
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 97-1433                                    UNITED STATES,                                      Appellee,                                          v.                                   ROBERT A. SMITH,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                       [Hon. Mary M. Lisi, U.S. District Judge]                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            Van L. Hayhow on brief for appellant.            _____________            Sheldon  Whitehouse, United  States Attorney,  Margaret  E. Curran            ___________________                            ___________________        and Richard W.  Rose, Assistant United States Attorneys,  on brief for            ________________        appellee.                                 ____________________                                   October 10, 1997                                 ____________________                 Per  Curiam.  We  have carefully reviewed  the briefs of                 ___________            the  parties  and  the  record  on  appeal,  and  we  affirm.            Appellant  Robert Smith ("Smith")  challenges his sentence on            bank fraud  charges.  He  claims the district court  erred in            concluding he was an "organizer  or leader" of the bank fraud            scheme, and so it erred in enhancing his sentence pursuant to            U.S.S.G.   3B1.1(a).  We  give the district court's  findings            "due deference" and reverse only  for clear error.  18 U.S.C.              3742(e); United States v. Tejada-Beltran,  50 F.3d 105, 110                       _______________________________            (1st Cir. 1995).                 No  clear  error  was  committed.    The  uncontroverted            evidence at  sentencing showed  Smith decided  where to  make            deposits and withdrawals  and when and how  much to withdraw.            He accompanied  many of  the recruits to  the banks  and took            physical possession  of the money.   He gave each  recruit 25            per  cent of  the proceeds  and kept  the larger  portion for            himself and  his three co-conspirators.  He recruited many of            the  29  individuals whose  bank accounts  were used  for the            scheme.   Thus,  Smith  exercised decision-making  authority,            participated  heavily   in  the  ongoing   scheme,  recruited            accomplices, claimed  a larger  share  of the  fruits of  the            crime  (for  himself  and  his  three  co-conspirators),  and            exercised  control  and  authority over  the  recruits.   See                                                                      ___            U.S.S.G.   3B1.1 n.4.                                         -2-                 Smith's  counsel suggests  Smith took  instructions from            other participants in  the scheme.  But there  is no evidence            in the  record to  support  counsel's version  of the  facts.            Even if this  evidence were present, the court  still did not            commit  clear error in concluding Smith  was an "organizer or            leader;"  ample evidence existed to satisfy the other factors            listed in  the sentencing  guideline commentary.   The  court            need  not  find  every  listed  factor in  order  to  find  a            defendant  was  a "leader  or organizer."   United  States v.                                                        _________________            Preakos, 907 F.2d 7, 9 (1st Cir. 1990).            _______                 Affirmed.  Loc. R. 27.1.                 _________                                         -3-
