United States v. Albanese

• Court: Court of Appeals for the First Circuit
• Decided: June 5, 1996
• Docket: 96-1014
• Status: Published

Opinion

USCA1 Opinion

June 5, 1996

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



                                 ____________________


No. 96-1014



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                 JOSEPH F. ALBANESE,



                                Defendant, Appellant.



                                 ____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF RHODE ISLAND



                 [Hon. Francis J. Boyle, Senior U.S. District Judge]
                                         __________________________



                                 ____________________



                                        Before



                                Torruella, Chief Judge,
                                           ___________

                          Boudin and Lynch, Circuit Judges.
                                            ______________



                                 ____________________



            Randy Olen and John M. Cicilline on brief for appellant.
            __________     _________________

            Sheldon Whitehouse, United States Attorney, and Richard W. Rose,
            __________________                              _______________

        Assistant United States Attorney, on brief for appellee.


____________________


____________________


Per Curiam  After careful review of  the briefs and
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record,  we  find  no clear  error  in  the district  court's



            Sentencing Guidelines calculation.



                      Specifically,  the  district court's  determination



            that defendant was not entitled to a two-level reduction  for



            acceptance of responsibility is based  on a plausible view of



            the  circumstances.     We  will  not   reweigh  the  factors



            considered by the district court; nor can we say as a  matter



            of  law  that  defendant's  letter  to  the  victim  was  not



            threatening   and   inconsistent   with  an   acceptance   of



            responsibility  as contemplated  by  U.S.S.G.    3E1.1.   See
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            United States v. Royer, 895 F.2d 28, 29 (1st Cir. 1990).
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                      Next,  considering both  the victim's  age  and the



            circumstances of  defendant's second, repeat theft  from her,



            there  is   sufficient  support  for  the   district  court's



            determination  that  a two-level  increase  for  the victim's



            vulnerability was warranted.  See U.S.S.G.   3A1.1(b); United
                                          ___                      ______



            States v. Feldman, No.  95-1900, slip op. at 11-16  (1st Cir.
            ______    _______



            April 26, 1996); cf. United States v. Rowe, 999 F.2d 14,  16-
                             __  _____________    ____



            17 (1st Cir. 1993).



                      Finally,  as defendant  committed the  thefts under



            the  guise of his work as an investment advisor purporting to



            assist  the victim, there is  no clear error  in the district



            court's  imposition  of a  two-level  increase  for abuse  of



            defendant's position of trust.  See U.S.S.G.    3B1.3; United
                                            ___                    ______



            States v. Tardiff, 969 F.2d 1283, 1289 (1st Cir. 1992).
            ______    _______


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Affirmed.  See 1st Cir. Loc. R. 27.1.
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