U.S. v. Springer

• Decision Date: 07 July 1994
• Docket Number: No. 93-1642,93-1642
• Citation: 28 F.3d 236
• Parties: UNITED STATES, Appellee, v. Jeffrey SPRINGER, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 236

28 F.3d 236

UNITED STATES, Appellee, v. Jeffrey SPRINGER, Defendant, Appellant.

No. 93-1642.

United States Court of Appeals First Circuit.

July 7, 1994.

Michael C. Bourbeau, by Appointment of the Court, with whom Bourbeau and Bourbeau, Boston, MA, was on brief for appellant.

Margaret E. Curran, Asst. U.S. Atty., with whom Edwin J. Gale, U.S. Atty., and Ira Belkin, Asst. U.S. Atty., Providence, RI, were on brief for appellee.

Before BREYER, ^* Chief Judge, BOUDIN and STAHL, Circuit Judges.

STAHL, Circuit Judge.

Jeffrey Springer appeals the sentence imposed after he pled guilty, pursuant to a plea agreement, to one count of wire fraud, 18 U.S.C. Sec. 1343, and one count of bank fraud, 18 U.S.C. Sec. 1344. Springer makes three arguments, none of which was presented to the district court in the first instance: 1) that the district court erred in granting him only a two-level, rather than a three-level, acceptance of responsibility reduction in his sentencing guidelines offense level; 2) that the court did not adequately consider his financial circumstances when it ordered him to pay $1,018,347 in restitution; and 3) that he received ineffective assistance of counsel because his attorney failed to object to either the court's failure to award him a three-level reduction for acceptance of responsibility or to the restitution order. The government says that we need not consider these questions because Springer waived his right to appeal as part of his plea agreement. Because we discern no plain error in the relevant decisions made by the district court, see United States v. Carrozza, 4 F.3d 70, 84 (1st Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1644, 128 L.Ed.2d 365 (1994), we need not address this issue, and affirm defendant's sentence.

I. Acceptance of Responsibility

Springer was sentenced in May 1993. Pursuant to the November 1992 version of the Guidelines (the version in effect at the time of his sentencing), the district court looked to the 1988 version 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. Sec. 1B1.11(b)(1) (Nov.1992) (directing courts to 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). As part of the calculation of Springer's sentence, the court granted Springer the two-level downward adjustment for acceptance of responsibility available under the 1988 version of the Guidelines. See U.S.S.G. Sec. 3E1.1 (Nov.1988). Springer now argues that the district court erred because it did not consider granting him a three-level reduction for acceptance of responsibility, the maximum adjustment available under the 1992 version of the Guidelines. U.S.S.G. Sec. 3E1.1 (Nov.1992).

The district court correctly looked to the 1988 Guidelines in determining the maximum permissible downward adjustment for Springer's acceptance of responsibility. The 1992 Guidelines set forth what has been referred to as the "one book" rule. See U.S.S.G. Sec. 1B1.11(b)(2) (Nov.1992). This provision instructs the district court that when it looks to an earlier version 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 1988 Guidelines than he would have received under the 1992 version. For Springer's purposes, there 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, while under the 1992 Guidelines, that same loss would have resulted in a twelve-level increase. Compare U.S.S.G. Sec. 2F1.1(b)(1)(J) (Nov.1988) with U.S.S.G. Sec. 2F1.1(b)(1)(M) (Nov.1992). This difference meant that, even with a three-level reduction for acceptance of responsibility, Springer's applicable guideline sentencing range under the 1992 Guidelines would have been 24 to 30 months. Under the 1988 Guidelines, however, with the two-level reduction for acceptance of responsibility, Springer's sentencing range was 18 to 24 months. ¹

Springer advances three reasons why the court should not have applied the "one book" rule, but instead should have given him the benefit of both the 1992 Guidelines' acceptance of responsibility provision and the 1988 Guidelines' smaller increase for amount of loss. First, he says that the "one book" guideline was not in effect at the time of his offense and that its application here would violate the ex post facto Clause. U.S. Const. Art. I, Sec. 9. This is simply incorrect. The ex post facto Clause "forbids the imposition of punishment more severe than the punishment assigned by law when the act to be punished occurred." Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 963, 67 L.Ed.2d 17 (1981). By looking to the 1988 Guidelines, the district court 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 of the Guidelines. He construes 18 U.S.C. Sec. 3553(a)(4), which directs the sentencing court to "consider ... the Guidelines ... that are in effect on the date the defendant is sentenced," as requiring application of the November 1992 version of the "acceptance of responsibility" provision. However, Springer misunderstands the process by which the sentencing court calculated his sentence. The sentencing court did apply the November 1992 Guidelines. It was the 1992 Guidelines that instructed the court to look to the 1988 Guidelines because of ex post facto concerns, and it was the 1992 Guidelines that instructed the court to apply the "one book" rule and to look to the 1988 Guidelines in order to determine the appropriate reduction for acceptance of responsibility. Thus, the sentencing court acted in accordance with Sec. 3553(a)(4). See also 18 U.S.C. Sec. 3553(a)(5) (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 1988 offenders sentenced after the 1992 amendment to the acceptance of responsibility provision (or, at least, differently than those for whom application of the 1992 guidelines does not create ex post facto concerns). This argument is a red herring. What matters is that Springer will be treated the same as all those convicted of the same offense at the same time, regardless of when they are sentenced. This is consistent with the concerns of Congress and the Guidelines' goal of uniformity. Cf. 18 U.S.C. Sec. 3553(a)(6) (Sentencing court should "consider ... the need to avoid unwarranted sentence disparities among defendants ... who have been found guilty of similar conduct.").

Accordingly, we do not discern any error, let alone any plain error, in the district court's failure to award Springer a three-level reduction for acceptance of responsibility.

II. Restitution Order

As a condition of supervised release, the sentencing court ordered Springer to pay restitution of $1,018,347 to the bank from which Springer had secured a construction loan in the amount of $1,460,000 (using as a basis...