United States v. Bennett, 1st Cir. (1995)
United States v. Bennett, 1st Cir. (1995)
United States v. Bennett, 1st Cir. (1995)
____________________
No. 95-1051
Appellant,
v.
Defendant, Appellee.
____________________
____________________
Circuit Judges.
______________
____________________
Attorney, with w
_________________
____________________
for resen-
ward
adjustment
__________
departure
_________
("GSR").
from
ruling
its
an
nonetheless
recalculated
warranted
guideline
I
I
BACKGROUND
BACKGROUND
__________
downward
sentencing
appealed, and we
down-
range
A.
A.
Webster
more
than ten
Webster's
("Plymouth
lines of
credit
Federal") and
which Bennett
held
fraudulent
in trust
real
estate
loans based
with Plymouth
New Bedford
benefit of
on
Federal Savings
Institution
for the
Bank
for Savings,
of real properties
himself and
involved aliases,
Daniel
his wife.
false loan
The
docu-
Deposit Insurance
Following its
discovery by the
Federal
of 1990, Daniel
Webster
the
parties
Bennett
entered
into
settlement
On February 1, 1991,
agreement,
requiring
In
counts for
late
1991, Bennett
fraudulently
institution,
see
___
was
obtaining
18 U.S.C.
indicted
$900,000
20
on nine
from
(1988) (defining
institution"),
between August
U.S.C.
1344.
Bennett
at
1988 and
$900,000, see
___
government's contention
October
financial
"financial
1989.
See 18
___
all charg-
by
2F1.1(b), rejecting
the
U.S.S.G.
include, as
not charged
in
district court
the indictment.
$589,000
then deducted
(1) the
discovery of his
"at least
The
that the
felony
$660,000"
of the civil
Daniel Webster
suit settlement
agreement
Having determined
two-level downward
tance
loans in full.
of responsibility
by
been occasioned by
agreeing to
settle the
indictment
8,1
____________________
1The
TOL
calculations
at
the first
sentencing
were
follows:
as
from 2 to
release,
8 months'
and a
imprisonment, 24 to
$5,000
sentenced Bennett to
to $50,000
fine.
24 months' probation
36 months'
The
supervised
district
court
home
B.
B.
Bennett I
Bennett I
_________
On
had
erred in
U.S.S.G.
excluding from
the total
loss
calculation under
I,
_
37 F.3d
$660,000"
crimes had
at
694, and
in
crediting Bennett
been discovered.
Id.
___
at 695
with "at
("'[T]he loss
least
is the
offense is discov-
loan.'")
n. 7(b)).2
(citing U.S.S.G.
2F1.1,
Finally, Bennett
_______
____________________
(2)
_______
TOL
1(a) the
total
dollar
involved in the
2F1.1 on remand:
amount
of
the
fraudulent
loans
($900,000);
and
___
conduct"
guideline calculation
within the
($526,000);
less
____
I held
for acceptance of
__________
strated
settling
genuine
contrition nor
the
charges throughout
made
voluntary
_________
pled guilty to
trial and
at sentencing
98.
We
therefore vacated
resentencing.
C.
C.
by maintaining
and remanded
for
Id. at 700.
___
Resentencing
Resentencing
____________
On
loss
restitution by
remand the
at $837,000, after
district court
recalculated the
total
occasioned by the
for a downward
____________________
2(a) the
total dollar
defendant
amount of
prior to
May 3,
all
loans repaid
______
1990 ($589,000),
by the
the date
(b) the
total recoveries
expected
from all
realized
collateral
encompassed within
and reasonably
pledged
to secure
in all counts
the relevant
to
be
the
of conviction
conduct calcula-
tion.
2
______
TOL
18
two
factors
First,
ostensibly warranting
Bennett had
sentence, including
Second,
already
served a
departure
portion
from the
of the
GSR.
original
According-
ly,
the district
from
the
months'
a six-month
recalculated 27-month
home
detention term
further 15-month
of
court granted
entering into
$694,000.4
The
downward departure
GSR minimum,
already
served,
based on
combined with
"extraordinary act"
settlement agreement
district court
the six
then imposed
to repay
the minimum
six-
II
II
DISCUSSION
DISCUSSION
__________
The United
both a
tance of responsibility
Bennett I
_________
foreclosed
a downward departure
for accep-
based on the
Ben-
nett's
belated
expression of
contrition
at
sentencing.
U.S.S.G.
See
___
3E1.1 (permit-
____________________
4As the
departure,
Zackular,
________
945
not
address it.
F.2d 423,
confinement as "official
425
(1st Cir.
severely curtailed
cf.
___
United States
_____________
1991)
by
18 U.S.C.
"While a defendant's
. .
. home
v.
(rejecting home
But
___
confinement,
movement
. .
al equivalent of incarceration in either a practical or a psychological sense."); see also Reno v. Koray, 115
___ ____ ____
_____
Act of 1984,
3585(b),
ting
two-level downward
adjustment for
__________
clear demonstration
of
acceptance of responsibility).
A.
A.
Downward Departure
Downward Departure
__________________
extraordinary case
30
F.3d 199,
201 (1st
Cir. 1994);
see also
___ ____
United States v.
______________
Rivera,
______
994 F.2d
942, 947-49
(1st Cir.
1993).
legal" rulings
the guideline
The departure
First,
all "quintessentially
forbids departure
for the kinds of reasons relied upon by the sentencing court) are
_____ __ _______
reviewed de novo.
__ ____
Second,
the "heartland"
determination
itself is
1.
1.
Extraordinary Act
Extraordinary Act
_________________
F.2d at 951).
reviewed with
superior 'feel'
$660,000
that seldom
occurs in
"should be
rewarded .
avoided
explicit
the criminal
. ."
reliance
apparently in deference to
that
restitution
must
courts," for
The district
on
"acceptance
court
carefully
of responsibility,"
Bennett I, 37 F.3d at
_________
be "'genuinely
which Bennett
voluntary,
698 (stressing
rather
than
motivated
primarily
desire to settle
by a
collateral
consideration
such as
United States v.
_____________
"extraordinary acceptance of
suit
and
"genuinely voluntary," 37
F.3d at 698,
that "'restitution is relevant to the extent it shows accep__ ___ ______ __ _____ ______
tance of responsibility.'"
_____ __ ______________
(emphasis added).
Consequently, whether
showing that it
adjustment or
formed a
a downward
or not the
either a
civil suit
downward
for establishing
"heartland."
F.2d at 947.
As the
ture
the civil
suit settlement
and
could not
acceptance
basis
form
Bennett I, which
_________
"voluntary" within
the basis
of responsibility,
for
it
a downward
could
at 698,
adjustment
__________
afford no
for
permissible
ty
substantially
greater
than
that required
3E1.1).
for
downward
2.
2.
On
appeal, Bennett
broaches
for the
first time
the
be upheld
either because
significantly
U.S.S.G.
overstates
the
seriousness of
loss causation.
See, e.g.,
___ ____
loss recalculation
his
conduct, see
___
or on the ground
United States v.
_____________
of multiple
Rostoff, 53
_______
F.3d
may be
sentation
. .
(citing U.S.S.G.
. is
not the
sole cause
of the
loss. .
. .")
Although
overstated
as
Bennett
contends
consequence of
an
that
the
economic
total
loss
downturn in
is
the
settlement
was disputed
at
the initial
sentencing; viz.,
the
At that
value
of the settlement
proved properties
and other
took title to
assets tendered
by
the im-
Bennett.
The
ed
$660,000."
of a
sudden, unforeseen
significantly lowered
his
illegal
proceedings he
downturn in
borrowings, but
maintained that
these properties.
throughout
that
both prior
sentencing
not affected
causation" claim
sentencing
has not
50, 55
been preserved,
as in other contexts
. . .
("[I]n connection
with
addressed to the trial court may not be raised for the first time
in
contradicted
that it is
unsupported
indeed
by the record.
III
III
CONCLUSION
CONCLUSION
__________
been
foreclosed, we vacate
district court
the second
sentence imposed
by the
sentencing range
SO ORDERED.
SO ORDERED.
__ _______
10