United States v. Benjamin

• Court: Court of Appeals for the First Circuit
• Decided: July 13, 1994
• Docket: 93-1694
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

          No. 93-1694

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                   ROBERT BENJAMIN,

                                Defendant - Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                       [Hon. Mark L. Wolf, U.S. District Judge]
                                           ___________________

                                 ____________________

                                        Before

                              Torruella, Cyr and Stahl,

                                   Circuit Judges.
                                   ______________

                                _____________________

               Theodore Lawrence  Craft, with  whom Robert Benjamin  pro se
               ________________________             _______________
          was on brief for appellant.
               Paul G.  Levenson,  Assistant United  States Attorney,  with
               _________________
          whom  Donald K. Stern, United  States Attorney, was  on brief for
                _______________
          appellee.

____________________

                                    July 13, 1994
                                 ____________________

TORRUELLA, Circuit Judge.   Robert Benjamin appeals his
                               _____________

          sentence  and order to pay restitution after  he pled guilty to a

          single count  of interstate transportation of  stolen property in

          violation of 18 U.S.C.   2314.

                                      BACKGROUND
                                      BACKGROUND
                                      __________

                    In 1985,  Stanley Sreda  ("Sreda"),  a retired  farmer,

          hired Robert Benjamin ("Benjamin"),  a self-employed advisor  and

          tax  accountant, to  manage  Sreda's  investments and  authorized

          Benjamin  to buy and sell  securities on Sreda's  behalf.  During

          the  course  of their  business relationship,  Benjamin embezzled

          substantial sums  of money  from Sreda.   After  Sreda discovered

          that Benjamin  had embezzled money  from him, Sreda  and Benjamin

          entered into a civil agreement ("the Agreement") whereby Benjamin

          conveyed his personal residence and land to Sreda.

                    The  Agreement  stipulated  that Sreda  would  put  the

          property, which was heavily mortgaged, up for sale to recover the

          money  which Benjamin  had  embezzled.   The  bank which  held  a

          mortgage  on  the  property,  however, foreclosed  and  took  the

          property.   According to Benjamin, Sreda, who  owned the property

          subject to the mortgage, took no actions to sell the property nor

          made  any payments  on the  mortgage.   Sreda then filed  a civil

          action to recover the money embezzled.  Benjamin defaulted in the

          civil action.

                    In  this  case,  the  government filed  an  Information

          charging Benjamin with  interstate transportation of  $460,449.85

          in  embezzled monies.  Benjamin  pled guilty to  the charge.  The

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pre-sentence report  ("PSR") calculated the actual  loss suffered

          by Sreda  to be $665,943, consisting  of $460,449.85 attributable

          to  13 checks  that Benjamin  wrongfully converted  and $205,494,

          discovered  after the  plea, attributable  to bearer  bonds which

          Benjamin fraudulently redeemed.

                    Following the Sentencing Guidelines, the district court

          found Benjamin  to have  an offense  level of 17  and a  criminal

          history category  of 1, calling for a sentence of 24 to 30 months

          incarceration and 24  to 36  months of supervised  release.   The

          court based its  calculation of  the total offense  level on  the

          $460,000 loss alleged in the  indictment, plus an additional loss

          of $205,000 which it counted as "relevant conduct" under U.S.S.G.

            1B1.3.   The district  court sentenced Benjamin  to 30  months'

          incarceration followed by 36 months  of supervised release.   The

          district  court   also  ordered  Benjamin  to   pay  $460,000  in

          restitution.

                    On  appeal,  Benjamin contends  that  (1)  the district

          court's  calculation  of  his  offense level  was  excessive  and

          improper; (2) the district court erred in including the  $205,000

          not  included in  the indictment  in its  calculation of  loss in

          determining "relevant  conduct" for  purposes of sentencing;  (3)

          the sentence was wrongfully inconsistent with the plea agreement;

          and  (4) the district court  abused its discretion  by failing to

          mitigate its  restitution order in  light of the  civil agreement

          between Benjamin and Sreda.

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DISCUSSION
                                      DISCUSSION
                                      __________

                    Benjamin's first contention has no merit.  The sentence

          imposed  was   the  result  of  a   straightforward  and  correct

          application  of  the  Sentencing  Guidelines  and   Benjamin  has

          articulated no  reason  why it  should be  deemed "excessive"  or

          "improper."

                    Of the  remaining issues  raised by Benjamin,  the only

          issue preserved for appeal is whether the district court erred by

          failing   to   mitigate   restitution.     Benjamin's   remaining

          contentions were not argued before the district court below  and,

          absent exceptional circumstances, they  will not be addressed for

          the first time  on appeal.  United States v.  Curzi, 867 F.2d 36,
                                      _____________     _____

          44 (1st Cir. 1989);  see also United States v. Shattuck, 961 F.2d
                               ________ _____________    ________

          1012,  1015  (1st  Cir.  1992) ("[w]e  do  not  review sentencing

          guideline disputes  which were not preserved  before the district

          court") (citation omitted).

                    At  sentencing, counsel for  Benjamin acknowledged that

          he  had read  the PSR and  expressly waived any  challenge to the

          factual  accuracy of  the PSR.   Counsel  also conceded  that the

          correct  amount for  calculating  loss for  purposes of  relevant

          conduct  at sentencing  was  $665,000 as  stated  in the  report.

          Benjamin  is  bound  by  these  findings  because  on  appeal,  a

          defendant  may not challenge  the findings in  his PSR if  he has

          failed to object to  that report in the  district court.   United
                                                                     ______

          States v. Haggert, 980 F.2d 8, 11 (1st  Cir. 1992) (citing United
          ______    _______                                          ______

          States v. Fox, 889 F.2d 357, 359 (1st Cir. 1989)).
          ______    ___

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We can reverse Benjamin's  sentence based on claims not

          raised  below, only for "plain error."  United States v. Olivier-
                                                  _____________    ________

          D az, 13  F.3d  1, 5  (1st  Cir.  1993).   Benjamin  has  failed,
          ____

          however, to persuade us that such error took place.   To meet the

          plain  error standard there must  be: (1) a  reviewable error (2)

          that  is  "clear"  or  "obvious"  and  (3)  affects  "substantial

          rights."  Id.  
                    __

                    There is no plain error in this case because this court

          has  previously entertained  and  rejected  the same  substantive

          arguments presently made by  Benjamin.  In United States  v. Fox,
                                                     _____________     ___

          889 F.2d 357, 350-61 (1st Cir. 1989),  we rejected a challenge to

          the district court's consideration of "relevant conduct" that had

          been set forth  in a PSR, but  that was not part  of the specific

          offense to which defendant had pled guilty.  In the present case,

          the district  court correctly considered  Benjamin's embezzlement

          of  the additional  $205,000 stated  in the  PSR as  a factor  in

          determining  the  guideline range  under  U.S.S.G.    1B1.3,  the

          "relevant conduct" provision.

                    Our  review   of  the  transcript   confirms  that  the

          government  met  its obligations  under  the  plea agreement  and

          Benjamin  concedes that  there  was no  bad  faith or  breach  of

          promise  by the  government.   The agreement  indicated  that the

          district  court  was not  bound by  the  agreement and  might not

          follow  the   parties'  guidelines  calculations   or  sentencing

          recommendations.    Yet,  Benjamin  contends  that   the  court's

          consideration, in determining his  sentence, of the $205,000 loss

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not charged in the Information violated the plea agreement.    In

          Fox, we rejected the contention that the court's consideration of
          ___

          such "relevant conduct" in  sentencing violated due process where

          a pre-sentence  investigation  subsequent to  the plea  agreement

          between the  defendant and the United  States revealed additional

          information relevant to sentencing.  Fox, 889 F.2d at 362-63; see
                                               ___                      ___

          also  United States  v. Oyegbola,  961 F.2d  11, 14-15  (1st Cir.
          ____  _____________     ________

          1992), cert.  denied, 113  S. Ct.  47 (U.S.  1992) (there  was no
                 _____  ______

          breach  of  plea  agreement  where  subsequent  investigation  by

          Probation  Department  revealed  additional   relevant  conduct).

          Because  Fox  and Oyegbola  control  this  case and  because  the
                   ___      ________

          district court's  rulings were a  straightforward application  of

          the guidelines to the uncontested factual findings of the PSR, we

          find no plain error.

                                  RESTITUTION ORDER
                                  RESTITUTION ORDER
                                  _________________

                    The  district  court  has  considerable  discretion  in

          framing a restitution order.   United States v. Lombardi,  5 F.3d
                                         _____________    ________

          568, 573 (1st Cir. 1993).

                    Benjamin maintains that the property tendered to  Sreda

          could  have been  sold  for a  considerable  amount of  money  in

          mitigation  of Sreda's loss.  In essence, Benjamin argues that it

          is unfair to  require him to restore  the victim's loss a  second

          time  where the  victim's own  negligence in  failing to  put the

          property up  for sale  prior to  foreclosure  contributed to  the

          loss.

                    While  this  argument  is  somewhat  appealing,  we are

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unable to find any error, much less an abuse of discretion,  with

          the district court's order of restitution in this case.

                    Title  18  U.S.C.,  section  3664(a),  establishes  the

          factors to be considered  by the court in determining  whether to

          order restitution:

                      The court . . . shall consider the amount
                      of the loss sustained  by any victim as a
                      result  of  the  offense,  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.

                    In  formulating  its  restitution order,  the  district

          court considered the appropriate factors.  The court acknowledged

          the amount  of loss suffered by  the victim:   $460,000 caused by

          the  offense  conduct  charged  as well  as  $205,000  caused  by

          Benjamin's relevant  conduct.   The  court limited  its order  of

          restitution  to  $460,000, correctly  noting  that  it could  not

          "properly take  into account the  amount of the  relevant conduct

          for the purposes of  restitution."  See Hughey v.  United States,
                                              ___ ______     _____________

          495  U.S.  411,  420 (1990)  ("the  loss  caused  by the  conduct

          underlying the offense of conviction establishes the outer limits

          of a restitution  order").1  The  district court also  considered

          Benjamin's financial ability to make restitution, stating:
                              
          ____________________

          1   Section 3663 was amended on November 29, 1990, to allow broad
          restitution  for offenses  involving "as an  element a  scheme, a
          conspiracy, or a pattern of criminal activity."  Pub. L. No. 101-
          647,    2509, 104 Stat. 4789,  4863 (Crime Control Act  of 1990);
          United States v. Cronin, 990 F.2d 663, 666 (1st Cir. 1993).  That
          _____________    ______
          amendment does  not apply here,  however, because the  offense of
          conviction did not  include a  plan, scheme or  conspiracy as  an
          element of the offense.

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I have  ordered you to make  the $460,000
                      restitution.  And, if you can, you  will;
                      and  if you  can't, at  the end  of three
                      years  you  will   be  relieved  of   the
                      obligation.   But, frankly, while  I have
                      been  told all  the money  went  into the
                      house,   I  guess  I  haven't  seen  that
                      proven.   And, perhaps  you will  win the
                      lottery.   And  if  you do,  Mr.  [Sreda]
                      should be a beneficiary of that as well.

                    The district  court was aware of  Benjamin's attempt to

          make restitution by conveying  his house and land  to Sreda.   At

          sentencing,  the government contended that  Sreda did not get any

          money  out of  the property.   There was  no evidence  before the

          court  as to what amount of restitution might have been available

          had  the  property been  sold.   The district  court specifically

          asked Benjamin  whether he had an appraisal of the property as of

          the date it was tendered.  Benjamin responded that he did not and

          he failed to present other evidence showing the full value of the

          house  and  land when  they  were  tendered.   In  light of  this

          evidentiary void,  even if the  district court had  considered it

          appropriate to reduce  the amount of  restitution to account  for

          Benjamin's previous attempt to repay Sreda and  any negligence on

          behalf  of Sreda, it would have been virtually impossible for the

          district court to  quantify these factors.   The district  court,

          therefore, simply had  no basis to reduce the  restitution order.

          Thus,  we  conclude that  the district  court  did not  abuse its

          discretion  in basing its order  of restitution on  the amount of

          loss suffered by Sreda.

                    Affirmed.
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