
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1357                                   SAMUEL J. CONCEMI,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. A. David Mazzone, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Cyr, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Samuel J. Concemi on brief pro se.            _________________            A.  John Pappalardo,  United States  Attorney, Deborah  M.  Smith,            ___________________                            __________________        Director, New England Bank Fraud Task Force, and Paul J. Andrews, U.S.                                                         _______________        Department of Justice, on brief for appellee.                                 ____________________                                   January 10, 1994                                 ____________________                      Per  Curiam.    The  district   court's  denial  of                      ___________            appellant Samuel Concemi's motion to vacate sentence under 28            U.S.C.     2255 is  affirmed  substantially  for the  reasons            stated in  the district court's December  11, 1992 memorandum            and order.                      Ten of the claims advanced by Concemi in his   2255            petition  were dismissed by the  district court on the ground            that  they "were either  directly addressed  by the  Court of            Appeals [in  Concemi's  direct appeal  from  his  conviction,            United  States v. Concemi, 957  F.2d 942 (1st  Cir. 1992)] or            ______________    _______            were  matters considered to  be within the  discretion of the            trial court."  We note that four of these ten claims were not            expressly  dealt with  by this court  in Concemi.  These four                                                     _______            claims, nevertheless,  were properly subject to  dismissal on            other grounds.                      These four,  related  claims were  as follows:  (1)            that the sentencing judge erred by denying  without a hearing            Concemi's motion that the court determine relative degrees of            culpability  of  all  the  defendants  convicted  in  various            independent  cases -- not  just Concemi's case  -- of similar            fraud involving  ComFed; (2) that the  sentencing judge erred            by  failing to find Concemi a minimal or minor participant in            the conspiracy;  (3) that  the disparity in  sentence between            Concemi  and his  two  co-defendants violated  the sentencing            guidelines; and  (4) that  the disparity in  sentence between            Concemi  and  all   the  defendants   convicted  in   various            independent cases of similar fraud involving  ComFed violated            the sentencing guidelines.                      The first two of  these claims are not specifically            pressed  in Concemi's  brief  on appeal  and are  accordingly            waived.  United States  v. Michaud, 925 F.2d 37, 43  n.8 (1st                     _____________     _______            Cir. 1991).  In any event, as the government points out, this            court in  Concemi, after reviewing the  evidence presented at                      _______            trial, stated  that "the  mutual cooperation of  Concemi" and            his two co-defendants "was essential in  order to execute the            scheme  to  use secondary  mortgages  and  conceal them  from            ComFed."  Id. at  950.  Given Concemi's "essential"  role, it                      __            was  certainly  not clear  error  for the  district  court to            conclude that Concemi had played more than a minimal or minor            role in the offense.                        Concemi argued in his   2255 petition that his role            was  nevertheless minimal  or minor  relative to  the larger,            overall series of frauds involving ComFed, most of which were            not  at  issue in  Concemi's trial.    We have  already held,            however, in another case involving fraud against ComFed, that            a  defendant's  role  in  the offense  under  the  sentencing            guidelines must  be determined with regard  to the particular            offenses for  which the  defendant is charged  and sentenced,            whatever may be the defendant's relative role in  some "wider            web  of  fraud" that  extends  well  beyond  the  offense  of                                         -3-            conviction.  United  States v.  Gregorio, 956  F.2d 341,  344                         ______________     ________            (1st Cir. 1992).                      Given  these  considerations, the  sentencing judge            certainly did  not abuse his discretion in  declining to hold            an evidentiary hearing on these matters.                      Concemi's  objection  to   the  alleged   disparity            between  his sentence and others'  sentences is meritless.  A            sentence  that is valid on its own terms under the sentencing            guidelines remains valid without regard to  sentences imposed            on  other defendants in the case, or in other cases, that are            alleged to be  inconsistent.  United States v.  Figueroa, 976                                          _____________     ________            F.2d 1446,  1460 (1st  Cir. 1992)  (quoting United  States v.                                                        ______________            Wogan, 938 F.2d 1446,  1448 (1st Cir.), cert. denied,  112 S.            _____                                   ____________            Ct.  441  (1991))  ("Even   a  'perceived  need  to  equalize            sentencing  outcomes  for  similarly  situated  codefendants,            without more,  will not  permit a  departure from a  properly            calculated  guideline sentencing range'"),  cert. denied, 113                                                        ____________            S. Ct.  1346 (1993); United States v. Panet-Collazo, 960 F.2d                                 _____________    _____________            256, 261  (1st Cir.) (notwithstanding defendant's  claim of a            vindictive   disparity  in   sentencing  vis-a-vis   his  co-            defendant,  "we have  no appellate  jurisdiction to  review a            sentence within the applicable sentencing guidelines range if            that range  was correctly determined"), cert.  denied, 113 S.                                                    _____________            Ct. 220 (1992).  This court, furthermore, already has upheld,                                         -4-            against other challenges,  the guideline sentence imposed  on            Concemi.  Concemi, supra, 957 F.2d at 952-53.                      _______  _____                      In his brief on appeal, Concemi also objects to the            sentencing  judge's  upward  adjustment  for  obstruction  of            justice.  Concemi's    2255 petition, however,  did not raise            this point.  We will not consider it in the first instance on            appeal.  Isabel v.  United States, 980  F.2d 60, 61 n.1  (1st                     ______     _____________            Cir. 1992).                        Concemi does not, in his brief on appeal, object to            the  district  court's denial  of  his two  motions  to amend            judgment.   The  second  motion to  amend judgment,  however,            raised  a new  claim  for relief  under    2255 that  was not            contained  in  Concemi's original     2255  motion.   Concemi            alleged that the indictment against him was multiplicitous in            that it charged him  with seventeen counts of bank  fraud and            seventeen counts  of making  false statements to  a federally            insured  bank.  According  to Concemi,  all of  the seventeen            separate  acts were  merely  part  of  one  grand  scheme  to            defraud, so  Concemi properly should have  been indicted only            on  one count of  bank fraud  and one  count of  making false            statements.   Concemi  does   argue  in  his brief  that  the            district court erred in dismissing this additional claim.                      Concemi's   position  lacks  any   merit.    First,            Concemi's second  motion to  amend judgment was  not properly            before  the district  court because  it was  untimely, having                                         -5-            been filed on January 23, 1993, more than ten  days after the            district court's  December 14,  1992 judgment.   See Fed.  R.                                                             ___            Civ. P.  59(e) (a motion to  alter or amend judgment  must be            served  within ten days after  entry of judgment).   We agree            with the  government that,  Concemi's original    2255 motion            having already  been rejected,  Concemi should  properly have            brought any additional    2255 claims in a successive    2255            motion, rather than "under the  guise of a late-filed  motion            to amend judgment."                      Even were  we to  disregard these objections  -- as            well as  Concemi's  failure to  raise  this claim  on  direct            appeal -- we see no merit to the claim in any event.  Concemi            relies  on United  States v.  Lilly, 983  F.2d 300  (1st Cir.                       ______________     _____            1992), in  which we found multiplicitous  an indictment which            charged the defendant with over twenty counts of  bank fraud,            even though the  over twenty separate  acts of fraud  alleged            were all directed to defrauding  a single bank in  connection            with a single loan.  We concluded that the facts of that case            were "more comfortably categorized as a single execution of a            scheme rather than as  twenty-some-odd separate executions of            a scheme."   Id. at 303.   In the instant  case, by contrast,                         __            Concemi was charged with defrauding ComFed in connection with            seventeen  separate  loans.   In  that  context, framing  the            indictment  in terms of seventeen separate  acts of fraud was            entirely logical and not multiplicitous.                                         -6-                      The district court's denial of  Concemi's motion to            vacate sentence under 28 U.S.C.   2255 is affirmed.                                                      ________                                         -7-
