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United States v. Sharp, 95-2040 (1996)

Court: Court of Appeals for the First Circuit Number: 95-2040 Visitors: 24
Filed: Apr. 04, 1996
Latest Update: Mar. 02, 2020
Summary: Defendant, Appellant. 3B1.1(c) for the defendant's leadership role.district court.clear error.United States v. Joyce, 70 F.3d 679, 682 (1st Cir.(evidence of role in offense may be circumstantial).
USCA1 Opinion









April 4, 1996
[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

____________________


No. 95-2040

UNITED STATES,

Appellee,

v.

JOHN W. SHARP, III,

Defendant, Appellant.


____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge] ___________________

____________________

Before

Torruella, Chief Judge, ___________
Stahl and Lynch, Circuit Judges. ______________

____________________

Philip R. Desfosses, Solomon & Desfosses, P.A. and Richard N. _____________________ ___________________________ __________
Foley on brief for appellant. _____
Deval L. Patrick, Assistant Attorney General, Dennis J. Dimsey _________________ _________________
and Lisa J. Stark, Attorneys, U.S. Department of Justice, on brief for _____________
appellee.


____________________


____________________



Per Curiam. Defendant-appellant, John W. Sharp, ___________













III, challenges the district court's imposition of a two-

level upward adjustment to his sentence for violating 18

U.S.C. 1503 (attempted obstruction of justice) and 42

U.S.C. 3631(a) (interference by force and threat of force

with housing rights). The adjustments were pursuant to

U.S.S.G. 3B1.1(c) for the defendant's leadership role.

After careful review of the parties' briefs and the record,

we find no reason to disturb the sentence imposed by the

district court.

"Absent a mistake of law, the district court's

determination of a defendant's role may be set aside only for

clear error." United States v. Luciano-Mosquera, 63 F.3d _____________ ________________

1142, 1157 (1st Cir. 1995). The determination is fact-

specific and may be based on circumstantial evidence and on a

view of the whole of the defendant's pertinent conduct.

United States v. Joyce, 70 F.3d 679, 682 (1st Cir. 1995). _____________ _____

The facts showed that the defendant was one of the

primary actors in the conceiving and carrying out of the

cross-burning, including the transport of other participants

in his vehicle and setting fire to the cross. These facts

and other record evidence support the district court's

finding that the defendant "participated in the initial idea

with regard to the cross-burning offense, that he

participated in the planning and preparation for the

commission of the offense, that he in fact actually lit the



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cross on fire," and, thus, played a leadership role in the

commission of the offense. See Joyce, 70 F.3d at 682 ___ _____

(evidence of role in offense may be circumstantial).

We need not consider the defendant's additional

claim that the leadership-role adjustment to the sentence for

violation of 18 U.S.C. 1503 was erroneous. Any error with

respect to this sentence would not have altered the

defendant's combined adjusted offense level of fourteen or

affected the sentencing range. "[W]hen correction of a

finding would not change the applicable offense level or

affect the sentencing range, any error therein would

necessarily be harmless." United States v. Bradley, 917 F.2d _____________ _______

601, 604 (1st Cir. 1990).

Affirmed. Loc. R. 27.1. ________

























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Source:  CourtListener

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