United States v. Merlino ( 1997 )

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                                [NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]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



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          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]
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                              _________________________



                                        Before



                          Selya and Boudin, Circuit Judges,
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                          and Dowd,* Senior District Judge.
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                              _________________________



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



                              _________________________





                                  November 12, 1997

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



































                    Per Curiam.   In these  sentencing appeals    there are
Per Curiam.
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          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
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          United States  v. Brewster, No.  97-1448, slip op. at  16-18 (1st
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          Cir. Oct.  2, 1997)  (describing requirements  for invoking  USSG



           4A1.3); United States v. Black, 78 F.3d 1, 9-10 (1st Cir. 1996);
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          United  States  v. Aymelek,  926  F.2d  64,  73 (1st  Cir.  1991)
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          (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,
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          slip op. at 20-23 (discussing reasonableness requirement for such



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