United States v. Springer

Opinion

USCA1 Opinion

United States Court of Appeals
                            United States Court of Appeals
                                For the First Circuit
                                For the First Circuit
                                 ____________________

        No. 93-1642

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                  JEFFREY SPRINGER,

                                Defendant, Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

                     [Hon. Ernest C. Torres, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                                 Breyer,* Chief Judge,
                                          ___________
                          Boudin and Stahl, Circuit Judges.
                                            ______________

                                 ____________________

            Michael  C. Bourbeau,  by  Appointment  of the  Court,  with  whom
            ____________________
        Bourbeau and Bourbeau was on brief for appellant.
        _____________________
            Margaret E.  Curran, Assistant United  States Attorney,  with whom
            ___________________
        Edwin J.  Gale,  United States  Attorney,  and Ira  Belkin,  Assistant
        ______________                                 ___________
        United States Attorney, were on brief for appellee.
                                 ____________________

                                     July 7, 1994
                                 ____________________
        _____________________
        *Chief Judge Stephen Breyer heard oral argument in this matter but did
        not  participate  in the  drafting  or  the  issuance of  the  panel's
        opinion.   The remaining  two panelists therefore  issue this  opinion
        pursuant to 28 U.S.C.   46(d).

STAHL, Circuit Judge.  Jeffrey Springer appeals the
                             _____________

            sentence imposed  after he  pled guilty,  pursuant to  a plea

            agreement, to one count of wire fraud, 18  U.S.C.   1343, and

            one  count of bank fraud,  18 U.S.C.    1344.  Springer makes

            three arguments, none of which was presented to  the district

            court  in the  first instance:   1)  that the  district court

            erred in granting him only  a two-level, rather than a three-

            level,  acceptance   of  responsibility   reduction  in   his

            sentencing  guidelines offense level;  2) that the  court did

            not  adequately consider his  financial circumstances when it

            ordered him to pay $1,018,347  in restitution; and 3) that he

            received  ineffective  assistance  of   counsel  because  his

            attorney failed  to object to  either the court's  failure to

            award  him   a  three-level   reduction  for   acceptance  of

            responsibility or to  the restitution order.   The government

            says  that we  need  not  consider  these  questions  because

            Springer  waived his  right to  appeal  as part  of his  plea

            agreement.  Because we discern no plain error in the relevant

            decisions  made by the  district court, see  United States v.
                                                    ___  _____________

            Cabrozza, 4 F.3d 70, 84 (1st Cir. 1993), cert. denied, 114 S.
            ________                                 _____ ______

            Ct. 1644 (1994),  we need not address this  issue, and affirm

            defendant's sentence.

                                          I.
                                          I.
                                          __

                             Acceptance of Responsibility
                             Acceptance of Responsibility
                             ____________________________

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Springer  was sentenced in  May 1993.   Pursuant to

            the November 1992  version of the Guidelines  (the version in

            effect  at the  time of his  sentencing), the  district court

            looked to the 1988 version  of the Guidelines (the version in

            effect at the time Springer committed his crime) to calculate

            Springer's sentence.   It did this because application of the

            1992 version would have resulted in Springer receiving a more

            severe sentence than he could have anticipated at the time of

            his crime, see U.S.S.G.   1B1.11(b)(1) (Nov. 1992) (directing
                       ___

            courts  to  use Guidelines  in  effect  at  time offense  was

            committed if Guidelines in effect at time of sentencing would

            violate the Constitution's ex post facto Clause).  As part of
                                       __ ____ _____

            the  calculation of  Springer's sentence,  the  court granted

            Springer the two-level downward  adjustment for acceptance of

            responsibility  available  under  the  1988  version  of  the

            Guidelines.  See U.S.S.G.    3E1.1 (Nov. 1988).  Springer now
                         ___

            argues  that the  district  court erred  because  it did  not

            consider granting him a three-level reduction for  acceptance

            of responsibility, the maximum adjustment available under the

            1992  version of  the  Guidelines.   U.S.S.G.    3E1.1  (Nov.

            1992).

                      The  district court  correctly looked  to the  1988

            Guidelines in  determining the  maximum permissible  downward

            adjustment for Springer's acceptance of responsibility.   The

            1992 Guidelines  set forth what  has been referred to  as the

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"one  book" rule.   See U.S.S.G.    1B1.11(b)(2) (Nov. 1992).
                                ___

            This  provision instructs  the district  court  that when  it

            looks to an earlier version  of the Guidelines to calculate a

            sentence, it must apply all of the Guidelines in that earlier
                                    ___

            version.  It  provides that a court  cannot "apply . .  . one

            section from one edition .  . . and another guideline section

            from a different edition."  Id.
                                        ___

                      There  is no doubt that Springer received a lighter

            sentence  under  the  1988  Guidelines  than  he  would  have

            received  under the 1992  version.  For  Springer's purposes,

            there  was one important difference between the two versions:

            under the  1988  Guidelines,  Springer's  offense  level  was

            increased by nine levels to account for the $1.8 million loss

            he caused,  while under the  1992 Guidelines, that  same loss

            would  have resulted  in a  twelve-level  increase.   Compare
                                                                  _______

            U.S.S.G.     2F1.1(b)(1)(J)  (Nov.  1988)   with  U.S.S.G.   
                                                        ____

            2F1.1(b)(1)(M) (Nov. 1992).  This difference meant that, even

            with   a    three-level   reduction    for   acceptance    of

            responsibility,  Springer's  applicable  guideline sentencing

            range  under the  1992 Guidelines  would have  been 24  to 30

            months.  Under  the 1988 Guidelines,  however, with the  two-

            level reduction for  acceptance of responsibility, Springer's

            sentencing range was 18 to 24 months.1

____________________

            1.  Springer was  sentenced to 18  months in prison,  the low
            end of the Guideline.

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Springer  advances  three  reasons  why  the  court

            should  not have  applied the  "one book"  rule, but  instead

            should  have   given  him  the  benefit  of   both  the  1992

            Guidelines'  acceptance of  responsibility provision  and the

            1988 Guidelines' smaller increase for amount of loss.  First,

            he says  that the "one  book" guideline was not  in effect at

            the time of  his offense and that its  application here would

            violate the ex post facto Clause.   U.S. Const. Art. I,    9.
                        __ ____ _____

            This is simply incorrect.   The ex post facto Clause "forbids
                                            __ ____ _____

            the  imposition of punishment more severe than the punishment

            assigned  by  law when  the  act  to be  punished  occurred."

            Weaver v. Graham, 450 U.S. 24, 28  (1981).  By looking to the
            ______    ______

            1988  Guidelines,  the  district   court  imposed  the   very

            punishment provided for by law at the time Springer committed

            the act for which he was being punished.

                      Springer's second argument is no more availing.  He

            argues that, by statute, he is entitled to the benefit of the

            pre-sentence modifications  of the Guidelines.   He construes

            18 U.S.C.   3553(a)(4), which directs the sentencing court to

            "consider  . . . the  Guidelines . . .  that are in effect on

            the   date  the   defendant  is   sentenced,"  as   requiring

            application of the  November 1992 version of  the "acceptance

            of    responsibility"   provision.       However,    Springer

            misunderstands the  process  by which  the  sentencing  court

            calculated his sentence.  The sentencing court  did apply the
                                                            ___

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November  1992 Guidelines.   It was the  1992 Guidelines that

            instructed the court  to look to the  1988 Guidelines because

            of ex  post facto  concerns, and it  was the  1992 Guidelines
               __  ____ _____

            that instructed the court to apply the "one book" rule and to

            look  to  the  1988  Guidelines  in  order  to determine  the

            appropriate  reduction  for   acceptance  of  responsibility.

            Thus,  the  sentencing  court  acted  in  accordance  with   

            3553(a)(4).   See  also 18  U.S.C.    3553(a)(5)  (Sentencing
                          ___  ____

            court should "consider . . . any pertinent policy statement .

            . . that is in effect on the date defendant is sentenced.").

                      Springer's third argument is that if the "one book"

            rule applies, he will be treated differently than other  1988

            offenders  sentenced   after  the   1992  amendment  to   the

            acceptance  of   responsibility  provision  (or,   at  least,

            differently  than  those  for whom  application  of  the 1992

            guidelines  does not create  ex post  facto concerns).   This

            argument is  a red  herring.  What  matters is  that Springer

            will be treated the same  as all those convicted of  the same
                            ___ ____     ___

            offense at  the  same  time,  regardless  of  when  they  are

            sentenced.  This is consistent  with the concerns of Congress

            and  the Guidelines'  goal of  uniformity.   Cf. 18  U.S.C.  
                                                         ___

            3553(a)(6) (Sentencing court should "consider  . . . the need

            to avoid unwarranted sentence disparities  among defendants .

            . . who have been found guilty of similar conduct.").

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                                          6

Accordingly, we do not discern any error, let alone

            any plain  error, in  the district  court's failure  to award

            Springer   a   three-level   reduction   for  acceptance   of

            responsibility.

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II.
                                         II.
                                         ___

                                  Restitution Order
                                  Restitution Order
                                  _________________

                      As   a   condition  of   supervised   release,  the

            sentencing  court  ordered  Springer  to  pay  restitution of

            $1,018,347  to the  bank  from which  Springer had  secured a

            construction loan  in the  amount of  $1,460,000 (using as  a

            basis  for  his  credit worthiness  fraudulent  personal  tax

            returns).   Springer argues that the sentencing court did not

            sufficiently consider  his ability  to pay  restitution.   We

            disagree.

                      In  fashioning a  restitution  order, a  court must

            consider "the  financial  resources  of  the  defendant,  the

            financial needs  and earning  ability of  the defendant,  and

            such  other factors  as  the court  deems  appropriate."   18

            U.S.C.   3664(a).  The  court need not make specific findings

            respecting these  considerations as  long as  "the record  on

            appeal  reveals  that  the judge  made  implicit  findings or

            otherwise  adequately  evinced  his  consideration  of  the[]

            factors [listed in  18 U.S.C.   3664(a)]."   United States v.
                                                         _____________

            Savoie, 985 F.2d 612, 618 (1st Cir. 1993).
            ______

                      Here,  it   appears  that   the  sentencing   court

            sufficiently considered these factors.  Springer says that he

            was a  college  dropout  with  a sporadic  work  history,  no

            assets,  and  more  than $900,000  in  liabilities,  and thus

            clearly  unable  to  pay  over  $1  million  in  restitution.

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However, the  sentencing court  had all  of this  information

            before it in  the pre-sentence investigation report  ("PSR").

            Moreover,  it explicitly  adopted the  PSR's  findings.   Cf.
                                                                      ___

            Savoie,  985 F.2d  at 619.   Furthermore,  at the  sentencing
            ______

            hearing,  the  court  made  the  following  comments  on  the

            restitution order:

                           You   have    a   very    large
                           restitution obligation and  the
                           Court -- you  don't really have
                           much assets now.  The Court has
                           no doubt that at some point you
                           probably will.

            This statement by the court does not reflect "the possibility

            of an unforeseen  windfall," as Springer suggests.   Instead,

            we construe it  as evincing a firm belief, on the part of the

            district court, that Springer eventually will be able to meet

            his obligation.    This is  consistent  with the  many  other

            statements made by the court  to the effect that Springer was

            a  talented  individual   who  could  be  successful   if  he

            redirected his energies to lawful  activities.  In fact, this

            sanguine view  of Springer's  future was  the primary  reason

            given by the court for sentencing Springer at  the low end of

            the Guideline range.

                      It  appears  that  the  sentencing  court  had  the

            relevant information before it and considered the appropriate

            factors  in  making  its  restitution  order.    No  more  is

            required.   Cf. United  States v. Brandon,  17 F.3d  409, 461
                        ___ ______________    _______

            (1st Cir.)  ($500,000 restitution  order upheld  for indigent

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defendant  who had prospect of future inheritance and ability

            to  obtain  gainful employment),  petition  for  cert. filed,
                                              ________  ___  _____ _____

            ___U.S.L.W.___ (June 13, 1994) (No. 93-2001).2

                      Accordingly, we find no plain error in the district

            court's restitution order.

                                         III.
                                         III.
                                         ____

                          Ineffective Assistance of Counsel
                          Ineffective Assistance of Counsel
                          _________________________________

                      Springer  argues   that  he   received  ineffective

            assistance of counsel because his attorney  did not raise the

            issue  of the  court's failure  to  consider the  three-level

            reduction for  acceptance of responsibility  and because  his

            attorney did  not protest the size of  the restitution order.

            Because Springer was not entitled to a three-level reduction,

            his  attorney cannot  be  blamed for  not raising  the issue.

            Insofar as the failure to object to the restitution order may

            give  rise to an  ineffective assistance  claim, we  will, in

            accordance with  our usual practice, not entertain it for the

            first time  on direct appeal.  This is because the claim here

            would require  us  to go  beyond  the sentencing  record  and

            consider such things  as sentencing counsel's strategy.   See
                                                                      ___

            United States v. Beasley, 12 F.3d 280, 285 (1st Cir. 1993).
            _____________    _______

____________________

            2.  If the  court's restitution  order,  the satisfaction  of
            which is a  condition of Springer's supervised  release, does
            turn out to be unreasonably onerous, we see no reason why the
            district  court cannot,  in the  future, modify  it.   See 18
                                                                   ___
            U.S.C.   3663(g).

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IV.
                                         IV.
                                         ___

                                      Conclusion
                                      Conclusion
                                      __________

                      For the reasons stated above, we  affirm Springer's

            sentence.

                      Affirmed.
                      _________

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