229 F.3d 1 (1st Cir.

2000)

UNITED STATES OF AMERICA, APPELLEE,

V.
SANJAY SAXENA, DEFENDANT, APPELLANT.
No. 99-1842.

United States Court of Appeals, For the First Circuit.

Heard August 3, 2000.
Decided October 3, 2000.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF MASSACHUSETTS.
Hon. William G. Young, U.S. District Judge.[Copyrighted Material
Omitted]
Cheryl J. Sturm for appellant.
Victor A. Wild, Assistant United States Attorney, with whom Donald K.
Stern, United States Attorney, was on brief, for appellee.
Before Torruella, Chief Judge, Selya, Circuit Judge, and Casellas,*
District Judge.
Selya, Circuit Judge.

Defendant-appellant Sanjay Saxena serves up a salmagundi of alleged errors.

The main ingredient is his contention that the government reneged on
obligations that it undertook in a plea agreement. Other morsels include the
district court's failure specifically to inform him of the consequences of his
guilty plea and its alleged missteps in the course of sentencing. Although the
appellant's bill of fare contains some food for thought, close perlustration
shows that it lacks any real substance. Accordingly, we affirm the judgment
below.
I. BACKGROUND

The appellant, a software engineer by training, immersed himself in the

investment advisory business in 1992. At that time, he founded a business,
called Vital Information, which published newsletters (e.g., "The Weekly
Wealth Letter") offering financial advice to would-be investors. Representing
that the insights contained in the newsletters derived from a computerized
system designed to forecast the optimal times at which to buy and sell specific
securities, the appellant held out hopes of huge profits. As the newsletters'
readership increased, the appellant used them as a platform from which to
market investment contracts - actually, syndicated partnership interests - aimed
at exploiting the computer program that he had developed.

Despite his lack of a verifiable track record, the appellant managed to lure a
coterie of customers. Eventually, his activities attracted the attention of the
Securities and Exchange Commission (SEC). After investigating the
circumstances, the SEC filed a civil complaint accusing the appellant of selling
unregistered securities. The appellant settled the civil case by pledging, inter
alia, to make full restitution to disappointed subscribers. He fulfilled this
promise, but a federal grand jury nonetheless indicted him for selling
unregistered securities, 15 U.S.C. 77e(a), prohibited transactions by a
registered investment adviser, id. 80b-6(1) & (2), mail fraud, 18 U.S.C.
1341, false and fraudulent claims, id. 287, and money laundering, id. 1957.

After some procedural skirmishing, not relevant here, the appellant entered into
a non-binding plea agreement. See Fed. R. Crim. P. 11(e)(1)(B). In it, the
appellant agreed to plead guilty to seventeen counts of selling unregistered
securities, five counts of engaging in prohibited transactions, nine counts of
mail fraud, and one count of making false and fraudulent claims. In exchange,
the government promised to drop the other charges and to recommend a 24month prison term and a fine. The 24-month target was based upon a prediction
that the district court would fix the guideline sentencing range (GSR) at 24-30
months (adjusted offense level 17; criminal history category I). The parties
recognized that this prediction's accuracy depended on a three-level reduction
for acceptance of responsibility, see USSG 3E1.1, and the government agreed
to recommend that the court grant that reduction.

The district court conducted a change-of-plea hearing on March 23, 1999. Once
the appellant had confessed his guilt, the court dismissed the extraneous counts
and continued the matter for preparation of a presentence investigation report
(PSI Report) by the probation department. In the meantime, the appellant
remained free on bail.
During the interval when the PSI Report was in process, the SEC informed the

During the interval when the PSI Report was in process, the SEC informed the
United States Attorney's office that the appellant was soliciting subscriptions
for a newsletter on the Internet and assuring potential investors that the insights
contained therein would guide them to astronomical profits. As was true of the
appellant's earlier venture, the main selling point for the new periodical
involved a computer-driven timing formula. The solicitations sought one-year
subscriptions, notwithstanding the appellant's knowledge that his immurement
would begin within a few months, and did so through a web site that included
the appellant's picture and his "personal guarantee."

The Assistant United States Attorney (AUSA) who was handling the case
believed that he had a duty to bring this information to the attention of the
probation department, and he did so. The probation officer incorporated the
information into the PSI Report and refused to recommend a downward
adjustment for acceptance of responsibility.

The district court convened the disposition hearing on June 28, 1999. The
AUSA continued to stand by the plea agreement, advocating an acceptance-ofresponsibility credit. He did, however, respond to the court's specific inquiry by
describing the appellant's new venture (as he understood it). Ultimately, the
court decided not to award any credit for acceptance of responsibility and fixed
the GSR at 33 to 41 months (adjusted offense level 20; criminal history
category I).

Despite this development, the AUSA continued to recommend a 24-month term

of incarceration. The court spurned this recommendation, instead imposing a
33-month sentence. The court also ordered a three-year term of supervised
release, a $100,000 fine, the usual special assessment, and payment of
restitution in the sum of $13,616 (related mostly to unemployment benefits
illegitimately collected by the appellant while running Vital Information). This
appeal ensued.
II. ANALYSIS

10

The appellant's assignments of error can be distilled into four categories. We

deal separately with each of them.

11

A. Repudiation of the Plea Agreement.

12

The mainstay of this appeal is the appellant's charge that the prosecutor
functionally repudiated the plea agreement by informing the probation officer

of his post-plea activities, and made a bad situation worse by uttering pointed
remarks about those activities to the court. Since this claim was not aired
before the sentencing court, the appellant faces a formidable standard of
appellate review. When a defendant has knowledge of conduct ostensibly
amounting to a breach of a plea agreement, yet does not bring that breach to the
attention of the sentencing court, we review only for plain error. See Johnson v.
United States, 520 U.S. 461, 466 (1997); United States v. Olano, 507 U.S. 725,
731-32 (1993); see also Fed. R. Crim. P. 52(b). Establishing plain error requires
a quadripartite showing: that there was error; that it was plain; that the error
affected the defendant's substantial rights; and that the error adversely impacted
the fairness, integrity, or public repute of judicial proceedings. See Johnson,
520 U.S. at 467; Olano, 507 U.S. at 732. We sometimes have treated this last
prong as a miscarriage-of-justice standard. See e.g., United States v. Alicea,
205 F.3d 480, 484 (1st Cir. 2000).
13

With the standard of review in place, we turn to the facts. The appellant asserts
that the government, though arguably adhering to the letter of the plea
agreement (it did, after all, recommend both an adjustment for acceptance of
responsibility and the agreed sentence) contravened the spirit of the agreement
when it presented information regarding the appellant's post-plea activities to
the district court.1 This assertion raises potentially difficult questions
concerning how best to reconcile competing centrifugal and centripetal forces:
the prosecution's solemn duty to uphold forthrightly its end of any bargain that
it makes in a plea agreement, see Santobello v. New York, 404 U.S. 257, 262
(1971), and its equally solemn duty to disclose information material to the
court's sentencing determinations, see United States v. Hogan, 862 F.2d 386,
389 (1st Cir. 1988). While these responsibilities admittedly can tug in different
directions, we conclude that the government here kept the balance steady and
true.

14

The mere furnishing of the information gives us little pause. By statute, "[n]o
limitation shall be placed on the information concerning the background,
character, and conduct of a person convicted of an offense which a court of the
United States may receive and consider for the purpose of imposing an
appropriate sentence." 18 U.S.C. 3661. In view of the clear language of this
statute, the sentencing judge "has a right to expect that the prosecutor and the
probation department, at the least, [will] give him all relevant facts within their
ken...." Hogan, 862 F.2d at 389. In a nutshell, the government has an
unswerving duty to bring all facts relevant to sentencing to the judge's attention.
See United States v. Mata-Grullon, 887 F.2d 23, 24 (1st Cir. 1989) (per
curiam); United States v. Voccola, 600 F. Supp. 1534, 1538 (D.R.I. 1985).

15

The information gleaned from the SEC was plainly within the compass of this
duty. That information bore an easily discernible relationship to the offense
conduct and, viewed objectively, cast doubt on the sincerity of the appellant's
professions of remorse. Thus, the government, having learned the facts, was
obliged to disclose them. See, e.g., Hogan, 862 F.2d at 389; Voccola, 600 F.
Supp. at 1538-39.

16

The AUSA's handling of the information at the time of sentencing presents a

somewhat different question. A defendant who has entered into a plea
agreement with the government, and himself fulfills that agreement, is entitled
to the benefit of his bargain. See Santobello, 404 U.S. at 262 (explaining that
"when a plea rests in any significant degree on a promise or agreement of the
prosecutor, so that it can be said to be part of the inducement or consideration,
such promise must be fulfilled"). Satisfying this obligation requires more than
lip service on a prosecutor's part. The Santobello rule "proscribe[s] not only
explicit repudiation of the government's assurances, but must in the interests of
fairness be read to forbid end-runs around them." Voccola, 600 F. Supp. at
1537.

17

There are, however, limits to what a defendant reasonably may expect. See,
e.g., United States v. Benchimol, 471 U.S. 453, 455-56 (1985); United States v.
Ramos, 810 F.2d 308, 313 (1st Cir. 1987). The government's obligation to
furnish relevant information to the sentencing court does not vanish merely
because the government has a corollary obligation to honor commitments made
under a plea agreement. These two obligations coexist - and prosecutors must
manage them so as to give substance to both.

18

Of course, this sort of legal funambulism requires careful balancing. The

prosecutor must remain aware of the possibility of conflict. He must discharge
both duties conscientiously. And he may not attempt to use one duty as an
instrument for thwarting the other.

19

It is against this backdrop that we analyze the appellant's charge that the
prosecutor here played fast and loose. The record reveals that, after listening to
an extended discourse by defense counsel regarding the post-plea subscription
scheme, the court asked the AUSA if he had anything to say in rebuttal. The
AUSA responded:

20

The government is bound by its plea agreement and will honor its plea
agreement as it should. The information that the Court is referring to here, of
course, is post-plea agreement matters [sic] and not known to the government

previously.
21

I would comment in this way in response to what you've just been told by
counsel, that the defendant submitted some information to some investors. The
fact of the matter is that the information that I received from the SEC was
found on the Internet and available virtually to the entire financial community
and potential investors, it wasn't some minor matter as I understand it. And it
was more than just you can earn some money, it had huge figures on it. And in
many ways, your Honor, I submit that it mirrors the past activity because it has
this deadline of application and so forth. I'm sure the Court has read the
material itself, the last portion of it is "My Guarantee by Sanjay Saxena." So it's
not just the timing of it that concerned the government enough to have provided
the material to probation, to the probation department, but also the substantive
nature of it that concerns us.

22

At this time, your Honor, the government does not know how much money the
defendant may have obtained by this solicitation, or if there is any money under
management by the defendant as a result, and I think only the Court can make
that inquiry, the government was not in a position to do so.

23

The judge eventually decided that the appellant had not demonstrated an
entitlement to a downward adjustment for acceptance of responsibility. He
subsequently asked the prosecutor for a specific sentencing recommendation.
The prosecutor replied:

24

The government's recommendation in this case is pursuant to our plea

agreement. And I'm well aware, your Honor, of the fact that my
recommendation is below what the Court has determined the guidelines
applicable to be. Nonetheless, bound by that agreement the government does
recommend a sentence of 24 months which, of course, was based on the
calculations [of] the parties....

25

Surveying the record in its entirety, we are persuaded that the AUSA's
commentary, though not a model of circumspection, did not transgress the plea
agreement. We consider it important that the AUSA's remarks came at the
court's urging and in direct response to defense counsel's attempt to put an
innocent gloss on the post-plea activities. In context, the comments appear
reasonably calculated to furnish the court the information that it needed to place
those activities in perspective.

26

We also deem it noteworthy that the AUSA approached the matter cautiously.

He interspersed his statements with disclaimers about the sketchiness of the

available information and the limited extent of the government's knowledge.
Perhaps most important, he resolutely stood by the bottom-line
recommendation that the government had committed to make, urging a 24month sentence even after the court had indicated that it would not award an
acceptance-of-responsibility adjustment.
27

Despite these countervailing factors, the appellant lobbies for a contrary

conclusion. His argument places great weight on two cases in which this court
held that the government breached plea agreements. Neither decision assists his
cause.

28

In United States v. Clark, 55 F.3d 9 (1st Cir. 1995), the government's

sentencing memorandum, after acknowledging that the plea agreement's terms
obligated the government not to oppose an adjustment for acceptance of
responsibility, went on to state that such largesse would be inappropriate based
on post-plea activities undertaken by the defendant. See id. at 12. Because the
second statement effectively nullified the government's feeble attempt to meet
its original commitment, we found that the government had breached the plea
agreement. See id. That is a far cry from the case at hand, in which the
prosecutor reported the newly-discovered facts to the court, but nevertheless
stuck by the government's agreed recommendations.

29

The appellant's second case, United States v. Canada, 960 F.2d 263 (1st Cir.
1992), is even more readily distinguishable. There, we held that the prosecutor
violated a plea agreement because she "failed affirmatively to recommend 36
months, as promised, and she went on to emphasize [the defendant's]
supervisory role in the offense and then to urge the judge to impose 'a lengthy
period of incarceration' and to send 'a very strong message.' " Id. at 269. Here,
unlike in Canada, the government at no point suggested - or even insinuated that the circumstances called for a different sentence than the one it had agreed
to recommend.

30

We will not paint the lily. Weighing, on the one hand, the nature of the
information relayed by the SEC and its potential relevance to the sentencing
determinations that the judge was about to make, and, on the other hand, the
prosecutor's comments and the context in which they arose, we hold that the
government adequately balanced its promise-keeping and disclosure
obligations. See Mata-Grullon, 887 F.2d at 24-25 (holding that the government
did not attempt an impermissible end-run around a plea agreement promise
when the prosecutor made the agreed recommendation, but accurately
informed the court of the purity and danger of the drugs involved in the offense

of conviction). Thus, we discern no error - plain or otherwise - in the handling

of the disposition hearing.
31

B. The Plea Colloquy.

32

The appellant next complains that the sentencing court violated Federal Rule of
Criminal Procedure 11(e)(2) by failing to inform him, at the change-of-plea
hearing, that he would not be able to withdraw his guilty plea if the court
decided to forgo the recommended 24-month sentence. While we accept the
basic premise of this complaint, we find the court's deviation to have been
harmless. Accordingly, we deny relief. See Fed. R. Crim. P. 11(h) (stipulating
that "[a]ny variance from the procedures required by [Rule 11] which does not
affect substantial rights shall be disregarded").

33

Where, as here, the government and the defendant have entered into a nonbinding plea agreement that embodies a recommended sentence, Rule 11(e)(2)
requires the court to "advise the defendant that if the court does not accept the
recommendation... the defendant nevertheless has no right to withdraw the
plea." The court below omitted this advice. The question, then, is whether that
oversight constitutes reversible error. That question must be asked despite the
appellant's failure to seek withdrawal of his plea in the district court. See
United States v. Santo, 225 F.3d 92, 97 (1st Cir. 2000); United States v.
McDonald, 121 F.3d 7, 10 (1st Cir. 1997).

34

We asked a similar question in United States v. Noriega-Millan, 110 F.3d 162

(1st Cir. 1997), another case in which the trial judge neglected to comply with
the letter of Rule 11(e)(2). We undertook a harmless-error analysis2 and
proceeded to study whether the bevue had adversely affected the defendant's
substantial rights. See id. at 166-67. In the course of that exercise, we
emphasized that "Rule 11's core concerns are absence of coercion,
understanding of the charges, and knowledge of the consequences of the guilty
plea," and found that, under the circumstances of the case, the trial court's
omission had not endangered these concerns. Id. at 167. We based this finding
on a combination of facts, including (1) the court's admonition to the defendant
that it did not have to indulge the agreed sentencing recommendation, and (2)
language in the plea agreement that specifically warned the defendant that he
would not be allowed to retract his plea. See id. at 164, 167. Accordingly, we
regarded the error as harmless. See id. at 168.

35

We believe that this case and Noriega-Millan are birds of a feather. Here, as
there, the court made statements at the change-of-plea hearing that put the

defendant on plain notice that it was not bound by the plea agreement. Indeed,
the court below, at a later stage of the hearing, reinforced this message by
telling the appellant quite pointedly that once he pleaded guilty, there was "no
taking it back... no starting over." While this statement's temporal separation
from the earlier statements defeats the government's argument that the
combination coalesced to meet the formal requirement of Rule 11(e)(2), it
nonetheless is relevant to our inquiry.
36

Moreover, as in Noriega-Millan, the written plea agreement in this case speaks

loudly. Paragraph nine is entitled "Court Not Bound By Agreement." As the
caption indicates, the provision spells out that the court is not wed to the
government's sentencing recommendations. It then states:

37

Defendant may not withdraw his plea of guilty regardless of what sentence is
imposed. Nor may Defendant withdraw his plea because the U.S. Probation
Office or the sentencing judge declines to follow the Sentencing Guidelines
calculations or recommendations of the parties.

38

The appellant signed the plea agreement, acknowledging at the time that he had
read it and understood its contents. This acknowledgment cannot be brushed
aside as mere boilerplate: Chief Judge Young questioned the appellant
intensively at the change-of-plea hearing, and the appellant stated
unequivocally that he had read the agreement completely, that he had discussed
it "multiple times" with his attorney, and that he fully comprehended it.

39

That ends this aspect of the matter. The court's admonitions, the appellant's
statements, and the contents of the plea agreement combined to put the
appellant on ample notice of the consequences of his plea. Armed with such
knowledge, the appellant's decision to change his plea was unlikely to have
been better informed by a more precise presentation of the applicable ground
rules. In other words, had the court told the appellant explicitly that he would
not be allowed to retract his plea if the court rejected the recommended
sentence, the sum total of the appellant's knowledge would not have been
increased and his willingness to plead would, in all probability, have been
unaffected.3 The court's error was therefore both harmless, see Noriega-Millan,
110 F.3d at 167, and not plain.

40

C. Acceptance of Responsibility.

41

The appellant also assails the lower court's refusal to reduce his offense level
for acceptance of responsibility. His principal line of attack focuses on the lack

of specific subsidiary findings. He is waging a losing battle.

42

The sentencing guidelines prescribe that a defendant's offense level should be

trimmed by two levels, and sometimes three, if he accepts responsibility for the
offense of conviction. See USSG 3E1.1. But a defendant is not entitled to this
adjustment as an inevitable concomitant of a guilty plea. See USSG 3E1.1,
cmt. (n.3). Rather, he must demonstrate that he has taken full responsibility for
his actions, and he must do so candidly and with genuine contrition. See United
States v. Ocasio-Rivera, 991 F.2d 1, 4 (1st Cir. 1993); United States v. Royer,
895 F.2d 28, 30 (1st Cir. 1990). Moreover, "[t]he defendant has the burden of
proving his entitlement to an acceptance-of-responsibility credit, and the
sentencing court's determination to withhold the reduction will be overturned
only if it is clearly erroneous." Ocasio-Rivera, 991 F.2d at 4 (internal citations
omitted).

43

In this case, the appellant's post-plea activities - the occurrence of which is not
disputed - did not involve the sale of unregistered securities per se. But by
continuing to couch offers of investment advice in pie-in-the-sky hyperbole,
under circumstances that easily could gull potential subscribers into thinking
that the appellant's hand would be on the tiller throughout the subscription
period, the appellant displayed a high degree of insensitivity to the root causes
of his original problem. By the same token, these actions plainly revealed a
lack of understanding of the basic fallacy inherent in the scheme that had put
him in the dock. Thus, the court could well have thought that, by pleading
guilty, the appellant had intended to acknowledge only that the technical
requirements of the securities laws had caused his venture to founder, and that
his subsequent actions showed a predilection to continue sailing much too close
to the wind.

44

In the last analysis, actions often speak louder than words. Cf. Royer, 895 F.2d
at 30 (emphasizing that "merely mouthing empty platitudes should not entitle
an offender" to a downward adjustment under USSG 3E1.1). Because the
appellant's post-plea activities reasonably could be construed as exhibiting
conduct inconsistent with a full and ungrudging acceptance of responsibility,
the district court's ruling had a solid foundation. See, e.g., United States v.
Carrington, 96 F.3d 1, 9-10 (1st Cir. 1996); United States v. O'Neil, 936 F.2d
599, 600-01 (1st Cir. 1991). No more is exigible. See Royer, 895 F.2d at 30
(approving the denial of an acceptance-of-responsibility credit when "the court
had a plausible basis for arriving at the conclusion").

45

The appellant seems to recognize this reality, and spends most of his time
arguing that the court made inadequate findings on the subject. We have not

heretofore imposed a requirement that a sentencing court accompany a denial of

a downward reduction for acceptance of responsibility with elaborate
factfinding, and we decline today to place such a burden upon the district
courts. We are particularly reluctant to do so when, as now, the reason for
declining to grant the adjustment - the appellant's course of conduct during the
interval between the change-of-plea hearing and the disposition hearing - is
readily apparent. We believe that such an approach is in line with preferred
practice. See United States v. Blas, 947 F.2d 1320, 1330 (7th Cir. 1991).
46

The appellant's criticism of the lack of findings has another dimension. He

charges that the sentencing court neglected its obligations under Federal Rule of
Criminal Procedure 32(c)(1). The rule reads in pertinent part:

47

For each matter controverted, the court must make either a finding on the
allegation or a determination that no finding is necessary because the
controverted matter will not be taken into account in, or will not affect,
sentencing.

48

This effort is misguided. What the appellant advertises as factual disputes are
nothing of the kind. As we illustrate below, the facts germane to acceptance of
responsibility are not in controversy.

49

The appellant claims that a factbound dispute exists based on the text of
paragraph 45 of the PSI Report. This paragraph states in substance that the
appellant's solicitation of one-year subscriptions to his newsletter does not
comport with acceptance of responsibility, given the near-certain prospect of
his incarceration during that period. The appellant rails that this is inaccurate
because the newsletter possibly could be run by others in his absence. This is
not an argument over the facts, but an argument over the persuasiveness of the
conclusion reached in the PSI Report (and subsequently adopted by the district
court). The appellant's attempt to contest the PSI Report's assertion that the
newsletter was fraudulent suffers from the same infirmity; it is the significance
of the activities, not the activities themselves, that are in question.

50

The short of it is that the disagreements concerning the appellant's post-plea

activities center not on factual discrepancies, but, rather, on the opinions of the
probation officer and the conclusions drawn by the sentencing court from the
undisputed facts. Rule 32(c)(1) imposes an obligation upon the court to resolve
contested facts that are material to a sentencing decision, but that obligation
does not extend to opinions and conclusions. See United States v. Cureton, 89
F.3d 469, 474 (7th Cir. 1996); United States v. Osorio, 929 F.2d 753, 764 n.5

(1st Cir. 1991). Hence, Rule 32(c)(1) is inapposite to the acceptance-ofresponsibility issue.
51

D. The Fine.

52

Finally, the appellant alleges that the court below erred in failing to make
specific findings of fact when it fined the appellant. This argument deserves
short shrift.

53

The appellant's thesis consists of two parts. First, he renews his reliance on
Rule 32(c)(1) and suggests that the court failed to resolve disputed issues of fact
before imposing the $100,000 fine. This suggestion overlooks that Chief Judge
Young, after hearing argument from both sides, expressly adopted the findings
and conclusions contained in the PSI Report. Thus, "[t]he only logically
inferable conclusion is that the court rejected each and all of appellant's factbased challenges to the PSI Report." United States v. Savoie, 985 F.2d 612, 621
(1st Cir. 1993).

54

The second half of the appellant's thesis posits that the sentencing court failed
to consider the factors required by 18 U.S.C. 3572(a), which provides that the
court, in determining the incidence and amount of a fine, shall consider, inter
alia, the defendant's income and financial resources; the burden placed on the
defendant and his dependents; the pecuniary loss, net of restitution, suffered by
others as a result of the defendant's actions; and the need to deprive the
defendant of ill-gotten gains. See United States v. Merric, 166 F.3d 406, 408
(1st Cir. 1999) (discussing statutory purport). The statute, however, does not
require a sentencing court to follow a rigid format, utter magic words, or
employ a mechanical formula. As long as the court gives consideration to the
factors discussed in section 3572(a), the statute is satisfied. See id.; see also
Savoie, 985 F.2d at 620.

55

In this case, the court complied sufficiently with section 3572(a). In

scrutinizing the record, we start with a presumption of correctness - a
presumption that, as long as the sentencing court was presented with adequate
record evidence, it will be deemed to have considered the statutory criteria. See
Merric, 166 F.3d at 408; United States v. Wilfred Am. Educ. Corp., 953 F.2d
717, 719-20 (1st Cir. 1992). The record here reveals no sound basis for
dispelling this presumption.

56

The relevant section of the PSI Report, which the court explicitly adopted,
contained all the necessary information concerning the appellant's financial

condition, the likely impact of a fine on his family, and the details of the
restitution that he already had made. In addition, defense counsel provided the
court with abundant information concerning factors adversely affecting the
appellant's ability to pay. Finally, although the GSR provided for a fine of
between $7,500 and $7,000,000, the court opted to set the amount near the low
end of this range. We view this as some additional evidence that the court paid
attention to the required factors and did not simply pull a punitive figure out of
thin air. See, e.g., United States v. Peppe, 80 F.3d 19, 22-23 (1st Cir. 1996).
Taking all of this into account we hold, without serious question, that the
district court complied adequately with section 3572(a). See Merric, 166 F.3d
at 408 ("Where the pertinent information is presented in the district court, this
court will assume that the district court considered it.").
III. CONCLUSION
57

We need go no further. To the extent that the appellant raises other points, they
are insufficiently developed, obviously incorrect, or both. The short of it is that
the appellant was lawfully sentenced.

58

Affirmed.

NOTES:
*

Of the District of Puerto Rico, sitting by designation.

Since the probation officer functions as an arm of the court, see United States
v. Charmer Indus., Inc., 711 F.2d 1164, 1170 (2d Cir. 1983), we treat the
AUSA's disclosure of information to the probation officer as the functional
equivalent of disclosure to the court.

We left open the question whether harmless error or plain error - a measure less
favorable to the defendant - constituted the correct standard of review. See
Noriega-Millan, 110 F.3d at 166 n.4. The case at bar arises in a similar posture,
but our recent decision in United States v. Gandia-Maysonet, 227 F.3d 1, 5-6
(1st Cir. 2000), clearly indicates that the appellant's claim must survive plainerror review.

We note that the appellant couches his argument in terms of per se reversible
error, carefully refraining from any claim that the court's omission actually
misled him. As previously mentioned, that argument is foreclosed in this
circuit. See Noriega-Millan, 110 F.3d at 166-67.