United States v. Harrison

Opinion

USCA1 Opinion

March 7, 1996         [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


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          No. 95-2009



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                PATRICIA C. HARRISON,



                                Defendant - Appellant.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                   [Hon. Douglas P. Woodlock, U.S. District Judge]
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                                 ____________________



                                        Before



                               Torruella, Chief Judge,
                                          ___________



                            Cyr and Stahl, Circuit Judges.
                                           ______________



                                _____________________



               Samuel  J. Buffone, with whom  Brian S. Chilton  and Ropes &
               __________________             ________________      _______

          Gray were on brief for appellant.
          ____

               Carolyn  Stafford Stein,  Assistant United  States Attorney,
               _______________________

          with whom Donald K.  Stern, United States Attorney, was  on brief
                    ________________

          for appellee.


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TORRUELLA, Chief Judge.   Defendant-Appellant  Patricia
                    TORRUELLA, Chief Judge.
                               ___________



          C.  Harrison  appeals from  the sentence imposed  by the district



          court  after her plea of  guilty to seventy-seven  counts of bank



          fraud in  violation of  18 U.S.C.     1344.1   Appellant, who  is



          currently serving her prison sentence, requests that her sentence



          be vacated and that we remand for resentencing.   For the reasons



          stated below, we affirm the district court's sentence.



                                      BACKGROUND
                                      BACKGROUND
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                    On December 17, 1991, a  federal grand jury returned an



          indictment against  Patricia C. Harrison and  her husband Stephen



          G.  Harrison, charging them with one hundred counts of bank fraud



          in violation of 18 U.S.C.   1344 and with one count of bankruptcy



          fraud  in  violation of  18 U.S.C.     152.   Appellant  moved to



          dismiss  the indictment on  May 18, 1992, on  the ground that the



          bank fraud  counts were  multiplicitous.   Six  months later,  on



          November 16,  1992, the district court  denied Appellant's motion



          and  on  January 12,  1993,  a  federal  grand  jury  returned  a



          superseding indictment, which  merged a number of  the bank fraud



          counts  from  the original  indictment  into a  lesser  number of



          counts.    The  superseding  indictment  alleged  three  separate

                              
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          1  This section provides, in pertinent part:



                      Whoever knowingly executes . . . a scheme

                      or artifice -- (1) to defraud a financial

                      institution;  or (2) to obtain any of the

                      moneys   .   .   .   [of]   a   financial

                      institution,   by   means  of   false  or

                      fraudulent  pretenses .  .  .  [shall  be

                      guilty of a crime].



          18 U.S.C.   1344 (1988) & Supp. II (1990).



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schemes by which  Appellant and her  husband defrauded the  banks



          involved.  On  April 10, 1995, Appellant pled  guilty to seventy-



          seven of the  seventy-nine counts  of bank fraud  charged in  the



          superseding indictment.  



                    In the plea agreement, Appellant acknowledged that  she



          was  subject  to  separate  punishments  of  up  to  five  years'



          imprisonment  on each  of the counts  but one, for  which she was



          subject to  a maximum penalty of  up to thirty years.   Appellant



          also agreed  to pay a  special assessment of  $50 on each  of the



          seventy-seven counts to which she pled guilty.  The  pre-sentence



          report ("PSR") calculated Appellant's offense level in accordance



          with the plea agreement,  with two exceptions, only one  of which



          is relevant to this  appeal.  The PSR calculated  the appropriate



          loss  range  under  U.S.S.G.    2F1.1(b)(1)(K)  to  be  more than



          $5,000,000 because the victim  bank lost principal in the  amount



          of $10,998,072.67.  This differed from  the plea agreement, which



          provided for a loss of between $2-$5 million.  In her pre-hearing



          sentencing memorandum,  Appellant  asked the  district  court  to



          depart  from the applicable guideline range for two reasons:  (i)



          the amount of loss overstated the seriousness of her offense; and



          (ii)  her  husband's  illness.     Apart  from  these  arguments,



          Appellant did not object to the PSR's amount of loss or guideline



          calculation, or to any of the offense conduct detailed in the PSR



          that was the basis for those findings.



                    At  the sentencing hearing,  and after hearing argument



          from  the  parties regarding  the  appropriate  loss amount,  the


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district  court found  the loss  for  purposes of    2F1.1  to be



          between $2-5 million.  In addition, the district court found that



          the total  offense level was  18, with a  corresponding guideline



          sentencing   range  of   twenty-seven  to   thirty-three  months'



          imprisonment.   The  district court  made a  three-level downward



          departure,  on the  basis  of circumstances  surrounding the  ill



          health  of  Appellant's  husband,  bringing the  total  to  level



          fifteen, with  a corresponding  range of eighteen  to twenty-four



          months.  Appellant's total  offense level of fifteen was  made up



          of  the following elements:  a base  offense level of six under  



          2F1.1(a); a ten-level enhancement under   2F1.1(b)(1)  to reflect



          the  amount of loss,  found to be  between $2-$5 million;  a two-



          level  enhancement  for  more   than  minimal  planning  under   



          2F1.1(b)(2)(A); a two-level enhancement for supervising others in



          the commission of the offense under   3B1.1(c); and a three-level



          downward  departure  based  on  the  ill  health  of  Appellant's



          husband.   Combined  with  a  criminal  history  category  of  I,



          Appellant's resulting total offense level was fifteen.  



                    On  August  7,  1995,  the  district  court   sentenced



          Appellant  to  24  months  in  prison  and  ordered  her  to  pay



          restitution  in the amount of $10,998,072.67,  the amount lost by



          the victim bank as  found in the PSR by the  district court.  The



          district  court also imposed  a three  year period  of supervised



          release and a special assessment of $3,850.  



                    This appeal followed.  We have jurisdiction pursuant to



          18 U.S.C.   3742(a) (1994).


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STANDARD OF REVIEW
                                  STANDARD OF REVIEW
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                    We  review   for  clear  error  factbound   matters  in



          sentencing,  mindful  that such  factual  findings  need only  be



          supported  by a preponderance of the evidence, and review de novo
                                                                    _______



          questions  of  law, including  the  applicability  of a  relevant



          guideline.   United  States v.  Mart nez-Mart nez, 69  F.3d 1215,
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          1224 (1st Cir. 1995).



                                      DISCUSSION
                                      DISCUSSION
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                    Appellant entered into an unconditional plea agreement,



          whereby she agreed to plead guilty to the seventy-seven counts of



          bank  fraud, to subject herself to separate punishment on each of



          these counts, and to  pay a special  assessment on each of  those



          counts.  Appellant does not challenge her conviction but, rather,



          challenges the sentence imposed by the district court.  Appellant



          contends that the seventy-seven counts of bank fraud are facially



          multiplicitous  because the  superseding indictment  supports, at



          most, only three counts of bank fraud.  See,  e.g., United States
                                                  ___   ____  _____________



          v. Broce,  488 U.S. 563,  574 (1989) (establishing  the principle
             _____



          that  a  defendant who  pleads guilty  to  a criminal  charge may



          subsequently assert  a claim of multiple  punishment in violation



          of the Double Jeopardy  Clause only if the violation  is apparent



          on  the face of the  indictment itself); United  States v. Lilly,
                                                   ______________    _____



          983  F.2d 300, 302-04 (1st Cir. 1992) (holding that an indictment



          for bank fraud is multiplicitous when it charges a defendant with



          multiple counts for each "single execution of a unitary scheme").



          Because  the seventy-seven counts  were multiplicitous, Appellant


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argues,  she was prejudiced in  the view of  the sentencing court



          and her sentence violates Double Jeopardy principles. 



                    While our review  of the  district court's  application



          and  interpretation  of  the  Sentencing  Guidelines is  plenary,



          Mart nez-Mart nez, 69 F.3d at  1224, "[w]e have repeatedly stated
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          in the sentencing context, as well as in other areas, that issues



          not presented to the district court will not be addressed for the



          first time  on appeal."  United States v. Haggert, 980 F.2d 8, 10
                                   _____________    _______



          (1st  Cir.  1992).   We have  also  stated that  "[a]rguments not



          raised below will  be entertained on  appeal only in  'horrendous



          cases where a gross  miscarriage of justice would occur'  and, in



          addition, where  the newly asserted  ground 'is so  compelling as



          virtually to insure appellant's success.'"  Id. (quoting Johnston
                                                      ___          ________



          v. Holiday Inns, 595 F.2d 890, 894 (1st Cir. 1979)).  Here, these
             ____________



          straightforward rules  leave Appellant's  sails flapping  idly in



          the wind.



                    Although "a defendant's unconditional guilty  plea does



          not automatically waive  the right to appeal  matters incident to



          sentencing  as opposed  to guilt," United  States v.  Cordero, 42
                                             ______________     _______



          F.3d 697,  699 (1st Cir.  1994), we nonetheless  find Appellant's



          multiplicity  argument waived.  Even though  she only raises this



          argument  as to her sentencing, we find controlling the fact that



          Appellant had ample opportunity to challenge the sentence imposed



          and raise her multiplicity  argument as to sentencing before  the



          district court.  


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The record before us clearly shows that Appellant never



          objected  on  grounds of  multiplicity  or  raised this  argument



          during the  change of plea  hearing, in her  pre-hearing sentence



          memorandum, or during the sentencing hearing.  The PSR calculated



          Appellant's  offense level to  be twenty-one.   Appellant did not



          file  any objections to the PSR.  In her pre-sentence memorandum,



          Appellant argued on  two grounds that  the district court  depart



          from the  applicable guideline  sentencing range, but  neither of



          them concerned the  multiplicity of the counts.   Indeed, besides



          supporting a finding of Appellant's failure to object, the record



          shows  that  the  district  court  specifically drew  Appellant's



          attention  to  the  government's  evidence  regarding  the counts



          charged, pointed out the portion of the agreement identifying the



          maximum  penalties to which  defendant could  be subject  on each



          count,  and   notified  Appellant  of  the   possibility  of  the



          imposition of restitution.  



                    Appellant insists, however, that  she did not waive her



          multiplicity challenge, arguing that  it was preserved for appeal



          because she  challenged the original  indictment on  multiplicity



          grounds.    Appellant  relies  on two  cases,  United  States  v.
                                                         ______________



          Molinaro, 11 F.3d 853, 858 n.9 (9th Cir. 1993), cert. denied, 115
          ________                                        ____________



          S. Ct. 668  (1994), and United States  v. Fuesting, 845 F.2d  664
                                  _____________     ________



          (7th Cir. 1988), for the proposition that she was not required to



          challenge the superseding indictment  after her motion to dismiss



          the  original indictment was  denied.   We need  not rule  on the



          merit  of   Appellant's  argument,  because   what  controls   is


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Appellant's  subsequent  act  of  voluntarily  and  intelligently



          pleading  guilty to  all seventy-seven  counts, coupled  with her



          failure  to make any objection to  the superseding indictment, to



          the seventy-seven counts, to the offense conduct contained in the



          PSR, or  to the sentence imposed.   Thus, we decline  to consider



          this argument.2  



                    Appellant also argues that  the district court's  fraud



          loss  calculation was  erroneous under    2F1.1(b)(1)(K),   which



          increases  the level  of punishment  according to  the amount  of



          "loss" caused by  the fraud.   We find,  however, that  Appellant



          waived  any claim  of error  in the  court's calculation  of loss



          under   2F1.1,  because no objection was made  to the accuracy of



          the facts set forth in the offense conduct section of the PSR, to



          the amount  of  loss found  by  the  district court,  or  to  the



          district court's guideline calculation.  Because Appellant failed



          to  object to the district court's determination as to the amount



          of loss  for purposes of   2F1.1, her sentence can be reversed on



          this basis  only upon a  showing of "plain  error."  See  Fed. R.
                                                               ___



          Crim. P.  52(b).3  To  meet the  plain error standard  there must

                              
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          2   We note that  even if the  counts were multiplicitous, remand

          for  resentencing would not be an  appropriate remedy.  Appellant

          received identical sentences on each of the seventy-seven counts,

          and it is undisputed that all of the offense conduct that was the

          basis  for   those  sentences   would  be  equally   relevant  to

          resentencing on the remaining  counts.  Accordingly, remand would

          be an  empty and needless exercise.   See Lilly, 983  F.2d at 305
                                                ___ _____

          n.11. 



          3  This rule provides, in pertinent part, that "[p]lain errors or

          defects affecting substantial rights may be noticed although they

          were not brought to the  attention of the court."  Fed.  R. Crim.

          P. 52(b).



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be:  (i) a reviewable error (ii) that is "clear" or "obvious" and



          (iii) affects  "substantial rights."  United  States v. Benjamin,
                                                ______________    ________



          30 F.3d 196,  197 (1st Cir. 1994).  We  retain the discretion not



          to correct an  error, however plain, unless the error "'seriously



          affect[s]  the  fairness,  integrity  or  public  reputation   of



          judicial proceedings.'"   United States  v. Olano, ___  U.S. ___,
                                    _____________     _____



          ___,  113  S. Ct.  1770, 1779  (1993)  (quoting United  States v.
                                                          ______________



          Atkinson, 297  U.S.  157,  160  (1936));  see  United  States  v.
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          Olivier-D az,  13  F.3d  1,  5  (1st  Cir.  1993)  (quoting  same
          ____________



          language). 



                    Far from constituting plain error, the district court's



          finding  as to  the  amount of  loss attributable  to Appellant's



          conduct under   2F1.1(b)(1)(K) was fully supported by the record.



          The PSR  found  that the  actual  loss  to the  victim  bank  was



          $10,998,072.67  in principal  and  $7,858,292.69  in interest  on



          Appellant's  loan.    At the  hearing,  the  court was  therefore



          prepared  to adopt the PSR's determination that loss for purposes



          of   2F1.1 was more than $5,000,000.  According to the transcript



          of the  sentencing hearing, the district court  adopted the lower



          $2,000,000  to $5,000,000  loss range  "in light  of the  need to



          calibrate  the loss  attributable to  [Appellant's]  actions more



          fairly."  Contrary to Appellant's claim, nowhere in our review of



          the  record do  we find  any evidence  that the  district court's



          finding  was based  on  "speculation."    We  note  further  that



          Appellant fully conceded  the accuracy  of these  figures at  her

                              
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change of plea hearing  and at sentencing.  Accordingly,  we find



          no "clear"  or "obvious" error by the district court.  Even if we



          were  to find any,  there is no  evidence that  the alleged error



          affected her "substantial rights" or her sentence. 



                    Finally, Appellant argues that the district court erred



          in ordering restitution under 18 U.S.C.   3664, which establishes



          the factors to be considered by the court in determining an order



          of restitution,  in  excess  of  $10  million,  an  amount  which



          exceeded the loss range  used by the district court  for purposes



          of   2F1.1.   We find, however,  that Appellant waived  her claim



          regarding the restitution  order because she failed  to object to



          the  PSR's  calculation  of  the  victim  bank's  actual loss  as



          $10,998,072.67  in  principal, to  the  PSR's determination  that



          restitution  in that amount  was appropriate, or  to the district



          court's  order of restitution in that amount.  As with the amount



          of  loss, we  can reverse  the restitution  order only  for plain



          error.  Olivier-D az, 13 F.3d at 5.  Appellant conceded below and
                  ____________



          does  not deny  on  appeal  that the  actual  amount of  loss  in



          principal  to the  victim  bank was  in  excess of  $10  million.



          Accordingly, the  district court's  order of restitution  in that



          amount was fully appropriate, and, because it is  fully supported



          by the  record, it does not  constitute plain error.   We find no



          evidence  of  harm to  Appellant's  "substantial  rights" by  the



          district court's  decision to hold Appellant  responsible for the



          entire loss resulting from her fraud.  


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For the foregoing reasons,  the sentence imposed by the



          district court is Affirmed.
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