
USCA1 Opinion

	




          March 13, 1995                            [NOT FOR PUBLICATION]                        UNITED STATES COURT OF APPEALS                            FOR THE FIRST CIRCUIT                             ___________________   No. 94-1865                                  DOMENIC J. LOMBARDI,                                 Petitioner,                                      v.                          UNITED STATES OF AMERICA,                                 Respondent.                              __________________                 APPEAL FROM THE UNITED STATES DISTRICT COURT                   FOR THE DISTRICT OF RHODE ISLAND            [Hon. Raymond J. Pettine, Senior U.S. District Judge]                                      __________________________                             ___________________                                    Before                           Torruella, Chief Judge,                                      ___________                      Boudin and Stahl, Circuit Judges.                                        ______________                             ___________________        Domenic J. Lombardi on brief pro se.        ___________________        Sheldon Whitehouse,  United States  Attorney, and  James H.  Leavey,        __________________                                 ________________   Assistant United States Attorney, on brief for respondent.                              __________________                              __________________                 Per  Curiam.     In  1992,   a  nine-count   superseding                 ___________            indictment charged petitioner Domenic Lombardi  with engaging            in a fraudulent scheme  to collect insurance proceeds through            arson.   Petitioner  eventually pled guilty  to six  of these            offenses:  three  counts of  mail  fraud  (and conspiracy  to            commit same), 18 U.S.C.    1341; two counts of engaging  in a            monetary  transaction  with criminally  derived  property, 18            U.S.C.   1957; and one  count of using a fire to  commit mail            fraud, 18 U.S.C.   844(h).  At sentencing, the district court            imposed  a 63-month prison term for the first five counts, to            which  was added  a mandatory, consecutive  60-month sentence            for  the      844(h)  offense.     On  appeal,   we  affirmed            petitioner's  sentence in  all  respects.   United States  v.                                                        _____________            Lombardi, 5 F.3d 568 (1st Cir. 1993).1            ________                 By way of the  instant petition under 28 U.S.C.    2255,            petitioner  presents  two  new  challenges  to his  sentence.            Specifically, he  contends that the  court (1)  miscalculated            his criminal history category and (2) erred in sentencing him            on  the  basis of  relevant conduct.    He also  advances the            derivative  claim  that  his trial  and  appellate  attorneys            rendered ineffective  assistance by  failing to  pursue these                                            ____________________            1.  Petitioner   there  advanced   four  challenges   to  his            sentence,  arguing that  the  court  had  erred  (1)  in  its            grouping of offenses, (2) by  declining to depart downward on            the  basis of his  age and health, (3)  by awarding only two,            rather than  three, points for acceptance  of responsibility,            and  (4) by ordering payment  of a fine  and restitution.  We            found each of these contentions to be without merit.                                           -2-            arguments.  We  need not  decide to what  extent such  claims            might be forfeited, see, e.g., Lopez-Torres v. United States,                                ___  ____  ____________    _____________            876 F.2d 4, 5 (1st Cir.),  cert. denied, 493 U.S. 979 (1989),                                       ____________            or  might otherwise not be cognizable in a   2255 proceeding,            see,  e.g., Knight v. United States, 37 F.3d 769, 771-74 (1st            ___   ____  ______    _____________            Cir. 1994), inasmuch as we agree with the district court that            petitioner's contentions are manifestly without merit.                   1.  Criminal History Category                      _________________________                 Petitioner's central challenge to the calculation of his            criminal history category (CHC)  is based on a  misreading of            the  sentencing  guidelines.   In  determining  the CHC,  the            district court, inter alia,  awarded one point under U.S.S.G.                            __________               4A1.1(c) for  each  of  the  following three  state  court            convictions:                       Attempting   to   obtain  money   under  false                 pretenses.   Offense committed on February 8, 1974.                 Petitioner sentenced on  April 27, 1979,  following                 nolo plea,  to two years probation.   (Violation of                 probation  on  June  18,  1979;  continued  on same                 probation.)                      Violation   of   banking  law   (two  counts).                 Offenses committed  on June  28, 1976.   Petitioner                 sentenced  on April 24,  1979, following nolo plea,                 to two  years probation on each  count, concurrent.                 (Violation of probation on June 18, 1979; sentenced                 to thirty days imprisonment.)                       Failure  to  return   rental  car.     Offense                 committed  on   February  23,  1977.     Petitioner                 sentenced on December 4, 1979, following nolo plea,                 to $100 fine.            Petitioner contends that each  of these offenses occurred too            long ago to be  considered.  Yet the guidelines  provide that                                         -3-            "[a]ny other prior sentence that was imposed within ten years            of  the defendant's  commencement of  the instant  offense is            counted."    U.S.S.G.    4A1.2(e)(2).    Petitioner does  not            dispute  that the conspiracy to which he pled guilty began in            1988,  or that  the  substantive offenses  to  which he  pled            guilty began in January 1989 at the latest.  Accordingly, the            sentences for each of the above three convictions (which were            imposed in April  and December  1979, respectively)  occurred            within the applicable ten-year period.  Petitioner's argument            to  the contrary mistakenly relies  on the date  when each of            those  offenses was committed,  rather than on  the date when            sentencing took place.                  Petitioner also asserts that  the conviction for failure            to return a rental car (with the resulting $100 fine) was too            trivial   to  be  considered.    He   points  to  U.S.S.G.               4A1.2(c)(1), which provides that some fifteen  minor offenses            that are there listed, "and offenses similar to them," are to            be  counted only if, inter alia, the sentence therefor was at                                 __________            least one year of probation or  thirty days of imprisonment.2            Yet  his  suggestion  that   the  rental  car  conviction  is            "similar"  to the  offenses listed  in    4A1.2(c)(1) appears                                            ____________________            2.  The offenses there specified  include such infractions as            contempt  of court, gambling,  resisting arrest, prostitution            and trespassing.                                         -4-            dubious.3   This argument, in any event, was not raised below            and so has been waived.   And any error in this  regard would            plainly have  been harmless.   Unlike more  substantial prior            sentences for which either  two or three points are  added to            the CHC, see U.S.S.G.    4A1.1(a)-(b), the guidelines provide                     ___            that one point shall  be added for other prior  sentences "up            to a  total  of 4  points  for this  item,"  id.    4A1.1(c).                                                         ___            Included in  petitioner's criminal history are  at least five            other  convictions that, according  to the presentence report            (PSR), were eligible for a one-point addition but were not so            counted because of the four-point maximum.  Accordingly, were            the rental  car conviction  to be  disregarded, one  of these            other convictions  would be included in  its stead--such that            petitioner's CHC would not change.                 Both of petitioner's  challenges to the CHC  calculation            thus prove meritless.  It follows that the failure of counsel            to  pursue   these  matters  cannot   be  deemed  ineffective            assistance.                  2.  Relevant Conduct                     ________________                 The  district court increased  petitioner's base offense            level by eight points under  U.S.S.G.   2F1.1(b)(1), based on            a determination that the aggregate  losses exceeded $200,000.                                            ____________________            3.  We note, for example,  that (according to the presentence            report)  petitioner was originally  convicted of such offense            in  state   district  court  and  sentenced   to  sixty  days            imprisonment.   Only upon trial de novo in superior court did            he receive the reduced sanction of a $100 fine.                                         -5-            In  so  finding, the  court not  only  took into  account the            losses resulting  from the  offenses of conviction,  but also            considered  under  the  "relevant  conduct"  provision  of               1B1.3(a)   those  losses  stemming  from  some  eleven  other            instances  of   mail  fraud  in  which  petitioner  allegedly            participated.  In an abstruse series of arguments, petitioner            claims that the court erred in this regard.  We disagree.                 First,  to the  extent petitioner  is alleging  that the            relevant  conduct provision is  unconstitutional per  se, his            argument can be summarily rejected.  See, e.g., United States                                                 ___  ____  _____________            v. Bennett,  37  F.3d 687,  692-94  (1st Cir.  1994);  United               _______                                             ______            States v. Carrozza, 4  F.3d 70, 80-81 (1st Cir.  1993), cert.            ______    ________                                      _____            denied,  114 S. Ct. 1644 (1994); United States v. Wright, 873            ______                           _____________    ______            F.2d 437, 441 (1st Cir.  1989).  Second, to the extent  he is            contending that the  evidence was  insufficient to  establish            his involvement in the other mail frauds, it suffices to note            that  the district court  was warranted in  accepting as true            all facts appearing in the PSR to which no objection had been            voiced.   See, e.g., United States v.  Fox, 889 F.2d 357, 359                      ___  ____  _____________     ___            (1st Cir. 1989).  Third, to the extent he is arguing that the            evidence was  insufficient to  establish that the  other mail            frauds were "part  of the  same course of  conduct or  common            scheme or  plan" as  the offenses  of conviction,  U.S.S.G.              1B1.3(a)(2),  we  disagree.     Each  of  the  other  frauds,            involving efforts  to defraud  insurance companies by  use of                                         -6-            the mails between  1988 and  1990, readily  falls within  the            scope of those terms.  See id.   1B1.3, comment. (n.9).                                   ___ ___                 Fourth,  to  the  extent  petitioner  is  complaining of            counsel's  failure to  object  to the  consideration of  such            relevant  conduct, we find no  error.  According  to the PSR,            petitioner had acknowledged his  involvement in most of those            other  mail  frauds  to  a confidential  informant,  who  had            captured  such admissions  on  tape.   In  the face  of  such            evidence, counsel's  decision  not to  contest these  matters            (and  thereby risk,  inter alia,  forgoing the  reduction for                                 __________            acceptance of  responsibility) was well "within  the range of            competence demanded of attorneys in criminal cases."  Hill v.                                                                  ____            Lockhart,  474   U.S.  52,  56  (1985)   (internal  quotation            ________            omitted).                   Finally, to  the extent  petitioner is objecting  to the            consideration of some $12,441 in losses resulting from a mail            fraud involved in a related prosecution, the PSR specifically            provided  (in response  to defense counsel's  objection) that            such losses would be  excluded from that other case  to avoid            double-counting.   We thus perceive no error.  And again, any            error in this regard would plainly have been harmless.  Given            the   grouping   rule  that   was   applied   at  sentencing,            petitioner's offense level would have remained unchanged even                                         -7-            if the losses  had not  exceeded $200,000.4   See U.S.S.G.                                                             ___            3D1.4(a);  see also  Lombardi, 5  F.3d at  570.   His overall                       ________  ________            restitution   obligation   likewise   would   have   remained            unaltered.                   Affirmed.                  _________                                            ____________________            4.  While the  government has stated (and  petitioner has not            seriously disputed) that the  losses would have exceeded that            level even  without including the $12,441  figure, the partly            ambiguous record  before us  does not permit  confirmation of            this fact.                                         -8-
