United States v. Twomey

[NOT FOR PUBLICATION] UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT No. 96-1079 UNITED STATES, Appellee, v. BARRY TWOMEY, Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Mark L. Wolf, U.S. District Judge] Before Selya, Circuit Judge, Campbell, Senior Circuit Judge, and Lynch, Circuit Judge. Diana L. Maldonado on brief for appellant. Donald K. Stern, United States Attorney, and Jeanne M. Kempthorne, Assistant United States Attorney, on brief for appellee. October 14, 1997 Per Curiam. Defendant-appellant Barry Twomey pled guilty to two counts of bank robbery, in violation of 18 U.S.C. 2113(a). In sentencing him, the district court awarded a two-level reduction in his base offense level for his acceptance of responsibility, pursuant to U.S.S.G. 3E1.1(a). The sole issue on appeal is whether the district court committed clear error in denying an additional one- level reduction under 3E1.1(b). "A defendant bears the burden of proving entitlement to decreases in the offense level, including downward adjustments for acceptance of responsibility. Once the sentencing court has ruled against him on such an issue, the defendant faces an uphill battle. . . .The clearly erroneous standard . . . guides appellate review of district court determinations under section 3E1.1(b)." United States v. Morillo, 8 F.3d 864, 871 (1st Cir. 1993). In denying the additional one-level reduction under 3E1.1(b), the court ruled that the timing of appellant's expression of his intent to plead guilty had not permitted the government to avoid preparing for trial. Specifically, the district court found that when appellant indicated his intention to plead guilty, ten days before the second scheduled trial date, the government had already made substantial submissions and prepared its witnesses. Neither that finding nor the court's determination on that basis that -2- appellant did not qualify for the additional one-level reduction was clearly erroneous. Appellant's sentence is summarily affirmed. See Loc. R. 27.1. -3-