USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 93-1694
UNITED STATES OF AMERICA,
Appellee,
v.
ROBERT BENJAMIN,
Defendant - Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
___________________
____________________
Before
Torruella, Cyr and Stahl,
Circuit Judges.
______________
_____________________
Theodore Lawrence Craft, with
________________________

whom Robert Benjamin

_______________

pro se

was on brief for appellant.

Paul G. Levenson, Assistant United States Attorney, with
_________________
whom Donald K. Stern, United States Attorney, was on brief for
_______________
appellee.

____________________
July 13, 1994
____________________

TORRUELLA, Circuit Judge.

_____________
sentence

Robert Benjamin appeals his

and order to pay restitution after

single count

he pled guilty to a

of interstate transportation of

violation of 18 U.S.C.

stolen property in

2314.
BACKGROUND
BACKGROUND
__________

In 1985,

Stanley Sreda

("Sreda"),

hired Robert Benjamin ("Benjamin"),

tax

accountant, to

Benjamin
the

manage

to buy and sell

course

of their

substantial sums

Sreda's

farmer,

a self-employed advisor
investments and

securities on Sreda's

business relationship,

of money

a retired

from Sreda.

After

and

authorized

behalf.

During

Benjamin embezzled

Sreda discovered

that Benjamin

had embezzled money

from him, Sreda

and Benjamin

entered into a civil agreement ("the Agreement") whereby Benjamin

conveyed his personal residence and land to Sreda.
The

Agreement

stipulated

that Sreda

would

put

the

property, which was heavily mortgaged, up for sale to recover the

money

which Benjamin

mortgage

on

property.

the

had

embezzled.

property,

The

bank which

however, foreclosed

According to Benjamin, Sreda, who

and

held
took

the

owned the property

subject to the mortgage, took no actions to sell the property nor

made

any payments

on the

mortgage.

action to recover the money embezzled.

Sreda then filed

a civil

Benjamin defaulted in the

civil action.
In

this

case,

charging Benjamin with

in

embezzled monies.

the

government filed

an

Information

interstate transportation of

$460,449.85

Benjamin

pled guilty to

the charge.

The

-2-

pre-sentence report
by Sreda
to

to be $665,943, consisting

13 checks

discovered

("PSR") calculated the actual

that Benjamin

after the

loss suffered

of $460,449.85 attributable

wrongfully converted

plea, attributable

to bearer

and $205,494,

bonds which

Benjamin fraudulently redeemed.

Following the Sentencing Guidelines, the district court

found Benjamin

to have

history category

level of 17

and a

criminal

of 1, calling for a sentence of 24 to 30 months

incarceration and 24
court based its

an offense

to 36

months of supervised

calculation of

$460,000 loss alleged in the

release.

the total offense

level on

The

the

indictment, plus an additional loss

of $205,000 which it counted as "relevant conduct" under U.S.S.G.

1B1.3.

The district

court sentenced Benjamin

incarceration followed by 36 months

district

court

also

ordered

to 30

months'

of supervised release.

Benjamin

The

to

pay

$460,000

in

that

(1)

the district

restitution.
On
court's

appeal,

calculation

Benjamin contends
of

his

offense level

was

excessive

improper; (2) the district court erred in including the

not

included in

the indictment

determining "relevant

in its

conduct" for

calculation of

and

$205,000

loss in

purposes of sentencing;

(3)

the sentence was wrongfully inconsistent with the plea agreement;

and

(4) the district court

mitigate its

abused its discretion

restitution order in

between Benjamin and Sreda.

-3-

light of the

by failing to

civil agreement

DISCUSSION
DISCUSSION
__________
Benjamin's first contention has no merit.
imposed

was

application

the
of

articulated no

result

of

the

Sentencing

reason

why it

The sentence

straightforward
Guidelines

should be

and

and

correct

Benjamin

has

deemed "excessive"

or

"improper."
Of the

remaining issues

raised by Benjamin,

the only

issue preserved for appeal is whether the district court erred by

failing

to

mitigate

restitution.

Benjamin's

remaining

contentions were not argued before the district court below

absent exceptional circumstances, they
the first time

on appeal.

44 (1st Cir. 1989);

1012,

1015

(1st

and,

will not be addressed for

United States v.
_____________

Curzi, 867 F.2d 36,

_____

see also United States v. Shattuck, 961 F.2d

________ _____________
________
Cir.

guideline disputes

1992) ("[w]e

do

not

which were not preserved

review sentencing

before the district

court") (citation omitted).

At
he

had read

sentencing, counsel for

the PSR and

expressly waived any

factual

accuracy of

the PSR.

correct

amount for

calculating

conduct

at sentencing

Benjamin

is

bound

by

Benjamin acknowledged that

was

Counsel
loss for

$665,000 as

these

findings

challenge to the

also conceded

that the

purposes of

relevant

stated
because

in the
on

report.

appeal,

defendant

may not challenge

failed to object to

the findings in

that report in the

his PSR if

district court.

States v. Haggert, 980 F.2d 8, 11 (1st

______
_______

he has

United
______

Cir. 1992) (citing United

______

States v. Fox, 889 F.2d 357, 359 (1st Cir. 1989)).

______
___
-4-

We can reverse Benjamin's

raised

sentence based on claims not

below, only for "plain error."

D az, 13
____

F.3d

1, 5

(1st

Cir.

United States v. Olivier_____________

________

1993).

Benjamin

however, to persuade us that such error took place.

plain
that

error standard there must

is

rights."

"clear"

or

"obvious"

be: (1) a
and

(3)

has

failed,

To meet the

reviewable error (2)

affects

"substantial

Id.
__

There is no plain error in this case because this court

has

previously entertained

arguments presently made by

and

rejected

Benjamin.

889 F.2d 357, 350-61 (1st Cir. 1989),

the same

substantive

In United States
_____________

v. Fox,
___

we rejected a challenge to

the district court's consideration of "relevant conduct" that had

been set forth

in a PSR, but

that was not part

offense to which defendant had pled guilty.

the district
of

court correctly considered

the additional

determining

the

$205,000 stated
guideline range

In the present case,

Benjamin's embezzlement

in the
under

of the specific

PSR as

a factor

in

1B1.3,

the

that

the

plea agreement

and

U.S.S.G.

"relevant conduct" provision.

Our
government
Benjamin

review

met

by the

district

court

follow

the

there

government.
was not

parties'

recommendations.

the

transcript

its obligations

concedes that

promise

of

under
was no

bad

The agreement

bound by
guidelines

Yet,

the

Benjamin

consideration, in determining his

the

confirms

faith or

breach

indicated

that the

agreement and

calculations
contends

that

or

of

might not

sentencing
the

court's

sentence, of the $205,000 loss

-5-

not charged in the Information violated the plea agreement.

In

Fox, we rejected the contention that the court's consideration of

___
such "relevant conduct" in
a pre-sentence

sentencing violated due process where

investigation

subsequent to

the plea

agreement

between the

defendant and the United

information relevant to sentencing.

also
____

United States
_____________

1992), cert.
_____
breach

of

Because

denied, 113
______
plea

Probation

v. Oyegbola,
________

agreement

Department
Fox
___

S. Ct.

and Oyegbola
________

district court's

Fox, 889 F.2d at 362-63; see

___
___
961 F.2d

11, 14-15

47 (U.S.

1992) (there

where

revealed

States revealed additional

subsequent

additional

control

rulings were a

this

(1st Cir.

was no

investigation
relevant

case and

by

conduct).

because

the

straightforward application

of

the guidelines to the uncontested factual findings of the PSR, we

find no plain error.
RESTITUTION ORDER
RESTITUTION ORDER
_________________
The

district

court

has

framing a restitution order.

considerable

discretion

United States v. Lombardi,

_____________
________

in

5 F.3d

568, 573 (1st Cir. 1993).

Benjamin maintains that the property tendered to
could

have been

mitigation

for a

of Sreda's loss.

is unfair to
time

sold

victim's own

for sale

amount of

money

in

In essence, Benjamin argues that it

require him to restore

where the

property up

considerable

Sreda

the victim's loss a

negligence in

prior to

foreclosure

argument

is

failing to

second

put the

contributed to

the

loss.
While

this

-6-

somewhat

appealing,

we are

unable to find any error, much less an abuse of discretion,

with

the district court's order of restitution in this case.

Title

18

U.S.C.,

factors to be considered

section

3664(a),

establishes

by the court in determining

the

whether to

order restitution:
The court . . . shall consider the amount
of the loss sustained by any victim as a
result of the offense, the financial
resources of the defendant, the financial
needs
and
earning
ability of
the
defendant and the defendant's dependents,
and such other factors as the court deems
appropriate.
In

formulating

its

restitution order,

court considered the appropriate factors.

the amount
the

of loss suffered by

offense

conduct

Benjamin's relevant
restitution

to

"properly take

U.S.

411,

conduct.

as well
The

into account the

restitution."

420 (1990)

("the

as

$460,000 caused by
$205,000

court limited
noting

that

amount of the
See Hughey v.
___ ______
loss

district

The court acknowledged

the victim:

$460,000, correctly

for the purposes of

495

charged

the

caused

caused

by

its order

of

it could

not

relevant conduct

United States,
_____________
by the

conduct

underlying the offense of conviction establishes the outer limits

of a restitution

order").1

The

district court also

considered

Benjamin's financial ability to make restitution, stating:

____________________

1
Section 3663 was amended on November 29, 1990, to allow broad
restitution for offenses involving "as an element a scheme, a
conspiracy, or a pattern of criminal activity." Pub. L. No. 101647,
2509, 104 Stat. 4789, 4863 (Crime Control Act of 1990);
United States v. Cronin, 990 F.2d 663, 666 (1st Cir. 1993). That
_____________
______
amendment does not apply here, however, because the offense of
conviction did not include a plan, scheme or conspiracy as an
element of the offense.
-7-

I have ordered you to make the $460,000

restitution. And, if you can, you will;
and if you can't, at the end of three
years you will
be relieved of
the
obligation.
But, frankly, while I have
been told all the money went into the
house,
I guess I haven't seen that
proven.
And, perhaps you will win the
lottery.
And if you do, Mr. [Sreda]
should be a beneficiary of that as well.
The district

court was aware of

make restitution by conveying

sentencing,

his house and land

the government contended that

At

Sreda did not get any

out of

court

as to what amount of restitution might have been available

the

property been

sold.

There was

to Sreda.

money

had

the property.

Benjamin's attempt to

no evidence

The district

before the

court specifically

asked Benjamin

whether he had an appraisal of the property as of

the date it was tendered.

Benjamin responded that he did not and

he failed to present other evidence showing the full value of the

house

and

land when

evidentiary void,

they

were

even if the

appropriate to reduce

tendered.

In

district court had

the amount of

considered it

for

any negligence on

of Sreda, it would have been virtually impossible for the

district court to

quantify these factors.

therefore, simply had

Thus,

this

restitution to account

Benjamin's previous attempt to repay Sreda and

behalf

light of

we

discretion

no basis to reduce the

conclude that

the district

in basing its order

court

The district

restitution order.
did not

of restitution on

loss suffered by Sreda.

Affirmed.
________

-8-

court,

abuse its

the amount of