Académique Documents
Professionnel Documents
Culture Documents
____________________
No. 95-1008
UNITED STATES,
Appellee,
v.
Defendant, Appellant.
____________________
____________________
Before
____________________
United
States
Attorney,
and
Jean B. We
____________
____________________
____________________
Per Curiam.
__________
Following
an earlier appeal in
which this
___ _____________
29
F.3d 11
(1st Cir.
1994), the
______
district court
sentenced
an
upward departure
undertaken
by the
court.
This
time
See Loc.
___
R. 27.1.
Defendant,
a real estate
broker and
financial adviser
Pelkey, 29
______
and one
At the
original sentencing
See 18 U.S.C.
___
on October
18, 1993,
1341, 1343.
the court
imposed a prison
term of 43
months.
of 17,1 which
It first
calculated a
(with a criminal
history
The
court
warranted
then
determined
because
the
applicable provision of
that an
upward
ten-level increase
departure
mandated
was
by the
not "fully
____________________
1.
The total
offense level
(1992);
$500,000, id.
___
more than one
enhancement for
plus
was comprised of
the following
levels
for
losses
U.S.S.G.
exceeding
vulnerable victim,
id.
___
3A1.1;
less three
3E1.1.
___
defendant's conduct.
U.S.S.G.
In
support
of this
conclusion,
the
court cited
defendant
victims
was or
should
were elderly
have been
individuals
aware,
who lost
several of
most or
two
as
the
all of
their
life
financial
savings,
security;
with
and (2)
"extreme psychological
value
little
prospect
several
injury."
of
victims
Suggesting
regaining
had suffered
that the
real
____________________
2.
part as follows:
In
cases
in
which
subsection
(b)(1)
harmfulness
and
upward departure
the
does
loss
not
seriousness
may be
determined
fully
of
capture
the
warranted.
under
the
conduct, an
Examples may
the
primary objective
of the
fraud was
non-monetary;
(b) false statements were made for the purpose
of facilitating some other crime;
(c)
the
offense
caused
physical
or
psychological harm;
(d) the offense
or military readiness;
endangered national
security
U.S.S.G.
(1992).
Effective
as of
(f)
the
endangerment
offense
of
the
involved
solvency
of
victims.
-3-
the
one
knowing
or
more
On
appeal,
we agreed
with
defendant
With respect
to the court's
"[t]he failure to
by
the
grounds
application note
time, we
cited
were inadequate.
first rationale, we
have a secure
that the
noted that
not,
for
departure
10.3
Pelkey, 29
______
listed
as
examples
F.3d at 15.
in
At the same
a distinction "between
60-year-old
of
her savings."
Id.
That
distinction, we
___
for
five-level departure."
Id.
___
Yet
we specifically left
open
some
or
that
the facts
serious caliber"
10.
Id.
___
present[ed]
situation
We also
equal to
the
in application note
amendment to
____________________
3.
As to the
was not
"so
far beyond"
that experienced
in "the
as to justify a departure
on such
basis.
-4-
note
10
which
encouraging
had
added
departure
to
where
that
"the
list
of
examples
offense involved
by
the
Id. at
___
(1993)).
We observed that
a departure on
this ground--one
victim
pushed a
On
the
remand, after
parties, the
endangered
the
receiving supplemental
court found
solvency of
that defendant
several
of
her
Id.
___
evidence from
had knowingly
victims.
It
reach
of 19.
below, defendant
amendment
clause;
to application note 10
(2) consideration
of the
(1) reliance
As she did
on the
1993
government's supplemental
affidavits was
insufficient
departing
to
support
and
the
the
evidence
upward
was
departure;
otherwise
and
(3)
in conjunction
resulted
improper,
in
with the
adjustment for
vulnerable victims,
impermissible double-counting.
-5-
Each
of these
"To
avoid
ex post facto
______________
difficulties,
courts should
they
change
clarify
a guideline,
a guideline.'"
but
not
United States
_____________
slip op.
at 12 (1st
if they
only if
substantively
v. Rostoff,
_______
___ F.3d
Cir. 1995)
(quoting
suggests,
is
apparent from
Commission, which
the
language
employed by
the
the amendment as
one
that "revises
_______
the Commentary
to
2F1.1
by expanding
_________
the offense."
added).
482
were
characterized
as
"clarifying,"
she
adds,
only
We
disagree.
and a substantive
"clear-cut,"
Cir.
revision of the
a clarification
guidelines is not
1992), and
support
the Commission's
either view.4
____________________
Of greater
language can
relevance, we
always
60, 62 (1st
be read
to
think, is
4.
the amendment
could be
no occasion
because it
here--other than
to
-6-
As we indicated in our
based on unusual
Indeed, other
courts have
by a victim
1993 amendment.
See id.
___ ___
upheld departures on
was
at 15.
this ground
See,
___
e.g., United States v. Kaye, 23 F.3d 50, 53-54 (2d Cir. 1994)
____ _____________
____
a degree
of harm
United States
_____________
(affirming
v. Stouffer, 986
________
departure
caused thousands
based
of investors
S. Ct. 115
by Commission);
on finding
that
to lose their
(1993).
To a
(5th Cir.)
fraud
scheme
life savings),
large extent,
therefore,
the 1993
practice.
amendment simply
codified pre-existing
of the amendment
raises no
ex post facto
_____________
v. Fadayini,
________
28 F.3d
concerns.5
See,
___
1236, 1242
(D.C.
____________________
is
generally
see
___
Stinson
_______
v.
United
______
that "subsequent
like
binding,
the
problems
guidelines
when
themselves,
present
applied retrospectively."
United States v.
______________
5.
also
that
the
departure
could
have
been
-7-
application note
10(f) on
retroactive
1995) (same).
Evidentiary Issues
__________________
In
the
earlier appeal,
remanded "for
Pelkey,
______
29
objection,
resentencing
F.3d
at
On
court
victims.6
Defendant now
court
exceeded the
scope of our
specifically
the sentence
remand,
this
over
permitted the
be reopened.
contemplated
that
the
Yet
from three
the district
permitting the
court might
15.
opinion."
government to
insists that
mandate by
and
defendant's
of the
evidentiary record to
vacated
consistent with
16.
the district
we
make
new
See id. at
___ ___
sides to
F.3d 64,
engage
in
fully
de novo
_______
v. Bell, 5
____
hearing
in
which
previously
____________________
6.
These
impact
statements
to
the
Probation
Office,
which
were
7.
The
regarding
defendant
declined
the financial
to
solvency
present
any
issue, but
new
evidence
did take
the
-8-
forfeited
issues were
States v. Bell,
______
____
declined to
(for
resuscitated,
988 F.2d
see generally
______________
entertain a proposed
United
______
1993);8 indeed,
it
government.
Parker,
______
And
defendant's reliance
on United States v.
______________
was
the offense.
Defendant's
secondary
contention in
this regard--that
knowingly
endangered the
solvency
of one
victims--is advanced
only in
summarily rejected.
It suffices to note
or
that she
more of
her
can be
the
last
penny
presentence
and
report
she
took
indicated
that
that
also";
and
(2)
the
LeClair
had
provided
____________________
8.
Whether
situation,
is a
v. Ortiz,
_____
question not
25 F.3d 934,
before us.
935 (10th
See,
___
Cir.
1994).
9.
Any
As the
district court
inferable
presentence
report.
from
the
Indeed,
that defendant
evidence
contained in
defendant acknowledged
the
below
earlier
-9-
defendant
with
a copy
of
his assets
and
liabilities; he
my
that if she
didn't give me
"the
departure-justifying
cannot
be
deemed
clearly
circumstance
actually
existed"
erroneous.
United States
______________
v.
Double-Counting
_______________
Finally,
undertaking an
victims,
while
we
reject
defendant's
contention
simultaneously
imposing
that
impact on the
two-level
double-counting.
earlier
F.3d at 14-15,
as did the
Commission
in its
While
two
the
1993
matters
amendment to
do overlap,
application note
there
remains
10.
a core
on an
which
crime.
such,
capture
"the
vulnerable
victim
enhancement
does not
As
fully
-10-
the victim."
Id.
___
no double-counting occurred.
Affirmed.
_________
-11-