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[NOT FOR PUBLICATION]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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