United States v. Delpiano ( 2006 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 05-2312
UNITED STATES OF AMERICA,
Appellee,
v.
DANIEL DELPIANO,
Defendant, Appellant.
[Hon. Joseph L. Tauro, U.S. District Judge]
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
Before
Selya, Lynch and Howard,
Circuit Judges.
Jerome J. Froelich, Jr., and McKenney & Froelich on brief for
appellant.
Carmen M. Ortiz, Assistant U.S. Attorney, and Michael J.
Sullivan, United States Attorney, on brief for appellee.
May 26, 2006
Per Curiam. Daniel DelPiano pled guilty to conspiring
with others to defraud a commercial lender, Microfinancial, Inc.,
into providing his company, Premier Holidays International, Inc.,
with a line of credit of $12 million.1 After United States v.
Booker, 543 U.S. 220 (2005), DelPiano was sentenced to 60 months'
imprisonment, the statutory maximum, which was three months below
the bottom of the otherwise applicable guideline sentencing range.
On appeal, DelPiano challenges his sentence on the sole ground that
the sentence imposed is contrary to the court's findings in his
favor at the sentencing hearing. Notably, he does not argue that
the district court failed to make factual findings on disputed
issues, made factual or legal errors in applying the guidelines,2
or imposed an unreasonably high sentence under Booker.
The district court's "reasoning can . . . be inferred by
comparing what was argued by the parties or contained in the pre-
sentence report with what the judge did." United States v.
Jiménez-Beltre, 440 F.3d 514, 519 (1st Cir. 2006) (en banc); see
1
The details of this fraudulent scheme are set forth in this
court's affirmance of a $23 million civil judgment against
DelPiano's company arising from the same scheme, Microfinancial,
Inc. v. Premier Holidays Int'l, Inc., 385 F.3d 72, 75-76 (1st Cir.
2004).
2
In the district court, DelPiano argued that one of his two
prior convictions should not have been counted in determining his
criminal history category because he was not sentenced to
imprisonment or probation but only required to pay a fine. On
appeal, he alludes to, but does not brief, that argument.
Therefore, we need not address it. Lupien v. City of Marlborough,
387 F.3d 83, 89 n.4 (1st Cir. 2004).
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also United States v. Cruz, 981 F.2d 613, 618 (1st Cir. 1992).
Because the court imposed a guidelines sentence, it was not
required to state its reasons with specificity in the written
judgment. See 18 U.S.C. § 3553(c). Its reasoning is fully
consistent with the sentence imposed.
In particular, we infer that the district court rejected
DelPiano's request for an acceptance-of-responsibility reduction
for the primary reason argued by the government--DelPiano's failure
to provide complete and accurate information about his financial
situation. That failure was fully detailed in the presentence
report. Although DelPiano's counsel took the "position [that
DelPiano] provided the financial information," he offered no
evidence to contradict the contrary findings of the presentence
report, with which the district court was familiar and whose
findings the court adopted in its written statement of reasons. We
further infer that the district court was not sufficiently
impressed by the limited extent of DelPiano's cooperation, as
described by a testifying government agent, to grant an acceptance-
of-responsibility reduction on that ground. Because the district
court's denial of an acceptance-of-responsibility reduction was
consistent with these implicit reasons, it is immaterial that the
court expressly declined to rely on DelPiano's recent arrest as a
further reason for declining to grant such a reduction.
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As to calculation of the criminal history category--the
only other disputed issue--we infer that the district court relied
on the calculations contained in the presentence report, which
placed DelPiano in criminal history category II based on his two
prior convictions, and that it rejected DelPiano's argument that
one of the convictions should not be counted for the same reasons
stated by the probation officer in overruling DelPiano's objection
to the presentence report on that ground. DelPiano's contention
that the district court agreed with his argument on that point is
not supported by the transcript of the sentencing hearing. Taken
in context, it is apparent that the court was agreeing to disregard
only DelPiano's recent arrest--not his prior conviction.
We further infer that the court agreed with the
government's arguments that a 60-month sentence was further
warranted "based on other factors . . . under [18 U.S.C. §] 3553(a)
. . ., not only just the seriousness of the offense but the
background and characteristics of the defendant and trying to
reflect a sentence that [provides] just punishment for the
offense." DelPiano made no argument that the statutory factors
warranted a lesser sentence.
Given the above inferences, all of which are supported by
the record, there is no inconsistency between the district court's
reasoning and the 60-month sentence imposed. Nor is there any
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inconsistency between the district court's written statement of
reasons and its oral statements at sentencing.
Accordingly, the sentence is summarily affirmed. See 1st
Cir. R. 27(c).
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