Elawyers Elawyers
Washington| Change

United States v. Olude, 95-1416 (1995)

Court: Court of Appeals for the First Circuit Number: 95-1416 Visitors: 6
Filed: Nov. 14, 1995
Latest Update: Mar. 02, 2020
Summary: Defendant, Appellant., _________________, Donald K. Stern, United States Attorney, and Michael J., ________________ ___________, Pelgro, Assistant United States Attorney, on brief for the United, ______, States.or lost in the district court. United States v. Ruiz, 905 F.2d 499, 508 (1st Cir.
USCA1 Opinion









November 14, 1995 [NOT FOR PUBLICATION] [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

_________________________

No. 95-1416


UNITED STATES OF AMERICA,

Appellee,

v.

MICHAEL OLUDE,

Defendant, Appellant.

_________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge] ___________________

_________________________

Before

Selya, Cyr and Stahl, Circuit Judges. ______________

_________________________

Mark F. Itzkowitz on brief for appellant. _________________
Donald K. Stern, United States Attorney, and Michael J. ________________ ___________
Pelgro, Assistant United States Attorney, on brief for the United ______
States.

_________________________



_________________________




















Per Curiam. This is another in the long, grey line of Per Curiam. __________

sentencing appeals that trail in the roiled wake of the federal

courts' introduction to guideline sentencing. Defendant-

appellant Michael Olude advances a lone assignment of error. He

claims that he was merely a minor participant in the offense of

conviction, and that the lower court erred in refusing to reduce

his offense level accordingly. See U.S.S.G. 3B1.2(b). We do ___

not agree.

Absent a mistake of law and we discern none here we

review a district court's factual findings anent a defendant's

role in the offense only for clear error. See United States v. ___ ______________

Akitoye, 923 F.2d 221, 227 (1st Cir. 1991); United States v. _______ ______________

Ocasio, 914 F.2d 330, 333 (1st Cir. 1990). Although this is not ______

an insurmountable hurdle, it is nevertheless a daunting one. As

we have said before, battles over a defendant's role in the

offense are fact-based and, therefore, "will almost always be won

or lost in the district court." United States v. Graciani, 61 _____________ ________

F.3d 70, 75 (1st Cir. 1995). There is no basis for a different

result here.

We will not belabor the obvious. See, e.g., United ___ ____ ______

States v. Ruiz-Garcia, 886 F.2d 474, 477 (1st Cir. 1989) ______ ___________

(warning, in a sentencing appeal, that an appellate court should

not "wast[e] overtaxed judicial resources razing castles in the

air"). The appellant had the burden of proving his entitlement

to a downward role-in-the-offense adjustment. See Ocasio, 914 ___ ______

F.2d at 332-33. In determining whether the appellant had


2












satisfied that burden, the sentencing court was not obligated to

accept the appellant's self-interested account of his

involvement. See United States v. Paz-Uribe, 891 F.2d 396, 399 ___ ______________ _________

(1st Cir.), cert. denied, 495 U.S. 951 (1990). And, moreover, _____ ______

even if, as appellant claims, he was merely a courier, he was not

automatically entitled to a downward role-in-the-offense

adjustment. See, e.g., United States v. Lopez-Gil, 965 F.2d ___ ____ _____________ _________

1124, 1131 (1st Cir.), cert. denied, 113 S. Ct. 484 (1992); United _____ ______ ______

States v. Cepeda, 907 F.2d 11, 12 (1st Cir. 1990). ______ ______

We need go no further. Though appellant, represented

on appeal by able counsel, presents a somewhat sympathetic case,

he has not overcome the formidable standard of review. After

all, in the world of guideline sentencing, "where there is more

than one plausible view of the circumstances, the sentencing

court's choice among supportable alternatives cannot be clearly

erroneous." United States v. Ruiz, 905 F.2d 499, 508 (1st Cir. ______________ ____

1990).





Affirmed. Affirmed. ________














3






Source:  CourtListener

Can't find what you're looking for?

Post a free question on our public forum.
Ask a Question
Search for lawyers by practice areas.
Find a Lawyer