FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO Hon. Aida M. Delgado-Colón, U.S. District
C. Laws, on brief for appellant.
M. Meconiates, Assistant United States Attorney, Rosa Emilia
Rodríguez-Vélez, United States Attorney, and
Thomas F. Klumper, Assistant United States Attorney, Acting
Chief, Appellate Division, on brief for appellee.
Torruella, Selya, and Lynch, Circuit Judges.
TORRUELLA, CIRCUIT JUDGE.
Arquímedes A. Gierbolini-Rivera
("Gierbolini") pled guilty to one count of theft in
connection with health care, in violation of 18 U.S.C. §
669(a), and to one count of wire fraud, in violation of 18
U.S.C. § 1343. Gierbolini now challenges the procedural
and substantive reasonableness of his upwardly variant
sentence. After careful review, we affirm.
Gierbolini pled guilty, we draw the facts from the plea
colloquy, the unchallenged portions of the Presentence
Investigation Report ("PSR"), and the sentencing
hearing transcript. See United States v.
Fernández-Santos, 856 F.3d 10, 14 n.1 (1st Cir.
January 2000, Gierbolini was hired as an accountant by Modern
Radiology, PSC.  Gierbolini's responsibilities
consisted of preparing financial reports for external audits
and tax purposes, as well as making payments for all of his
employer's corporate expenses, including general payroll.
To perform these duties, Gierbolini was entrusted with
managing Modern Radiology's operating account, which he
would use to make approved payments. In or around 2005,
Gierbolini devised and implemented a scheme to defraud Modern
Radiology through regularly scheduled transfers of thousands
of dollars to his personal accounts. In the course of his
regular employment duties, Gierbolini would use Microsoft
Excel to prepare a spreadsheet detailing the amount to be
paid on each pay period to each employee, via a direct
deposit wire transfer from Modern Radiology's operating
account to each employee's personal account. The
spreadsheet's rows and columns identified, respectively,
the employees' names and the amount each employee was to
be paid for a given period. The last column of the
spreadsheet showed the net total amount to be paid to each
employee. At the bottom of that column, Gierbolini created a
cell that added up all of the net total amounts to be paid to
each employee -- resulting in the total amount to be
withdrawn from Modern Radiology's operating account for a
given pay period. But, in that same last column, Gierbolini
would also enter an additional, unauthorized, sum of money
into an otherwise-empty cell. He would then conceal the
contents of this extra cell by changing the font color to
white so that it would be invisible against the
spreadsheet's white background. This unauthorized amount
was still included, however, in the net total to be withdrawn
from Modern Radiology's account. After paying each
employee their amount due for that pay period, Gierbolini
would then wire himself the unauthorized amount included in
the "empty" cell. By only ever presenting Modern
Radiology management with black and white printouts of his
spreadsheets, on which the unauthorized amounts were
invisible, and by always taking out the same amount,
Gierbolini was able to defraud Modern Radiology for years. He
carried out this scheme in every pay period from January 2005
to February 2010. Altogether, Gierbolini completed 217
unauthorized transfers for a total of $984, 596.95.
2013, Gierbolini was charged with fifty-three counts of theft
in connection with health care, in violation of 18 U.S.C.
§ 669(a), and twenty-eight counts of wire fraud, in
violation of 18 U.S.C. § 1343. Gierbolini pled guilty to
one count of each charge,  pursuant to a plea
plea agreement, the parties calculated a total offense level
of twenty. To arrive at that level, they started with a base
offense level of seven, pursuant to United States Sentencing
Guidelines ("U.S.S.G.") § 2B1.1. They then
found applicable a two-level enhancement for Gierbolini's
abuse of a position of trust in a manner that significantly
facilitated the commission or concealment of the offense,
see id. § 3B1.3, a fourteen-level enhancement
because the offense involved losses greater than $400, 000
but not over $1, 000, 000, see id. §
2B1.1(b)(1)(H), and a three-level reduction for
Gierbolini's timely acceptance of responsibility, see
id. § 3E1.1. This, in conjunction with
Gierbolini's Criminal History Category of I, yielded a
Guidelines sentencing range ("GSR") of thirty-three
to forty-one months' imprisonment. Gierbolini reserved
the right to argue for a sentence at the lower end of the
proposed GSR, while the government could argue for a sentence
at the high end of the GSR.
tracked the plea agreement's calculation of the GSR. The
PSR also stated that, in March 2015, the U.S. Probation
Officer had interviewed the president of Modern Radiology,
who reported that Gierbolini's conduct caused him
"substantial financial hardship" and, "as a
result of defendant's fraudulent acts coupled with
[Puerto Rico's] current fiscal situation," Modern
Radiology was "facing a precarious financial
situation." Gierbolini did not object to these
statements in the PSR. Shortly thereafter, Modern Radiology
filed for Chapter 11 bankruptcy.
sentencing hearing, the court stated that it had reviewed the
plea agreement, the stipulated facts contained in that
agreement, the PSR, Modern Radiology's submissions in
support of a forfeiture order, and letters submitted by
Gierbolini's friends, relatives, and members of the
community. Gierbolini did not object to the consideration of
any of these materials. Defense counsel attested that he had
reviewed the PSR with Gierbolini "several times,"
and that there was nothing further to add or clarify.
Gierbolini confirmed that he had reviewed the PSR with his
attorney and that "the information contained in the
report [was] correct."
representative of Modern Radiology attended the sentencing
hearing, accompanied by counsel. Without objection from any
party, Modern Radiology's counsel stated for the record
that Modern Radiology had "no opinion as to the sentence
to be imposed." He clarified that Modern Radiology was
present because of "the forfeiture issue" only, and
limited his statements to a request for discovery to locate
any additional assets ...