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[NOT FOR PUBLICATION]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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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. -
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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
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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
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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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