USCA1 Opinion

United States Court of Appeals

United States Court of Appeals
For the First Circuit
For the First Circuit
____________________
No. 93-1642
UNITED STATES,
Appellee,
v.
JEFFREY SPRINGER,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
___________________
____________________
Before
Breyer,* Chief Judge,
___________
Boudin and Stahl, Circuit Judges.
______________
____________________
Michael C. Bourbeau,
____________________

by

Appointment

of the

Court,

with

Bourbeau and Bourbeau was on brief for appellant.

_____________________
Margaret E. Curran, Assistant United States Attorney,
___________________
Edwin J. Gale, United States Attorney, and Ira Belkin,
______________
___________
United States Attorney, were on brief for appellee.
____________________

with w

Assist

July 7, 1994
____________________

_____________________
*Chief Judge Stephen Breyer heard oral argument in this matter but
not participate in the drafting or the issuance of the pane
opinion.
The remaining two panelists therefore issue this opin
pursuant to 28 U.S.C.
46(d).

STAHL, Circuit Judge.

_____________
sentence imposed

after he

Jeffrey Springer appeals the

pled guilty,

pursuant to

agreement, to one count of wire fraud, 18

one

count of bank fraud,

18 U.S.C.

U.S.C.

1344.

three arguments, none of which was presented to

court

in the

first instance:

erred in granting him only

level,

acceptance

sentencing

of

1)

that the

a plea

1343, and

Springer makes
the district
district court

a two-level, rather than a three-

responsibility

guidelines offense level;

reduction
2) that the

in

his

court did

not

adequately consider his

financial circumstances when it

ordered him to pay $1,018,347

received

ineffective

attorney failed
award

him

assistance

to object to

that we

Springer
agreement.
decisions

need

of

counsel

reduction

for

waived his

consider

right to

these

appeal

his

failure to

acceptance

the restitution order.

not

because

either the court's

three-level

responsibility or to
says

in restitution; and 3) that he

of

The government

questions

as part

because

of his

plea

Because we discern no plain error in the relevant

made by the

district court, see

___

United States v.
_____________

Cabrozza, 4 F.3d 70, 84 (1st Cir. 1993), cert. denied, 114 S.

________
_____ ______
Ct. 1644 (1994),

we need not address this

issue, and affirm

defendant's sentence.
I.
I.
__
Acceptance of Responsibility
Acceptance of Responsibility
____________________________

-22

Springer

was sentenced in

the November 1992

effect

at the

May 1993.

version of the Guidelines

time of his

looked to the 1988 version

Pursuant to

(the version in

sentencing), the

district court

of the Guidelines (the version in

effect at the time Springer committed his crime) to calculate

Springer's sentence.

It did this because application of the

1992 version would have resulted in Springer receiving a more

severe sentence than he could have anticipated at the time of
his crime, see U.S.S.G.
___
courts

to

1B1.11(b)(1) (Nov. 1992) (directing

use Guidelines

in

effect

at

time offense

was

committed if Guidelines in effect at time of sentencing would

violate the Constitution's ex post facto Clause).
__ ____ _____
the

calculation of

Springer's sentence,

Springer the two-level downward

responsibility
Guidelines.
argues

available

that the

district

court granted

adjustment for acceptance of

under

See U.S.S.G.
___

the

As part of

the

1988

version

3E1.1 (Nov. 1988).

court erred

because

of

the

Springer now
it did

consider granting him a three-level reduction for

not

acceptance

of responsibility, the maximum adjustment available under the

1992

version of

the

Guidelines.

U.S.S.G.

3E1.1

(Nov.

to the

1988

1992).
The
Guidelines in

district court
determining the

correctly looked

maximum permissible

downward

adjustment for Springer's acceptance of responsibility.

The

1992 Guidelines

set forth what

has been referred to

as the

-33

"one

book" rule.

See U.S.S.G.
___

This

provision instructs

1B1.11(b)(2) (Nov. 1992).

the district

looks to an earlier version

court

that when

it

of the Guidelines to calculate a

sentence, it must apply all of the Guidelines in that earlier

___
version.

It

provides that a court

cannot "apply . .

. one

section from one edition .

. . and another guideline section

from a different edition."

Id.
___

There

is no doubt that Springer received a lighter

sentence

under

the

received

under the 1992

there

1988

Guidelines
version.

For

than

he

would

have

Springer's purposes,

was one important difference between the two versions:

under the

1988

Guidelines,

Springer's

offense

level

was

increased by nine levels to account for the $1.8 million loss

he caused,
would

while under the

have resulted

in a

1992 Guidelines, that

twelve-level

increase.

same loss
Compare
_______

U.S.S.G.

2F1.1(b)(1)(J)

(Nov.

2F1.1(b)(1)(M) (Nov. 1992).

with

three-level

responsibility,
range
months.

1988)

U.S.S.G.

This difference meant that, even

reduction

Springer's

for

applicable

under the

1992 Guidelines

Under

the 1988 Guidelines,

level reduction for

with
____

acceptance

of

guideline sentencing

would have

been 24

to 30

however, with the

two-

acceptance of responsibility, Springer's

sentencing range was 18 to 24 months.1

____________________
1. Springer was sentenced to 18
end of the Guideline.

months in prison,

the low

-44

Springer
should

not have

should

have

Guidelines'

advances

three

applied the

given

him

acceptance of

the

reasons

"one book"
benefit

why

the

rule, but
of

both

instead
the

responsibility provision

1988 Guidelines' smaller increase for amount of loss.

he says

that the "one

book" guideline was not

court

1992

and the
First,

in effect at

the time of

his offense and that its

violate the ex post facto Clause.

__ ____ _____
This is simply incorrect.
the

application here would

U.S. Const. Art. I,

9.

The ex post facto Clause "forbids

__ ____ _____

imposition of punishment more severe than the punishment

assigned

by

law when

the

act

to be

punished

Weaver v. Graham, 450 U.S. 24, 28

______
______

(1981).

1988

court

Guidelines,

the

district

occurred."

By looking to the
imposed

the

very

punishment provided for by law at the time Springer committed

the act for which he was being punished.
Springer's second argument is no more availing.

He

argues that, by statute, he is entitled to the benefit of the

pre-sentence modifications
18 U.S.C.
"consider
the

date

He construes

3553(a)(4), which directs the sentencing court to

. . . the
the

application of the
of

of the Guidelines.

Guidelines . . .

defendant

sentenced,"

November 1992 version of

responsibility"

misunderstands the

is

that are in effect on

provision.

process

calculated his sentence.

by which

However,
the

requiring

the "acceptance
Springer

sentencing

The sentencing court

-55

as

court

did apply the

___

November

1992 Guidelines.

instructed the court

of ex
__

post facto
____ _____

It was the

to look to the

concerns, and it

1992 Guidelines that

1988 Guidelines because

was the

1992 Guidelines

that instructed the court to apply the "one book" rule and to
look

to

the

appropriate
Thus,

the

1988

Guidelines

reduction

for

sentencing

3553(a)(4).

See
___

order

acceptance

court

also 18
____

in

acted

U.S.C.

in

to determine
of

the

responsibility.

accordance

3553(a)(5)

with

(Sentencing

court should "consider . . . any pertinent policy statement .

. . that is in effect on the date defendant is sentenced.").
Springer's third argument is that if the "one book"
rule applies, he will be treated differently than other
offenders
acceptance
differently
guidelines
argument is

sentenced
of

after

the

responsibility

than

those

the

sentenced.

This is consistent

the Guidelines'

(or,

What

application

time,

goal of

to
at

of

the
least,

the 1992

facto concerns).
matters is

regardless

of

This

that Springer

as all those convicted of

___

offense at

and

same

provision

ex post

herring.

will be treated the same

___ ____

amendment

for whom

does not create

a red

1992

1988

when

the same
they

are

with the concerns of Congress

uniformity.

3553(a)(6) (Sentencing court should "consider

Cf. 18
___

U.S.C.

. . . the need

to avoid unwarranted sentence disparities

among defendants .

. . who have been found guilty of similar conduct.").

-66

Accordingly, we do not discern any error, let alone

any plain

error, in

Springer

responsibility.

the district

three-level

court's failure

reduction

for

to award

acceptance

of

-77

II.
II.
___
Restitution Order
Restitution Order
_________________
As

condition

sentencing

court

ordered

$1,018,347

to the

bank

of

supervised

Springer
from which

to

pay

release,

the

restitution of

Springer had

secured a

construction loan
basis

for

his

returns).

in the

amount of

credit worthiness

$1,460,000 (using as
fraudulent

personal

a
tax

Springer argues that the sentencing court did not

sufficiently consider

his ability

to pay

restitution.

We

disagree.
In

fashioning a

consider "the

financial

financial needs
such

3664(a).

reveals

otherwise

as

of

the

court must

defendant,

the

the defendant,

and

appropriate."

18

deems

court need not make specific findings

considerations as
that

the judge

adequately

factors [listed in

order, a

ability of

the court

The

respecting these
appeal

resources

and earning

other factors

U.S.C.

restitution

evinced

long as

made
his

18 U.S.C.

"the record

implicit

findings or

consideration

3664(a)]."

on

of

the[]

United States v.
_____________

Savoie, 985 F.2d 612, 618 (1st Cir. 1993).

______
Here,

it

appears

that

the

sufficiently considered these factors.

was a

college

dropout

assets,

and

more

clearly

unable

to

with

pay

over

-88

$1

in

court

Springer says that he

a sporadic

than $900,000

sentencing

work

history,

liabilities,

million

in

no

and thus

restitution.

However, the

sentencing court

before it in

the pre-sentence investigation report

Moreover,
Savoie,
______
hearing,

it explicitly
985 F.2d
the

adopted the

at 619.

court

had all

of this

PSR's

Furthermore,

made

the

information

findings.

at the

following

("PSR").
Cf.
___

sentencing

comments

on

the

restitution order:
You
have
a
very
large
restitution obligation and the
Court -- you don't really have
much assets now. The Court has
no doubt that at some point you
probably will.
This statement by the court does not reflect "the possibility
of an unforeseen
we construe it

windfall," as Springer suggests.

Instead,

as evincing a firm belief, on the part of the

district court, that Springer eventually will be able to meet

his obligation.

This is

consistent

statements made by the court

a

talented

individual

who

of Springer's

many

other

to the effect that Springer was

could

redirected his energies to lawful

sanguine view

with the

be

successful

activities.

future was

he

In fact, this

the primary

given by the court for sentencing Springer at

if

reason

the low end of

the Guideline range.

It

appears

that

the

sentencing

court

had

the

relevant information before it and considered the appropriate

factors

in

making

its

restitution

order.

required.

Cf. United States v. Brandon,

___ ______________
_______

(1st Cir.)

($500,000 restitution

No

17 F.3d

order upheld

more

is

409, 461

for indigent

-99

defendant
to

who had prospect of future inheritance and ability

obtain

gainful employment),

petition
________

for
___

cert. filed,
_____ _____

___U.S.L.W.___ (June 13, 1994) (No. 93-2001).2

Accordingly, we find no plain error in the district
court's restitution order.
III.
III.
____
Ineffective Assistance of Counsel
Ineffective Assistance of Counsel
_________________________________
Springer

argues

that

he

received

assistance of counsel because his attorney

issue

of the

reduction for
attorney did

court's failure

to

did not raise the

consider the

acceptance of responsibility
not protest the size of

ineffective

three-level

and because

his

the restitution order.

Because Springer was not entitled to a three-level reduction,

his

attorney cannot

be

blamed for

not raising

the issue.

Insofar as the failure to object to the restitution order may

give

rise to an

accordance with
first time

ineffective assistance

will, in

our usual practice, not entertain it for the

on direct appeal.

would require

claim, we

us

to go

consider such things

This is because the claim here

beyond

the sentencing

record

as sentencing counsel's strategy.

and
See
___

United States v. Beasley, 12 F.3d 280, 285 (1st Cir. 1993).

_____________
_______

____________________
2. If the court's restitution order, the satisfaction of
which is a condition of Springer's supervised release, does
turn out to be unreasonably onerous, we see no reason why the
district court cannot, in the future, modify it.
See 18
___
U.S.C.
3663(g).
-1010

IV.
IV.
___

Conclusion
Conclusion
__________
For the reasons stated above, we
sentence.
Affirmed.
_________

-11-

affirm Springer's

11