United States v. Twomey

USCA1 Opinion












[NOT FOR PUBLICATION]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
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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



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appellant did not qualify for the additional one-level

reduction was clearly erroneous.

Appellant's sentence is summarily affirmed. See Loc. R. ________ ___

27.1.













































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