USCA1 Opinion
June 19, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-1008
UNITED STATES,
Appellee,
v.
MAE LINH PELKEY, II,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
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Before
Cyr, Boudin and Lynch, Circuit Judges.
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Marc Chretien on brief for appellant.
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Paul M. Gagnon, United States Attorney, and Jean B. Weld,
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Assistant United States Attorney, on brief for appellee.
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Per Curiam. Following an earlier appeal in which this
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court remanded for resentencing, see United States v. Pelkey,
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29 F.3d 11 (1st Cir. 1994), the district court sentenced
defendant Mae Linh Pelkey to a 37-month term of imprisonment.
Defendant again appeals, complaining (as she did earlier) of
an upward departure undertaken by the court. This time
around, we find no error and thus summarily affirm. See Loc.
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R. 27.1.
Defendant, a real estate broker and financial adviser
who "defrauded a number of her friends, business associates,
and former customers out of more than $500,000," Pelkey, 29
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F.3d at 12, pled guilty in 1993 to three counts of mail fraud
and one count of wire fraud. See 18 U.S.C. 1341, 1343.
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At the original sentencing on October 18, 1993, the court
imposed a prison term of 43 months. It first calculated a
total offense level of 17,1 which (with a criminal history
category of I) yielded a sentencing range of 24 to 30 months.
The court then determined that an upward departure was
warranted because the ten-level increase mandated by the
applicable provision of the fraud loss table did not "fully
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1. The total offense level was comprised of the following
elements: a base offense level of six for fraud, U.S.S.G.
2F1.1(a) (1992); plus ten levels for losses exceeding
$500,000, id. 2F1.1(b)(1); plus a two-level enhancement for
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more than one victim, id. 2F1.1(b)(2)(B); plus a two-level
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enhancement for vulnerable victim, id. 3A1.1; less three
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levels for acceptance of responsibility, id. 3E1.1.
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capture the harmfulness" of defendant's conduct. U.S.S.G.
2F1.1, comment. (n.10) (1992).2
In support of this conclusion, the court cited two
factors (with primary emphasis placed on the former): (1) as
defendant was or should have been aware, several of the
victims were elderly individuals who lost most or all of
their life savings, with little prospect of regaining
financial security; and (2) several victims had suffered
"extreme psychological injury." Suggesting that the real
value of the losses to the victims was closer to $10 million
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2. The 1992 version of application note 10 read in pertinent
part as follows:
In cases in which the loss determined under
subsection (b)(1) does not fully capture the
harmfulness and seriousness of the conduct, an
upward departure may be warranted. Examples may
include the following:
(a) the primary objective of the fraud was
non-monetary;
(b) false statements were made for the purpose
of facilitating some other crime;
(c) the offense caused physical or
psychological harm;
(d) the offense endangered national security
or military readiness;
(e) the offense caused a loss of confidence in
an important institution.
U.S.S.G. 2F1.1, comment. (n.10) (1992). Effective as of
November 1, 1993, an amendment to note 10 added the following
new subdivision:
(f) the offense involved the knowing
endangerment of the solvency of one or more
victims.
See U.S.S.G., App. C., Amend. 482 (1993).
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than to $500,000, the court departed upward by five levels to
a total offense level of 22. The resulting 43-month sentence
was near the bottom of the revised sentencing range.
On appeal, we agreed with defendant that the cited
justifications for the five-level departure were inadequate.
With respect to the court's first rationale, we noted that
"[t]he failure to have a secure financial future does not,
without more, rise to the level of seriousness" contemplated
by the grounds for departure listed as examples in
application note 10.3 Pelkey, 29 F.3d at 15. At the same
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time, we acknowledged that there was a distinction "between
defrauding a 40-year-old of her life savings and defrauding a
60-year-old of her savings." Id. That distinction, we
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observed, was at least partially reflected in the enhancement
for vulnerable victim and would not, in any case, "warrant a
five-level departure." Id. Yet we specifically left open
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the possibility that an upward departure might be appropriate
if, on remand, "the court were to make specific findings that
some of the victims were unable to provide for their welfare
or that the facts present[ed] a situation equal to the
serious caliber" of the examples listed in application note
10. Id. We also referred to the intervening amendment to
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3. As to the court's secondary rationale, we held that the
severity of the psychological injury suffered by defendant's
victims was not "so far beyond" that experienced in "the
heartland of fraud cases" as to justify a departure on such
basis. Pelkey, 29 F.3d at 16.
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note 10 which had added to that list of examples by
encouraging a departure where "the offense involved the
knowing endangerment of the solvency of one or more victims."
Id. at 15 n.5 (quoting U.S.S.G. 2F1.1, comment. (n.10(f))
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(1993)). We observed that a departure on this ground--one
which required a finding that a defendant knowingly pushed a
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victim into extreme financial hardship--"seem[ed] to address
the type of harm the court was attempting to quantify." Id.
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On remand, after receiving supplemental evidence from
the parties, the court found that defendant had knowingly
endangered the solvency of several of her victims. It
therefore again departed upward, this time by two levels, to
reach a total offense level of 19. The resulting 37-month
sentence was within the revised sentencing range. As she did
below, defendant now argues that (1) reliance on the 1993
amendment to application note 10 violated the ex post facto
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clause; (2) consideration of the government's supplemental
affidavits was improper, and the evidence was otherwise
insufficient to support the upward departure; and (3)
departing upward due to the financial strain on the victims,
in conjunction with the adjustment for vulnerable victims,
resulted in impermissible double-counting. Each of these
contentions, we conclude, misses the mark.
Ex Post Facto Concerns
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"To avoid ex post facto difficulties, courts should
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'normally apply [guideline] amendments retroactively only if
they clarify a guideline, but not if they substantively
change a guideline.'" United States v. Rostoff, ___ F.3d
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___, No. 93-1376, slip op. at 12 (1st Cir. 1995) (quoting
United States v. Prezioso, 989 F.2d 52, 53 (1st Cir. 1993)).
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Defendant argues that the 1993 amendment to application note
10 effected such a substantive change. This conclusion, she
suggests, is apparent from the language employed by the
Commission, which described this aspect of the amendment as
one that "revises the Commentary to 2F1.1 by expanding
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Application Note 10 to provide guidance in cases in which the
monetary loss does not adequately reflect the seriousness of
the offense." U.S.S.G., App. C., Amend. 482 (1993) (emphasis
added). The fact that other changes implemented by Amendment
482 were characterized as "clarifying," she adds, only
reinforces this interpretation.
We disagree. The distinction between a clarification
and a substantive revision of the guidelines is not always
"clear-cut," Isabel v. United States, 980 F.2d 60, 62 (1st
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Cir. 1992), and the Commission's language can be read to
support either view.4 Of greater relevance, we think, is
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4. At one point, the district court appeared to suggest that
the amendment could be deemed clarifying simply because it
involved an application note rather than a guideline proper.
Any such suggestion was incidental to the court's reasoning,
and we have no occasion to address it here--other than to
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the fact that the examples listed in application note 10 were
(and are) meant to be "nonexclusive." Pelkey, 29 F.3d at 14.
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As we indicated in our earlier decision, an upward departure
based on unusual financial strain incurred by a victim was
permissible even before the 1993 amendment. See id. at 15.
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Indeed, other courts have upheld departures on this ground
based on the pre-1993 version of application note 10. See,
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e.g., United States v. Kaye, 23 F.3d 50, 53-54 (2d Cir. 1994)
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(affirming upward departure based on finding that defendant's
fraud--depriving his great-aunt of her life savings--involved
a degree of harm not adequately considered by Commission);
United States v. Stouffer, 986 F.2d 916, 927-28 (5th Cir.)
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(affirming departure based on finding that fraud scheme
caused thousands of investors to lose their life savings),
cert. denied, 114 S. Ct. 115 (1993). To a large extent,
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therefore, the 1993 amendment simply codified pre-existing
practice. Under these circumstances, retroactive application
of the amendment raises no ex post facto concerns.5 See,
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e.g., United States v. Fadayini, 28 F.3d 1236, 1242 (D.C.
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observe that, after the Supreme Court's ruling that guideline
commentary is generally binding, see Stinson v. United
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States, 113 S. Ct. 1913, 1919 (1993), other courts have held
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that "subsequent amendments to the commentary ... may, just
like the guidelines themselves, present ex post facto
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problems when applied retrospectively." United States v.
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Bertoli, 40 F.3d 1384, 1405 (3d Cir. 1994) (listing cases).
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5. As the district court suggested in the alternative, this
also means that the upward departure could have been
undertaken without reliance on the intervening amendment.
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Cir. 1994) (applying application note 10(f) on retroactive
basis, without mentioning ex post facto issue); United States
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v. Strouse, ___ F. Supp. ___, 1995 WL 235568, at *5 (M.D. Pa.
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1995) (same).
Evidentiary Issues
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In the earlier appeal, we vacated the sentence and
remanded "for resentencing consistent with this opinion."
Pelkey, 29 F.3d at 16. On remand, over defendant's
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objection, the district court permitted the government to
supplement the record with additional affidavits from three
of the victims.6 Defendant now insists that the district
court exceeded the scope of our mandate by permitting the
evidentiary record to be reopened. Yet our earlier opinion
specifically contemplated that the court might make new
findings of fact to support the upward departure. See id. at
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15. It was well within the court's discretion to permit both
sides to supplement the record in connection with this issue
prior to its doing so.7 See, e.g., United States v. Bell, 5
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F.3d 64, 66-67 (4th Cir. 1993). The court on remand did not
engage in a fully de novo hearing in which previously
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6. These victims, among others, had earlier provided victim
impact statements to the Probation Office, which were
recounted at length in the presentence report.
7. The defendant declined to present any new evidence
regarding the financial solvency issue, but did take the
opportunity to buttress earlier evidence of rehabilitation.
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forfeited issues were resuscitated, see generally United
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States v. Bell, 988 F.2d 247 (1st Cir. 1993);8 indeed, it
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declined to entertain a proposed new sentencing enhancement
(for abuse of position of trust) not earlier advanced by the
government. And defendant's reliance on United States v.
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Parker, 30 F.3d 542, 553-54 (4th Cir.), cert. denied, 115 S.
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Ct. 605 (1994), is misplaced, inasmuch as the government here
was not afforded a second opportunity to prove an element of
the offense. We thus see no error.9
Defendant's secondary contention in this regard--that
the evidence was insufficient to support a finding that she
knowingly endangered the solvency of one or more of her
victims--is advanced only in peremptory fashion and can be
summarily rejected. It suffices to note the following: (1)
the Meuse/Laskey affidavit stated that defendant "handled all
of our financial matters" and "knew what we had right down to
the last penny and she took that also"; and (2) the
presentence report indicated that LeClair had provided
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8. Whether a de novo hearing would have been proper in this
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situation, of course, is a question not before us. See,
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e.g., United States v. Ortiz, 25 F.3d 934, 935 (10th Cir.
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1994).
9. Any error in this regard would be harmless in any event.
As the district court observed, the finding that defendant
knowingly endangered the solvency of one or more victims was
reasonably inferable from the evidence contained in the
presentence report. Indeed, defendant acknowledged below
that the new affidavits "paraphrase[d]" the victims' earlier
statements "almost completely."
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defendant with a copy of his assets and liabilities; he
elaborated in his affidavit that defendant "always knew about
my financial situation and knew that if she didn't give me
back the money, I would become insolvent." Based on this and
substantial other evidence, the district court's finding that
"the departure-justifying circumstance actually existed"
cannot be deemed clearly erroneous. United States v.
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Rostoff, ___ F.3d at ___, slip op. at 13.
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Double-Counting
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Finally, we reject defendant's contention that
undertaking an upward departure for financial impact on the
victims, while simultaneously imposing a two-level
enhancement for vulnerable victims, constituted impermissible
double-counting. We implicitly rejected this argument in our
earlier decision, see Pelkey, 29 F.3d at 14-15, as did the
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Commission in its 1993 amendment to application note 10.
While the two matters do overlap, there remains a core
distinction: the vulnerable victim adjustment focuses on an
individual's susceptibility to becoming a victim of crime per
se, whereas the note 10(f) departure focuses on the extent to
which a victim has suffered an unusual degree of harm from a
crime. See, e.g., United States v. Kaye, 23 F.3d at 54. As
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such, "the vulnerable victim enhancement does not fully
capture [the] concern with the actual impact of the fraud on
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the victim." Id. We thus agree with the district court that
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no double-counting occurred.
Affirmed.
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