          United States Court of Appeals
                     For the First Circuit


No. 14-1901

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                         MARIO PERRETTA,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF RHODE ISLAND

       [Hon. John J. McConnell, Jr., U.S. District Judge]


                             Before

                   Thompson, Selya and Barron,
                         Circuit Judges.



     John T. Ouderkirk, Jr. on brief for appellant.
     Peter F. Neronha, United States Attorney, and Donald C.
Lockhart, Assistant United States Attorney, on brief for appellee.




                         October 9, 2015
           SELYA, Circuit Judge.        This sentencing appeal, brought

by a convicted fraudster, rests on the premise that the district

court focused single-mindedly on a particular sentencing factor —

the grievous harm inflicted on the victims of the defendant's fraud

— and imposed a substantively unreasonable sentence.            Concluding,

as we do, that this premise is insupportable, we summarily affirm.

           We set the stage.         Defendant-appellant Mario Perretta

pled   guilty,   pursuant   to   a   plea   agreement,   to    a   ten-count

information charging him with various acts of wire fraud and tax

evasion.   See 18 U.S.C. § 1343; 26 U.S.C. § 7201.            In connection

with his plea, the defendant admitted that he convinced a plethora

of individuals to invest a total of more than $4,000,000 by telling

them that his construction firm had lucrative contracts and that

its endeavors were fully insured (making investments risk-free).

These tales were false in all material respects: both the contracts

and the insurance were imaginary.           To make matters worse, the

defendant proceeded to spend the investors' money on personal

frolics.   When the investors inquired about overdue returns on

their investments, the defendant spun an incremental web of further

falsehoods.   Nor were the investors his only victims: he failed to

report large portions of his ill-gotten gains as taxable income.

           The district court accepted the defendant's plea.             The

presentence investigation report (PSI Report) contained a detailed

offense-facts statement and catalogued the losses suffered by 22


                                 - 2 -
victims of the swindle.      Due to the loss amount and the number of

victims, the defendant's total offense level was 24. His extensive

record of fraud-related offenses placed him in criminal history

category IV.       Thus, his guideline sentencing range (GSR) was 77-

96 months.     Finally, the PSI Report recommended restitution of

approximately $4,200,000.

             After a protracted hearing, the district court imposed

a 96-month incarcerative sentence on the fraud counts,1 along with

an   order   for    restitution   of   approximately   $4,200,000.   The

defendant did not appeal but, roughly one year later, filed a

petition for post-conviction relief under 28 U.S.C. § 2255.

             The details of the defendant's section 2255 petition

need not concern us. It suffices to say that the defendant's prior

counsel had not properly advised him about his appellate rights.

Consequently, the parties agreed that the court should grant the

section 2255 petition, vacate the sentence, and conduct de novo

resentencing.       The district court acquiesced: it vacated the

sentence and set the matter down for resentencing.            See, e.g.,

United States v. Maldonado, 242 F.3d 1, 3-4 (1st Cir. 2001).




      1By statute, the sentence on the tax-evasion counts was
capped at 60 months. See 26 U.S.C. § 701. The court imposed that
sentence and ran it concurrently with the longer sentence on the
fraud counts. The defendant's appeal is addressed principally to
the longer (96-month) sentence, and we make no further reference
to the shorter (60-month) sentence.


                                   - 3 -
           The probation office issued a revised PSI Report that

was substantially identical to the earlier version.               Meanwhile,

the   defendant's    new    counsel   filed   a    sentencing    memorandum

suggesting that he should receive a downwardly variant sentence of

home confinement only, in part so that he could work to pay down

his restitution obligations.      Both the government and the victims

opposed this suggestion.

           The district court convened the resentencing hearing on

August 21, 2014.     The court confirmed that there were no material

objections either to the PSI Report (save for a small dispute about

the amount of restitution) or to the proposed GSR. Defense counsel

renewed her importunings that the court vary downward to a sentence

of home confinement.       The district court disagreed.        It explained

that it had considered afresh all the old and new information,

stated   its   reasons   for   rejecting   the    proposed   variance,   and

reimposed the 96-month sentence.      The court deferred the matter of

restitution, and the defendant filed a timely notice of appeal.

           On February 10, 2015, the district court held a final

restitution hearing and ordered restitution in the amount of

$4,009,398.72.      The defendant has not appealed the restitution

order.

           As a general matter, "[a]ppellate review of federal

criminal sentences is characterized by a frank recognition of the

substantial discretion vested in a sentencing court."                 United


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States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013).                  "The

review process is bifurcated: we first determine whether the

sentence imposed is procedurally reasonable and then determine

whether       it   is   substantively    reasonable."      United        States   v.

Clogston, 662 F.3d 588, 590 (1st Cir. 2011).                     Globally, both

aspects of this review are for abuse of discretion.                  See Gall v.

United States, 552 U.S. 38, 45-46 (2007); United States v. Martin,

520 F.3d 87, 92 (1st Cir. 2008).

               With this foundation in place, we turn to the merits of

the defendant's appeal.2         As phrased, the defendant's claim is that

his sentence is substantively unreasonable.             We pause, however, to

clarify a threshold matter.

               The defendant reaches his conclusion that his sentence

is substantively unreasonable by lambasting the district court for

focusing too narrowly on the harm to his victims (to the exclusion

of the other factors that the court was duty-bound to consider

under    18    U.S.C.    §   3553(a)).    Arguably,     this    is   a    claim   of

procedural error, and we treat it as such.              Because no such claim

was preserved below, review is for plain error.                See United States

v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).               Plain error review




     2 The defendant's plea agreement contained a comprehensive
waiver-of-appeal provision that, by its terms, may foreclose the
arguments advanced on this appeal.       But the government has
explicitly foresworn any reliance on this provision, and we treat
the government's action as a waiver of the waiver.


                                     - 5 -
"entails four showings: (1) that an error occurred (2) which was

clear or obvious and which not only (3) affected the defendant's

substantial rights, but also (4) seriously impaired the fairness,

integrity, or public reputation of judicial proceedings."           Id.

          In all events, this claim is groundless.          The whole

panoply   of   potentially   relevant    sentencing   factors   —     both

aggravating and mitigating — was squarely before the district court

at sentencing.   The court repeatedly stated that it had considered

all the section 3553(a) factors.        These statements are "entitled

to some weight."    United States v. Dávila-González, 595 F.3d 42,

49 (1st Cir. 2010).    There is simply no reason to think that the

court relied on the harm to victims to the exclusion of other

relevant considerations.3

          To sum up, we recognize that a sentencing court has a

duty to "consider all relevant section 3553(a) factors." Clogston,

662 F.3d at 592.   However, "it need not do so mechanically."         Id.

(quoting United States v. Vargas-Dávila, 649 F.3d 129, 131 (1st

Cir. 2011)); see United States v. Dixon, 449 F.3d 194, 205 (1st

Cir. 2006) (explaining that a sentencing court need not "address




     3 This is especially true since the court's references at
resentencing to the harm to victims were made primarily in the
course of explaining why it would not sentence the defendant to
home confinement.    Seen in this light, the defendant's current
attack on the court's focus illustrates the wisdom of the venerable
adage that no good deed goes unpunished.


                                - 6 -
[the section 3553(a)] factors, one by one, in some sort of rote

incantation when explicating its sentencing decision").           Mindful

of these authorities, we discern no plain error either in the

sentencing court's emphasis on the harm to the victims of the fraud

or in its failure to acknowledge individually other relevant

section 3553(a) factors.

           This brings us to the main thrust of the defendant's

appeal: his claim that his sentence is substantively unreasonable.

In the posture of this case, we assume, favorably to the defendant,

that our review is for abuse of discretion.            See, e.g., United

States v. Vargas-García, 794 F.3d 162, 167 (1st Cir. 2015); United

States v. Ruiz-Huertas, 792 F.3d 223, 228 (1st Cir. 2015), cert.

denied, ___ S. Ct. ___ (U.S. Oct. 5, 2015).

           When   measuring     the   substantive   reasonableness   of   a

sentence under the abuse of discretion standard, a court must pay

heed to the totality of the circumstances.          See Martin, 520 F.3d

at   92.    In    determining    whether    a   particular   sentence     is

substantively reasonable, we look to the plausibility of the

district court's sentencing rationale and the defensibility of the

result.    See United States v. Rivera-González, 776 F.3d 45, 51

(1st Cir. 2015); Martin, 520 F.3d at 96.

           Challenging the substantive reasonableness of a sentence

is a formidable task, made more burdensome where, as here, the

challenged sentence is within a properly calculated GSR.                See


                                  - 7 -
Clogston, 662 F.3d at 592-93.          In order to accomplish that task,

a defendant "must adduce fairly powerful mitigating reasons and

persuade us that the district court was unreasonable in balancing

the pros and cons." Id. at 593 (internal quotation marks omitted).

              We need not linger long.       The district court's rationale

is apparent: the defendant perpetrated a massive and especially

deplorable fraud, orchestrating what the court aptly called an

"incredible human tragedy."         That fraud involved duping people of

modest means into investments that were likely to lead to their

financial ruin.        Such unbridled greed, in the court's view,

warranted a high-end guideline sentence.

              Contrary to the defendant's suggestion, the court did

not focus single-mindedly on the harm to the victims of the fraud.

Rather, the resentencing transcript makes manifest that the court

considered all sides of the matter, viewing the circumstances "from

the victims' perspective, from the government's perspective, [and]

from   [the    defendant's]      perspective."     Given   the     stark   facts

reflected in the record, we cannot say that the court's rationale

is implausible.

              So,   too,   the   duration    of   the   sentence    is     easily

defensible.     We have explained before that in any individual case,

"[t]here is no one reasonable sentence . . . but, rather, a

universe of reasonable sentencing outcomes."             Clogston, 662 F.3d

at 592.   In determining whether a particular sentence falls within


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this wide universe, substantial respect to the sentencing court's

discretion is appropriate.        See Gall, 552 U.S. at 51; Clogston,

662 F.3d at 593.      "Fidelity to this deferential standard requires

that a challenge based on substantive reasonableness must comprise

more   than    a   thinly   disguised    attempt    by   the   defendant    'to

substitute     his   judgment   for    that   of   the   sentencing    court.'"

Vargas-García, 794 F.3d at 167 (quoting Clogston, 662 F.3d at 593).

              In the case at hand, the sentence imposed is at the top

of — but within — a properly calculated GSR.                   The defendant

committed a brazen fraud over a significant time span; and that

fraud, which bilked 22 victims out of a total of more than

$4,000,000, was driven by unadulterated greed.              The resentencing

transcript shows that the district court weighed the section

3553(a) factors, see text infra, and the weighting of those factors

is "largely within the court's informed discretion."                  Clogston,

662 F.3d at 593.      The court's reasoned explanation of the need to

punish and the need for deterrence, coupled with the reprehensible

nature of the offenses of conviction, enable us to conclude,

without serious question, that the 96-month sentence falls within

the universe of reasonable sentences.




                                      - 9 -
            We need go no further.4    For the reasons elucidated

above, the defendant's sentence is summarily



Affirmed.   See 1st Cir. R. 27.0(c).




     4 The defendant makes a conclusory assertion that his due
process rights were violated because the judge's "opinion about
the defendant's need for punishment" was a fact that was not
submitted to the jury and proved beyond a reasonable doubt. This
argument is triply flawed: it was not raised below, it has not
been developed on appeal, and it is patently without merit.


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