Concemi v. United States

Opinion

USCA1 Opinion

[NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT
                                 ____________________

No. 93-1357 

                                  SAMUEL J. CONCEMI,

                                Petitioner, Appellant,

                                          v.

                              UNITED STATES OF AMERICA,

                                Respondent, Appellee.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. A. David Mazzone, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                                Cyr, Boudin and Stahl,
                                   Circuit Judges.
                                   ______________

                                 ____________________

            Samuel J. Concemi on brief pro se.
            _________________
            A.  John Pappalardo,  United States  Attorney, Deborah  M.  Smith,
            ___________________                            __________________
        Director, New England Bank Fraud Task Force, and Paul J. Andrews, U.S.
                                                         _______________
        Department of Justice, on brief for appellee.

____________________

                                   January 10, 1994
                                 ____________________

Per  Curiam.    The  district   court's  denial  of
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            appellant Samuel Concemi's motion to vacate sentence under 28

            U.S.C.     2255 is  affirmed  substantially  for the  reasons

            stated in  the district court's December  11, 1992 memorandum

            and order.

                      Ten of the claims advanced by Concemi in his   2255

            petition  were dismissed by the  district court on the ground

            that  they "were either  directly addressed  by the  Court of

            Appeals [in  Concemi's  direct appeal  from  his  conviction,

            United  States v. Concemi, 957  F.2d 942 (1st  Cir. 1992)] or
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            were  matters considered to  be within the  discretion of the

            trial court."  We note that four of these ten claims were not

            expressly  dealt with  by this court  in Concemi.  These four
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            claims, nevertheless,  were properly subject to  dismissal on

            other grounds.

                      These four,  related  claims were  as follows:  (1)

            that the sentencing judge erred by denying  without a hearing

            Concemi's motion that the court determine relative degrees of

            culpability  of  all  the  defendants  convicted  in  various

            independent  cases -- not  just Concemi's case  -- of similar

            fraud involving  ComFed; (2) that the  sentencing judge erred

            by  failing to find Concemi a minimal or minor participant in

            the conspiracy;  (3) that  the disparity in  sentence between

            Concemi  and his  two  co-defendants violated  the sentencing

            guidelines; and  (4) that  the disparity in  sentence between

Concemi  and  all   the  defendants   convicted  in   various

            independent cases of similar fraud involving  ComFed violated

            the sentencing guidelines.

                      The first two of  these claims are not specifically

            pressed  in Concemi's  brief  on appeal  and are  accordingly

            waived.  United States  v. Michaud, 925 F.2d 37, 43  n.8 (1st
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            Cir. 1991).  In any event, as the government points out, this

            court in  Concemi, after reviewing the  evidence presented at
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            trial, stated  that "the  mutual cooperation of  Concemi" and

            his two co-defendants "was essential in  order to execute the

            scheme  to  use secondary  mortgages  and  conceal them  from

            ComFed."  Id. at  950.  Given Concemi's "essential"  role, it
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            was  certainly  not clear  error  for the  district  court to

            conclude that Concemi had played more than a minimal or minor

            role in the offense.  

                      Concemi argued in his   2255 petition that his role

            was  nevertheless minimal  or minor  relative to  the larger,

            overall series of frauds involving ComFed, most of which were

            not  at  issue in  Concemi's trial.    We have  already held,

            however, in another case involving fraud against ComFed, that

            a  defendant's  role  in  the offense  under  the  sentencing

            guidelines must  be determined with regard  to the particular

            offenses for  which the  defendant is charged  and sentenced,

            whatever may be the defendant's relative role in  some "wider

            web  of  fraud" that  extends  well  beyond  the  offense  of

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conviction.  United  States v.  Gregorio, 956  F.2d 341,  344
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            (1st Cir. 1992).

                      Given  these  considerations, the  sentencing judge

            certainly did  not abuse his discretion in  declining to hold

            an evidentiary hearing on these matters.

                      Concemi's  objection  to   the  alleged   disparity

            between  his sentence and others'  sentences is meritless.  A

            sentence  that is valid on its own terms under the sentencing

            guidelines remains valid without regard to  sentences imposed

            on  other defendants in the case, or in other cases, that are

            alleged to be  inconsistent.  United States v.  Figueroa, 976
                                          _____________     ________

            F.2d 1446,  1460 (1st  Cir. 1992)  (quoting United  States v.
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            Wogan, 938 F.2d 1446,  1448 (1st Cir.), cert. denied,  112 S.
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            Ct.  441  (1991))  ("Even   a  'perceived  need  to  equalize

            sentencing  outcomes  for  similarly  situated  codefendants,

            without more,  will not  permit a  departure from a  properly

            calculated  guideline sentencing range'"),  cert. denied, 113
                                                        ____________

            S. Ct.  1346 (1993); United States v. Panet-Collazo, 960 F.2d
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            256, 261  (1st Cir.) (notwithstanding defendant's  claim of a

            vindictive   disparity  in   sentencing  vis-a-vis   his  co-

            defendant,  "we have  no appellate  jurisdiction to  review a

            sentence within the applicable sentencing guidelines range if

            that range  was correctly determined"), cert.  denied, 113 S.
                                                    _____________

            Ct. 220 (1992).  This court, furthermore, already has upheld,

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against other challenges,  the guideline sentence imposed  on

            Concemi.  Concemi, supra, 957 F.2d at 952-53.
                      _______  _____

                      In his brief on appeal, Concemi also objects to the

            sentencing  judge's  upward  adjustment  for  obstruction  of

            justice.  Concemi's    2255 petition, however,  did not raise

            this point.  We will not consider it in the first instance on

            appeal.  Isabel v.  United States, 980  F.2d 60, 61 n.1  (1st
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            Cir. 1992).  

                      Concemi does not, in his brief on appeal, object to

            the  district  court's denial  of  his two  motions  to amend

            judgment.   The  second  motion to  amend judgment,  however,

            raised  a new  claim  for relief  under    2255 that  was not

            contained  in  Concemi's original     2255  motion.   Concemi

            alleged that the indictment against him was multiplicitous in

            that it charged him  with seventeen counts of bank  fraud and

            seventeen counts  of making  false statements to  a federally

            insured  bank.  According  to Concemi,  all of  the seventeen

            separate  acts were  merely  part  of  one  grand  scheme  to

            defraud, so  Concemi properly should have  been indicted only

            on  one count of  bank fraud  and one  count of  making false

            statements.   Concemi  does   argue  in  his brief  that  the

            district court erred in dismissing this additional claim.

                      Concemi's   position  lacks  any   merit.    First,

            Concemi's second  motion to  amend judgment was  not properly

            before  the district  court because  it was  untimely, having

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been filed on January 23, 1993, more than ten  days after the

            district court's  December 14,  1992 judgment.   See Fed.  R.
                                                             ___

            Civ. P.  59(e) (a motion to  alter or amend judgment  must be

            served  within ten days after  entry of judgment).   We agree

            with the  government that,  Concemi's original    2255 motion

            having already  been rejected,  Concemi should  properly have

            brought any additional    2255 claims in a successive    2255

            motion, rather than "under the  guise of a late-filed  motion

            to amend judgment."

                      Even were  we to  disregard these objections  -- as

            well as  Concemi's  failure to  raise  this claim  on  direct

            appeal -- we see no merit to the claim in any event.  Concemi

            relies  on United  States v.  Lilly, 983  F.2d 300  (1st Cir.
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            1992), in  which we found multiplicitous  an indictment which

            charged the defendant with over twenty counts of  bank fraud,

            even though the  over twenty separate  acts of fraud  alleged

            were all directed to defrauding  a single bank in  connection

            with a single loan.  We concluded that the facts of that case

            were "more comfortably categorized as a single execution of a

            scheme rather than as  twenty-some-odd separate executions of

            a scheme."   Id. at 303.   In the instant  case, by contrast,
                         __

            Concemi was charged with defrauding ComFed in connection with

            seventeen  separate  loans.   In  that  context, framing  the

            indictment  in terms of seventeen separate  acts of fraud was

            entirely logical and not multiplicitous.

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The district court's denial of  Concemi's motion to

            vacate sentence under 28 U.S.C.   2255 is affirmed.
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