[NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit
No. 98-1291
UNITED STATES,
Appellee,
v.
STEPHEN FRANKLIN BURRELL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Selya, Stahl and Lynch, Circuit Judges.
Stephen Franklin Burrell on brief pro se. Donald K. Stern, United States Attorney, and Ariane D. Vuono, Assistant U.S. Attorney, on brief for appellee.
July 29, 1999
Per Curiam. In this appeal, appellant Stephen Franklin Burrell, acting pro se after having been informed of and electing to waive his right to appellate counsel, claims that the court erroneously sentenced him after he pled guilty to wire and mail fraud and the use of fictitious names and addresses in violation of 18 U.S.C. 1341-43. Finding no merit in his claims, we affirm for the following reasons. 1. We need not consider the claim that the sentencing court should have applied U.S.S.G. 5G1.3(c) at sentencing. Appellant asserted the same claim in his pro se objections to the presentence report. At sentencing, he essentially agreed to abandon his pro se claims and to pursue defense counsel's objections instead. Hence, he has waived his claim. See United States v. Newman, 148 F.3d 871, 878-79 (7th Cir. 1998) (declining to review, as waived, a claim which the sentencing court had not considered at sentencing because defendant had confirmed that there were no remaining contested issues) (citing United States v. Olano, 507 U.S. 725, 733 (1993)); United States v. Gilcrist, 106 F.3d 297, 302 (9th Cir. 1997) (declining to consider an argument made in the defendant's pro se sentencing memorandum where the defendant had agreed to proceeding in a different fashion at sentencing). 2. The case law does not support the appellant's challenges to the court's determination of offense level, which reflected an intended loss amount of $725,826. First, U.S.S.G. 2X1.1(b)(1) did not apply, as the district court correctly concluded. See United States v. Carrington, 96 F.3d 1, 6 (1st Cir. 1996) (rejecting that provision's application to a defendant who pled guilty to wire fraud), cert. denied, 520 U.S. 1150 (1997); accord United States v. Blitz, 151 F.3d 1002, 1011 (9th Cir.) (wire and mail fraud), cert. denied, 119 S. Ct. 567 (1998). Second, the court did not clearly err, let alone plainly err, in setting the intended loss amount at $725,826. Appellant mailed counterfeit checks totaling $725,826 to his intended victims, and he has not disputed that he intended to inflict the maximum possible loss on his victims. In addition, two of his victims sent him gold coins without waiting for the checks to clear, showing that his scheme had some prospect of success. See United States v. Rizzo, 121 F.3d 794, 802-03 (1st Cir. 1997) (affirming a loss figure based on the total amount of counterfeit checks which the defendant had attempted to negotiate where the defendant had admitted intending to inflict a loss in that amount and he had successfully cashed one of the five checks); United States v. Egemonye, 62 F.3d 425, 429 (1st Cir. 1995) ("Where there is good evidence of actual intent and some prospect of success, we do not think that a court needs to engage in more refined forecasts of just how successful the scheme was likely to be.") (citation omitted). Finally, the Sentencing Commission had authority to promulgate the relevant conduct guideline, U.S.S.G. 1B1.3, see United States v. Wong, 2 F.3d 927, 929-30 (9th Cir. 1993) (majority opinion), and the court did not plainly err under the Constitution in basing the loss amount on appellant's unindicted and unconvicted relevant conduct. Appellant admitted his relevant conduct in a letter he wrote to the court after his arrest, and his sentence was within the applicable statutory maximums. See, e.g., United States v. Hillsman, 141 F.3d 777, 780-81 (7th Cir. 1998) (concluding that the consideration of relevant conduct did not violate the Fifth and Sixth Amendments where the conduct was proven by a preponderance of the reliable evidence); United States v. Sanders, 982 F.2d 4, 10 (1st Cir. 1992) (per curiam) (rejecting, where the sentence imposed was within the statutory maximum, a claim that the use of uncharged relevant conduct in departing upward violated the right to a jury trial or to "other procedural protections which would apply had defendant been indicted and tried"). 3. The court did not clearly err in enhancing appellant's offense level for obstruction of justice. First, the falsehoods which appellant told the probation officer about his military service and the related fabricated documents he provided to probation were unquestionably material. See United States v. Agoro, 996 F.2d 1288, 1292 (1st Cir. 1993) (indicating that the materiality requirement encompasses false statements designed to affect the court's exercise of its discretion in choosing the appropriate sentence within the guideline range); United States v. Thomas, 11 F.3d 1392, 1401 (7th Cir. 1993) (holding that facts relating to discharge from military service are material at sentencing); United States v. Neil, 903 F.2d 564, 566 (8th Cir. 1990) (noting that a sentencing court may weigh the defendant's military record in deciding the sentence to be imposed within the applicable guideline range) (citation omitted). Second, we conclude that the court supportably found that appellant's falsehoods were willfully made, although, given the appellant's failure to directly raise the issue at sentencing, the court did not make formal findings on that point. See United States v. Tracy, 36 F.3d 199, 203 (1st Cir. 1994) (indicating that appellate review is possible where the appeals court can ascertain the district court's "ultimate finding" and can find reasonable supporting evidence for it in the record). There was evidence tending to suggest that appellant knew that an exemplary military record might influence the court's sentencing decision. He had extensive experience with the criminal justice system, and he had submitted a "defendant's presentence report" to the probation officer, using that report to convey his falsehoods and fabricated documents.
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[NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit
No. 98-1291
UNITED STATES,
Appellee,
v.
STEPHEN FRANKLIN BURRELL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Selya, Stahl and Lynch, Circuit Judges.
Stephen Franklin Burrell on brief pro se. Donald K. Stern, United States Attorney, and Ariane D. Vuono, Assistant U.S. Attorney, on brief for appellee.
July 29, 1999
Per Curiam. In this appeal, appellant Stephen Franklin Burrell, acting pro se after having been informed of and electing to waive his right to appellate counsel, claims that the court erroneously sentenced him after he pled guilty to wire and mail fraud and the use of fictitious names and addresses in violation of 18 U.S.C. 1341-43. Finding no merit in his claims, we affirm for the following reasons. 1. We need not consider the claim that the sentencing court should have applied U.S.S.G. 5G1.3(c) at sentencing. Appellant asserted the same claim in his pro se objections to the presentence report. At sentencing, he essentially agreed to abandon his pro se claims and to pursue defense counsel's objections instead. Hence, he has waived his claim. See United States v. Newman, 148 F.3d 871, 878-79 (7th Cir. 1998) (declining to review, as waived, a claim which the sentencing court had not considered at sentencing because defendant had confirmed that there were no remaining contested issues) (citing United States v. Olano, 507 U.S. 725, 733 (1993)); United States v. Gilcrist, 106 F.3d 297, 302 (9th Cir. 1997) (declining to consider an argument made in the defendant's pro se sentencing memorandum where the defendant had agreed to proceeding in a different fashion at sentencing). 2. The case law does not support the appellant's challenges to the court's determination of offense level, which reflected an intended loss amount of $725,826. First, U.S.S.G. 2X1.1(b)(1) did not apply, as the district court correctly concluded. See United States v. Carrington, 96 F.3d 1, 6 (1st Cir. 1996) (rejecting that provision's application to a defendant who pled guilty to wire fraud), cert. denied, 520 U.S. 1150 (1997); accord United States v. Blitz, 151 F.3d 1002, 1011 (9th Cir.) (wire and mail fraud), cert. denied, 119 S. Ct. 567 (1998). Second, the court did not clearly err, let alone plainly err, in setting the intended loss amount at $725,826. Appellant mailed counterfeit checks totaling $725,826 to his intended victims, and he has not disputed that he intended to inflict the maximum possible loss on his victims. In addition, two of his victims sent him gold coins without waiting for the checks to clear, showing that his scheme had some prospect of success. See United States v. Rizzo, 121 F.3d 794, 802-03 (1st Cir. 1997) (affirming a loss figure based on the total amount of counterfeit checks which the defendant had attempted to negotiate where the defendant had admitted intending to inflict a loss in that amount and he had successfully cashed one of the five checks); United States v. Egemonye, 62 F.3d 425, 429 (1st Cir. 1995) ("Where there is good evidence of actual intent and some prospect of success, we do not think that a court needs to engage in more refined forecasts of just how successful the scheme was likely to be.") (citation omitted). Finally, the Sentencing Commission had authority to promulgate the relevant conduct guideline, U.S.S.G. 1B1.3, see United States v. Wong, 2 F.3d 927, 929-30 (9th Cir. 1993) (majority opinion), and the court did not plainly err under the Constitution in basing the loss amount on appellant's unindicted and unconvicted relevant conduct. Appellant admitted his relevant conduct in a letter he wrote to the court after his arrest, and his sentence was within the applicable statutory maximums. See, e.g., United States v. Hillsman, 141 F.3d 777, 780-81 (7th Cir. 1998) (concluding that the consideration of relevant conduct did not violate the Fifth and Sixth Amendments where the conduct was proven by a preponderance of the reliable evidence); United States v. Sanders, 982 F.2d 4, 10 (1st Cir. 1992) (per curiam) (rejecting, where the sentence imposed was within the statutory maximum, a claim that the use of uncharged relevant conduct in departing upward violated the right to a jury trial or to "other procedural protections which would apply had defendant been indicted and tried"). 3. The court did not clearly err in enhancing appellant's offense level for obstruction of justice. First, the falsehoods which appellant told the probation officer about his military service and the related fabricated documents he provided to probation were unquestionably material. See United States v. Agoro, 996 F.2d 1288, 1292 (1st Cir. 1993) (indicating that the materiality requirement encompasses false statements designed to affect the court's exercise of its discretion in choosing the appropriate sentence within the guideline range); United States v. Thomas, 11 F.3d 1392, 1401 (7th Cir. 1993) (holding that facts relating to discharge from military service are material at sentencing); United States v. Neil, 903 F.2d 564, 566 (8th Cir. 1990) (noting that a sentencing court may weigh the defendant's military record in deciding the sentence to be imposed within the applicable guideline range) (citation omitted). Second, we conclude that the court supportably found that appellant's falsehoods were willfully made, although, given the appellant's failure to directly raise the issue at sentencing, the court did not make formal findings on that point. See United States v. Tracy, 36 F.3d 199, 203 (1st Cir. 1994) (indicating that appellate review is possible where the appeals court can ascertain the district court's "ultimate finding" and can find reasonable supporting evidence for it in the record). There was evidence tending to suggest that appellant knew that an exemplary military record might influence the court's sentencing decision. He had extensive experience with the criminal justice system, and he had submitted a "defendant's presentence report" to the probation officer, using that report to convey his falsehoods and fabricated documents. Moreover, in ruling on other sentencing issues, the district court had rejected defense arguments contending that the appellant's lies were attributable to his personality disorder and his desire to shield his wife from the truth, and its action finds support in the record. A psychological evaluation suggested that appellant's actions were attributable to his personality disorder rather than to his concern for his wife, but did not conclude that his personality disorder rendered him unable to tell the truth. At sentencing, appellant maintained that he had lived lawfully for nearly three years while on parole, which, he said, showed that he was not "some criminal that can't resist perpetrating a crime." Under the circumstances, we cannot say that the court clearly erred in concluding that the appellant had willfully obstructed justice. See United States v. Greer, 158 F.3d 228, 239 (5th Cir. 1998) (affirming an obstruction enhancement where an expert had testified that the defendant could control his behavior despite his antisocial and borderline personality disorders). 4. The court did not clearly err in denying a reduction in offense level for acceptance of responsibility. Appellant, who relies on events showing his acceptance of responsibility prior to the obstructive conduct evidencing a lack of genuine remorse, failed to show that his was an exceptional case warranting the reduction. See United States v. Thomas, 97 F.3d 1499, 1501 (D.C. Cir. 1996) (noting that admitting to the acts comprising a crime is not the same as accepting responsibility for the crime under the guidelines); see also United States v. Hopper, 27 F.3d 378, 383 (9th Cir. 1994) ("Cases in which obstruction is not inconsistent with an acceptance of responsibility arise when a defendant, although initially attempting to conceal the crime, eventually accepts responsibility for the crime and abandons all attempts to obstruct justice."). 5. There is no record support for the claim that the appellant rendered substantial assistance to the government. In addition, given the absence of critical fact allegations, this court has no basis for reviewing the prosecution's failure to file a substantial assistance motion under U.S.S.G. 5K1.1. See Wade v. United States, 504 U.S. 181, 185-86 (1993) (holding that the government's failure to file a substantial assistance motion might be subject to review if it were based on unconstitutional motives or were not rationally related to any legitimate government end). 6. The district court had no obligation to rule on appellant's various pro se objections. At sentencing, the appellant waived them by acquiescing when the court stated that it did not intend to address any of his pro se objections. Moreover, given appellant's failure to waive his right to counsel or to assert his right to self-representation, the court permissibly declined to address his pro se objections. See United States v. Campbell, 61 F.3d 976, 981 (1st Cir. 1995) (stating that there is no constitutional right to hybrid representation and ruling that the court had appropriately exercised its discretion to deny such representation when it declined to let the defendant cross-examine an expert witness), cert. denied, 517 U.S. 1161 (1996). Affirmed.