
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1079                                    UNITED STATES,                                      Appellee,                                          v.                                    BARRY TWOMEY,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Mark L. Wolf, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            Diana L. Maldonado on brief for appellant.            __________________            Donald   K.  Stern,   United  States   Attorney,  and   Jeanne  M.            __________________                                      __________        Kempthorne, Assistant United States Attorney, on brief for appellee.        __________                                 ____________________                                   October 14, 1997                                 ____________________                 Per  Curiam.    Defendant-appellant  Barry  Twomey  pled                 ___________            guilty  to two  counts of  bank robbery,  in violation  of 18            U.S.C.   2113(a).    In sentencing  him,  the  district court            awarded a two-level  reduction in his base  offense level for            his  acceptance  of  responsibility,  pursuant  to   U.S.S.G.             3E1.1(a).  The sole issue  on appeal is whether the district            court committed  clear error  in denying  an additional  one-            level reduction under  3E1.1(b).                  "A  defendant bears the burden of proving entitlement to            decreases   in   the   offense  level,   including   downward            adjustments  for  acceptance  of  responsibility.    Once the            sentencing court has ruled against  him on such an issue, the            defendant faces an uphill battle.  . . .The clearly erroneous            standard  . .  .  guides appellate  review of  district court            determinations  under section  3E1.1(b)."   United States  v.                                                        _____________            Morillo, 8 F.3d 864, 871 (1st Cir. 1993).            _______                 In denying  the  additional  one-level  reduction  under             3E1.1(b), the  court ruled  that the  timing of  appellant's            expression  of his intent  to plead guilty  had not permitted            the government to  avoid preparing for trial.   Specifically,            the  district court found  that when appellant  indicated his            intention  to  plead  guilty,  ten  days  before  the  second            scheduled  trial  date,  the  government   had  already  made            substantial submissions and prepared its witnesses.   Neither            that finding nor the court's determination on that basis that                                         -2-            appellant  did  not  qualify  for  the  additional  one-level            reduction was clearly erroneous.                 Appellant's sentence is summarily affirmed.  See Loc. R.                                                   ________   ___            27.1.                                         -3-
