
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-1694                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   ROBERT BENJAMIN,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Mark L. Wolf, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                              Torruella, Cyr and Stahl,                                   Circuit Judges.                                   ______________                                _____________________               Theodore Lawrence  Craft, with  whom Robert Benjamin  pro se               ________________________             _______________          was on brief for appellant.               Paul G.  Levenson,  Assistant United  States Attorney,  with               _________________          whom  Donald K. Stern, United  States Attorney, was  on brief for                _______________          appellee.                                 ____________________                                    July 13, 1994                                 ____________________                    TORRUELLA, Circuit Judge.   Robert Benjamin appeals his                               _____________          sentence  and order to pay restitution after  he pled guilty to a          single count  of interstate transportation of  stolen property in          violation of 18 U.S.C.   2314.                                      BACKGROUND                                      BACKGROUND                                      __________                    In 1985,  Stanley Sreda  ("Sreda"),  a retired  farmer,          hired Robert Benjamin ("Benjamin"),  a self-employed advisor  and          tax  accountant, to  manage  Sreda's  investments and  authorized          Benjamin  to buy and sell  securities on Sreda's  behalf.  During          the  course  of their  business relationship,  Benjamin embezzled          substantial sums  of money  from Sreda.   After  Sreda discovered          that Benjamin  had embezzled money  from him, Sreda  and Benjamin          entered into a civil agreement ("the Agreement") whereby Benjamin          conveyed his personal residence and land to Sreda.                    The  Agreement  stipulated  that Sreda  would  put  the          property, which was heavily mortgaged, up for sale to recover the          money  which Benjamin  had  embezzled.   The  bank which  held  a          mortgage  on  the  property,  however, foreclosed  and  took  the          property.   According to Benjamin, Sreda, who  owned the property          subject to the mortgage, took no actions to sell the property nor          made  any payments  on the  mortgage.   Sreda then filed  a civil          action to recover the money embezzled.  Benjamin defaulted in the          civil action.                    In  this  case,  the  government filed  an  Information          charging Benjamin with  interstate transportation of  $460,449.85          in  embezzled monies.  Benjamin  pled guilty to  the charge.  The                                         -2-          pre-sentence report  ("PSR") calculated the actual  loss suffered          by Sreda  to be $665,943, consisting  of $460,449.85 attributable          to  13 checks  that Benjamin  wrongfully converted  and $205,494,          discovered  after the  plea, attributable  to bearer  bonds which          Benjamin fraudulently redeemed.                    Following the Sentencing Guidelines, the district court          found Benjamin  to have  an offense  level of 17  and a  criminal          history category  of 1, calling for a sentence of 24 to 30 months          incarceration and 24  to 36  months of supervised  release.   The          court based its  calculation of  the total offense  level on  the          $460,000 loss alleged in the  indictment, plus an additional loss          of $205,000 which it counted as "relevant conduct" under U.S.S.G.            1B1.3.   The district  court sentenced Benjamin  to 30  months'          incarceration followed by 36 months  of supervised release.   The          district  court   also  ordered  Benjamin  to   pay  $460,000  in          restitution.                    On  appeal,  Benjamin contends  that  (1)  the district          court's  calculation  of  his  offense level  was  excessive  and          improper; (2) the district court erred in including the  $205,000          not  included in  the indictment  in its  calculation of  loss in          determining "relevant  conduct" for  purposes of sentencing;  (3)          the sentence was wrongfully inconsistent with the plea agreement;          and  (4) the district court  abused its discretion  by failing to          mitigate its  restitution order in  light of the  civil agreement          between Benjamin and Sreda.                                         -3-                                      DISCUSSION                                      DISCUSSION                                      __________                    Benjamin's first contention has no merit.  The sentence          imposed  was   the  result  of  a   straightforward  and  correct          application  of  the  Sentencing  Guidelines  and   Benjamin  has          articulated no  reason  why it  should be  deemed "excessive"  or          "improper."                    Of the  remaining issues  raised by Benjamin,  the only          issue preserved for appeal is whether the district court erred by          failing   to   mitigate   restitution.     Benjamin's   remaining          contentions were not argued before the district court below  and,          absent exceptional circumstances, they  will not be addressed for          the first time  on appeal.  United States v.  Curzi, 867 F.2d 36,                                      _____________     _____          44 (1st Cir. 1989);  see also United States v. Shattuck, 961 F.2d                               ________ _____________    ________          1012,  1015  (1st  Cir.  1992) ("[w]e  do  not  review sentencing          guideline disputes  which were not preserved  before the district          court") (citation omitted).                    At  sentencing, counsel for  Benjamin acknowledged that          he  had read  the PSR and  expressly waived any  challenge to the          factual  accuracy of  the PSR.   Counsel  also conceded  that the          correct  amount for  calculating  loss for  purposes of  relevant          conduct  at sentencing  was  $665,000 as  stated  in the  report.          Benjamin  is  bound  by  these  findings  because  on  appeal,  a          defendant  may not challenge  the findings in  his PSR if  he has          failed to object to  that report in the  district court.   United                                                                     ______          States v. Haggert, 980 F.2d 8, 11 (1st  Cir. 1992) (citing United          ______    _______                                          ______          States v. Fox, 889 F.2d 357, 359 (1st Cir. 1989)).          ______    ___                                         -4-                    We can reverse Benjamin's  sentence based on claims not          raised  below, only for "plain error."  United States v. Olivier-                                                  _____________    ________          D az, 13  F.3d  1, 5  (1st  Cir.  1993).   Benjamin  has  failed,          ____          however, to persuade us that such error took place.   To meet the          plain  error standard there must  be: (1) a  reviewable error (2)          that  is  "clear"  or  "obvious"  and  (3)  affects  "substantial          rights."  Id.                      __                    There is no plain error in this case because this court          has  previously entertained  and  rejected  the same  substantive          arguments presently made by  Benjamin.  In United States  v. Fox,                                                     _____________     ___          889 F.2d 357, 350-61 (1st Cir. 1989),  we rejected a challenge to          the district court's consideration of "relevant conduct" that had          been set forth  in a PSR, but  that was not part  of the specific          offense to which defendant had pled guilty.  In the present case,          the district  court correctly considered  Benjamin's embezzlement          of  the additional  $205,000 stated  in the  PSR as  a factor  in          determining  the  guideline range  under  U.S.S.G.    1B1.3,  the          "relevant conduct" provision.                    Our  review   of  the  transcript   confirms  that  the          government  met  its obligations  under  the  plea agreement  and          Benjamin  concedes that  there  was no  bad  faith or  breach  of          promise  by the  government.   The agreement  indicated  that the          district  court  was not  bound by  the  agreement and  might not          follow  the   parties'  guidelines  calculations   or  sentencing          recommendations.    Yet,  Benjamin  contends  that   the  court's          consideration, in determining his  sentence, of the $205,000 loss                                         -5-          not charged in the Information violated the plea agreement.    In          Fox, we rejected the contention that the court's consideration of          ___          such "relevant conduct" in  sentencing violated due process where          a pre-sentence  investigation  subsequent to  the plea  agreement          between the  defendant and the United  States revealed additional          information relevant to sentencing.  Fox, 889 F.2d at 362-63; see                                               ___                      ___          also  United States  v. Oyegbola,  961 F.2d  11, 14-15  (1st Cir.          ____  _____________     ________          1992), cert.  denied, 113  S. Ct.  47 (U.S.  1992) (there  was no                 _____  ______          breach  of  plea  agreement  where  subsequent  investigation  by          Probation  Department  revealed  additional   relevant  conduct).          Because  Fox  and Oyegbola  control  this  case and  because  the                   ___      ________          district court's  rulings were a  straightforward application  of          the guidelines to the uncontested factual findings of the PSR, we          find no plain error.                                  RESTITUTION ORDER                                  RESTITUTION ORDER                                  _________________                    The  district  court  has  considerable  discretion  in          framing a restitution order.   United States v. Lombardi,  5 F.3d                                         _____________    ________          568, 573 (1st Cir. 1993).                    Benjamin maintains that the property tendered to  Sreda          could  have been  sold  for a  considerable  amount of  money  in          mitigation  of Sreda's loss.  In essence, Benjamin argues that it          is unfair to  require him to restore  the victim's loss a  second          time  where the  victim's own  negligence in  failing to  put the          property up  for sale  prior to  foreclosure  contributed to  the          loss.                    While  this  argument  is  somewhat  appealing,  we are                                         -6-          unable to find any error, much less an abuse of discretion,  with          the district court's order of restitution in this case.                    Title  18  U.S.C.,  section  3664(a),  establishes  the          factors to be considered  by the court in determining  whether to          order restitution:                      The court . . . shall 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.                    In  formulating  its  restitution order,  the  district          court considered the appropriate factors.  The court acknowledged          the amount  of loss suffered by  the victim:   $460,000 caused by          the  offense  conduct  charged  as well  as  $205,000  caused  by          Benjamin's relevant  conduct.   The  court limited  its order  of          restitution  to  $460,000, correctly  noting  that  it could  not          "properly take  into account the  amount of the  relevant conduct          for the purposes of  restitution."  See Hughey v.  United States,                                              ___ ______     _____________          495  U.S.  411,  420 (1990)  ("the  loss  caused  by the  conduct          underlying the offense of conviction establishes the outer limits          of a restitution  order").1  The  district court also  considered          Benjamin's financial ability to make restitution, stating:                                        ____________________          1   Section 3663 was amended on November 29, 1990, to allow broad          restitution  for offenses  involving "as an  element a  scheme, a          conspiracy, or a pattern of criminal activity."  Pub. L. No. 101-          647,    2509, 104 Stat. 4789,  4863 (Crime Control Act  of 1990);          United States v. Cronin, 990 F.2d 663, 666 (1st Cir. 1993).  That          _____________    ______          amendment does  not apply here,  however, because the  offense of          conviction did not  include a  plan, scheme or  conspiracy as  an          element of the offense.                                         -7-                      I have  ordered you to make  the $460,000                      restitution.  And, if you can, you  will;                      and  if you  can't, at  the end  of three                      years  you  will   be  relieved  of   the                      obligation.   But, frankly, while  I have                      been  told all  the money  went  into the                      house,   I  guess  I  haven't  seen  that                      proven.   And, perhaps  you will  win the                      lottery.   And  if  you do,  Mr.  [Sreda]                      should be a beneficiary of that as well.                    The district  court was aware of  Benjamin's attempt to          make restitution by conveying  his house and land  to Sreda.   At          sentencing,  the government contended that  Sreda did not get any          money  out of  the property.   There was  no evidence  before the          court  as to what amount of restitution might have been available          had  the  property been  sold.   The district  court specifically          asked Benjamin  whether he had an appraisal of the property as of          the date it was tendered.  Benjamin responded that he did not and          he failed to present other evidence showing the full value of the          house  and  land when  they  were  tendered.   In  light of  this          evidentiary void,  even if the  district court had  considered it          appropriate to reduce  the amount of  restitution to account  for          Benjamin's previous attempt to repay Sreda and  any negligence on          behalf  of Sreda, it would have been virtually impossible for the          district court to  quantify these factors.   The district  court,          therefore, simply had  no basis to reduce the  restitution order.          Thus,  we  conclude that  the district  court  did not  abuse its          discretion  in basing its order  of restitution on  the amount of          loss suffered by Sreda.                    Affirmed.                    ________                                         -8-
