Filed: Feb. 13, 1998
Latest Update: Feb. 21, 2020
Summary: and Stahl, Circuit Judge.Donald K. Stern, United States Attorney, was on brief for appellee.Leppo requested a downward departure under U.S.S.G.seriousness of an offense.the court.States v. Vaknin, 112 F.3d 579, 587 (1st Cir.plain error, in the district court s restitution order.
[Not for Publication]
United States Court of Appeals
For the First Circuit
No. 97-1905
UNITED STATES OF AMERICA,
Appellee,
v.
ANDREW P. LEPPO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Torruella, Chief Judge,
Selya, Circuit Judge,
and Stahl, Circuit Judge.
Robert M. Goldstein with whom Leppo & Leppo was on brief for
appellant.
Jeanne M. Kempthorne, Assistant United States Attorney, with whom
Donald K. Stern, United States Attorney, was on brief for appellee.
February 10, 1998
Per Curiam. Andrew Leppo pled guilty to charges
Per Curiam.
that he masterminded several schemes and conspiracies
involving various forms of bank fraud and the sale of
counterfeit computer equipment, in violation of 18 U.S.C.
371 & 2320. The district court sentenced Leppo to 37
months in prison and ordered him to pay some $2.6 million in
restitution to fifteen different victims. On appeal, Leppo
challenges both his sentence and the restitution order. We
affirm.
1. Downward Departure
Leppo requested a downward departure under U.S.S.G.
5K2.13, based on psychiatric testimony that a pathological
gambling compulsion had motivated his crimes. He argues that
the district court refused to depart under 5K2.13 because
it erroneously believed that it lacked authority to do so on
the basis of Leppo s gambling disorder. Contrary to Leppo s
characterization, however, the court explicitly stated at the
sentencing hearing that it did have the discretion to grant
Leppo s requested departure, but that it found the exercise
of such discretion to be inappropriate in this case. We are
without jurisdiction to review the court s discretionary
refusal to depart. See United States v. Rizzo, 121 F.3d 794,
798 (1st Cir. 1997).
Second, Leppo argued below that this case featured
"unusual" mitigating circumstances that placed it outside the
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"heartland" of the applicable guidelines (U.S.S.G. 2B5.3 &
2F1.1), in that the aggregate retail value of his counterfeit
goods -- which was the predicate for a 14-step offense level
enhancement -- had plummeted between the time of the
infringing sales and the time of sentencing. Leppo contends
that the district court misconstrued his argument as a
request for downward departure under U.S.S.G. 2F1.1,
application note 10.
We see no indication that the court failed to
comprehend Leppo s position. It is evident that the district
court, observing that Leppo actually profited from the higher
retail prices prevailing at the time of his offenses, simply
declined to attach any relevance to the post-offense price
fluctuations at issue. The court therefore had no occasion
to consider whether those fluctuations constituted a
"mitigating circumstance" warranting an unguided departure;
obviously, an irrelevant circumstance cannot mitigate the
seriousness of an offense. The court s construction of
Leppo s argument as a request for departure under application
note 10 to 2F1.1 strikes us as a rather charitable
reformulation of Leppo s position, not a misunderstanding of
it. Because the court s denial of Leppo s second departure
request was not based on any legal or factual mistake, that
decision similarly is not subject to our review. See Rizzo,
121 F.3d at 798.
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2. Restitution
Leppo raises two challenges to the restitution
order, both for the first time on appeal. He argues (1) that
the district court failed to evaluate his ability to pay, and
(2) that the order overcompensated one of Leppo s victims,
IBM. We agree with the government that Leppo clearly waived
his first argument, and probably waived the second, by
specifically stating at the disposition hearing that he was
content to "leave any restitution order to the discretion of
the court."
Even if Leppo s second argument was not waived, our
review would be limited to plain error. See United States v.
Mitchell, 85 F.3d 800, 807 (1st Cir. 1996). Leppo suggests
that there is a "substantial risk" that the restitution order
overcompensates IBM because IBM may have recouped some of its
losses, but he fails even to hint at a reasonable estimate of
the amount that IBM actually might have recouped; nor does he
describe any plausible, practical method by which the
district court could have calculated that amount. In any
event, the district court was not required to fix the amount
of its restitution order with absolute precision. See United
States v. Vaknin, 112 F.3d 579, 587 (1st Cir. 1997). Here,
the record clearly reflects that the court undertook a
detailed review of the evidence in calculating the amount of
loss suffered by IBM. Leppo s unsupported assertions fall
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far short of demonstrating any substantial error, much less
plain error, in the district court s restitution order.
Affirmed.
Affirmed.
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