
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 93-1892                              UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                                   GUY J. SCARPACI,                                Defendant, Appellant.                                                                                      ____________________        No. 93-2222                              UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                                 ROBERT M. GAWLOWICZ,                                Defendant, Appellant.                                                                                      ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Joseph L. Tauro, U.S. District Judge]                                            ___________________                                                                                      ____________________                            Cyr and Stahl, Circuit Judges,                                           ______________                           and Zobel,* U.S. District Judge.                                       ___________________                                                                                      ____________________                                    ____________________             *Of the District of Massachusetts, sitting by designation.             Robert E. Kenney for appellant Scarpaci.             ________________             Willie J. Davis for appellant Gawlowicz.             _______________             Peter  A. Mullin,  Assistant  United States  Attorney, with  whom             ________________        Donald  K.  Stern, United  States  Attorney,  and Dennis  C.  Mahoney,        _________________                                 ___________________        Special Assistant United States Attorney, were on brief for appellee.                                                                                      ____________________                                   August 17, 1994                                                                                      ____________________                                          2                    Per Curiam.   Appellants  Guy Scarpaci and  Robert Gaw-                    Per Curiam                    __________          lowicz challenge  the sentences  imposed following  their convic-          tions  on fraud  charges.   Scarpaci  contends that  the district          court improperly  enhanced his  sentence for obstruction  of jus-          tice.  Gawlowicz claims that  the court mistakenly believed  that          it  lacked authority  to  depart below  the Guideline  Sentencing          Range  (GSR).  Finding no  merit in their  contentions, we affirm          the district court judgments.                    Scarpaci  and  Gawlowicz  were associated  with  United          States Funding  (USF), a  mortgage  broker which  was engaged  in          finding  and  providing  mortgage  financing  for   USF  clients.          Scarpaci  founded USF and served as its president and sole stock-          holder throughout its  existence.  Gawlowicz was employed by USF.          USF  engaged in various  types of fraud:   falsifying information          pertaining to  the financial condition of borrowers and the value          of their collateral; paying  kickbacks to an officer of  a finan-          cial institution which purchased  loans from USF; preparing false          financial statements  relating to USF itself;  and kiting checks.          Scarpaci was involved in all aspects of USF's fraudulent  activi-          ties.  Gawlowicz helped prepare numerous false appraisals for use          by USF.                      On  appeal,  Scarpaci challenges  the  two-point upward          adjustment  imposed for  obstructing justice.   See  U.S.S.G.   -                                                          ___          3C1.1.1    Although  Scarpaci  concedes  that  USF  records  were                                        ____________________               1Scarpaci  has withdrawn  a  claim that  the district  court          erred in combining upward adjustments under U.S.S.G.    2F1.1(b)-          (2) (more than minimal planning) and U.S.S.G.   3B1.1(a) (manage-                                          3          destroyed, he argues that  there was no proper basis  for finding          that he  caused their  destruction with  intent to  obstruct jus-          tice.2  We  review the  sentencing court's findings  of fact  for          clear error.   United States v.  Figaro, 935 F.2d 4,  8 (1st Cir.                         _____________     ______          1991).                      The  presentence  report  (PSR)  states  that  Scarpaci          instructed Stephen Wilson  to destroy USF  documents in order  to          impede the  criminal investigation.  Scarpaci  did not contradict          this proposed PSR finding,  but merely responded that he  had "no          present recollection" of such an instruction.  Thus, the district          court finding that Scarpaci obstructed justice was supportable on          uncontroverted information related in the PSR.  See United States                                                          ___ _____________          v.  Blanco, 888  F.2d 907,  908-09 (1st  Cir.  1989) (defendant's              ______          failure to dispute truth of  statement provided proper basis  for          finding).                    Gawlowicz  attempts to  challenge the  district court's          decision not to depart below the GSR.  Unless  the district court          misapprehended its  authority to make such  a departure, however,                                        ____________________          rial  role in offense).  See United  States v. Lilly, 13 F.3d 15,                                   ___ ______________    _____          17-18  (1st Cir.  1994) (holding  these adjustments  not mutually          exclusive).               2Scarpaci  further  argues that  there  could  have been  no          obstruction of  justice because the information  in the destroyed          USF records was readily obtainable by the government, and that he          did  not give  instructions  to destroy  the  documents with  the          intent of obstructing any investigation.  Aside from the problem-          atic assumptions  upon which these claims  are premised, Scarpaci          neglected to surface either contention before the district court.          As neither  argument was  raised below, both  are deemed  waived.          United States v. Dietz, 950 F.2d 50, 55 (1st Cir. 1991).          _____________    _____                                          4          we have no jurisdiction to review its departure decision.  United                                                                     ______          States v. Romolo, 937 F.2d 20, 22 (1st Cir. 1991).          ______    ______                    Gawlowicz cited three alleged grounds for the departure          request:  his minimal role in the offense, the need to "equalize"          sentences among codefendants, and  economic duress.  Although the          court approved  a  four-point  downward  adjustment  pursuant  to          U.S.S.G.   3B1.2, due to Gawlowicz' minimal  role in the offense,          it declined to depart below the  GSR.  Gawlowicz insists that the          court's comments  at sentencing evince a  misunderstanding of its          authority,  under United States v. Rivera, 994 F.2d 942 (1st Cir.                            _____________    ______          1993), to depart downward:                    THE COURT:  Let  me say this:  I  don't think                    _________                    as  a matter of law that I can [depart] here.                    If I  am wrong  and you  want to appeal  that                    point, maybe I  will get  some guidance  from                    you on appeal.  I think as a  matter of law I                    may not do what you suggest.          The sentencing  hearing transcript  as a whole  reveals, however,          that  the court  fully  appreciated the  bounds of  its departure          authority  but concluded that departure  was not warranted in the          circumstances of  this  case.3   The  court was  conversant  with                                        ____________________               3In rejecting the departure request, the court stated:                    I  don't  think this  is  that  kind of  cir-                                              ____  ____ __  ____                    cumstance.  There are cases that go the other                    _________                    way  that are quite specific  . . .   But, on                    the  other hand,  there  is always  a ray  of                    light.  I don't see that in this case . . . I                            _ _____ ___ ____ __ ____ ____                    have Riviera [sic] . . .  I thought it was an                         _______                    excellent  opinion, and  it provides  us with                    more  guidance than  we have  had up  to this                    point, and  if more  is coming, that  is very                    well.          (Emphasis added.)                                          5          Rivera  and related case law, as well  as the Guidelines.  Two of          ______          the grounds upon  which Gawlowicz based his  departure request             equalization of  sentences and  economic duress     are forbidden                                                                  _________          grounds  for departure.   See  United States  v. Wogan,  938 F.2d                                    ___  _____________     _____          1446, 1448 (1st Cir.) ("a  perceived need to equalize  sentencing          [among defendants] .  . .  will not permit  a departure"),  cert.                                                                      _____          denied, 112  S. Ct. 441 (1991); Rivera, 994 F.2d at 949 (personal          ______                          ______          financial difficulties do not permit departure).  Thus, the court          correctly perceived  that a downward departure  was not permitted          in  these circumstances.  See  United States v.  LeBlanc, 24 F.3d                                    ___  _____________     _______          340, 348  (1st Cir. 1994).4   Consequently, we  lack jurisdiction          to  entertain a challenge to the  district court decision denying          the request for a downward departure.                    Affirmed.                    Affirmed.                    ________                                        ____________________               4We  think it clear also  that a downward  departure was not          warranted based  solely on Gawlowicz's  minimal role  in the  of-          fense, as  the  court reflected  this  factor in  its  four-point          downward adjustment under U.S.S.G.   3B1.2.                                          6
