United States Court of Appeals

For the First Circuit

No. 05-1991

UNITED STATES OF AMERICA,

Appellee,

v.

GARY A. SAGENDORF,

Defendant, Appellant.

APPEAL FROM

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

 Selya, Circuit Judge,

Stahl, Senior Circuit Judge,

and Lynch, Circuit Judge.

Timothy G. Watkins, on brief for the appellant.

Paul G. Levenson, Assistant United States Attorney, and

Michael J. Sullivan, United States Attorney, on brief for the

appellee.

April 20, 2006
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Per Curiam. Defendant Gary Sagendorf was found

guilty, after a jury trial, of trafficking in counterfeit goods

(i.e., counterfeit "Stolichnaya" vodka) in violation of 18

U.S.C. § 2320. At his original sentencing, which occurred

before the Supreme Court issued its decision in United States

v. Booker, 543 U.S. 220 (2005), the primary issue in dispute

was whether or to what extent Sagendorf's sentence should be

enhanced under USSG § 2B5.3 based on the "infringement amount."

The district court ultimately enhanced the sentence 12 levels

on that ground and sentenced Sagendorf to the bottom of the

resulting guideline range, i.e., 41 months. 

Sagendorf appealed from his sentence (but not his

conviction). His brief challenged his sentence on two grounds:

(1) that the district court committed a guidelines

interpretation error in calculating the infringement amount and

(2) that he was entitled to resentencing under Booker, which

had come down after sentencing but before appellate briefing.

After Sagendorf filed his brief but before the government

responded, Sagendorf filed an unopposed motion to withdraw his

brief and remand the case to the district court for

resentencing. In that motion, Sagendorf expressly "agree[d] to

withdraw his appeal and to abandon his claim that the district

court incorrectly calculated the Sentencing Guidelines." In so

doing, Sagendorf expressed his understanding "that if this
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Court remands the case as requested in this motion, the

district court will be permitted to determine whether

Sagendorf's sentence should be reduced in light of the Supreme

Court's decision in Booker and the sentencing goals set out in

18 U.S.C. §3553(a) and will use its computation of the

guideline sentencing range as advisory." Sagendorf also

expressly stated that he "underst[ood] that the district court

is not obligated to alter the sentence on remand, and may reimpose the sentence that is the subject of this appeal." "In

accordance with" Sagendorf's motion, we remanded the case for

resentencing. 

The sentence imposed on remand was identical to that

imposed under the mandatory guidelines. In appealing the

reimposed sentence, Sagendorf challenges it both as

unreasonable under Booker (because the district court

purportedly gave presumptive weight to the guidelines) and as

based on an incorrect calculation of the guideline sentencing

range. Given the course of events described above, we conclude

that Sagendorf waived any argument that the guideline

calculations were incorrect. See United States v. Rodriguez,

311 F.3d 435, 437 (1st Cir. 2002) (finding it "difficult to

conceive of a more conspicuous example of a knowing and

voluntary abandonment of a legal right" than when "[a] party

identifies an issue, and then explicitly withdraws it").
Sagendorf's suggestion that the guideline sentencing range be 1

given equal weight with the other statutory factors also has been

foreclosed by Jiménez-Beltre, 440 F.3d at 518, as has the

government's argument that this court lacks jurisdiction to review

a within-guidelines sentence at all, id. at 517.

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"Although an appellate court has discretion to excuse waiver

'in the interests of justice,'" Olsen v. United States, 414

F.3d 144, 154 (1st Cir. 2005) (quoting Thomas v. Arn, 474 U.S.

140, 155, & n.15 (1986)), we see no reason to do so here.

We therefore turn to Sagendorf's only remaining

claim: that, by re-imposing the 41-month sentence (rather than

the 13-month sentence that Sagendorf sought), the district

court treated the guideline sentencing range as "presumptive."

If so, that would be inconsistent with this court's recent

decision in United States v. Jiménez-Beltre, 440 F.3d 514, 518

(1st Cir. 2006), in which we declined to view the guidelines,

post-Booker, as "presumptively controlling." We disagree, 1

however, with Sagendorf's characterization of the district

court's methodology. Our own review of the record leads us to

conclude that the district court's consideration of the

guideline sentencing range, in conjunction with the other

relevant statutory factors, was fully consistent with the

standards articulated in Jiménez-Beltre.

In support of his argument, Sagendorf points to one

of the general principles that the court indicated that it

would follow in "consulting the guidelines" post-Booker. In
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that general context, the district court did state its

tentative view that "relying on grounds that would not justify

a guidelines departure to impose a nonguideline sentence is

inherently suspect . . .[,] [s]o the burden of persuasion will

be high for someone seeking to persuade me to agree to a shadow

departure where a departure in the sunlight would be

unjustified." Regardless of whether that particular statement,

standing alone, accurately states the law--a matter on which we

take no view--it was tempered, in context, by the

countervailing principle that "consultation of the guidelines

must be qualified by the reality that the guidelines . . .

necessarily remain general and categorical to a significant

degree," as well as by the principle that the court's approach

"cannot be so . . . slavishly compliant as to constitute

effective submission to the guidelines, thereby reviving in

them a de facto mandatory quality." Those principles presaged

our similar statements in Jiménez-Beltre. See, e.g., 440 F.3d

at 518 ("the guidelines are still generalizations that can

point to outcomes that may appear unreasonable to sentencing

judges in particular cases"); id. (declining to view the

guidelines as "'presumptively' controlling or a guidelines

sentence as 'per se reasonable'" because doing so "tends in the

direction [of making them mandatory]"). 
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Perhaps more important, whatever the merit of the

judge's general reference to "shadow departures," that was not

the basis for the district court's decision in this case (and,

so, it is not the focus of our review). Here, the district

court based its decision not to impose a below-guidelines

sentence primarily on the principle that to do so simply

because the guideline sentencing range for this offense "seems

high" would be "willfully idiosyncratic" or, in other words, "a

judge-by-judge recalibration of the guidelines," which would

constitute a "serious mistake." That principle is consistent

with this court's later warning that, in the post-Booker world,

"sentencing decisions must be done case by case and must be

grounded in case-specific considerations, not in general

disagreement with broad-based policies enunciated by Congress

or the [Sentencing] Commission, as its agent." United States

v. Pho, 433 F.3d 53, 65 (1st Cir. 2006).

In applying that principle to this case, the district

judge asked whether the previously calculated guideline

sentencing range "seem[s] high because of something unique or

specific to this case or because [he] generally regard[s] the

calibration of guidelines ranges to be set higher than [he]

would set them if [he] had the freedom and authority to do so."

He then proceeded to answer that question by consulting the

relevant factors set forth in 18 U.S.C. § 3553(a).
Sagendorf points to that acknowledgment as illustrating the 2

excessive weight given to the guidelines relative to the other

statutory factors. However, "the requirement that the sentencing

judge consider a § 3553(a) factor that may cut in a defendant's

favor does not bestow on the defendant an entitlement to receive

any particular 'credit' under that factor." United States v.

Fernandez, 2006 WL 851670, at *12 (2d Cir. Apr. 3, 2006). 

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As to the nature and circumstances of the offense,

id. § 3553(a)(1), the court considered the offense a serious

one, "committed over an extended period of time with planning

and effort[,] . . . not a crime of momentary weakness or a

crime of opportunity, but a deliberate criminal project." As

to how that seriousness was quantified, the court indicated

that "many of the close questions in that calculation were

resolved in the defendant's favor," and that alternative

calculations would have resulted in an even higher sentence.

As to deterrence, id. § 3553(a)(2)(B), the court concluded

"that adequate general deterrence requires a penalty that

reflects the seriousness of the offense, even if specific

deterrence might be satisfied with a lesser penalty." As to

the history and characteristics of the defendant, id. §

3553(a)(1), which, the court acknowledged, "are in

[Sagendorf's] favor," the court concluded that Sagendorf's 2

lack of a criminal history was already taken into account by

placing him in criminal history category I for purposes of

computing his guideline sentencing range. 
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On the basis of the totality of these factors, as

well as consultation of the guidelines, the court concluded

that its "sense that the sentence previously imposed seems high

derives not from factors specific to this case that distinguish

it in its seriousness from other possible cases of purveyors of

counterfeit goods and marks where there was an intended loss of

about $300,000, but rather from a more generalized view of the

guidelines ranges." Accordingly, the court reimposed the same

41-month sentence, which it deemed, "under all the

circumstances[,] reasonable and just." 

Because the district court's explanation for that

sentence is "plausible," Jiménez-Beltre, 440 F.3d at 519, and

the resulting sentence is, at the very least, "defensible,"

id., we decline to second-guess the district court's judgment.

Accordingly, we affirm the sentence. 

Affirmed.