
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 93-1642                                    UNITED STATES,                                      Appellee,                                          v.                                  JEFFREY SPRINGER,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Ernest C. Torres, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Breyer,* Chief Judge,                                          ___________                          Boudin and Stahl, Circuit Judges.                                            ______________                                 ____________________            Michael  C. Bourbeau,  by  Appointment  of the  Court,  with  whom            ____________________        Bourbeau and Bourbeau was on brief for appellant.        _____________________            Margaret E.  Curran, Assistant United  States Attorney,  with whom            ___________________        Edwin J.  Gale,  United States  Attorney,  and Ira  Belkin,  Assistant        ______________                                 ___________        United States Attorney, were on brief for appellee.                                 ____________________                                     July 7, 1994                                 ____________________        _____________________        *Chief Judge Stephen Breyer heard oral argument in this matter but did        not  participate  in the  drafting  or  the  issuance of  the  panel's        opinion.   The remaining  two panelists therefore  issue this  opinion        pursuant to 28 U.S.C.   46(d).                      STAHL, Circuit Judge.  Jeffrey Springer appeals the                             _____________            sentence imposed  after he  pled guilty,  pursuant to  a plea            agreement, to one count of wire fraud, 18  U.S.C.   1343, and            one  count of bank fraud,  18 U.S.C.    1344.  Springer makes            three arguments, none of which was presented to  the district            court  in the  first instance:   1)  that the  district court            erred in granting him only  a two-level, rather than a three-            level,  acceptance   of  responsibility   reduction  in   his            sentencing  guidelines offense level;  2) that the  court did            not  adequately consider his  financial circumstances when it            ordered him to pay $1,018,347  in restitution; and 3) that he            received  ineffective  assistance  of   counsel  because  his            attorney failed  to object to  either the court's  failure to            award  him   a  three-level   reduction  for   acceptance  of            responsibility or to  the restitution order.   The government            says  that we  need  not  consider  these  questions  because            Springer  waived his  right to  appeal  as part  of his  plea            agreement.  Because we discern no plain error in the relevant            decisions  made by the  district court, see  United States v.                                                    ___  _____________            Cabrozza, 4 F.3d 70, 84 (1st Cir. 1993), cert. denied, 114 S.            ________                                 _____ ______            Ct. 1644 (1994),  we need not address this  issue, and affirm            defendant's sentence.                                          I.                                          I.                                          __                             Acceptance of Responsibility                             Acceptance of Responsibility                             ____________________________                                         -2-                                          2                      Springer  was sentenced in  May 1993.   Pursuant to            the November 1992  version of the Guidelines  (the version in            effect  at the  time of his  sentencing), the  district court            looked to the 1988 version  of the Guidelines (the version in            effect at the time Springer committed his crime) to calculate            Springer's sentence.   It did this because application of the            1992 version would have resulted in Springer receiving a more            severe sentence than he could have anticipated at the time of            his crime, see U.S.S.G.   1B1.11(b)(1) (Nov. 1992) (directing                       ___            courts  to  use Guidelines  in  effect  at  time offense  was            committed if Guidelines in effect at time of sentencing would            violate the Constitution's ex post facto Clause).  As part of                                       __ ____ _____            the  calculation of  Springer's sentence,  the  court granted            Springer the two-level downward  adjustment for acceptance of            responsibility  available  under  the  1988  version  of  the            Guidelines.  See U.S.S.G.    3E1.1 (Nov. 1988).  Springer now                         ___            argues  that the  district  court erred  because  it did  not            consider granting him a three-level reduction for  acceptance            of responsibility, the maximum adjustment available under the            1992  version of  the  Guidelines.   U.S.S.G.    3E1.1  (Nov.            1992).                      The  district court  correctly looked  to the  1988            Guidelines in  determining the  maximum permissible  downward            adjustment for Springer's acceptance of responsibility.   The            1992 Guidelines  set forth what  has been referred to  as the                                         -3-                                          3            "one  book" rule.   See U.S.S.G.    1B1.11(b)(2) (Nov. 1992).                                ___            This  provision instructs  the district  court  that when  it            looks to an earlier version  of the Guidelines to calculate a            sentence, it must apply all of the Guidelines in that earlier                                    ___            version.  It  provides that a court  cannot "apply . .  . one            section from one edition .  . . and another guideline section            from a different edition."  Id.                                        ___                      There  is no doubt that Springer received a lighter            sentence  under  the  1988  Guidelines  than  he  would  have            received  under the 1992  version.  For  Springer's purposes,            there  was one important difference between the two versions:            under the  1988  Guidelines,  Springer's  offense  level  was            increased by nine levels to account for the $1.8 million loss            he caused,  while under the  1992 Guidelines, that  same loss            would  have resulted  in a  twelve-level  increase.   Compare                                                                  _______            U.S.S.G.     2F1.1(b)(1)(J)  (Nov.  1988)   with  U.S.S.G.                                                           ____            2F1.1(b)(1)(M) (Nov. 1992).  This difference meant that, even            with   a    three-level   reduction    for   acceptance    of            responsibility,  Springer's  applicable  guideline sentencing            range  under the  1992 Guidelines  would have  been 24  to 30            months.  Under  the 1988 Guidelines,  however, with the  two-            level reduction for  acceptance of responsibility, Springer's            sentencing range was 18 to 24 months.1                                            ____________________            1.  Springer was  sentenced to 18  months in prison,  the low            end of the Guideline.                                         -4-                                          4                      Springer  advances  three  reasons  why  the  court            should  not have  applied the  "one book"  rule, but  instead            should  have   given  him  the  benefit  of   both  the  1992            Guidelines'  acceptance of  responsibility provision  and the            1988 Guidelines' smaller increase for amount of loss.  First,            he says  that the "one  book" guideline was not  in effect at            the time of  his offense and that its  application here would            violate the ex post facto Clause.   U.S. Const. Art. I,    9.                        __ ____ _____            This is simply incorrect.   The ex post facto Clause "forbids                                            __ ____ _____            the  imposition of punishment more severe than the punishment            assigned  by  law when  the  act  to be  punished  occurred."            Weaver v. Graham, 450 U.S. 24, 28  (1981).  By looking to the            ______    ______            1988  Guidelines,  the  district   court  imposed  the   very            punishment provided for by law at the time Springer committed            the act for which he was being punished.                      Springer's second argument is no more availing.  He            argues that, by statute, he is entitled to the benefit of the            pre-sentence modifications  of the Guidelines.   He construes            18 U.S.C.   3553(a)(4), which directs the sentencing court to            "consider  . . . the  Guidelines . . .  that are in effect on            the   date  the   defendant  is   sentenced,"  as   requiring            application of the  November 1992 version of  the "acceptance            of    responsibility"   provision.       However,    Springer            misunderstands the  process  by which  the  sentencing  court            calculated his sentence.  The sentencing court  did apply the                                                            ___                                         -5-                                          5            November  1992 Guidelines.   It was the  1992 Guidelines that            instructed the court  to look to the  1988 Guidelines because            of ex  post facto  concerns, and it  was the  1992 Guidelines               __  ____ _____            that instructed the court to apply the "one book" rule and to            look  to  the  1988  Guidelines  in  order  to determine  the            appropriate  reduction  for   acceptance  of  responsibility.            Thus,  the  sentencing  court  acted  in  accordance  with               3553(a)(4).   See  also 18  U.S.C.    3553(a)(5)  (Sentencing                          ___  ____            court should "consider . . . any pertinent policy statement .            . . that is in effect on the date defendant is sentenced.").                      Springer's third argument is that if the "one book"            rule applies, he will be treated differently than other  1988            offenders  sentenced   after  the   1992  amendment  to   the            acceptance  of   responsibility  provision  (or,   at  least,            differently  than  those  for whom  application  of  the 1992            guidelines  does not create  ex post  facto concerns).   This            argument is  a red  herring.  What  matters is  that Springer            will be treated the same  as all those convicted of  the same                            ___ ____     ___            offense at  the  same  time,  regardless  of  when  they  are            sentenced.  This is consistent  with the concerns of Congress            and  the Guidelines'  goal of  uniformity.   Cf. 18  U.S.C.                                                           ___            3553(a)(6) (Sentencing court should "consider  . . . the need            to avoid unwarranted sentence disparities  among defendants .            . . who have been found guilty of similar conduct.").                                         -6-                                          6                      Accordingly, we do not discern any error, let alone            any plain  error, in  the district  court's failure  to award            Springer   a   three-level   reduction   for  acceptance   of            responsibility.                                         -7-                                          7                                         II.                                         II.                                         ___                                  Restitution Order                                  Restitution Order                                  _________________                      As   a   condition  of   supervised   release,  the            sentencing  court  ordered  Springer  to  pay  restitution of            $1,018,347  to the  bank  from which  Springer had  secured a            construction loan  in the  amount of  $1,460,000 (using as  a            basis  for  his  credit worthiness  fraudulent  personal  tax            returns).   Springer argues that the sentencing court did not            sufficiently consider  his ability  to pay  restitution.   We            disagree.                      In  fashioning a  restitution  order, a  court must            consider "the  financial  resources  of  the  defendant,  the            financial needs  and earning  ability of  the defendant,  and            such  other factors  as  the court  deems  appropriate."   18            U.S.C.   3664(a).  The  court need not make specific findings            respecting these  considerations as  long as  "the record  on            appeal  reveals  that  the judge  made  implicit  findings or            otherwise  adequately  evinced  his  consideration  of  the[]            factors [listed in  18 U.S.C.   3664(a)]."   United States v.                                                         _____________            Savoie, 985 F.2d 612, 618 (1st Cir. 1993).            ______                      Here,  it   appears  that   the  sentencing   court            sufficiently considered these factors.  Springer says that he            was a  college  dropout  with  a sporadic  work  history,  no            assets,  and  more  than $900,000  in  liabilities,  and thus            clearly  unable  to  pay  over  $1  million  in  restitution.                                         -8-                                          8            However, the  sentencing court  had all  of this  information            before it in  the pre-sentence investigation report  ("PSR").            Moreover,  it explicitly  adopted the  PSR's  findings.   Cf.                                                                      ___            Savoie,  985 F.2d  at 619.   Furthermore,  at the  sentencing            ______            hearing,  the  court  made  the  following  comments  on  the            restitution order:                           You   have    a   very    large                           restitution obligation and  the                           Court -- you  don't really have                           much assets now.  The Court has                           no doubt that at some point you                           probably will.            This statement by the court does not reflect "the possibility            of an unforeseen  windfall," as Springer suggests.   Instead,            we construe it  as evincing a firm belief, on the part of the            district court, that Springer eventually will be able to meet            his obligation.    This is  consistent  with the  many  other            statements made by the court  to the effect that Springer was            a  talented  individual   who  could  be  successful   if  he            redirected his energies to lawful  activities.  In fact, this            sanguine view  of Springer's  future was  the primary  reason            given by the court for sentencing Springer at  the low end of            the Guideline range.                      It  appears  that  the  sentencing  court  had  the            relevant information before it and considered the appropriate            factors  in  making  its  restitution  order.    No  more  is            required.   Cf. United  States v. Brandon,  17 F.3d  409, 461                        ___ ______________    _______            (1st Cir.)  ($500,000 restitution  order upheld  for indigent                                         -9-                                          9            defendant  who had prospect of future inheritance and ability            to  obtain  gainful employment),  petition  for  cert. filed,                                              ________  ___  _____ _____            ___U.S.L.W.___ (June 13, 1994) (No. 93-2001).2                      Accordingly, we find no plain error in the district            court's restitution order.                                         III.                                         III.                                         ____                          Ineffective Assistance of Counsel                          Ineffective Assistance of Counsel                          _________________________________                      Springer  argues   that  he   received  ineffective            assistance of counsel because his attorney  did not raise the            issue  of the  court's failure  to  consider the  three-level            reduction for  acceptance of responsibility  and because  his            attorney did  not protest the size of  the restitution order.            Because Springer was not entitled to a three-level reduction,            his  attorney cannot  be  blamed for  not raising  the issue.            Insofar as the failure to object to the restitution order may            give  rise to an  ineffective assistance  claim, we  will, in            accordance with  our usual practice, not entertain it for the            first time  on direct appeal.  This is because the claim here            would require  us  to go  beyond  the sentencing  record  and            consider such things  as sentencing counsel's strategy.   See                                                                      ___            United States v. Beasley, 12 F.3d 280, 285 (1st Cir. 1993).            _____________    _______                                            ____________________            2.  If the  court's restitution  order,  the satisfaction  of            which is a  condition of Springer's supervised  release, does            turn out to be unreasonably onerous, we see no reason why the            district  court cannot,  in the  future, modify  it.   See 18                                                                   ___            U.S.C.   3663(g).                                         -10-                                          10                                         IV.                                         IV.                                         ___                                      Conclusion                                      Conclusion                                      __________                      For the reasons stated above, we  affirm Springer's            sentence.                      Affirmed.                      _________                                         -11-                                          11
