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    United States v. Merlino, 1st Cir. (1997)

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    The document is a court opinion from the United States Court of Appeals for the First Circuit regarding the sentencing appeals of Frank Richard Merlino. The court reviewed the district court's use of an upward departure in Merlino's criminal history score under the sentencing guidelines. The court determined that the district court had both a solid factual basis for concluding Merlino's criminal history was underrepresented and a sound legal basis for the departure. The court also found that the district court followed the proper protocol and did not abuse its discretion in determining the extent of the departure. The court affirmed the district court's rulings.

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    United States v. Merlino, 1st Cir. (1997)

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    19 views8 pages
    The document is a court opinion from the United States Court of Appeals for the First Circuit regarding the sentencing appeals of Frank Richard Merlino. The court reviewed the district court's use of an upward departure in Merlino's criminal history score under the sentencing guidelines. The court determined that the district court had both a solid factual basis for concluding Merlino's criminal history was underrepresented and a sound legal basis for the departure. The court also found that the district court followed the proper protocol and did not abuse its discretion in determining the extent of the departure. The court affirmed the district court's rulings.

    Original Description:

    Filed: 1997-11-13 Precedential Status: Precedential Docket: 97-1681

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    The document is a court opinion from the United States Court of Appeals for the First Circuit regarding the sentencing appeals of Frank Richard Merlino. The court reviewed the district court's use of an upward departure in Merlino's criminal history score under the sentencing guidelines. The court determined that the district court had both a solid factual basis for concluding Merlino's criminal history was underrepresented and a sound legal basis for the departure. The court also found that the district court followed the proper protocol and did not abuse its discretion in determining the extent of the departure. The court affirmed the district court's rulings.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    19 views8 pages

    United States v. Merlino, 1st Cir. (1997)

    Uploaded by

    Scribd Government Docs
    The document is a court opinion from the United States Court of Appeals for the First Circuit regarding the sentencing appeals of Frank Richard Merlino. The court reviewed the district court's use of an upward departure in Merlino's criminal history score under the sentencing guidelines. The court determined that the district court had both a solid factual basis for concluding Merlino's criminal history was underrepresented and a sound legal basis for the departure. The court also found that the district court followed the proper protocol and did not abuse its discretion in determining the extent of the departure. The court affirmed the district court's rulings.

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    USCA1 Opinion

    [NOT FOR PUBLICATION]


    [NOT FOR PUBLICATION]

    UNITED STATES COURT OF APPEALS


    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT
    FOR THE FIRST CIRCUIT

    _________________________

    Nos. 97-1681
    97-1682

    UNITED STATES OF AMERICA,

    Appellee,

    v.

    FRANK RICHARD MERLINO,

    Defendant, Appellant.

    _________________________

    APPEALS FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF NEW HAMPSHIRE

    [Hon. Steven J. McAuliffe, U.S. District Judge]


    ___________________

    _________________________

    Before

    Selya and Boudin, Circuit Judges,


    ______________

    and Dowd,* Senior District Judge.


    _____________________

    _________________________

    Bjorn Lange, Assistant Federal Defender, for appellant.


    ___________
    Jean B. Weld, Assistant
    _____________
    Paul M. Gagnon, United
    _______________

    United States Attorney,

    States Attorney, was

    United States.

    _________________________

    on brief,

    with whom

    for the

    November 12, 1997


    _________________________

    _______________
    *Of the Northern District of Ohio, sitting by designation.

    Per Curiam.
    Per Curiam.
    __________

    In these

    sentencing appeals

    there are

    two, but they

    unit

    may for practical purposes be treated

    defendant-appellant Frank Richard Merlino

    district

    court's use of

    (Nov. 1992).

    By order dated

    district court to file a

    the extent of the

    then

    an upward

    afforded

    challenges the

    departure under

    October 9,

    USSG

    1997, we directed

    4A1.3

    the

    written report amplifying the basis for

    departure.

    the

    as a single

    parties

    The court

    an

    promptly complied.

    opportunity

    for

    We

    supplemental

    briefing.

    We have

    not

    limited

    transcript

    to

    the

    presentence

    of the sentencing

    supplementary

    studied the

    carefully examined

    report of its

    parties'

    briefs,

    the record,

    investigation

    hearing, and the

    departure findings.

    entertained

    oral

    including but

    report,

    the

    district court's

    We

    have also

    argument,

    and

    consulted

    the

    applicable

    legal

    authorities.

    This

    review

    persuades

    us beyond serious question that the district court had

    both a solid factual basis for concluding that Merlino's criminal

    history score

    and

    substantially underrepresented

    a sound legal

    United States
    _____________

    Cir. Oct.

    basis for the ensuing

    v. Brewster, No.
    ________

    2, 1997)

    his criminal

    upward departure.

    97-1448, slip op. at

    (describing requirements

    past

    See
    ___

    16-18 (1st

    for invoking

    USSG

    4A1.3); United States v. Black, 78 F.3d 1, 9-10 (1st Cir. 1996);


    _____________
    _____

    United States
    ______________

    (similar).

    v. Aymelek,
    _______

    Our review also

    926

    64,

    73 (1st

    Cir.

    1991)

    convinces us that the district court

    followed the proper protocol and

    determining the

    F.2d

    extent of the

    did not abuse its discretion in

    departure.

    See
    ___

    Brewster, supra,
    ________ _____

    slip op. at 20-23 (discussing reasonableness requirement for such

    departures); United States v. Hardy, 99 F.3d 1242, 1253 (1st Cir.


    _____________
    _____

    1996) (similar).

    Because these determinations

    the particular facts

    are heavily influenced by

    of Merlino's case, we

    detailed discussion would serve a

    do not think that

    useful purpose.

    From the very

    inception of the federal sentencing guidelines, we have cautioned

    that "[s]entencing appeals

    prosecuted . . . in

    the tenuous hope

    that lightning may strike ought not to be dignified with exegetic

    opinions, intricate factual synthesis, or full-dress explications

    of accepted legal principles."

    United States v. Ruiz-Garcia, 886


    _____________
    ___________

    F.2d 474, 477 (1st Cir. 1989).

    We then wrote, in words that have

    particular pertinence

    deserves his

    day in

    today:

    court;

    "Assuredly,

    but we

    see no

    a criminal

    defendant

    purpose in

    overtaxed judicial resources razing castles in the air."

    We need go no

    fairly

    further.

    debatable question

    is a

    This case

    which

    paradigmatic

    wasting

    Id.
    ___

    presents no

    example of

    instance in which summary disposition is appropriate.

    an

    Affirmed.
    Affirmed.
    ________

    See Loc. R. 27.1.


    See Loc. R. 27.1.
    ___

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