United States v. Gierbolini-Rivera , 900 F.3d 7 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 15-2076
UNITED STATES OF AMERICA,
Appellee,
v.
ARQUÍMEDES A. GIERBOLINI-RIVERA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Torruella, Selya, and Lynch,
Circuit Judges.
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.
August 14, 2018
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
1 Modern Radiology was a professional services corporation that
provided "radiological health care services such as sonograms,
CT Scans, MRIs and X-rays, among others. [It] had contracts to
provide services to patients under several different medical
plans" and was considered a "health care benefit program" under
18 U.S.C. § 24(b).
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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
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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
2 In return, the government requested that the remaining counts
be dismissed, which the district court did.
3 The plea agreement also contained two forfeiture provisions.
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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
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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,
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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
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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
4 At the sentencing hearing, the government noted, without
objection, that it was limited in the charges it could bring
against Gierbolini: first, by the statute of limitations, which
allowed indictment only for conduct after December 18, 2013; and
second, due to "a lack of documentation" by the victim of
Gierbolini's pre-2005 conduct.
5 Both parties agree that because Gierbolini was not sentenced in
accordance with the parties' recommendations, the waiver of
appellate rights provision in his plea agreement does not bar this
appeal. See United States v. Fernández–Cabrera, 625 F.3d 48, 51
(1st Cir. 2010).
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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 the
Guidelines range." United States v. Trinidad-Acosta, 773 F.3d
298, 309 (1st Cir. 2014) (quoting United States v. Rivera-Moreno,
613 F.3d 1, 8 (1st Cir. 2010)). "[I]f the sentence is procedurally
sound, we then ask whether the sentence is substantively
reasonable." United States v. Rossignol, 780 F.3d 475, 477
(1st Cir. 2015). We undertake this inquiry, which focuses on the
duration of the sentence in light of the totality of the
circumstances, United States v. Del Valle-Rodríguez, 761 F.3d 171,
176 (1st Cir. 2014), while remaining mindful that "[t]here is no
one reasonable sentence in any given case but, rather, a universe
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of reasonable sentencing outcomes." United States v. Clogston,
662 F.3d 588, 592 (1st Cir. 2011) (citing United States v. Martin,
520 F.3d 87, 92 (1st Cir. 2008)). And, although the district
court must consider a "myriad of relevant factors," the weighting
of those factors is "within the court's informed discretion." Id.
at 593. A sentence is substantively reasonable so long as the
sentencing court has provided a "plausible sentencing rationale"
and reached a "defensible result." Martin, 520 F.3d at 96 (citing
United States v. Jiménez-Beltre, 440 F.3d 514, 519 (1st Cir.
2006)).
A. Procedural Reasonableness
With regard to procedural reasonableness, Gierbolini
argues that the district court did not adequately explain its
chosen sentence. He asserts that the advisory GSR already
accounted for a fourteen-level enhancement for the amount involved
in the offense and a two-level enhancement for abuse of a position
of trust, and that the district court therefore erred by failing
to identify additional factual support for why his sentence fell
outside of the GSR. Furthermore, Gierbolini argues that the
district court was "influenced by the presence of the victim in
court and the unwarranted intervention of his lawyer," and also
took into account impermissible considerations related to the
victim as part of its sentencing decision. Specifically, he
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asserts that his upwardly variant sentence was based on the
unsupported fact that his conduct had caused Modern Radiology's
insolvency. He maintains that Modern Radiology's bankruptcy was
a result of mismanagement and "millions of dollars" of debt, and
therefore, should not have been considered an aggravating factor
during sentencing.
We generally apply the deferential abuse of discretion
standard to preserved challenges to the procedural reasonableness
of a sentence.6 Del Valle-Rodríguez, 761 F.3d at 176. However,
when a defendant fails to preserve an objection to the procedural
reasonableness below, the plain error standard supplants that
customary standard of review. United States v. Rondón-García,
886 F.3d 14, 20 (1st Cir. 2018). Under the plain error standard,
the defendant must show: "(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." United States v. Medina-Villegas, 700 F.3d 580, 583
6 Under this standard, "we afford de novo review to the sentencing
court's interpretation and application of the sentencing
guidelines, assay the court's factfinding for clear error, and
evaluate its judgment calls for abuse of discretion."
United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir. 2015).
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(1st Cir. 2012) (quoting United States v. Duarte, 246 F.3d 56, 60
(1st Cir. 2001)).
Gierbolini urges us to apply the abuse of discretion
standard "because of [his] objection below." Yet, the sentencing
transcript reveals no objection. If Gierbolini suggests that his
objection was preserved in his motion for reconsideration, "such
after-the-fact motions are insufficient to evade plain-error
review." United States v. Pedroza-Orengo, 817 F.3d 829, 833 n.5
(1st Cir. 2016) (citing United States v. Almonte-Reyes, 814 F.3d
24, 27 n.4 (1st Cir. 2016)). Accordingly, because Gierbolini failed
to preserve his procedural challenges below, we review them for
plain error. See United States v. Fernández-Hernández, 652 F.3d
56, 71 (1st Cir. 2011). However, we find no error, plain or
otherwise.
Gierbolini's primary procedural challenge is that the
district court's explanation of his sentence was inadequate
because the reasons relied on by the district court in justifying
his sentence were already included in the GSR calculation. We
disagree.
A sentence outside the advisory range typically ought to
be accompanied by greater explanation than need accompany a
guideline sentence. Turbides-Leonardo, 468 F.3d at 41.
Furthermore, "[w]hen a factor is already included in the
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calculation of the guidelines sentencing range, a judge who wishes
to rely on that same factor to impose a sentence above or below
the range must articulate specifically the reasons that this
particular defendant's situation is different from the ordinary
situation." United States v. Zapete-García, 447 F.3d 57, 60
(1st Cir. 2006).
Here, the sentencing court complied with these
requirements. After calculating the GSR, the judge considered the
§ 3553(a) factors, including mitigating factors. The court noted
that the GSR accounted for Gierbolini's abuse of his position of
trust and for the amount stolen. The court, however, expressed
its concern 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." The court listed
several specific facts motivating its finding that the GSR was
inadequate, including Gierbolini's abuse of trust, the harm the
victim suffered, and Gierbolini's apparent lack of compunction
about repeating the crime regularly over the course of several
years. Regarding the abuse of trust, the court highlighted that
Gierbolini made 217 fraudulent transactions over the span of
several years, while enjoying the complete trust of his employer.
The court found that the sentencing guidelines (including the
position-of-trust enhancement) did not adequately account for the
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duration, breadth, or consistency of this criminality. Moreover,
the district court found that Gierbolini's profession and legal
knowledge amounted to "double the blatant disregard . . . for the
law, for society, [and] for the person [who] had trusted [him]."
Thus, it was on the basis of these specific facts that the court
found Gierbolini's abuse of trust to be extraordinary.
Similarly, the court emphasized "the substantial harm
and financial hardship to the victim" resulting from Gierbolini's
stealing of almost a million dollars. Although the GSR
calculations already accounted for the total amount stolen from
Modern Radiology, the district court also noted the detrimental
effect that Gierbolini's actions had on Modern Radiology's
solvency, which led, in part, to substantial "financial hardship"
and its eventual filing for bankruptcy. These were additional
facts not accounted for in the GSR calculations.
Although Gierbolini complains of the district court's
reliance on the "unsupported fact" that his conduct had caused
Modern Radiology's insolvency, and maintains that Modern
Radiology's bankruptcy was not caused by his actions but rather
was a result of mismanagement and "millions of dollars" of debt,
we discern no error.
In the PSR, the Probation Officer noted that Modern
Radiology's insolvency was a result of Gierbolini's fraudulent
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acts, coupled with Puerto Rico's current fiscal crisis, resulting
in a "substantial financial hardship." Gierbolini did not object
either to the PSR's identification of the causes of Modern
Radiology's insolvency, or to the district court's statement that
his conduct had resulted in substantial harm and financial hardship
to the victim. Because Gierbolini did not contest the PSR or the
substance of the factual allegations, the district court properly
relied on the facts set forth in the PSR, as they bore "sufficient
indicia of reliability." United States v. Cyr, 337 F.3d 96, 100
(1st Cir. 2003) (noting that when there is no objection, the
district court is entitled to rely on the facts in the PSR (citing
United States v. Taylor, 277 F.3d 721, 724 (5th Cir. 2001)));
see also Rondón-García, 886 F.3d at 25 ("This failure to object
constitutes a waiver of [the defendant's] right to challenge the
information contained in the PSR.").7 Thus, the district court
did not commit procedural error by considering that Modern
Radiology had filed for bankruptcy as a result, in part, of
Gierbolini's conduct.8
7 Moreover, at sentencing, Gierbolini acknowledged that Modern
Radiology had "move[d] its situation to the Bankruptcy Court."
8 We also reject Gierbolini's contention that the district court
was "influenced by the presence of the victim in court and the
unwarranted intervention of his lawyer," who, despite
acknowledging that he did not "have a right to intervene in this
matter" as a "criminal matter," nevertheless addressed the court.
Contrary to Gierbolini's contentions, pursuant to 18 U.S.C.
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In sum, the district court, which "need[ed] only
identify the main factors behind its decision," United States v.
Vargas-García, 794 F.3d 162, 166 (1st Cir. 2015) (citing Turbides-
Leonardo, 468 F.3d at 40-41), adequately set forth its reasons for
imposing an upwardly variant sentence and, in so doing, properly
relied on facts included in the PSR to which Gierbolini not only
failed to object, but even expressly indicated were correct.
B. Substantive Reasonableness
Finally, Gierbolini alleges that the district court
improperly weighed the § 3553(a) factors and various mitigating
circumstances, and also that it engaged in reverse "socioeconomic
discrimination" by considering that he had "a good upbringing and
came from a good family," and thus he had no excuse for his unlawful
conduct. According to Gierbolini, "nothing in [his mitigating
factors] make[s] the [GSR] of 33 to 41 months inappropriate as to
Mr. Gierbolini." Thus, he says, the upward variance was
unjustified.
§ 3771(a)(4), the victim had the right not only to attend the
public proceeding, but also to be "reasonably heard." Moreover,
the victim's statement that he had no "right to intervene in this
matter," referred to the bar on the victim's intervention as a
party to the criminal case pursuant to 21 U.S.C. § 853(k)(1).
Thus, the district court did not commit procedural error by
allowing the victim's representative to address the court.
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In considering a preserved challenge to the substantive
reasonableness of a sentence, we apply the abuse of discretion
standard, "taking into account the totality of the circumstances."
United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st Cir. 2015).
Gierbolini, however, did not object below. In such cases, it is
unclear whether the abuse of discretion standard or the plain error
standard applies. Id. at 228. We need not decide this issue,
however, because Gierbolini's claim fails under either standard.
In essence, Gierbolini's claim is that the district
court placed too little weight on the mitigating factors. But,
the record shows that the district court properly considered the
§ 3553(a) sentencing factors, including mitigating factors. In
addressing mitigating factors, the district court noted that
Gierbolini had three dependents, "a good upbringing" in which "good
values were taught," no prior criminal record, and the "potential
to rehabilitate." Nonetheless, the court determined that, despite
these mitigating factors, the seriousness of the offense --
including the duration, breadth, and consistency of Gierbolini's
criminal acts and the harm inflicted on the victim -- the need for
deterrence, and to promote respect for the law -- in light of
Gierbolini's "blatant disregard . . . for the law, for society,
for the person that had trusted [him] and given [him] a position,
a good salary" -- outweighed the mitigating factors. The district
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court is afforded broad discretion in weighing the § 3553(a)
factors to determine the sentence, and this court "will not disturb
a well-reasoned decision to give greater weight to particular
sentencing factors over others." United States v. Gibbons,
553 F.3d 40, 47 (1st Cir. 2009).
Here, the district court gave a plausible explanation
and reached a defensible result in light of Gierbolini's criminal
acts against a trusting employer every two weeks, for at least
four years, to the tune of nearly one million dollars, and for no
apparent reason except personal enrichment. No more is required.
III. Conclusion
For the foregoing reasons, Gierbolini's sentence is
affirmed.
Affirmed.
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