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USCA1 Opinion

[NOT FOR PUBLICATION]

United States Court of Appeals


For the First Circuit

____________________

No. 96-1239

UNITED STATES,

Appellee,

v.

JOHN P. GAGLIARDI,

Defendant - Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Judge]


___________________

____________________

Before

Torruella, Chief Judge,


___________

Bownes, Senior Circuit Judge,


____________________

and Lynch, Circuit Judge.


_____________

_____________________

Michael C. Bourbeau, by appointment of


____________________

the court, Victoria


________

M. Bonilla and Bourbeau & Bourbeau, Bonilla, Tocchio & Floyd, LLP
__________
__________________________________________________
on brief for appellant.
Kevin P. McGrath,
_________________

Assistant

United

States Attorney,

and

Donald K. Stern, United States Attorney, on brief for appellee.


_______________

____________________

June 25, 1997


____________________

Per Curiam.
Per Curiam.
__________

Upon due consideration

of the briefs

of

counsel

and

the record

in this

case,

we affirm
affirm
______

the district

court's sentencing determination.

Defendant-Appellant

guilty

on April 26, 1995

possess with

846,

to six counts

intent to distribute

possession with

U.S.C.

John Gagliardi

intent to

841(a), and liability

U.S.C.

853.

At

his

("Gagliardi") pled

involving conspiracy to

marijuana, under 21

U.S.C.

distribute marijuana,

under 21

for criminal forfeiture, under 21

sentencing

hearing,

the

government

requested that Gagliardi's base offense level be reduced from 32,

which

the

Presentencing

pursuant to

that

the

Report

the plea agreement.

a three-level enhancement be

offense.

That

("PSR")

recommended,

The government

to

30,

also requested

added for Gagliardi's role in

upward adjustment was

made, and ultimately,

his total offense level

to a range

was determined to be 30,1

under the Sentencing Guidelines of 97

The government recommended, and

sentence

of 97

corresponding

to 121 months.

the sentencing court approved, a

months imprisonment.

The

court also

denied a

motion for downward departure.

Gagliardi alleges two

first,

that

adjustment

he

was

errors by the

improperly

pursuant to U.S.S.G.

given

sentencing court:

three-level

upward

3B1.1(b)2 for being a manager

____________________

Gagliardi

pursuant

to

received a three-level
U.S.S.G.

decrease in

3E1.1(b)(2)

for

offense level

timely acceptance

of

responsibility.

Sentencing

increase if
the

Guideline

3B1.1(b)

mandates

three-level

"the defendant was a manager or supervisor . . . and

criminal activity involved five

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or more participants or was

or

supervisor

participants;

consider facts

under

in a

criminal

and second,

activity involving

that the

relevant to his

U.S.S.G.

5K2.0 based

five

sentencing court

motion for a

on unusual

or more

failed to

downward departure

family circumstances.

Both allegations are without merit.

Gagliardi

appears

assisted in the storage

to

concede

that

and re-packaging of the

four

other

men

marijuana which

he had acquired,

thereby satisfying the requirement of

more participants"

-- when one

"five or

counts Gagliardi himself

fifth participant -- under U.S.S.G.

3B1.1.

as the

Moreover, there was

ample factual support in the PSR for the district court's finding

that Gagliardi was a "manager or supervisor."

Contrary

fact

to

that there were

Gagliardi's insinuations

other persons

responsibilities does

not render

inapplicable to him.

See
___

770, 777 (1st Cir. 1997)

of a criminal scheme to

the

well-established

section

3B1.1 requires

who had

the section

United States v.
_____________

on

appeal, the

greater managerial

3B1.1 enhancement

Goldberg, 105
________

("[A] defendant need not be at

be a manager or supervisor.").

standard

only

for

upward

that there

be

adjustments

F.3d

the top

Indeed,

under

"'evidence that

defendant, in

committing the

was otherwise

responsible for

least one other person.'"

44 (1st Cir.

crime, exercised control

over, or

overseeing the activities

of, at

United States v. Voccola, 99 F.3d


_____________
_______

1996) (quoting

United States v.
_____________

Savoie, 985
______

37,

F.2d

612, 616 (1st Cir. 1993)). The PSR confirms that this requirement
____________________

otherwise extensive."

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was met.

It states, for example, that

Gagliardi directed a co-

conspirator to bring large amounts of money he needed to purchase

marijuana

in Arizona,

conspirator

to

find

repackaging the

related to

probative

"'by fair

Gagliardi directed

suitable

role in

location

for

he had purchased.

another co-

storing

See Voccola,
___ _______

and

Furthermore,

the offense determinations

inference.'"

(quoting United States


_____________

1995)).

marijuana that

evidence

Cir.

and that

may be

99 F.3d

v. Tejada-Beltr n, 50 F.3d 105,


______________

at 45

113 (1st

In this case, one can reasonably infer Gagliardi's

supervisory control

the marijuana at

over those

who were engaged

the storage location (an

in repackaging

airplane hangar) from

Gagliardi's responsibility for arranging the storage location, as

well as from the fact that, after the four men were discovered in

the hangar, they drove away and called Gagliardi.

In sum, there

is no basis for finding any error in the district court's role in

the offense determination, clear or otherwise.

Finally,

there

is

support

Gagliardi's

contention

consider, or

prevented Gagliardi from

to his motion

for a downward

family circumstances.

the

that

no

facts presented

On

in

the

in

district

the

record

court

to

producing, facts relevant

departure on the basis

review of the record, it

Gagliardi's

failed

for

eleventh hour

of unusual

appears that

memorandum,

which Gagliardi claims the district court improperly ignored, had

already been

substantially brought to the court's attention in a

previous sentencing memorandum,

defense

counsel's

statements at

in the PSR,

the

as well as

sentencing

through

hearing.

We

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further note that the district court did not abuse its discretion

in

determining

circumstances

Gagliardi's

that

--

the

the

facts

most

regarding

noteworthy

youngest daughter has

Gagliardi's

of

which

are

family

that

an attention deficit disorder

and that her mother is being treated for breast cancer -- are not

of

a kind so extraordinary

as to warrant

a downward departure.

See
___

U.S.S.G.

5H1.6 ("Family

relevant."); United States v.


______________

1993) (family

ties .

. .

are not ordinarily

Rivera, 994 F.2d


______

circumstances do

not ordinarily

departure); compare United States v. Sclamo,


_______ ______________
______

942, (1st

Cir.

warrant downward

997 F.2d 970,

972

(1st Cir. 1993) (affirming downward departure for defendant where

psychologist

abused

by his

defendant and

concluded that

defendant's

biological father,

stepson, who

had unique

had been

relationship with

needed defendant's presence to continue recovery);

United States v.
______________

Johnson,
_______

964 F.2d

(affirming downward departure where

to four very young children).

Affirmed.
Affirmed
________

124,

129 (2d

Cir.

1992)

defendant was sole caregiver

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