APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND. Hon. John J. McConnell, Jr., U.S. District Judge.
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.
Before Thompson, Selya and Barron, Circuit Judges.
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. Defendant-appellant Mario Perretta pled guilty, pursuant to a plea agreement, to a 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 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. Thus, his guideline sentencing range (GSR) was 77-96 months. Finally, 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, 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 ...