
USCA1 Opinion

	




          May 1, 1995       UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1720        No. 94-1721        No. 94-1722                               UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 ANTHONY F. WEBSTER,                                Defendant, Appellant.                                 ____________________        No. 94-1778                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  ROBERT A. BOUTHOT,                               a/k/a ROBERT H. BOUTHOT,                                Defendant, Appellant.                                 ____________________        No. 94-1846                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  MANUEL D. RAVELO,                                Defendant, Appellant.                                 ____________________        No. 94-1862                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                WARREN R. HUNTINGTON,                                Defendant, Appellant.                                 ____________________                                     ERRATA SHEET            The opinion of  this Court, issued  on April 27, 1995,  is amended        as follows:            On page 3, line 18, replace "Walker's" with "Webster's".            On page 14, line  5 of second full paragraph, insert a comma after        "because".                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1720        No. 94-1721        No. 94-1722                               UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 ANTHONY F. WEBSTER,                                Defendant, Appellant.                                 ____________________        No. 94-1778                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  ROBERT A. BOUTHOT,                               a/k/a ROBERT H. BOUTHOT,                                Defendant, Appellant.                                 ____________________        No. 94-1846                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  MANUEL D. RAVELO,                                Defendant, Appellant.                                 ____________________        No. 94-1862                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                WARREN R. HUNTINGTON,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                      and John R. Gibson,* Senior Circuit Judge.                                           ____________________                                 ____________________            Thomas F.  Hallett,  by Appointment  of the  Court, for  appellant            __________________        Anthony F. Webster.            F.  Mark Terison,  Assistant  United States  Attorney,  with  whom            ________________        Jay P.  McCloskey, United States Attorney, was on brief for the United        _________________  ______________________        States.            Thomas  A.  Dyhrberg,  by  Appointment  of  the Court,  with  whom            ____________________        Thomas A. Dyhrberg, P.A. was on brief for appellant Robert A. Bouthot.        ________________________            Margaret  D. McGaughey,  Assistant  United  States Attorney,  with            ______________________        whom Jay P. McCloskey, United States Attorney, and George T. Dilworth,             ________________                              __________________        Assistant United States Attorney, were on brief for the United States.            James  R. Bushell,  by Appointment  of  the  Court, with  whom Law            _________________                                              ___        Office  of James  R.  Bushell was  on  brief for  appellant  Manuel D.        _____________________________        Ravelo.            F.  Mark Terison,  Assistant  United States  Attorney,  with  whom            ________________        Jay P.  McCloskey, United  States  Attorney, and  George T.  Dilworth,        _________________                                 ___________________        Assistant United States Attorney, were on brief for the United States.            Jeffrey M. Smith, by Appointment of  the Court, with whom  Peters,            ________________                                           ______        Smith & Moscardelli was on brief for appellant Warren R. Huntington.        ___________________            Michael M.  DuBose, Assistant  United States  Attorney, with  whom            __________________        Jay P.  McCloskey,   United  States  Attorney,  and   Raymond  Hurley,        _________________                                     _______________        Assistant United States Attorney, were on brief for the United States.                                 ____________________                                    April 27, 1995                                 ____________________        ____________________        *Of the Eighth Circuit, sitting by designation.                 BOUDIN, Circuit Judge.  Anthony  Webster, Robert Bouthot                         _____________            and  Manuel Ravelo  were convicted  of various  drug offenses            stemming from  their involvement with  a cocaine distribution            ring centered  in  Portland,  Maine;  Warren  Huntington  was            convicted of  three offenses  arising from an  unrelated bank            fraud scheme.    The  four  were sentenced  to  prison  terms            ranging  from 30 to 188  months, and each  now challenges his            sentence.                                     I.  Webster                  On  December  3, 1993,  Webster  pled  guilty to  eight            separate  offenses, including the  use of a  firearm during a            drug trafficking  crime.  The guideline  sentencing range for            all  offenses but the firearm offense was calculated to be 63            to  78  months.   By statute  the  firearm offense  carried a            mandatory minimum sentence of  60 months to run consecutively            to any other sentence imposed.  See 18 U.S.C.   924(c).                                                ___                 Before sentencing  the government moved  for a  downward            departure  from the guideline sentencing range in recognition            of  Webster's cooperation  and testimony  in  prosecuting the            other  members  of the  drug  conspiracy.   The  government's            motion  for  departure  invoked U.S.S.G.    5K1.1  and  thus,            according to the government,  sought a downward departure for            the guideline offenses only.   See U.S.S.G.   5K1.1 (allowing                                           ___            departure  from  guidelines  on  government's  motion).   The            government  did not  request  a downward  departure under  18                                         -3-                                         -3-            U.S.C.   3553(e) from the statutory mandatory minimum for the            firearm offense.                   At  sentencing, Webster  did  not request  the court  to            depart below  the 60-month sentence for  the firearm offense,            believing  that  the court  lacked  the  authority to  do  so            because the  government had not moved  under section 3553(e).            Instead, Webster  pressed the court to  award a proportionate            reduction of his total sentence--subject to a 60-month floor-            -and not just  the portion  of his sentence  governed by  the            guidelines.  Webster then  argued for an overall  sentence of            72 to 78 months.                 The  district  court  responded that  this  "defeats the            whole purpose of the statutory mandatory minimum" and that it            had  to  "set  that  aside" for  purposes  of  determining  a            downward departure  of the guideline sentence.   The district            court  then sentenced  Webster to  a total  of 90  months: 60            months  for the firearm offense  and 30 months  for the other            offenses,  to  run  consecutively.    The  30-month  sentence            represented more than a 50 percent reduction in the guideline            minimum of 63 months for those offenses.                   On appeal, as in  the district court, Webster challenges            only  the district  court's  refusal to  consider his  entire            sentence when  deciding how  far to  depart on  the guideline                                                                _________            offenses.    Consequently, we  need  not  decide whether  the            government's  motion  under   U.S.S.G.    5K1.1  would   have                                         -4-                                         -4-            triggered the court's authority under 18  U.S.C.   3553(e) to            depart below the statutory minimum, an issue that has divided            the circuits.  Compare  United States v. Wills, 35  F.3d 1192                           _______  _____________    _____            (7th  Cir. 1994), with United States v. Sanchez, 32 F.3d 1330                              ____ _____________    _______            (8th Cir. 1994), cert. denied, 115  S. Ct. 1119 (1995).   See                             ____________                             ___            also  Wade v.  United States,  112 S.  Ct. 1840,  1843 (1992)            ____  ____     _____________            (noting circuit split).       The  government  has  moved  to            dismiss  Webster's   appeal  on  the  ground   that  we  lack            jurisdiction  to  review the  extent  of  a district  court's            departure  from  the  guideline  sentencing  range.    We  do            normally lack jurisdiction over such a challenge, because the            extent of  any permitted  departure is  left to  the district            court's discretion.  United States v. Pighetti, 898 F.2d 3, 4                                 _____________    ________            (1st  Cir.  1990).   But where  the  departure may  have been            affected by  a  mistake  of  law, as  Webster  alleges  here,            appellate jurisdiction exists.  See United States v. Mariano,                                            ___ _____________    _______            983 F.2d 1150, 1153 (1st Cir. 1993).                 To decide this case  without adopting a position on  the            issue that divides the circuits is  somewhat artificial.  For            if the Seventh Circuit view were followed, the district court            would  have power to depart even as to the mandatory minimum.            But we do  not want to  take sides here  on the larger  issue            which  has neither been briefed nor argued.  Thus, solely for            purposes of  this case, we  assume arguendo (as  the district                                               ________            court did without  that qualification) that  the government's                                         -5-                                         -5-            failure to ask for a departure from the statutory minimum did            prevent  the district court  from departing to  a point below            that figure.                 On that  assumption, we agree that  the district court's            position  has  considerable  force:     any  reduction  of  a            guideline  sentence  to offset  even  in  part a  consecutive            statutory minimum  tends to undercut Congress'  insistence on            the  statutory minimum.  At the same time, Congress has given            the sentencing court almost unreviewable discretion to decide            the  amount of the departure  after a 5K1.1  motion.  To tell            the  district court that it  must ignore any  factor that may                                                     ___            seem   logically  relevant   arguably   collides  with   this            intention.                 We conclude that in  departing from a guideline sentence            the district court is free to exercise its own judgment as to            the pertinence,  if any,  of a related  mandatory consecutive            sentence.   Should the  district court think  that the latter            has some role along  with other factors in fixing  the extent            of a guideline departure in a particular case, that is within            its  authority; and should that court decline to consider the            mandatory minimum in  fixing the other sentence,  that too is            within  its authority.   For  this court  to decide  upon the            ingredients  of  a departure  one by  one  would go  very far            toward defeating discretion.                                         -6-                                         -6-                 We are confident that this difference in perspective had            no impact  on the sentence in  this case.   Assuming that the            statutory minimum sentence fixed  a floor, the district court            was  free not to consider the statutory minimum in fixing the            guideline sentence.  We have no reason whatever to think that            the  district court  would have  altered its  position, which            rests on a rational policy judgment, if it had been told that            this choice was a matter of its discretion and not of law.                 Still  less  do we  have any  reason  to think  that the            district  court's  sentence would  have been  less if  it had            considered  the  mandatory minimum  sentence.   The  district            court said that the  large departure it granted was  based on            the scope of Webster's  cooperation and the resulting benefit            to the government.  It went on to say that this reduction was            "as  lenient as  permissible"  given the  seriousness of  the            defendant's criminal conduct.   Indeed, if the district court            had wanted to depart further it had ample room to do so.                 This  is not  a  case--as some  are--where the  district            court  expressed  a desire  to  impose a  lower  sentence but            thought  itself blocked by a supposed legal barrier.  Compare                                                                  _______            United States v. Rivera,  994 F.2d 942, 953 (1st  Cir. 1993).            _____________    ______            Here, the consecutive sentence  was mentioned by the district            court only after  counsel for Webster sought  to introduce it            as a mitigating factor.   The district court thought  that it                                         -7-                                         -7-            should  not  be  so considered  and  was  free  to make  this            judgment.  Accordingly we uphold the sentence.                                     II.  Bouthot                 On February 18, 1994,  Bouthot pled guilty to conspiracy            to possess  cocaine with intent  to distribute, 21  U.S.C.               841, 846.  On July 1, 1994,  after a one-day hearing, Bouthot            was  sentenced to  151  months' imprisonment.   The  district            court found  that Bouthot was responsible  for 3.83 kilograms            of  cocaine, resulting in  a base offense  level of  30.  The            court also added two levels for Bouthot's supervisory role in            the drug ring, and declined to make a downward adjustment for            acceptance  of  responsibility.   U.S.S.G.      3B1.1, 3E1.1.            With  a  total offense  level of  32  and a  criminal history            category of  III, the guideline  sentencing range was  151 to            188 months, and the court chose the minimum.                 The  district  court  based  the drug  quantity  on  the            testimony   of  Webster  at   Bouthot's  sentencing  hearing.            Webster  said that  he  provided Bouthot  with  one to  three            ounces of cocaine three times a month for 14 months, and made            seven trips to  New York  with Bouthot to  buy cocaine,  each            trip  yielding six to twelve  ounces of cocaine  but with one            trip netting  a half  kilogram.  Using  middle-to-low figures            for  the  drug amounts,  and  adjusting  for possible  double            counting for drugs from the New York trips subsequently given                                         -8-                                         -8-            to Bouthot,  the district  court calculated that  Bouthot was            responsible for 3.83 kilograms.                   Bouthot   claims  that   Webster's   testimony  was   an            unreliable basis for establishing drug quantity.  It is  true            that  under   U.S.S.G.      6A1.3(a)  information  used   for            sentencing  must have  sufficient indicia  of reliability  to            support its probable  accuracy.  See United States v. Tavano,                                             ___ _____________    ______            12 F.3d  301 (1st Cir. 1993).   Bouthot cites to  a number of            inconsistencies with  Webster's previous accounts  and points            out that Webster was an admitted perjurer, a drug user, and a            turncoat  who received  a substantially reduced  sentence for            implicating others.                   Credibility assessments at  sentencing are the  province            of  the district  court and  are respected  on appeal  unless            clearly erroneous.  United States v. Olivier-Diaz, 13 F.3d 1,                                _____________    ____________            4  (1st  Cir. 1993).    True,  Webster was  a  witness to  be            approached  with  caution;  indeed,  he  had  twice  perjured            himself in  earlier proceedings  before  the district  court.            But  these  lies  occurred   before  Webster  had  agreed  to            cooperate with the  government.  The district court  was free            to  conclude that, once the  game was up,  Webster had wisely            chosen to cooperate fully  and truthfully with the government            in the hope of receiving a lightened sentence.                 Bouthot next argues that, even assuming the  reliability            of  Webster's testimony,  the mean "per  transaction" figures                                         -9-                                         -9-            used  by the  district court  as multipliers  lacked adequate            evidentiary support; the  court settled on two ounces  as the            per transaction amount for Bouthot's regular supply and eight            ounces  as the per trip amount for  six of the seven New York            trips.   Webster  had  testified unequivocally  that he  gave            Bouthot one to three ounces three times a month and that they            purchased  six to  twelve ounces  on their  typical  New York            trip.     Bouthot  did  not object  to  the  district court's            method of  drug computation  at the  time  of sentencing  and            therefore has  waived this issue.   Uricoechea-Casallas,  946                                                ___________________            F.2d at  166.  In any  event, we review the  district court's            drug quantity determinations for  clear error, United  States                                                           ______________            v. Morillo, 8 F.3d 864, 871 (1st Cir. 1993), and find no such               _______            error  here.  Where no drugs have been seized, the guidelines            instruct  the  district  court  to  approximate  the  amounts            involved,   U.S.S.G.   2D1.1  comment. (n.12), and  we uphold            such  an approximation as  long as  it represents  a reasoned            estimate of quantity.  Morillo, 8 F.3d at 871.                                    _______                 In this case, the  figures chosen by the  district court            were   the  mean  figure  for  the  small  buys  and  on  the            conservative side for the New York trips, and they were drawn            from ranges  with relatively  tight  margins.   This case  is            quite unlike United  States v. Sepulveda, 15  F.3d 1161, 1197                         ______________    _________            (1st  Cir. 1993), cert. denied, 114 S. Ct. 2714 (1994), where                              ____________            we found it error to use the midpoint between four ounces and                                         -10-                                         -10-            one  kilogram as  the average  transaction.   All in  all, we            think that the figures  chosen by the district court  in this            case represent  a defensible estimate of  drug quantity based            on  the available evidence, and this is all that is required.            Morillo,   8  F.3d  at  871.    See  also  United  States  v.            _______                         ___  ____  ______________            Innamorati,  996  F.2d 456,  490-91  (1st  Cir. 1993),  cert.            __________                                              _____            denied, 114 S. Ct. 409 (1994).            ______                 Bouthot  also  says that  the  district  court erred  in            failing to  award him a two-point reduction for acceptance of            responsibility.  Bouthot did plead guilty  to the drug charge            but a  plea of guilty  is not  a guarantee for  receiving the            reduction.   United States v. Bradley, 917 F.2d 601, 606 (1st                         _____________    _______            Cir.  1990).   The  district  court  found that  Bouthot  had            understated his criminal involvement.  This in turn warranted            a finding that Bouthot had not fully accepted responsibility.            See U.S.S.G.   3E1.1 comment. (n.1).            ___                 The  two-level  adjustment  for  Bouthot's  role  in the            offense  is also  supported.   Webster and  a DEA  agent both            testified  that  Bouthot  had recruited  an  individual named            Conwell  to sell  small amounts  of  cocaine for  him, paying            Conwell a  fixed commission on  every sale and  providing him            with housing from which to operate.  This testimony, accepted            by the district court, is more than enough to qualify Bouthot            for  a two-point  adjustment for  exercising a  leadership or            supervisory  role  in  the  offense.   See  U.S.S.G.    3B1.1                                                   ___                                         -11-                                         -11-            comment.  (n.4).   United  States v.  Fuller, 897  F.2d 1217,                               ______________     ______            1219-22 (1st Cir. 1990).                                       III.  Ravelo                 Ravelo was convicted by a jury of conspiracy to  possess            cocaine with intent  to distribute.   On July  21, 1994,  the            district  court sentenced  him to  188 months'  imprisonment.            The court determined that Ravelo's base offense level was 34,            based  on a drug quantity  finding of 198.1  grams of cocaine            base, also known as crack.  No upward or downward adjustments            were made.   With no  prior criminal  record, Ravelo's  total            offense  level yielded a guideline sentencing range of 151 to            188 months,  and the court  sentenced him at  the top  of the            range.                 As  with Bouthot,  Webster  was the  primary witness  at            Ravelo's sentencing hearing.   Webster testified that  Ravelo            was his New  York source for cocaine and that he purchased on            average 6 to  8 ounces  twice per  month from  1990 to  1993.            Consistent  with   his  testimony  at   Bouthot's  sentencing            hearing, Webster said that at times  the amounts were upwards            of 11 to 13 ounces and that once he purchased a half kilogram            from  Ravelo.  Webster also  testified that in  the summer of            1993 he purchased from  Ravelo seven ounces of crack  made in            Ravelo's kitchen.                 At  sentencing  the  district court  accepted  Webster's            testimony and found that Ravelo had sold Webster seven ounces                                         -12-                                         -12-            (198.1 grams)  of crack in  the summer  of 1993.   The  crack            finding  alone placed Ravelo at  a base offense  level of 34.            See  U.S.S.G.   2D1.1(c)(5).    Ravelo, like  Bouthot, claims            ___            that  Webster's testimony  was unreliable.   But  Webster was            very  clear  about  the   crack  transaction--how  much   was            involved, who was there, and how it was made.  This testimony            was  also   consistent  with   what  Webster  had   told  law            enforcement agents  during his  debriefing.  For  the reasons            already set forth with respect to Bouthot, the district court            was free  to conclude  that Webster's testimony  was credible            and sufficiently reliable.                    Ravelo  next  claims  that  he  should  have  been  held            accountable  for  no more  than  1.26  kilograms of  cocaine,            because this was the amount  for which Webster was sentenced,            and both  participated in  the same transactions.   Webster's            sentence was based  on 1.26 kilograms  of cocaine, an  amount            computed by  a  probation officer  and stipulated  to by  the            parties  at sentencing.   The  crack transaction  is excluded            from  the stipulated  amount  but the  discrepancy is  easily            explained.                 Evidence  of  the  crack  transaction  apparently  first            surfaced  during  Webster's  debriefing  by  law  enforcement            agents.   But  before he  spoke, Webster  obtained a  written            promise  from the government that none  of the information he            provided would be  used against him (with exceptions not here                                         -13-                                         -13-            relevant).    Under the  guidelines,  this  promise immunized            Webster from  having the crack transaction  count towards his            sentence.  See U.S.S.G.   1B1.8(a).                       ___                 We see  no problem  with holding Ravelo  responsible for            the greater  drug quantity actually proved  at his sentencing            hearing.  First and  foremost, he did not cooperate  with the            government  and  thereby  receive   immunity  for  the  crack            transaction.     Although   the  guidelines   generally  seek            uniformity  in  sentencing,  they  also  encourage  divergent            treatment  for  those  who  cooperate, in  order  to  promote            greater cooperation  with law  enforcement.   Given  Ravelo's            decision not  to cooperate, he  has no basis  for complaining            about leniency to someone who did cooperate.                   Ravelo's  final challenge  to  his  sentence relates  to            comments made by the district court at the time of sentencing            pertaining to Ravelo's  alien status.   Ravelo, a citizen  of            the  Dominican Republic,  claims  that the  court's  comments            indicate that  he was sentenced  more harshly because  of his            alienage   and  that  a  constitutional  violation  resulted.            Compare United  States v.  Gomez, 797 F.2d  417, 418-21  (7th            _______ ______________     _____            Cir. 1986) with United  States v. Leung, 40 F.3d  577, 585-87                       ____ ______________    _____            (2d Cir.  1994) and United States v.  Borrero-Isaza, 887 F.2d                            ___ _____________     _____________            1349, 1353-56 (9th Cir. 1989).                  The  district court  made clear  that it  was sentencing            Ravelo to the high end of  the guideline range because of his                                         -14-                                         -14-            continued dishonesty and defiance.  Ravelo's alien status was            raised by  Ravelo's counsel who requested  a lighter sentence            because, as an alien, Ravelo  would be subject to deportation            upon  his release from prison.  The sentencing judge said, in            substance, that  Ravelo was  not entitled to  leniency simply            because he  faced deportation,  for this would  undermine the            deterrent  value of Ravelo's sentence.  It is thus clear that            the  district  court  did  not punish  Ravelo  more  severely            because of his alien status.                                   IV.  Huntington                 Huntington pled guilty  to two counts of bank  fraud, 18            U.S.C.   1344,  and one  count of conspiracy  to commit  bank            fraud,  18  U.S.C.    371,  1344.   The  scheme  involved the            forging  and cashing  of  blank checks  stolen  from a  local            health  center; the checks were stolen  by Webster, forged by            Huntington and  cashed  by numerous  individuals  at  various            branches of the Casco Northern Bank on newly opened accounts.            Apart from  Webster's membership  in  both conspiracies,  the            bank fraud scheme was unrelated to the drug ring.  Huntington            pled guilty  to  the  three  fraud  charges  against  him  on            December 6, 1993.                 Some  three   months  later,  on  the   morning  of  his            presentence conference, Huntington moved to withdraw his plea            on the grounds of involuntariness; Huntington claimed that he            had been  threatened by  two codefendants--by Webster  and by                                         -15-                                         -15-            Huntington's own nephew  Stephen Huntington--to plead  guilty            or face  physical harm.  On April 29, 1994, the court held an            evidentiary hearing  on the plea-withdrawal  motion, at which            Huntington  was   the  sole   witness.    At   the  hearing's            conclusion,  the   court  denied  the  motion,  finding  that            Huntington's story was a blatant, last-minute fabrication.                  The  court  sentenced  Huntington   on  July  22,  1994.            Huntington's conduct equated to an offense level of 11, which            included a two-level increase for more than minimal planning.            U.S.S.G.    2F1.1(b)(2)(A).   The  court imposed  a two-level            upward adjustment for Huntington's organizational role in the            scheme, U.S.S.G.   3B1.1(c), and  a further two-level  upward            adjustment  for obstruction  of justice,  based primarily  on            Huntington's  perjurious  testimony  at  the  plea-withdrawal            hearing.  U.S.S.G.   3C1.1.  With a criminal history category            of III, the resulting guideline sentencing range was 24 to 30            months,  and the court sentenced him to the maximum amount of            30 months.                 In making an upward  adjustment for Huntington's role in            the offense, the district court found as follows:                 [T]his  defendant collaborated  with Webster  as to                 devise,  carry out this scheme, forge and negotiate                 stolen  checks,  and   that  he  typed  false   and                 fictitious amounts and information about the payees                 on several stolen checks.   The Court further finds                 that   he  forged  the  authorized  signatures  and                 assisted  Webster in  giving instructions  to other                 participants in the scheme, directing their efforts                 in the offense conduct.                                         -16-                                         -16-            Based on the first sentence of these findings, and on certain            other  comments  made  by  the  sentencing judge,  Huntington            argues  that  the  district  court  misunderstood  the  legal            standard  and   thought  it   enough   that  Huntington   was            extensively  involved  in  the  conspiracy.    The  guideline            requires that  Huntington must  have controlled  or organized            the  activities of at least one other participant in the bank            fraud scheme.  U.S.S.G.   3B1.1(c); Fuller, 897 F.2d at 1220;                                                ______            United States v. Castellone, 985 F.2d 21, 26 (1st Cir. 1993).            _____________    __________                 At  sentencing  the court  specifically  found that,  in            addition  to playing  a central  role in  devising the  whole            scheme,   Huntington   directed   and    instructed   various            individuals  on how  to negotiate  the forged  checks at  the            banks.  While the former conduct provides evidence suggesting            an enhanced  role, see  U.S.S.G.   3B1.1 comment.  (n.4), the                               ___            latter  conduct  conclusively  establishes   that  Huntington            controlled or organized at least one other participant.                 The record supports this assessment.  There was evidence            that Huntington  instructed an individual named  Jolin how to            present the forged checks for  acceptance and directed him to            different branches  of Casco Northern Bank  for that purpose.            Steven  Huntington, the appellant's  nephew, testified at the            sentencing hearing  that the appellant recruited  him to take            part  in the  scheme  and that  the  appellant "did  all  the                                         -17-                                         -17-            talking"  when  distributing the  forged  checks  to him  and            another  check  casher named  Glantz.    At  the very  least,            Huntington served as Webster's lieutenant, and the guidelines            do not limit  supervision to  one person.   U.S.S.G.    3B1.1            comment. (n.4).     Huntington  says  that  the  role-in-the-            offense enhancement amounts  to impermissible double counting            in view of  the district court's earlier enhancement for more            than minimal planning.  The two-level increase  for more than            minimal  planning was based on  the fact that  the bank fraud            scheme  involved repeated  episodes  of fraud;  the two-level            increase  for role in the offense, as we have just discussed,            was predicated on Huntington's  direction and supervision  of            others.   Because the two adjustments were  based on separate            factors,  there was  no double  counting.   United States  v.                                                        _____________            Balogun, 989 F.2d 20, 23-24 (1st Cir. 1993).            _______                 Huntington   also  contests  the  upward  departure  for            obstruction  of justice  under U.S.S.G.    3C1.1.   In making            this   adjustment,  the  court  relied  upon  three  separate            instances  of alleged  perjury,  but any  one is  sufficient.            United  States v. Tracy, 36  F.3d 199, 201  (1st Cir.), cert.            ______________    _____                                 _____            denied, 115 S. Ct.  609 (1994).  We confine  ourselves to the            ______            district   court's  finding  that  Huntington  had  testified            falsely at  the plea-withdrawal hearing when  he claimed that            he was "absolutely" innocent of the bank fraud charges.                                         -18-                                         -18-                 Under United States v.  Dunnigan, 113 S. Ct.  1111, 1116                       _____________     ________            (1993), a witness commits  perjury if he or she  "gives false            testimony concerning a material  matter with a willful intent            to  provide false  testimony,  rather  than  as a  result  of            confusion,  mistake  or faulty  memory."    In Dunnigan,  the                                                           ________            Supreme Court  instructed that  a sentencing court  must make            independent  findings necessary to establish the enhancement,            preferably addressing each element  of the alleged perjury in            "a separate and  clear finding."   Id. at  1117.   Huntington                                               ___            argues that the court's  findings are legally insufficient to            support   a  determination  of  perjury  under  the  Dunnigan                                                                 ________            standard.  We disagree.  On the first episode  of perjury the            court found as follows:                 The Court bases its  findings from the testimony of                 this  defendant  .  .   .  at  the  proceedings  to                 determine  whether   he  should  be   permitted  to                 withdraw his  guilty plea.  The  Court is satisfied                 that  his  disclaimer  of  participation  in  these                 offenses in this offense  conduct at that time, his                 protestation  of innocence  [was] false,  that that                                                   _____                 testimony related to a  material matter and that it                                         _______________                 was intended to influence the judgment of the Court                     _____________________                 in making the determination as to whether he should                 be permitted to  withdraw his plea  of guilty.   In                 that respect  the Court  is satisfied there  was an                 obstruction   of   justice   by   this   defendant.                 (emphasis added).            These findings  encompass all the predicates  for perjury and            thus satisfy the requirements of Dunnigan.                                               ________                 As for the factual bases for  those findings, the record            amply  supports  the judge's  ruling  under  the clear  error            standard.  Tracy,  36 F.3d  at 202.   At the  plea-withdrawal                       _____                                         -19-                                         -19-            hearing Huntington testified that he  was absolutely innocent            of  the bank fraud charges brought against him, claiming that            he had been duped into signing the checks by Webster.  But at            sentencing  four months later Huntington admitted his knowing            participation in the  bank fraud scheme, although  not to the            full extent for which the district court ultimately found him            responsible.     As   such,  Huntington's   protestations  of            "absolute" innocence  at the  withdrawal hearing were  not in            any way ambiguous and amounted to perjury.  See United States                                                        ___ _____________            v.  Austin,  948  F.2d  783,  789 (1st  Cir.  1991)  (perjury                ______            committed  at  withdrawal  hearing  requires  obstruction  of            justice adjustment).                 For  the foregoing  reasons  the sentences  of all  four            appellants are affirmed.                           ________                                         -20-                                         -20-
