

                      [NOT FOR PUBLICATION]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 &amp; 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).

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          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-
