USCA1 Opinion
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
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No. 93-1642
UNITED STATES,
Appellee,
v.
JEFFREY SPRINGER,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
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Before
Breyer,* Chief Judge,
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Boudin and Stahl, Circuit Judges.
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Michael C. Bourbeau, by Appointment of the Court, with whom
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Bourbeau and Bourbeau was on brief for appellant.
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Margaret E. Curran, Assistant United States Attorney, with whom
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Edwin J. Gale, United States Attorney, and Ira Belkin, Assistant
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United States Attorney, were on brief for appellee.
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July 7, 1994
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*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
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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.
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Cabrozza, 4 F.3d 70, 84 (1st Cir. 1993), cert. denied, 114 S.
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Ct. 1644 (1994), we need not address this issue, and affirm
defendant's sentence.
I.
I.
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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
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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
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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
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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).
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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
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version. It provides that a court cannot "apply . . . one
section from one edition . . . and another guideline section
from a different edition." Id.
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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
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U.S.S.G. 2F1.1(b)(1)(J) (Nov. 1988) with U.S.S.G.
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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
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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.
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This is simply incorrect. The ex post facto Clause "forbids
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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
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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
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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
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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
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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.
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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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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.
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Restitution Order
Restitution Order
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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.
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Savoie, 985 F.2d 612, 618 (1st Cir. 1993).
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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.
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Savoie, 985 F.2d at 619. Furthermore, at the sentencing
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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
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(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,
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___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.
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Ineffective Assistance of Counsel
Ineffective Assistance of Counsel
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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
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United States v. Beasley, 12 F.3d 280, 285 (1st Cir. 1993).
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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
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U.S.C. 3663(g).
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IV.
IV.
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Conclusion
Conclusion
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For the reasons stated above, we affirm Springer's
sentence.
Affirmed.
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