United States v. Lascola , 45 F. App'x 5 ( 2002 )


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  •       [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]
    United States Court of Appeals
    For the First Circuit
    No. 01-1819
    UNITED STATES,
    Appellee,
    v.
    TODD J. LASCOLA,
    Defendant, Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF RHODE ISLAND
    [Hon. Mary M. Lisi, U.S. District Judge]
    Before
    Boudin, Chief Judge,
    Torruella and Howard, Circuit Judges.
    Todd J. Lascola on brief pro se.
    Margaret E. Curran, United States Attorney, Donald C.
    Lockhart, Assistant United States Attorney, and Ira Belkin,
    Assistant United States Attorney, on brief for appellee.
    September 3, 2002
    Per Curiam. Todd J. LaScola, a licensed stockbroker,
    pled guilty to nine counts of a 55 count indictment, alleging
    mail fraud, 18 U.S.C. §1341, wire fraud, 18 U.S.C. § 1343, and
    embezzlement, 18 U.S.C. § 664.        His crimes comprised several
    schemes involving two companies in which he was engaged, CPA
    Advisors Network ("CPA") and CPI Investment Management, Inc.
    ("CPI").   LaScola was sentenced to 96 months imprisonment,
    three   years   supervised      release,     and   restitution     of
    approximately $8.1 million dollars.        He challenges several of
    the sentencing guideline calculations.       We affirm.
    As an initial matter, LaScola makes an Apprendi type
    argument, see Apprendi v. New Jersey, 
    530 U.S. 466
    (2000),
    asserting that none of the upward adjustments (apart from
    minimal planning) was authorized because none was specifically
    mentioned in the indictment or in the plea agreement.            This
    argument was not raised in the district court and, thus, is
    subject to the plain error standard.        There was no error, let
    alone plain error.     Apprendi does not apply to guideline
    findings that increase the sentence but do not elevate it
    beyond the statutory maximum.     United States v. Caba, 
    241 F.3d 98
    , 101 (1st Cir. 2001).    The statutory maximum for each count
    of conviction was five years.    LaScola received a 60 month term
    of imprisonment on Count 1 (mail fraud) and concurrent 36
    months imprisonment on the remaining eight counts to be served
    consecutive to the 60 month term imposed on Count 1 (for a
    total term of 96 months).
    -2-
    §2F1.1(b)(1) - Amount of loss1
    The Presentence Report ("PSR") calculated that the
    total loss amount generated by LaScola's criminal conduct was
    between $5 and $10 million dollars and thus proposed a 14 level
    increase in the base offense level.    See §2F1.1(b)(1)(O).   In
    the district court, LaScola argued that the appropriate amount
    of loss was between $2.5 and $5 million dollars, reflecting a
    13, rather than 14, level increase.       See §2F.1.1(b)(1)(N).
    LaScola argued that he did not pocket the $6 million obtained
    from the CPA clients to "purchase" the RBG Notes from Local
    99's Plan and that he did not intend the loss to the CPA
    clients.    Rather, he hoped that the RBG Notes would mature and
    argued that, in fact, there was still some value to these
    Notes.     He analogized to fraudulent loan cases and suggested
    that, just as the value of the assets pledged to secure a
    fraudulent loan reduces the amount of loss in a fraudulent loan
    1
    We refer to the November 2000 Sentencing Guidelines. LaScola
    did not object to the use of this version in the district court.
    On appeal, he refers to the November 1998 version of the
    Guidelines, contending that "[e]xcept for clarifications, the
    Guidelines in effect as of the last date of criminal activity, in
    this case 1998 Guidelines, are to be used." Reply brief at p.15,
    n.1. In fact, however, "[b]arring any ex post facto problem, a
    defendant is to be punished according to the guidelines in effect
    at the time of sentencing." United States v. Harotunian, 
    920 F.2d 1040
    , 1041-42 (1st Cir. 1990). In any event, for purposes of this
    case, there is no dispositive distinction between the 1998 and 2000
    versions.
    We note that, effective November 2001, the Sentencing
    Commission   deleted   the   separate  fraud   guideline   (§2F.1),
    consolidating it with the theft guideline (§2B1.1), and resulting
    in a completely rewritten §2B1.1. We use the former designations
    of §2F1.1.
    -3-
    case, so too the "value" of the RBG Notes should reduce the
    amount of loss attributed to his conduct.    The court rejected
    that assessment, instead calculating the loss as the amount of
    money that LaScola improperly transferred from the various
    accounts -- well in excess of $5 million -- and concluding that
    LaScola's purported expectation that the Notes would mature was
    irrelevant.
    "We review the district court's interpretation of the
    loss provisions of the Guidelines de novo and review its
    factual findings only for clear error."       United States v.
    Blastos, 
    258 F.3d 25
    , 30 (1st Cir. 2001).    On appeal, LaScola
    contends that, although he was convicted of fraud, the court
    erroneously treated his conduct as a theft to determine the
    amount of loss.    There was no error.   The commentary to the
    fraud guideline itself provides for such cross-reference.   See
    U.S.S.G. §2F1.1, comment. (n.8). Further, LaScola continues to
    assert that his case is analogous to a fraudulent loan case and
    thus he should be credited with the "value" of the RBG Notes to
    offset any loss to his victims.     Amazingly, although LaScola
    conceded in the district court that the loss was $2.5 and $5
    million, he now contends on appeal that the net loss to the
    victims was $0.2    "The Guidelines recognize loan fraud as a
    specific exception to the usual methods of calculating loss set
    2
    He relies on purported property appraisals of the real estate
    developments supported by the RBG Notes, the worthiness of which is
    unknown, and, more importantly, are not properly before this court
    as they are not part of the district court record.
    -4-
    forth in §§2F1.1 and 2B1.1."       United States v. Stein, 
    233 F.3d 6
    , 18 n.8 (1st Cir. 2000), cert. denied, 
    532 U.S. 943
    (2001).
    LaScola's attempt to mark his scheme as analogous to loan fraud
    is a grievous misfit.        There was no error in the district
    court's rejection of the attempt.
    §2F1.1(b)(6)(C) - Sophisticated means
    In the district court, LaScola argued that there was
    significant overlap between the "more than minimal planning"
    adjustment, §2F1.1(b)(2)(A), and the "sophisticated means"
    adjustment, §2F1.1(b)(6)(C), such that it amounted to double
    counting. LaScola did not renew this contention in his initial
    appellate    brief   and   the   government   contends   that   he   has
    abandoned that argument. LaScola tardily attempts to resurrect
    this double counting argument in his reply brief but, as we
    have repeatedly stated, "a legal argument made for the first
    time in an appellant's reply brief comes too late and need not
    be addressed."    United States v. Brennan, 
    994 F.2d 918
    , 922 n.7
    (1st Cir. 1993).
    On appeal, LaScola contends that the district court
    determined    that   the   "sophisticated     means"   adjustment    was
    warranted because he used a computer system to execute his
    crimes and argues that this was error because operation of the
    computer program took little skill or training.          LaScola also
    argues that the computer software was used simply to carry out
    the fraud and not to conceal it and, in fact, its use insured
    the detection of the fraud because it would reveal the accounts
    -5-
    affected, by how much, and to where the missing funds had been
    sent.
    LaScola's description of the basis of the court's
    ruling is deliberately myopic.        The district court found the
    application   of   the   "sophisticated    means"   adjustment   was
    warranted not because LaScola used a          computer system but
    because he not only stole the existing funds from CPA clients'
    accounts but converted those accounts to margin accounts,
    giving him the ability to borrow additional money in the
    clients' names.3   The emphasis and impetus for the finding of
    "sophisticated means" was not, as LaScola portrays it, on the
    use of a computer system itself but on how LaScola used that
    system in executing the offense by accessing his clients'
    accounts and converting them to margin accounts enabling him to
    steal more than the existing funds.       There was no error either
    in the court's factual finding or in its application of the
    sophisticated means adjustment.       See United States v. 
    Humber, 255 F.3d at 1308
    , 1311 (11th Cir. 2001) (reciting standard of
    review).
    §2F1.1(b)(8)(A) - Failure of a financial institution
    In the district court, LaScola argued against the
    application of this guideline on the ground that both CPI and
    CPA were purely sales organizations that, although may have
    3
    LaScola contends that the district court "erred" in stating
    that he "took" the passwords. LaScola says that he did not take
    the passwords; rather, he says, he instructed an employee with the
    password to execute the transaction.       This is a meaningless
    quibble.
    -6-
    facilitated    trades,     never    actually    executed   trades   nor
    custodied assets resulting from such trades.          He argued for a
    distinction between an "introducing broker" which has a limited
    capacity to perform functions and a "clearing broker" which is
    the custodian of securities and can clear and settle trades in
    a client's accounts.      According to LaScola, CPI simply managed
    assets and CPA simply processed transactions, relying upon
    Wexford (the subsidiary of Prudential Securities), Fleet Bank
    and other financial institutions to execute trades or custody
    assets   and   those    financial    institutions,   argued   LaScola,
    remained safe, sound and solvent. The district court concluded
    that both CPI and CPA met the guideline definition of financial
    institution and became insolvent as a result of LaScola's
    conduct.       It      rejected     LaScola's   distinction    between
    "introducing broker" and "clearing broker" as unavailing in
    light of the clear language of the guideline definition.            See
    U.S.S.G. §2F1.1, comment. (n.19).
    On appeal, LaScola renews his argument but provides
    no persuasive authority. There was no error in the application
    of this guideline adjustment.        See United States v. Ferrarini,
    
    219 F.3d 145
    , 159 (2d Cir. 2000) (reciting standard of review),
    cert. denied, 
    532 U.S. 1037
    (2001).
    §3A1.1(b)(1) - Vulnerable victim
    At sentencing, LaScola withdrew any objection to the
    application of the vulnerable victim adjustment.           LaScola was
    personally questioned by the district court as to whether he
    -7-
    understood that he was waiving his right to challenge that
    adjustment and he replied in the affirmative and stated that he
    had no questions about his waiver.       Sentencing Tr. of 5/22/01
    at p.5.     Nonetheless, LaScola, on appeal, now argues that the
    application of this guideline was error.             This challenge is
    waived.   See United States v. Ciocca, 
    106 F.3d 1079
    , 1085 (1st
    Cir. 1997) (refusing to review waived issue).
    Departure
    At   sentencing,   LaScola   made   an   oral   motion   for
    departure, arguing that the resulting guideline sentencing
    range of 87 to 108 months was far in excess of the sentences
    imposed in other fraud cases in the districts of Rhode Island
    and Massachusetts.      In support, he proffered information he
    apparently had obtained simply from the face of the court
    dockets, i.e., docket numbers, term of imprisonment imposed,
    and amount of restitution ordered.         He conceded that he was
    unaware of whether adjustment factors, such as vulnerable
    victim and/or sophisticated means, were applied in these cases.
    The district court rejected LaScola's proffered material as
    insufficient to find that his case lay outside the heartland of
    cases and denied a downward departure.
    On appeal, LaScola reiterates his downward departure
    argument, albeit in the guise of a "heartland argument," but,
    as we have repeatedly held, a district court's refusal to
    depart downward is not reviewable unless based on a mistake of
    law.   See United States v. Bunnell, 
    280 F.3d 46
    , 50 (1st Cir.
    -8-
    2002).   There was none here. The district court recited the
    proper standard for finding a departure but found LaScola's
    proffer insufficient to support one.   Moreover, we have held
    "the fact that the national median for a broadly stated offense
    type may be above or below a particular defendant's GSR cannot
    be used to justify a sentencing departure."   United States v.
    Martin, 
    221 F.3d 52
    , 57 (1st Cir. 2000).
    The judgment of the district court is affirmed.
    -9-