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[NOT FOR PUBLICATION]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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