U.S. v. Joyce, 94-2235

• Decision Date: 01 August 1995
• Docket Number: No. 94-2235,94-2235
• Citation: 70 F.3d 679
• Parties: UNITED STATES, Appellee, v. Robert Emmett JOYCE, Defendant-Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 679

70 F.3d 679

UNITED STATES, Appellee, v. Robert Emmett JOYCE, Defendant-Appellant.

No. 94-2235.

United States Court of Appeals First Circuit.

Heard Aug. 1, 1995.

Decided Nov. 27, 1995.

Kimberly Homan, by Appointment of the Court, with whom Sheketoff & Homan, Boston, MA, was on brief for appellant.

James B. Farmer, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, was on brief for appellee.

TORRUELLA, Chief Judge, STAHL, Circuit Judge, and DOMINGUEZ, ^* District Judge.

DOMINGUEZ, District Judge.

Defendant Robert Emmett Joyce ("Joyce") challenges the imposition in his sentence of a three-level upward adjustment, pursuant to U.S.S.G. Sec. 3B1.1(b). Joyce seeks to have the adjustment reversed and the matter remanded for resentencing.

We hold that the lower court's imposition of the three-level upward adjustment, based on Joyce's role in the offense, is warranted. Consequently, we affirm.

I. BACKGROUND

On January 9, 1991, Joyce and five co-defendants--Michael C. Habicht, Michael O. McNaught, James F. Melvin, James M. Murphy, Jr., and Patrick J. Nee--were arrested in Abington, Massachusetts for their alleged involvement in a planned robbery of an armored truck at the Bank of New England Branch. The initial indictment was returned on February 7, 1991. ¹

Following a twenty-five day trial before Judge Mazzone, Joyce and the five other co-defendants were convicted of conspiracy to rob bank funds, in violation of 18 U.S.C. Sec. 371 (Count 10), attempted robbery of bank funds, in violation of 18 U.S.C. Sec. 2113(a) (Count 11), attempted obstruction of commerce by robbery, in violation of the Hobbs Act, 18 U.S.C. Sec. 1951 (Count 13), knowingly using or carrying firearms during and in relation to a crime of violence, in violation of 18 U.S.C. Sec. 924(c) (Count 14), and being felons in possession of firearms, in violation of 18 U.S.C. Sec. 922(g) (Count 15). On March 12, 1992, Joyce was sentenced to a total term of incarceration of 270 months. ²

All Defendants appealed their convictions and sentences. Subsequently, all Defendants, except Murphy, filed a motion seeking to dismiss the appeal of their conviction on Count 14 (18 U.S.C. Sec. 924(c)). We granted that motion. On April 22, 1994, we reversed the convictions of all defendants and remanded the case for a new trial. See United States v. Melvin, 27 F.3d 703 (1st Cir.1994). On June 22, 1994, pursuant to the Defendants' request for clarification, we issued an opinion clarifying that our earlier opinion, ordering reversal, did not encompass Count 14. ³ See United States v. Melvin, 27 F.3d 710 (1st Cir.1994).

On remand, the case was reassigned to Judge Woodlock. Joyce and all defendants, except Murphy, entered into plea agreements with the Government. In Joyce's plea agreement, the parties stipulated that, pursuant to U.S.S.G. Sec. 2B3.1(a), the Base Offense Level was 20; that Joyce should receive a two-level enhancement pursuant to Sec. 2B3.1(b)(1), because the property which was the object of the robbery attempt belonged to a financial institution; and that Joyce should receive a two-level enhancement pursuant to Sec. 3C1.1 because Joyce "willfully testified falsely at the first trial of [the] case".

The parties also agreed that the Adjusted Offense Level should be reduced by three levels for acceptance of responsibility pursuant to U.S.S.G. Sec. 3E1.1(a) and (b)(2). The agreement further stated that the Government's position at sentencing would be that Joyce should receive a five-level enhancement pursuant to Sec. 2B3.1(b)(6)(F) because the intended loss from the Abington robbery attempt exceeded $1,500,000 and a three-level enhancement for his role in the offense pursuant to Sec. 3B1.1(b). ⁴ In the agreement, Joyce reserved the right to contest the Government's position on these issues at the sentencing hearings.

Consistent with the plea agreement, Joyce entered a guilty plea. The sentencing judge held two hearings on the contested guidelines issues of amount of intended loss and Joyce's role in the offense. The court found that a five-level upward adjustment was warranted under Sec. 2B3.1(b)(6)(F) and that a three-level upward adjustment was proper under Sec. 3B1.1(b). The resulting calculation led to a total offense level of 29, with a sentencing range of 108-135 months' incarceration. The sentencing judge imposed a sentence of 108 months on Counts 11, 13, and 15, to be served concurrently with a 60 month sentence imposed on Count 10, followed by the consecutive 60 month term previously imposed by the trial court on Count 14.

II. STANDARD OF REVIEW

In reviewing a district court's application of a sentencing guideline, we utilize a bifurcated process. First, we review de novo the guideline's legal meaning and scope. See United States v. Fontana, 50 F.3d 86, 87 (1st Cir.1995). Second, we review the district court's factfinding for clear error and give due deference to the district court's application of the guidelines to the facts. See United States v. Ovalle- Marquez, 36 F.3d 212 221 (1st Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1322, 131 L.Ed.2d 202 (1995). The determination of the defendant's role in an offense is fact-specific. See United States v. Graciani, 61 F.3d 70, 75 (1st Cir.1995). We are therefore deferential to the sentencing court's views and review the determinations made only for clear error. See United States v. Rostoff, 53 F.3d 398, 413 (1st Cir.1995). Any credibility assessment made at sentencing falls within the province of the district court, and it should be respected on appeal unless it is clearly erroneous. See United States v. Webster, 54 F.3d 1, 5 (1st Cir.1995). If there are two plausible views of the record, the sentencing court's adoption of one of the views will not constitute clear error. See United States v. St. Cyr, 977 F.2d 698, 706 (1st Cir.1992). In making a determination on a defendant's role in the offense, the sentencing court may look beyond the count of conviction to the whole of the defendant's pertinent conduct. See United States v. Savoie, 985 F.2d 612, 615 (1st Cir.1993). Furthermore, the Government need only prove by a preponderance of the evidence that an upward adjustment was warranted. See United States v. Munoz, 36 F.3d 1229, 1240 (1st Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1164, 130 L.Ed.2d 1120 (1995). Additionally, the evidence of a defendant's role in the offense may be circumstantial. See United States v. Tejada-Beltran, 50 F.3d 105, 113 (1st Cir.1995); United States v. Calderon, 935 F.2d 9, 11 (1st Cir.1991).

III. DISCUSSION

Joyce claims that the three-level upward adjustment for his role in the offense was clearly erroneous. He alleges that "the sentencing judge in this case did not find that Joyce exercised the requisite management control over his co-participants. Instead, he (the sentencing judge) indicated that such a finding was unnecessary and that Joyce's exercise of management responsibility 'over the metaphorical assets of the criminal organization,' Tr. 11/3/94 at 6, would suffice to justify the imposition of a Sec. 3B1.1(b) role in the offense adjustment." Joyce further contends that the sentencing judge's construction of Sec. 3B1.1 was incorrect as a matter of law, that the sentencing judge failed to make findings evidencing Joyce's control over any of his co-participants, and further that such a finding could not be made based upon the evidence before him.

The Government asserts that the record provides ample support for the sentencing judge's findings that Joyce was a "manager." The Government argues that our most recent pronouncements make it clear that a role in the offense sentencing enhancement under Sec. 3B1.1. does not necessarily require a finding that the defendant "controlled" one or more other participants in the criminal venture. The Government further argues that the law permits the enhancement when a defendant's organizational claims and activities place him in a position of particular responsibility.

We review this upward adjustment for clear error. See Ovalle- Marquez, supra. Under Sec. 3B1.1(b) a three-level upward adjustment for a defendant's role in the offense is justified when the district court makes both a status determination that the defendant was a manager or supervisor of a criminal activity (but not an "organizer or leader") and a scope determination that the defendant's criminal activity involved five or more participants or was otherwise extensive. See Fontana, 50 F.3d at 87; Ovalle-Marquez, 36 F.3d at 225. We note that Joyce did not question at the sentencing hearings nor on this appeal that "the criminal activity involved five or more participants, or was otherwise extensive."

The Application Note 4 of Sec. 3B1.1 lists the following factors relevant to the determination of a defendant's role in the offense:

the exercise of decision making authority, the nature of the participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.

See Tejada-Beltran, 50 F.3d at 111; United States v. Olivier-Diaz, 13 F.3d 1, 4 (1st Cir.1993). While these factors do not have "talismanic significance," they do serve as useful guideposts for determining Joyce's role. See United States v. Talladino, 38 F.3d 1255, 1260 (1st Cir.1994).

The terms "manager" and "supervisor" are not defined in the guidelines. A court may find a defendant to be a manager or supervisor when he "exercised some degree of control over others involved in the commission of the crime or he [was] responsible for organizing others for the purpose of carrying out the crime." See Ovalle-Marquez, 36 F.3d at 225 (citing United States v. Rodriguez Alvarado, 985 F.2d 15, 20 (1st Cir.19...