USCA1 Opinion
August 23, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-2289
LOUIS ROBERT PARENTE,
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. Robert E. Keeton, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Selya and Stahl, Circuit Judges.
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Louis Robert Parente on brief pro se.
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Donald K. Stern, United States Attorney, and Duane J. Deskins,
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Assistant United States Attorney, on brief for appellee.
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Per Curiam. In 1991, Louis Robert Parente pled
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guilty to armed bank robbery, and was sentenced to a prison
term and ordered to pay restitution and, to the extent
restitution was not paid, a fine. He did not appeal his
sentence, but in 1993 filed a motion to vacate, set aside, or
correct his sentence under 28 U.S.C. 2255. The district
court denied his motion, and Parente now appeals. We affirm.
Only two issues are properly before us. The first
is Parente's claim that his attorney rendered him ineffective
assistance of counsel by failing to argue at sentencing that
he did not have the ability to pay a fine or restitution.
The second is his claim that his attorney rendered him
ineffective assistance of counsel at sentencing by failing to
argue for a downward departure on the grounds that Parente
suffered from "divorce traumatic stress syndrome" and that
his crime constituted "aberrant behavior."1 Although
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1. Parente raised other claims below, which he appears to
have abandoned on appeal. Those claims were that Parente's
attorney had rendered ineffective assistance of counsel
because he failed to correct or clarify certain statements in
the presentence report; that Parente should have been given
the retroactive benefit of amended U.S. Sentencing Guideline
3E1.1, which permitted an additional reduction in base
offense level for acceptance of responsibility if certain
conditions were met; that, for various reasons, a prior state
conviction should not have been included as a criminal
conviction in his presentence report; that the imposition of
both restitution and a fine on Parente constituted "double
jeopardy"; and that Parente's counsel was ineffective because
he had not requested that a competency hearing be held to
determine whether Parente was mentally ill at the time he
committed the crime.
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Parente raises new claims on appeal, we decline to consider
those claims. Our review of the record shows that declining
to consider the new claims would not result in any "gross
miscarriage of justice" and that the new claims are not "so
compelling as virtually to insure appellant's success." See
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Hernandez-Hernandez v. United States, 904 F.2d 753, 763 (1st
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Cir. 1990) (citing Johnston v. Holiday Inns, 595 F.2d 890,
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894 (1st Cir. 1979)).
Parente has alleged ineffective assistance of
counsel. Accordingly, he must show that his counsel's
representation of him at sentencing fell below an objective
standard of reasonableness. Strickland v. Washington, 466
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U.S. 668, 687-88 (1984). He must also show that the
deficient performance prejudiced him, i.e., that there is a
"reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different." Id. at 687, 694. Parente bears a very
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heavy burden of proof, and there is a strong presumption that
counsel's representation was reasonable. Lema v. United
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States, 987 F.2d 48, 51 (1st Cir. 1993).
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I. Ability to Pay
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Parente claims that his attorney should have argued
at sentencing that Parente could not pay a fine or
restitution in the amount ordered by the court. The district
court imposed a fine of $74,410 and restitution of $74,410,
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but ordered that the fine be remitted dollar for dollar to
the extent that Parente actually paid restitution. Although
the amount of the fine and restitution would total $148,820,
Parente now appears to accept the view that, in reality, he
was only expected to pay a single sum of $74,410. But he
claims that his counsel should have argued that he could not
pay a fine or restitution in that amount since the
presentence report (PSR), relying on a financial statement by
Parente, showed that he had a negative net worth of
approximately $23,000; it also indicated a negative monthly
cash flow of some $500. Parente also argues that he received
only half of the armed robbery proceeds of $74,410, an
argument for which there is no record support.2
The PSR gives other information that bears on the
question of Parente's ability to pay the $74,410 restitution
award. On June 29, 1988, five days after the robbery to
which he pled guilty, Parente began depositing money in a
Rhode Island bank, and on that day he also opened a safety
deposit box at that bank. By February 8, 1989, Parente had
deposited $35,250 into his accounts at the bank. He closed
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2. Parente cites statements apparently made in confessions
by him and Paul Aubin, his co-defendant. Parente's counsel
filed a motion to suppress Parente's confession, however, and
we infer from the record that a similar motion was filed by
Aubin. Having uncovered information tending to corroborate
defense claims that the confessions were coerced by police
officers, the government chose not to challenge the motion to
suppress, and neither Parente nor the government has made
either confession part of the record.
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them on February 27, 1989, but the PSR does not indicate what
Parente then did with the money. On June 29, 1988, Parente
had also used $13,000 in cash to buy a truck. Parente's
financial statement listed a "1977 Jeep AMC Pick-Up" worth
$700 as an asset, but the PSR does not say whether that jeep
was the "truck" Parente bought in 1988 for $13,000 in cash,
or, if it was not, what happened to that truck. According to
the PSR, Parente graduated from technical high school and
later received an Associate in Science degree in
Architectural Drafting Technology from the New England
Institute of Technology; in addition, Parente's estimate was
that he had received a net average wage of $15,000 per year
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as a self-employed subcontractor, apparently during the
three-year period from 1988-90, although that work became
slower in 1991.
The sentencing transcript contains other pertinent
information. When the question of restitution arose,
Parente's counsel informed the court that there had been a
civil action against Parente for the $74,410 taken in the
robbery, that he and Parente's counsel in the civil case had
advised "that they submit the judgment in that regard," and
that he believed that "that's been accomplished in a sense by
a civil judgment. If it has not been already done, it will
be done, . . . ." Counsel's comments appear intended to
argue to the court that, since restitution would essentially
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be made through a civil judgment against Parente, there was
no need for the court to require restitution at sentencing.
The court seems to have understood counsel to have argued for
the somewhat different proposition that the recommended
amount of restitution (or restitution and fine) should in no
event exceed $74,410. The court expressly asked for a
statement of Parente's assets and was referred to the section
of the PSR entitled "Defendant's Ability to Pay." That
section stated Parente's negative net worth and negative
monthly cash flow. Presumably after reviewing that
information, the court said that it had been "troubled by the
absence of explanation of what happened to the money [stolen
from the bank]," and that it believed that restitution should
take priority over a fine. The government recommended that
$74,410 be assessed as restitution, which would "spill over
into a fine" if Parente were unable to pay it, contemplating
apparently the immediate payment of the entire amount of
restitution. In response, the court indicated its preference
for imposing a fine of $74,410 and restitution of $74,410,
"but with the understanding that the priority is to be given
to the restitution and that the fine will be remitted to the
extent that restitution has actually been paid." Its intent
was to "excuse the fine to the extent that restitution is
actually paid." If Parente did not immediately pay the full
restitution, the court instructed him to pay restitution
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during the 36-month period of supervised release following
his prison term, according to a schedule set up by the chief
probation officer. The court also waived interest on the
fine it had imposed.
In light of the facts recounted above, we think
that Parente has not met his heavy burden of showing that his
counsel's failure to argue ability to pay was ineffective
assistance of counsel. The court itself raised the question
of Parente's ability to pay, and apparently consulted the
details in the PSR about Parente's assets. The prosecutor
also referred to it, suggesting a fine if Parente could not
make restitution. Strictly speaking, therefore, there was no
need for counsel to raise the issue -- it was already under
consideration. Moreover, the court showed concern about
Parente's failure to explain what had happened to the funds
stolen from the bank, suggesting its skepticism about
Parente's alleged negative net worth, and manifesting its
belief that Parente should restore the sums he had taken.
Accordingly, as the government contends, arguing that Parente
could not pay a fine or restitution might have backfired by
highlighting Parente's failure to account for the funds
despite his apparent acceptance of responsibility. Doing so
might have given the court cause to increase Parente's prison
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term or the amount of the fine. Finally, it is unlikely that
an argument that Parente had no ability to make restitution
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would have been successful. The court permitted Parente to
pay restitution in installments after his release from jail
during the three-year period of his supervised release. The
PSR suggested that, if Parente returned to his prior self-
employment, he might be expected to net $15,000 per year
during that period, for a total of $45,000. It also
indicated that, in 1988-89, Parente had significant assets
which had not been accounted for, i.e., $35,250 in cash and a
truck valued at $13,000. Those assets, together with the
sums that Parente reasonably could be expected to earn after
his release from prison, would have been sufficient to make
restitution.3 Consequently, Parente's counsel could
reasonably have decided that an inability to pay argument
would not succeed. He apparently made the only good argument
he had -- that the court should not require any restitution
since a civil judgment already was pending or had entered
which effectively required Parente to make such restitution.
Given all of the above facts, Parente's counsel cannot be
said to have rendered ineffective assistance because he did
not argue that Parente had no ability to pay a
fine/restitution of $74,410.
II. Downward Departure
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A. Divorce Traumatic Stress Syndrome
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3. Further evidence of Parente's financial resources is that
he retained his own defense counsel rather than obtaining
court-appointed counsel.
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Parente claims that his counsel was ineffective
because he did not argue for a downward departure on the
ground that Parente suffered from "divorce traumatic stress
syndrome." Parente adverts only perfunctorily to this claim
in his appellate briefs, presenting no developed
argumentation on the point.4 Therefore, he has essentially
waived the claim. See United States v. Zannino, 895 F.2d 1,
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17 (1st Cir.), cert. denied, 494 U.S. 1082 (1990). We note
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that, in any event, the Sentencing Guidelines applicable at
the time Parente was sentenced provided that "[m]ental and
emotional conditions are not ordinarily relevant in
determining whether a sentence should be outside the
guidelines," see U.S.S.G. Manual 5H1.3 (1990), with certain
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exceptions that would not have applied to Parente. See also
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United States v. Russell, 917 F.2d 512, 516 (11th Cir. 1990),
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cert. denied, 499 U.S. 953 (1991) (convicted armed bank
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robber could not justify downward departure on the ground
that he had a "dependent personality disorder").
B. Aberrant Behavior
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Parente also says that counsel rendered ineffective
assistance because he did not argue for a downward departure
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4. Parente's submissions to the district court alleged that
he had a "syndrome" caused by the marital conflict between
his parents and by his lack of relationship with his father;
this syndrome allegedly left him "vulnerable . . . to be[ing]
easily influenced by others due to a lack of self-esteem,
confidence and economic ability."
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on the ground that Parente's commission of the crime was
"aberrant behavior." On appeal, Parente's argument appears
to be that Paul Aubin, his co-defendant, whose special
knowledge about automated teller machines permitted him to
successfully rob those machines, induced Parente to commit
the robbery by communicating that knowledge to him. Parente
also appears to argue that the armed robbery to which he pled
guilty was his only crime. Parente's arguments are
meritless.
First, at the time Parente was sentenced,
Sentencing Guideline 5K2.12 permitted downward departures
for crimes committed under "coercion and duress," but not the
type of inducement or enticement alleged here. Section
5K2.12 permitted a court to depart downward if a defendant
had committed an offense "because of serious coercion,
blackmail or duress," explaining that "[o]rdinarily coercion
will be sufficiently serious to warrant departure only when
it involves a threat of physical injury, substantial damage
to property or similar injury resulting from the unlawful
action of a third party or from a natural emergency."
Parente does not say that Aubin threatened him with physical
injury or substantial damage to property, but essentially
only that Aubin induced him to commit the crime by giving him
the information that permitted him to do so successfully.
Thus, it clearly was not ineffective assistance of counsel
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for Parente's counsel not to argue for a downward departure.
See United States v. Russell, supra, 917 F.2d at 516
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(downward departure not authorized under 5K2.12 where the
defendant, who had been convicted of armed bank robbery,
introduced no evidence that he was physically coerced into
committing his crime or that he did so under threat of injury
to his person or property, which is "all the guideline on
coercion or duress can reasonably be interpreted to cover")
(citing United States v. Pozzy, 902 F.2d 133, 139 (1st Cir.),
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cert. denied, 498 U.S. 943 (1990)).
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Second, the record shows that the armed robbery to
which Parente pled guilty was not an isolated criminal
offense, as he suggests. The PSR shows a 1984 conviction for
receiving stolen goods. (Although Parente challenged the
validity of that conviction below, he has not done so on
appeal.) In addition, the PSR states that, in 1989, after
committing the robbery at issue here, Parente was charged
with conspiracy to commit robbery, possession of a firearm,
and carrying a firearm in connection with an apparent plan to
rob another automated teller machine. References in
Parente's submissions below indicate that he was later
convicted of that charge in state court. Thus, Parente's
counsel would have had no factual basis for arguing for a
downward departure on the ground that Parente's commission of
armed robbery was an isolated offense. Even had factual
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grounds for such an argument existed, however, the court
could not have departed downward. See U.S.S.G. Manual
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4A1.3 ("The lower limit of the range for a Category I
criminal history is set for a first offender with the lowest
risk of recidivism. Therefore, a departure below the lower
limit of the guideline range for a Category I criminal
history on the basis of the adequacy of criminal history
cannot be appropriate."). Consequently, counsel's failure to
argue for a departure downward on the ground of "aberrant
behavior" was not ineffective assistance.
Affirmed.5
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5. The facts and legal arguments having been adequately
presented in the briefs and record, we hereby deny Parente's
request for oral argument. See Loc. R. 34.1(a).
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