
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            United States Court of Appeals                                For the First Circuit                                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 & Bourbeau, Bonilla, Tocchio & 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                                         -2-          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-
