United States v. Joyce

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________



          No. 94-2235



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                 ROBERT EMMETT JOYCE,



                                Defendant - Appellant.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                   [Hon. Douglas P. Woodlock, U.S. District Judge]
                                              ___________________



                                 ____________________



                                        Before



                               Torruella, Chief Judge,
                                          ___________



                                Stahl, Circuit Judge,
                                       _____________



                           and Dom nguez,* District Judge.
                                           ______________



                                _____________________



               Kimberly  Homan,  by Appointment  of  the  Court, with  whom
               _______________

          Sheketoff & Homan, 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.


____________________



                                  November 27, 1995

                              
          ____________________



          *  Of the District of Puerto Rico, sitting by designation.



____________________


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DOMINGUEZ,  District  Judge.   Defendant  Robert Emmett
                    DOMINGUEZ,  District  Judge.
                                _______________



          Joyce ("Joyce")  challenges the imposition  in his sentence  of a



          three-level upward adjustment,  pursuant to U.S.S.G.    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
                                    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.   371



          (Count 10), attempted robbery  of bank funds, in violation  of 18



                              
          ____________________



          1  A third superseding indictment  (on which the case was  tried)

          was returned on  September 5, 1991.  In addition  to the Abington

          offenses,  the third  superseding  indictment  charged Joyce  and

          Murphy with offenses arising  out of the $880,000 robbery  on May

          31,  1989,  of a  Mass. Transport,  Inc.  armored truck  making a

          delivery  to  the Shawmut  Worcester  County  Bank in  Fitchburg,

          Massachusetts.   Murphy was convicted  of conspiracy to  rob bank

          funds, in violation of 18 U.S.C.   371 (Count 3), robbery of bank

          funds,  in  violation  of 18  U.S.C.     2113(a)  (Count 4),  and

          obstruction of  commerce by robbery,  in violation  of the  Hobbs

          Act, 18 U.S.C.    1951 (Count 6).  Joyce was  found not guilty on

          these counts.



                                         -2-



U.S.C.   2113(a) (Count 11), attempted obstruction of commerce by



          robbery,  in violation of the Hobbs Act,  18 U.S.C.   1951 (Count



          13), knowingly using or carrying firearms during and  in relation



          to  a crime  of violence,  in violation  of 18  U.S.C.    924 (c)



          (Count  14),  and  being  felons in  possession  of  firearms, in



          violation of  18 U.S.C.   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.    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).


____________________



          2   Joyce was sentenced  to terms of 60  months on Count  10, 210

          months on Counts 11 and 13, and 120 months on Count 15, all to be

          served concurrently, based upon a Guideline Offense  Level of 33,

          Criminal  History Category  III.   That  Guidelines sentence  was

          followed  by a mandatory term  of incarceration of  60 months, on

          Count 14.



          3   Count  14  charged Joyce  with  knowingly using  or  carrying

          firearms  during and  in  relation to  a  crime of  violence,  in

          violation of 18 U.S.C.   924 (c).



                                         -3-



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.    2B3.1(a), the



          Base  Offense Level was 20; that Joyce should receive a two-level



          enhancement pursuant to   2B3.1(a)(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     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.    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   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  



          3B1.1(b).4    In  the  agreement,  Joyce  reserved  the  right to



          contest  the  Government's  position   on  these  issues  at  the



          sentencing hearings.



                              
          ____________________



          4    Under  the  plea  agreement,  the  Government  contended  at

          Sentencing  that Joyce's  Adjusted  Offense Level  should be  29,

          Criminal History Category III,  with a guideline sentencing range

          of  108-135  months,  in  addition   to  the  60  month  sentence

          previously imposed by the trial court on Count  14.  Both parties

          agreed  that the 60 month sentence previously imposed on Count 14

          was to be served consecutively with the newly imposed sentence on

          Counts 10, 11, 13, and 15.



                                         -4-



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   2B3.1  (b)(6)(F) and that



          a three-level upward adjustment was proper under   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



          p  r  e  v  i  o  u  s  l  y  i  m  p  o  s  e  d   b  y  t  h  e



          trial court on Count 14.  



                                II. STANDARD OF REVIEW
                                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-
                                              ___ _____________     _______



          M rquez, 36 F.3d 212,  221 (1st Cir. 1994), cert. denied,  115 S.
          _______                                     _____ ______



          Ct. 1322 (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


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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. Mu oz, 36 F.3d 1229, 1240 (1st Cir. 1994), cert.
          _____________    _____                                      _____



          denied, 115 S. Ct. 1164 (1995).   Additionally, the evidence of a
          ______



          defendant's role  in  the offense  may  be circumstantial.    See
                                                                        ___



          United  States v.  Tejada-Beltr n,  50 F.3d  105,  113 (1st  Cir.
          ______________     ______________



          1995);   United  States v.  Calder n, 935  F.2d 9,  11 (1st  Cir.
                   ______________     ________



          1991). 



                                   III. DISCUSSION
                                   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


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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    3B1.1(b)  role in  the  offense



          adjustment."  Joyce further  contends that the sentencing judge's



          construction of    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     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-M rquez,  supra.   Under    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


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participants or was otherwise extensive.  See Fontana, 50 F.3d at
                                                    ___ _______



          87;  Ovalle-M rquez, 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   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-Beltr n, 50  F.3d at  111;  United  States v.Olivier-
          ___  ______________                     ______________   ________



          D az,  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-M rquez,  36 F.3d  at  225 (citing  United  States v.
          ___  ______________                             ______________



          Rodr guez  Alvarado,  985 F.2d  15,  20  (1st Cir.  1990)(quoting
          ___________________


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United States v. Fuller,  897 F.2d 1217, 1220 (1st  Cir. 1990))).
          _____________    ______



          Furthermore,  a  three-level  adjustment   under     3B1.1(b)  is



          warranted  when  a  defendant  exercised  control  over,  or  was



          responsible for  overseeing the  actions of,  at least one  other



          criminally responsible participant.   See United States v. Smith,
                                                ___ _____________    _____



          46 F.3d  1223, 1239 (1st  Cir. 1995), cert.  denied, __  U.S. __,
                                                _____  ______



          1995  WL 437194 (October 2, 1995); Mu oz,  36 F.3d at 1240.  This
                                             _____



          control need not have been direct.  See Savoie, 985 F.2d at 616.
                                              ___ ______



                    By preponderance of the  evidence standard the totality



          of the  record unveils  defendant's  control over  others in  the



          commission  of  the crime  and  supports  the sentencing  court's



          findings that  Joyce  was  a  "manager"5 within  the  meaning  of



            3B1.1(b)6.  We explain.



                    There  is no  doubt  that  Joyce  exercised  managerial



          responsibilities "over  the metaphorical  assets of  the criminal



          organization".  Joyce badgered David J. Ryan, a paid confidential



          government informant, to obtain armored truck route sheets, guard



          uniforms,  and ninja face masks.  Joyce further planned the crime



          to need  at least three stolen vehicles, one of them a van with a



                              
          ____________________



          5  In the instant case there is sufficient evidence on the record

          to support  the  sentencing court's  specific findings  regarding

          appellant's  involvement   in  the  crime  and   to  warrant  the

          imposition of a  three-level upward enhancement.   This stands in

          sharp  contrast with the situation in United States v. Catano, 65
                                                _____________    ______

          F.3d 219, 229-31  (1st Cir. 1995)  (case remanded for  additional

          findings where sentencing court's summary findings that defendant

          was a manager  was insufficiently specific to  allow for adequate

          review).  



          6   See United States  v. Piedrahita Santiago,  931 F.2d 127, 132
              ___ _____________     ___________________

          (1st Cir. 1991).



                                         -9-



sliding door (all to be "torched" at the end of  the robbery) and



          a  group  of  at  least five  experienced,  reliable  robbers  in



          addition   to   himself   using  automatic   weapons,   including



          specifically among them,  "Uzi submachine guns".   Each of  these



          planning  criteria, as  stressed  in appellee's  brief,  actually



          occurred.7  Joyce also  scouted and discussed with Ryan  possible



          locations  for the truck robberies  and explained to  Ryan how he



          would  recruit  and arrange  for  the  participation of  others.8



          Joyce  was the mastermind of the operational plan of the robbery,



          and repeatedly executed careful planning of the same.9



                    There is further evidence on the record authorizing the



          sentencing judge to conclude that Joyce "exercised some degree of



          control over others involved  in the commission of the  crime, or



          that  he was responsible for organizing others for the purpose of



          the crime"  See Ovalle-M rquez, 35 F.3d 225 (citing United States
                      ___ ______________               ______ _____________



          v. Rodr guez Alvarado,  985 F.2d  15, 20  (1st Cir.  1990)(citing
             __________________                                      ______



          United States v. Fuller, 897 F.2d 1217, 1220 (1st Cir. 1990). 
          _____________    ______



                    On April  4, 1990,  eight months  prior to  the armored



          truck robbery, Joyce  bragged to Ryan about the fact  that he had



          available "two  clean guys",  "stand up  guys" from  Ireland with



          whom he had  previously worked  in armored truck  robberies.   On



          January 9, 1991, the date of the frustrated heist, Irish-born co-



          defendants, Patrick Nee and  McNaught, were arrested.  It  is not

                              
          ____________________



          7  See appellee's brief at p. 32.



          8  See appellee's brief at p. 35, n.45.



          9  See appellee's brief at p. 36, n.46.



                                         -10-



clearly  erroneous   to  conclude10,   based  on   Joyce's  prior



          statements of knowing two Irish  co-conspirators, that he in fact



          recruited  both Nee  and  McNaught.   The  recruitment of  a  co-



          conspirator constitutes a "managerial" function under    3B1.1(b)



          of the  Guidelines.  See United States v. Fontana, 50 F.3d 86, 87
                               ___ _____________    _______



          (1st Cir.  1995); United States  v. Rodr guez Alvarado,  985 F.2d
                            _____________     __________________



          15, 20 (1st Cir. 1993).11



                    Further evidence attesting Joyce's managerial  role can



          be found when  Joyce, on the  eve of the  armored truck  robbery,



          explained the  plan to McNaught in detail,  including his alleged



          role  in the  robbery.12   Further  attesting  to his  managerial



          status,  Joyce withheld  from  Ryan the  identities of  his other



          conspirators   and  withheld  from  the  other  conspirators  the



          existence of Ryan.



                    This is a case  wherein "the whole is greater  than the



          sum  of  its individual  parts".13   Since  we must  examine "the


____________________



          10   Evidence relating  to role  in the  offense may  be inferred

          and/or circumstantial.  See  Tejada-Beltr n at 113; United States
                                  ___  ______________         _____________

          v. Savoie  985 F.2d at 616; United States v. Calder n 935 F.2d at
             ______                   _____________    ________

          11.



          11  McNaught provided evidence to the contrary on his recruitment

          and that of  Nee, which the sentencing  court was free to  reject

          because Mc Naught's  testimony was found perjurious  by the trial

          court.  Further, no clear error exists when the court adopts  one

          of  two plausible views.  See United  States v. St. Cyr, 977 F.2d
                                    ___ ______________    _______

          at 706.



          12  See appellee's brief p. 37.



          13  See  El D a Inc. v.  Hern ndez Col n, 963 F.2d  488, 498 (1st
              ___  ___________     _______________

          Cir. 1992)(Selya, J.).



                                         -11-



whole of  defendants relevant  conduct",14 taking all  facts into



          consideration  the determination  of  the  sentencing court  that



          Joyce was a "manager" was not clearly erroneous. 



                                    IV. CONCLUSION
                                    IV. CONCLUSION
                                    ______________



                    For the  above-stated reasons, we  affirm the  district



          court's sentence. 



                    Affirmed.   
                    ________


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          14  See Savoie, 985 F.2d at 616.
              ___ ______



                                         -12-