UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-2235
UNITED STATES,
Appellee,
v.
ROBERT EMMETT JOYCE,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Torruella, Chief Judge,
Stahl, Circuit Judge,
and Dom nguez,* District Judge.
Kimberly Homan, by Appointment of the Court, with whom
Sheketoff & Homan, was on brief for appellant.
James B. Farmer, Assistant United States Attorney, with whom
Donald K. Stern, United States Attorney, was on brief for
appellee.
November 27, 1995
* Of the District of Puerto Rico, sitting by designation.
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DOMINGUEZ, District Judge. Defendant Robert Emmett
DOMINGUEZ, District Judge.
Joyce ("Joyce") challenges the imposition in his sentence of a
three-level upward adjustment, pursuant to U.S.S.G. 3B1.1(b).
Joyce seeks to have the adjustment reversed and the matter
remanded for resentencing.
We hold that the lower court's imposition of the three-
level upward adjustment, based on Joyce's role in the offense, is
warranted. Consequently, we affirm.
I. BACKGROUND
I. BACKGROUND
On January 9, 1991, Joyce and five co-defendants--
Michael C. Habicht, Michael O. McNaught, James F. Melvin, James
M. Murphy, Jr., and Patrick J. Nee--were arrested in Abington,
Massachusetts for their alleged involvement in a planned robbery
of an armored truck at the Bank of New England Branch. The
initial indictment was returned on February 7, 1991.1
Following a twenty-five day trial before Judge Mazzone,
Joyce and the five other co-defendants were convicted of
conspiracy to rob bank funds, in violation of 18 U.S.C. 371
(Count 10), attempted robbery of bank funds, in violation of 18
1 A third superseding indictment (on which the case was tried)
was returned on September 5, 1991. In addition to the Abington
offenses, the third superseding indictment charged Joyce and
Murphy with offenses arising out of the $880,000 robbery on May
31, 1989, of a Mass. Transport, Inc. armored truck making a
delivery to the Shawmut Worcester County Bank in Fitchburg,
Massachusetts. Murphy was convicted of conspiracy to rob bank
funds, in violation of 18 U.S.C. 371 (Count 3), robbery of bank
funds, in violation of 18 U.S.C. 2113(a) (Count 4), and
obstruction of commerce by robbery, in violation of the Hobbs
Act, 18 U.S.C. 1951 (Count 6). Joyce was found not guilty on
these counts.
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U.S.C. 2113(a) (Count 11), attempted obstruction of commerce by
robbery, in violation of the Hobbs Act, 18 U.S.C. 1951 (Count
13), knowingly using or carrying firearms during and in relation
to a crime of violence, in violation of 18 U.S.C. 924 (c)
(Count 14), and being felons in possession of firearms, in
violation of 18 U.S.C. 922 (g) (Count 15). On March 12, 1992,
Joyce was sentenced to a total term of incarceration of 270
months.2
All Defendants appealed their convictions and
sentences. Subsequently, all Defendants, except Murphy, filed a
motion seeking to dismiss the appeal of their conviction on Count
14 (18 U.S.C. 924(c)). We granted that motion. On April 22,
1994, we reversed the convictions of all defendants and remanded
the case for a new trial. See United States v. Melvin, 27 F.3d
703 (1st Cir. 1994). On June 22, 1994, pursuant to the
Defendants' request for clarification, we issued an opinion
clarifying that our earlier opinion, ordering reversal, did not
encompass Count 14.3 See United States v.Melvin, 27 F.3d 710
(1st Cir. 1994).
2 Joyce was sentenced to terms of 60 months on Count 10, 210
months on Counts 11 and 13, and 120 months on Count 15, all to be
served concurrently, based upon a Guideline Offense Level of 33,
Criminal History Category III. That Guidelines sentence was
followed by a mandatory term of incarceration of 60 months, on
Count 14.
3 Count 14 charged Joyce with knowingly using or carrying
firearms during and in relation to a crime of violence, in
violation of 18 U.S.C. 924 (c).
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On remand, the case was reassigned to Judge Woodlock.
Joyce and all defendants, except Murphy, entered into plea
agreements with the Government. In Joyce's plea agreement, the
parties stipulated that, pursuant to U.S.S.G. 2B3.1(a), the
Base Offense Level was 20; that Joyce should receive a two-level
enhancement pursuant to 2B3.1(a)(1), because the property which
was the object of the robbery attempt belonged to a financial
institution; and that Joyce should receive a two-level
enhancement pursuant to 3C1.1 because Joyce "willfully
testified falsely at the first trial of [the] case".
The parties also agreed that the Adjusted Offense Level
should be reduced by three levels for acceptance of
responsibility pursuant to U.S.S.G. 3E1.1(a) and (b)(2). The
agreement further stated that the Government's position at
sentencing would be that Joyce should receive a five-level
enhancement pursuant to 2B3.1(b)(6)(F) because the intended
loss from the Abington robbery attempt exceeded $1,500,000 and a
three-level enhancement for his role in the offense pursuant to
3B1.1(b).4 In the agreement, Joyce reserved the right to
contest the Government's position on these issues at the
sentencing hearings.
4 Under the plea agreement, the Government contended at
Sentencing that Joyce's Adjusted Offense Level should be 29,
Criminal History Category III, with a guideline sentencing range
of 108-135 months, in addition to the 60 month sentence
previously imposed by the trial court on Count 14. Both parties
agreed that the 60 month sentence previously imposed on Count 14
was to be served consecutively with the newly imposed sentence on
Counts 10, 11, 13, and 15.
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Consistent with the plea agreement, Joyce entered a
guilty plea. The sentencing judge held two hearings on the
contested guidelines issues of amount of intended loss and
Joyce's role in the offense. The court found that a five-level
upward adjustment was warranted under 2B3.1 (b)(6)(F) and that
a three-level upward adjustment was proper under 3B1.1(b). The
resulting calculation led to a total offense level of 29, with a
sentencing range of 108-135 months' incarceration. The
sentencing judge imposed a sentence of 108 months on Counts 11,
13, and 15, to be served concurrently with a 60 month sentence
imposed on Count 10, followed by the consecutive 60 month term
p r e v i o u s l y i m p o s e d b y t h e
trial court on Count 14.
II. STANDARD OF REVIEW
II. STANDARD OF REVIEW
In reviewing a district court's application of a
sentencing guideline, we utilize a bifurcated process. First, we
review de novo the guideline's legal meaning and scope. See
United States v. Fontana, 50 F.3d 86, 87 (1st Cir. 1995).
Second, we review the district court's factfinding for clear
error and give due deference to the district court's application
of the guidelines to the facts. See United States v. Ovalle-
M rquez, 36 F.3d 212, 221 (1st Cir. 1994), cert. denied, 115 S.
Ct. 1322 (1995). The determination of the defendant's role in an
offense is fact-specific. See United States v. Graciani, 61
F.3d 70, 75 (1st Cir. 1995). We are therefore deferential to the
sentencing court's views and review the determinations made only
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for clear error. See United States v. Rostoff, 53 F.3d 398, 413
(1st Cir. 1995). Any credibility assessment made at sentencing
falls within the province of the district court, and it should be
respected on appeal unless it is clearly erroneous. See United
States v. Webster, 54 F.3d 1, 5 (1st Cir. 1995). If there are
two plausible views of the record, the sentencing court's
adoption of one of the views will not constitute clear error.
See United States v. St. Cyr, 977 F.2d 698, 706 (1st Cir. 1992).
In making a determination on a defendant's role in the offense,
the sentencing court may look beyond the count of conviction to
the whole of the defendant's pertinent conduct. See United
States v. Savoie, 985 F.2d 612, 615 (1st Cir. 1993).
Furthermore, the Government need only prove by a preponderance of
the evidence that an upward adjustment was warranted. See
United States v. Mu oz, 36 F.3d 1229, 1240 (1st Cir. 1994), cert.
denied, 115 S. Ct. 1164 (1995). Additionally, the evidence of a
defendant's role in the offense may be circumstantial. See
United States v. Tejada-Beltr n, 50 F.3d 105, 113 (1st Cir.
1995); United States v. Calder n, 935 F.2d 9, 11 (1st Cir.
1991).
III. DISCUSSION
III. DISCUSSION
Joyce claims that the three-level upward adjustment for
his role in the offense was clearly erroneous. He alleges that
"the sentencing judge in this case did not find that Joyce
exercised the requisite management control over his co-
participants. Instead, he (the sentencing judge) indicated that
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such a finding was unnecessary and that Joyce's exercise of
management responsibility 'over the metaphorical assets of the
criminal organization,' Tr. 11/3/94 at 6, would suffice to
justify the imposition of a 3B1.1(b) role in the offense
adjustment." Joyce further contends that the sentencing judge's
construction of 3B1.1 was incorrect as a matter of law, that
the sentencing judge failed to make findings evidencing Joyce's
control over any of his co-participants, and further that such a
finding could not be made based upon the evidence before him.
The Government asserts that the record provides ample
support for the sentencing judge's findings that Joyce was a
"manager." The Government argues that our most recent
pronouncements make it clear that a role in the offense
sentencing enhancement under 3B1.1. does not necessarily
require a finding that the defendant "controlled" one or more
other participants in the criminal venture. The Government
further argues that the law permits the enhancement when a
defendant's organizational claims and activities place him in a
position of particular responsibility.
We review this upward adjustment for clear error. See
Ovalle-M rquez, supra. Under 3B1.1(b) a three-level upward
adjustment for a defendant s role in the offense is justified
when the district court makes both a status determination that
the defendant was a manager or supervisor of a criminal activity
(but not an "organizer or leader") and a scope determination that
the defendant's criminal activity involved five or more
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participants or was otherwise extensive. See Fontana, 50 F.3d at
87; Ovalle-M rquez, 36 F.3d at 225. We note that Joyce did not
question at the sentencing hearings nor on this appeal that "the
criminal activity involved five or more participants, or was
otherwise extensive."
The Application Note 4 of 3B1.1 lists the following
factors relevant to the determination of a defendant's role in
the offense:
the exercise of decision making
authority, the nature of the
participation in the commission of the
offense, the recruitment of accomplices,
the claimed right to a larger share of
the fruits of the crime, the degree of
participation in planning or organizing
the offense, the nature and scope of the
illegal activity, and the degree of
control and authority exercised over
others.
See Tejada-Beltr n, 50 F.3d at 111; United States v.Olivier-
D az, 13 F.3d 1, 4 (1st Cir. 1993). While these factors do not
have "talismanic significance," they do serve as useful
guideposts for determining Joyce's role. See United States v.
Talladino, 38 F.3d 1255, 1260 (1st Cir. 1994).
The terms "manager" and "supervisor" are not defined in
the guidelines. A court may find a defendant to be a manager or
supervisor when he "exercised some degree of control over others
involved in the commission of the crime or he [was] responsible
for organizing others for the purpose of carrying out the crime."
See Ovalle-M rquez, 36 F.3d at 225 (citing United States v.
Rodr guez Alvarado, 985 F.2d 15, 20 (1st Cir. 1990)(quoting
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United States v. Fuller, 897 F.2d 1217, 1220 (1st Cir. 1990))).
Furthermore, a three-level adjustment under 3B1.1(b) is
warranted when a defendant exercised control over, or was
responsible for overseeing the actions of, at least one other
criminally responsible participant. See United States v. Smith,
46 F.3d 1223, 1239 (1st Cir. 1995), cert. denied, U.S. ,
1995 WL 437194 (October 2, 1995); Mu oz, 36 F.3d at 1240. This
control need not have been direct. See Savoie, 985 F.2d at 616.
By preponderance of the evidence standard the totality
of the record unveils defendant's control over others in the
commission of the crime and supports the sentencing court's
findings that Joyce was a "manager"5 within the meaning of
3B1.1(b)6. We explain.
There is no doubt that Joyce exercised managerial
responsibilities "over the metaphorical assets of the criminal
organization". Joyce badgered David J. Ryan, a paid confidential
government informant, to obtain armored truck route sheets, guard
uniforms, and ninja face masks. Joyce further planned the crime
to need at least three stolen vehicles, one of them a van with a
5 In the instant case there is sufficient evidence on the record
to support the sentencing court's specific findings regarding
appellant's involvement in the crime and to warrant the
imposition of a three-level upward enhancement. This stands in
sharp contrast with the situation in United States v. Catano, 65
F.3d 219, 229-31 (1st Cir. 1995) (case remanded for additional
findings where sentencing court's summary findings that defendant
was a manager was insufficiently specific to allow for adequate
review).
6 See United States v. Piedrahita Santiago, 931 F.2d 127, 132
(1st Cir. 1991).
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sliding door (all to be "torched" at the end of the robbery) and
a group of at least five experienced, reliable robbers in
addition to himself using automatic weapons, including
specifically among them, "Uzi submachine guns". Each of these
planning criteria, as stressed in appellee's brief, actually
occurred.7 Joyce also scouted and discussed with Ryan possible
locations for the truck robberies and explained to Ryan how he
would recruit and arrange for the participation of others.8
Joyce was the mastermind of the operational plan of the robbery,
and repeatedly executed careful planning of the same.9
There is further evidence on the record authorizing the
sentencing judge to conclude that Joyce "exercised some degree of
control over others involved in the commission of the crime, or
that he was responsible for organizing others for the purpose of
the crime" See Ovalle-M rquez, 35 F.3d 225 (citing United States
v. Rodr guez Alvarado, 985 F.2d 15, 20 (1st Cir. 1990)(citing
United States v. Fuller, 897 F.2d 1217, 1220 (1st Cir. 1990).
On April 4, 1990, eight months prior to the armored
truck robbery, Joyce bragged to Ryan about the fact that he had
available "two clean guys", "stand up guys" from Ireland with
whom he had previously worked in armored truck robberies. On
January 9, 1991, the date of the frustrated heist, Irish-born co-
defendants, Patrick Nee and McNaught, were arrested. It is not
7 See appellee's brief at p. 32.
8 See appellee's brief at p. 35, n.45.
9 See appellee's brief at p. 36, n.46.
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clearly erroneous to conclude10, based on Joyce's prior
statements of knowing two Irish co-conspirators, that he in fact
recruited both Nee and McNaught. The recruitment of a co-
conspirator constitutes a "managerial" function under 3B1.1(b)
of the Guidelines. See United States v. Fontana, 50 F.3d 86, 87
(1st Cir. 1995); United States v. Rodr guez Alvarado, 985 F.2d
15, 20 (1st Cir. 1993).11
Further evidence attesting Joyce's managerial role can
be found when Joyce, on the eve of the armored truck robbery,
explained the plan to McNaught in detail, including his alleged
role in the robbery.12 Further attesting to his managerial
status, Joyce withheld from Ryan the identities of his other
conspirators and withheld from the other conspirators the
existence of Ryan.
This is a case wherein "the whole is greater than the
sum of its individual parts".13 Since we must examine "the
10 Evidence relating to role in the offense may be inferred
and/or circumstantial. See Tejada-Beltr n at 113; United States
v. Savoie 985 F.2d at 616; United States v. Calder n 935 F.2d at
11.
11 McNaught provided evidence to the contrary on his recruitment
and that of Nee, which the sentencing court was free to reject
because Mc Naught's testimony was found perjurious by the trial
court. Further, no clear error exists when the court adopts one
of two plausible views. See United States v. St. Cyr, 977 F.2d
at 706.
12 See appellee's brief p. 37.
13 See El D a Inc. v. Hern ndez Col n, 963 F.2d 488, 498 (1st
Cir. 1992)(Selya, J.).
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whole of defendants relevant conduct",14 taking all facts into
consideration the determination of the sentencing court that
Joyce was a "manager" was not clearly erroneous.
IV. CONCLUSION
IV. CONCLUSION
For the above-stated reasons, we affirm the district
court's sentence.
Affirmed.
14 See Savoie, 985 F.2d at 616.
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