
USCA1 Opinion

	




          June 19, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                            ____________________        No. 95-1008                                    UNITED STATES,                                      Appellee,                                          v.                                 MAE LINH PELKEY, II,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                    [Hon. Paul J. Barbadoro, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                        Cyr, Boudin and Lynch, Circuit Judges.                                               ______________                                 ____________________            Marc Chretien on brief for appellant.            _____________            Paul  M.  Gagnon,  United  States  Attorney,  and  Jean  B.  Weld,            ________________                                   ______________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                 Per Curiam.  Following  an earlier appeal in  which this                 __________            court remanded for resentencing, see United States v. Pelkey,                                             ___ _____________    ______            29  F.3d 11  (1st Cir.  1994), the  district court  sentenced            defendant Mae Linh Pelkey to a 37-month term of imprisonment.            Defendant again appeals, complaining  (as she did earlier) of            an  upward departure  undertaken  by the  court.   This  time            around, we find no error and thus summarily affirm.  See Loc.                                                                 ___            R. 27.1.                   Defendant,  a real estate  broker and  financial adviser            who "defrauded a number  of her friends, business associates,            and former customers  out of more than $500,000,"  Pelkey, 29                                                               ______            F.3d at 12, pled guilty in 1993 to three counts of mail fraud            and one  count of wire fraud.   See 18 U.S.C.     1341, 1343.                                            ___            At the  original sentencing  on October  18, 1993,  the court            imposed a prison  term of 43  months.  It first  calculated a            total offense level  of 17,1 which  (with a criminal  history            category of I) yielded a sentencing range of 24 to 30 months.            The  court  then  determined  that an  upward  departure  was            warranted  because  the  ten-level increase  mandated  by the            applicable provision of  the fraud loss table did  not "fully                                            ____________________            1.  The total  offense level  was comprised of  the following            elements: a base offense  level of six for fraud,  U.S.S.G.              2F1.1(a)  (1992);  plus  ten   levels  for  losses  exceeding            $500,000, id.   2F1.1(b)(1); plus a two-level enhancement for                      ___            more than one  victim, id.   2F1.1(b)(2)(B); plus a two-level                                   ___            enhancement for  vulnerable victim,  id.   3A1.1;  less three                                                 ___            levels for acceptance of responsibility, id.   3E1.1.                                                      ___            capture the harmfulness" of  defendant's conduct.  U.S.S.G.              2F1.1, comment. (n.10) (1992).2                   In  support  of this  conclusion,  the  court cited  two            factors (with primary emphasis placed on the former): (1)  as            defendant  was or  should  have been  aware,  several of  the            victims  were elderly  individuals  who lost  most or  all of            their  life  savings,  with   little  prospect  of  regaining            financial  security;  and (2)  several  victims  had suffered            "extreme psychological  injury."   Suggesting  that the  real            value  of the losses to the victims was closer to $10 million                                            ____________________            2.  The 1992 version of application note 10 read in pertinent            part as follows:                  In  cases  in  which  the  loss   determined  under                 subsection  (b)(1)  does   not  fully  capture  the                 harmfulness  and  seriousness  of  the  conduct, an                 upward departure  may be  warranted.   Examples may                 include the following:                      (a)  the  primary objective  of the  fraud was                 non-monetary;                      (b) false statements were made for the purpose                 of facilitating some other crime;                      (c)   the   offense    caused   physical    or                 psychological harm;                      (d) the offense  endangered national  security                 or military readiness;                      (e) the offense caused a loss of confidence in                 an important institution.            U.S.S.G.    2F1.1, comment. (n.10)  (1992).  Effective  as of            November 1, 1993, an amendment to note 10 added the following            new subdivision:                      (f)   the   offense   involved   the   knowing                 endangerment  of  the  solvency  of  one   or  more                 victims.            See U.S.S.G., App. C., Amend. 482 (1993).            ___                                         -3-            than to $500,000, the court departed upward by five levels to            a total offense level of 22.  The resulting 43-month sentence            was near the bottom of the revised sentencing range.                 On  appeal,  we agreed  with  defendant  that the  cited            justifications for the five-level departure  were inadequate.            With respect  to the court's  first rationale, we  noted that            "[t]he failure to  have a secure  financial future does  not,            without more, rise to  the level of seriousness" contemplated            by  the   grounds  for   departure  listed  as   examples  in            application note  10.3  Pelkey, 29  F.3d at 15.   At the same                                    ______            time, we  acknowledged that there was  a distinction "between            defrauding a 40-year-old of her life savings and defrauding a            60-year-old  of  her savings."    Id.   That  distinction, we                                              ___            observed, was at least partially reflected in the enhancement            for  vulnerable victim and would not, in any case, "warrant a            five-level departure."   Id.  Yet  we specifically left  open                                     ___            the possibility that an upward departure might be appropriate            if, on remand, "the court were to make specific findings that            some  of the victims were unable to provide for their welfare            or  that  the facts  present[ed]  a  situation  equal to  the            serious caliber"  of the examples listed  in application note            10.   Id.  We also  referred to the intervening  amendment to                  ___                                            ____________________            3.  As to the  court's secondary rationale, we  held that the            severity of the psychological injury suffered  by defendant's            victims  was not  "so  far beyond"  that experienced  in "the            heartland of fraud cases"  as to justify a departure  on such            basis.  Pelkey, 29 F.3d at 16.                     ______                                         -4-            note  10  which  had  added  to  that  list  of  examples  by            encouraging  a  departure  where  "the  offense involved  the            knowing endangerment of the solvency of one or more victims."            Id. at  15 n.5 (quoting U.S.S.G.    2F1.1, comment. (n.10(f))            ___            (1993)).   We observed that  a departure on  this ground--one            which required a finding that a defendant knowingly  pushed a                                                      _________            victim  into extreme financial hardship--"seem[ed] to address            the type of harm the court was attempting to quantify."  Id.                                                                     ___                 On  remand, after  receiving supplemental  evidence from            the  parties, the  court found  that defendant  had knowingly            endangered  the  solvency of  several  of  her  victims.   It            therefore again departed upward, this  time by two levels, to            reach  a total offense level  of 19.   The resulting 37-month            sentence was within the revised sentencing range.  As she did            below, defendant  now argues that  (1) reliance  on the  1993            amendment  to application note 10  violated the ex post facto                                                            _____________            clause;  (2) consideration  of the  government's supplemental            affidavits was  improper,  and  the  evidence  was  otherwise            insufficient  to   support  the  upward  departure;  and  (3)            departing  upward due to the financial strain on the victims,            in conjunction  with the  adjustment for  vulnerable victims,            resulted  in  impermissible double-counting.   Each  of these            contentions, we conclude, misses the mark.                                Ex Post Facto Concerns                                ______________________                                         -5-                 "To  avoid  ex post  facto  difficulties,  courts should                             ______________            'normally apply [guideline] amendments retroactively  only if            they  clarify  a guideline,  but  not  if they  substantively            change  a guideline.'"   United States  v. Rostoff,  ___ F.3d                                     _____________     _______            ___, No. 93-1376,  slip op.  at 12 (1st  Cir. 1995)  (quoting            United  States v. Prezioso, 989 F.2d 52, 53 (1st Cir. 1993)).            ______________    ________            Defendant argues that the  1993 amendment to application note            10 effected such a substantive change.   This conclusion, she            suggests,  is  apparent from  the  language  employed by  the            Commission, which  described this aspect of  the amendment as            one  that "revises  the Commentary  to    2F1.1  by expanding                       _______                                  _________            Application Note 10 to provide guidance in cases in which the            monetary loss does not  adequately reflect the seriousness of            the offense."  U.S.S.G., App. C., Amend. 482 (1993) (emphasis            added).  The fact that other changes implemented by Amendment            482  were  characterized  as  "clarifying,"  she  adds,  only            reinforces this interpretation.                 We  disagree.   The distinction between  a clarification            and a substantive  revision of the  guidelines is not  always            "clear-cut,"  Isabel v. United  States, 980 F.2d  60, 62 (1st                          ______    ______________            Cir.  1992), and  the Commission's  language can  be read  to            support  either view.4   Of greater  relevance, we  think, is                                            ____________________            4.  At one point, the district court appeared to suggest that            the amendment  could be  deemed clarifying simply  because it            involved an application note  rather than a guideline proper.            Any such suggestion was  incidental to the court's reasoning,            and we have  no occasion  to address it  here--other than  to                                         -6-            the fact that the examples listed in application note 10 were            (and are) meant to be "nonexclusive."  Pelkey, 29 F.3d at 14.                                                   ______            As we indicated in our  earlier decision, an upward departure            based on unusual  financial strain incurred  by a victim  was            permissible even before the  1993 amendment.  See id.  at 15.                                                          ___ ___            Indeed, other  courts have  upheld departures on  this ground            based on the pre-1993  version of application note 10.   See,                                                                     ___            e.g., United States v. Kaye, 23 F.3d 50, 53-54 (2d Cir. 1994)            ____  _____________    ____            (affirming upward departure based on finding that defendant's            fraud--depriving his great-aunt of her life savings--involved            a degree  of harm  not adequately considered  by Commission);            United States  v. Stouffer, 986  F.2d 916, 927-28  (5th Cir.)            _____________     ________            (affirming  departure  based  on finding  that  fraud  scheme            caused thousands  of investors  to lose their  life savings),            cert.  denied, 114  S. Ct. 115  (1993).   To a  large extent,            _____________            therefore,  the 1993  amendment simply  codified pre-existing            practice.  Under these circumstances, retroactive application            of the amendment  raises no  ex post facto  concerns.5   See,                                         _____________               ___            e.g., United States  v. Fadayini,  28 F.3d  1236, 1242  (D.C.            ____  _____________     ________                                            ____________________            observe that, after the Supreme Court's ruling that guideline            commentary  is  generally  binding,  see  Stinson  v.  United                                                 ___  _______      ______            States,  113 S. Ct. 1913, 1919 (1993), other courts have held            ______            that "subsequent  amendments to the commentary  ... may, just            like   the  guidelines  themselves,  present  ex  post  facto                                                          _______________            problems  when  applied retrospectively."   United  States v.                                                        ______________            Bertoli, 40 F.3d 1384, 1405 (3d Cir. 1994) (listing cases).              _______            5.  As the district court  suggested in the alternative, this            also  means  that  the   upward  departure  could  have  been            undertaken without reliance on the intervening amendment.                                         -7-            Cir. 1994) (applying  application note  10(f) on  retroactive            basis, without mentioning ex post facto issue); United States                                      _____________         _____________            v. Strouse, ___ F. Supp. ___, 1995 WL 235568, at *5 (M.D. Pa.               _______            1995) (same).                                  Evidentiary Issues                                  __________________                 In  the  earlier appeal,  we  vacated  the sentence  and            remanded "for  resentencing  consistent with  this  opinion."            Pelkey,  29   F.3d  at  16.    On  remand,  over  defendant's            ______            objection,  the district  court  permitted the  government to            supplement the record  with additional affidavits  from three            of the  victims.6   Defendant now  insists that  the district            court  exceeded the  scope of our  mandate by  permitting the            evidentiary record to  be reopened.  Yet  our earlier opinion            specifically  contemplated  that  the  court might  make  new            findings of fact to support the upward departure.  See id. at                                                               ___ ___            15.  It was well within the court's discretion to permit both            sides to  supplement the record in connection with this issue            prior to its doing so.7  See, e.g., United States  v. Bell, 5                                     ___  ____  _____________     ____            F.3d 64,  66-67 (4th Cir. 1993).  The court on remand did not            engage  in  a  fully  de novo  hearing  in  which  previously                                  _______                                            ____________________            6.  These  victims, among others, had earlier provided victim            impact  statements  to  the  Probation   Office,  which  were            recounted at length in the presentence report.            7.  The  defendant  declined  to  present  any  new  evidence            regarding  the financial  solvency  issue, but  did take  the            opportunity to buttress earlier evidence of rehabilitation.                                         -8-            forfeited  issues were  resuscitated,  see  generally  United                                                   ______________  ______            States v. Bell,  988 F.2d  247 (1st Cir.  1993);8 indeed,  it            ______    ____            declined to  entertain a proposed  new sentencing enhancement            (for  abuse of position of trust) not earlier advanced by the            government.   And  defendant's reliance  on United  States v.                                                        ______________            Parker,  30 F.3d 542, 553-54 (4th Cir.), cert. denied, 115 S.            ______                                   ____________            Ct. 605 (1994), is misplaced, inasmuch as the government here            was  not afforded a second opportunity to prove an element of            the offense.  We thus see no error.9                 Defendant's  secondary  contention in  this regard--that            the evidence was  insufficient to support a finding  that she            knowingly  endangered the  solvency  of one  or  more of  her            victims--is advanced  only in  peremptory fashion and  can be            summarily rejected.   It suffices to note  the following: (1)            the Meuse/Laskey affidavit stated that defendant "handled all            of our financial matters" and "knew what we had right down to            the  last  penny  and  she  took  that  also";  and  (2)  the            presentence  report  indicated   that  LeClair  had  provided                                            ____________________            8.  Whether  a de novo hearing would have been proper in this                           _______            situation,  of course,  is a  question not  before us.   See,                                                                     ___            e.g., United States  v. Ortiz,  25 F.3d 934,  935 (10th  Cir.            ____  _____________     _____            1994).            9.  Any  error in this regard would be harmless in any event.            As the  district court  observed, the finding  that defendant            knowingly endangered the solvency of  one or more victims was            reasonably  inferable  from  the  evidence  contained in  the            presentence  report.   Indeed,  defendant acknowledged  below            that the new affidavits "paraphrase[d]" the victims'  earlier            statements "almost completely."                                          -9-            defendant  with  a copy  of  his assets  and  liabilities; he            elaborated in his affidavit that defendant "always knew about            my  financial situation and knew  that if she  didn't give me            back the money, I would become insolvent."  Based on this and            substantial other evidence, the district court's finding that            "the  departure-justifying   circumstance  actually  existed"            cannot  be  deemed  clearly  erroneous.    United  States  v.                                                       ______________            Rostoff, ___ F.3d at ___, slip op. at 13.            _______                                   Double-Counting                                   _______________                 Finally,   we   reject   defendant's   contention   that            undertaking an  upward departure for financial  impact on the            victims,   while   simultaneously   imposing    a   two-level            enhancement for vulnerable victims, constituted impermissible            double-counting.  We implicitly rejected this argument in our            earlier  decision, see Pelkey, 29  F.3d at 14-15,  as did the                               ___ ______            Commission  in its  1993  amendment to  application note  10.            While  the  two  matters  do overlap,  there  remains  a core            distinction: the vulnerable  victim adjustment focuses  on an            individual's susceptibility to becoming a victim of crime per            se, whereas the note 10(f) departure focuses on the extent to            which  a victim has suffered an unusual degree of harm from a            crime.  See, e.g., United States v. Kaye, 23 F.3d at 54.   As                    ___  ____  _____________    ____            such,  "the  vulnerable  victim  enhancement  does not  fully            capture  [the] concern with the actual impact of the fraud on                                         -10-            the victim."  Id.  We thus agree with the district court that                          ___            no double-counting occurred.                 Affirmed.                 _________                                         -11-
