v. Hernández-
Rodríguez, 443 F.3d 138, 143 n.5 (1st Cir. 2006). We therefore
refuse to consider them.

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United States v. Marceau, 554 F.3d 24, 33 (1st Cir. 2009).

Ultimately, "the linchpin of a reasonable sentence is a plausible

sentencing rationale and a defensible result." United States v.

Martin, 520 F.3d 87, 96 (1st Cir. 2008).

18 U.S.C. § 3553(a)(6) requires judges to

"consider . . . the need to avoid unwarranted sentence disparities

among defendants with similar records who have been found guilty of

similar conduct." Although this section is "primarily aimed at

national disparities, rather than those between co-defendants . .

. , a district court may consider differences and similarities

between co-defendants at sentencing." Marceau, 554 F.3d at 33.

However, a "defendant is not entitled to a lighter sentence merely

because his co-defendants received lighter sentences." Id.

(quotation marks omitted). Still, "concerns could arise if two

identically situated defendants received different sentences from

the same judge." Id. (quotation marks and citation omitted).

Here, it was not the same judge who sentenced Timi and

Nickoyan Wallace in this case, a fact that makes Nickoyan's sentence

even less relevant to the reasonableness analysis. See, e.g.,

United States v. Saez, 444 F.3d 15, 19 (1st Cir. 2006). More

importantly, "the district court confronted the disparity head-on,"

Marceau, 554 F.3d at 34, and explicitly described the reasons that

appellant and Nickoyan Wallace were not "identically situated." It

focused on a number of aggravating factors that were present only

-33-
in appellant's case. Specifically, the court pointed to the

departures for the use of a dangerous weapon, obstruction of

government function, and extreme psychological injury, none of which

were applied to Nickoyan.14 Appellant's extended flight from

authorities differentiated his case from Nickoyan's. The government

had to expend additional resources by holding two separate trials

four years apart. Also, Mr. DiBiasio and Ms. Gallinelli had to live

in constant fear while appellant was at large. The district court's

detailed justification for the disparity in sentencing complies

easily with the reasonableness standard.

Appellant's attempt to use the government's change of

strategy at resentencing to assail his sentence must also fail. He

cites no authority for the proposition that the government's changed

approach to a sentencing proceeding on remand should affect the

reasonableness analysis in any way. We reject the relevance of that

change to the reasonableness analysis.15

Affirmed.

14
The court also noted that the criminal history departure
raised appellant's criminal history category to the same as his
brother's, and, while Nickoyan's might have been raised even
further, that motion had not been made in his case.
15
Appellant also makes several perfunctory constitutional
claims. He argues 1) that the sentencing disparity violates the
Constitution and 2) that the change in the government's
recommendation between the first and second sentencing proceedings
represents a violation of his rights on the basis of prosecutorial
vindictiveness. These perfunctory arguments are both waived,
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990), and
meritless.

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