
USCA1 Opinion

	




          August 25, 1995       [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-2140                                    UNITED STATES,                                      Appellee,                                          v.                        DALE CARLOW, a/k/a WILLIAM R. HARMON,                                  a/k/a BILL HARMON,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                                Stahl, Circuit Judge,                                       _____________                           and Dom nguez,* District Judge.                                           ______________                                _____________________               Paul  A.   Dinsmore,  by  Appointment  of   the  Court,  for               ___________________          appellant.               Margaret D.  McGaughey,  Assistant United  States  Attorney,               ______________________          with  whom Jay P. McCloskey, United States Attorney, and James L.                     ________________                              ________          McCarthy,  Assistant United  States Attorney,  were on  brief for          ________          appellee.                                 ____________________                                        ____________________          *  Of the District of Puerto Rico, sitting by designation.                                 ____________________                                         -3-                    Per   Curiam.    Defendant-appellant  Dale  Carlow  was                    Per   Curiam                    ____________          convicted after  a jury found him guilty of 54 counts of mail and          wire  fraud.  Carlow now  appeals  his  conviction and  sentence.          Because we discern no error, we affirm.                    For three months in 1990, Carlow used  the name William          Harmon in  29 wire transmissions  to buy computer  equipment from          suppliers  all  over  the United  States  for  a retail  computer          company in  Maine.  Carlow ordered  increasingly large quantities          of  equipment and  paid by  company checks  that bounced.   After          Carlow  was arrested on November  30, 1990, he  opened a computer          company called Electrobyte.  Through this company, Carlow engaged          in a  similar pattern of  fraudulent mail and  wire transactions.          Carlow was arrested once again in September 1991.                    At  his trial, Carlow's  theory of defense  was that he          lacked  the requisite intent to  defraud, and his  main source of          evidence  in  support of  this  argument was  his  own testimony.          Closing arguments focused,  not surprisingly, on the  credibility          of Carlow's testimony.  After  deliberating for over three hours,          the  jury found  Carlow  guilty on  all 54  counts.   Carlow  was          sentenced on October 19, 1994 to 51 months' imprisonment, and was          ordered to pay restitution in the amount of $111,649.65.                    Carlow now  offers several  arguments to  challenge his          conviction and  sentence, contending: 1) that  the district court          improperly   calculated  his   sentence   under  the   Sentencing          Guidelines; 2) that the court erred in ordering restitution in an          amount greater than $50,000;  3) that the court erred  in finding                                         -2-          that Carlow's  conduct involved  more than minimal  planning, and          for failing to  decrease his  sentence based on  his role in  the          offense; that the court  erred in instructing the jury  at trial;          5)  that the evidence adduced at trial is insufficient to sustain          his  conviction;   and  6)  that   Carlow  received   ineffective          assistance of counsel at trial.                    Having  carefully  reviewed  the entire  record  of the          trial  and sentencing, we find  no discernible error  or abuse of          discretion  by  the  district  court.1   Accordingly,  we  reject          Carlow's contentions on appeal, and affirm.                                              ______                                        ____________________          1   Because we  ordinarily refrain from  entertaining ineffective          assistance of counsel claims  on direct review, United  States v.                                                          ______________          Mala, 7  F.3d 1058, 1063 (1st Cir. 1993), and we see no reason to          ____          depart  from  this   rule  here,  we  do  not   address  Carlow's          ineffective assistance argument here.                                         -3-
