United States v. Scarpaci

32 F.3d 561 NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases. UNITED STATES of America, Plaintiff, Appellee, v. Guy J. SCARPACI, Defendant, Appellant. UNITED STATES of America, Plaintiff, Appellee, v. Robert M. GAWLOWICZ, Defendant, Appellant. Nos. 93-1892, 93-2222. United States Court of Appeals, First Circuit. August 17, 1994. APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Joseph L. Tauro, U.S. District Judge Robert E. Kenney for appellant Scarpaci. Willie J. Davis for appellant Gawlowicz. Peter A. Mullin, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, and Dennis C. Mahoney, Special Assistant United States Attorney, were on brief for appellee. D.Mass. AFFIRMED. Cyr and Stahl, Circuit Judges, and Zobel,* U.S. District Judge. Per Curiam. — 1 — Appellants Guy Scarpaci and Robert Gawlowicz challenge the sentences imposed following their convictions on fraud charges. Scarpaci contends that the district court improperly enhanced his sentence for obstruction of justice. Gawlowicz claims that the court mistakenly believed that it lacked authority to depart below the Guideline Sentencing Range (GSR). Finding no merit in their contentions, we affirm the district court judgments. — 2 — Scarpaci and Gawlowicz were associated with United States Funding (USF), a mortgage broker which was engaged in finding and providing mortgage financing for USF clients. Scarpaci founded USF and served as its president and sole stockholder throughout its existence. Gawlowicz was employed by USF. USF engaged in various types of fraud: falsifying information pertaining to the financial condition of borrowers and the value of their collateral; paying kickbacks to an officer of a financial institution which purchased loans from USF; preparing false financial statements relating to USF itself; and kiting checks. Scarpaci was involved in all aspects of USF's fraudulent activities. Gawlowicz helped prepare numerous false appraisals for use by USF. — 3 — On appeal, Scarpaci challenges the two-point upward adjustment imposed for obstructing justice. See U.S.S.G. Sec. 3C1.1.1 Although Scarpaci concedes that USF records were destroyed, he argues that there was no proper basis for finding that he caused their destruction with intent to obstruct justice.2 We review the sentencing court's findings of fact for clear error. United States v. Figaro, 935 F.2d 4, 8 (1st Cir. 1991). — 4 — The presentence report (PSR) states that Scarpaci instructed Stephen Wilson to destroy USF documents in order to impede the criminal investigation. Scarpaci did not contradict this proposed PSR finding, but merely responded that he had "no present recollection" of such an instruction. Thus, the district court finding that Scarpaci obstructed justice was supportable on uncontroverted information related in the PSR. See United States v. Blanco, 888 F.2d 907, 908-09 (1st Cir. 1989) (defendant's failure to dispute truth of statement provided proper basis for finding). — 5 — Gawlowicz attempts to challenge the district court's decision not to depart below the GSR. Unless the district court misapprehended its authority to make such a departure, however, we have no jurisdiction to review its departure decision. United States v. Romolo, 937 F.2d 20, 22 (1st Cir. 1991). — 6 — Gawlowicz cited three alleged grounds for the departure request: his minimal role in the offense, the need to "equalize" sentences among codefendants, and economic duress. Although the court approved a four-point downward adjustment pursuant to U.S.S.G. Sec. 3B1.2, due to Gawlowicz' minimal role in the offense, it declined to depart below the GSR. Gawlowicz insists that the court's comments at sentencing evince a misunderstanding of its authority, under United States v. Rivera, 994 F.2d 942 (1st Cir. 1993), to depart downward: — 7 — THE COURT: Let me say this: I don't think as a matter of law that I can [depart] here. If I am wrong and you want to appeal that point, maybe I will get some guidance from you on appeal. I think as a matter of law I may not do what you suggest. — 8 — The sentencing hearing transcript as a whole reveals, however, that the court fully appreciated the bounds of its departure authority but concluded that departure was not warranted in the circumstances of this case.3 The court was conversant with Rivera and related case law, as well as the Guidelines. Two of the grounds upon which Gawlowicz based his departure request-equalization of sentences and economic duress-are forbidden grounds for departure. See United States v. Wogan, 938 F.2d 1446, 1448 (1st Cir.) ("a perceived need to equalize sentencing [among defendants] ... will not permit a departure"), cert. denied, 112 S. Ct. 441 (1991); Rivera, 994 F.2d at 949 (personal financial difficulties do not permit departure). Thus, the court correctly perceived that a downward departure was not permitted in these circumstances. See United States v. LeBlanc, 24 F.3d 340, 348 (1st Cir. 1994).4 Consequently, we lack jurisdiction to entertain a challenge to the district court decision denying the request for a downward departure. — 9 — Affirmed. Footnotes [-s] * Of the District of Massachusetts, sitting by designation [1] Scarpaci has withdrawn a claim that the district court erred in combining upward adjustments under U.S.S.G. Sec. 2F1.1(b)(2) (more than minimal planning) and U.S.S.G. Sec. 3B1.1(a) (managerial role in offense). See United States v. Lilly, 13 F.3d 15, 17-18 (1st Cir. 1994) (holding these adjustments not mutually exclusive) [2] Scarpaci further argues that there could have been no obstruction of justice because the information in the destroyed USF records was readily obtainable by the government, and that he did not give instructions to destroy the documents with the intent of obstructing any investigation. Aside from the problematic assumptions upon which these claims are premised, Scarpaci neglected to surface either contention before the district court. As neither argument was raised below, both are deemed waived. United States v. Dietz, 950 F.2d 50, 55 (1st Cir. 1991) [3] In rejecting the departure request, the court stated: I don't think this is that kind of circumstance. There are cases that go the other way that are quite specific ... But, on the other hand, there is always a ray of light. I don't see that in this case ... I have Riviera [sic] ... I thought it was an excellent opinion, and it provides us with more guidance than we have had up to this point, and if more is coming, that is very well. (Emphasis added.) [4] We think it clear also that a downward departure was not warranted based solely on Gawlowicz's minimal role in the offense, as the court reflected this factor in its four-point downward adjustment under U.S.S.G. Sec. 3B1.2