United States v. Perretta, 1st Cir. (2015)

United States Court of Appeals
For the First Circuit

No. 14-1901
UNITED STATES OF AMERICA,
Appellee,
v.
MARIO PERRETTA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND
[Hon. John J. McConnell, Jr., U.S. District Judge]
Before
Thompson, Selya and Barron,
Circuit Judges.
John T. Ouderkirk, Jr. on brief for appellant.

Peter F. Neronha, United States Attorney, and Donald C.
Lockhart, Assistant United States Attorney, on brief for appellee.
October 9, 2015
SELYA, Circuit Judge.
This sentencing appeal, brought
by a convicted fraudster, rests on the premise that the district

court focused single-mindedly on a particular sentencing factor
the grievous harm inflicted on the victims of the defendant's fraud
and imposed a substantively unreasonable sentence.
Concluding,
as we do, that this premise is insupportable, we summarily affirm.

We set the stage.
pled
guilty,
pursuant
to
Defendant-appellant Mario Perretta

a
plea
agreement,
to
ten-count
information charging him with various acts of wire fraud and tax
evasion.
See 18 U.S.C. 1343; 26 U.S.C. 7201.
In connection
with his plea, the defendant admitted that he convinced a plethora

of individuals to invest a total of more than $4,000,000 by telling
them that his construction firm had lucrative contracts and that
its endeavors were fully insured (making investments risk-free).
These tales were false in all material respects: both the contracts
and the insurance were imaginary.
To make matters worse, the
defendant proceeded to spend the investors' money on personal

frolics.
When the investors inquired about overdue returns on
their investments, the defendant spun an incremental web of further

falsehoods.
Nor were the investors his only victims: he failed to
report large portions of his ill-gotten gains as taxable income.

The district court accepted the defendant's plea.
The
presentence investigation report (PSI Report) contained a detailed

offense-facts statement and catalogued the losses suffered by 22
- 2 -
victims of the swindle.
Due to the loss amount and the number of
victims, the defendant's total offense level was 24. His extensive
record of fraud-related offenses placed him in criminal history
category IV.
96 months.
Thus, his guideline sentencing range (GSR) was 77Finally, the PSI Report recommended restitution of
approximately $4,200,000.
After a protracted hearing, the district court imposed
a 96-month incarcerative sentence on the fraud counts,1 along with
an
order
for
restitution
of
approximately
$4,200,000.
The
defendant did not appeal but, roughly one year later, filed a
petition for post-conviction relief under 28 U.S.C. 2255.
The details of the defendant's section 2255 petition
need not concern us. It suffices to say that the defendant's prior
counsel had not properly advised him about his appellate rights.
Consequently, the parties agreed that the court should grant the
section 2255 petition, vacate the sentence, and conduct de novo
resentencing.
The district court acquiesced: it vacated the
sentence and set the matter down for resentencing.
See, e.g.,
United States v. Maldonado, 242 F.3d 1, 3-4 (1st Cir. 2001).
By statute, the sentence on the tax-evasion counts was

capped at 60 months. See 26 U.S.C. 701. The court imposed that
sentence and ran it concurrently with the longer sentence on the
fraud counts. The defendant's appeal is addressed principally to
the longer (96-month) sentence, and we make no further reference
to the shorter (60-month) sentence.
- 3 -
The probation office issued a revised PSI Report that

was substantially identical to the earlier version.
Meanwhile,
the
memorandum
defendant's
new
counsel
filed
sentencing
suggesting that he should receive a downwardly variant sentence of

home confinement only, in part so that he could work to pay down
his restitution obligations.
Both the government and the victims
opposed this suggestion.

The district court convened the resentencing hearing on
August 21, 2014.
The court confirmed that there were no material
objections either to the PSI Report (save for a small dispute about
the amount of restitution) or to the proposed GSR. Defense counsel
renewed her importunings that the court vary downward to a sentence
of home confinement.
The district court disagreed.
It explained
that it had considered afresh all the old and new information,
stated
its
reasons
for
rejecting
reimposed the 96-month sentence.
the
proposed
variance,
and
The court deferred the matter of
restitution, and the defendant filed a timely notice of appeal.

On February 10, 2015, the district court held a final
restitution hearing and ordered restitution in the amount of
$4,009,398.72.
The defendant has not appealed the restitution
order.
As a general matter, "[a]ppellate review of federal
criminal sentences is characterized by a frank recognition of the
substantial discretion vested in a sentencing court."
- 4 -
United
States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013).
"The
review process is bifurcated: we first determine whether the

sentence imposed is procedurally reasonable and then determine
whether
it
is
substantively
reasonable."
United
Clogston, 662 F.3d 588, 590 (1st Cir. 2011).
States
v.
Globally, both
aspects of this review are for abuse of discretion.
See Gall v.
United States, 552 U.S. 38, 45-46 (2007); United States v. Martin,
520 F.3d 87, 92 (1st Cir. 2008).
With this foundation in place, we turn to the merits of
the defendant's appeal.2
As phrased, the defendant's claim is that
his sentence is substantively unreasonable.
We pause, however, to
clarify a threshold matter.

The defendant reaches his conclusion that his sentence
is substantively unreasonable by lambasting the district court for
focusing too narrowly on the harm to his victims (to the exclusion
of the other factors that the court was duty-bound to consider
under
18
U.S.C.
3553(a)).
Arguably,
procedural error, and we treat it as such.
this
claim
of
Because no such claim
was preserved below, review is for plain error.

v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).
is
See United States

Plain error review
The defendant's plea agreement contained a comprehensive

waiver-of-appeal provision that, by its terms, may foreclose the
arguments advanced on this appeal.
But the government has
explicitly foresworn any reliance on this provision, and we treat
the government's action as a waiver of the waiver.
- 5 -
"entails four showings: (1) that an error occurred (2) which was
clear or obvious and which not only (3) affected the defendant's
substantial rights, but also (4) seriously impaired the fairness,
integrity, or public reputation of judicial proceedings."
In all events, this claim is groundless.
panoply
of
potentially
relevant
sentencing
Id.
The whole
factors
both
aggravating and mitigating was squarely before the district court

at sentencing.
The court repeatedly stated that it had considered
all the section 3553(a) factors.

to some weight."
These statements are "entitled
United States v. Dvila-Gonzlez, 595 F.3d 42,
49 (1st Cir. 2010).
There is simply no reason to think that the
court relied on the harm to victims to the exclusion of other

relevant considerations.3
To sum up, we recognize that a sentencing court has a
duty to "consider all relevant section 3553(a) factors." Clogston,
662 F.3d at 592.
However, "it need not do so mechanically."
Id.
(quoting United States v. Vargas-Dvila, 649 F.3d 129, 131 (1st

Cir. 2011)); see United States v. Dixon, 449 F.3d 194, 205 (1st
Cir. 2006) (explaining that a sentencing court need not "address
This is especially true since the court's references at

resentencing to the harm to victims were made primarily in the
course of explaining why it would not sentence the defendant to
home confinement.
Seen in this light, the defendant's current
attack on the court's focus illustrates the wisdom of the venerable
adage that no good deed goes unpunished.
- 6 -
[the section 3553(a)] factors, one by one, in some sort of rote

incantation when explicating its sentencing decision").
Mindful
of these authorities, we discern no plain error either in the

sentencing court's emphasis on the harm to the victims of the fraud
or in its failure to acknowledge individually other relevant
section 3553(a) factors.
This brings us to the main thrust of the defendant's
appeal: his claim that his sentence is substantively unreasonable.
In the posture of this case, we assume, favorably to the defendant,
that our review is for abuse of discretion.
See, e.g., United
States v. Vargas-Garca, 794 F.3d 162, 167 (1st Cir. 2015); United
States v. Ruiz-Huertas, 792 F.3d 223, 228 (1st Cir. 2015), cert.
denied, ___ S. Ct. ___ (U.S. Oct. 5, 2015).
When
measuring
the
substantive
reasonableness
of
sentence under the abuse of discretion standard, a court must pay

heed to the totality of the circumstances.
at
92.
In
determining
whether
See Martin, 520 F.3d
particular
sentence
is
substantively reasonable, we look to the plausibility of the

district court's sentencing rationale and the defensibility of the
result.
See United States v. Rivera-Gonzlez, 776 F.3d 45, 51
(1st Cir. 2015); Martin, 520 F.3d at 96.

Challenging the substantive reasonableness of a sentence
is a formidable task, made more burdensome where, as here, the
challenged sentence is within a properly calculated GSR.
- 7 -
See
Clogston, 662 F.3d at 592-93.
In order to accomplish that task,
a defendant "must adduce fairly powerful mitigating reasons and

persuade us that the district court was unreasonable in balancing
the pros and cons." Id. at 593 (internal quotation marks omitted).
We need not linger long.
The district court's rationale
is apparent: the defendant perpetrated a massive and especially

deplorable fraud, orchestrating what the court aptly called an
"incredible human tragedy."
That fraud involved duping people of
modest means into investments that were likely to lead to their

financial ruin.
Such unbridled greed, in the court's view,
warranted a high-end guideline sentence.

Contrary to the defendant's suggestion, the court did
not focus single-mindedly on the harm to the victims of the fraud.
Rather, the resentencing transcript makes manifest that the court
considered all sides of the matter, viewing the circumstances "from
the victims' perspective, from the government's perspective, [and]
from
[the
defendant's]
perspective."
Given
the
stark
facts
reflected in the record, we cannot say that the court's rationale

is implausible.
So,
defensible.
too,
the
duration
of
the
sentence
is
easily
We have explained before that in any individual case,
"[t]here is no one reasonable sentence . . . but, rather, a

universe of reasonable sentencing outcomes."
at 592.
Clogston, 662 F.3d
In determining whether a particular sentence falls within
- 8 -
this wide universe, substantial respect to the sentencing court's

discretion is appropriate.
662 F.3d at 593.
See Gall, 552 U.S. at 51; Clogston,
"Fidelity to this deferential standard requires
that a challenge based on substantive reasonableness must comprise

more
than
substitute
thinly
his
disguised
judgment
for
attempt
that
of
by
the
the
defendant
sentencing
'to
court.'"
Vargas-Garca, 794 F.3d at 167 (quoting Clogston, 662 F.3d at 593).

In the case at hand, the sentence imposed is at the top
of but within a properly calculated GSR.
The defendant
committed a brazen fraud over a significant time span; and that

fraud, which bilked 22 victims out of a total of more than
$4,000,000, was driven by unadulterated greed.
The resentencing
transcript shows that the district court weighed the section

3553(a) factors, see text infra, and the weighting of those factors
is "largely within the court's informed discretion."
662 F.3d at 593.
Clogston,
The court's reasoned explanation of the need to
punish and the need for deterrence, coupled with the reprehensible
nature of the offenses of conviction, enable us to conclude,
without serious question, that the 96-month sentence falls within
the universe of reasonable sentences.
- 9 -
We need go no further.4
For the reasons elucidated
above, the defendant's sentence is summarily
Affirmed.
See 1st Cir. R. 27.0(c).
The defendant makes a conclusory assertion that his due

process rights were violated because the judge's "opinion about
the defendant's need for punishment" was a fact that was not
submitted to the jury and proved beyond a reasonable doubt. This
argument is triply flawed: it was not raised below, it has not
been developed on appeal, and it is patently without merit.
- 10 -

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United States Court of Appeals

For the First Circuit

APPEAL FROM THE UNITED STATES DISTRICT COURT

John T. Ouderkirk, Jr. on brief for appellant.

SELYA, Circuit Judge.

This sentencing appeal, brought

by a convicted fraudster, rests on the premise that the district

as we do, that this premise is insupportable, we summarily affirm.

Defendant-appellant Mario Perretta

See 18 U.S.C. 1343; 26 U.S.C. 7201.

with his plea, the defendant admitted that he convinced a plethora

To make matters worse, the

defendant proceeded to spend the investors' money on personal

When the investors inquired about overdue returns on

their investments, the defendant spun an incremental web of further

Nor were the investors his only victims: he failed to

report large portions of his ill-gotten gains as taxable income.

presentence investigation report (PSI Report) contained a detailed

victims of the swindle.

Due to the loss amount and the number of

The district court acquiesced: it vacated the

sentence and set the matter down for resentencing.

United States v. Maldonado, 242 F.3d 1, 3-4 (1st Cir. 2001).

By statute, the sentence on the tax-evasion counts was

The probation office issued a revised PSI Report that

suggesting that he should receive a downwardly variant sentence of

Both the government and the victims

opposed this suggestion.

The court confirmed that there were no material

The district court disagreed.

reimposed the 96-month sentence.

The court deferred the matter of

restitution, and the defendant filed a timely notice of appeal.

The defendant has not appealed the restitution

States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013).

review process is bifurcated: we first determine whether the

Clogston, 662 F.3d 588, 590 (1st Cir. 2011).

aspects of this review are for abuse of discretion.

As phrased, the defendant's claim is that

his sentence is substantively unreasonable.

clarify a threshold matter.

procedural error, and we treat it as such.

Because no such claim

was preserved below, review is for plain error.

See United States

The defendant's plea agreement contained a comprehensive

aggravating and mitigating was squarely before the district court

The court repeatedly stated that it had considered

all the section 3553(a) factors.

These statements are "entitled

United States v. Dvila-Gonzlez, 595 F.3d 42,

49 (1st Cir. 2010).

There is simply no reason to think that the

court relied on the harm to victims to the exclusion of other

However, "it need not do so mechanically."

(quoting United States v. Vargas-Dvila, 649 F.3d 129, 131 (1st

This is especially true since the court's references at

[the section 3553(a)] factors, one by one, in some sort of rote

of these authorities, we discern no plain error either in the