

                    [Not for Publication]
                United States Court of Appeals
                    For the First Circuit
                                         

No. 97-1905

                  UNITED STATES OF AMERICA,

                          Appellee,

                              v.

                       ANDREW P. LEPPO,

                    Defendant, Appellant.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. Patti B. Saris, U.S. District Judge]                                                               

                                         

                            Before

                    Torruella, Chief Judge,                                                      
                    Selya, Circuit Judge,                                                    
                  and Stahl, Circuit Judge.                                                      

                                         

Robert M.  Goldstein with  whom Leppo  &amp; Leppo  was  on brief  for                                                          
appellant.
Jeanne M. Kempthorne, Assistant United  States Attorney, with whom                                
Donald K. Stern, United States Attorney, was on brief for appellee.                       

                                         

                                                             February 10, 1998
                                         

          Per  Curiam.  Andrew  Leppo pled guilty  to charges                      Per  Curiam.                                  

that  he   masterminded  several  schemes   and  conspiracies

involving  various  forms  of  bank  fraud  and  the  sale of

counterfeit  computer equipment,  in  violation of  18 U.S.C.

   371  &amp; 2320.   The  district court  sentenced Leppo  to 37

months in prison and ordered him to pay some  $2.6 million in

restitution to fifteen  different victims.  On  appeal, Leppo

challenges both his sentence  and the restitution order.   We

affirm.

          1.  Downward Departure                                            

          Leppo requested a downward departure under U.S.S.G.

  5K2.13,  based on psychiatric testimony that a pathological

gambling compulsion had motivated his crimes.  He argues that

the district court  refused to depart under    5K2.13 because

it erroneously believed that it  lacked authority to do so on

the basis of Leppo s gambling disorder.   Contrary to Leppo s

characterization, however, the court explicitly stated at the

sentencing hearing that it  did have the discretion  to grant                                           

Leppo s requested departure,  but that it found  the exercise

of such discretion to be inappropriate in this case.   We are

without  jurisdiction  to  review  the court s  discretionary

refusal to depart.  See United States v. Rizzo, 121 F.3d 794,                                                          

798 (1st Cir. 1997).

          Second, Leppo argued below that this  case featured

"unusual" mitigating circumstances that placed it outside the

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"heartland" of the applicable guidelines (U.S.S.G.    2B5.3 &amp;

2F1.1), in that the aggregate retail value of his counterfeit

goods -- which was the  predicate for a 14-step offense level

enhancement   --  had  plummeted  between  the  time  of  the

infringing sales and the time of sentencing.   Leppo contends

that  the district  court  misconstrued  his  argument  as  a

request  for  downward   departure  under  U.S.S.G.    2F1.1,

application note 10.

          We  see  no  indication that  the  court  failed to

comprehend Leppo s position.  It is evident that the district

court, observing that Leppo actually profited from the higher                                                         

retail prices prevailing at the time of his offenses,  simply

declined  to attach any  relevance to the  post-offense price

fluctuations  at issue.  The court  therefore had no occasion

to  consider   whether  those   fluctuations  constituted   a

"mitigating circumstance"  warranting an  unguided departure;

obviously,  an irrelevant  circumstance  cannot mitigate  the                                                                    

seriousness  of  an  offense.   The  court s  construction of

Leppo s argument as a request for departure under application

note  10  to    2F1.1  strikes  us  as  a  rather  charitable

reformulation of Leppo s position,  not a misunderstanding of

it.  Because  the court s denial of  Leppo s second departure

request was not  based on any legal or  factual mistake, that

decision similarly is not subject  to our review.  See Rizzo,                                                                        

121 F.3d at 798.

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          2.  Restitution                                     

          Leppo raises  two  challenges  to  the  restitution

order, both for the first time on appeal.  He argues (1) that

the district court failed to evaluate his ability to pay, and

(2)  that the order  overcompensated one of  Leppo s victims,

IBM.  We agree with  the government that Leppo clearly waived                                                                         

his  first argument,  and  probably  waived  the  second,  by

specifically stating at  the disposition hearing that  he was

content to "leave any restitution order  to the discretion of

the court."

          Even if Leppo s second argument was not waived, our

review would be limited to plain error.  See United States v.                                                                      

Mitchell, 85 F.3d  800, 807 (1st Cir. 1996).   Leppo suggests                    

that there is a "substantial risk" that the restitution order

overcompensates IBM because IBM may have recouped some of its

losses, but he fails even to hint at a reasonable estimate of

the amount that IBM actually might have recouped; nor does he

describe  any  plausible,  practical  method  by  which   the

district court  could have  calculated that amount.   In  any

event, the district court was  not required to fix the amount

of its restitution order with absolute precision.  See United                                                                         

States v. Vaknin, 112  F.3d 579, 587 (1st Cir. 1997).   Here,                            

the  record clearly  reflects  that  the  court  undertook  a

detailed review of  the evidence in calculating the amount of

loss  suffered by IBM.   Leppo s unsupported  assertions fall

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far short of  demonstrating any substantial error,  much less

plain error, in the district court s restitution order.

          Affirmed.                      Affirmed.                              

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