Lombardi v. United States

Opinion

USCA1 Opinion

March 13, 1995
                            [NOT FOR PUBLICATION]
                        UNITED STATES COURT OF APPEALS
                            FOR THE FIRST CIRCUIT

___________________

No. 94-1865

DOMENIC J. LOMBARDI,

                                 Petitioner,

                                      v.

                          UNITED STATES OF AMERICA,

                                 Respondent.

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                 APPEAL FROM THE UNITED STATES DISTRICT COURT

                   FOR THE DISTRICT OF RHODE ISLAND

            [Hon. Raymond J. Pettine, Senior U.S. District Judge]
                                      __________________________

                             ___________________

                                    Before

                           Torruella, Chief Judge,
                                      ___________
                      Boudin and Stahl, Circuit Judges.
                                        ______________

                             ___________________

        Domenic J. Lombardi on brief pro se.
        ___________________
        Sheldon Whitehouse,  United States  Attorney, and  James H.  Leavey,
        __________________                                 ________________
   Assistant United States Attorney, on brief for respondent.

__________________

                              __________________



Per  Curiam.     In  1992,   a  nine-count   superseding
                 ___________

            indictment charged petitioner Domenic Lombardi  with engaging

            in a fraudulent scheme  to collect insurance proceeds through

            arson.   Petitioner  eventually pled guilty  to six  of these

            offenses:  three  counts of  mail  fraud  (and conspiracy  to

            commit same), 18 U.S.C.    1341; two counts of engaging  in a

            monetary  transaction  with criminally  derived  property, 18

            U.S.C.   1957; and one  count of using a fire to  commit mail

            fraud, 18 U.S.C.   844(h).  At sentencing, the district court

            imposed  a 63-month prison term for the first five counts, to

            which  was added  a mandatory, consecutive  60-month sentence

            for  the      844(h)  offense.     On  appeal,   we  affirmed

            petitioner's  sentence in  all  respects.   United States  v.
                                                        _____________

            Lombardi, 5 F.3d 568 (1st Cir. 1993).1
            ________

                 By way of the  instant petition under 28 U.S.C.    2255,

            petitioner  presents  two  new  challenges  to his  sentence.

            Specifically, he  contends that the  court (1)  miscalculated

            his criminal history category and (2) erred in sentencing him

            on  the  basis of  relevant conduct.    He also  advances the

            derivative  claim  that  his trial  and  appellate  attorneys

            rendered ineffective  assistance by  failing to  pursue these

                                
            ____________________

            1.  Petitioner   there  advanced   four  challenges   to  his
            sentence,  arguing that  the  court  had  erred  (1)  in  its
            grouping of offenses, (2) by  declining to depart downward on
            the  basis of his  age and health, (3)  by awarding only two,
            rather than  three, points for acceptance  of responsibility,
            and  (4) by ordering payment  of a fine  and restitution.  We
            found each of these contentions to be without merit.  

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arguments.  We  need not  decide to what  extent such  claims

            might be forfeited, see, e.g., Lopez-Torres v. United States,
                                ___  ____  ____________    _____________

            876 F.2d 4, 5 (1st Cir.),  cert. denied, 493 U.S. 979 (1989),
                                       ____________

            or  might otherwise not be cognizable in a   2255 proceeding,

            see,  e.g., Knight v. United States, 37 F.3d 769, 771-74 (1st
            ___   ____  ______    _____________

            Cir. 1994), inasmuch as we agree with the district court that

            petitioner's contentions are manifestly without merit.  

                 1.  Criminal History Category 
                     _________________________

                 Petitioner's central challenge to the calculation of his

            criminal history category (CHC)  is based on a  misreading of

            the  sentencing  guidelines.   In  determining  the CHC,  the

            district court, inter alia,  awarded one point under U.S.S.G.
                            __________

               4A1.1(c) for  each  of  the  following three  state  court

            convictions: 

                      Attempting   to   obtain  money   under  false
                 pretenses.   Offense committed on February 8, 1974.
                 Petitioner sentenced on  April 27, 1979,  following
                 nolo plea,  to two years probation.   (Violation of
                 probation  on  June  18,  1979;  continued  on same
                 probation.)

                      Violation   of   banking  law   (two  counts).
                 Offenses committed  on June  28, 1976.   Petitioner
                 sentenced  on April 24,  1979, following nolo plea,
                 to two  years probation on each  count, concurrent.
                 (Violation of probation on June 18, 1979; sentenced
                 to thirty days imprisonment.) 

                      Failure  to  return   rental  car.     Offense
                 committed  on   February  23,  1977.     Petitioner
                 sentenced on December 4, 1979, following nolo plea,
                 to $100 fine.

            Petitioner contends that each  of these offenses occurred too

            long ago to be  considered.  Yet the guidelines  provide that

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"[a]ny other prior sentence that was imposed within ten years

            of  the defendant's  commencement of  the instant  offense is

            counted."    U.S.S.G.    4A1.2(e)(2).    Petitioner does  not

            dispute  that the conspiracy to which he pled guilty began in

            1988,  or that  the  substantive offenses  to  which he  pled

            guilty began in January 1989 at the latest.  Accordingly, the

            sentences for each of the above three convictions (which were

            imposed in April  and December  1979, respectively)  occurred

            within the applicable ten-year period.  Petitioner's argument

            to  the contrary mistakenly relies  on the date  when each of

            those  offenses was committed,  rather than on  the date when

            sentencing took place. 

                 Petitioner also asserts that  the conviction for failure

            to return a rental car (with the resulting $100 fine) was too

            trivial   to  be  considered.    He   points  to  U.S.S.G.   

            4A1.2(c)(1), which provides that some fifteen  minor offenses

            that are there listed, "and offenses similar to them," are to

            be  counted only if, inter alia, the sentence therefor was at
                                 __________

            least one year of probation or  thirty days of imprisonment.2

            Yet  his  suggestion  that   the  rental  car  conviction  is

            "similar"  to the  offenses listed  in    4A1.2(c)(1) appears

____________________

            2.  The offenses there specified  include such infractions as
            contempt  of court, gambling,  resisting arrest, prostitution
            and trespassing.

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dubious.3   This argument, in any event, was not raised below

            and so has been waived.   And any error in this  regard would

            plainly have  been harmless.   Unlike more  substantial prior

            sentences for which either  two or three points are  added to

            the CHC, see U.S.S.G.    4A1.1(a)-(b), the guidelines provide
                     ___

            that one point shall  be added for other prior  sentences "up

            to a  total  of 4  points  for this  item,"  id.    4A1.1(c).
                                                         ___

            Included in  petitioner's criminal history are  at least five

            other  convictions that, according  to the presentence report

            (PSR), were eligible for a one-point addition but were not so

            counted because of the four-point maximum.  Accordingly, were

            the rental  car conviction  to be  disregarded, one  of these

            other convictions  would be included in  its stead--such that

            petitioner's CHC would not change.

                 Both of petitioner's  challenges to the CHC  calculation

            thus prove meritless.  It follows that the failure of counsel

            to  pursue   these  matters  cannot   be  deemed  ineffective

            assistance. 

                 2.  Relevant Conduct
                     ________________

                 The  district court increased  petitioner's base offense

            level by eight points under  U.S.S.G.   2F1.1(b)(1), based on

            a determination that the aggregate  losses exceeded $200,000.

                                
            ____________________

            3.  We note, for example,  that (according to the presentence
            report)  petitioner was originally  convicted of such offense
            in  state   district  court  and  sentenced   to  sixty  days
            imprisonment.   Only upon trial de novo in superior court did
            he receive the reduced sanction of a $100 fine.

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In  so  finding, the  court not  only  took into  account the

            losses resulting  from the  offenses of conviction,  but also

            considered  under  the  "relevant  conduct"  provision  of   

            1B1.3(a)   those  losses  stemming  from  some  eleven  other

            instances  of   mail  fraud  in  which  petitioner  allegedly

            participated.  In an abstruse series of arguments, petitioner

            claims that the court erred in this regard.  We disagree.

                 First,  to the  extent petitioner  is alleging  that the

            relevant  conduct provision is  unconstitutional per  se, his

            argument can be summarily rejected.  See, e.g., United States
                                                 ___  ____  _____________

            v. Bennett,  37  F.3d 687,  692-94  (1st Cir.  1994);  United
               _______                                             ______

            States v. Carrozza, 4  F.3d 70, 80-81 (1st Cir.  1993), cert.
            ______    ________                                      _____

            denied,  114 S. Ct. 1644 (1994); United States v. Wright, 873
            ______                           _____________    ______

            F.2d 437, 441 (1st Cir.  1989).  Second, to the extent  he is

            contending that the  evidence was  insufficient to  establish

            his involvement in the other mail frauds, it suffices to note

            that  the district court  was warranted in  accepting as true

            all facts appearing in the PSR to which no objection had been

            voiced.   See, e.g., United States v.  Fox, 889 F.2d 357, 359
                      ___  ____  _____________     ___

            (1st Cir. 1989).  Third, to the extent he is arguing that the

            evidence was  insufficient to  establish that the  other mail

            frauds were "part  of the  same course of  conduct or  common

            scheme or  plan" as  the offenses  of conviction,  U.S.S.G.  

            1B1.3(a)(2),  we  disagree.     Each  of  the  other  frauds,

            involving efforts  to defraud  insurance companies by  use of

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the mails between  1988 and  1990, readily  falls within  the

            scope of those terms.  See id.   1B1.3, comment. (n.9).
                                   ___ ___

                 Fourth,  to  the  extent  petitioner  is  complaining of

            counsel's  failure to  object  to the  consideration of  such

            relevant  conduct, we find no  error.  According  to the PSR,

            petitioner had acknowledged his  involvement in most of those

            other  mail  frauds  to  a confidential  informant,  who  had

            captured  such admissions  on  tape.   In  the face  of  such

            evidence, counsel's  decision  not to  contest these  matters

            (and  thereby risk,  inter alia,  forgoing the  reduction for
                                 __________

            acceptance of  responsibility) was well "within  the range of

            competence demanded of attorneys in criminal cases."  Hill v.
                                                                  ____

            Lockhart,  474   U.S.  52,  56  (1985)   (internal  quotation
            ________

            omitted).  

                 Finally, to  the extent  petitioner is objecting  to the

            consideration of some $12,441 in losses resulting from a mail

            fraud involved in a related prosecution, the PSR specifically

            provided  (in response  to defense counsel's  objection) that

            such losses would be  excluded from that other case  to avoid

            double-counting.   We thus perceive no error.  And again, any

            error in this regard would plainly have been harmless.  Given

            the   grouping   rule  that   was   applied   at  sentencing,

            petitioner's offense level would have remained unchanged even

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if the losses  had not  exceeded $200,000.4   See U.S.S.G.   
                                                          ___

            3D1.4(a);  see also  Lombardi, 5  F.3d at  570.   His overall
                       ________  ________

            restitution   obligation   likewise   would   have   remained

            unaltered.  

                 Affirmed. 
                 _________

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            4.  While the  government has stated (and  petitioner has not
            seriously disputed) that the  losses would have exceeded that
            level even  without including the $12,441  figure, the partly
            ambiguous record  before us  does not permit  confirmation of
            this fact.

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