United States v. Gierbolini-Rivera

• Decision Date: 14 August 2018
• Docket Number: No. 15-2076,15-2076
• Citation: 900 F.3d 7
• Parties: UNITED STATES of America, Appellee, v. Arquímedes A. GIERBOLINI-RIVERA, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

900 F.3d 7

UNITED STATES of America, Appellee,

v.Arquímedes A. GIERBOLINI-RIVERA, Defendant, Appellant.

No. 15-2076

United States Court of Appeals, First Circuit.

August 14, 2018

Joseph C. Laws, on brief for appellant.

Julia M. Meconiates, Assistant United States Attorney, Rosa Emilia Rodríguez-Vélez, United States Attorney, and Thomas F. Klumper, Assistant United States Attorney, Acting Chief, Appellate Division, on brief for appellee.

Before Torruella, Selya, and Lynch, Circuit Judges.

TORRUELLA, Circuit Judge.

Defendant-Appellant Arquímedes A. Gierbolini-Rivera ("Gierbolini") pled guilty to one count of theft in connection with health care, in violation of 18 U.S.C. § 669(a), and to one count of wire fraud, in violation of 18 U.S.C. § 1343. Gierbolini now challenges the procedural and substantive reasonableness of his upwardly variant sentence. After careful review, we affirm.

I. Background

Because Gierbolini pled guilty, we draw the facts from the plea colloquy, the unchallenged portions of the Presentence Investigation Report ("PSR"), and the sentencing hearing transcript. See United States v. Fernández-Santos, 856 F.3d 10, 14 n.1 (1st Cir. 2017).

In January 2000, Gierbolini was hired as an accountant by Modern Radiology, PSC.¹ Gierbolini's responsibilities consisted of preparing financial reports for external audits and tax purposes, as well as making payments for all of his employer's corporate expenses, including general payroll. To perform these duties, Gierbolini was entrusted with managing Modern Radiology's operating account, which he would use to make approved payments.

In or around 2005, Gierbolini devised and implemented a scheme to defraud Modern Radiology through regularly scheduled transfers of thousands of dollars to his personal accounts. In the course of his regular employment duties, Gierbolini would use Microsoft Excel to prepare a spreadsheet detailing the amount to be paid on each pay period to each employee, via a direct deposit wire transfer from Modern Radiology's operating account to each employee's personal account. The spreadsheet's rows and columns identified, respectively, the employees' names and the amount each employee was to be paid for a given period. The last column of the spreadsheet showed the net total amount to be paid to each employee. At the bottom of that column, Gierbolini created a cell that added up all of the net total amounts to be paid to each employee—resulting in the total amount to be withdrawn from Modern Radiology's operating account for a given pay period. But, in that same last column, Gierbolini would also enter an additional, unauthorized, sum of money into an otherwise-empty cell. He would then conceal the contents of this extra cell by changing the font color to white so that it would be invisible against the spreadsheet's white background. This unauthorized amount was still included, however, in the net total to be withdrawn from Modern Radiology's account. After paying each employee their amount due for that pay period, Gierbolini would then wire himself the unauthorized amount included in the "empty" cell. By only ever presenting Modern Radiology management with black and white printouts of his spreadsheets, on which the unauthorized amounts were invisible, and by always taking out the same amount, Gierbolini was able to defraud Modern Radiology for years. He carried out this scheme in every pay period from January 2005 to February 2010. Altogether, Gierbolini completed 217 unauthorized transfers for a total of $984,596.95.

In 2013, Gierbolini was charged with fifty-three counts of theft in connection with health care, in violation of 18 U.S.C. § 669(a), and twenty-eight counts of wire fraud, in violation of 18 U.S.C. § 1343. Gierbolini pled guilty to one count of each charge,² pursuant to a plea agreement.³

In the plea agreement, the parties calculated a total offense level of twenty. To arrive at that level, they started with a base offense level of seven, pursuant to United States Sentencing Guidelines ("U.S.S.G.") § 2B1.1. They then found applicable a two-level enhancement for Gierbolini's abuse of a position of trust in a manner that significantly facilitated the commission or concealment of the offense, see id. § 3B1.3, a fourteen-level enhancement because the offense involved losses greater than $400,000 but not over $1,000,000, see id. § 2B1.1(b)(1)(H), and a three-level reduction for Gierbolini's timely acceptance of responsibility, see id. § 3E1.1. This, in conjunction with Gierbolini's Criminal History Category of I, yielded a Guidelines sentencing range ("GSR") of thirty-three to forty-one months' imprisonment. Gierbolini reserved the right to argue for a sentence at the lower end of the proposed GSR, while the government could argue for a sentence at the high end of the GSR.

The PSR tracked the plea agreement's calculation of the GSR. The PSR also stated that, in March 2015, the U.S. Probation Officer had interviewed the president of Modern Radiology, who reported that Gierbolini's conduct caused him "substantial financial hardship" and, "as a result of defendant's fraudulent acts coupled with [Puerto Rico's] current fiscal situation," Modern Radiology was "facing a precarious financial situation." Gierbolini did not object to these statements in the PSR. Shortly thereafter, Modern Radiology filed for Chapter 11 bankruptcy.

At the sentencing hearing, the court stated that it had reviewed the plea agreement, the stipulated facts contained in that agreement, the PSR, Modern Radiology's submissions in support of a forfeiture order, and letters submitted by Gierbolini's friends, relatives, and members of the community. Gierbolini did not object to the consideration of any of these materials. Defense counsel attested that he had reviewed the PSR with Gierbolini "several times," and that there was nothing further to add or clarify. Gierbolini confirmed that he had reviewed the PSR with his attorney and that "the information contained in the report [was] correct."

A representative of Modern Radiology attended the sentencing hearing, accompanied by counsel. Without objection from any party, Modern Radiology's counsel stated for the record that Modern Radiology had "no opinion as to the sentence to be imposed." He clarified that Modern Radiology was present because of "the forfeiture issue" only, and limited his statements to a request for discovery to locate any additional assets belonging to Gierbolini that could be forfeited. Gierbolini opposed this request, and the court denied it.

The district court then explained that it had considered the 18 U.S.C. § 3553(a) sentencing factors. The court referenced Gierbolini's history and characteristics, including his age, good upbringing, education, employment as an accountant and attorney, good physical and mental health, lack of substance abuse history, three dependents, and his status as a first time offender. The district judge commented that she was "really trouble[d]" by several aspects of the case, including that Gierbolini "had a good upbringing," with parents who taught him "what the law is and how it is to be respected." Moreover, the court noted that while Gierbolini was committing these fraudulent actions as an accountant, he was also studying to be a lawyer. The judge explained that this showed "double the blatant disregard ... for the law, for society, for the person [who] had trusted [Gierbolini] and given [him] a position, a good salary." Finally, the court contrasted Gierbolini's case with those in which defendants are motivated by illness, addiction, or "total despair." Of evident concern to the judge was the apparent lack of any discernable need or motivation underlying Gierbolini's conduct.

After calculating the same GSR as that which the plea agreement and PSR contained, the court found that the GSR did not "properly reflect the seriousness of the offense and [did] not necessarily promote respect for the law or reflect the harm caused to the victim." Specifically, the court focused on two factors that it found "highly important and of significant weight." First, the court reiterated its concern that Gierbolini was both an accountant and a lawyer, and yet appeared to have "no qualms" about abusing his position of trust repeatedly and regularly over a span of at least five years.⁴ Second, the court emphasized the "substantial harm and financial hardship to the victim which ha[d] turned them to becoming insolvent." Thus, the court imposed an upwardly variant sentence of sixty months of imprisonment on each count of conviction, to run concurrently, and to be followed by three years of supervised release. The court also ordered Gierbolini to forfeit $394,300, and to pay $590,296 in restitution to the victim, Modern Radiology. Gierbolini did not object to the sentence imposed.

Twelve days later, Gierbolini filed a motion for reconsideration of his sentence. The next day, he filed a notice of appeal with this court. Upon the district court's request, while retaining jurisdiction, we remanded the case to the district court to allow it to rule on Gierbolini's motion for reconsideration. The district court ultimately denied the motion for reconsideration.⁵

II. Discussion

Gierbolini challenges both the procedural and substantive reasonableness of his sentence. We review sentencing decisions under the U.S.S.G. for "reasonableness, regardless of whether they fall inside or outside of the applicable GSR." United States v. Turbides-Leonardo, 468 F.3d 34, 40 (1st Cir. 2006). Our review is bifurcated. We first ensure that the district court has committed no significant procedural error, such as "failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the section 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence—including an explanation for any deviation from...