United States v. Perretta
2015 U.S. App. LEXIS 17685
1st Cir.2015Background
- Mario Perretta pled guilty to ten counts of wire fraud and tax evasion for convincing investors to give >$4M to a fictitious, insured construction business and spending funds personally; 22 victims identified.
- PSI set total offense level 24, criminal history IV, resulting guideline sentencing range (GSR) 77–96 months; restitution ~ $4.2M.
- District court originally sentenced Perretta to 96 months on fraud counts (60 months concurrent on tax counts); sentence later vacated under a §2255 agreement because prior counsel had failed to advise on appellate rights, prompting de novo resentencing.
- At resentencing, the court reimposed 96 months and deferred restitution; Perretta appealed the sentence (restitution later fixed at $4,009,398.72 and not appealed).
- Perretta contended the district court improperly focused mainly on victim harm (procedural error) and that the 96‑month within‑GSR sentence was substantively unreasonable; the government waived reliance on a plea‑waiver of appeal.
Issues
| Issue | Plaintiff's Argument (Perretta) | Defendant's Argument (Government / District Court) | Held |
|---|---|---|---|
| Whether the court procedurally erred by fixating on victim harm and failing to consider all §3553(a) factors | Court relied single‑mindedly on victim harm to justify sentence | Court considered all §3553(a) factors (stated so on record); references to victims were part of broader reasoning | No plain error; sentencing court adequately considered §3553(a) factors |
| Applicable standard of review for unpreserved procedural challenge | (Implied) review should assess substantive reasonableness | Because claim unpreserved, review is for plain error; for substantive reasonableness assume abuse of discretion | Procedural claim reviewed for plain error and fails on the merits |
| Whether the 96‑month within‑GSR sentence is substantively unreasonable | Sentence excessive; district court unreasonable in weighing mitigating factors | Sentence justified by the massive, prolonged, greedy fraud harming modest investors; within GSR and defensible | Sentence substantively reasonable and within "universe" of reasonable outcomes; affirmed |
| Whether sentencing judge’s views on punishment violated due process / required jury factfinding | Judicial determination of need for punishment violated right to jury proof beyond reasonable doubt | Argument not raised below, undeveloped on appeal, and legally meritless | Forfeited and without merit; no reversible due process error |
Key Cases Cited
- United States v. Flores‑Machicote, 706 F.3d 16 (1st Cir. 2013) (describing appellate deference in sentencing review)
- United States v. Clogston, 662 F.3d 588 (1st Cir. 2011) (discussing need for powerful mitigation to upset within‑GSR sentence)
- Gall v. United States, 552 U.S. 38 (2007) (framework for procedural and substantive reasonableness review)
- United States v. Martin, 520 F.3d 87 (1st Cir. 2008) (abuse‑of‑discretion standard and totality‑of‑circumstances test)
- United States v. Duarte, 246 F.3d 56 (1st Cir. 2001) (plain‑error review for unpreserved sentencing claims)
- United States v. Vargas‑García, 794 F.3d 162 (1st Cir. 2015) (deference to sentencing court’s balancing)
- United States v. Ruiz‑Huertas, 792 F.3d 223 (1st Cir. 2015) (assumption of abuse‑of‑discretion in certain appeals)
- United States v. Rivera‑González, 776 F.3d 45 (1st Cir. 2015) (plausibility of sentencing rationale test)
- United States v. Dávila‑González, 595 F.3d 42 (1st Cir. 2010) (weight given to district court’s statements that it considered §3553(a) factors)
- United States v. Vargas‑Dávila, 649 F.3d 129 (1st Cir. 2011) (no rote incantation required when explaining sentence)
- United States v. Dixon, 449 F.3d 194 (1st Cir. 2006) (sentencing court need not address each §3553(a) factor one‑by‑one)
- United States v. Maldonado, 242 F.3d 1 (1st Cir. 2001) (procedures for resentencing after successful §2255 claim)