                        UNITED STATES COURT OF APPEALS
                             FOR THE FIFTH CIRCUIT




                                    No. 93-3387


UNITED STATES OF AMERICA,

                                                                        Appellee,

                                        versus

CARLOS I. MIRO,

                                                          Defendant-Appellant.




               Appeal from the United States District Court
                   for the Western District of Louisiana



                                 (August 8, 1994)

Before WISDOM and JONES, Circuit Judges, and COBB,* District Judge.

COBB, District Judge:


               Carlos I. Miro appeals his sentence for mail fraud.            We

find no error and AFFIRM.

                                  I.    Background

               Carlos I. Miro (Miro) engineered an insurance scam which

resulted in the collapse of the Louisiana based Anglo-American

Insurance Company (Anglo).             The State of Louisiana licensed Anglo

to do business in August, 1986. Primarily, Anglo marketed workers'



    *
               District Judge of the Eastern District of Texas, sitting by
designation.
compensation insurance.         The company was purportedly reinsured by

the Anglo-American International Reinsurance Company (Reinsurer),

operated out of Dublin, Ireland.               Miro operated the insurers,

directed their solicitation of business, and successfully sought

loans on the companies' behalf.

           Unfortunately for the policy holders, Anglo and its

Reinsurer were shams.            After receiving premium payments from

various subscribers, Anglo would forward these funds overseas to

the Reinsurer.      This gave the appearance that certain risks were

covered.   In reality, however, Miro instead deposited portions of

these receipts into foreign bank accounts for personal use.                 Other

portions of the proceeds were funnelled back into Anglo's accounts,

fraudulently    inflating       the    company's   assets.      With    increased

assets,    Anglo    could       (and    did)   secure   loans     and    receive

authorization      from   the    Louisiana     Department    of   Insurance    to

underwrite more policies.

           In addition to the reinsurance farce, Anglo received

favorable treatment from the Louisiana Department of Insurance,

with which the company filed quarterly and annual statements

reflecting its solvency.         The favorable treatment was a product of

bribes sent by Miro to Mr. Sherman Barnard, the then Louisiana

Commissioner of Insurance.            However, when Barnard failed to secure

re-election, his successor launched an investigation into Louisiana

insurance fraud.     Before long, the fraud became evident, and Anglo

was placed in liquidation.             Anglo's collapse caused a total loss

estimated at over $20,000,000.00.


                                          2
           The United States secured an indictment charging Miro

with   eighteen   counts   of   mail       fraud   and    one   count   of   money

laundering arising out of his activities in the Eastern District of

Louisiana.   Subsequently, the government acquired a superseding

indictment which dropped two of the mail fraud counts.                        The

remaining mail fraud counts charged Miro with receipt through the

mail of blocks of premium checks from its policy holders, the

proceeds of which contributed to execution of the fraudulent

scheme.   The money laundering count charged Miro with executing

bank transfers to London in an attempt to conceal the source of

money unlawfully obtained from the mail fraud.

           Perhaps coincidentally, Miro was visiting Spain at the

time the grand jury returned its original indictment.                   When the

United States began extradition proceedings, Miro was arrested and

held in custody there.      Miro spent approximately eight months in

Spanish   custody    during     the    pendency          of   the   extradition.

Ultimately, Spain extradited Miro but limited prosecution to the

mail fraud counts because the charge for money laundering did not

state an offense under Spanish law.                Miro was returned to the

United States in July, 1992.

           After negotiating with federal authorities, Miro agreed

to plead guilty to certain charges.           The plea agreement provided,

inter alia, that Miro would plead guilty to counts one through

sixteen of the superseding indictment and fully cooperate with law

enforcement authorities in related prosecutions.                In exchange, the

government (1) would not prosecute Miro for the remaining count for


                                       3
money laundering; (2) would not proceed with prosecution for

related money laundering charges pending in the Middle District of

Louisiana; and (3) would bring the extent of Miro's cooperation to

the attention of the district court, and, in the government's

discretion, acknowledge Miro's substantial assistance prior to

sentencing pursuant to § 5K1.1 of the United States Sentencing

Guidelines.

            Miro entered guilty pleas on November 18, 1992.              He then

assisted federal authorities in four related prosecutions.                   As

promised, the government sent a letter to the court advising it of

the extent of Miro's service.        Prior to sentencing, the government

memorialized the letter by filing a §5K1.1 motion to acknowledge

substantial assistance.

            On May 26, 1993, the district court imposed sentence.

That court reasoned that counts one through nine involved mailings

that occurred prior to the effective date of the Guidelines and

sentenced     Miro    to   five   years    on   each   count,    all    to   run

concurrently.        As to the remaining counts, the court applied the

Guidelines and imposed a forty-six month term on each count, also

to run concurrently.2       With respect to these counts, the district

court calculated Miro's offense level using the entire $20,000,000.

See U.S.S.G. § 2F1.1(b)(1).        The court ordered the forty-six month

Guidelines sentence to run consecutive to the five year pre-

Guidelines sentence for a total sentence of 106 months.                The court


     2
            The district court applied the Guidelines in effect at the time the
offenses were committed, to avoid an ex post facto challenge. References to the
Guidelines in this opinion are those applied by the district court.

                                       4
considered the §5K1.1 motion, but chose not to grant a downward

departure.     This appeal timely followed.

                            II.    Discussion

           We will affirm Miro's sentence unless he establishes

"that it was imposed in violation of the law, was imposed because

of an incorrect application of the Guidelines, or is outside the

range of applicable Guidelines and is unreasonable." United States

v. Parks, 924 F.2d 68, 71 (5th Cir. 1991).

                                    A.

           Miro first argues that his consecutive sentences for

pre-Guidelines and Guidelines offenses violate Double Jeopardy.

The district court took into account the total amount of the loss

for purposes of computing Miro's offense level because the loss was

incapable of division between the pre-Guidelines and Guidelines

counts.      Miro argues that when the loss attributable to pre-

Guidelines offenses cannot be apportioned from Guidelines offenses,

Double    Jeopardy   requires     the       court   to   run   the   sentences

concurrently.

           We have consistently rejected similar arguments and do so

again today.    For starters, in Parks, we held that district courts

possess wide discretion to impose consecutive sentences for pre-

Guidelines and Guidelines offenses.             924 F.2d 68, 71 (5th Cir.

1991). We relied on Judge Wilkins' conclusion that "nothing in the

guidelines or the Sentencing Reform Act precludes the court from

ordering that a sentence imposed on a pre-guidelines count be

served consecutively to a sentence imposed on a guidelines count."


                                        5
Parks, 924 F.2d at 73 (quoting United States v. Watford, 894 F.2d

665, 669 (4th Cir. 1990) (Wilkins, J., Chairman of the United

States Sentencing Commission)).           Judge Wilkins had emphasized one

fundamental   distinction       between      pre-Guidelines   and    Guidelines

sentences: Parole is available for the former, but not the latter.

Watford, 894 F.2d at 670.              We concluded that nothing in the

Sentencing Reform Act precluded a judge, when fashioning what he or

she believes an appropriate punishment, from ordering consecutive

sentences.    Parks, 924 F.2d at 73.

           To be sure, Parks did not expressly decide the Double

Jeopardy challenge here presented.             We did, however, reject the

argument in United States v. Gaudet, 966 F.2d 959, 963 (5th Cir.

1992), cert. denied, 113 S.Ct. 1294 (1993).                 As the government

points out, the constitutional issue is really the same question

addressed by Parks. In multiple punishment cases such as this, the

issue is simply whether Congress intended to allow consecutive

sentences when it enacted the Sentencing Reform Act.                 This court

canvassed that question in Parks and disposed of it.               We recognize

the apparently contrary position taken by the Ninth Circuit in

United   States   v.   Niven,    952    F.2d   289,   294   (9th    Cir.   1991).

However, we are bound by our prior holdings in Parks, Gaudet, and

most recently, United States v. Kings, 981 F.2d 790, 794-95 (5th

Cir. 1993). We therefore hold that Miro's consecutive sentences do

not violate Double Jeopardy.

                                        B.

           Miro's second challenge is that the Guidelines apply to


                                        6
all of his convictions because the mail fraud scheme straddled

November 1, 1987, the effective date of the Sentencing Reform Act.

He argues that because the guideline commentary requires grouping

of mail fraud offenses, the district court was bound to order

consecutive sentences on all counts.                  We disagree.

             The Guidelines apply to all offenses committed after

November 1, 1987.        United States v. White, 869 F.2d 822, 826 (5th

Cir.), cert. denied, 490 U.S. 1112, 109 S.Ct. 3172, 104 L.Ed.2d

1033 (1989).        The Guideline commentary suggests grouping of mail

fraud counts which comprise part of a single course of conduct with

a single criminal objective representing one composite harm to the

victim.     U.S.S.G. § 3D1.2.         We are bound by the commentary when it

interprets     or    explains     a    guideline        unless      it   violates      the

Constitution or a federal statute, or is inconsistent with or a

plainly erroneous reading of that guideline.                        United States v.

Stinson,       U.S.       , 113 S.Ct. 1913, 1917-18 (1993).                 However, we

read Stinson only to mean that courts are bound by the commentary

with   respect      to   offenses      that     are    actually      covered     by    the

Guidelines    themselves.         Congress       has    made   it    plain      that   the

Guidelines apply only to crimes committed after November 1, 1987.

             Anticipating this reading of Stinson, Miro urges that his

convictions arose as part of a continuing or "straddle" offense.

We   have   recognized     that       the   Guidelines      cover        some   offenses

initiated prior to November 1, 1987, yet completed after that date.

See Gaudet, 966 F.2d at 961 (collecting cases).                     A perfect example

is a conspiracy initiated prior to November 1, 1987, but continuing


                                            7
by virtue of a co-conspirator's overt act done after that date.

See United States v. Devine, 934 F.2d 1325, 1332 (5th Cir. 1991);

United States v. White, 869 F.2d 822, 826 (5th Cir.), cert. denied,

490 U.S. 1112, 109 S.Ct. 3172, 104 L.Ed.2d 1033 (1989).                     In such a

case, the conspiracy conviction is sentenced pursuant to the

Guidelines because the crime itself would not have been completed

until after November 1, 1987.

          Just because criminal activity takes place over a period

of time does not mean it is a continuing or "straddle" offense.

Punishments under the mail fraud statute, 18 U.S.C. § 1341, and the

conspiracy   statute,   18       U.S.C.       §   371,   are   quite       different.

Execution of a scheme to commit mail fraud is punishable once per

mailing. United States v. Blankenship, 746 F.2d 233, 236 (5th Cir.

1984). Notwithstanding the continuing nature of the scheme itself,

each mailing constitutes a completed offense.                  Id.    We therefore

hold that the district court correctly imposed pre-Guidelines

sentences for mailings occurring prior to November 1, 1987, even

though the mailings were part of a continuing course of conduct

which overlapped the effective date of the Sentencing Reform Act.

See United States v. Osum, 943 F.2d 1394, 1400 n.2 (5th Cir. 1991);

accord United States v. Niven, 952 F.2d 289, 293 (9th Cir. 1991).

                                      C.

          Miro also challenges the district court's denial of a

downward departure.       Miro argues that he provided substantial

assistance to the authorities, and the government's filing of a

motion under   U.S.S.G.      §   5K1.1        entitled   him   to    the   requested


                                          8
departure.     We disagree.

            The decision to grant a § 5K1.1 motion is committed to

the discretion of the sentencing court.             United States v. Damer,

910 F.2d 1239, 1240-41 (5th Cir.), cert. denied, 498 U.S. 991

(1990).    Therefore, even assuming the government files a motion

under § 5K1.1, a defendant is not entitled, as a matter of right,

to the requested departure.          Damer, 910 F.2d at 1241.         Moreover,

generally, a claim on appeal that a sentencing judge refused to

depart from the Guidelines and imposed a lawful sentence provides

no ground for relief.       United States v. Buenrostro, 868 F.2d 135,

139 (5th Cir. 1989), cert. denied, 495 U.S. 923 (1990).             This court

will affirm a refusal to depart from the Guidelines unless the

refusal was in violation of law.            Buenrostro, 868 F.2d at 139.3     In

the past, we have declined to question a sentencing judge's refusal

to depart based on a defendant's claim that he had provided

substantial assistance to authorities under U.S.S.G. § 5K1.1.

United States v. Rojas, 868 F.2d 1409, 1410 (5th Cir. 1989).

Because it does not appear that the district court violated any law

when it refused the downward departure, we reject Miro's argument.4

     3
             We have also suggested that a remand might be appropriate when the
record reveals that the sentencing judge erroneously believed it lacked the
authority to depart. See, e.g., United States v. Soliman, 954 F.2d 1012, 1014
(5th Cir. 1992); United States v. Miller, 903 F.2d 341, 349 n.10 (5th Cir. 1990).
However, the record in this case plainly reflects that the district judge was
aware of his authority to grant the requested departure. Consequently, Soliman
and Miller have no application.
     4
             Both parties rely on Damer to assume that the district court's
denial of the § 5K1.1 motion is reviewable on appeal under the abuse of
discretion standard. Surprisingly, neither party cited Rojas in its brief to
this court, although Rojas decided the same issue as Damer. More importantly, we
decided Rojas prior to Damer. When faced with conflicting panel opinions, the
earlier controls our decision. See, e.g., Smith v. Penrod Drilling Corp., 960
F.2d 456, 459 n.2 (5th Cir. 1992); United States v. Fields, 923 F.2d 358, 360 n.4
(5th Cir.), cert. denied, 500 U.S. 937 (1991). Consequently, under Rojas, Miro's

                                        9
                                       D.

            Miro next contends he was denied due process because the

district    court   punished    him   for   exercising     rights    under   the

extradition treaty between the United States and Spain.               He argues

that a greater sentence was imposed because the government could

not prosecute him for money laundering under the extradition

treaty.    We disagree.

            Under the doctrine of specialty, "the requisitioning

state may not, without permission of the asylum state, try or

punish the fugitive for any crimes committed before the extradition

except the crimes for which he was extradited."                     Shapiro v.

Ferrandina, 478 F.2d 894, 905 (2d Cir.), cert. dism'd., 414 U.S.

884 (1973).     The extradition treaty between Spain and the United

States provides that "the person extradited under the present

Treaty shall not be detained, tried or punished . . . for an



argument that the sentencing court refused to depart downward and imposed a
lawful sentence provides no valid claim for relief.
            Of course, in this case, the discrepancy is a distinction without a
difference. Even if we were to review the district court's application of §
5K1.1 under the abuse of discretion standard, we would easily conclude no abuse
of discretion occurred. The government's § 5K1.1 motion apprised the district
court of Miro's cooperation and assistance in four other insurance fraud
prosecutions. At the sentencing hearing, the court considered this motion and
remarked, "after looking at all the facts and circumstances of this case I didn't
think the downward departure would send the right message to other people who
might be inclined to engage in similar conduct as Mr. Miro. And I thought that
as a general deterrent it was a mistake to depart downward in this case, and I
chose not to depart downward." The district court further justified the sentence
by noting that the Guidelines in effect at the time of the offenses did not
adequately take into account the total loss caused by Anglo's collapse.
            The Pre-Sentence Investigation Report (PSR) supports the district
court's conclusion. The PSR suggests that an upward departure might have been
appropriate because the total loss caused by Anglo's collapse was much greater
than contemplated by the Guidelines. Additionally, the PSR states that an upward
departure might have been permitted on the grounds that governmental functions
had been disrupted because the ultimate burden of Anglo's failure would be borne
by the taxpayers of Georgia and Louisiana. Even under Damer, after examining all
of the facts and the circumstances of this case, we would not conclude that the
district court abused its discretion when it denied the § 5K1.1 motion.

                                       10
offense other than that for which extradition has been granted."

Treaty on Extradition, May 29, 1970, U.S.-Spain, art. XIII, 22

U.S.T. 737, 744.      Spain extradited Miro on only the mail fraud

counts, apparently because Spanish law does not prohibit nor punish

money laundering.

           Miro's argument on this issue rests entirely on certain

comments made by the district court at sentencing.            Our review is

therefore governed by the plain error standard because Miro could

have raised the point when the trial court's comments were made but

failed to do so.      See United States v. Davis, 954 F.2d 182 (4th

Cir. 1992). Under FED. R. CRIM. P. 52(b), "[p]lain errors or defects

affecting substantial rights may be noticed although they were not

brought to the attention of the court."           FED. R. CRIM. P. 52(b).

This avenue is necessarily narrow, to encourage timely objection

"so as to provide the trial judge an opportunity to avoid or

correct any error, and thus avoid the costs of reversal."             United

States v. Chaney, 662 F.2d 1148, 1151 n.4 (5th Cir. 1981).

           In United States v. Olano, the Supreme Court recently

defined the limitations to plain error review.                U.S.     , 113

S.Ct. 1770 (1993).      First, there must be an error, that is, a

deviation from a legal rule, unless the rule has been waived.

Olano, 113 S.Ct. at 1777.       Second, the error must be "clear" or

"obvious."   Id.    Third, the substantial rights of the defendant

must have been adversely affected.          Id. at 1777-78.     In the usual

case, this requires the defendant to make a specific showing of

actual   prejudice.      Id.   at   1778.      Finally,   our    review   is


                                    11
discretionary, and we may only correct an error meeting the above

essentials if it "seriously affects the fairness, integrity or

public reputation of judicial proceedings." Id. at 1779; see also

United States. v. Rodriguez, 15 F.3d 408, 415-16 (5th Cir. 1994).

            Governed    by    these   standards,    we   cannot    vacate   this

sentence    because    of    any   asserted   violation    of    the   specialty

doctrine.     We may assume, arguendo, that increasing a sentence to

compensate      for    unextradited      crimes     might,       under    proper

circumstances, be a deviation from a legal rule such that it would

constitute error.        However, Olano cautions that "the Court of

Appeals cannot correct an error pursuant to Rule 52(b) unless the

error is clear under current law."            When we review this record as

a whole, United States v. Young, 470 U.S. 1, 16 (1985), we are not

convinced that the district court plainly erred.                  First, it is

undisputed that Miro was never formally prosecuted for money

laundering. In addition, although the district court remarked that

the consecutive sentences were (at least partially) imposed because

of Miro's fight against extradition, these statements were made in

response to a plea for a more lenient sentence.                 To this extent,

the district court appears to have been simply unsympathetic toward

a fugitive.    Finally, the PSR did not recommend the court take into

account as relevant conduct that Miro could not be prosecuted for

any remaining money laundering charges.                  We therefore cannot

conclude that the district court clearly and obviously erred.5


     5
            We also doubt that Miro would be able to succeed in making a
specific showing of prejudice. In order to prove that the asserted error
affected his substantial rights, Miro surely must have standing to raise this

                                       12
            We additionally emphasize that we allow plain error

review in only the most limited of circumstances so as not to upset

the   "careful    balancing     of   our      need   to    encourage   all   trial

participants to seek a fair and accurate trial the first time

around against our insistence that obvious injustice be promptly

redressed." Young, 470 U.S. at 15 (quoting United States v. Frady,

456 U.S. 152, 163 (1982)).           Plain error review is discretionary,

exercised only when the failure to do so would result in a

miscarriage of justice.         Olano,           U.S. at         , 113 S.Ct. at

1779.   Left unchecked, a plain error results in a miscarriage of

justice only when the error "seriously affects the fairness,

integrity, or public reputation of judicial proceedings."                    Id.

            Even if we were to speculate that the district court

erred when it announced this sentence, the error is not the sort

which   seriously     affects    the     fairness,        integrity,   or    public

reputation of judicial proceedings.             After Miro induced the public

to purchase bogus insurance, he pleaded guilty and was convicted

for sixteen counts of mail fraud.               The district court announced

numerous reasons for this sentence.              Among them was the thought

that the applicable Guidelines did not fairly account for the total

loss, which exceeded $20,000,000. The sentencing judge also noted,

in addressing the § 5K1.1 motion, that the sentence would generally

deter others from committing similar frauds. In short, consecutive



objection. In United States v. Kaufman, 874 F.2d 242, 243 (5th Cir. 1989), we
suggested that a criminal defendant has no standing to argue the specialty
doctrine when the asylum state has failed to raise an objection to the
proceeding. There is no indication that Spain has objected to Miro's sentence.

                                         13
terms for pre-Guidelines and Guidelines counts were plainly within

the district court's discretion to impose.                 We are satisfied that

the record supports Miro's total sentence and are convinced that

the failure to correct Miro's asserted error will not result in a

"miscarriage of justice."         We therefore decline his invitation to

vacate the sentence on the ground that it violated the doctrine of

specialty.6

                                         E.

              Miro finally contests his sentence as being excessive

when compared with others similarly situated.                This argument need

not long detain us.       In the first place, we are somewhat skeptical

of this argument insofar as there has been no showing that the

defendants     with   whom   Miro   would     seek    to    align   himself      were

sentenced under the same or similar circumstances. That is, he has

failed   to    specify,   which     of   those      defendants,     if    any,   were

sentenced for both pre-Guidelines and Guidelines offenses.                       There

likewise is no indication whether the members of Miro's "comparison

pool" played as significant a role as Miro himself.                      Finally, we

note that both the pre-Guidelines and the Guidelines sentences were

within   the    applicable    statutory       and    Guidelines     ranges.        We

therefore hold that Miro has failed to show that his sentence was

disproportionately excessive when compared with others similarly

situated.     See United States v. Goldfaden, 959 F.2d 1324, 1332 (5th

Cir. 1992) (rejecting disparity argument when defendant failed to


     6
            For the same reasons, we reject Miro's argument that the sentence
violated the plea agreement. The plea agreement simply incorporated the
limitations set forth by the extradition treaty.

                                         14
establish that differing sentences were unwarranted).




                          III. Conclusion

            Today we hold that Miro's consecutive sentences do not

violate Double Jeopardy. In addition, the district court correctly

declined to group all the mail fraud counts, and Miro has failed to

show how the denial of the downward departure violated any law.

Miro has not shown plain error with regard to his claim that he was

punished for exercising extradition rights.    Lastly, the record

does not support Miro's argument that he received a sentence that

was disproportionately excessive when compared with others.    Our

disposition of this case makes it unnecessary for us to consider

whether the district court should be disqualified in the event of

a remand.   Miro's sentence is therefore

            AFFIRMED.




                                 15
