
USCA1 Opinion

	




          March 7, 1996         [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 95-2009                                    UNITED STATES,                                      Appellee,                                          v.                                PATRICIA C. HARRISON,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Cyr and Stahl, Circuit Judges.                                           ______________                                _____________________               Samuel  J. Buffone, with whom  Brian S. Chilton  and Ropes &               __________________             ________________      _______          Gray were on brief for appellant.          ____               Carolyn  Stafford Stein,  Assistant United  States Attorney,               _______________________          with whom Donald K.  Stern, United States Attorney, was  on brief                    ________________          for appellee.                                 ____________________                                 ____________________                    TORRUELLA, Chief Judge.   Defendant-Appellant  Patricia                    TORRUELLA, Chief Judge.                               ___________          C.  Harrison  appeals from  the sentence imposed  by the district          court  after her plea of  guilty to seventy-seven  counts of bank          fraud in  violation of  18 U.S.C.     1344.1   Appellant, who  is          currently serving her prison sentence, requests that her sentence          be vacated and that we remand for resentencing.   For the reasons          stated below, we affirm the district court's sentence.                                      BACKGROUND                                      BACKGROUND                                      __________                    On December 17, 1991, a  federal grand jury returned an          indictment against  Patricia C. Harrison and  her husband Stephen          G.  Harrison, charging them with one hundred counts of bank fraud          in violation of 18 U.S.C.   1344 and with one count of bankruptcy          fraud  in  violation of  18 U.S.C.     152.   Appellant  moved to          dismiss  the indictment on  May 18, 1992, on  the ground that the          bank fraud  counts were  multiplicitous.   Six  months later,  on          November 16,  1992, the district court  denied Appellant's motion          and  on  January 12,  1993,  a  federal  grand  jury  returned  a          superseding indictment, which  merged a number of  the bank fraud          counts  from  the original  indictment  into a  lesser  number of          counts.    The  superseding  indictment  alleged  three  separate                                        ____________________          1  This section provides, in pertinent part:                      Whoever knowingly executes . . . a scheme                      or artifice -- (1) to defraud a financial                      institution;  or (2) to obtain any of the                      moneys   .   .   .   [of]   a   financial                      institution,   by   means  of   false  or                      fraudulent  pretenses .  .  .  [shall  be                      guilty of a crime].          18 U.S.C.   1344 (1988) & Supp. II (1990).                                         -2-          schemes by which  Appellant and her  husband defrauded the  banks          involved.  On  April 10, 1995, Appellant pled  guilty to seventy-          seven of the  seventy-nine counts  of bank fraud  charged in  the          superseding indictment.                      In the plea agreement, Appellant acknowledged that  she          was  subject  to  separate  punishments  of  up  to  five  years'          imprisonment  on each  of the counts  but one, for  which she was          subject to  a maximum penalty of  up to thirty years.   Appellant          also agreed  to pay a  special assessment of  $50 on each  of the          seventy-seven counts to which she pled guilty.  The  pre-sentence          report ("PSR") calculated Appellant's offense level in accordance          with the plea agreement,  with two exceptions, only one  of which          is relevant to this  appeal.  The PSR calculated  the appropriate          loss  range  under  U.S.S.G.    2F1.1(b)(1)(K)  to  be  more than          $5,000,000 because the victim  bank lost principal in the  amount          of $10,998,072.67.  This differed from  the plea agreement, which          provided for a loss of between $2-$5 million.  In her pre-hearing          sentencing memorandum,  Appellant  asked the  district  court  to          depart  from the applicable guideline range for two reasons:  (i)          the amount of loss overstated the seriousness of her offense; and          (ii)  her  husband's  illness.     Apart  from  these  arguments,          Appellant did not object to the PSR's amount of loss or guideline          calculation, or to any of the offense conduct detailed in the PSR          that was the basis for those findings.                    At  the sentencing hearing,  and after hearing argument          from  the  parties regarding  the  appropriate  loss amount,  the                                         -3-          district  court found  the loss  for  purposes of    2F1.1  to be          between $2-5 million.  In addition, the district court found that          the total  offense level was  18, with a  corresponding guideline          sentencing   range  of   twenty-seven  to   thirty-three  months'          imprisonment.   The  district court  made a  three-level downward          departure,  on the  basis  of circumstances  surrounding the  ill          health  of  Appellant's  husband,  bringing the  total  to  level          fifteen, with  a corresponding  range of eighteen  to twenty-four          months.  Appellant's total  offense level of fifteen was  made up          of  the following elements:  a base  offense level of six under            2F1.1(a); a ten-level enhancement under   2F1.1(b)(1)  to reflect          the  amount of loss,  found to be  between $2-$5 million;  a two-          level  enhancement  for  more   than  minimal  planning  under             2F1.1(b)(2)(A); a two-level enhancement for supervising others in          the commission of the offense under   3B1.1(c); and a three-level          downward  departure  based  on  the  ill  health  of  Appellant's          husband.   Combined  with  a  criminal  history  category  of  I,          Appellant's resulting total offense level was fifteen.                      On  August  7,  1995,  the  district  court   sentenced          Appellant  to  24  months  in  prison  and  ordered  her  to  pay          restitution  in the amount of $10,998,072.67,  the amount lost by          the victim bank as  found in the PSR by the  district court.  The          district  court also imposed  a three  year period  of supervised          release and a special assessment of $3,850.                      This appeal followed.  We have jurisdiction pursuant to          18 U.S.C.   3742(a) (1994).                                         -4-                                  STANDARD OF REVIEW                                  STANDARD OF REVIEW                                  __________________                    We  review   for  clear  error  factbound   matters  in          sentencing,  mindful  that such  factual  findings  need only  be          supported  by a preponderance of the evidence, and review de novo                                                                    _______          questions  of  law, including  the  applicability  of a  relevant          guideline.   United  States v.  Mart nez-Mart nez, 69  F.3d 1215,                       ______________     _________________          1224 (1st Cir. 1995).                                      DISCUSSION                                      DISCUSSION                                      __________                    Appellant entered into an unconditional plea agreement,          whereby she agreed to plead guilty to the seventy-seven counts of          bank  fraud, to subject herself to separate punishment on each of          these counts, and to  pay a special  assessment on each of  those          counts.  Appellant does not challenge her conviction but, rather,          challenges the sentence imposed by the district court.  Appellant          contends that the seventy-seven counts of bank fraud are facially          multiplicitous  because the  superseding indictment  supports, at          most, only three counts of bank fraud.  See,  e.g., United States                                                  ___   ____  _____________          v. Broce,  488 U.S. 563,  574 (1989) (establishing  the principle             _____          that  a  defendant who  pleads guilty  to  a criminal  charge may          subsequently assert  a claim of multiple  punishment in violation          of the Double Jeopardy  Clause only if the violation  is apparent          on  the face of the  indictment itself); United  States v. Lilly,                                                   ______________    _____          983  F.2d 300, 302-04 (1st Cir. 1992) (holding that an indictment          for bank fraud is multiplicitous when it charges a defendant with          multiple counts for each "single execution of a unitary scheme").          Because  the seventy-seven counts  were multiplicitous, Appellant                                         -5-          argues,  she was prejudiced in  the view of  the sentencing court          and her sentence violates Double Jeopardy principles.                     While our review  of the  district court's  application          and  interpretation  of  the  Sentencing  Guidelines is  plenary,          Mart nez-Mart nez, 69 F.3d at  1224, "[w]e have repeatedly stated          _________________          in the sentencing context, as well as in other areas, that issues          not presented to the district court will not be addressed for the          first time  on appeal."  United States v. Haggert, 980 F.2d 8, 10                                   _____________    _______          (1st  Cir.  1992).   We have  also  stated that  "[a]rguments not          raised below will  be entertained on  appeal only in  'horrendous          cases where a gross  miscarriage of justice would occur'  and, in          addition, where  the newly asserted  ground 'is so  compelling as          virtually to insure appellant's success.'"  Id. (quoting Johnston                                                      ___          ________          v. Holiday Inns, 595 F.2d 890, 894 (1st Cir. 1979)).  Here, these             ____________          straightforward rules  leave Appellant's  sails flapping  idly in          the wind.                    Although "a defendant's unconditional guilty  plea does          not automatically waive  the right to appeal  matters incident to          sentencing  as opposed  to guilt," United  States v.  Cordero, 42                                             ______________     _______          F.3d 697,  699 (1st Cir.  1994), we nonetheless  find Appellant's          multiplicity  argument waived.  Even though  she only raises this          argument  as to her sentencing, we find controlling the fact that          Appellant had ample opportunity to challenge the sentence imposed          and raise her multiplicity  argument as to sentencing before  the          district court.                                           -6-                    The record before us clearly shows that Appellant never          objected  on  grounds of  multiplicity  or  raised this  argument          during the  change of plea  hearing, in her  pre-hearing sentence          memorandum, or during the sentencing hearing.  The PSR calculated          Appellant's  offense level to  be twenty-one.   Appellant did not          file  any objections to the PSR.  In her pre-sentence memorandum,          Appellant argued on  two grounds that  the district court  depart          from the  applicable guideline  sentencing range, but  neither of          them concerned the  multiplicity of the counts.   Indeed, besides          supporting a finding of Appellant's failure to object, the record          shows  that  the  district  court  specifically drew  Appellant's          attention  to  the  government's  evidence  regarding  the counts          charged, pointed out the portion of the agreement identifying the          maximum  penalties to which  defendant could  be subject  on each          count,  and   notified  Appellant  of  the   possibility  of  the          imposition of restitution.                      Appellant insists, however, that  she did not waive her          multiplicity challenge, arguing that  it was preserved for appeal          because she  challenged the original  indictment on  multiplicity          grounds.    Appellant  relies  on two  cases,  United  States  v.                                                         ______________          Molinaro, 11 F.3d 853, 858 n.9 (9th Cir. 1993), cert. denied, 115          ________                                        ____________          S. Ct. 668  (1994), and United States  v. Fuesting, 845 F.2d  664                                  _____________     ________          (7th Cir. 1988), for the proposition that she was not required to          challenge the superseding indictment  after her motion to dismiss          the  original indictment was  denied.   We need  not rule  on the          merit  of   Appellant's  argument,  because   what  controls   is                                         -7-          Appellant's  subsequent  act  of  voluntarily  and  intelligently          pleading  guilty to  all seventy-seven  counts, coupled  with her          failure  to make any objection to  the superseding indictment, to          the seventy-seven counts, to the offense conduct contained in the          PSR, or  to the sentence imposed.   Thus, we decline  to consider          this argument.2                      Appellant also argues that  the district court's  fraud          loss  calculation was  erroneous under    2F1.1(b)(1)(K),   which          increases  the level  of punishment  according to  the amount  of          "loss" caused by  the fraud.   We find,  however, that  Appellant          waived  any claim  of error  in the  court's calculation  of loss          under   2F1.1,  because no objection was made  to the accuracy of          the facts set forth in the offense conduct section of the PSR, to          the amount  of  loss found  by  the  district court,  or  to  the          district court's guideline calculation.  Because Appellant failed          to  object to the district court's determination as to the amount          of loss  for purposes of   2F1.1, her sentence can be reversed on          this basis  only upon a  showing of "plain  error."  See  Fed. R.                                                               ___          Crim. P.  52(b).3  To  meet the  plain error standard  there must                                        ____________________          2   We note that  even if the  counts were multiplicitous, remand          for  resentencing would not be an  appropriate remedy.  Appellant          received identical sentences on each of the seventy-seven counts,          and it is undisputed that all of the offense conduct that was the          basis  for   those  sentences   would  be  equally   relevant  to          resentencing on the remaining  counts.  Accordingly, remand would          be an  empty and needless exercise.   See Lilly, 983  F.2d at 305                                                ___ _____          n.11.           3  This rule provides, in pertinent part, that "[p]lain errors or          defects affecting substantial rights may be noticed although they          were not brought to the  attention of the court."  Fed.  R. Crim.          P. 52(b).                                         -8-          be:  (i) a reviewable error (ii) that is "clear" or "obvious" and          (iii) affects  "substantial rights."  United  States v. Benjamin,                                                ______________    ________          30 F.3d 196,  197 (1st Cir. 1994).  We  retain the discretion not          to correct an  error, however plain, unless the error "'seriously          affect[s]  the  fairness,  integrity  or  public  reputation   of          judicial proceedings.'"   United States  v. Olano, ___  U.S. ___,                                    _____________     _____          ___,  113  S. Ct.  1770, 1779  (1993)  (quoting United  States v.                                                          ______________          Atkinson, 297  U.S.  157,  160  (1936));  see  United  States  v.          ________                                  ___  ______________          Olivier-D az,  13  F.3d  1,  5  (1st  Cir.  1993)  (quoting  same          ____________          language).                     Far from constituting plain error, the district court's          finding  as to  the  amount of  loss attributable  to Appellant's          conduct under   2F1.1(b)(1)(K) was fully supported by the record.          The PSR  found  that the  actual  loss  to the  victim  bank  was          $10,998,072.67  in principal  and  $7,858,292.69  in interest  on          Appellant's  loan.    At the  hearing,  the  court was  therefore          prepared  to adopt the PSR's determination that loss for purposes          of   2F1.1 was more than $5,000,000.  According to the transcript          of the  sentencing hearing, the district court  adopted the lower          $2,000,000  to $5,000,000  loss range  "in light  of the  need to          calibrate  the loss  attributable to  [Appellant's]  actions more          fairly."  Contrary to Appellant's claim, nowhere in our review of          the  record do  we find  any evidence  that the  district court's          finding  was based  on  "speculation."    We  note  further  that          Appellant fully conceded  the accuracy  of these  figures at  her                                        ____________________                                                   -9-          change of plea hearing  and at sentencing.  Accordingly,  we find          no "clear"  or "obvious" error by the district court.  Even if we          were  to find any,  there is no  evidence that  the alleged error          affected her "substantial rights" or her sentence.                     Finally, Appellant argues that the district court erred          in ordering restitution under 18 U.S.C.   3664, which establishes          the factors to be considered by the court in determining an order          of restitution,  in  excess  of  $10  million,  an  amount  which          exceeded the loss range  used by the district court  for purposes          of   2F1.1.   We find, however,  that Appellant waived  her claim          regarding the restitution  order because she failed  to object to          the  PSR's  calculation  of  the  victim  bank's  actual loss  as          $10,998,072.67  in  principal, to  the  PSR's determination  that          restitution  in that amount  was appropriate, or  to the district          court's  order of restitution in that amount.  As with the amount          of  loss, we  can reverse  the restitution  order only  for plain          error.  Olivier-D az, 13 F.3d at 5.  Appellant conceded below and                  ____________          does  not deny  on  appeal  that the  actual  amount of  loss  in          principal  to the  victim  bank was  in  excess of  $10  million.          Accordingly, the  district court's  order of restitution  in that          amount was fully appropriate, and, because it is  fully supported          by the  record, it does not  constitute plain error.   We find no          evidence  of  harm to  Appellant's  "substantial  rights" by  the          district court's  decision to hold Appellant  responsible for the          entire loss resulting from her fraud.                                           -10-                    For the foregoing reasons,  the sentence imposed by the          district court is Affirmed.                            ________                                         -11-
