Elawyers Elawyers
Washington| Change

United States v. Merlino, 97-1681 (1997)

Court: Court of Appeals for the First Circuit Number: 97-1681 Visitors: 9
Filed: Nov. 13, 1997
Latest Update: Mar. 02, 2020
Summary: , ___________, Jean B. Weld, Assistant United States Attorney, with whom, _____________, Paul M. Gagnon, United States Attorney, was on brief, for the, _______________, United States. In these sentencing appeals there are, Per Curiam. United States v. Black, 78 F.3d 1, 9-10 (1st Cir.departures);
USCA1 Opinion





[NOT FOR PUBLICATION] [NOT FOR PUBLICATION]



UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT

_________________________

Nos. 97-1681
97-1682

UNITED STATES OF AMERICA,

Appellee,

v.

FRANK RICHARD MERLINO,

Defendant, Appellant.

_________________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge] ___________________

_________________________

Before

Selya and Boudin, Circuit Judges, ______________

and Dowd,* Senior District Judge. _____________________

_________________________

Bjorn Lange, Assistant Federal Defender, for appellant. ___________
Jean B. Weld, Assistant United States Attorney, with whom _____________
Paul M. Gagnon, United States Attorney, was on brief, for the _______________
United States.

_________________________


November 12, 1997
_________________________

_______________
*Of the Northern District of Ohio, sitting by designation.

















Per Curiam. In these sentencing appeals there are Per Curiam. __________

two, but they may for practical purposes be treated as a single

unit defendant-appellant Frank Richard Merlino challenges the

district court's use of an upward departure under USSG 4A1.3

(Nov. 1992). By order dated October 9, 1997, we directed the

district court to file a written report amplifying the basis for

the extent of the departure. The court promptly complied. We

then afforded the parties an opportunity for supplemental

briefing.

We have carefully examined the record, including but

not limited to the presentence investigation report, the

transcript of the sentencing hearing, and the district court's

supplementary report of its departure findings. We have also

studied the parties' briefs, entertained oral argument, and

consulted the applicable legal authorities. This review

persuades us beyond serious question that the district court had

both a solid factual basis for concluding that Merlino's criminal

history score substantially underrepresented his criminal past

and a sound legal basis for the ensuing upward departure. See ___

United States v. Brewster, No. 97-1448, slip op. at 16-18 (1st _____________ ________

Cir. Oct. 2, 1997) (describing requirements for invoking USSG

4A1.3); United States v. Black, 78 F.3d 1, 9-10 (1st Cir. 1996); _____________ _____

United States v. Aymelek, 926 F.2d 64, 73 (1st Cir. 1991) ______________ _______

(similar). Our review also convinces us that the district court

followed the proper protocol and did not abuse its discretion in

determining the extent of the departure. See Brewster, supra, ___ ________ _____


2












slip op. at 20-23 (discussing reasonableness requirement for such

departures); United States v. Hardy, 99 F.3d 1242, 1253 (1st Cir. _____________ _____

1996) (similar).

Because these determinations are heavily influenced by

the particular facts of Merlino's case, we do not think that a

detailed discussion would serve a useful purpose. From the very

inception of the federal sentencing guidelines, we have cautioned

that "[s]entencing appeals prosecuted . . . in the tenuous hope

that lightning may strike ought not to be dignified with exegetic

opinions, intricate factual synthesis, or full-dress explications

of accepted legal principles." United States v. Ruiz-Garcia, 886 _____________ ___________

F.2d 474, 477 (1st Cir. 1989). We then wrote, in words that have

particular pertinence today: "Assuredly, a criminal defendant

deserves his day in court; but we see no purpose in wasting

overtaxed judicial resources razing castles in the air." Id. ___

We need go no further. This case which presents no

fairly debatable question is a paradigmatic example of an

instance in which summary disposition is appropriate.



Affirmed. See Loc. R. 27.1. Affirmed. See Loc. R. 27.1. ________ ___














3






Source:  CourtListener

Can't find what you're looking for?

Post a free question on our public forum.
Ask a Question
Search for lawyers by practice areas.
Find a Lawyer