[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]

United States Court of Appeals

For the First Circuit

No. 01-1819

UNITED STATES,

Appellee,

v.

TODD J. LASCOLA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

 Boudin, Chief Judge,

Torruella and Howard, Circuit Judges.

Todd J. Lascola on brief pro se.

Margaret E. Curran, United States Attorney, Donald C.

Lockhart, Assistant United States Attorney, and Ira Belkin,

Assistant United States Attorney, on brief for appellee. 

September 3, 2002
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Per Curiam. Todd J. LaScola, a licensed stockbroker,

pled guilty to nine counts of a 55 count indictment, alleging

mail fraud, 18 U.S.C. §1341, wire fraud, 18 U.S.C. § 1343, and

embezzlement, 18 U.S.C. § 664. His crimes comprised several

schemes involving two companies in which he was engaged, CPA

Advisors Network ("CPA") and CPI Investment Management, Inc.

("CPI"). LaScola was sentenced to 96 months imprisonment,

three years supervised release, and restitution of

approximately $8.1 million dollars. He challenges several of

the sentencing guideline calculations. We affirm.

As an initial matter, LaScola makes an Apprendi type

argument, see Apprendi v. New Jersey, 530 U.S. 466 (2000),

asserting that none of the upward adjustments (apart from

minimal planning) was authorized because none was specifically

mentioned in the indictment or in the plea agreement. This

argument was not raised in the district court and, thus, is

subject to the plain error standard. There was no error, let

alone plain error. Apprendi does not apply to guideline

findings that increase the sentence but do not elevate it

beyond the statutory maximum. United States v. Caba, 241 F.3d

98, 101 (1st Cir. 2001). The statutory maximum for each count

of conviction was five years. LaScola received a 60 month term

of imprisonment on Count 1 (mail fraud) and concurrent 36

months imprisonment on the remaining eight counts to be served

consecutive to the 60 month term imposed on Count 1 (for a

total term of 96 months).
1We refer to the November 2000 Sentencing Guidelines. LaScola

did not object to the use of this version in the district court.

On appeal, he refers to the November 1998 version of the

Guidelines, contending that "[e]xcept for clarifications, the

Guidelines in effect as of the last date of criminal activity, in

this case 1998 Guidelines, are to be used." Reply brief at p.15,

n.1. In fact, however, "[b]arring any ex post facto problem, a

defendant is to be punished according to the guidelines in effect

at the time of sentencing." United States v. Harotunian, 920 F.2d

1040, 1041-42 (1st Cir. 1990). In any event, for purposes of this

case, there is no dispositive distinction between the 1998 and 2000

versions.

We note that, effective November 2001, the Sentencing

Commission deleted the separate fraud guideline (§2F.1),

consolidating it with the theft guideline (§2B1.1), and resulting

in a completely rewritten §2B1.1. We use the former designations

of §2F1.1.

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§2F1.1(b)(1) - Amount of loss1

The Presentence Report ("PSR") calculated that the

total loss amount generated by LaScola's criminal conduct was

between $5 and $10 million dollars and thus proposed a 14 level

increase in the base offense level. See §2F1.1(b)(1)(O). In

the district court, LaScola argued that the appropriate amount

of loss was between $2.5 and $5 million dollars, reflecting a

13, rather than 14, level increase. See §2F.1.1(b)(1)(N).

LaScola argued that he did not pocket the $6 million obtained

from the CPA clients to "purchase" the RBG Notes from Local

99's Plan and that he did not intend the loss to the CPA

clients. Rather, he hoped that the RBG Notes would mature and

argued that, in fact, there was still some value to these

Notes. He analogized to fraudulent loan cases and suggested

that, just as the value of the assets pledged to secure a

fraudulent loan reduces the amount of loss in a fraudulent loan
2He relies on purported property appraisals of the real estate

developments supported by the RBG Notes, the worthiness of which is

unknown, and, more importantly, are not properly before this court

as they are not part of the district court record.

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case, so too the "value" of the RBG Notes should reduce the

amount of loss attributed to his conduct. The court rejected

that assessment, instead calculating the loss as the amount of

money that LaScola improperly transferred from the various

accounts -- well in excess of $5 million -- and concluding that

LaScola's purported expectation that the Notes would mature was

irrelevant.

"We review the district court's interpretation of the

loss provisions of the Guidelines de novo and review its

factual findings only for clear error." United States v.

Blastos, 258 F.3d 25, 30 (1st Cir. 2001). On appeal, LaScola

contends that, although he was convicted of fraud, the court

erroneously treated his conduct as a theft to determine the

amount of loss. There was no error. The commentary to the

fraud guideline itself provides for such cross-reference. See

U.S.S.G. §2F1.1, comment. (n.8). Further, LaScola continues to

assert that his case is analogous to a fraudulent loan case and

thus he should be credited with the "value" of the RBG Notes to

offset any loss to his victims. Amazingly, although LaScola

conceded in the district court that the loss was $2.5 and $5

million, he now contends on appeal that the net loss to the

victims was $0.2 "The Guidelines recognize loan fraud as a

specific exception to the usual methods of calculating loss set
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forth in §§2F1.1 and 2B1.1." United States v. Stein, 233 F.3d

6, 18 n.8 (1st Cir. 2000), cert. denied, 532 U.S. 943 (2001).

LaScola's attempt to mark his scheme as analogous to loan fraud

is a grievous misfit. There was no error in the district

court's rejection of the attempt.

§2F1.1(b)(6)(C) - Sophisticated means

In the district court, LaScola argued that there was

significant overlap between the "more than minimal planning"

adjustment, §2F1.1(b)(2)(A), and the "sophisticated means"

adjustment, §2F1.1(b)(6)(C), such that it amounted to double

counting. LaScola did not renew this contention in his initial

appellate brief and the government contends that he has

abandoned that argument. LaScola tardily attempts to resurrect

this double counting argument in his reply brief but, as we

have repeatedly stated, "a legal argument made for the first

time in an appellant's reply brief comes too late and need not

be addressed." United States v. Brennan, 994 F.2d 918, 922 n.7

(1st Cir. 1993).

On appeal, LaScola contends that the district court

determined that the "sophisticated means" adjustment was

warranted because he used a computer system to execute his

crimes and argues that this was error because operation of the

computer program took little skill or training. LaScola also

argues that the computer software was used simply to carry out

the fraud and not to conceal it and, in fact, its use insured

the detection of the fraud because it would reveal the accounts
3LaScola contends that the district court "erred" in stating

that he "took" the passwords. LaScola says that he did not take

the passwords; rather, he says, he instructed an employee with the

password to execute the transaction. This is a meaningless

quibble.

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affected, by how much, and to where the missing funds had been

sent.

LaScola's description of the basis of the court's

ruling is deliberately myopic. The district court found the

application of the "sophisticated means" adjustment was

warranted not because LaScola used a computer system but

because he not only stole the existing funds from CPA clients'

accounts but converted those accounts to margin accounts,

giving him the ability to borrow additional money in the

clients' names.

3 The emphasis and impetus for the finding of

"sophisticated means" was not, as LaScola portrays it, on the

use of a computer system itself but on how LaScola used that

system in executing the offense by accessing his clients'

accounts and converting them to margin accounts enabling him to

steal more than the existing funds. There was no error either

in the court's factual finding or in its application of the

sophisticated means adjustment. See United States v. Humber,

255 F.3d at 1308, 1311 (11th Cir. 2001) (reciting standard of

review).

§2F1.1(b)(8)(A) - Failure of a financial institution

In the district court, LaScola argued against the

application of this guideline on the ground that both CPI and

CPA were purely sales organizations that, although may have
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facilitated trades, never actually executed trades nor

custodied assets resulting from such trades. He argued for a

distinction between an "introducing broker" which has a limited

capacity to perform functions and a "clearing broker" which is

the custodian of securities and can clear and settle trades in

a client's accounts. According to LaScola, CPI simply managed

assets and CPA simply processed transactions, relying upon

Wexford (the subsidiary of Prudential Securities), Fleet Bank

and other financial institutions to execute trades or custody

assets and those financial institutions, argued LaScola,

remained safe, sound and solvent. The district court concluded

that both CPI and CPA met the guideline definition of financial

institution and became insolvent as a result of LaScola's

conduct. It rejected LaScola's distinction between

"introducing broker" and "clearing broker" as unavailing in

light of the clear language of the guideline definition. See

U.S.S.G. §2F1.1, comment. (n.19).

On appeal, LaScola renews his argument but provides

no persuasive authority. There was no error in the application

of this guideline adjustment. See United States v. Ferrarini,

219 F.3d 145, 159 (2d Cir. 2000) (reciting standard of review),

cert. denied, 532 U.S. 1037 (2001).

§3A1.1(b)(1) - Vulnerable victim

At sentencing, LaScola withdrew any objection to the

application of the vulnerable victim adjustment. LaScola was

personally questioned by the district court as to whether he
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understood that he was waiving his right to challenge that

adjustment and he replied in the affirmative and stated that he

had no questions about his waiver. Sentencing Tr. of 5/22/01

at p.5. Nonetheless, LaScola, on appeal, now argues that the

application of this guideline was error. This challenge is

waived. See United States v. Ciocca, 106 F.3d 1079, 1085 (1st

Cir. 1997) (refusing to review waived issue).

Departure

At sentencing, LaScola made an oral motion for

departure, arguing that the resulting guideline sentencing

range of 87 to 108 months was far in excess of the sentences

imposed in other fraud cases in the districts of Rhode Island

and Massachusetts. In support, he proffered information he

apparently had obtained simply from the face of the court

dockets, i.e., docket numbers, term of imprisonment imposed,

and amount of restitution ordered. He conceded that he was

unaware of whether adjustment factors, such as vulnerable

victim and/or sophisticated means, were applied in these cases.

The district court rejected LaScola's proffered material as

insufficient to find that his case lay outside the heartland of

cases and denied a downward departure.

On appeal, LaScola reiterates his downward departure

argument, albeit in the guise of a "heartland argument," but,

as we have repeatedly held, a district court's refusal to

depart downward is not reviewable unless based on a mistake of

law. See United States v. Bunnell, 280 F.3d 46, 50 (1st Cir.
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2002). There was none here. The district court recited the

proper standard for finding a departure but found LaScola's

proffer insufficient to support one. Moreover, we have held

"the fact that the national median for a broadly stated offense

type may be above or below a particular defendant's GSR cannot

be used to justify a sentencing departure." United States v.

Martin, 221 F.3d 52, 57 (1st Cir. 2000).

The judgment of the district court is affirmed.