
USCA1 Opinion

	




        August 23, 1994                                [NOT FOR PUBLICATION]                           UNITED STATES COURT OF APPEALS                                 FOR THE FIRST CIRCUIT                                 ____________________        No. 93-2289                                LOUIS ROBERT PARENTE,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                 ____________________                                   APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Selya and Stahl, Circuit Judges.                                            ______________                                 ____________________            Louis Robert Parente on brief pro se.            ____________________            Donald K.  Stern, United  States Attorney,  and Duane  J. Deskins,            ________________                                _________________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                      Per  Curiam.   In 1991,  Louis Robert  Parente pled                      ___________            guilty to armed bank  robbery, and was sentenced to  a prison            term  and  ordered to  pay  restitution  and, to  the  extent            restitution  was not  paid, a fine.   He  did not  appeal his            sentence, but in 1993 filed a motion to vacate, set aside, or            correct  his sentence under 28  U.S.C.   2255.   The district            court denied his motion, and Parente now appeals.  We affirm.                      Only two issues are properly before us.   The first            is Parente's claim that his attorney rendered him ineffective            assistance of counsel by failing to  argue at sentencing that            he did  not have the  ability to  pay a fine  or restitution.            The  second  is his  claim  that  his attorney  rendered  him            ineffective assistance of counsel at sentencing by failing to            argue for  a downward departure  on the grounds  that Parente            suffered from "divorce  traumatic stress  syndrome" and  that            his  crime  constituted   "aberrant  behavior."1     Although                                            ____________________            1.  Parente raised  other claims  below, which he  appears to            have abandoned on appeal.   Those claims were that  Parente's            attorney  had  rendered  ineffective  assistance  of  counsel            because he failed to correct or clarify certain statements in            the presentence  report; that Parente should  have been given            the retroactive benefit of amended U.S.  Sentencing Guideline               3E1.1, which  permitted  an additional  reduction in  base            offense  level for  acceptance  of responsibility  if certain            conditions were met; that, for various reasons, a prior state            conviction  should  not  have  been included  as  a  criminal            conviction in his presentence  report; that the imposition of            both restitution  and a  fine on Parente  constituted "double            jeopardy"; and that Parente's counsel was ineffective because            he had not  requested that  a competency hearing  be held  to            determine whether  Parente was  mentally ill at  the time  he            committed the crime.                                          -2-            Parente raises new claims  on appeal, we decline  to consider            those  claims.  Our review of the record shows that declining            to consider the  new claims  would not result  in any  "gross            miscarriage of justice" and  that the new claims are  not "so            compelling as virtually to  insure appellant's success."  See                                                                      ___            Hernandez-Hernandez v. United States,  904 F.2d 753, 763 (1st            ___________________    _____________            Cir. 1990) (citing  Johnston v. Holiday  Inns, 595 F.2d  890,                                ________    _____________            894 (1st Cir. 1979)).                        Parente  has  alleged  ineffective   assistance  of            counsel.    Accordingly,  he  must show  that  his  counsel's            representation of  him at sentencing fell  below an objective            standard of  reasonableness.   Strickland v. Washington,  466                                           __________    __________            U.S.  668, 687-88  (1984).    He  must  also  show  that  the            deficient performance  prejudiced him, i.e., that  there is a            "reasonable    probability    that,    but   for    counsel's            unprofessional errors,  the  result of  the proceeding  would            have been different."  Id. at 687, 694.  Parente bears a very                                   ___            heavy burden of proof, and there is a strong presumption that            counsel's  representation  was  reasonable.   Lema  v. United                                                          ____     ______            States, 987 F.2d 48, 51 (1st Cir. 1993).            ______                      I.  Ability to Pay                          ______________                      Parente claims that his attorney should have argued            at  sentencing  that   Parente  could  not  pay   a  fine  or            restitution in the amount ordered by the court.  The district            court  imposed a fine of  $74,410 and restitution of $74,410,                                         -3-            but  ordered that the fine  be remitted dollar  for dollar to            the extent that Parente  actually paid restitution.  Although            the amount of the fine  and restitution would total $148,820,            Parente now appears to  accept the view that, in  reality, he            was  only expected to  pay a single  sum of $74,410.   But he            claims  that his counsel should have argued that he could not            pay   a  fine  or  restitution   in  that  amount  since  the            presentence report (PSR), relying on a financial statement by            Parente,  showed   that  he  had  a  negative  net  worth  of            approximately $23,000;  it also indicated  a negative monthly            cash flow of some $500.  Parente also argues that he received            only  half  of the  armed  robbery  proceeds of  $74,410,  an            argument for which there is no record support.2                        The PSR  gives other information that  bears on the            question of Parente's ability  to pay the $74,410 restitution            award.   On  June 29,  1988, five  days after the  robbery to            which  he pled guilty,  Parente began  depositing money  in a            Rhode Island bank, and  on that day  he also opened a  safety            deposit  box at that bank.  By  February 8, 1989, Parente had            deposited $35,250 into his  accounts at the bank.   He closed                                            ____________________            2.  Parente cites  statements apparently made  in confessions            by him and Paul Aubin,  his co-defendant.  Parente's  counsel            filed a motion to suppress Parente's confession, however, and            we  infer from the record that a  similar motion was filed by            Aubin.  Having uncovered  information tending to  corroborate            defense claims  that the  confessions were coerced  by police            officers, the government chose not to challenge the motion to            suppress,  and neither  Parente nor  the government  has made            either confession part of the record.                                         -4-            them on February 27, 1989, but the PSR does not indicate what            Parente then did with the  money.  On June 29,  1988, Parente            had also  used $13,000  in cash  to buy  a truck.   Parente's            financial statement  listed a  "1977 Jeep AMC  Pick-Up" worth            $700 as  an asset, but the PSR does not say whether that jeep            was the "truck" Parente  bought in 1988 for $13,000  in cash,            or, if it was not, what happened to that truck.  According to            the  PSR, Parente  graduated from  technical high  school and            later   received   an   Associate   in   Science  degree   in            Architectural   Drafting  Technology  from  the  New  England            Institute  of Technology; in addition, Parente's estimate was            that  he had received a net  average wage of $15,000 per year                                    ___            as  a  self-employed  subcontractor,  apparently  during  the            three-year  period from  1988-90, although  that work  became            slower in 1991.                        The sentencing transcript contains  other pertinent            information.    When  the  question  of  restitution   arose,            Parente's counsel  informed the court  that there had  been a            civil action against  Parente for  the $74,410  taken in  the            robbery,  that he and Parente's counsel in the civil case had            advised "that they  submit the judgment in  that regard," and            that he believed that "that's been accomplished in a sense by            a civil judgment.  If  it has not been already done,  it will            be done,  . .  . ."   Counsel's comments  appear intended  to            argue to the court  that, since restitution would essentially                                         -5-            be made through a  civil judgment against Parente,  there was            no need for  the court to require restitution  at sentencing.            The court seems to have understood counsel to have argued for            the  somewhat  different  proposition  that  the  recommended            amount of restitution (or restitution  and fine) should in no            event exceed  $74,410.    The  court expressly  asked  for  a            statement of Parente's assets and was referred to the section            of the  PSR  entitled "Defendant's  Ability  to Pay."    That            section stated  Parente's  negative net  worth  and  negative            monthly  cash   flow.    Presumably   after  reviewing   that            information, the court said that it had been "troubled by the            absence of explanation of what  happened to the money [stolen            from the bank]," and that it believed that restitution should            take priority over  a fine.  The  government recommended that            $74,410 be  assessed as restitution, which  would "spill over            into  a fine" if Parente were unable to pay it, contemplating            apparently  the immediate  payment  of the  entire amount  of            restitution.  In response, the court indicated its preference            for imposing a  fine of $74,410  and restitution of  $74,410,            "but  with the understanding that the priority is to be given            to  the restitution and that the fine will be remitted to the            extent that restitution has actually been paid."  Its  intent            was to "excuse  the fine  to the extent  that restitution  is            actually  paid."  If Parente did not immediately pay the full            restitution,  the  court instructed  him  to pay  restitution                                         -6-            during the 36-month  period of  supervised release  following            his prison  term, according to a schedule set up by the chief            probation officer.   The  court also  waived interest  on the            fine it had imposed.                      In  light of  the facts  recounted above,  we think            that Parente has not met his heavy burden of showing that his            counsel's  failure to  argue ability  to pay  was ineffective            assistance of counsel.  The court itself  raised the question            of  Parente's ability  to pay,  and apparently  consulted the            details in the  PSR about Parente's  assets.  The  prosecutor            also referred to it,  suggesting a fine if Parente  could not            make restitution.  Strictly speaking, therefore, there was no            need for counsel to raise  the issue -- it was  already under            consideration.   Moreover,  the  court  showed concern  about            Parente's  failure to explain what had  happened to the funds            stolen  from  the  bank,  suggesting  its   skepticism  about            Parente's  alleged negative  net  worth, and  manifesting its            belief  that Parente  should restore  the sums he  had taken.            Accordingly, as the government contends, arguing that Parente            could not pay a  fine or restitution might have  backfired by            highlighting  Parente's  failure  to account  for  the  funds            despite his apparent acceptance  of responsibility.  Doing so            might have given the court cause to increase Parente's prison                                                ________            term or the amount of the fine.  Finally, it is unlikely that            an  argument that Parente had  no ability to make restitution                                         -7-            would have been successful.   The court permitted  Parente to            pay restitution  in installments after his  release from jail            during the three-year period of  his supervised release.  The            PSR suggested that,  if Parente returned  to his prior  self-            employment,  he might  be expected  to net  $15,000 per  year            during  that period,  for  a  total  of  $45,000.    It  also            indicated that,  in 1988-89,  Parente had  significant assets            which had not been accounted for, i.e., $35,250 in cash and a            truck  valued at  $13,000.   Those assets, together  with the            sums that Parente reasonably could be  expected to earn after            his release from  prison, would have been sufficient  to make            restitution.3      Consequently,   Parente's  counsel   could            reasonably  have decided  that an  inability to  pay argument            would not succeed.  He apparently made the only good argument            he had -- that  the court should not require  any restitution            since a  civil judgment  already was  pending or had  entered            which effectively required Parente to make such  restitution.            Given  all of  the above  facts, Parente's counsel  cannot be            said to  have rendered ineffective assistance  because he did            not  argue   that   Parente  had   no   ability  to   pay   a            fine/restitution of $74,410.                      II.  Downward Departure                           __________________                      A.  Divorce Traumatic Stress Syndrome                            _________________________________                                            ____________________            3.  Further evidence of Parente's financial resources is that            he  retained his  own defense  counsel rather  than obtaining            court-appointed counsel.                                           -8-                      Parente  claims  that his  counsel  was ineffective            because  he did  not argue  for a  downward departure  on the            ground that  Parente suffered from  "divorce traumatic stress            syndrome."  Parente adverts  only perfunctorily to this claim            in   his   appellate   briefs,   presenting    no   developed            argumentation on  the point.4  Therefore,  he has essentially            waived the claim.  See United States v. Zannino, 895 F.2d  1,                               ___ _____________    _______            17  (1st Cir.), cert. denied, 494 U.S.  1082 (1990).  We note                            ____________            that, in  any event, the Sentencing  Guidelines applicable at            the time  Parente was  sentenced provided that  "[m]ental and            emotional  conditions   are   not  ordinarily   relevant   in            determining  whether  a  sentence   should  be  outside   the            guidelines," see U.S.S.G. Manual   5H1.3 (1990), with certain                         ___            exceptions  that would not have applied to Parente.  See also                                                                 ___ ____            United States v. Russell, 917 F.2d 512, 516 (11th Cir. 1990),            _____________    _______            cert.  denied,  499 U.S.  953  (1991)  (convicted armed  bank            _____________            robber  could not  justify downward  departure on  the ground            that he had a "dependent personality disorder").                       B.  Aberrant Behavior                          _________________                      Parente also says that counsel rendered ineffective            assistance because he did not  argue for a downward departure                                            ____________________            4.  Parente's submissions to the district  court alleged that            he had  a "syndrome" caused  by the marital  conflict between            his  parents and by his lack of relationship with his father;            this syndrome allegedly left him "vulnerable . . . to be[ing]            easily influenced  by others  due to a  lack of  self-esteem,            confidence and economic ability."                                           -9-            on  the  ground that  Parente's commission  of the  crime was            "aberrant  behavior."  On  appeal, Parente's argument appears            to  be  that  Paul  Aubin, his  co-defendant,  whose  special            knowledge  about automated  teller machines permitted  him to            successfully rob  those machines,  induced Parente to  commit            the robbery by communicating that knowledge to him.   Parente            also appears to argue that the armed robbery to which he pled            guilty  was   his  only  crime.     Parente's  arguments  are            meritless.                        First,   at   the  time   Parente   was  sentenced,            Sentencing  Guideline   5K2.12  permitted downward departures            for crimes committed under "coercion and duress," but not the            type  of  inducement or  enticement  alleged  here.   Section            5K2.12 permitted  a court to  depart downward if  a defendant            had  committed  an  offense  "because  of  serious  coercion,            blackmail  or duress," explaining that "[o]rdinarily coercion            will be  sufficiently serious to warrant  departure only when            it involves  a threat of physical  injury, substantial damage            to  property or  similar injury  resulting from  the unlawful            action of  a  third  party  or  from  a  natural  emergency."            Parente does not say that  Aubin threatened him with physical            injury  or  substantial damage  to property,  but essentially            only that Aubin induced him to commit the crime by giving him            the  information that  permitted him  to do  so successfully.            Thus, it  clearly was  not ineffective assistance  of counsel                                         -10-            for Parente's counsel not to argue  for a downward departure.            See  United  States  v.  Russell,  supra,  917  F.2d  at  516            ___  ______________      _______   _____            (downward departure  not authorized under    5K2.12 where the            defendant,  who had  been  convicted of  armed bank  robbery,            introduced no  evidence that  he was physically  coerced into            committing his crime or that he did so under threat of injury            to his person  or property,  which is "all  the guideline  on            coercion or  duress can reasonably be  interpreted to cover")            (citing United States v. Pozzy, 902 F.2d 133, 139 (1st Cir.),                    _____________    _____            cert. denied, 498 U.S. 943 (1990)).              ____________                      Second, the record shows  that the armed robbery to            which  Parente  pled  guilty  was not  an  isolated  criminal            offense, as he suggests.  The PSR shows a 1984 conviction for            receiving  stolen goods.   (Although  Parente challenged  the            validity  of that  conviction below,  he has  not done  so on            appeal.)   In addition, the  PSR states that,  in 1989, after            committing  the robbery  at issue  here, Parente  was charged            with conspiracy  to commit robbery, possession  of a firearm,            and carrying a firearm in connection with an apparent plan to            rob  another   automated  teller  machine.     References  in            Parente's  submissions  below  indicate  that  he  was  later            convicted  of that  charge in state  court.   Thus, Parente's            counsel would have  had no  factual basis for  arguing for  a            downward departure on the ground that Parente's commission of            armed  robbery was  an isolated  offense.   Even  had factual                                         -11-            grounds  for such  an  argument existed,  however, the  court            could  not have  departed downward.    See U.S.S.G.  Manual                                                     ___            4A1.3  ("The  lower  limit of  the  range  for  a Category  I            criminal  history is set for a first offender with the lowest            risk of recidivism.   Therefore, a departure  below the lower            limit of  the  guideline  range  for a  Category  I  criminal            history  on the  basis of  the adequacy  of  criminal history            cannot be appropriate.").  Consequently, counsel's failure to            argue  for a  departure downward  on the ground  of "aberrant            behavior" was not ineffective assistance.                      Affirmed.5                      _________                                            ____________________            5.  The  facts and  legal  arguments  having been  adequately            presented  in the briefs and record, we hereby deny Parente's            request for oral argument.  See Loc. R. 34.1(a).                                        ___                                         -12-
