70 F. 3d 679 - United States v. Joyce

Kimberly Homan, by Appointment of the Court, with whom Sheketoff & Homan, Boston, MA, 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.

TORRUELLA, Chief Judge, STAHL, Circuit Judge, and DOMINGUEZ,* District Judge.

DOMINGUEZ, District Judge.

Defendant Robert Emmett Joyce ("Joyce") challenges the imposition in his sentence of a three-level upward adjustment, pursuant to U.S.S.G. Sec. 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.

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. Sec. 371 (Count 10), attempted robbery of bank funds, in violation of 18 U.S.C. Sec. 2113(a) (Count 11), attempted obstruction of commerce by robbery, in violation of the Hobbs Act, 18 U.S.C. Sec. 1951 (Count 13), knowingly using or carrying firearms during and in relation to a crime of violence, in violation of 18 U.S.C. Sec. 924(c) (Count 14), and being felons in possession of firearms, in violation of 18 U.S.C. Sec. 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. Sec. 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).

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. Sec. 2B3.1(a), the Base Offense Level was 20; that Joyce should receive a two-level enhancement pursuant to Sec. 2B3.1(b)(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 Sec. 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. Sec. 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 Sec. 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 Sec. 3B1.1(b).4 In the agreement, Joyce reserved the right to contest the Government's position on these issues at the sentencing hearings.

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 Sec. 2B3.1(b)(6)(F) and that a three-level upward adjustment was proper under Sec. 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 previously imposed by the trial court on Count 14.

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- Marquez, 36 F.3d 212, 221 (1st Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1322, 131 L.Ed.2d 202 (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 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. Munoz, 36 F.3d 1229, 1240 (1st Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1164, 130 L.Ed.2d 1120 (1995). Additionally, the evidence of a defendant's role in the offense may be circumstantial. See United States v. Tejada-Beltran, 50 F.3d 105, 113 (1st Cir.1995); United States v. Calderon, 935 F.2d 9, 11 (1st Cir.1991).

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 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 Sec. 3B1.1(b) role in the offense adjustment." Joyce further contends that the sentencing judge's construction of Sec. 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 Sec. 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- Marquez, supra. Under Sec. 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 participants or was otherwise extensive. See Fontana, 50 F.3d at 87; Ovalle-Marquez, 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 Sec. 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-Beltran, 50 F.3d at 111; United States v. Olivier-Diaz, 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-Marquez, 36 F.3d at 225 (citing United States v. Rodriguez Alvarado, 985 F.2d 15, 20 (1st Cir.1993) (quoting United States v. Fuller, 897 F.2d 1217, 1220 (1st Cir.1990))). Furthermore, a three-level adjustment under Sec. 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. ----, 116 S.Ct. 176, 133 L.Ed.2d 116 (1995); Munoz, 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 Sec. 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 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-Marquez, 36 F.3d at 225 (citing United States v. Rodriguez 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 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 Sec. 3B1.1(b) of the Guidelines. See United States v. Fontana, 50 F.3d 86, 87 (1st Cir.1995); United States v. Rodriguez 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 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.

For the above-stated reasons, we affirm the district court's sentence.

Affirmed.