
USCA1 Opinion

	




          February 8, 1993                            UNITED STATES COURT OF APPEALS                                For The First Circuit                              _________________________          No. 92-1920                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   PAUL J. SAVOIE,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Francis J. Boyle, U.S. District Judge]                                             ___________________                              _________________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Selya, Circuit Judge.                                         _____________                              _________________________               Robert B. Mann, with whom Mann & Mitchell was on  brief, for               ______________            _______________          appellant.               Edwin J. Gale, First  Assistant United States Attorney, with               _____________          whom Lincoln C. Almond, United States Attorney, was on brief, for               _________________          the United States.                              __________________________                                   February 8, 1993                              __________________________                    SELYA, Circuit Judge.  We consider today a golconda  of                    SELYA, Circuit Judge.                           _____________          challenges  mined  by defendant-appellant  Paul  J.  Savoie in  a          relentless  effort  to  ameliorate  a  sentence  imposed  in  the          district  court.  Concluding, as we do, that appellant is digging          in barren soil, we affirm the judgment below.          I.  BACKGROUND          I.  BACKGROUND                    For several years, appellant led a  double life.  While          serving  as a  policy adviser  to the  mayor of  Pawtucket, Rhode          Island, he was also part of a trio of high-ranking city officials          who  systematically  exploited  the  public  trust  for  personal          profit.  The other  two members of the tarnished troika  were the          mayor, Brian Sarault, see  United States v. Sarault, 975  F.2d 17                                ___  _____________    _______          (1st  Cir. 1992),  and the  acting public  works  director, Louis          Simon.    Because  of  the  extensive  range  and  reach  of  the          triumvirate's  illegal  activities,  we  abjure  any  attempt  to          describe the plot  at this juncture.  We will,  however, refer to          certain  relevant  outrages in  connection  with  our canvass  of          appellant's arguments on appeal.                    Savoie  eventually  pleaded  guilty  to  one  count  of          racketeering, see 18 U.S.C.    1962(c) (1988), and two  counts of                        ___          extortion,  see 18  U.S.C.    1951 (1988).1   At  sentencing, the                      ___          district court reviewed the presentence investigation report (PSI          Report), appellant's objections thereto, and transcripts of grand                                        ____________________               1The other twenty-seven counts in the  indictment, including          numerous  charges of  attempted extortion,  conspiracy to  commit          extortion, and  receiving bribes, were dismissed  by agreement at          the time of sentencing.                                          2          jury testimony  furnished by the government.   Appellant chose to          present  no independent  evidence (although  he did  rely on  his          description of  the offense as  related to the  probation officer          and incorporated in the PSI Report).                    For the most part, the  district court adopted the  PSI          Report's suggested findings.   The court calculated the guideline          sentencing range (GSR) at 41-51 months (offense level 22/criminal          history  category I) and imposed an incarcerative sentence at the          top of  the range.  The  court also imposed a  three-year term of          supervised  release,  a  $7,500   fine,  a  $150  special  felony          assessment, and  150 hours  of community  service.   Finally, the          court   ordered  Savoie  to  make  restitution   in  the  sum  of          $93,476.67.  This appeal followed.          II.  DISCUSSION          II.  DISCUSSION                    We  have grouped  appellant's  myriad complaints  under          four headings.  We discuss them sequentially.                       A.  The Role-in-the-Offense Adjustment.                       A.  The Role-in-the-Offense Adjustment.                           __________________________________                    The sentencing guidelines  mandate a three-level upward          adjustment if  "the defendant was a  manager or supervisor .  . .          and the criminal  activity involved five or  more participants or          was  otherwise  extensive."   U.S.S.G.     3B1.1(b) (Nov.  1991).          Appellant claims that the district court erred in relying on this          proviso.   In  this case,  the  criminal activity  was  extensive          enough to satisfy the  guideline.  The only cognizable  question,          then, is whether the  sentencing court erred in  determining that          appellant was  a manager or  supervisor of the  ring.  Where,  as                                          3          here,  the sentencing  court's decision  to apply  a role-in-the-          offense adjustment is factbound, we review the determination only          for clear  error.  See  United States v.  Dietz, 950 F.2d  50, 52                             ___  _____________     _____          (1st Cir. 1991); United States v. Diaz-Villafane, 874 F.2d 43, 48                           _____________    ______________          (1st Cir.), cert. denied, 493 U.S. 862 (1989).                      _____ ______                    In  making  a  role-in-the-offense  determination,  the          sentencing court need not  wear blinders but may look  beyond the          count  of conviction  to the  whole  of the  defendant's relevant          conduct.   See United States  v. Ruiz-Batista, 956  F.2d 351, 353                     ___ _____________     ____________          (1st  Cir.),  cert.  denied, 113  S.  Ct.  105  (1992); see  also                        _____  ______                             ___  ____          U.S.S.G.  Ch. 3,  Pt.B, intro.  comment.   Managerial status  may          attach if there is  evidence that a defendant, in  committing the          crime, exercised  control over, or was  otherwise responsible for          overseeing  the activities of, at  least one other  person.  See,                                                                       ___          e.g.,  United States  v. Veilleux,  949 F.2d  522, 524  (1st Cir.          ____   _____________     ________          1991);  United States  v. Akitoye,  923 F.2d  221, 227  (1st Cir.                  _____________     _______          1991);  United States v. Fuller, 897 F.2d 1217, 1220-21 (1st Cir.                  _____________    ______          1990).   The evidence of  such control need  not be direct.   See                                                                        ___          Diaz-Villafane,  874  F.2d  at  48  (observing  that  felons  are          ______________          "unlikely  to   make  much   use  of  position   descriptions  or          organizational  charts").     Where  numerous   participants  are          involved, or  the criminal  activity is otherwise  extensive, the          court must often make  hierarchical distinctions between those at          the  very  top  of the  criminal  enterprise  (the  organizers or          leaders)  and   those  who,  while  in   positions  of  executive          authority,   are  lower  on  the  totem  pole  (the  managers  or                                          4          supervisors).   In making such fine distinctions,  the indicia of          executive status include  such things as the  defendant's role in          recruiting accomplices, the degree  and nature of the defendant's          participation  in  planning  and  implementing  the offense,  the          defendant's   exercise  of  decisionmaking   authority,  and  the          defendant's  level of remuneration relative to other participants          (including the  presence or absence of a claimed right to a share          of  the crime's fruits).   See U.S.S.G.    3B1.1, comment. (n.3);                                     ___          see also United  States v. Sostre,  967 F.2d 728,  733 (1st  Cir.          ___ ____ ______________    ______          1992);  United States  v. Panet-Collazo, 960  F.2d 256,  261 (1st                  _____________     _____________          Cir.), cert. denied, 113 S. Ct. 220 (1992).                 _____ ______                    Here,  the record is fairly bursting  at the seams with          evidence  buttressing the  inference  of managerial  status.   In          addition to  extorting funds himself, appellant used internuncios          (e.g., Joseph Stifano, Robert Langlois) as conduits for obtaining           ____          bribes;2 manipulated Pawtucket's highway  director (Ron Lieto) in          order  to extract  free services  for  himself from  a contractor          doing business with  the City; gave occasional  directions to his          fellow triumvir, Louis  Simon; and, in  general, as the  district          judge  aptly put  it,  "made some  rather significant  decisions,          including the decision of  how much [would be demanded]  and from          whom [it would be extorted]."                    We are  completely unmoved by appellant's  plea that he                                        ____________________               2The RICO count to which appellant pleaded described twenty-          four separate  racketeering acts.   Act No.  17, described  infra                                                                      _____          note  6,  is  an excellent  example  of  how  appellant used  go-          betweens.                                          5          was merely a footsoldier  in Mayor Sarault's iniquitous army.   A          defendant  need not be the  highest ranking member  of a criminal          troupe in  order  to be  a manager  or supervisor.   Indeed,  the          applicable  guideline provision  stresses  that  managerial  role          adjustments,  as  opposed  to  other  upward  role-in-the-offense          adjustments,   apply   to  defendants   who   were  managers   or          supervisors,  but  not organizers  or  leaders.   See  U.S.S.G.                               ___                            ___          3B1.1(b).  In  other words, Sarault's acknowledged status  as the          commander-in-chief  is not  in  any sense  inconsistent with  the          court's finding that  appellant was his  lieutenant.  See,  e.g.,                                                                ___   ____          United States v.  Iguaran-Palmar, 926  F.2d 7, 10  n.1 (1st  Cir.          _____________     ______________          1991).                    We  will not  paint the  lily.   Appellant was  a prime          mover in a pervasive pattern of municipal  corruption lasting for          several years.  He  gave orders, participated in setting  policy,          made decisions, and shared handsomely in the booty.  The evidence          here is  more  than sufficient  to  ground the  district  court's          finding that appellant served the  ring in a managerial capacity.          See  United States v. St. Cyr, 977  F.2d 698, 706 (1st Cir. 1992)          ___  _____________    _______          (holding  that "when there are two plausible views of the record,          the sentencing  court's  adoption  of  one such  view  cannot  be          clearly  erroneous"); Diaz-Villafane,  874 F.2d  at 49  (similar;                                ______________          discussing role-in-the-offense adjustments).                              B.  The Restitution Order.                              B.  The Restitution Order.                                  _____________________                    As part of  the Victim  and Witness  Protection Act  of          1982 (VWPA),  Congress authorized  district courts to  order that                                          6          convicted defendants make restitution to victims.  See 18  U.S.C.                                                             ___               3556,  3663,  3664  (1988  &  Supp.  1990).3    The  federal          sentencing  guidelines  themselves require  such  orders  in many          circumstances.    See U.S.S.G.    5E1.1.    In this  instance the                            ___          district  court  ordered  restitution,  directing  that appellant          repay,  in  installments,  a  total of  $93,476.67.4    Appellant          attacks the order on three grounds.  He is shooting blanks.                    1.    The Computation.    The  VWPA  provides that,  in                    1.    The Computation.                          _______________          determining  the  size  of  a restitution  order,  a  court  must          consider, among  other things, "the amount of  the loss sustained          by any victim as a result of the offense."  18 U.S.C.    3664(a).          When  this amount is disputed, the government bears the burden of          establishing  it  by a  preponderance of  the  evidence.   See 18                                                                     ___          U.S.C.    3664(d).   Because  a determination  of victim  loss is          fact-intensive,  we review it only  for clear error.   See United                                                                 ___ ______          States v. Teehee, 893 F.2d 271, 273-75 (10th Cir. 1990).          ______    ______                    The  law cannot  be blind  to  the fact  that criminals          rarely keep detailed records of their lawless dealings, totalling          up  every column  and  accounting for  every misbegotten  dollar.          Hence, the preponderance standard must be applied in a practical,          common-sense   way.    So  long  as   the  basis  for  reasonable          approximation  is  at  hand,   difficulties  in  achieving  exact                                        ____________________               3Until November 1, 1986, the last two of these sections were          codified at 18 U.S.C.    3579 & 3580, respectively.               4Of  this amount, $89,876.67  represented restitution to the          City of Pawtucket while  the remainder represented restitution to          other victims.  Savoie does not challenge the latter component of          the restitution order.                                          7          measurements  will  not  preclude  a trial  court  from  ordering          restitution.  See United  States v. Hand, 863 F.2d 1100, 1104 (3d                        ___ ______________    ____          Cir. 1988);  see also S. Rep.  No. 532, 97th Cong.,  2d Sess. 31,                       ___ ____          reprinted in 1982 U.S.C.C.A.N. 2515, 2537 (explaining that "where          _________ __          the  precise amount owed  is difficult  to determine,  [the VWPA]          authorizes  the  court   to  reach  an   expeditious,  reasonable          determination   of   appropriate    restitution   by    resolving          uncertainties  with  a  view  toward achieving  fairness  to  the          victim").                    In this case,  appellant contends that the  restitution          order is invalid because the  court's recapitulation of losses to          victims lacks  an adequate evidentiary foundation.   We disagree.          The  racketeering  count   to  which  appellant   pleaded  guilty          enumerated  twenty-four racketeering  acts.   The  computation of          victim  loss   followed  this   roadmap.    The   district  court          scrutinized  transcripts  of  grand jury  testimony  designed  to          document  the aggregate amount of money involved in each episode.          The  court then attempted to  ascertain how much  of the extorted          money appellant pocketed.5                    To be sure,  reconstructing the tally was  not a black-          and-white proposition.  There were points at which the guideposts          became blurred and shadings  of gray emerged   but on  the whole,          the  available  evidence  was adequate  to  the  task.   In  some          instances, there were  specific percentages or amounts  described                                        ____________________               5We  take  no  view  on  whether,  in  these  circumstances,          restitution  was necessarily  limited  to what  appellant himself          pocketed.                                          8          in the testimony.   In other  instances, the court's  calculation          rested  on  testimony  establishing  the  coconspirators' general          intent  about how  the  spoils  should  be  divided.    In  every          instance, the record  contained, at a  bare minimum, a  plausible          basis   on   which   to   predicate   reasonable   estimates   or          approximations.  No more was exigible.                    Given  the  district  court's   meticulous,  act-by-act          reconstruction of  the amounts extorted, and  the court's founded          estimates of the sums  retained by appellant, we cannot  say that          the court erred in compiling the overall loss amount.6                                        ____________________               6While a complete catalog  of record support for  the victim          loss   calculation  would   trespass   unduly  on   the  reader's          indulgence, we sketch, by way of representative illustration, the          evidence relating to two racketeering acts.                    A.   Act No.  15.  A vendor  testified before the grand                    A.   Act No.  15.                         ___________          jury that he  paid appellant a  ten percent cash kickback  on all          sales  his company made to  the City.   The vendor reported gross          sales  to  the City  of $6,043.62  in  1988, $34,313.53  in 1989,          $40,518.91 in 1990, and  $27,459.85 in 1991.  Because  he stopped          making payments after Sarault  was arrested in June of  1991, the          vendor  estimated that the  kickbacks for that  year were roughly          equivalent  to  five percent  of  annual sales.    This evidence,          coupled with the eminently reasonable assumption that the amounts          in  question  could  otherwise  have  been  subtracted  from  the          inflated prices charged to  the City, provides sufficient support          for  the district  court's $9,460  victim loss calculation.   The          record  also supports  a conclusion  that appellant  retained one          hundred  percent of these kickbacks.   The vendor  stated that he          paid  the money to Savoie, and  other testimony indicates, unlike          in other  instances, that  neither Sarault nor  Simon received  a          dime.                    B.   Act No.  17.  Langlois  told the  grand jury  that                    B.   Act No.  17.                         ___________          appellant asked  him to relay a  message to a  property owner who          wanted a zoning variance.   The message, in  brief, was that  the          owner's "problem"  could be  solved if  the wheels  of government          were  lubricated to the  tune of $5,000.   The owner accepted the          offer, received  the variance, and  paid the  bribe to  Langlois.          Langlois then brought the money to appellant.  Because one of the          ringleaders told the grand jury that "Paul [Savoie] normally took                                          9                    2.  Ability to Pay.  In fashioning a restitution order,                    2.  Ability to Pay.                        ______________          a sentencing court does not function merely as a type of judicial          abacus,  toting  up  the amount  of  loss  and  writing down  the          appropriate  figure.   The court  must also "consider  . .  . 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).   Noting that the court below  made no specific          findings with  regard to these considerations,  appellant asserts          that the restitution  order must fall.   We review this  claim of          legal error de novo.  See St. Cyr, 977 F.2d at 701.                      __ ____   ___ _______                    There has been considerable  debate over when, if ever,          the  VWPA  may  require  a  restitution-ordering  court  to  make          explicit  findings concerning a  defendant's financial condition.          At least four circuits  have held that specific findings  are not          required  in  this  general  context.     See  United  States  v.                                                    ___  ______________          Cannizzaro,  871 F.2d 809,  810-12 (9th Cir.),  cert. denied, 493          __________                                      _____ ______          U.S. 895 (1989);  United States  v. Mahoney, 859  F.2d 47,  49-50                            _____________     _______          (7th Cir. 1988); United States v. Purther, 823 F.2d 965, 969 (6th                           _____________    _______          Cir. 1987);  United States v. Golomb, 811  F.2d 787, 791 (2d Cir.                       _____________    ______          1987).   Five other  circuits, invoking supervisory  powers, have          told  district courts that specific  findings are often needed to          facilitate  appellate review.   See United  States v.  Owens, 901                                          ___ ______________     _____          F.2d 1457, 1459-60 (8th  Cir. 1990);  United States  v. Hairston,                                                _____________     ________                                        ____________________          from 20 [percent]  to a third"  of the payoffs  for himself,  the          district court's finding that appellant received $1,000 from this          act had a sufficient evidentiary predicate.                                          10          888  F.2d 1349,  1352-53  (11th Cir.  1989);   United  States  v.                                                         ______________          Patterson, 837 F.2d 182,  183-84 (5th Cir. 1988);   United States          _________                                           _____________          v. Bruchey, 810 F.2d 456,  459 (4th Cir. 1987); United States  v.             _______                                      _____________          Palma, 760  F.2d 475,  480  (3d Cir.  1985).7   We  have not  yet          _____          spoken to this question.                    To  resolve this  appeal, we  must take only  one small          step along the path.  We rule that a district 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.  After all, the  VWPA itself          demands  no more  than  that the  district  court "consider"  the          factors  enumerated therein.  18  U.S.C.   3664(a).   The statute          makes no mention of  mandatory findings   a circumstance  that we          believe is consistent with Congress's stated desire not unduly to          complicate or  prolong the sentencing process  through the VWPA's          restitutionary  provisions.  See  18 U.S.C.    3663(d).  Whatever                                       ___          may be the rule in a more extreme case   a matter on which  we do          not opine    we believe that  the absence of express  findings is          not fatal in cases in which the record clearly indicates that the                                        ____________________               7The Tenth  Circuit has  sent mixed  signals on this  issue.          After initially  favoring explicit findings, the  court has since          repudiated  the need for such findings and stated that a district          judge only  need consider  the  defendant's financial  condition.          Compare  United States v. Hill,  798 F.2d 402,  406-07 (10th Cir.          _______  _____________    ____          1986)  (requiring   specific  findings)  with  United  States  v.                                                   ____  ______________          Morrison, 938 F.2d  168, 171-72 (10th  Cir. 1991) (not  requiring          ________          specific  findings) and United States v. Rogat, 924 F.2d 983 F.2d                              ___ _____________    _____          983,  986 (10th  Cir.)  (same), cert.  denied,  111 S.  Ct.  1637                                          _____  ______          (1991).                                          11          court gave thought to the requisite factors.                    Here,  we  are  satisfied  that the  court  below  duly          considered the  statutory factors.   The PSI  Report contained  a          lengthy  discussion  of  them.   The  district  court  explicitly          adopted  the PSI  Report's  findings and,  despite the  statutory          burden  placed upon him, see 18 U.S.C.   3664(d), appellant never                                   ___          offered   evidence  suggesting   that  his   financial  condition          constituted a  barrier to  effecting full restitution.   Finally,          the  information  in  the  record   does  not  suggest  that  the          restitution order, payable in installments, is beyond appellant's          reach, given his accessible assets and earning capacity.  In such          circumstances,  there is no basis for  assuming that the district          court  ignored   the  statutory   mandate  by  failing   to  mull          appellant's financial situation.                    3.   The  Civil  Settlement.   The  VWPA provides  that                    3.   The  Civil  Settlement.                         ______________________          courts "shall not impose  restitution with respect to a  loss for          which the victim has received or is to receive compensation."  18          U.S.C.   3663(e)(1).  On July  24, 1992, three days before he was          sentenced,  appellant  signed  an  agreement  with  the  City  of          Pawtucket, settling Pawtucket's  claims against him  for $52,000,          payable over  time.  Appellant  asserts that by  negotiating this          settlement he effectively  fulfilled (or, at least, set a ceiling          on) his restitutionary obligations vis-a-vis  Pawtucket's losses.          We  afford  plenary  review  to  the  web  of  essentially  legal          questions surrounding the settlement agreement's effect.  See St.                                                                    ___ ___          Cyr, 977 F.2d at 701.          ___                                          12                    At the outset, we  remark that the settlement agreement          upon which  appellant relies is  a particularly poor  vehicle for          conferring special treatment:  its scope is limited; its language          skirts  any  admission of  responsibility;8  and  the promise  it          memorializes is, at  present, no  more than that    an  executory          promise to pay.   No money has yet changed  hands and the planned          future payments extend over a protracted period.                    Beyond these  infirmities, the sockdolager is  that the          settlement between  Savoie and the City  concerns potential civil          liability.  But, the sort of  restitution imposed below is not  a          civil  affair; it is a  criminal penalty meant  to have deterrent          and  rehabilitative effects.  See Kelly v. Robinson, 479 U.S. 36,                                        ___ _____    ________          49  & n.10 (1986).  Private parties  cannot simply agree to waive          the  application of a criminal statute.  See, e.g., Hairston, 888                                                   ___  ____  ________          F.2d 1153  (holding that a  civil settlement did  not necessarily          preclude a restitution  order under  the VWPA  because the  penal          purpose of that act was not a litigated issue in the civil case);          United States v. Rico Indus.,  Inc., 854 F.2d 710, 715  (5th Cir.          _____________    __________________          1988) (similar), cert. denied, 489 U.S. 1078 (1989).  Because the                           _____ ______          law will  not tolerate privately  negotiated end runs  around the          criminal  justice system,  we reject  appellant's claim  that the          district court could no longer order him to make restitution.  At                                        ____________________               8By its terms, the settlement is restricted to claims by the          City  arising out  of  "extortion by  Louis  Simon and  Brian  J.          Sarault."  The  agreement recites  that appellant "denies  . .  .          liability and disputes the  legal effect of the  alleged events."          In  turn,  the City  agrees  that the  settlement  "is not  to be          construed as an admission  of responsibility on the part  of Paul          Savoie."                                          13          the  same time  and for  the same  reason, we  reject appellant's          related claim  that the  settlement figure  capped the  amount of          restitution that could be ordered.                    Appellant  also contends  that  the  settlement  amount          should  at least have been  set off against  the district court's          restitution   figure.     The  statute  itself   dispatches  this          contention.   The VWPA  contemplates setting off  amounts already          paid under a restitution order against amounts later recovered in          civil  proceedings.   See 18 U.S.C.    3663(e)(2).   There  is no                                ___          mention  of setoffs operating in the opposite direction.  What is          more, the setoff  provision is based upon  actual payments rather          than promises to pay at some future date(s).                    We  have said  enough.   In the  circumstances  of this          case, appellant has failed to prove that the restitution order is          "with respect to  a loss for which the victim  has received or is          to receive compensation."  18 U.S.C.   3663(e)(1).  The order may          stand.9                                    C.  The Fine.                                    C.  The Fine.                                        ________                    Appellant's  next  foray  implicates  the  fine  levied          against  him.   He asseverates  that, in  imposing the  fine, the          district  court shirked  its  statutory duty.   Appellate  courts          review the imposition of fines under the sentencing guidelines by          resort  to an abuse-of-discretion  rubric.  See  United States v.                                                      ___  _____________                                        ____________________               9This  is not to say,  however, that appellant  must pay the          piper twice.  We see no reason why, in the  circumstances of this          case, any payments made  under the restitution order, so  long as          destined for the City  of Pawtucket, should not also  be credited          against appellant's liability under the settlement agreement.                                          14          Rivera,  971 F.2d  876,  895 (2d  Cir.  1992); United  States  v.          ______                                         ______________          Washington-Williams,  945 F.2d  325, 326  (10th Cir.  1991).   We          ___________________          discern no abuse here.10                      Following Congress's  lead,  see 18  U.S.C.     3553(b)                                                 ___          (1988), the sentencing guidelines provide that the district court          "shall impose a  fine in  all cases, except  where the  defendant          establishes that  he is unable to  pay and is  unlikely to become          able  to  pay any  fine."   U.S.S.G.    5E1.2(a).   We  take this          language to  mean exactly what it says:   under the guidelines, a          fine  is  the  rule     and  it  is  the  defendant's  burden  to          demonstrate that his case is an exception.   See United States v.                                                       ___ _____________          Hickey,  917  F.2d 901,  907 (6th  Cir.  1990); United  States v.          ______                                          ______________          Perez, 871 F.2d  45, 48  (6th Cir.), cert.  denied, 492 U.S.  910          _____                                _____  ______          (1989).  Since appellant offered  no significant evidence on  the          "inability to pay" issue, there is no basis for setting aside the          $7,500  fine    a  fine pegged  at the  nadir  of the  applicable          guideline range for the offense of conviction.                    Appellant's   two   related  arguments   are  similarly          unavailing.  First, the district court's failure to make  express          findings in open court concerning appellant's financial condition          and  prospects does not necessitate reversal.   See, e.g., United                                                          ___  ____  ______          States v. Wilfred American Educ. Corp., 953 F.2d 717, 719-20 (1st          ______    ____________________________          Cir. 1992) (interpreting similar  language in predecessor statute          as neither requiring findings  nor allowing an appellate tribunal                                        ____________________               10Because the claim is meritless, we need not decide whether          appellant  waived  this issue  by failing  to  raise it  below in          sufficient detail.                                          15          to presume that a district court ignored relevant evidence in the          record);  United States v. Pilgrim Market Corp., 944 F.2d 14, 22-                    _____________    ____________________          23 (1st Cir. 1991) (similar).  Second, appellant's assault on the          viability of U.S.S.G.    5E1.2(i) (a guideline dealing with fines          imposed to cover the cost of imprisonment) is a red herring.  The          record contains no indication that the district court imposed the          $7,500 fine pursuant to that provision.                  D.  Compliance with Fed. R. Crim. P. 32(c)(3)(D).                  D.  Compliance with Fed. R. Crim. P. 32(c)(3)(D).                      ____________________________________________                    When a defendant alleges that  a PSI Report contains an          identified  inaccuracy, the  district  court must  either make  a          finding concerning the allegation or make a determination that no          finding  is necessary because the  matter will not  be taken into          account at sentencing.   See Fed. R. Crim.  P. 32(c)(3)(D).   The                                   ___          court must also append a  written record of any such findings  or          determinations  to the PSI Report.  Id.  This protocol serves the                                              ___          dual purpose of protecting the defendant's due process rights and          supplying a  clear record for future  proceedings (say, appellate          review or consideration for parole).  See, e.g., United States v.                                                ___  ____  _____________          Levy,  897  F.2d  596, 599  (1st  Cir.  1990);  United States  v.          ____                                            _____________          Gerante,  891 F.2d  364, 367  (1st Cir.  1989); United  States v.          _______                                         ______________          Bruckman,  874 F.2d 57, 63-64  (1st Cir. 1989).   Accordingly, we          ________          have insisted on  strict compliance  with the rule.   See  United                                                                ___  ______          States  v.  Hanono-Surujun,  914  F.2d  15,  18 (1st  Cir.  1990)          ______      ______________          (collecting cases).                    That  we are  firm  in requiring  compliance with  Rule          32(c)(3)(D) does not mean, however, that we habitually ignore the                                          16          realities of  particular situations or divorce  our consideration          from  the circumstances of actual  cases.  The  opposite is true.          See, e.g., United States v. Santana-Camacho, 931 F.2d 966, 969-70          ___  ____  _____________    _______________          (1st  Cir. 1991); Levy, 897 F.2d at 598-99; Bruckman, 874 F.2d at                            ____                      ________          64-66;  United  States v.  Serino, 835  F.2d  924, 932  (1st Cir.                  ______________     ______          1987).   Thus, the record in a given case may show that the court          has "ma[d]e 'implicit' findings  on disputed factual questions by          accepting  the  government's  recommendations  at  the sentencing          hearing."  United States v. Wells Metal Finishing, Inc., 922 F.2d                     _____________    ___________________________          54, 58 (1st Cir. 1991).                    The  circumstances here  are  analogous to  those  that          confronted  the  Wells court.    The  judge  presented  both  the                           _____          prosecutor and defense counsel with an opportunity to voice their          concerns  anent the  contents  of  the  PSI  Report.    He  heard          arguments  from  both  sides   about  disputed  matters.    After          argument,   the  judge   accepted  the   government's  sentencing          recommendations and  then indicated  in writing,  as part  of the          judgment, that  he had "adopt[ed] the  factual findings . .  . in          the  presentence  report."    We   think  that  this  writing  is          tantamount to  the slightly more  elaborate notation made  by the          judge in Wells, 922 F.2d at 58,  and that the purposes of Rule 32                   _____          were equally served.  The only logically  inferable conclusion is          that the  court rejected each  and all of  appellant's fact-based          challenges to the PSI Report.  See id.; see also United States v.                                         ___ ___  ___ ____ _____________          Cruz, ___ F.2d ___, ___ (1st Cir. 1992) [No. 91-1047, slip op. at          ____                                          17          12-15];  Gerante, 891 F.2d at 367; Bruckman,  874 F.2d at 64.  In                   _______                   ________          short,   the  district   court  made   adequately  particularized          findings,   and   created    a   minimally   sufficient   written          memorialization of those findings,  when it expressly adopted the          facts  as limned in  the PSI Report,  thereby necessarily finding          against appellant on all disputed matters of fact.  Fed. R. Crim.          P. 32(c)(3)(D) was not violated.          III.  CONCLUSION          III.  CONCLUSION                    We need  go no  further.11  Although  appellant parades          a  battery  of  challenges before  us,  none  pass  muster.   The          judgment below must, therefore, be          Affirmed.          Affirmed.          ________                                        ____________________               11Appellant further  hints,  without providing  any  detail,          that the sentencing court may have failed to "state in open court          the reasons  for its  imposition of  the particular  sentence" as          required by 18 U.S.C.   3553(c) (1988).  Read in conjunction with          the  pointed   comments  delivered  by  the   district  court  at          sentencing,  this suggestion  borders on  the frivolous.   At any          rate, we  will not attempt to  fathom what appellant may  have in          mind, for it is our established rule that  "issues adverted to in          a perfunctory  manner, unaccompanied by some  effort at developed          argumentation, are deemed waived."  United States v. Zannino, 895                                              _____________    _______          F.2d 1, 17 (1st Cir.), cert. denied, 494 U.S. 1082 (1990).                                 _____ ______                                          18
