
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            United States Court of Appeals                                For the First Circuit                                 ____________________          No. 96-1972                                    UNITED STATES,                                      Appellee,                                          v.                                   JERALD J. COHEN,                                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,                                          ___________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Stahl, Circuit Judge.                                          _____________                                _____________________               Morris M. Goldings, with whom Richard S. Jacobs and Mahoney,               __________________            _________________     ________          Hawkes & Goldings were on brief for appellant.          _________________               Jean B.  Weld, Assistant  United States Attorney,  with whom               _____________          Paul M.  Gagnon,  United  States   Attorney,  was  on  brief  for          _______________          appellee.                                 ____________________                                    June 25, 1997                                 ____________________                    Per   Curiam.    Defendant-Appellant  Jerald  J.  Cohen                    Per   Curiam.                    ____________          ("Cohen") pled guilty to  one count of conspiracy to  commit bank          fraud and bank bribery, in  violation of 18 U.S.C.    371,  1344,          and   215(a)(1).      Cohen's   offense   conduct  involved   his          participation  in a loan  scheme whereby  he received  nearly $16          million in real estate loans, for which he paid at least $734,500          in "kickbacks" to particular bank officials.  On August 20, 1996,          the district court sentenced Cohen to 15 years' imprisonment.  At          Cohen's sentencing hearing, the district court denied his request          for a two-level downward adjustment for being a minor participant          under United  States Sentencing Guidelines    3B1.2.   On appeal,          Cohen's  only contention  is  that the  district court  committed          clear error when it failed to grant him the downward adjustment.                    "Assessing  a  defendant's role  in  the  offense is  a          fact-specific  task,   suggesting  by   its  very   nature  'that          considerable  respect  be paid  to the  views  of the  nisi prius          court.'   It  follows, therefore,  that unless  a mistake  of law          looms  .  .  .  [,]  a  sentencing  court's  determination  of  a          defendant's role will be set aside only for clear error."  United                                                                     ______          States v.  Tejada-Beltr n, 50  F.3d 105,  110-11 (1st  Cir. 1995)          ______     ______________          (quoting United States v. McDowell, 918 F.2d 1004, 1011 (1st Cir.                   _____________    ________          1990)).  "The  defendant bears the burden  of proving that he  is          entitled to a downward  adjustment for his role in  the offense."          United  States v.  Gonz lez Soberal,  109 F.3d  64, 73  (1st Cir.          ______________     ________________          1997).                                         -2-                    The Sentencing  Guidelines allow the district  court to          grant a two-level  downward adjustment to a  minor participant in          the  criminal   activity.     This  departure  applies   to  "any          participant who  is less  culpable than most  other participants,          but whose role could not  be described as  minimal."   U.S.S.G.            3B1.2, comment. n.3; see  United States v. Ocasio, 914  F.2d 330,                               ___  _____________    ______          333 (1st Cir. 1989).                    Cohen argues that the  district court made three errors          in the  course of ruling that  he was not less  culpable than the          other  participants  in  this  conspiracy  or  than  the  average          participant who commits this offense.  He  alleges that:  (1) the          district  court  relied  on  the  mere  fact  that  he  knowingly          participated  in the kickback scheme  to conclude that  he was as          culpable  as  the  other  conspiracy members;  (2)  the  district          court's  finding that Cohen was not less culpable than the others          was clearly erroneous in  the face of the  probation department's          and the  U.S. Attorney's1 allegedly contrary  assertions; and (3)          the amount of fraudulent  loans Cohen received and the  bribes he          paid to bank  officials had  already been taken  into account  in          establishing  the base offense level, implying that consideration          of  these  amounts  in  determining  that  he  was  not  a  minor          participant amounted to double-counting.  Cohen claims that these          three  errors require that  we reverse  his sentence  and remand.                                        ____________________          1   While  the U.S.  Attorney's Office  apparently conceded  that          Cohen was less culpable than the other members of the conspiracy,          the Office  made clear at the sentencing  hearing that it did not          believe that Cohen  was less culpable than the  average defendant          who commits this sort of bank fraud.                                         -3-          Beyond these broad and conclusory assertions, however, he has not          been able to point  to facts in the  record sufficient to  compel          the conclusion  that his culpability was  significantly less than          that of  the other participants in  the scheme or --  more to the          point -- that  his culpability was less than that  of the average          defendant who commits  bank fraud  and bribery.   Nor does  Cohen          develop or support his argument that  the district court's ruling          regarding  his  culpability  relative  to  the  other  conspiracy          participants,  contrary  to assertions  of  the  parties and  the          probation department, is necessarily reversible error.                    In  addition to  noting Cohen's  failure to  present us          with  evidentiary  support  for  a  minor  participant   downward          adjustment,  we find no error  in the district court's conclusion          that  he was not  entitled to such  an adjustment.   The district          court  specifically noted  that  Cohen's  conduct, including  his          active participation in the  conspiracy's intended purposes, made          him at least as culpable as the other criminal participants.  The          record  specifically reveals  that, during  a one-and-a-half-year          time period,  Cohen repeatedly  applied  for loans  for which  he          provided bribes and from  which he received considerable benefit.          As sole borrower  of four loans, Cohen's role was integral to the          success  of the  scheme as related  to these  loans.   We find no          error  in the  district court's  refusal to  grant Cohen  a minor          participant downward adjustment.                    Upon   full  consideration  of  the  record,  appellate          briefs,  and argument of counsel,  we affirm the  decision of the                                         -4-          district court on the basis of its rulings at Cohen's August  20,          1996, Sentencing Hearing.                    Affirmed.                    ________                                         -5-
