United States v. Riquinha , 328 F. App'x 665 ( 2009 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-2690
UNITED STATES OF AMERICA,
Appellee,
v.
STEVEN RIQUINHA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin and Stahl, Circuit Judges.
Donna Jalbert Patalano and Law Office of D.J. Patalano on
brief for appellant.
Margaret D. McGaughey, Appellate Chief, and Paula D. Silsby,
United States Attorney, on brief for appellee.
April 30, 2009
Per Curiam. This is a sentencing appeal. The defendant
makes two arguments concerning an enhancement imposed for
obstruction of justice: (1) that the district court failed to make
specific factual findings supporting the enhancement and (2) that
the enhancement resulted in an unwarranted sentencing disparity
between him and his co-defendant. He also argues, in the
alternative, that the court should have granted his request for a
below-guidelines sentence. For the reasons discussed below, we
find none of those arguments meritorious and therefore summarily
affirm the defendant's sentence, as requested in the government's
brief.
The presentence report ("PSR") recommended an
obstruction-of-justice enhancement based on the defendant's
participation in aiding his co-defendant, Richard Dimott, to
abscond from Dimott's pre-trial home confinement. Specifically,
the revised PSR found as follows:
On March 4, 2006, the defendant met
with his co-defendant, Richard
Dimott, who had been arraigned and
ordered released to pretrial
supervision with electronic
monitoring. Dimott was residing in
Massachusetts and was being
supervised by the Pretrial Services
Office in the District of
Massachusetts. . . . During that
meeting, the defendant aided
Dimott's flight from justice by
using snips to remove Dimott's
electronic monitoring transmitter
from around his ankle, buying him a
bus ticket from Boston, MA, to
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Rockland, ME, and then driving him
to the bus station. Dimott remained
in absconder status for
approximately seven months, but was
ultimately apprehended and convicted
of Criminal Contempt of Court due to
his conduct.
At sentencing, the defendant acknowledged having received
a copy of the revised presentence report, which included the above
finding and the related recommendation, and further acknowledged
that he had had a full and adequate opportunity to discuss the
revised PSR with his counsel and that he was aware that no written
objections had been filed. He further confirmed that there was
nothing in the PSR that was inaccurate.
In their arguments as to the appropriate sentence,
counsel for both parties assumed that the defendant would be
receiving the recommended two-level enhancement for obstruction of
justice. After hearing those arguments and after hearing from the
defendant himself, the district court said that it had "carefully
reviewed the presentence investigation report" and noted that there
were "no disputed issues." The court then proceeded to make
guideline calculations, including the two-level enhancement for
obstruction of justice based on the fact that "Defendant
participated in aiding Richard Dimott's flight from justice." When
asked whether the defendant had an objection to those calculations,
defense counsel stated, "No Your Honor, thank you." Id. Given
that colloquy, the defendant's present objection to the
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obstruction-of-justice enhancement, if not waived entirely, was at
least forfeited and therefore subject to review only for plain
error. United States v. Martinez-Vargas, 321 F.3d 245, 249-50 (1st
Cir. 2003).
No such error occurred here, plain or otherwise.
Contrary to the defendant's contention, the court made specific
findings, both oral and written, that the defendant had aided his
co-defendant in absconding from pre-trial confinement, which
findings are legally sufficient to warrant an enhancement for
obstruction of justice. See U.S.S.G. § 3C1.1, comment. (n.4(e))
(including "escaping or attempting to escape from custody before
trial" in "a non-exhaustive list of examples of the types of
conduct to which this adjustment applies"); id., comment. (n.9)
(providing that, "[u]nder this section, the defendant is
accountable for his own conduct and for conduct that he aided or
abetted").
The defendant does not claim that those findings were
clearly erroneous but only that they were not sufficiently
specific, particularly with respect to willfulness. In so arguing,
the defendant relies on United States v. Dunnigan, 507 U.S. 87, 94-
95 (1993), which held that where the defendant objects to a
sentence enhancement based on the defendant's allegedly perjured
trial testimony, "a district court must . . . make independent
findings necessary to establish a willful impediment to or
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obstruction of justice." Id. at 95. The Court reached that
conclusion because "an accused may give inaccurate testimony due to
confusion, mistake, or faulty memory,' or the jury may find the
defendant's testimony to be truthful but nevertheless find it
insufficient to acquit him of the charged offense. Id. Where, as
here, the obstruction of justice enhancement is not based on
perjury, Dunnigan and its underlying rationale do not apply.
United States v. Jimenez Martinez, 83 F.3d 488, 498 n.13 (1st Cir.
1996).
The defendant further faults the district court for
relying on the findings in the PSR, positing that those findings
were based on unreliable hearsay. That argument fails as well.
"[I]n the absence of any objection, a statement in a presentence
report is sufficient to prove the fact proposed." United States v.
Pelletier, 469 F.3d 194, 202-03 (1st Cir. 2006). Moreover, even
now, the defendant does not contest the truth of the PSR's findings
or proffer any evidence to the contrary. He therefore has failed
to show that any error in adopting those findings affected his
substantial rights, a prerequisite to relief under the plain-error
standard. United States v. Turbides-Leonardo, 468 F.3d 34, 39-40
(1st Cir. 2006).
The defendant next argues that the obstruction-of-justice
enhancement resulted in an unwarranted disparity between his
sentence and that of his co-defendant, who received no such
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enhancement and only a concurrent six-month sentence on a separate
contempt charge based on his own flight from justice. That
argument was made below and implicitly considered but rejected by
the district court, United States v. Jiménez-Beltre, 440 F.3d 514,
519 (1st Cir. 2006) (en banc), which, having sentenced both
defendants, was in the best position to determine whether they were
similarly situated. The court's decision not to vary below the
guideline range on this ground was not unreasonable, particularly
given that the co-defendant received a total sentence that was 50
months higher than that of the defendant here, and that, despite
his upward adjustment for obstruction of justice, the defendant
here was also given the benefit of a three-level downward
adjustment for acceptance of responsibility, which adjustments are
rarely applied together. See U.S.S.G. § 3E1.1, comment. (n.4)
(stating that the two adjustments may both apply only in
"extraordinary cases").
Finally, the defendant argues that the district court
should have imposed a below-guidelines sentence because doing so
"would have been well within its discretion." Assuming that this
argument is sufficiently developed to warrant our consideration,
but see United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990),
it reflects a misunderstanding of the applicable standard of
appellate review. "Reasonableness entails a range of potential
sentences, as opposed to a single precise result." United States
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v. Dixon, 449 F.3d 194, 204 (1st Cir. 2006). Accordingly, an
appellant must explain not why a desired sentence would be
reasonable but why the imposed sentence was unreasonable. United
States v. Nichols, 464 F.3d 1117, 1124, 1126 (9th Cir. 2006). That
burden is particularly heavy where, as here, the imposed sentence
falls within the guideline sentencing range. Rita v. United
States, 127 S. Ct. 2456, 2465 (2007). The defendant here has not
satisfied that burden.
Accordingly, the defendant's sentence is summarily
affirmed. See 1st Cir. R. 27.0(c).
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