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USCA1 Opinion
March 13, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________
No. 94-1865
DOMENIC J. LOMBARDI,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge] __________________________
___________________
Before
Torruella, Chief Judge, ___________
Boudin and Stahl, Circuit Judges. ______________
___________________
Domenic J. Lombardi on brief pro se. ___________________
Sheldon Whitehouse, United States Attorney, and James H. Leavey, __________________ ________________
Assistant United States Attorney, on brief for respondent.
__________________
__________________
Per Curiam. In 1992, a nine-count superseding ___________
indictment charged petitioner Domenic Lombardi with engaging
in a fraudulent scheme to collect insurance proceeds through
arson. Petitioner eventually pled guilty to six of these
offenses: three counts of mail fraud (and conspiracy to
commit same), 18 U.S.C. 1341; two counts of engaging in a
monetary transaction with criminally derived property, 18
U.S.C. 1957; and one count of using a fire to commit mail
fraud, 18 U.S.C. 844(h). At sentencing, the district court
imposed a 63-month prison term for the first five counts, to
which was added a mandatory, consecutive 60-month sentence
for the 844(h) offense. On appeal, we affirmed
petitioner's sentence in all respects. United States v. _____________
Lombardi, 5 F.3d 568 (1st Cir. 1993).1 ________
By way of the instant petition under 28 U.S.C. 2255,
petitioner presents two new challenges to his sentence.
Specifically, he contends that the court (1) miscalculated
his criminal history category and (2) erred in sentencing him
on the basis of relevant conduct. He also advances the
derivative claim that his trial and appellate attorneys
rendered ineffective assistance by failing to pursue these
____________________
1. Petitioner there advanced four challenges to his
sentence, arguing that the court had erred (1) in its
grouping of offenses, (2) by declining to depart downward on
the basis of his age and health, (3) by awarding only two,
rather than three, points for acceptance of responsibility,
and (4) by ordering payment of a fine and restitution. We
found each of these contentions to be without merit.
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arguments. We need not decide to what extent such claims
might be forfeited, see, e.g., Lopez-Torres v. United States, ___ ____ ____________ _____________
876 F.2d 4, 5 (1st Cir.), cert. denied, 493 U.S. 979 (1989), ____________
or might otherwise not be cognizable in a 2255 proceeding,
see, e.g., Knight v. United States, 37 F.3d 769, 771-74 (1st ___ ____ ______ _____________
Cir. 1994), inasmuch as we agree with the district court that
petitioner's contentions are manifestly without merit.
1. Criminal History Category _________________________
Petitioner's central challenge to the calculation of his
criminal history category (CHC) is based on a misreading of
the sentencing guidelines. In determining the CHC, the
district court, inter alia, awarded one point under U.S.S.G. __________
4A1.1(c) for each of the following three state court
convictions:
Attempting to obtain money under false
pretenses. Offense committed on February 8, 1974.
Petitioner sentenced on April 27, 1979, following
nolo plea, to two years probation. (Violation of
probation on June 18, 1979; continued on same
probation.)
Violation of banking law (two counts).
Offenses committed on June 28, 1976. Petitioner
sentenced on April 24, 1979, following nolo plea,
to two years probation on each count, concurrent.
(Violation of probation on June 18, 1979; sentenced
to thirty days imprisonment.)
Failure to return rental car. Offense
committed on February 23, 1977. Petitioner
sentenced on December 4, 1979, following nolo plea,
to $100 fine.
Petitioner contends that each of these offenses occurred too
long ago to be considered. Yet the guidelines provide that
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"[a]ny other prior sentence that was imposed within ten years
of the defendant's commencement of the instant offense is
counted." U.S.S.G. 4A1.2(e)(2). Petitioner does not
dispute that the conspiracy to which he pled guilty began in
1988, or that the substantive offenses to which he pled
guilty began in January 1989 at the latest. Accordingly, the
sentences for each of the above three convictions (which were
imposed in April and December 1979, respectively) occurred
within the applicable ten-year period. Petitioner's argument
to the contrary mistakenly relies on the date when each of
those offenses was committed, rather than on the date when
sentencing took place.
Petitioner also asserts that the conviction for failure
to return a rental car (with the resulting $100 fine) was too
trivial to be considered. He points to U.S.S.G.
4A1.2(c)(1), which provides that some fifteen minor offenses
that are there listed, "and offenses similar to them," are to
be counted only if, inter alia, the sentence therefor was at __________
least one year of probation or thirty days of imprisonment.2
Yet his suggestion that the rental car conviction is
"similar" to the offenses listed in 4A1.2(c)(1) appears
____________________
2. The offenses there specified include such infractions as
contempt of court, gambling, resisting arrest, prostitution
and trespassing.
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dubious.3 This argument, in any event, was not raised below
and so has been waived. And any error in this regard would
plainly have been harmless. Unlike more substantial prior
sentences for which either two or three points are added to
the CHC, see U.S.S.G. 4A1.1(a)-(b), the guidelines provide ___
that one point shall be added for other prior sentences "up
to a total of 4 points for this item," id. 4A1.1(c). ___
Included in petitioner's criminal history are at least five
other convictions that, according to the presentence report
(PSR), were eligible for a one-point addition but were not so
counted because of the four-point maximum. Accordingly, were
the rental car conviction to be disregarded, one of these
other convictions would be included in its stead--such that
petitioner's CHC would not change.
Both of petitioner's challenges to the CHC calculation
thus prove meritless. It follows that the failure of counsel
to pursue these matters cannot be deemed ineffective
assistance.
2. Relevant Conduct ________________
The district court increased petitioner's base offense
level by eight points under U.S.S.G. 2F1.1(b)(1), based on
a determination that the aggregate losses exceeded $200,000.
____________________
3. We note, for example, that (according to the presentence
report) petitioner was originally convicted of such offense
in state district court and sentenced to sixty days
imprisonment. Only upon trial de novo in superior court did
he receive the reduced sanction of a $100 fine.
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In so finding, the court not only took into account the
losses resulting from the offenses of conviction, but also
considered under the "relevant conduct" provision of
1B1.3(a) those losses stemming from some eleven other
instances of mail fraud in which petitioner allegedly
participated. In an abstruse series of arguments, petitioner
claims that the court erred in this regard. We disagree.
First, to the extent petitioner is alleging that the
relevant conduct provision is unconstitutional per se, his
argument can be summarily rejected. See, e.g., United States ___ ____ _____________
v. Bennett, 37 F.3d 687, 692-94 (1st Cir. 1994); United _______ ______
States v. Carrozza, 4 F.3d 70, 80-81 (1st Cir. 1993), cert. ______ ________ _____
denied, 114 S. Ct. 1644 (1994); United States v. Wright, 873 ______ _____________ ______
F.2d 437, 441 (1st Cir. 1989). Second, to the extent he is
contending that the evidence was insufficient to establish
his involvement in the other mail frauds, it suffices to note
that the district court was warranted in accepting as true
all facts appearing in the PSR to which no objection had been
voiced. See, e.g., United States v. Fox, 889 F.2d 357, 359 ___ ____ _____________ ___
(1st Cir. 1989). Third, to the extent he is arguing that the
evidence was insufficient to establish that the other mail
frauds were "part of the same course of conduct or common
scheme or plan" as the offenses of conviction, U.S.S.G.
1B1.3(a)(2), we disagree. Each of the other frauds,
involving efforts to defraud insurance companies by use of
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the mails between 1988 and 1990, readily falls within the
scope of those terms. See id. 1B1.3, comment. (n.9). ___ ___
Fourth, to the extent petitioner is complaining of
counsel's failure to object to the consideration of such
relevant conduct, we find no error. According to the PSR,
petitioner had acknowledged his involvement in most of those
other mail frauds to a confidential informant, who had
captured such admissions on tape. In the face of such
evidence, counsel's decision not to contest these matters
(and thereby risk, inter alia, forgoing the reduction for __________
acceptance of responsibility) was well "within the range of
competence demanded of attorneys in criminal cases." Hill v. ____
Lockhart, 474 U.S. 52, 56 (1985) (internal quotation ________
omitted).
Finally, to the extent petitioner is objecting to the
consideration of some $12,441 in losses resulting from a mail
fraud involved in a related prosecution, the PSR specifically
provided (in response to defense counsel's objection) that
such losses would be excluded from that other case to avoid
double-counting. We thus perceive no error. And again, any
error in this regard would plainly have been harmless. Given
the grouping rule that was applied at sentencing,
petitioner's offense level would have remained unchanged even
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if the losses had not exceeded $200,000.4 See U.S.S.G. ___
3D1.4(a); see also Lombardi, 5 F.3d at 570. His overall ________ ________
restitution obligation likewise would have remained
unaltered.
Affirmed. _________
____________________
4. While the government has stated (and petitioner has not
seriously disputed) that the losses would have exceeded that
level even without including the $12,441 figure, the partly
ambiguous record before us does not permit confirmation of
this fact.
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Document Info
Docket Number： 94-1865
Filed Date： 3/13/1995
Precedential Status： Precedential
Modified Date： 9/21/2015