
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-2235                                    UNITED STATES,                                      Appellee,                                          v.                                 ROBERT EMMETT JOYCE,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                                Stahl, Circuit Judge,                                       _____________                           and Dom nguez,* District Judge.                                           ______________                                _____________________               Kimberly  Homan,  by Appointment  of  the  Court, with  whom               _______________          Sheketoff & Homan, was on brief for appellant.          _________________               James B. Farmer, Assistant United States Attorney, with whom               _______________          Donald  K.  Stern,  United  States Attorney,  was  on  brief  for          _________________          appellee.                                 ____________________                                  November 27, 1995                                        ____________________          *  Of the District of Puerto Rico, sitting by designation.                                 ____________________                                         -2-                    DOMINGUEZ,  District  Judge.   Defendant  Robert Emmett                    DOMINGUEZ,  District  Judge.                                _______________          Joyce ("Joyce")  challenges the imposition  in his sentence  of a          three-level upward adjustment,  pursuant to U.S.S.G.    3B1.1(b).          Joyce seeks  to  have  the adjustment  reversed  and  the  matter          remanded for resentencing.                      We hold that the lower court's imposition of the three-          level upward adjustment, based on Joyce's role in the offense, is          warranted.  Consequently, we affirm.                                     I. BACKGROUND                                    I. BACKGROUND                                    _____________                    On  January  9, 1991,  Joyce  and  five co-defendants--          Michael C. Habicht,  Michael O. McNaught, James  F. Melvin, James          M. Murphy,  Jr., and Patrick  J. Nee--were arrested  in Abington,          Massachusetts for their alleged  involvement in a planned robbery          of  an armored  truck at  the Bank  of New  England Branch.   The          initial indictment was returned on February 7, 1991.1                     Following a twenty-five day trial before Judge Mazzone,          Joyce  and  the  five   other  co-defendants  were  convicted  of          conspiracy  to rob  bank funds, in  violation of 18  U.S.C.   371          (Count 10), attempted robbery  of bank funds, in violation  of 18                                        ____________________          1  A third superseding indictment  (on which the case was  tried)          was returned on  September 5, 1991.  In addition  to the Abington          offenses,  the third  superseding  indictment  charged Joyce  and          Murphy with offenses arising  out of the $880,000 robbery  on May          31,  1989,  of a  Mass. Transport,  Inc.  armored truck  making a          delivery  to  the Shawmut  Worcester  County  Bank in  Fitchburg,          Massachusetts.   Murphy was convicted  of conspiracy to  rob bank          funds, in violation of 18 U.S.C.   371 (Count 3), robbery of bank          funds,  in  violation  of 18  U.S.C.     2113(a)  (Count 4),  and          obstruction of  commerce by robbery,  in violation  of the  Hobbs          Act, 18 U.S.C.    1951 (Count 6).  Joyce was  found not guilty on          these counts.                                         -2-          U.S.C.   2113(a) (Count 11), attempted obstruction of commerce by          robbery,  in violation of the Hobbs Act,  18 U.S.C.   1951 (Count          13), knowingly using or carrying firearms during and  in relation          to  a crime  of violence,  in violation  of 18  U.S.C.    924 (c)          (Count  14),  and  being  felons in  possession  of  firearms, in          violation of  18 U.S.C.   922 (g) (Count 15).  On March 12, 1992,          Joyce  was  sentenced to  a total  term  of incarceration  of 270          months.2                    All   Defendants   appealed   their   convictions   and          sentences.  Subsequently, all  Defendants, except Murphy, filed a          motion seeking to dismiss the appeal of their conviction on Count          14 (18 U.S.C.    924(c)).  We granted that motion.   On April 22,          1994, we reversed  the convictions of all defendants and remanded          the  case for a new trial.   See United States v. Melvin, 27 F.3d                                       ___ _____________    ______          703 (1st  Cir.  1994).    On  June  22,  1994,  pursuant  to  the          Defendants'  request  for  clarification, we  issued  an  opinion          clarifying that  our earlier opinion, ordering  reversal, did not          encompass Count 14.3   See  United States v.Melvin,  27 F.3d  710                                 ___  _____________   ______          (1st Cir. 1994).                                        ____________________          2   Joyce was sentenced  to terms of 60  months on Count  10, 210          months on Counts 11 and 13, and 120 months on Count 15, all to be          served concurrently, based upon a Guideline Offense  Level of 33,          Criminal  History Category  III.   That  Guidelines sentence  was          followed  by a mandatory term  of incarceration of  60 months, on          Count 14.          3   Count  14  charged Joyce  with  knowingly using  or  carrying          firearms  during and  in  relation to  a  crime of  violence,  in          violation of 18 U.S.C.   924 (c).                                         -3-                    On remand, the case was reassigned to Judge Woodlock.            Joyce  and  all  defendants,  except Murphy,  entered  into  plea          agreements  with the Government.  In  Joyce's plea agreement, the          parties  stipulated that,  pursuant to  U.S.S.G.    2B3.1(a), the          Base  Offense Level was 20; that Joyce should receive a two-level          enhancement pursuant to   2B3.1(a)(1), because the property which          was the object  of the  robbery attempt belonged  to a  financial          institution;   and  that   Joyce  should   receive  a   two-level          enhancement  pursuant   to     3C1.1  because   Joyce  "willfully          testified falsely at the first trial of [the] case".                      The parties also agreed that the Adjusted Offense Level          should   be   reduced  by   three   levels   for  acceptance   of          responsibility  pursuant to U.S.S.G.    3E1.1(a) and (b)(2).  The          agreement  further  stated  that  the  Government's  position  at          sentencing  would  be  that  Joyce should  receive  a  five-level          enhancement  pursuant  to   2B3.1(b)(6)(F)  because  the intended          loss  from the Abington robbery attempt exceeded $1,500,000 and a          three-level enhancement for his role in the offense pursuant to            3B1.1(b).4    In  the  agreement,  Joyce  reserved  the  right to          contest  the  Government's  position   on  these  issues  at  the          sentencing hearings.                                        ____________________          4    Under  the  plea  agreement,  the  Government  contended  at          Sentencing  that Joyce's  Adjusted  Offense Level  should be  29,          Criminal History Category III,  with a guideline sentencing range          of  108-135  months,  in  addition   to  the  60  month  sentence          previously imposed by the trial court on Count  14.  Both parties          agreed  that the 60 month sentence previously imposed on Count 14          was to be served consecutively with the newly imposed sentence on          Counts 10, 11, 13, and 15.                                         -4-                    Consistent  with the  plea agreement,  Joyce entered  a          guilty  plea.   The  sentencing judge  held  two hearings  on the          contested  guidelines  issues  of  amount of  intended  loss  and          Joyce's role in the  offense.  The court found  that a five-level          upward adjustment was warranted under   2B3.1  (b)(6)(F) and that          a three-level upward adjustment was proper under   3B1.1(b).  The          resulting calculation  led to a total offense level of 29, with a          sentencing  range   of  108-135   months'  incarceration.     The          sentencing judge imposed a  sentence of 108 months on  Counts 11,          13, and 15,  to be served concurrently  with a 60  month sentence          imposed  on Count 10, followed  by the consecutive  60 month term          p  r  e  v  i  o  u  s  l  y  i  m  p  o  s  e  d   b  y  t  h  e          trial court on Count 14.                                  II. STANDARD OF REVIEW                                II. STANDARD OF REVIEW                                ______________________                    In  reviewing  a  district  court's  application  of  a          sentencing guideline, we utilize a bifurcated process.  First, we          review  de novo  the guideline's  legal meaning  and scope.   See                  __ ____                                               ___          United  States  v.  Fontana, 50  F.3d  86,  87  (1st Cir.  1995).          ______________      _______          Second,  we review  the  district court's  factfinding for  clear          error and give due deference  to the district court's application          of the  guidelines to  the facts.   See United States  v. Ovalle-                                              ___ _____________     _______          M rquez, 36 F.3d 212,  221 (1st Cir. 1994), cert. denied,  115 S.          _______                                     _____ ______          Ct. 1322 (1995).  The determination of the defendant's role in an          offense is fact-specific.   See  United States v.  Graciani,   61                                      ___  _____________     ________          F.3d 70, 75 (1st Cir. 1995).  We are therefore deferential to the          sentencing court's views and  review the determinations made only                                         -5-          for clear error.  See United States v. Rostoff, 53  F.3d 398, 413                            ___ _____________    _______          (1st Cir. 1995).   Any credibility assessment  made at sentencing          falls within the province of the district court, and it should be          respected on appeal unless  it is clearly erroneous.   See United                                                                 ___ ______          States  v. Webster, 54 F.3d  1, 5 (1st Cir.  1995).  If there are          ______     _______          two  plausible  views  of  the  record,  the  sentencing  court's          adoption of one  of the  views will not  constitute clear  error.          See United  States v. St. Cyr, 977 F.2d 698, 706 (1st Cir. 1992).          ___ ______________    _______          In making a determination  on a defendant's role in  the offense,          the sentencing court may  look beyond the count of  conviction to          the  whole of  the defendant's  pertinent conduct.     See United                                                                 ___ ______          States  v.   Savoie,  985  F.2d   612,  615   (1st  Cir.   1993).          ______       ______          Furthermore, the Government need only prove by a preponderance of          the  evidence  that  an  upward adjustment  was  warranted.   See                                                                        ___          United States v. Mu oz, 36 F.3d 1229, 1240 (1st Cir. 1994), cert.          _____________    _____                                      _____          denied, 115 S. Ct. 1164 (1995).   Additionally, the evidence of a          ______          defendant's role  in  the offense  may  be circumstantial.    See                                                                        ___          United  States v.  Tejada-Beltr n,  50 F.3d  105,  113 (1st  Cir.          ______________     ______________          1995);   United  States v.  Calder n, 935  F.2d 9,  11 (1st  Cir.                   ______________     ________          1991).                                    III. DISCUSSION                                   III. DISCUSSION                                   _______________                    Joyce claims that the three-level upward adjustment for          his role in  the offense was clearly erroneous.   He alleges that          "the  sentencing judge  in  this case  did  not find  that  Joyce          exercised   the  requisite  management   control  over   his  co-          participants.  Instead, he  (the sentencing judge) indicated that                                         -6-          such  a  finding was  unnecessary  and that  Joyce's  exercise of          management responsibility  'over the  metaphorical assets  of the          criminal  organization,'  Tr.  11/3/94  at 6,  would  suffice  to          justify  the imposition  of  a    3B1.1(b)  role in  the  offense          adjustment."  Joyce further  contends that the sentencing judge's          construction of    3B1.1 was  incorrect as a matter  of law, that          the sentencing  judge failed to make  findings evidencing Joyce's          control  over any of his co-participants, and further that such a          finding could not be made based upon the evidence before him.                        The Government asserts  that the record provides  ample          support  for the  sentencing judge's  findings that  Joyce was  a          "manager."      The  Government  argues  that  our   most  recent          pronouncements  make  it   clear  that  a  role  in  the  offense          sentencing  enhancement  under     3B1.1.  does  not  necessarily          require  a finding  that the  defendant "controlled" one  or more          other  participants  in the  criminal  venture.   The  Government          further  argues  that the  law  permits  the  enhancement when  a          defendant's organizational  claims and activities place  him in a          position of particular responsibility.                     We review this upward adjustment  for clear error.  See                                                                        ___          Ovalle-M rquez,  supra.   Under    3B1.1(b) a  three-level upward          ______________   _____          adjustment for  a defendant s  role in  the offense is  justified          when  the district court  makes both a  status determination that          the  defendant was a manager or supervisor of a criminal activity          (but not an "organizer or leader") and a scope determination that          the  defendant's   criminal  activity  involved   five  or   more                                         -7-          participants or was otherwise extensive.  See Fontana, 50 F.3d at                                                    ___ _______          87;  Ovalle-M rquez, 36 F.3d at 225.   We note that Joyce did not               ______________          question  at the sentencing hearings nor on this appeal that "the          criminal  activity involved  five  or more  participants, or  was          otherwise extensive."                        The Application Note 4  of   3B1.1 lists the  following          factors relevant to  the determination of  a defendant's role  in          the offense:                       the    exercise   of    decision   making                      authority,    the     nature    of    the                      participation  in  the commission  of the                      offense, the  recruitment of accomplices,                      the  claimed right to  a larger  share of                      the fruits  of the  crime, the  degree of                      participation  in planning  or organizing                      the offense, the nature  and scope of the                      illegal  activity,  and  the   degree  of                      control  and   authority  exercised  over                      others.          See  Tejada-Beltr n, 50  F.3d at  111;  United  States v.Olivier-          ___  ______________                     ______________   ________          D az,  13 F.3d 1, 4 (1st Cir. 1993).   While these factors do not          ____          have  "talismanic  significance,"   they  do   serve  as   useful          guideposts for  determining Joyce's role.   See United  States v.                                                      ___ ______________          Talladino, 38 F.3d 1255, 1260 (1st Cir. 1994).          _________                    The terms "manager" and "supervisor" are not defined in          the guidelines.  A court may find a defendant  to be a manager or          supervisor when he  "exercised some degree of control over others          involved in the commission  of the crime or he  [was] responsible          for organizing others for the purpose of carrying out the crime."          See  Ovalle-M rquez,  36 F.3d  at  225 (citing  United  States v.          ___  ______________                             ______________          Rodr guez  Alvarado,  985 F.2d  15,  20  (1st Cir.  1990)(quoting          ___________________                                         -8-          United States v. Fuller,  897 F.2d 1217, 1220 (1st  Cir. 1990))).          _____________    ______          Furthermore,  a  three-level  adjustment   under     3B1.1(b)  is          warranted  when  a  defendant  exercised  control  over,  or  was          responsible for  overseeing the  actions of,  at least one  other          criminally responsible participant.   See United States v. Smith,                                                ___ _____________    _____          46 F.3d  1223, 1239 (1st  Cir. 1995), cert.  denied, __  U.S. __,                                                _____  ______          1995  WL 437194 (October 2, 1995); Mu oz,  36 F.3d at 1240.  This                                             _____          control need not have been direct.  See Savoie, 985 F.2d at 616.                                              ___ ______                    By preponderance of the  evidence standard the totality          of the  record unveils  defendant's  control over  others in  the          commission  of  the crime  and  supports  the sentencing  court's          findings that  Joyce  was  a  "manager"5 within  the  meaning  of            3B1.1(b)6.  We explain.                    There  is no  doubt  that  Joyce  exercised  managerial          responsibilities "over  the metaphorical  assets of  the criminal          organization".  Joyce badgered David J. Ryan, a paid confidential          government informant, to obtain armored truck route sheets, guard          uniforms,  and ninja face masks.  Joyce further planned the crime          to need  at least three stolen vehicles, one of them a van with a                                        ____________________          5  In the instant case there is sufficient evidence on the record          to support  the  sentencing court's  specific findings  regarding          appellant's  involvement   in  the  crime  and   to  warrant  the          imposition of a  three-level upward enhancement.   This stands in          sharp  contrast with the situation in United States v. Catano, 65                                                _____________    ______          F.3d 219, 229-31  (1st Cir. 1995)  (case remanded for  additional          findings where sentencing court's summary findings that defendant          was a manager  was insufficiently specific to  allow for adequate          review).            6   See United States  v. Piedrahita Santiago,  931 F.2d 127, 132              ___ _____________     ___________________          (1st Cir. 1991).                                         -9-          sliding door (all to be "torched" at the end of  the robbery) and          a  group  of  at  least five  experienced,  reliable  robbers  in          addition   to   himself   using  automatic   weapons,   including          specifically among them,  "Uzi submachine guns".   Each of  these          planning  criteria, as  stressed  in appellee's  brief,  actually          occurred.7  Joyce also  scouted and discussed with Ryan  possible          locations  for the truck robberies  and explained to  Ryan how he          would  recruit  and arrange  for  the  participation of  others.8          Joyce  was the mastermind of the operational plan of the robbery,          and repeatedly executed careful planning of the same.9                    There is further evidence on the record authorizing the          sentencing judge to conclude that Joyce "exercised some degree of          control over others involved  in the commission of the  crime, or          that  he was responsible for organizing others for the purpose of          the crime"  See Ovalle-M rquez, 35 F.3d 225 (citing United States                      ___ ______________               ______ _____________          v. Rodr guez Alvarado,  985 F.2d  15, 20  (1st Cir.  1990)(citing             __________________                                      ______          United States v. Fuller, 897 F.2d 1217, 1220 (1st Cir. 1990).           _____________    ______                    On April  4, 1990,  eight months  prior to  the armored          truck robbery, Joyce  bragged to Ryan about the fact  that he had          available "two  clean guys",  "stand up  guys" from  Ireland with          whom he had  previously worked  in armored truck  robberies.   On          January 9, 1991, the date of the frustrated heist, Irish-born co-          defendants, Patrick Nee and  McNaught, were arrested.  It  is not                                        ____________________          7  See appellee's brief at p. 32.          8  See appellee's brief at p. 35, n.45.          9  See appellee's brief at p. 36, n.46.                                         -10-          clearly  erroneous   to  conclude10,   based  on   Joyce's  prior          statements of knowing two Irish  co-conspirators, that he in fact          recruited  both Nee  and  McNaught.   The  recruitment of  a  co-          conspirator constitutes a "managerial" function under    3B1.1(b)          of the  Guidelines.  See United States v. Fontana, 50 F.3d 86, 87                               ___ _____________    _______          (1st Cir.  1995); United States  v. Rodr guez Alvarado,  985 F.2d                            _____________     __________________          15, 20 (1st Cir. 1993).11                    Further evidence attesting Joyce's managerial  role can          be found when  Joyce, on the  eve of the  armored truck  robbery,          explained the  plan to McNaught in detail,  including his alleged          role  in the  robbery.12   Further  attesting  to his  managerial          status,  Joyce withheld  from  Ryan the  identities of  his other          conspirators   and  withheld  from  the  other  conspirators  the          existence of Ryan.                    This is a case  wherein "the whole is greater  than the          sum  of  its individual  parts".13   Since  we must  examine "the                                        ____________________          10   Evidence relating  to role  in the  offense may  be inferred          and/or circumstantial.  See  Tejada-Beltr n at 113; United States                                  ___  ______________         _____________          v. Savoie  985 F.2d at 616; United States v. Calder n 935 F.2d at             ______                   _____________    ________          11.          11  McNaught provided evidence to the contrary on his recruitment          and that of  Nee, which the sentencing  court was free to  reject          because Mc Naught's  testimony was found perjurious  by the trial          court.  Further, no clear error exists when the court adopts  one          of  two plausible views.  See United  States v. St. Cyr, 977 F.2d                                    ___ ______________    _______          at 706.          12  See appellee's brief p. 37.          13  See  El D a Inc. v.  Hern ndez Col n, 963 F.2d  488, 498 (1st              ___  ___________     _______________          Cir. 1992)(Selya, J.).                                         -11-          whole of  defendants relevant  conduct",14 taking all  facts into          consideration  the determination  of  the  sentencing court  that          Joyce was a "manager" was not clearly erroneous.                                     IV. CONCLUSION                                    IV. CONCLUSION                                    ______________                    For the  above-stated reasons, we  affirm the  district          court's sentence.                     Affirmed.                       ________                                        ____________________          14  See Savoie, 985 F.2d at 616.              ___ ______                                         -12-
