

                      [NOT FOR PUBLICATION]

                  United States Court of Appeals
                      For the First Circuit

                                           

No. 96-1239

                          UNITED STATES,

                            Appellee,

                                v.

                        JOHN P. GAGLIARDI,

                      Defendant - Appellant.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Reginald C. Lindsay, U.S. District Judge]                                                                 

                                           

                              Before

                     Torruella, Chief Judge,                                                     

                  Bownes, Senior Circuit Judge,                                                        

                    and Lynch, Circuit Judge.                                                      

                                           

     Michael C.  Bourbeau, by appointment of  the court, Victoria                                                                           
M. Bonilla and Bourbeau &amp; Bourbeau, Bonilla, Tocchio &amp; Floyd, LLP                                                                           
on brief for appellant.
     Kevin  P. McGrath,  Assistant  United  States Attorney,  and                                
Donald K. Stern, United States Attorney, on brief for appellee.                         

                                           

                          June 25, 1997
                                           

          Per Curiam.   Upon due consideration  of the briefs  of                    Per Curiam.                              

counsel  and  the record  in this  case,  we affirm  the district                                                       affirm                                                             

court's sentencing determination.

          Defendant-Appellant  John Gagliardi  ("Gagliardi") pled

guilty  on April 26, 1995  to six counts  involving conspiracy to

possess with  intent to distribute  marijuana, under 21  U.S.C.  

846,  possession with  intent to  distribute marijuana,  under 21

U.S.C.   841(a), and liability  for criminal forfeiture, under 21

U.S.C.    853.    At   his  sentencing  hearing,  the  government

requested that Gagliardi's base offense level be reduced from 32,

which  the  Presentencing  Report  ("PSR")  recommended,  to  30,

pursuant to  the plea agreement.   The government  also requested

that  a three-level enhancement be  added for Gagliardi's role in

the  offense.  That  upward adjustment was  made, and ultimately,

his total offense level  was determined to be 30,1  corresponding

to a range  under the Sentencing Guidelines of 97  to 121 months.

The government recommended, and  the sentencing court approved, a

sentence  of 97  months imprisonment.   The  court also  denied a

motion for downward departure.

          Gagliardi alleges two  errors by the  sentencing court:

first,  that  he  was   improperly  given  a  three-level  upward

adjustment  pursuant to U.S.S.G.    3B1.1(b)2 for being a manager
                                                  

1   Gagliardi  received a three-level  decrease in  offense level
pursuant  to  U.S.S.G.    3E1.1(b)(2)  for  timely acceptance  of
responsibility.

2    Sentencing  Guideline     3B1.1(b)  mandates  a  three-level
increase if  "the defendant was a manager or supervisor . . . and
the  criminal activity involved five  or more participants or was

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or  supervisor  in a  criminal  activity involving  five  or more

participants;  and second,  that the  sentencing court  failed to

consider facts  relevant to his  motion for a  downward departure

under  U.S.S.G.    5K2.0 based  on unusual  family circumstances.

Both allegations are without merit.

          Gagliardi  appears  to  concede  that  four  other  men

assisted in the storage  and re-packaging of the  marijuana which

he had acquired,  thereby satisfying the requirement of  "five or

more participants"  -- when one  counts Gagliardi himself  as the

fifth participant -- under U.S.S.G.   3B1.1.  Moreover, there was

ample factual support in the PSR for the district court's finding

that Gagliardi was a "manager or supervisor."  

          Contrary  to  Gagliardi's insinuations  on  appeal, the

fact  that there were  other persons  who had  greater managerial

responsibilities does  not render  the section  3B1.1 enhancement

inapplicable to him.   See  United States v.  Goldberg, 105  F.3d                                                                

770, 777 (1st Cir. 1997)  ("[A] defendant need not be at  the top

of a criminal scheme to  be a manager or supervisor.").   Indeed,

the   well-established  standard  for  upward  adjustments  under

section  3B1.1 requires  only  that there  be  "'evidence that  a

defendant, in  committing the  crime, exercised control  over, or

was otherwise  responsible for  overseeing the activities  of, at

least one other person.'"  United States v. Voccola, 99 F.3d  37,                                                             

44 (1st Cir.  1996) (quoting  United States v.  Savoie, 985  F.2d                                                                

612, 616 (1st Cir. 1993)). The PSR confirms that this requirement
                                                  

otherwise extensive."  

                               -3-

was met.   It states, for example, that  Gagliardi directed a co-

conspirator to bring large amounts of money he needed to purchase

marijuana  in Arizona,  and that  Gagliardi directed  another co-

conspirator  to   find  a  suitable  location   for  storing  and

repackaging the  marijuana that  he had purchased.   Furthermore,

evidence  related to  role in  the offense determinations  may be

probative  "'by fair  inference.'"   See Voccola,  99 F.3d  at 45                                                          

(quoting United States  v. Tejada-Beltr n, 50 F.3d 105,  113 (1st                                                   

Cir.  1995)).  In this case, one can reasonably infer Gagliardi's

supervisory control  over those  who were engaged  in repackaging

the marijuana at  the storage location (an  airplane hangar) from

Gagliardi's responsibility for arranging the storage location, as

well as from the fact that, after the four men were discovered in

the hangar, they drove away and called Gagliardi.   In sum, there

is no basis for finding any error in the district court's role in

the offense determination, clear or otherwise.

          Finally,  there  is  no   support  in  the  record  for

Gagliardi's   contention  that  the   district  court  failed  to

consider, or  prevented Gagliardi from  producing, facts relevant

to his motion  for a downward  departure on the basis  of unusual

family circumstances.  On  review of the record, it  appears that

the  facts presented  in  Gagliardi's  eleventh hour  memorandum,

which Gagliardi claims the district court improperly ignored, had

already been  substantially brought to the court's attention in a

previous sentencing memorandum,  in the PSR,  as well as  through

defense  counsel's  statements at  the  sentencing  hearing.   We

                               -4-

further note that the district court did not abuse its discretion

in  determining  that  the  facts  regarding  Gagliardi's  family

circumstances  --   the  most   noteworthy  of  which   are  that

Gagliardi's  youngest daughter has  an attention deficit disorder

and that her mother is being treated for breast cancer -- are not

of  a kind so extraordinary  as to warrant  a downward departure.

See   U.S.S.G.    5H1.6 ("Family  ties .  . .  are not ordinarily             

relevant."); United  States v.  Rivera, 994 F.2d  942, (1st  Cir.                                                

1993) (family  circumstances do  not ordinarily  warrant downward

departure); compare United  States v. Sclamo,  997 F.2d 970,  972                                                      

(1st Cir. 1993) (affirming downward departure for defendant where

psychologist  concluded that  defendant's  stepson, who  had been

abused  by his  biological father,  had unique  relationship with

defendant and  needed defendant's presence to continue recovery);

United  States v.  Johnson,  964 F.2d  124,  129 (2d  Cir.  1992)                                    

(affirming downward departure where  defendant was sole caregiver

to four very young children).

          Affirmed.                    Affirmed                            

                               -5-
