United States v. Murray

• Court: Court of Appeals for the First Circuit
• Decided: August 28, 1996
• Docket: 96-1175
• Status: Published

Opinion

USCA1 Opinion

[NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


____________________



          No. 96-1175



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                   MICHAEL MURRAY,



                                Defendant - Appellant.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                     [Hon. William G. Young, U.S. District Judge]
                                             ___________________



                                 ____________________



                                        Before



                               Torruella, Chief Judge,
                                          ___________



                            Cyr and Lynch, Circuit Judges.
                                           ______________



                                _____________________



               Daniel J. O'Connell III for appellant.
               _______________________

               George William Vien, Assistant  United States Attorney, with
               ___________________

          whom  Donald K.  Stern, United  States Attorney  and Geoffrey  E.
                ________________                               ____________

          Hobart,  Assistant  United States  Attorney,  were  on brief  for
          ______

          appellee.


____________________



                                   August 28, 1996

                                 ____________________



Per  Curiam.  In United  States v. Catano,  65 F.3d 219
                    Per  Curiam.
                    ___________      ______________    ______



          (1st  Cir.  1995),  a case  in  which  Michael Murray  was  a co-



          appellant, we remanded his case for resentencing.   In sentencing



          him, the district  court had  enhanced his base  offense by  four



          levels pursuant  to   3B1.1(a), because it  concluded that Murray



          had an  aggravating role in  the offense  for which  he had  been



          convicted.



                    In remanding we concluded that:



                      [A]lthough the case  record may very well

                      support the four-level enhancement:

                         there is nothing in  the sentencing

                         record about  any of this.   Absent

                         explicit  findings,   it  could  be

                         overly  impetuous  for  us,  on  so

                         exiguous a predicate to jump to the

                         conclusion  that  [the  enhancement

                         requirements were met]. . . .



          Id. at 230  (quoting United  States v. McDowell,  918 F.2d  1004,
          __                   ______________    ________



          1012  n.8  (1st  Cir. 1990)).    We  thus  remanded "for  further



          articulation [by the district court] of  the reasons for imposing



          the adjustment in accordance  with 18 U.S.C.   3553(c)."   Catano
                                                                     ______



          at 230.  This important,  but limited, reason for the  remand has



          been fully complied  with by  the district court.   We  therefore



          reject appellant's present allegations in this respect.



                    Appellant's additional claim of error lacks a plausible



          factual foundation.  See  Liteky v. United States, 510  U.S. 540,
                               ___  ______    _____________



          ___, 114 S. Ct.  1147, 1155 (1994); El F nix  v. The M/Y Johanny,
                                              ________     _______________



          36 F.2d 136, 140 (1st Cir. 1994).



                    Affirmed.
                    Affirmed
                    ________


-2-