United States v. Scarpaci

Opinion

USCA1 Opinion

[NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                                     
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No. 93-1892
                              UNITED STATES OF AMERICA,

                                 Plaintiff, Appellee,

                                          v.

                                   GUY J. SCARPACI,

                                Defendant, Appellant.

                                                     
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No. 93-2222
                              UNITED STATES OF AMERICA,

                                 Plaintiff, Appellee,

                                          v.

                                 ROBERT M. GAWLOWICZ,

                                Defendant, Appellant.

                                                     
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APPEALS FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. Joseph L. Tauro, U.S. District Judge]
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                            Cyr and Stahl, Circuit Judges,
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                           and Zobel,* U.S. District Judge.
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             *Of the District of Massachusetts, sitting by designation.


Robert E. Kenney for appellant Scarpaci.
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             Willie J. Davis for appellant Gawlowicz.
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             Peter  A. Mullin,  Assistant  United States  Attorney, with  whom
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        Donald  K.  Stern, United  States  Attorney,  and Dennis  C.  Mahoney,
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        Special Assistant United States Attorney, were on brief for appellee.

                                                     
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                                   August 17, 1994
                                                     
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2


Per Curiam.   Appellants  Guy Scarpaci and  Robert Gaw-
                    Per Curiam
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          lowicz challenge  the sentences  imposed following  their convic-

          tions  on fraud  charges.   Scarpaci  contends that  the district

          court improperly  enhanced his  sentence for obstruction  of jus-

          tice.  Gawlowicz claims that  the court mistakenly believed  that

          it  lacked authority  to  depart below  the Guideline  Sentencing

          Range  (GSR).  Finding no  merit in their  contentions, we affirm

          the district court judgments.

                    Scarpaci  and  Gawlowicz  were associated  with  United

          States Funding  (USF), a  mortgage  broker which  was engaged  in

          finding  and  providing  mortgage  financing  for   USF  clients.

          Scarpaci  founded USF and served as its president and sole stock-

          holder throughout its  existence.  Gawlowicz was employed by USF.

          USF  engaged in various  types of fraud:   falsifying information

          pertaining to  the financial condition of borrowers and the value

          of their collateral; paying  kickbacks to an officer of  a finan-

          cial institution which purchased  loans from USF; preparing false

          financial statements  relating to USF itself;  and kiting checks.

          Scarpaci was involved in all aspects of USF's fraudulent  activi-

          ties.  Gawlowicz helped prepare numerous false appraisals for use

          by USF.  

                    On  appeal,  Scarpaci challenges  the  two-point upward

          adjustment  imposed for  obstructing justice.   See  U.S.S.G.   -
                                                          ___

          3C1.1.1    Although  Scarpaci  concedes  that  USF  records  were
                              
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               1Scarpaci  has withdrawn  a  claim that  the district  court
          erred in combining upward adjustments under U.S.S.G.    2F1.1(b)-
          (2) (more than minimal planning) and U.S.S.G.   3B1.1(a) (manage-

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destroyed, he argues that  there was no proper basis  for finding

          that he  caused their  destruction with  intent to  obstruct jus-

          tice.2  We  review the  sentencing court's findings  of fact  for

          clear error.   United States v.  Figaro, 935 F.2d 4,  8 (1st Cir.
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          1991).  

                    The  presentence  report  (PSR)  states  that  Scarpaci

          instructed Stephen Wilson  to destroy USF  documents in order  to

          impede the  criminal investigation.  Scarpaci  did not contradict

          this proposed PSR finding,  but merely responded that he  had "no

          present recollection" of such an instruction.  Thus, the district

          court finding that Scarpaci obstructed justice was supportable on

          uncontroverted information related in the PSR.  See United States
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          v.  Blanco, 888  F.2d 907,  908-09 (1st  Cir.  1989) (defendant's
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          failure to dispute truth of  statement provided proper basis  for

          finding).

                    Gawlowicz  attempts to  challenge the  district court's

          decision not to depart below the GSR.  Unless  the district court

          misapprehended its  authority to make such  a departure, however,

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          rial  role in offense).  See United  States v. Lilly, 13 F.3d 15,
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          17-18  (1st Cir.  1994) (holding  these adjustments  not mutually
          exclusive).

               2Scarpaci  further  argues that  there  could  have been  no
          obstruction of  justice because the information  in the destroyed
          USF records was readily obtainable by the government, and that he
          did  not give  instructions  to destroy  the  documents with  the
          intent of obstructing any investigation.  Aside from the problem-
          atic assumptions  upon which these claims  are premised, Scarpaci
          neglected to surface either contention before the district court.
          As neither  argument was  raised below, both  are deemed  waived.
          United States v. Dietz, 950 F.2d 50, 55 (1st Cir. 1991).
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we have no jurisdiction to review its departure decision.  United
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          States v. Romolo, 937 F.2d 20, 22 (1st Cir. 1991).
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                    Gawlowicz cited three alleged grounds for the departure

          request:  his minimal role in the offense, the need to "equalize"

          sentences among codefendants, and  economic duress.  Although the

          court approved  a  four-point  downward  adjustment  pursuant  to

          U.S.S.G.   3B1.2, due to Gawlowicz' minimal  role in the offense,

          it declined to depart below the  GSR.  Gawlowicz insists that the

          court's comments  at sentencing evince a  misunderstanding of its

          authority,  under United States v. Rivera, 994 F.2d 942 (1st Cir.
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          1993), to depart downward:

                    THE COURT:  Let  me say this:  I  don't think
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                    as  a matter of law that I can [depart] here.
                    If I  am wrong  and you  want to appeal  that
                    point, maybe I  will get  some guidance  from
                    you on appeal.  I think as a  matter of law I
                    may not do what you suggest.

          The sentencing  hearing transcript  as a whole  reveals, however,

          that  the court  fully  appreciated the  bounds of  its departure

          authority  but concluded that departure  was not warranted in the

          circumstances of  this  case.3   The  court was  conversant  with
                              
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               3In rejecting the departure request, the court stated:

                    I  don't  think this  is  that  kind of  cir-
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                    cumstance.  There are cases that go the other
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                    way  that are quite specific  . . .   But, on
                    the  other hand,  there  is always  a ray  of
                    light.  I don't see that in this case . . . I
                            _ _____ ___ ____ __ ____ ____
                    have Riviera [sic] . . .  I thought it was an
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                    excellent  opinion, and  it provides  us with
                    more  guidance than  we have  had up  to this
                    point, and  if more  is coming, that  is very
                    well.

          (Emphasis added.)

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Rivera  and related case law, as well  as the Guidelines.  Two of
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          the grounds upon  which Gawlowicz based his  departure request   

          equalization of  sentences and  economic duress     are forbidden
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          grounds  for departure.   See  United States  v. Wogan,  938 F.2d
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          1446, 1448 (1st Cir.) ("a  perceived need to equalize  sentencing

          [among defendants] .  . .  will not permit  a departure"),  cert.
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          denied, 112  S. Ct. 441 (1991); Rivera, 994 F.2d at 949 (personal
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          financial difficulties do not permit departure).  Thus, the court

          correctly perceived  that a downward departure  was not permitted

          in  these circumstances.  See  United States v.  LeBlanc, 24 F.3d
                                    ___  _____________     _______

          340, 348  (1st Cir. 1994).4   Consequently, we  lack jurisdiction

          to  entertain a challenge to the  district court decision denying

          the request for a downward departure.

                    Affirmed.
                    Affirmed.
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               4We  think it clear also  that a downward  departure was not
          warranted based  solely on Gawlowicz's  minimal role  in the  of-
          fense, as  the  court reflected  this  factor in  its  four-point
          downward adjustment under U.S.S.G.   3B1.2.

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