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       [NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT]
                 United States Court of Appeals
                     For the First Circuit





No. 98-1291

                          UNITED STATES,

                            Appellee,

                                v.

                    STEPHEN FRANKLIN BURRELL,

                      Defendant, Appellant.



           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS


          [Hon. Michael A. Ponsor, U.S. District Judge]



                              Before

                     Selya, Stahl and Lynch,
                        Circuit Judges.
                                
                                
                                
                                
     Stephen Franklin Burrell on brief pro se.
     Donald K. Stern, United States Attorney, and Ariane D. Vuono,
Assistant U.S. Attorney, on brief for appellee.





July 29, 1999



                                
                                


            Per Curiam.  In this appeal, appellant Stephen
  Franklin Burrell, acting pro se after having been informed of
  and electing to waive his right to appellate counsel, claims
  that the court erroneously sentenced him after he pled guilty
  to wire and mail fraud and the use of fictitious names and
  addresses in violation of 18 U.S.C. �� 1341-43.  Finding no
  merit in his claims, we affirm for the following reasons.
            1.  We need not consider the claim that the
  sentencing court should have applied U.S.S.G. � 5G1.3(c) at
  sentencing.  Appellant asserted the same claim in his pro se
  objections to the presentence report.  At sentencing, he
  essentially agreed to abandon his pro se claims and to pursue
  defense counsel's objections instead.  Hence, he has waived his
  claim.  See United States v. Newman, 148 F.3d 871, 878-79 (7th
  Cir. 1998) (declining to review, as waived, a claim which the
  sentencing court had not considered at sentencing because
  defendant had confirmed that there were no remaining contested
  issues) (citing United States v. Olano, 507 U.S. 725, 733
  (1993)); United States v. Gilcrist, 106 F.3d 297, 302 (9th Cir.
  1997) (declining to consider an argument made in the
  defendant's pro se sentencing memorandum where the defendant
  had agreed to proceeding in a different fashion at sentencing).
            2.  The case law does not support the appellant's
  challenges to the court's determination of offense level, which
  reflected an intended loss amount of $725,826.  First, U.S.S.G.
  � 2X1.1(b)(1) did not apply, as the district court correctly
  concluded.  See United States v. Carrington, 96 F.3d 1, 6 (1st
  Cir. 1996) (rejecting that provision's application to a
  defendant who pled guilty to wire fraud), cert. denied, 520
  U.S. 1150 (1997); accord United States v. Blitz, 151 F.3d 1002,
  1011 (9th Cir.) (wire and mail fraud), cert. denied, 119 S. Ct.
  567 (1998).
            Second, the court did not clearly err, let alone
  plainly err, in setting the intended loss amount at $725,826. 
  Appellant mailed counterfeit checks totaling $725,826 to his
  intended victims, and he has not disputed that he intended to
  inflict the maximum possible loss on his victims.  In addition,
  two of his victims sent him gold coins without waiting for the
  checks to clear, showing that his scheme had some prospect of
  success.  See United States v. Rizzo, 121 F.3d 794, 802-03 (1st
  Cir. 1997) (affirming a loss figure based on the total amount
  of counterfeit checks which the defendant had attempted to
  negotiate where the defendant had admitted intending to inflict
  a loss in that amount and he had successfully cashed one of the
  five checks); United States v. Egemonye, 62 F.3d 425, 429 (1st
  Cir. 1995) ("Where there is good evidence of actual intent and
  some prospect of success, we do not think that a court needs to
  engage in more refined forecasts of just how successful the
  scheme was likely to be.") (citation omitted).  
            Finally, the Sentencing Commission had authority to
  promulgate the relevant conduct guideline, U.S.S.G. � 1B1.3,
  see United States v. Wong, 2 F.3d 927, 929-30 (9th Cir. 1993)
  (majority opinion), and the court did not plainly err under the
  Constitution in basing the loss amount on appellant's
  unindicted and unconvicted relevant conduct.  Appellant
  admitted his relevant conduct in a letter he wrote to the court
  after his arrest, and his sentence was within the applicable
  statutory maximums.  See, e.g., United States v. Hillsman, 141
  F.3d 777, 780-81 (7th Cir. 1998) (concluding that the
  consideration of relevant conduct did not violate the Fifth and
  Sixth Amendments where the conduct was proven by a
  preponderance of the reliable evidence); United States v.
  Sanders, 982 F.2d 4, 10 (1st Cir. 1992) (per curiam)
  (rejecting, where the sentence imposed was within the statutory
  maximum, a claim that the use of uncharged relevant conduct in
  departing upward violated the right to a jury trial or to
  "other procedural protections which would apply had defendant
  been indicted and tried").
            3.  The court did not clearly err in enhancing
  appellant's offense level for obstruction of justice.  First,
  the falsehoods which appellant told the probation officer about
  his military service and the related fabricated documents he
  provided to probation were unquestionably material.  See
  United States v. Agoro, 996 F.2d 1288, 1292 (1st Cir. 1993)
  (indicating that the materiality requirement encompasses false
  statements designed to affect the court's exercise of its
  discretion in choosing the appropriate sentence within the
  guideline range); United States v. Thomas, 11 F.3d 1392, 1401
  (7th Cir. 1993) (holding that facts relating to discharge from
  military service are material at sentencing); United States v.
  Neil, 903 F.2d 564, 566 (8th Cir. 1990) (noting that a
  sentencing court may weigh the defendant's military record in
  deciding the sentence to be imposed within the applicable
  guideline range) (citation omitted).  
            Second, we conclude that the court supportably found
  that appellant's falsehoods were willfully made, although,
  given the appellant's failure to directly raise the issue at
  sentencing, the court did not make formal findings on that
  point.  See United States v. Tracy, 36 F.3d 199, 203 (1st Cir.
  1994) (indicating that appellate review is possible where the
  appeals court can ascertain the district court's "ultimate
  finding" and can find reasonable supporting evidence for it in
  the record).  There was evidence tending to suggest that
  appellant knew that an exemplary military record might
  influence the court's sentencing decision.  He had extensive
  experience with the criminal justice system, and he had
  submitted a "defendant's presentence report" to the probation
  officer, using that report to convey his falsehoods and
  fabricated documents.  Moreover, in ruling on other sentencing
  issues, the district court had rejected defense arguments
  contending that the appellant's lies were attributable to his
  personality disorder and his desire to shield his wife from the
  truth, and its action finds support in the record.  A
  psychological evaluation suggested that appellant's actions
  were attributable to his personality disorder rather than to
  his concern for his wife, but did not conclude that his
  personality disorder rendered him unable to tell the truth.  At
  sentencing, appellant maintained that he had lived lawfully for
  nearly three years while on parole, which, he said, showed that
  he was not "some criminal that can't resist perpetrating a
  crime."  Under the circumstances, we cannot say that the court
  clearly erred in concluding that the appellant had willfully
  obstructed justice.  See United States v. Greer, 158 F.3d 228,
  239 (5th Cir. 1998) (affirming an obstruction enhancement where
  an expert had testified that the defendant could control his
  behavior despite his antisocial and borderline personality
  disorders).
            4.  The court did not clearly err in denying a
  reduction in offense level for acceptance of responsibility. 
  Appellant, who relies on events showing his acceptance of
  responsibility prior to the obstructive conduct evidencing a
  lack of genuine remorse, failed to show that his was an
  exceptional case warranting the reduction.  See United States
  v. Thomas, 97 F.3d 1499, 1501 (D.C. Cir. 1996) (noting that
  admitting to the acts comprising a crime is not the same as
  accepting responsibility for the crime under the guidelines);
  see also United States v. Hopper, 27 F.3d 378, 383 (9th Cir.
  1994) ("Cases in which obstruction is not inconsistent with an
  acceptance of responsibility arise when a defendant, although
  initially attempting to conceal the crime, eventually accepts
  responsibility for the crime and abandons all attempts to
  obstruct justice.").
            5.  There is no record support for the claim that the
  appellant rendered substantial assistance to the government. 
  In addition, given the absence of critical fact allegations,
  this court has no basis for reviewing the prosecution's failure
  to file a substantial assistance motion under U.S.S.G. � 5K1.1. 
  See Wade v. United States, 504 U.S. 181, 185-86 (1993) (holding
  that the government's failure to file a substantial assistance
  motion might be subject to review if it were based on
  unconstitutional motives or were not rationally related to any
  legitimate government end).
            6.  The district court had no obligation to rule on
  appellant's various pro se objections.  At sentencing, the
  appellant waived them by acquiescing when the court stated that
  it did not intend to address any of his pro se objections. 
  Moreover, given appellant's failure to waive his right to
  counsel or to assert his right to self-representation, the
  court permissibly declined to address his pro se objections. 
  See United States v. Campbell, 61 F.3d 976, 981 (1st Cir. 1995)
  (stating that there is no constitutional right to hybrid
  representation and ruling that the court had appropriately
  exercised its discretion to deny such representation when it
  declined to let the defendant cross-examine an expert witness),
  cert. denied, 517 U.S. 1161 (1996).
            Affirmed.
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