United States v. Gambaro

Not for Publication in West's Federal Reporter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. 02-1859
UNITED STATES OF AMERICA,
Appellee,
v.
RICHARD A. GAMBARO,
Defendant, Appellant.
ON 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,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
David Abraham Silverman on brief for appellant.
Donald C. Lockhart and Kenneth P. Madden, Assistant United
States Attorneys, Craig N. Moore, United States Attorney, on brief
for appellee.
September 22, 2005
Per Curiam. Richard Gambaro pled guilty to intentionally
distributing 53 grams of crack cocaine and was sentenced to 151
months' imprisonment, five years' supervised release, and a fine of
$16,735.40. He now appeals from his sentence on four grounds:
(1) that the district court erred in failing to specify the number
and timing of drug tests that he must undergo while on supervised
release; (2) that the district court impermissibly imposed the
standard conditions of supervised release in its written judgment
without first announcing them orally at sentencing; (3) that the
district court erred in imposing a fine without considering his
ability to pay and without making necessary findings; and (4) that
he is entitled to resentencing under Blakely v. Washington, 124 S.
Ct. 2531 (2004), and United States v. Booker, 125 S. Ct. 738(2005). Because none of those issues was raised below, they are
reviewed only for plain error. United States v. Glenn, 389 F.3d
283, 288 (1st Cir. 2004). Finding no such error, we affirm.
1. Drug Testing Conditions of Supervised Release
Gambaro first argues that the district court violated 18
U.S.C. § 3583(d) and USSG § 5D1.3(a)(4)1 by failing to specify the
maximum number and timing of drug tests that he must undergo while
on supervised release. That argument can be quickly disposed of.
1
Both of those provisions mandate that a defendant on
supervised release be required to submit to one drug test within 15
days of release and at least two periodic drug tests thereafter
"(as determined by the court)."
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As to the number of drug tests, the written judgment
specifies that "[t]he defendant shall submit to one drug test
within 15 days of release from imprisonment and at least two
periodic drug tests thereafter." We have construed that language
as judicially capping the number of drug tests at three. United
States v. Lewandowski, 372 F.3d 470, 471 (1st Cir. 2004).
Gambaro provides no authority for the proposition that
the district court was further required to specify the intervals at
which drug tests will be administered, and we have found none.
Moreover, even if the district court had clearly erred in failing
to specify the timing of the drug tests, such an error would not
satisfy the third and fourth prongs of the plain error test.
United States v. Padilla, 415 F.3d 211, 221-22 (1st Cir. 2005) (en
banc).
2. Failure to Specify Conditions of Supervised Release at
Sentencing
Next, Gambaro argues that the district court's failure to
announce the specific terms of the drug testing condition or the
standard conditions of supervised release at sentencing violated
his right to be present at sentencing. That argument also lacks
merit.
Such a violation exists only where there is a "material
conflict" between the conditions announced at sentencing and those
contained in the written judgment. United States v. Meléndez-
Santana, 353 F.3d 93, 100 (1st Cir. 2003), overruled, in part, on
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other grounds by Padilla. No such conflict exists between the
language of the written drug testing condition and the more general
language of the orally imposed requirement that Gambaro participate
in "periodic testing to determine whether or not [he] is using,"
particularly where the written condition, as construed above, does
not require more than the three drug tests required by the
applicable statute, 18 U.S.C. § 3583(d), of which Gambaro had
constructive notice. United States v. De Los Santos, 2005 WL
2035234, at *4 (1st Cir. Aug. 24, 2005); United States v. Tulloch,
380 F.3d 8, 13 (1st Cir. 2004).
Nor did the district court err in failing to announce at
sentencing the thirteen standard conditions of supervised release
contained in the written judgment. At sentencing, the district
court expressly stated that Gambaro would be subject to supervision
by the probation department after his release from prison and
specifically mentioned the conditions prohibiting drug use and
requiring work at a lawful occupation. Moreover, as this court
previously recognized, "the standard conditions either impose
requirements essential to the basic administration of the
supervised release system, or regulate other matters necessary to
effect the purpose of supervised release . . . [and] are so
uniformly imposed that they have become boilerplate in federal
courts." Id. at 14 n.8. Consequently, this court found it
"doubt[ful] that defendants can legitimately claim surprise or
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raise right-to-be-present claims when the standard conditions set
out in the Guidelines are included in a written judgment without
having been mentioned at the sentencing hearing." Id.
3. The Fine
Gambaro challenges the $16,735.40 fine primarily on the
grounds that the district court imposed it without considering his
ability to pay and without making any findings as to the relevant
factors.2 Those arguments are foreclosed by our prior decisions
holding that express consideration of and findings concerning a
defendant's ability to pay and other relevant factors are not
required. See United States v. Rowe, 268 F.3d 34, 39 (1st Cir.
2001); United States v. Lujan, 324 F.3d 27, 34 (1st Cir. 2003).
Here, moreover, the district court did expressly consider Gambaro's
ability to pay and other relevant factors and made express findings
that the fine imposed was warranted in light of those factors.
4. Blakely/Booker Error
While this appeal was pending, the Supreme Court decided
first Blakely and then Booker, and the parties were permitted to
file supplemental briefs addressing each of those cases. The
parties agree that Gambaro's Blakely/Booker claim was not preserved
2
Gambaro also argues that restitution was improper here
because there was no victim. That argument misses the mark because
no restitution was ordered. His perfunctory statement, without
developed argument or authority, that the fine violated the
Excessive Fines clause of the Eighth Amendment need not be
addressed. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990).
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below and that the first two prongs of the plain error standard are
satisfied since Gambaro was sentenced under the then-mandatory
Guidelines. Therefore, the issue here reduces to whether Gambaro
has shown a "reasonable probability that the district court would
impose a different sentence more favorable to [him] under the new
'advisory Guidelines' Booker regime." United States v.
Antonakopoulos, 399 F.3d 68, 75 (1st Cir. 2005).
Gambaro's attempt to make that showing falls short. The
mitigating factors he points to--his limited education, his
learning disabilities and allegedly diminished mental capacity, his
history of alcohol and drug abuse, his parents' divorce, his
mother's alcohol abuse, his lack of lawful employment, and his
post-offense participation in a drug counseling program--were all
proffered, considered, and rejected below as grounds for a downward
departure. There is no indication that the judge would be more
sympathetic to those same factors under advisory Guidelines. See,
e.g., United States v. McLean, 409 F.3d 492, 505 (1st Cir. 2005).
Although the judge repeatedly characterized the sentence
as "long," she indicated that a long sentence, supervised release,
and a fine were all necessary for purposes of rehabilitation and
deterrence of future crimes, particularly given Gambaro's long and
serious criminal history, which the judge characterized as among
the worst she had ever seen. Given those comments, it is not
reasonably probable that the court would impose a lower sentence
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under advisory guidelines. See, e.g., United States v. Figuereo,
404 F.3d 537, 541 & n.6 (1st Cir. 2005).
Accordingly, the district court's judgment is summarily
affirmed. See Local R. 23(c).
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