1Senior Circuit Judge of the Eleventh Circuit, sitting by

designation.

 

UNITED STATES COURT OF APPEALS

for the Fifth Circuit

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No. 91-3647

_____________________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

STANLEY J. GAUDET,

Defendant-Appellant.

______________________________________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

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(July 10, 1992)

Before HILL,1 KING and DAVIS, Circuit Judges.

DAVIS, Circuit Judge:

Defendant, Stanley J. Gaudet, challenges in a number of

respects the sentence the district court imposed following his

entry of a guilty plea. Under the standard of review that governs

Gaudet's arguments on appeal, we affirm. 

I.

Gaudet pled guilty to twenty-two counts of embezzling from

employee pension plans in violation of 18 U.S.C. § 664 and to a

twenty-third count of embezzling union funds in violation of 29

U.S.C. § 501(c). The district court applied pre-Sentencing

Guidelines law to Counts 1-18 and the Guidelines to Counts 19-23.
2

The court sentenced Gaudet as follows: 1) five years each on

Counts 1-3; 2) 41 months each on Counts 4-18, to run concurrently

with each other and with Counts 1-3; 3) 41 months each on Counts

19-23, to run concurrently with each other but consecutively to

Counts 1-18. In aggregate, Gaudet was sentenced to a total term of

imprisonment of 221 months.

The district court also ordered Gaudet to make restitution of

the total embezzled amount, $2,750,538.87. To satisfy this amount,

the court ordered Gaudet to relinquish the pension funds to which

he is personally entitled.

At the time these acts occurred, Gaudet was the president and

business agent of Local Union 11 of the Sheet Metal Workers

International Association, AFL-CIO, and served as trustee for

several of its employee benefit funds. These funds were employee

benefit plans under 29 U.S.C. § 1002(3) and subject to the

provisions of Title I of the Employee Retirement and Income

Security Act of 1974 (ERISA). The government established that

Gaudet began converting funds in 1983; that he established bank

accounts into which he deposited these funds; that he engaged in at

least twenty-three separate acts of embezzlement between 1983 and

1989; that he concealed his activities and the existence of the

accounts from all other officers, trustees, employees and members

of the union; and that he gambled away most if not all the

converted funds in frequent trips to Las Vegas. In all, Gaudet

embezzled $2,710,538.87 from Local 11's employee benefit plan

(Counts 1-22) and $40,000 from union funds (Count 23).
2 Application of the Guidelines would have saved Gaudet fifteen

years of sentence and at least five years of actual imprisonment.

3

Gaudet challenges his sentence first by arguing that the

district court erred in applying pre-Guidelines sentencing law to

Counts 1-18. He contends that the Guidelines should have governed

all twenty-three counts. He argues in the alternative that the

district court erred in using the total dollar amount embezzled in

all twenty-three counts to arrive at his offense level for those

convictions to which the Guidelines apply. Finally, he contends

that the district court's order divesting him of his pension plan

to satisfy the restitution award is erroneous. We consider each

argument in turn.

II.

A.

The district court applied pre-Guidelines sentencing law to

the first eighteen counts against Gaudet and the Guidelines to

Counts 19-23. Gaudet argues that the district court should have

applied the Guidelines to all counts.2 The Guidelines apply "only

to offenses committed" after November 1, 1987, the Sentencing

Reform Act's effective date. United States v. White, 869 F.2d 822,

826 (5th Cir.), cert. denied, 490 U.S. 1112 (1989). The actual

acts of embezzlement underlying Counts 1-18 took place between 1983

and 1986; the embezzlements underlying Counts 19-23 occurred in

1988. Gaudet contends that the Guidelines should control his

sentence on all twenty-three counts because his offense conduct

constituted a continuing scheme which did not end until 1988. 
4

Courts have recognized that the Guidelines control some

offenses that "straddle" the effective date of the Guidelines.

That is, the Guidelines apply to offenses involving a continuing

course of conduct that begins before November 1, 1987, but

continues thereafter. We have found conspiracy offenses to be

"straddle" crimes for the purposes of applying the Guidelines. See

e.g., White, 869 F.2d at 826; United States v. Devine, 934 F.2d

1325, 1332 (5th Cir. 1991), cert. denied, 112 S.Ct. 954 (1992). 

Other courts have held that RICO may be a "straddle" offense. See

e.g., United States v. Moscony, 927 F.2d 742, 754 (3d Cir.) (RICO

is continuing offense analogous to conspiracy), cert. denied, 111

S.Ct. 2812 (1991); United States v. Cusack, 901 F.2d 29, 32 (4th

Cir. 1990) (RICO is "straddle" offense to which Guidelines apply).

The question this case presents is whether embezzlement is a

straddle offense so that Gaudet's sentences for offenses committed

before November 1987 are nevertheless governed by the Guidelines.

This circuit has not addressed this question. The First Circuit,

however, has answered this question affirmatively. United States

v. Young, 955 F.2d 99, 109 (1st Cir. 1992). Gaudet urges us to

adopt the reasoning of Young, which suggests that, for the purposes

of applying the Guidelines, the crime of embezzlement continues as

long as any conduct concealing the embezzlement continues. Id. 

Gaudet failed to object below to the district court's

application of pre-Guidelines sentencing law to Counts 1-18,

although the Presentence Report (PSR) gave him clear notice that

the court might do just that. The PSR grouped Counts 19-23
5

together for the purpose of computing the offense level and applied

the Guidelines to these counts. Furthermore, in calculating the

applicable fine, the PSR also grouped these five counts together.

A separate section of the PSR discussed the first eighteen counts.

This section, entitled "Sentencing Data for Offenses Occurring

Prior to November 1, 1987--Counts 1 through 18 of the Superseding

Bill of Information," obviously applied pre-Guidelines rules. The

PSR, therefore, plainly gave Gaudet notice that the court would

consider applying pre-Guidelines law to the first eighteen counts.

Because of Gaudet's failure to object to the PSR's proposed

application of pre-Guidelines rules to the first eighteen counts,

we review under a plain error standard.

In United States v. Lopez, 923 F.2d 47, 50 (5th Cir.), cert.

denied, 111 S.Ct. 2032 (1991), we recently repeated our definition

of plain error. It is error that, when "examined in the context of

the entire case, is so obvious and substantial that failure to

notice and correct it would affect the fairness, integrity or

public reputation of judicial proceedings." See also United States

v. Vontsteen, 950 F.2d 1086, 1089-91 (5th Cir. 1992) (en banc).

For a number of reasons, we are not persuaded that Gaudet's

multiple embezzlement offenses are obviously "straddle" crimes.

First, this circuit has never had the occasion to address this

issue. Second, even if the First Circuit's reasoning in Young is

accepted as settled law, the failure to characterize Gaudet's

offenses as straddle offenses is not obvious error. Under Young,

whether a number of embezzlements are continuing offenses depends
3 Gaudet points out that the district court's treatment of the

twenty-three acts of embezzlement was inconsistent because it

treated each count as a separate and discreet offense for the

purpose of sentencing, but treated them as a single, continuing

offense for other purposes. Gaudet points out for the first time on

appeal that Counts 1-14 were time-barred by the Statute of

Limitations, 18 U.S.C. § 3282, unless some portion of the conduct

underlying these offenses continued after the actual act of

transferring the money to Gaudet's possession or control occurred.

But Gaudet did not argue to the district court that any of his

offenses were time-barred. Thus, he did not give the district

court a chance to confront this alleged inconsistency. We are

restrained by the plain error standard which compels us to conclude

that Gaudet waived this issue by failing to contemporaneously

object to the district court's alleged inconsistent treatment of

his offenses.

6

to some extent on the particular facts of the case. If the court

concludes that later embezzlements covered up earlier ones, it is

entitled to find the offenses continuing in nature. When a legal

conclusion depends in part upon discreet factual findings and the

court is never directed to those facts, its legal conclusion is

almost never obviously wrong. Lopez, 923 F.2d at 50. Thus, even

if we were to hold here that a series of embezzlements may under

appropriate circumstances be a continuing offense and qualify as a

straddle offense when committed both before and after November 1,

1987, we cannot say that the district court's failure to treat

Gaudet's embezzlements as such constitutes plain error.3

B.

Gaudet next complains of the court's use of the total dollar

amount of money he embezzled in all twenty-three counts to arrive

at the base offense level with respect to Counts 19-23. The

government argues that the total dollar amount embezzled in all

counts was properly considered by the court as "relevant conduct"
4 The district court, at sentencing, stated: "Two, the return

to the Sheet Metal Worker's International Association of any

monthly pension check to which he becomes eligible. The Court will

7

under §1B1.3(a)(1) of the Sentencing Guidelines. Gaudet, on the

other hand, contends that the court's inclusion of the dollar

amount embezzled in Counts 1-18 to arrive at his sentence for

Counts 19-23, which sentence runs consecutively to the sentence for

the first eighteen counts, is an unconstitutional violation of the

Double Jeopardy Clause. 

United States v. Parks, 924 F.2d 68 (5th Cir. 1991), controls

this issue. In that case, the defendant was convicted on twentyseven counts of felonious misapplication of funds belonging to a

federally insured bank, in violation of 18 U.S.C. § 656. The

actions underlying the first twenty-four counts occurred before

November 1, 1987, and the conduct for the remaining three occurred

after that date. In calculating Parks' offense level under the

Guidelines for Counts 25 through 27, the court used the total

dollar amount involved in all twenty-seven counts. We held that it

was within the district court's discretion to impose consecutive

sentences for the pre-Guidelines and Guidelines offenses "even if

it uses pre-Guideline conduct in arriving at the Guideline offense

level." Id., at 71. We find no grounds on which to distinguish

today's case from Parks. 

 III.

Finally, Gaudet asserts that the district court erred in

ordering him to relinquish his personal pension to satisfy the

restitution order.4 Once again, however, Gaudet failed to object
consider as compliance with the procedure the defendant

relinquishing to the Union any pension to which the defendant is

legally entitled."

8

below and we must determine whether to review this alleged error

only for plain error.

A review of the record indicates that the PSR specifically

mentioned Gaudet's pension. In a section entitled "Fines and

Restitution," the PSR detailed the maximum fines and fees to which

Gaudet could be subject. It stated further that the court could

order restitution for the full amount embezzled by Gaudet. This

same section included a subsection entitled "Defendant's Ability to

Pay" which listed Gaudet's assets and liabilities and calculated

his net worth. This subsection referred to the pension in the

following way:

Gaudet applied for his pension through the

Sheet Metal Worker's International and Local

11 union funds. The local union has denied

this request as of May 20, 1991, and Mrs.

Gaudet, who feels she is entitled to half of

this pension, has contacted the New Orleans

Legal Assistance Bureau for advice. A

decision on the pension through the

International Union is pending.

The Addendum to the PSR stated that Gaudet was entitled to $2,426

per month in pension payments.

We conclude that this information in the PSR put Gaudet on

notice that the court could consider his pension as an available

source of income from which to satisfy the fines or restitution.

Accordingly, we conclude that Gaudet had an opportunity to object

to the court's consideration of his pension to satisfy the

restitution award.
9

Because Gaudet had an opportunity to object below, his failure

to do so restricts us to reviewing his present argument only for

plain error. Based upon Guidry v. Sheet Metal Worker's National

Pension Fund, 110 S.Ct. 680, 685 (1990), and Herberger v.

Schanbaum, 897 F.2d 801 (5th Cir.), cert. denied, 111 S.Ct. 60

(1990), Gaudet argues that the anti-alienation provision of ERISA

precluded the district court from ordering him to relinquish his

pension. Gaudet has a substantial legal argument. In Herberger,

we weighed ERISA's remedial provisions against its anti-alienation

provision. We held that ERISA's anti-alienation provision

precluded the district court from ordering the judgment against a

trustee who had breached his fiduciary duties to a pension fund

against the trustee's pension. Id. at 804.

But we need not decide whether Gaudet would prevail if we were

permitted to consider his argument under a plenary review standard.

Gaudet's failure to object precludes his relief. As we explained

in United States v. Lopez, an appellant is entitled to relief under

the plain error standard only when the error "examined in the

context of the entire case, is so obvious and substantial that

failure to notice and correct it would affect the fairness,

integrity or public reputation of judicial proceedings." 923 F.2d

at 50. As we stated in United States v. Wicker, 933 F.2d 284, 291

(5th Cir.), cert. denied, 112 S.Ct. 419 (1991), "[t]he burden of

showing plain error is a heavy one, and this court will notice

plain error only in exceptional circumstances" (citations omitted).

The judge's order permitting the government to satisfy the
10

restitution order from Gaudet's pension and thereby repay the

pension funds he embezzled is certainly not counter intuitive. No

judge or other legal scholar can be expected to have an intimate

knowledge of every obscure rule of law. Thus, even if Gaudet is

correct that ERISA's anti-alienation provisions preclude the use of

his pension to satisfy his restitution obligation, the district

court's error is not an obvious one. See City of Newport v. Fact

Concerts, Inc., 453 U.S. 247, 256 (1981) ("'Plain error' review .

. . is suited to correcting obvious instances of injustice or

misapplied law. A court's interpretation of the contours of

municipal liability under § 1983 . . . could hardly give rise to

plain judicial error since those contours are currently in a state

of evolving definition and uncertainty.")

Thus, reviewing Gaudet's argument under the weak plain error

lens, the district court did not commit reversible error in

requiring Gaudet to relinquish his pension payments to satisfy his

restitution obligation to the pension plans.

IV.

For the reasons stated above, the sentence of the district

court is affirmed.

AFFIRMED.