
USCA1 Opinion

	




                                [Not for Publication]                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 97-1905                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   ANDREW P. LEPPO,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                      [Hon. Patti B. Saris, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                                Selya, Circuit Judge,                                       _____________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Robert M.  Goldstein with  whom Leppo  & Leppo  was  on brief  for            ____________________            ______________        appellant.            Jeanne M. Kempthorne, Assistant United  States Attorney, with whom            ____________________        Donald K. Stern, United States Attorney, was on brief for appellee.        _______________                                 ____________________                                                                         February 10, 1998                                 ____________________                      Per  Curiam.  Andrew  Leppo pled guilty  to charges                      Per  Curiam.                      ____________            that  he   masterminded  several  schemes   and  conspiracies            involving  various  forms  of  bank  fraud  and  the  sale of            counterfeit  computer equipment,  in  violation of  18 U.S.C.               371  & 2320.   The  district court  sentenced Leppo  to 37            months in prison and ordered him to pay some  $2.6 million in            restitution to fifteen  different victims.  On  appeal, Leppo            challenges both his sentence  and the restitution order.   We            affirm.                      1.  Downward Departure                      ______________________                      Leppo requested a downward departure under U.S.S.G.              5K2.13,  based on psychiatric testimony that a pathological            gambling compulsion had motivated his crimes.  He argues that            the district court  refused to depart under    5K2.13 because            it erroneously believed that it  lacked authority to do so on            the basis of Leppo s gambling disorder.   Contrary to Leppo s            characterization, however, the court explicitly stated at the            sentencing hearing that it  did have the discretion  to grant                                        ___            Leppo s requested departure,  but that it found  the exercise            of such discretion to be inappropriate in this case.   We are            without  jurisdiction  to  review  the court s  discretionary            refusal to depart.  See United States v. Rizzo, 121 F.3d 794,                                ___ _____________    _____            798 (1st Cir. 1997).                      Second, Leppo argued below that this  case featured            "unusual" mitigating circumstances that placed it outside the                                         -2-                                          2            "heartland" of the applicable guidelines (U.S.S.G.    2B5.3 &            2F1.1), in that the aggregate retail value of his counterfeit            goods -- which was the  predicate for a 14-step offense level            enhancement   --  had  plummeted  between  the  time  of  the            infringing sales and the time of sentencing.   Leppo contends            that  the district  court  misconstrued  his  argument  as  a            request  for  downward   departure  under  U.S.S.G.    2F1.1,            application note 10.                      We  see  no  indication that  the  court  failed to            comprehend Leppo s position.  It is evident that the district            court, observing that Leppo actually profited from the higher                                                 ________            retail prices prevailing at the time of his offenses,  simply            declined  to attach any  relevance to the  post-offense price            fluctuations  at issue.  The court  therefore had no occasion            to  consider   whether  those   fluctuations  constituted   a            "mitigating circumstance"  warranting an  unguided departure;            obviously,  an irrelevant  circumstance  cannot mitigate  the                           __________                       ________            seriousness  of  an  offense.   The  court s  construction of            Leppo s argument as a request for departure under application            note  10  to    2F1.1  strikes  us  as  a  rather  charitable            reformulation of Leppo s position,  not a misunderstanding of            it.  Because  the court s denial of  Leppo s second departure            request was not  based on any legal or  factual mistake, that            decision similarly is not subject  to our review.  See Rizzo,                                                               ___ _____            121 F.3d at 798.                                         -3-                                          3                      2.  Restitution                      _______________                      Leppo raises  two  challenges  to  the  restitution            order, both for the first time on appeal.  He argues (1) that            the district court failed to evaluate his ability to pay, and            (2)  that the order  overcompensated one of  Leppo s victims,            IBM.  We agree with  the government that Leppo clearly waived                                                                   ______            his  first argument,  and  probably  waived  the  second,  by            specifically stating at  the disposition hearing that  he was            content to "leave any restitution order  to the discretion of            the court."                      Even if Leppo s second argument was not waived, our            review would be limited to plain error.  See United States v.                                                     ___ _____________            Mitchell, 85 F.3d  800, 807 (1st Cir. 1996).   Leppo suggests            ________            that there is a "substantial risk" that the restitution order            overcompensates IBM because IBM may have recouped some of its            losses, but he fails even to hint at a reasonable estimate of            the amount that IBM actually might have recouped; nor does he            describe  any  plausible,  practical  method  by  which   the            district court  could have  calculated that amount.   In  any            event, the district court was  not required to fix the amount            of its restitution order with absolute precision.  See United                                                               ___ ______            States v. Vaknin, 112  F.3d 579, 587 (1st Cir. 1997).   Here,            ______    ______            the  record clearly  reflects  that  the  court  undertook  a            detailed review of  the evidence in calculating the amount of            loss  suffered by IBM.   Leppo s unsupported  assertions fall                                         -4-                                          4            far short of  demonstrating any substantial error,  much less            plain error, in the district court s restitution order.                      Affirmed.                      Affirmed.                      ________                                         -5-                                          5
