CYR, Circuit Judge.
William Gregorio appeals the concurrent twelve-month prison terms imposed following his conviction in the United States District Court for the District of Massachusetts
Appellant, a real estate broker, pled guilty to eleven counts of filing false residential mortgage loan documents with ComFed Savings Bank ("ComFed"), a federally insured bank, during the period February 1987 to December 1988. The remaining twenty-two counts were dismissed by the government pursuant to the plea agreement. As the purchaser of two of the residences, appellant executed and submitted purchase money loan documents which concealed the information that the properties were encumbered by second mortgages, thereby enabling appellant to obtain financing without the required equity contribution. As to the nine other properties, appellant acted as the real estate broker and arranged for undisclosed second mortgage financing, prepared and executed addenda concealing the second mortgage financing, and forwarded the false documents to ComFed.
On April 8, 1991, appellant was sentenced to serve a concurrent twelve-month prison term under each of the eleven counts of conviction.
A. Acceptance of Responsibility
The district court declined to allow appellant a two-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(a), because "[appellant did] not, though he now understands the reach of the law, appreciate the criminality of his conduct nor accepts [sic] his responsibility therefor." Appellant contends that the district court misapplied U.S.S.G. § 3E1.1(a) by focusing on "criminal conduct" with which appellant was not charged. He notes correctly that "the court cannot require the defendant to accept responsibility for some other, uncharged conduct." United States v. O'Neil, 936 F.2d 599 (1st Cir.1991) (emphasis in original). See United States v. Perez-Franco, 873 F.2d 455, 459 (1st Cir.1989). Appellant argues that even though he was only convicted of submitting false statements to ComFed, "the [false] notion that [he] was guilty of bank fraud clearly pervaded the [judge's] thinking and influenced his decision not to [allow] a two level reduction for acceptance of responsibility." Appellant points to a rule 11 hearing colloquy between himself and the court,
The record does not support appellant's characterization of the court's sentencing rationale. Not only does the transcript of the sentencing hearing itself dispel any legitimate doubt that the court was well aware that appellant was charged with making false statements to a federally insured bank, but the rule 11 plea hearing transcript does so as well. The one arguably errant reference to "bank fraud" was promptly corrected. Moreover, the two "fraud" references the court made during the sentencing hearing cannot be considered error in a case involving the making of "false statements."
B. More than Minimal Planning
Appellant next challenges the two-level enhancement for "more than minimal planning," which we review for clear error. United States v. Strickland, 941 F.2d 1047, 1050 (10th Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 614, 116 L.Ed.2d 636 (1991). See United States v. Preakos, 907 F.2d 7, 9 (1st Cir.1990) ("district court's fact-based application of the guidelines [reviewed] only for clear error").
The commentary to U.S.S.G. § 1B1.1 states that "`[m]ore than minimal planning' is deemed present in any case involving repeated acts over a period of time, unless it is clear that each instance was purely opportune." U.S.S.G. § 1B1.1, comment. n. 1(f) (emphasis added). As appellant concedes that the numerous false statements made in connection with the eleven loans ComFed approved over a twenty-two month period constituted "repeated acts," we limit our inquiry to whether the district court committed clear error in determining that appellant's false statements were not "purely opportune." Without venturing an arbitrary determination as to how many false statements are required to demonstrate "more than minimal planning," cf. United States v. Fox, 889 F.2d 357, 361 (1st Cir.1989) ("We cannot conceive of how obtaining even one fraudulent loan would not require more than minimal planning.") (dicta) (emphasis added), we conclude without hesitation that the district court did not commit clear error in finding that appellant's repeated preparation and submission of false statements did not constitute "spur of the moment" conduct. See id. Each of the eleven loan transactions entailed several steps: arranging for the mortgage financing; concealing the second mortgage financing in the first mortgage loan documents; and submitting the first mortgage loan documents to ComFed. We hold, therefore, that the evidence
C. Minor Role in Offense
Appellant contends that he should have received a two-level reduction for his role as a "minor participant" in the offenses of conviction. See U.S.S.G. § 3B1.2(b). Since the sentencing court's assessment of a defendant's role in the offense is "heavily dependent on the facts of the particular case," see id., comment. (backg'd), it is not to be set aside on appeal unless clearly erroneous. United States v. Rosado-Sierra, 938 F.2d 1, 1-2 (1st Cir. 1991) (per curiam); United States v. Ocasio, 914 F.2d 330, 333 (1st Cir.1990); United States v. Wright, 873 F.2d 437, 443-440 (1st Cir.1989). The defendant must make the threshold showing, Rosado-Sierra, 938 F.2d at 1; Ocasio, 914 F.2d at 332, that he is "substantially less culpable than the average participant." U.S.S.G. § 3B1.2, comment. (backg'd).
Appellant describes himself as an "incautious foot soldier" in the "ComFed debacle." He argues that since he was "surely at the bottom of the hierarchy" in the extensive web of fraud which led to ComFed's demise, he must be considered a "minor" participant. Appellant's insistent focus on the wider web of fraud — the "ComFed debacle" — rather than the particular offenses for which he was sentenced, ignores controlling caselaw authority that "[r]ole-in-the-offense adjustments depend ... not only on the comparative conduct of persons jointly engaged in criminal activity, but also on comparing each offender's actions and relative culpability with the elements of the offense." Ocasio, 914 F.2d at 333 (emphasis added); see also United States v. Cepeda, 907 F.2d 11, 12 (1st Cir. 1990) (§ 3B1.2 reduction — based on defendant's lesser involvement in drug activities as compared with codefendants — rejected by court because defendant's role in offense of conviction was not "minor"). Appellant's various roles in the eleven counts of conviction clearly were not "minor." The required showing of lesser culpability depends both "on the comparative conduct of persons jointly engaged in criminal activity ... [and] on comparing each offender's actions and relative culpability with the elements of the offense." Ocasio, 914 F.2d at 333.
Appellant neither demonstrated that any other person was substantially more culpable, nor that appellant's criminal conduct was "minor" in the sense that it was not "important," see id., to the furtherance of the criminal enterprise. Indeed, with respect to all eleven offenses, appellant appears to have been the architect of the false statements. He was the direct beneficiary of the loans obtained from ComFed on two occasions and brokered the other nine real estate loan transactions. In every instance, he arranged the loans and prepared and forwarded to ComFed the documents which concealed the existence of the second mortgage financing. Thus, appellant's criminal activity represented an important contribution to the criminal enterprise and there is nothing in the record which would support the contention that he was "substantially less culpable" than either the "average" person who participated in these eleven offenses, or the "average" person who violates 18 U.S.C. § 1014. See id. (measuring defendant's conduct against "the `average' person who participates in aiding a federal prisoner to escape"). We find no clear error in the district court's rejection of appellant's request for a role-in-the-offense adjustment.
D. Downward Departure for "Multiple Causation"
Finally, appellant challenges the manner in which the district court structured its downward departure under U.S.S.G. § 2F1.1, reflecting "multiple causation" for victim loss. He argues that once the decision had been made to depart downward, the court was required to determine the extent of the departure before arriving at appellant's total offense level and the applicable guideline sentencing range ("GSR"). As appellant's claim,
Appellant's total offense level was made up of the following elements: a base offense level of six, see U.S.S.G. § 2F1.1(a); a six-level enhancement of the offense level, reflecting "victim loss" in the $100,000 to $200,000 range, see id. § 2F1.1(b)(1) (rev. ed. 1988);
The guideline departure provision for "multiple causation" of victim loss states as follows:
U.S.S.G. § 2F1.1, comment. (n. 10). The district court expressly predicated its downward departure on the finding that "multiple factors impacted upon the loss to [ComFed]."
Appellant argues, as he did in the district court, that all consideration of "victim loss," including the court's apportionment of appellant's share of the responsibility
The sole support offered for appellant's proposed structuring of a departure for "multiple causation" of victim loss under U.S.S.G. § 2F1.1, comment. (n. 10) derives from his resourceful interpretation of the Sentencing Commission's distinction between "guided" and "unguided" departures. See U.S.S.G. § 1A4(b), p.s. at 1.6. Under appellant's interpretation, unguided departures are authorized strictly by statute, see 18 U.S.C. § 3553(b), whereas the authority for guided departures derives from the express language of the Sentencing Guidelines, see U.S.S.G. § 1A4(b), p.s. Appellant argues that unguided departures are authorized by statute only in instances where the court finds "an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines...." 18 U.S.C. § 3553(b) (emphasis added). Thus, according to appellant, since "multiple causation" was expressly considered by the Commission in its formulation of U.S.S.G. § 2F1.1, the departure in this case can only have been one of the guided variety. Appellant further maintains that application note 10 itself provides "specific guidance," see U.S.S.G. § 1A4(b), p.s., by enabling a departure for "multiple causation" only within the framework of the victim loss table in U.S.S.G. § 2F1.1(b)(1). Appellant therefore insists that the district court incorrectly resorted to an unguided departure by referring to the victim loss table before it had apportioned the amount of the total ComFed loss for which he alone was responsible.
The Sentencing Commission intended that the district courts "treat each guideline as carving out a `heartland,' a set of typical cases embodying the conduct that each guideline describes." U.S.S.G. § 1A4(b), p.s.;
A Commission-identified departure may be "guided" or "unguided." Wilkins, supra note 11, at 440 ("Occasionally, the commentary accompanying a particular guideline not only describes an `invited departure' but also suggests how the court should structure or limit its departure decision.") (emphasis added); Selya & Kipp, supra note 11, at 11-12 (a departure is "guided" if the Commission not only identifies the circumstances but indicates that the "departure should be calibrated by a particular analogy to the sentencing grid"). See, e.g., U.S.S.G. § 2G1.1, comment. (n. 1) (recommending "downward departure of 8 levels" where crime of transportation for purposes of prostitution was not committed for profit); U.S.S.G. § 2Q1.3, comment. (n. 7) (departure "of up to two levels" may be warranted if nature and quantity of mishandled pollutant and risk associated with violation of permit remove case from "heartland").
A Commission-identified departure of the unguided variety, on the other hand, simply acknowledges that not all material circumstances were "adequately considered" in the related guideline. See, e.g., U.S.S.G. § 2D1.1, comment. (n. 9) (high drug purity may warrant departure) (no guidance as to extent of departure); U.S.S.G. § 2L1.1, comment. (n. 8) (large scale smuggling of aliens under dangerous or inhumane conditions may warrant departure) (same); U.S.S.G. § 2L1.2, comment. (n. 3) (departure may be warranted where defendant's previous deportations, following conviction for violent felony, removes case from "heartland") (same).
The victim loss table in U.S.S.G. § 2F1.1(b)(1) — prescribing "heartland" offense-level adjustments for victim loss — was based on empirical evidence that the "amount of loss" was among the "most important factors that determined sentence length" prior to the advent of the Sentencing Guidelines. U.S.S.G. § 2F1.1, comment. (backg'd). The victim loss table represents the product of the Commission effort to encapsulate an auxiliary "heartland" sentencing formula for reflecting in the GSR the approximate total victim loss occasioned by the defendant's fraud.
The Commission did not attempt to incorporate in the victim loss table the comparatively infrequent adjustments warranted where approximation of the amount of victim loss occasioned by the defendant alone is complicated by considerations of "multiple causation"; e.g., where "the total dollar loss that results from the offense ... overstate[s] its seriousness." U.S.S.G. § 2F1.1, comment. (n. 10).
Appellant's argument, in sum, confuses Commission identification of an appropriate circumstance for departure, under the authority of 18 U.S.C. § 3553(b), with Commission control or guidance as to the appropriate structuring or dimension of the departure. Application note 10 identifies "multiple causation" as an appropriate basis for downward departure, but leaves the structure and dimension of the departure to the reasoned discretion of the sentencing court. The district court reasonably structured the unguided departure in the instant case pursuant to U.S.S.G. § 2F1.1, comment. (n. 10).