[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 97-1433
UNITED STATES,
Appellee,
v.
ROBERT A. SMITH,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Selya, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lynch, Circuit Judge.
Van L. Hayhow on brief for appellant.
Sheldon Whitehouse, United States Attorney, Margaret E. Curran
and Richard W. Rose, Assistant United States Attorneys, on brief for
appellee.
October 10, 1997
Per Curiam. We have carefully reviewed the briefs of
the parties and the record on appeal, and we affirm.
Appellant Robert Smith ("Smith") challenges his sentence on
bank fraud charges. He claims the district court erred in
concluding he was an "organizer or leader" of the bank fraud
scheme, and so it erred in enhancing his sentence pursuant to
U.S.S.G. 3B1.1(a). We give the district court's findings
"due deference" and reverse only for clear error. 18 U.S.C.
3742(e); United States v. Tejada-Beltran, 50 F.3d 105, 110
(1st Cir. 1995).
No clear error was committed. The uncontroverted
evidence at sentencing showed Smith decided where to make
deposits and withdrawals and when and how much to withdraw.
He accompanied many of the recruits to the banks and took
physical possession of the money. He gave each recruit 25
per cent of the proceeds and kept the larger portion for
himself and his three co-conspirators. He recruited many of
the 29 individuals whose bank accounts were used for the
scheme. Thus, Smith exercised decision-making authority,
participated heavily in the ongoing scheme, recruited
accomplices, claimed a larger share of the fruits of the
crime (for himself and his three co-conspirators), and
exercised control and authority over the recruits. See
U.S.S.G. 3B1.1 n.4.
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Smith's counsel suggests Smith took instructions from
other participants in the scheme. But there is no evidence
in the record to support counsel's version of the facts.
Even if this evidence were present, the court still did not
commit clear error in concluding Smith was an "organizer or
leader;" ample evidence existed to satisfy the other factors
listed in the sentencing guideline commentary. The court
need not find every listed factor in order to find a
defendant was a "leader or organizer." United States v.
Preakos, 907 F.2d 7, 9 (1st Cir. 1990).
Affirmed. Loc. R. 27.1.
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