
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            United States Court of Appeals                                For the First Circuit                                 ____________________          No. 96-2350                                    UNITED STATES,                                      Appellee,                                          v.                                    FRANCIS BOOTS,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Stahl, Circuit Judge.                                         _____________                                _____________________               David W. Bate for appellant.               _____________               F. Mark Terison, Assistant United States Attorney, with whom               _______________          Jay  P.  McCloskey,  United  States  Attorney,  and  Margaret  D.          __________________                                   ____________          McGaughey, Assistant  United States  Attorney, were on  brief for          _________          appellee.                                 ____________________                                    June 25, 1997                                 ____________________                    Per  Curiam.   Francis Boots  ("Boots") was  convicted,                    Per  Curiam.                     ___________          following  a jury trial, of conspiracy, in violation of 18 U.S.C.            371, to commit three offenses:                      1)  to devise a  scheme or artifice using                      the  wires  in  interstate commerce  with                      intent to defraud Canada and the Province                      of Nova  Scotia of excise duties  and tax                      revenues,  in  violation  of   18  U.S.C.                        1343; 2) to devise a scheme or artifice                      to   deprive   the   residents   of   the                      Passamaquoddy Reservation in Maine of the                      honest services of their police chief, in                      violation of 18 U.S.C.    1343 and  1346;                      and  3)  to  travel interstate  with  the                      intent  to  facilitate  bribery, a  crime                      under Maine state law, in violation of 18                      U.S.C.   1952.          United States v.  Boots, 80  F.3d 580, 582-83  (1st Cir.),  cert.          _____________     _____                                     _____          denied, 417 S. Ct. 263 (1996) ("Boots I").          ______                          _______                    Following conviction by  the district court, Boots  and          his  co-defendants appealed to this  court.  We  reversed in part          and  remanded for  resentencing.   Id. at  595.  On  November 22,                                             ___          1996,  the  district court  sentenced  Boots  to fourteen  months          imprisonment.  He now appeals the sentence.                    Boots first argues that he was entitled  to a two-point          reduction   in   his   sentencing   level   for   acceptance   of          responsibility.  This issue was reviewed by this court in Boots I                                                                    _______          and,  therefore,  the ruling  in Boots  I  -- which  affirmed the                                           ________          district court's denial of a downward departure for acceptance of          responsibility -- is the law  of the case.  Boots  is, therefore,          precluded from seeking  review of the issue  unless "the evidence          on a  subsequent trial  was substantially  different, controlling          authority has since made a contrary decision of law applicable to                                         -2-          such issues, or the decision was clearly erroneous and would work          an injustice."  Cohen v. Brown Univ., 101 F.3d 155, 168 (1st Cir.                          _____    ___________          1996), cert. denied, 117 S. Ct. 1469 (1997).                 ____________                    Boots  alleges that the  district court's  statement on          remand that  he had been  truthful with  the court was  enough to          allow  reconsideration of  our  earlier decision.   We  disagree.          Although it is true  that the district court commented  on Boots'          truthfulness, this  choice of  words by the  sentencing court  is          insufficient to overcome  the law of  the case doctrine.   As  we          stated in  Cohen v.  Brown  University, "only  a few  exceptional                     _____     _________________          circumstances can  overcome the interests served  by adherence to          the  [law of the case] doctrine and those exceptions are narrowly          circumscribed."   Id.   It  is insufficient  for  appellant Boots                            ___          simply to point  to comments  by the district  court that  differ          from comments made by that court prior to Boots I without showing                                                    _______          that these  comments amount to substantially  different evidence.          As  he has failed  to show that  substantially different evidence          was  presented, we affirm the district court's decision as to the          acceptance of responsibility issue.1                    Boots' second argument is that the district court erred          in imposing a  fourteen month sentence.  He does not dispute that          the  district court correctly calculated  his offense level to be          thirteen,  which implies a  sentence range of  twelve to eighteen                                        ____________________          1   We  add that  even if  we decided  that the  law of  the case          doctrine  did not  apply,  we would  be  required to  affirm  the          district court  decision unless it were  clearly erroneous, which          it is not.  See United States v. Royer, 895 F.2d 28, 30 (1st Cir.                      ___ _____________    _____          1990).                                         -3-          months.    He claims,  however, that  in  choosing a  sentence of          fourteen months,  the court impermissibly considered  tax revenue          loss suffered by Canada.                    As a general  rule, it is  established that this  court          ordinarily  has no jurisdiction  to review a  sentence within the          applicable sentencing guideline range if that range was correctly          determined.  United  States v. Panet-Collazo,  960 F.2d 256,  261                       ______________    _____________          (1st  Cir.  1992).    Since  there  is  no  indication  that  the          sentencing  court's affixation  of  the  fourteen-month term  was          otherwise "in violation of law,"2 18 U.S.C.   3742(a)(1), we lack          jurisdiction to consider this claim.  See United States v. Col n,                                                ___ _____________    _____          884 F.2d 1550 (2d Cir. 1989).                    Affirmed.                    Affirmed                    ________                                        ____________________          2  On plain error review,  we conclude that the district  court's          consideration  of the Canadian  tax revenue loss,  although not a          predicate for wire fraud, see United States v. Boots, 80 F.3d 580                                    ___ _____________    _____          (1st Cir.), cert. denied, 417 S. Ct. 263 (1996), was not improper                      ____________          given that  the  guidelines permit  the  court to  consider  "any          information  . . . unless otherwise prohibited by law."  U.S.S.G.            1B1.4.     We  note  also  that  other  circuits  have  allowed          consideration  of foreign  convictions in  determining sentencing          within the applicable range.   See United States v.  Soliman, 889                                         ___ _____________     _______          F.2d 441  (2d Cir. 1989)  (interpreting United States  v. Tucker,                                                  _____________     ______          404 U.S. 443 (1972)).   See also United States  v. Fleishman, 684                                  ________ _____________     _________          F.2d 1329 (9th Cir. 1982).                                         -4-
