
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 95-2211                                    UNITED STATES,                                      Appellee,                                          v.                                   KERR CARRINGTON,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Mark L. Wolf, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Cyr and Lynch, Circuit Judges.                                           ______________                                _____________________               LisaAyn Padilla, by appointment of the Court, for appellant.               _______________               Donald  L. Cabell,  Assistant United  States Attorney,  with               _________________          whom Donald  K. Stern, United  States Attorney, and  Dina Michael               ________________                                ____________          Chaitowitz, Assistant  United States Attorney, were  on brief for          __________          appellee.                                 ____________________                                  September 18, 1996                                 ____________________                    TORRUELLA, Chief  Judge.  On March  28, 1995, Defendant                    TORRUELLA, Chief  Judge.                               ____________          Kerr Carrington  ("Carrington") pleaded guilty to  four counts of          interstate transportation  of property  taken by fraud  (Counts I          through  IV), see 18 U.S.C.   2314,  and two counts of wire fraud                        ___          (counts V and  VI), see 18 U.S.C.    1343.   On August 21,  1995,                              ___          Carrington was  sentenced to a  term of 50  months incarceration,          followed  by a  36  month period  of  supervised release,  and  a          mandatory special assessment of $50.  He contests the validity of          his  plea based on Federal  Rule of Criminal  Procedure 11(f) and          also appeals his sentence on several grounds.  We affirm both his          conviction and his sentence.                                    I.  BACKGROUND                                    I.  BACKGROUND                                        __________                    The case arises  from two separate  sets of schemes  to          defraud.   In the first set,  charged in Counts I  through IV and          spanning from December 1993  to April 1994, Carrington negotiated          the purchase  of four  expensive cars from  out-of-state dealers.          He then tricked the dealers into believing that they had received          wire transfers in payment for the  cars.  All four cars were then          shipped to Carrington in  Massachusetts.  Carrington was arrested          on  May  3, 1994,  and  released  on conditions  pending  further          proceedings in  the district  court.  On  or about July  8, 1994,          Carrington  and  the government  entered  into  a plea  agreement          pursuant to which he agreed to plead guilty to all four counts of          the  information, which was filed  on July 19,  1994.  Carrington          did   not  immediately   waive  indictment   and  plead   to  the          information.   Instead, upon Carrington's  motion, the  Probation                                         -2-          Office began  working on the Presentence Report  ("PSR") with the          intention of  having Carrington plead  and be sentenced  upon its          completion.                    In the second set, charged in Counts V and VI, which he          executed while on release in connection with Counts I through IV,          Carrington sought to obtain and deposit bank drafts drawn against          the corporate bank  accounts of various  companies.  The  conduct          charged as  Count V took  place in  November 1994.   On or  about          November  14,   1994,  while   the  parties  were   awaiting  the          preparation of  the PSR, Carrington, identifying  himself as Chad          Littles  ("Littles"), the Accounts  Receivable/Payroll Manager of          Quorum  International, Ltd.  ("Quorum"),  opened an  account with          International Banking Technology,  Inc. ("IBT"), of  Springfield,          Virginia.    IBT  provides  a bank  drafting  system  that allows          creditors  to collect payment over the phone by having the debtor          pre-authorize a one-time  debit to his or her account.   When IBT          is provided  with  the  debtor  information  by  its  client,  it          prepares bank drafts (or  permits the client to produce  the bank          drafts  by means  of its  software) that  are deposited  by IBT's          client into its bank  account.  When these drafts  are processed,          the  debtor's  account  is  debited  and  the  creditor  receives          payment.  On  or about November 16, 1994, Carrington faxed thirty          completed Bank Draft Sales  Forms ("draft forms") to IBT.   These          draft  forms  are  used  to  provide  IBT  with  the  information          necessary for it to produce the bank drafts for the one-time pre-          authorized  debits.  The draft forms that Carrington faxed to IBT                                         -3-          provided all  of the necessary information including  the name of          the  company to  charge,  its checking  account  number, and  the          amount  of  the  draft  requested  to  cover  the purported  pre-          authorized one-time debit.  Carrington requested that IBT prepare          30 bank  drafts of  $5,000 each  for a  total of  $150,000, which          purportedly was to constitute payment for attendance at a seminar          allegedly held by Quorum.   Carrington's attempt failed, however,          when  as  part of  IBT's fraud  control  system, it  attempted to          verify  the authorization  for some  of the  bank drafts,  and it          found that some of the phone numbers were incorrect.  Because IBT          suspected  fraud,  it  never  completed  processing  Carrington's          request, and Carrington failed to obtain the funds he sought.                    The conduct charged  in Count VI took place in December          1994.   On  or about  December 5,  1994, Carrington,  identifying          himself as  Paul Epstein ("Epstein"), Chief  Financial Officer of          Citibank, phoned IBT,  faxed them an  application for bank  draft          forms,  and  requested IBT  software  that  would  permit him  to          transmit his  requests for  bank drafts  to IBT by  modem.   This          software also  allowed Carrington to receive from  IBT, by modem,          the  instructions necessary to print the bank drafts at his home.          On December 29,  1994, Carrington sent to  IBT by modem  80 forms          for printing bank drafts at his residence,  which were to be used          to  debit  80 different  companies'  accounts  in varied  amounts          totalling $583,443.50.   He  failed to  obtain  the total  amount          sought, receiving and depositing $268,000 into a personal account          before the U.S. Secret Service discovered his actions.                                         -4-                    Based on the events of November and December 1994,  the          government filed  a superseding information adding  two counts of          wire fraud, Counts V and VI, to the previous Counts I through IV.          Pursuant to a second plea agreement, Carrington waived indictment          and  pled guilty to all six counts of the superseding information          on March 28, 1995.  He was sentenced on August 21, 1995.                                   II.  DISCUSSION                                   II.  DISCUSSION                                        __________                          A.  Carrington's Rule 11 argument                          A.  Carrington's Rule 11 argument                    In  his   brief,  without   having  so   argued  below,          Carrington contends  that the district court  erred under Federal          Rule of Criminal  Procedure 11(f) by calculating  his sentence in          part  on  a  plea   for  which  there  was  no   factual  basis.1          Specifically, he  argues  that  even viewed  in  the  light  most          favorable to the government, there was no proof that the vehicles          involved in the information Counts I through IV were stolen prior          to their placement into the stream  of interstate commerce, which          he alleges is an essential element under the Act.                      Because Carrington seeks to withdraw his plea following          the  imposition of  his  sentence, he  must  show that  the  plea          proceedings were marred by "a fundamental defect which inherently          results  in a  complete  miscarriage of  justice  or an  omission                                        ____________________          1   Fed.  R.  Crim. P.  11(f)  ("Determining accuracy  of  plea")          provides that:                      Notwithstanding the acceptance of  a plea                      of  guilty, the court  should not enter a                      judgment  upon  such plea  without making                      such inquiry  as  shall satisfy  it  that                      there is a factual basis for the plea.                                         -5-          inconsistent with  the rudimentary  demands of  fair procedure."2          United States v. Ferguson, 60 F.3d 1, 2 (1st Cir. 1995) (internal          _____________    ________          quotations  omitted); see Fed. R. Crim. P. 32(e); see also former                                ___                         ________          Fed. R. Crim.  P. 32(d), comment.  (advisory committee's note  to          1983 amendments to predecessor of  Rule 32(e)); United States  v.                                                          _____________          Japa, 994  F.2d 899, 902  (1st Cir. 1993)  (stating that,  to set          ____          aside a plea  post-sentencing, the reviewing  court must find  "a          fundamental defect or a miscarriage of justice").                    Carrington's appeal  does not meet this  high standard.          Carrington's  sole argument under Rule 11(f) is that there was no          evidence that the vehicles  involved in Counts I through  IV were          stolen before they  were placed into the stream  of commerce.  We          reject Carrington's  challenge for  two reasons, either  of which          would suffice independently to justify our conclusion.  First, we          have  previously rejected  a similar  argument under 18  U.S.C.            2314, Carrington's statute of  conviction.  See United  States v.                                                      ___ ______________          Puerta, 38  F.3d 34, 41 (1st Cir. 1994).  Much as Carrington does          ______          here, the  defendant in  Puerta argued  that "'no  [property] had                                   ______          been stolen  or taken  by fraud  at the  time of  transfer.'" Id.                                                                        ___          (quoting brief  of defendant).   Paraphrasing that argument  as a                                        ____________________          2   We  recognize that the  burden a  defendant bears  on a post-          sentencing appeal from a guilty plea in this Circuit is "somewhat          cloudy," United  States v. Mart nez-Mart nez, 69  F.3d 1215, 1219                   ______________    _________________          (1st Cir.  1995), cert.  denied,  __ U.S.  __,  116 S.  Ct.  1343                            _____________          (1996), as previous cases  have held direct appellants only  to a          harmless error standard.  Id.; see, e.g., United States v. Parra-                                    ___  ___  ____  _____________    ______          Iba ez,  936 F.2d  588, 598  & n.24  (1st Cir.  1991).   We note,          ______          however, that although we follow the more stringent  standard set          out  in Ferguson and Japa,  even were we  to apply harmless error                  ________     ____          review, Carrington's argument would fail.                                         -6-          claim "that  when transferred  the  [property] had  not yet  been                                                                  ___          stolen," id. (emphasis  in original), we concluded  that we could                   ___          "see  no reason why the fraudulent taking required any more than"          acceptance of  the  property, misrepresentations,  access to  the          property,  and "the requisite  scienter."  Id.   Similarly, given                                                     ___          that Carrington does not argue that there was no factual basis to          find that he accepted  the vehicles, made misrepresentations, had          access  to the vehicles, and had the requisite intent -- "knowing          the [vehicles] to have been stolen, converted or taken by fraud,"                                                        __          18 U.S.C.    2314 (emphasis added) -- his argument that there was          no factual  basis to  find the  vehicles stolen  before transport          must fail, because it is simply irrelevant.                    Second,  Carrington  pled  guilty  to  four  counts  of          transporting or causing to be transported vehicles  which he knew          to  be  "stolen, converted  and taken  by  fraud."   However, the                                      ___          statute  itself  is phrased  in  the  disjunctive, punishing  the          transport of goods  known to  be "stolen, converted  or taken  by                                                               __          fraud," see 18 U.S.C.   2314, as Carrington himself quotes in his                  ___          brief.  Carrington argues that there  is no factual basis for the          conclusion that the goods were stolen when transported, but makes          no reference to conversion or fraudulent takings.  But even if he          were correct with respect  to the "stolen" prong of  the statute,          he would  still need to persuade  us with respect to  both of the          other  two prongs.  However,  Carrington does not  contend that a          factual basis is absent to support the proposition that he caused          the goods to be transported and that  he took them by fraud -- an                                         -7-          alternative basis for criminal  liability under section 2314, and          a  basis included  in the  information to  which he  pled guilty.          Even  if Carrington were  to so argue,  it would  not profit him,          since  the presentence  report established  a more  than adequate          basis for the plea under the "taken by fraud" theory.  See United                                                                 ___ ______          States v. Ferguson, 60 F.3d 1, 4 (1st Cir. 1995) (recognizing PSR          ______    ________          as adequate factual basis for plea  when considering propriety of          plea withdrawal).   As a  result, we  conclude that no  defect or          miscarriage  of justice  exists to  require that  we reverse  the          district court's sentencing decision or  vacate Carrington's plea          due to an inadequate factual basis for  the plea pursuant to Fed.          R. Crim. P. 11(f).                    Besides  the  argument   with  respect  to   his  plea,          Carrington  also raised  an  ineffective  assistance  of  counsel          challenge for the first time at oral argument.  Ordinarily, we do          not address ineffective assistance of counsel arguments on direct          appeal.  See United States  v. Mala, 7 F.3d 1058, 1063  (1st Cir.                   ___ _____________     ____          1993)  (holding that  absent  extraordinary circumstances,  fact-          specific claims  asserting ineffective assistance  of counsel are          not cognizable on direct  appeal), cert. denied, 114 S.  Ct. 1839                                             ____________          (1994).  This case is no  exception.  Carrington argues that  his          trial counsel improperly led him to plead guilty.  However, these          charges depend  on evidentiary matters which  are best considered          by  the  district court  in the  first  instance.   Id.  at 1063.                                                              ___          Accordingly,  Carrington's claim of  inadequate assistance is not          properly before us, and so we do not consider it.                                         -8-             B.  The value and loss determinations in Counts I through IV             B.  The value and loss determinations in Counts I through IV                    Carrington disputes  the values assigned by  the PSR --          that is, the values represented by the prices  he promised to pay          the  dealers he contacted -- and adopted by the district court in          sentencing, to the  four cars that were the subjects  of Counts I          through IV,  respectively.  He  contends that the  district court          should  instead have valued the car in  Count I at $30,000 -- the          amount  of money he  obtained in the  sale of the car  -- and for          Counts  II through  IV  the  court  should  have  used  the  fair          wholesale  value of the vehicles.  Carrington points out that the          only reference to valuation in  the record, apart from references          to "an agreed upon price," is in the FBI agent's affidavit of the          car  dealer's statements.  He  adds that the  only information on          personal  knowledge as to  the value of  any car  was the $30,000          willingly  paid  by  a  car  dealer  for  the  car  in  Count  I.          Carrington  notes  that while  the  Guidelines  use "fair  market          value" as the measure of the value of stolen  property, that rule          is  not absolute,  and in fact,  if market value  is difficult to          ascertain  or inadequate  to  measure  the  harm to  the  victim,          alternative  methods of valuation may be used.  U.S.S.G.   2B1.1,          n.2.                    This  court  reviews  de   novo  the  district  court's                                          _________          interpretation  of   the  loss  provisions  of   the  Guidelines.          Thereafter,  it  normally  reviews  a  district  court's  factual          findings only for clear error.  See, e.g., United States v. Koon,                                          ___  ____  _____________    ____          __ U.S.  __, 116 S. Ct. 2035 (1996); United States v. Skrodzki, 9                                               _____________    ________                                         -9-          F.3d  198, 202 (1st Cir. 1993).   But where, as here, a defendant          fails  to object to the court's loss computation -- as Carrington          concedes in his brief -- review is for plain error.                      Carrington's   essential  contention,   without  record          support,  is that  the prices  he negotiated  in relation  to the          vehicles involved  in Counts  II through  IV  were overstated  in          order  to induce  the dealers' agreement.   But in  fact, the PSR          suggests  that Carrington negotiated the price of each vehicle in          an  arm's  length transaction.    Under  section 2B1.1,  comment.          (n.2),  a   product's  fair   market  value  is   ordinarily  the          appropriate value of the victim's loss.  Here, it was reasonable,          particularly in  light of  the bargaining between  Carrington and          the dealers, for the district court to calculate the market value          of each vehicle to  be the price Carrington negotiated  with each          dealership.  See, e.g., United States v. Warshawsky, 20 F.3d 204,                       ___  ____  _____________    __________          213 (6th Cir. 1994) (applying market value in a section 2314 case          to mean the price a  willing buyer would pay a willing  seller at          the time  and place the  property was taken).   Loss need  not be          determined with precision, and  in fact may be inferred  from any          reasonably reliable information.  See,  e.g., Skrodzki, 9 F.3d at                                            ___   ____  ________          203.  Furthermore, it was reasonable  for the court to adopt  the          retail rather than the wholesale values of the cars, since all of          the  dealerships  from whom  Carrington  obtained  the cars  were          engaged in retail sales of automobiles.  As a result, we conclude          that the district court did not commit plain error in determining          the market value of the vehicles in Counts I through IV.                                         -10-                    C.  Carrington's argument that Counts V and VI                    C.  Carrington's argument that Counts V and VI                       should have been sentenced as attempts                        should have been sentenced as attempts                    Carrington  contends that the sentencing court erred in          concluding  that Counts V and VI were both completed crimes, with          a total  intended loss of $583,000.   He argues that  the lack of          actual loss counsels  for the  proposition that Counts  V and  VI          should be classed  as mere attempts, pursuant  to the Guidelines.          See  U.S.S.G.   2X1.1(b)(1) (mandating a decrease by 3 levels for          ___          an  attempt).   Thus,  he posits,  the  offense levels  for those          counts should be lower than  those the district court  attributed          to  them.  We review the district court's legal ruling concerning          the scope of section 2X1.1 de novo, but uphold the application of                                     _______          section 2X1.1  to the  facts of Carrington's  offense conduct  so          long   as  it  is  not  clearly  erroneous.    United  States  v.                                                         ______________          Chapdelaine, 989 F.2d  28, 34 (1st  Cir. 1993) (discussing  clear          ___________          error  with respect to section  2X1.1), cert. denied,  114 S. Ct.                                                  ____________          696 (1994).                    In  making  this  argument,  Carrington  confronts  our          opinion  in  United States  v. Egemonye,  62  F.3d 425  (1st Cir.                       _____________     ________          1995).  In that case, the district court calculated loss pursuant          to  section  2F1.1 based  on the  total  aggregate limits  of the          credit cards that the defendant wrongfully obtained.  Id. at 429.                                                                ___          The  defendant  argued  that  because  section  2F1.1  references          section  2X1.1  regarding "partially  completed  offense[s]," and          because he had actually inflicted a loss of only about 53 percent          of  the aggregate credit limit before  his scheme was interrupted                                         -11-          by  arrest, the  district court  erred in  denying him  the lower          offenselevel attendant to anonly "partially completed"crime.  Id.                                                                        ___                    We  rejected the  application of  section 2X1.1  to the          defendant's  conduct in  Egemonye.   Id. at 430.   We  noted that                                   ________    ___          there were  two competing views  of section  2X1.1.  It  could be          viewed  as offering  a reduction  for potential  versus completed          harm; alternatively,  its provisions  could be read  literally to          direct its application only where the defendant has not completed          the actions necessary to the substantive offense.  Id.  In siding                                                             ___          with the latter view, we stated that                      [t]here  would  be nothing  irrational in                      deciding that actual  harm is worse  than                      intended harm and providing a three-level                      discount  wherever  the  sentence  for  a                      completed  offense is measured in part by                      intended  harm.    But  this  is  not  in                      general the philosophy of the guidelines;                      if  it were,  possession  of  drugs  with                      intent  to  distribute would  be punished                      less harshly  than the actual  sale of an                      equivalent amount. . . .                       [T]he cross-references  in section 2F1.1                      are easily explained; they do  invoke the                      discount,   or   the  possibility   of  a                      discount, where the  underlying crime  is                      merely an  attempt or  conspiracy. .  . .                      Here, by  contrast, all 51  of the  cards                      were the subject of completed crimes.          Id.;  see, e.g., United States v. Sung,  51 F.3d 92, 95 (7th Cir.          ___   ___  ____  _____________    ____          1995) (applying the same view of section 2X1.1 to sentencing of a          defendant  who was arrested in the  midst of a scheme to traffick          counterfeit hair care products).                    To be  sure, Carrington  tries to distinguish  Egemonye                                                                   ________          from  his case.    In his  brief,  Carrington contends  that  the          defendant in  Egemonye  had  the credit  cards  and  the  present                        ________                                         -12-          ability to turn the cards into cash, while, with respect to Count          V,  Carrington would  still have  had to  actively negotiate  the          drafts even  had he received them  from IBT.  He  asserts that he          never  came close to being in a position to negotiate the drafts.          However, Carrington does not dispute that IBT's own fraud control          unit  prevented him  from receiving  those drafts.   Furthermore,          Carrington also does not dispute  that he did in fact  transmit a          wire communication pursuant to a scheme to defraud.  As a result,          Carrington had  completed the  necessary elements of  the charged          offense,  wire  fraud, just  as  the defendant  in  Egemonye had.                                                              ________          Thus, we conclude that Egemonye is squarely on point.                                 ________                    In  light  of Egemonye,  section  2X1.1  is simply  not                                  ________          applicable  as  Carrington contends.    Carrington was  convicted          under Counts  V and VI of wire fraud, not attempted wire fraud or          wire  fraud conspiracy.  The crime of wire fraud does not require          that the defendant's object  be attained.  It only  requires that          the defendant devise a scheme to defraud and then transmit a wire          communication for the purposes  of executing the scheme.   See 18                                                                     ___          U.S.C.   1343.  Here, Carrington completed the necessary acts for          the crime  of wire fraud  in Count  V when he  faxed thirty  bank          draft sales form  requests to IBT in furtherance of his scheme to          obtain $150,000, and  in Count VI  when he  sent by modem  eighty          transaction requests  to  IBT in  furtherance  of his  scheme  to          obtain $583,443.50.   Because  section 2X1.1  does  not apply  to          completed  substantive offenses,  Egemonye,  62 F.2d  at 430,  we                                            ________          conclude  that the district court correctly denied a reduction in                                         -13-          offense level pursuant to section 2X1.1.  As a result, we find no          error of law or application that justifies such a reduction.             D.  Carrington's argument that the district court double counted           D.  Carrington's argument that the district court double counted              loss in sentencing him pursuant to Counts V and VI              loss in sentencing him pursuant to Counts V and VI                    Carrington maintains  that the district court  erred in          its loss  calculation in sentencing him for  the offenses charged          in Counts V and VI.   Specifically, he contends that part  of the          loss  that the  district  court attributed  to  Count VI  was  an          effective double counting of  loss in Count V, since  the offense          in Count  VI was an effort, in  part, to make up  for the lack of          success of the conduct in Count V.  Citing to Guidelines sections          2F1.1  and 2B1.1,  Carrington maintains  that the  district court          should not  have found that Counts  V and VI  were two individual          offenses.  See U.S.S.G.   2F1.1 ("Fraud and Deceit; Forgery . . .                     ___          "),  comment.  (n.7)  (directing  that "[v]aluation  of  loss  is          discussed  in  the Commentary  to    2B1.1")  and 2B1.1  ("Theft,          Embezzlement . . . "), comment. (n.2) (stating that "[i]n certain          cases,  an offense may involve a series of transactions without a          corresponding increase  in  loss"). Instead,  argues  Carrington,          these  Counts were  in  fact merely  parts  of a  larger  scheme,          deserving of an accordant reduction in offense level.                    Had Carrington raised this argument below, the district          court's determination that Counts V and VI were separate offenses          would be reviewed for clear  error.  See, e.g., United  States v.                                               ___  ____  ______________          Prendergast, 979 F.2d 1289, 1291-92   (8th Cir. 1992) (discussing          ___________          loss  calculation under U.S.S.G.    2B1.1  and 2F1.1 and stating,          with  respect to  uncharged  conduct, that  the district  court's                                         -14-          determination  of   a  common  scheme  or  plan   "is  a  factual          determination  subject  to  review under  the  clearly  erroneous          standard"); cf. United States v. Mak, 926 F.2d 112, 115 (1st Cir.                      ___ _____________    ___          1991) (reviewing  district  court's determination  of  a  "common          scheme  or plan"  of drug  offenses for  clear error).   However,          because Carrington failed to raise this issue below, we review it          only for  plain error.  See United States v.  Black, 78 F.3d 1, 5                                  ___ _____________     _____          (1st Cir. 1996);  United States v. Atwood, 963 F.2d  476, 477 n.2                            _____________    ______          (1st Cir. 1992).   While  Carrington argues that  this issue  was          preserved,  pointing in  his  reply brief  to  a section  of  the          transcript of the  proceedings that  shows that Counts  V and  VI          were argued simultaneously by counsel, we reject that contention.          The transcript in  fact shows  that Counts V  and VI were  argued          simultaneously with respect to Carrington's section 2X1.1 attempt          argument;  there was  no oral  argument with respect  to sections          2F1.1  and 2B1.1,  or whether Counts  V and  VI formed  part of a          common scheme or plan.                    We fail to find plain error for two reasons.  First, we          think  Carrington's reliance  on commentary  to section  2B1.1 is          misplaced.  Carrington essentially  contends that because, of the          80  victims of the fraud  underlying Count VI,  thirty were among          the victims in  Count V, and  because he was  seeking to get  the          same  $150,000  from these  thirty  victims,  the district  court          therefore improperly double  counted this  amount in  calculating          the loss from  Count VI  as $583,443.50.   Carrington  emphasizes          Application Note 2  to section 2B1.1, which specifies  that "[i]n                                         -15-          certain cases, an  offense may involve  a series of  transactions          without a  corresponding increase  in loss."   U.S.S.G.    2B1.1,          comment.  (n.2).  However, as the Government points out, the very          next sentence  in Note Two uses  as an example the  case where "a          defendant  [] embezzle[s] $5,000  from a bank  and conceal[s] his          embezzlement by  shifting this amount from one account to another          in a series of nine  transactions over a six-month period."   Id.                                                                        ___          The  loss   would  remain   at  $5,000  because   the  subsequent          transactions  did not  increase the  risk of  actual or  intended          loss.  By contrast, there is no dispute that Carrington's actions          in  Count  VI increased  the  risk of  potential loss  to  the 30          overlapping victims.  Indeed,  Carrington's own counsel argued at          sentencing  that "[t]here was no follow-up [to the fraud in Count          V], no  pursuit  of it,  it  was  abandoned and  then  a  second,          separate fraud was commenced."                    Second,  even if the loss  on Count VI  were reduced by          $150,000,  as  Carrington seeks,  the  aggregate  total loss  for          Counts I through VI would  be approximately $789,000 which, under          the  Guidelines, would  require a  ten-level rather  than eleven-          level  increase to  the offense,  resulting in  a final  adjusted          offense level of  21 rather than 22.  See U.S.S.G.   2F1.1(b)(1).                                                ___          Because Carrington falls within  Criminal History Category I, his          sentencing  range under  the  Guidelines would  be 41-51  months.          Because his current sentence  falls within this range, any  error          could not be found  to affect his "substantial rights,"  and thus          could not amount to plain error.                                         -16-          E.  Carrington's requested "acceptance of responsibility" credit          E.  Carrington's requested "acceptance of responsibility" credit                    Carrington also claims that the district court erred in          denying his request for a three-level reduction for acceptance of          responsibility  pursuant to  U.S.S.G.    3E1.1.   As  a threshold          matter,  we must confront the question of what standard of review          applies.   Carrington  argues  that the  district  court made  an          interpretive  mistake  regarding the  meaning  and  scope of  its          factfinding;  because  this  purported  mistake  is  inextricably          intertwined with its factfinding, he contends that de novo review                                                             _______          is  warranted.    Carrington   points  out  that  the  government          recommended a  three-level  reduction for  timely  acceptance  of          responsibility, but that the district court adopted the probation          office  recommendation that no sentencing consideration be given.          Carrington argues in his brief that the  district court committed          an error  of interpretation and related  factfinding, since "[n]o          fact  of  any  significance is  referred  to  by [the]  probation          [office] other  than the  subsequent offense" committed  while he          was on pretrial release.                    While Carrington claims that his argument implicates  a          mixed error that requires de novo review for his entire argument,                                    _______          we  disagree.   The  propriety of  the  district court's  use  of          criminal  conduct during  pretrial release  to justify  denial of          acceptance of responsibility credit --  as a matter of  guideline          interpretation -- is subject to de novo review.  United States v.                                          _______          _____________          Talladino,  38 F.3d  1255, 1263  (1st Cir.  1994).   However, the          _________          application  of this  legal conclusion  to the  facts surrounding                                         -17-          Carrington's  offense  is  subject  to review  for  clear  error.          United States v. Boots,  80 F.3d 580, 594 (1st Cir. 1996); United          _____________    _____                                     ______          States  v. Luciano-Mosquera, 63 F.3d 1142,  1158 (1st Cir. 1995).          ______     ________________          We cannot accept the proposition that the district court erred as          a   matter   of  law   by   denying   Carrington  acceptance   of          responsibility credit based on  his criminal conduct (included in          Counts  V  and VI)  while on  pretrial  release.   The Guidelines          specify  that  a  court,  in  its  acceptance  of  responsibility          determination, can consider whether the defendant has voluntarily          terminated all criminal conduct.   See U.S.S.G.   3E1.1, comment.                                             ___          (n.1).   Where the defendant  commits additional crimes  while on          release,  a district  court may  view that  as evidence  that the          defendant has  not voluntarily  terminated  all criminal  conduct          and, accordingly, decline to award a reduction  for acceptance of          responsibility on  that ground alone.   United States  v. O'Neil,                                                  _____________     ______          936  F.2d 599, 600 (1st Cir. 1991).   This is true even where the          defendant,  like Carrington, has pled guilty.  Id. at 600-01; see                                                         ___            ___          also United States  v. Morrison,  983 F.2d 730  (6th Cir.  1993);          ____ _____________     ________          United States  v. Reed, 951  F.2d 97,  99 (6th Cir.  1991), cert.          _____________     ____                                      _____          denied, 503 U.S. 996 (1992).   As a result, we conclude  that the          ______          district  court  did  not   commit  legal  error  in  considering          Carrington's criminal conduct while on pretrial release.                    Accordingly, we  review  for clear  error  Carrington's          residual argument regarding the  district court's refusal to deny          him a reduction  for acceptance  of responsibility.   See,  e.g.,                                                                ___   ____          United States v. Burns,  925 F.2d 18, 20 (1st  Cir. 1991); United          _____________    _____                                     ______                                         -18-          States  v. Royer,  895 F.2d  28,  29 (1st  Cir. 1990).   "Because          ______     _____          credibility  and  demeanor play  a  crucial  role in  determining          whether  a   person  is  genuinely  contrite,   and  because  the          sentencing  judge has  the  unique opportunity  of observing  the          defendant  . . . and evaluating acceptance of responsibility in a          live  context, the finding of the sentencing court is entitled to          great respect," and "should not be disturbed unless it is without          foundation."   Burns, 925 F.2d at  20; Royer, 895 F.2d  at 29-30.                         _____                   _____          In  his brief,  Carrington argues  that, in  its weighing  of his          additional offenses versus  the affirmative steps Carrington  has          taken to  admit guilt and  accept responsibility for  his crimes,          the trial court ignored his remorse and "cho[se] instead to focus          solely on  the commission  of a  new offense  (for which a  three          point  enhancement  was  assessed  without  objection)."    While          Carrington may  state a plausible theory under which the district          court could have decided to give him acceptance of responsibility          credit  despite his commission of new offenses, he has simply not                  _______          met  his burden,  see United  States v.  Uricoechea-Casallas, 946                            ___ ______________     ___________________          F.2d  162,  167 (1st  Cir. 1991),  of  showing that  the district          court's decision was "without foundation," see Burns, 925 F.2d at                                                     ___ _____          20.   Furthermore, in addition  to his  additional offenses,  the          district court  also considered  Carrington's decision  to remain          silent in open court, a factor the court was entitled to weigh in          determining   whether   he    demonstrated   an   acceptance   of          responsibility.  See United States v. Delgado, 36 F.3d 1229, 1236                           ___ _____________    _______          (1st Cir. 1994), cert.  denied, 115 S. Ct. 1164  (1995).  Because                           _____________                                         -19-          the  district court had sufficient foundation to do so, we affirm          its denial  of Carrington's  request for a  three-level reduction          based on his acceptance of responsibility.                                         -20-                                   III.  CONCLUSION                                   III.  CONCLUSION                                         __________                    As  a result  of  the foregoing,  the  judgment of  the          district court is affirmed.                            affirmed                            ________                                         -21-
