
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          Nos. 97-1681               97-1682                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                FRANK RICHARD MERLINO,                                Defendant, Appellant.                              _________________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                   [Hon. Steven J. McAuliffe, U.S. District Judge]                                              ___________________                              _________________________                                        Before                          Selya and Boudin, Circuit Judges,                                            ______________                          and Dowd,* Senior District Judge.                                     _____________________                              _________________________               Bjorn Lange, Assistant Federal Defender, for appellant.               ___________               Jean  B. Weld, Assistant  United States Attorney,  with whom               _____________          Paul M.  Gagnon, United  States Attorney, was  on brief,  for the          _______________          United States.                              _________________________                                  November 12, 1997                              _________________________          _______________          *Of the Northern District of Ohio, sitting by designation.                    Per Curiam.   In these  sentencing appeals    there are                    Per Curiam.                    __________          two, but they  may for practical purposes be treated  as a single          unit    defendant-appellant Frank Richard Merlino  challenges the          district  court's use of  an upward  departure under  USSG  4A1.3          (Nov. 1992).   By order dated  October 9,  1997, we directed  the          district court to file a  written report amplifying the basis for          the extent of the  departure.  The court  promptly complied.   We          then  afforded   the  parties  an  opportunity  for  supplemental          briefing.                    We have  carefully examined  the record,  including but          not  limited  to   the  presentence  investigation  report,   the          transcript  of the sentencing  hearing, and the  district court's          supplementary  report of its  departure findings.   We  have also          studied the  parties'  briefs,  entertained  oral  argument,  and          consulted  the  applicable  legal   authorities.    This   review          persuades  us beyond serious question that the district court had          both a solid factual basis for concluding that Merlino's criminal          history score  substantially underrepresented  his criminal  past          and  a sound legal  basis for the ensuing  upward departure.  See                                                                        ___          United States  v. Brewster, No.  97-1448, slip op. at  16-18 (1st          _____________     ________          Cir. Oct.  2, 1997)  (describing requirements  for invoking  USSG           4A1.3); United States v. Black, 78 F.3d 1, 9-10 (1st Cir. 1996);                   _____________    _____          United  States  v. Aymelek,  926  F.2d  64,  73 (1st  Cir.  1991)          ______________     _______          (similar).  Our review also  convinces us that the district court          followed the proper protocol and  did not abuse its discretion in          determining the  extent of the  departure.  See  Brewster, supra,                                                      ___  ________  _____                                          2          slip op. at 20-23 (discussing reasonableness requirement for such          departures); United States v. Hardy, 99 F.3d 1242, 1253 (1st Cir.                       _____________    _____          1996) (similar).                    Because these determinations  are heavily influenced by          the particular facts  of Merlino's case, we  do not think that  a          detailed discussion would serve a  useful purpose.  From the very          inception of the federal sentencing guidelines, we have cautioned          that "[s]entencing appeals  prosecuted . . . in  the tenuous hope          that lightning may strike ought not to be dignified with exegetic          opinions, intricate factual synthesis, or full-dress explications          of accepted legal principles."  United States v. Ruiz-Garcia, 886                                          _____________    ___________          F.2d 474, 477 (1st Cir. 1989).  We then wrote, in words that have          particular pertinence  today:  "Assuredly,  a criminal  defendant          deserves his  day in  court;  but we  see no  purpose in  wasting          overtaxed judicial resources razing castles in the air."  Id.                                                                    ___                    We need go no  further.  This case   which  presents no          fairly  debatable question     is a  paradigmatic  example of  an          instance in which summary disposition is appropriate.          Affirmed.  See Loc. R. 27.1.          Affirmed.  See Loc. R. 27.1.          ________   ___                                          3
