USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1357
SAMUEL J. CONCEMI,
Petitioner, Appellant,
v.
UNITED STATES OF AMERICA,
Respondent, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
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Before
Cyr, Boudin and Stahl,
Circuit Judges.
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Samuel J. Concemi on brief pro se.
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A. John Pappalardo, United States Attorney, Deborah M. Smith,
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Director, New England Bank Fraud Task Force, and Paul J. Andrews, U.S.
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Department of Justice, on brief for appellee.
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January 10, 1994
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Per Curiam. The district court's denial of
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appellant Samuel Concemi's motion to vacate sentence under 28
U.S.C. 2255 is affirmed substantially for the reasons
stated in the district court's December 11, 1992 memorandum
and order.
Ten of the claims advanced by Concemi in his 2255
petition were dismissed by the district court on the ground
that they "were either directly addressed by the Court of
Appeals [in Concemi's direct appeal from his conviction,
United States v. Concemi, 957 F.2d 942 (1st Cir. 1992)] or
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were matters considered to be within the discretion of the
trial court." We note that four of these ten claims were not
expressly dealt with by this court in Concemi. These four
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claims, nevertheless, were properly subject to dismissal on
other grounds.
These four, related claims were as follows: (1)
that the sentencing judge erred by denying without a hearing
Concemi's motion that the court determine relative degrees of
culpability of all the defendants convicted in various
independent cases -- not just Concemi's case -- of similar
fraud involving ComFed; (2) that the sentencing judge erred
by failing to find Concemi a minimal or minor participant in
the conspiracy; (3) that the disparity in sentence between
Concemi and his two co-defendants violated the sentencing
guidelines; and (4) that the disparity in sentence between
Concemi and all the defendants convicted in various
independent cases of similar fraud involving ComFed violated
the sentencing guidelines.
The first two of these claims are not specifically
pressed in Concemi's brief on appeal and are accordingly
waived. United States v. Michaud, 925 F.2d 37, 43 n.8 (1st
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Cir. 1991). In any event, as the government points out, this
court in Concemi, after reviewing the evidence presented at
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trial, stated that "the mutual cooperation of Concemi" and
his two co-defendants "was essential in order to execute the
scheme to use secondary mortgages and conceal them from
ComFed." Id. at 950. Given Concemi's "essential" role, it
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was certainly not clear error for the district court to
conclude that Concemi had played more than a minimal or minor
role in the offense.
Concemi argued in his 2255 petition that his role
was nevertheless minimal or minor relative to the larger,
overall series of frauds involving ComFed, most of which were
not at issue in Concemi's trial. We have already held,
however, in another case involving fraud against ComFed, that
a defendant's role in the offense under the sentencing
guidelines must be determined with regard to the particular
offenses for which the defendant is charged and sentenced,
whatever may be the defendant's relative role in some "wider
web of fraud" that extends well beyond the offense of
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conviction. United States v. Gregorio, 956 F.2d 341, 344
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(1st Cir. 1992).
Given these considerations, the sentencing judge
certainly did not abuse his discretion in declining to hold
an evidentiary hearing on these matters.
Concemi's objection to the alleged disparity
between his sentence and others' sentences is meritless. A
sentence that is valid on its own terms under the sentencing
guidelines remains valid without regard to sentences imposed
on other defendants in the case, or in other cases, that are
alleged to be inconsistent. United States v. Figueroa, 976
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F.2d 1446, 1460 (1st Cir. 1992) (quoting United States v.
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Wogan, 938 F.2d 1446, 1448 (1st Cir.), cert. denied, 112 S.
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Ct. 441 (1991)) ("Even a 'perceived need to equalize
sentencing outcomes for similarly situated codefendants,
without more, will not permit a departure from a properly
calculated guideline sentencing range'"), cert. denied, 113
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S. Ct. 1346 (1993); United States v. Panet-Collazo, 960 F.2d
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256, 261 (1st Cir.) (notwithstanding defendant's claim of a
vindictive disparity in sentencing vis-a-vis his co-
defendant, "we have no appellate jurisdiction to review a
sentence within the applicable sentencing guidelines range if
that range was correctly determined"), cert. denied, 113 S.
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Ct. 220 (1992). This court, furthermore, already has upheld,
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against other challenges, the guideline sentence imposed on
Concemi. Concemi, supra, 957 F.2d at 952-53.
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In his brief on appeal, Concemi also objects to the
sentencing judge's upward adjustment for obstruction of
justice. Concemi's 2255 petition, however, did not raise
this point. We will not consider it in the first instance on
appeal. Isabel v. United States, 980 F.2d 60, 61 n.1 (1st
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Cir. 1992).
Concemi does not, in his brief on appeal, object to
the district court's denial of his two motions to amend
judgment. The second motion to amend judgment, however,
raised a new claim for relief under 2255 that was not
contained in Concemi's original 2255 motion. Concemi
alleged that the indictment against him was multiplicitous in
that it charged him with seventeen counts of bank fraud and
seventeen counts of making false statements to a federally
insured bank. According to Concemi, all of the seventeen
separate acts were merely part of one grand scheme to
defraud, so Concemi properly should have been indicted only
on one count of bank fraud and one count of making false
statements. Concemi does argue in his brief that the
district court erred in dismissing this additional claim.
Concemi's position lacks any merit. First,
Concemi's second motion to amend judgment was not properly
before the district court because it was untimely, having
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been filed on January 23, 1993, more than ten days after the
district court's December 14, 1992 judgment. See Fed. R.
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Civ. P. 59(e) (a motion to alter or amend judgment must be
served within ten days after entry of judgment). We agree
with the government that, Concemi's original 2255 motion
having already been rejected, Concemi should properly have
brought any additional 2255 claims in a successive 2255
motion, rather than "under the guise of a late-filed motion
to amend judgment."
Even were we to disregard these objections -- as
well as Concemi's failure to raise this claim on direct
appeal -- we see no merit to the claim in any event. Concemi
relies on United States v. Lilly, 983 F.2d 300 (1st Cir.
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1992), in which we found multiplicitous an indictment which
charged the defendant with over twenty counts of bank fraud,
even though the over twenty separate acts of fraud alleged
were all directed to defrauding a single bank in connection
with a single loan. We concluded that the facts of that case
were "more comfortably categorized as a single execution of a
scheme rather than as twenty-some-odd separate executions of
a scheme." Id. at 303. In the instant case, by contrast,
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Concemi was charged with defrauding ComFed in connection with
seventeen separate loans. In that context, framing the
indictment in terms of seventeen separate acts of fraud was
entirely logical and not multiplicitous.
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The district court's denial of Concemi's motion to
vacate sentence under 28 U.S.C. 2255 is affirmed.
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