
USCA1 Opinion

	




          March 28, 1994        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-1494                                                UNITED STATES,                                      Appellee,                                          v.                              ELLERTON P. WHITNEY, III,                                Defendant, Appellant.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                       [Hon. Shane Devine, U.S. District Judge]                                           ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                        Torruella and Boudin, Circuit Judges.                                              ______________                                 ___________________               Ellerton P. Whitney, III on brief pro se.               ________________________               Peter S. Papps,  United States Attorney, and  Nancy E. Hart,               ______________                                _____________          Assistant United States Attorney, on brief pro se.                                  __________________                                  __________________                 Per  Curiam.   In 1991,  defendant Ellerton  Whitney was                 ___________            convicted on four  counts of defrauding a bank,  in violation            of  18 U.S.C.   1344,  and on seventeen  additional counts of            making   false  statements  on  bank  loan  applications,  in            violation of  18 U.S.C.   1014.  He received a prison term of            thirty-six months.   On  appeal, we affirmed  his convictions            but remanded  for resentencing because of  an acknowledged ex                                                                       __            post  facto violation  in the  application of  the sentencing            ___________            guidelines.  United States v. Whitney, 991 F.2d 786 (1st Cir.                         _____________    _______            1993)  (per  curiam)  (table).    Defendant  was   thereafter            resentenced  to a  prison term  of  twenty-seven months.   He            again  appeals (this time on a pro se basis),1 advancing some            fourteen challenges  to his  new sentence and  his underlying            convictions.  With one  minor exception, we find each  of his            arguments unpersuasive.                    I.  Issues Barred on "Law of the Case" Grounds                        __________________________________________                 The  first six  issues  proffered by  defendant  involve            substantive challenges  to his convictions.   These reduce to            three  separate allegations:  (1) that  his absence  from the            "charge conference"  requires a new trial;  (2) that numerous            counts in  the indictment  were multiplicitous; and  (3) that                                            ____________________            1.  At  trial, defendant  chose to  conduct his  own defense,            with  counsel appearing on a  standby basis.   He handed over            the reins to his counsel for purposes of the first sentencing            proceeding and  the first  appeal.  Similarly,  defendant was            represented  by   counsel  at  the   resentencing  proceeding            (although he was there afforded wide latitude to argue on his            own behalf).  He has now again opted for pro se status.                                          -2-            the evidence at trial  revealed allegedly fraudulent loans at            variance with those charged in the indictment.  We decline to            consider  each of these allegations under the law of the case            doctrine.                   In  the earlier  appeal, the  multiplicity  and variance            issues were specifically raised  and specifically rejected by            this  court.   As we  explained in  United States  v. Rivera-                                                _____________     _______            Martinez,  931 F.2d 148, 150 (1st Cir.), cert. denied, 112 S.            ________                                 ____________            Ct. 184 (1991),  "a decision  of an appellate  tribunal on  a            particular issue,  unless vacated  or set aside,  governs the            issue during all  subsequent stages of the litigation  in the            nisi  prius court,  and  thereafter on  any further  appeal."            Defendant has pointed to  no "exceptional circumstances," id.                                                                      ___            at 151, that would  warrant disregarding this rule here.   In            turn, the  "charge conference" issue, although  not raised in            the earlier appeal, is subject to the same disposition.                  [A]  legal decision made at one stage of a civil or                 criminal  case, unchallenged in a subsequent appeal                 despite  the existence  of ample opportunity  to do                 so, becomes the  law of the case  for future stages                 of the same litigation,  and the aggrieved party is                 deemed to  have  forfeited any  right to  challenge                 that particular decision at a subsequent date.            United States v.  Bell, 988  F.2d 247, 250  (1st Cir.  1993);            _____________     ____            accord, e.g., United States v. Connell, 6 F.3d 27, 30-31 (1st            ______  ____  _____________    _______            Cir. 1993). Again, no exceptionalcircumstances are apparent.2                                            ____________________            2.  Defendant's  standby counsel  did attend  the conference.            The  court noted for the record that defendant "was expressly            invited to participate  in that conference but elected not to                                         -3-                 The district court properly confined  the proceedings on            remand  to the  scope of  our  mandate.   Defendant's present            attempt to "take serial bites at the appellate apple," id. at                                                                   ___            30, must necessarily fail.3                               II.  Calculation of Loss                                    ___________________                 By  aggregating  the total  amount  of  funds loaned  to            defendant, the  presentence report calculated that  the three            banks in question sustained losses  in excess of $2  million.            Defendant's  attorney  disputed  this  finding  below on  the            ground  that  it  failed  to  account for  some  $500,000  in            collateral  which had  been  recovered.   The district  court            sustained this  objection and  determined that the  losses in            question, for  purposes of  U.S.S.G.   2F1.1(b),  exceeded $1            million but were less than $2 million.4                                              ____________________            do  so."   And  defendant voiced  no  objection below  to his            absence.              3.  Defendant's attempt  to revive his multiplicity  claim in            the   guise  of   a  sentencing  issue--by   challenging  the            imposition of $1050 in special  assessments--is inventive but            unavailing.  The only sentencing calculation involved therein            was  the multiplication  of $50  by the  number of  counts on            which he was convicted (21).              4.  This yielded a 9-level addition to the base offense level            of  6.   After  adding  two  levels  for  more  than  minimal            planning, see    2F1.1(b)(2), and declining to add two levels                      ___            for obstruction of  justice, the court arrived  at an offense            level  of 17.    With  a  criminal  history  category  of  I,            defendant  was therefore subject to a  sentencing range of 24            to 30 months.  The court selected a prison term in the middle            of this range.                                           -4-                 Defendant  advances  two  challenges  to  this  finding.            First, in  a reprise  of his variance  argument, he  contends            that  the  three loans  charged  in  the indictment  actually            consisted  of   some  seven  or  more,  and   that  the  jury            permissibly  could  have  convicted  him on  only  a  portion            thereof (totalling less than $1,000,000).  This argument need            not  be pursued  at  any length.    To the  extent  defendant            alleges  improper  variance   or  seeks   to  challenge   the            evidentiary sufficiency  of  his convictions,  we decline  to            address such contentions  for the  reasons just  cited.   The            guidelines state  that, for  purposes of    2F1.1(b)(1), "the            loss  need not  be determined  with precision."   U.S.S.G.               2F1.1,   comment.   (n.8).     Especially   considering  that            additional losses  resulted from  uncharged conduct  that was            part  of a  common  scheme  or  plan,  and  so  was  properly            admissible in  this context,  see U.S.S.G.    1B1.3(a)(2), we                                          ___            find no error in the court's determination.                  Second, defendant  contends that  he should not  be held            accountable  for  the  full  extent  of  the  banks'  losses,            inasmuch as other factors--such as dereliction on the part of            banking personnel--contributed  thereto.  Yet the  loss table            in   2F1.1 "presumes that the defendant alone is  responsible            for  the  entire  amount  of victim  loss  specified  in  the            particular  loss range  selected  by the  sentencing  court."            United States v. Gregorio, 956 F.2d 341, 347 (1st Cir. 1992).            _____________    ________                                         -5-            To  the extent that such  amount is thought  to overstate the            seriousness of a defendant's offense for reasons of "multiple            causation," the  appropriate remedy is  for the court  in its            discretion to effect a downward departure.  See, e.g., United                                                        ___  ____  ______            States v. Brandon, ___ F.3d ___, No. 92-1447, slip op. at 111            ______    _______            n.83  (1st   Cir.  1994)  ("The  Guidelines   treat  multiple            causation only as a possible ground for downward departure --            a  matter  within  the  sound discretion  of  the  sentencing            court."); United States v. Johnson, ___ F.3d ___, ___ n.7 (3d                      _____________    _______            Cir. 1994); United  States v. Shattuck,  961 F.2d 1012,  1017                        ______________    ________            (1st Cir. 1992); Gregorio, 956 F.2d at 347; U.S.S.G.   2F1.1,                             ________            comment. (n.11) (1988); id., comment. (n.7(b)) (1992).                                    ___                 The  court  here declined  to  depart  downward on  this            basis.   It is apparent (and defendant does not dispute) that            the court so decided  as a matter of discretion,  rather than            out of any mistaken perception that it lacked the power to do            so.  Its decision in this regard is therefore not appealable.            See,  e.g., United States v. McAndrews, 12 F.3d 273, 276 (1st            ___   ____  _____________    _________            Cir. 1993); United  States v. Soltero-Lopez,  11 F.3d 18,  20                        ______________    _____________            (1st Cir. 1993).                   III.  Other Issues Concerning Refusal to Depart                         _________________________________________                 In a series of arguments imbued with a distinct "kitchen            sink"  quality,  defendant argues  that  the  court erred  in            failing to depart downward on account of his  age, education,            vocational  skills,  employment, family  and  community ties,                                         -6-            rehabilitation and poverty.   No extended discussion of these            points  is necessary.  Under  U.S.S.G.   5H1,  the first five            factors are "not ordinarily relevant" in determining  whether            a downward departure is warranted.  See, e.g., United  States                                                ___  ____  ______________            v.  Rivera, 994  F.2d 942,  948 (1st  Cir. 1993)  (discussing                ______            "discouraged  departures").    Defendant  suggests  that  the            district court thought itself precluded from even considering            a  departure on these grounds.  To  the contrary, it is clear            that the  court simply concluded  that such factors  were not            "present in a manner that is unusual or special."  Id.  As to                                                               ___            the latter two  factors, we  need not decide  the extent,  if            any,  to  which they  might provide  a  basis for  a downward            departure.  Here as well, it is apparent that the court found            that a departure  was unwarranted as a  matter of discretion.            As  a result, each of defendant's arguments in this regard is            likewise  unappealable.   We  might  add  that defendant  has            pointed to  no personal circumstances that  would suggest his            case is in any way exceptional.5                                             ____________________            5.  We likewise reject  two collateral arguments advanced  by            defendant in this regard.   First, he contends that  a remand            for resentencing  is necessary because of  the allegedly "new            rule"   that  was  later  announced   in  Rivera.    Yet  the                                                      ______            "modification"  that we  there adopted  pertains only  to our            standard of review.  See 994 F.2d at 950-51.                                  ___                 Second, defendant argues that the policy statements in              5H1.1-.6 contravene  the statutory  directive in 28  U.S.C.              994(d) and are therefore invalid.  In particular, pointing to                994(d)'s   reference  to   "establishing   categories  of            defendants," he suggests that this provision was not meant to            discourage  reliance on  such  factors in  individual  cases.            This argument  not only  overlooks 28  U.S.C.   994(e),  see,                                                                     ___                                         -7-                                   IV.  Restitution                                        ___________                 The district court ordered that defendant pay a total of            $197,000  to the  three  banks in  question.   Defendant  now            argues  that such  order was unsupported  by the  evidence on            record, was unaccompanied by  requisite findings of fact, and            was barred by reason  of his indigency.  Except in  one minor            respect, we find no error.                 In  determining  whether to  order  restitution  and the            amount thereof, a sentencing  court must "consider the amount            of  the loss  sustained  by any  victim  as a  result  of the            offense,  the  financial  resources  of  the  defendant,  the            financial needs and earning ability  of the defendant and the            defendant's dependents,  and such other factors  as the court            deems appropriate."  18 U.S.C.    3664(a).  Defendant's first            argument,  which  apparently  contests the  district  court's            calculation  as to the "amount of the loss," can be summarily            rejected.   This  "fact-intensive" determination  is reviewed            "only  for clear error."   United States v.  Savoie, 985 F.2d                                       _____________     ______            612, 617 (1st Cir.  1993).  No such  error occurred here;  as                                            ____________________            e.g., United  States v.  Mondello, 927  F.2d 1463,  1470 (9th            ____  ______________     ________            Cir. 1991)  ("Commission's decision  to deem the  six factors            'not ordinarily relevant' to departure determinations accords            fully  with Congress' expression in  ...   994(e)  ... of the            'general   inappropriateness'   of   considering    them   in            sentencing"),  but is otherwise  meritless, see, e.g., United                                                        ___  ____  ______            States v. Jones, ___ F.3d ___, 1994 WL 61035, at *4 (4th Cir.            ______    _____            1994)  ("the legislative mandate  [in   994(d)]  is clear and            the Commission has complied with that mandate").                                           -8-            mentioned above, the court  supportably found that the actual            losses were well in excess of $197,000.                   Our  decision in  Savoie  also disposes  of  defendant's                                   ______            second argument.   We there stated that  the sentencing judge            "need not  make open-court findings on  the statutory factors            when issuing a  restitution order  so long as  the record  on            appeal  reveals  that the  judge  made  implicit findings  or            otherwise  adequately  evinced  his  consideration  of  those            factors."  Id. at 618.   The record here makes clear that the                       ___            court  duly  considered the  statutory  factors.   They  were            examined at trial (over which the sentencing judge presided),            were discussed in detail in  the presentence report, and were            thereafter  argued   at  some  length  at   the  resentencing            hearing.6                                            ____________________            6.  In a  related argument,  defendant also complains  of the            court's failure to provide reasons for its decision to impose            a prison term of twenty-seven months.  He relies on 18 U.S.C.                3553(c)(1),  which   provides  that,   if  (among   other            conditions)  the  applicable  sentencing  range  "exceeds  24            months," the court must  explain its reasons "for  imposing a            sentence at a particular point within the range."                   Defendant  misinterprets this provision.   An expression            of reasons is  required under   3553(c)(1)--not when the high            end  of  the range  exceeds 24  months,  nor when  the actual            sentence exceeds that duration--but rather when "the width of            the guideline  range (i.e.,  the difference between  the high            and  low  ends of  the range)"  does  so.   United  States v.                                                        ______________            Thomas, ___  F.3d ___,  1994 WL  67986, at  *9 n.2  (8th Cir.            ______            1994) (en banc); accord,  e.g., United States v.  Upshaw, 918                             ______   ____  _____________     ______            F.2d 789, 792  (9th Cir.  1990), cert. denied,  499 U.S.  930                                             ____________            (1991).    As the  applicable range  here  (24 to  30 months)            spanned only six months,   3553(c)(1) is inapplicable.                                         -9-                 Defendant's third argument  is likewise unavailing.   As            evidenced by    3664(a)'s reference to  "earning ability," it            has been widely held that "indigency is not a bar to an order            of restitution."  United States v. Purther, 823 F.2d 965, 970                              _____________    _______            (6th Cir.  1987); accord, e.g.,  Brandon, supra, slip  op. at                              ______  ____   _______  _____            116-17.    The  record  here  is  replete  with  evidence  of            defendant's professional accomplishments and business acumen;            he  himself  spoke  of  his "entrepreneurial  enthusiasm"  at            resentencing.  Resent. Tr. at 18.  On  the basis thereof, the            court  supportably  found  that  defendant's  future  earning            potential was  sufficient to  warrant a substantial  order of            restitution--notwithstanding his current financial plight.7                 Our  one disagreement  is with the  fact that  the court            ordered that  restitution be paid "immediately."   Because it            is  undisputed that  defendant is  presently indigent  and is            thus unable to  comply with  such a directive,  we think  the            court  inadvertently abused  its  discretion to  this limited            extent.8  See, e.g.,  United States v. Ramilo, 986  F.2d 333,                      ___  ____   _____________    ______                                            ____________________            7.  Pointing out that no restitution had  been imposed at his            initial  sentencing, defendant  also charges  that  the court            acted  in  a vindictive  manner.    We  find this  contention            groundless.   It suffices to note that, whereas the court had            ordered  that  defendant  be  detained  pending  his  initial            appeal, the court this  time around has released him  on bail            (over the government's objection).            8.  The district court can hardly  be faulted in this regard,            inasmuch as  defendant  voiced no  such  objection  following            entry  of the  restitution  order.   Defendant did,  however,            advert  to the point earlier  in his lengthy  allocution.  In            turn, while he has not raised this matter directly on appeal,                                         -10-            335 (9th Cir. 1993) (restitution order "must be based on some            evidence  the defendant may be  able to pay  the amount fixed            when  required to do so");  United States v.  Clark, 901 F.2d                                        _____________     _____            855,   857  (10th  Cir.  1990)  (vacating  restitution  order            requiring  immediate payment  on this  basis).   We therefore            shall  remand so that an appropriate  payment schedule may be            established.  The court at that time may also set  a date for            the resumption of defendant's service of his prison term.                 That  part of the  restitution order requiring immediate                 ________________________________________________________            payment is  vacated, the judgment is  otherwise affirmed, and            _____________________________________________________________            the  case is remanded for the limited purpose of establishing            _____________________________________________________________            an appropriate schedule for the payment of restitution.            _______________________________________________________                                            ____________________            defendant has  made passing  reference thereto in  his brief.            Especially considering his  pro se status, we deem  the issue            properly before us.                                           -11-
