
USCA1 Opinion

	




          April 4, 1996                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-2040                                    UNITED STATES,                                      Appellee,                                          v.                                 JOHN W. SHARP, III,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                   [Hon. Steven J. McAuliffe, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Stahl and Lynch, Circuit Judges.                                            ______________                                 ____________________            Philip  R.  Desfosses, Solomon  & Desfosses,  P.A. and  Richard N.            _____________________  ___________________________      __________        Foley on brief for appellant.        _____            Deval L.  Patrick, Assistant  Attorney General,  Dennis J.  Dimsey            _________________                                _________________        and Lisa J. Stark, Attorneys, U.S. Department of Justice, on brief for            _____________        appellee.                                 ____________________                                 ____________________                      Per  Curiam.   Defendant-appellant, John  W. Sharp,                      ___________            III,  challenges the  district court's  imposition of  a two-            level  upward adjustment  to  his sentence  for violating  18            U.S.C.     1503 (attempted  obstruction  of  justice) and  42            U.S.C.    3631(a) (interference by force and  threat of force            with  housing  rights).   The  adjustments  were pursuant  to            U.S.S.G.    3B1.1(c)  for  the  defendant's leadership  role.            After  careful review of the  parties' briefs and the record,            we  find no  reason to  disturb the  sentence imposed  by the            district court.                      "Absent  a mistake  of  law, the  district  court's            determination of a defendant's role may be set aside only for            clear  error."   United States  v. Luciano-Mosquera,  63 F.3d                             _____________     ________________            1142,  1157  (1st Cir.  1995).   The  determination  is fact-            specific and may be based on circumstantial evidence and on a            view  of  the whole  of  the  defendant's pertinent  conduct.            United States v. Joyce, 70 F.3d 679, 682 (1st Cir. 1995).            _____________    _____                      The facts showed that the defendant was  one of the            primary actors  in the  conceiving and  carrying  out of  the            cross-burning,  including the transport of other participants            in  his vehicle and  setting fire to the  cross.  These facts            and  other  record  evidence  support  the  district  court's            finding that the defendant  "participated in the initial idea            with  regard   to   the  cross-burning   offense,   that   he            participated  in   the  planning  and   preparation  for  the            commission of the offense,  that he in fact actually  lit the                                         -3-            cross  on fire," and, thus,  played a leadership  role in the            commission  of  the  offense.   See  Joyce,  70  F.3d at  682                                            ___  _____            (evidence of role in offense may be circumstantial).                      We  need  not consider  the  defendant's additional            claim that the leadership-role adjustment to the sentence for            violation of 18 U.S.C.   1503 was  erroneous.  Any error with            respect  to   this  sentence  would  not   have  altered  the            defendant's combined adjusted  offense level  of fourteen  or            affected  the  sentencing range.    "[W]hen  correction of  a            finding  would not  change  the applicable  offense level  or            affect  the  sentencing   range,  any  error   therein  would            necessarily be harmless."  United States v. Bradley, 917 F.2d                                       _____________    _______            601, 604 (1st Cir. 1990).                      Affirmed.  Loc. R. 27.1.                      ________                                         -4-
