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[NOT FOR PUBLICATION]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
_______

Foley on brief for appellant.

_____
Deval L. Patrick, Assistant
_________________

Attorney General,

Dennis J. Dim
______________

and Lisa J. Stark, Attorneys, U.S. Department of Justice, on brief

_____________

appellee.

____________________

____________________

Per Curiam.
___________

III,

challenges the

Defendant-appellant, John

district court's

W. Sharp,

imposition of

a two-

level

upward adjustment

U.S.C.

1503 (attempted

U.S.C.

with

U.S.S.G.

we

his sentence

obstruction

of

3631(a) (interference by force and

housing

After

to

rights).

3B1.1(c)

The

for

the

careful review of the

find no

reason to

adjustments

for violating

18

justice) and

42

threat of force

were pursuant

defendant's leadership

to

role.

parties' briefs and the record,

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."

1142,

1157

United States
_____________

(1st Cir.

1995).

v. Luciano-Mosquera,
________________

The

determination

63 F.3d

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

primary actors

in the

cross-burning,

including the transport of other participants

in

and

his vehicle and

other

record

conceiving and

setting fire to the

evidence

finding that the defendant

with

regard

participated

to

in

carrying

one of the

the

the

support

the

the

These facts

district

court's

"participated in the initial idea

cross-burning

planning

commission of the offense,

cross.

out of

and

offense,

that

he

preparation

for

the

that he in fact actually

-3-

lit the

cross

on fire," and, thus,

commission

of

the

played a leadership

offense.

See
___

Joyce,
_____

70

role in the

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.

respect

to

this

1503 was

sentence

would

erroneous.

not

have

Any error with

altered

the

defendant's combined adjusted

affected

finding

affect

the

sentencing range.

would not

the

offense level

change

sentencing

necessarily be harmless."

the applicable

range,

any

error

or

correction of

offense level

therein

or

would

United States v. Bradley, 917 F.2d

_____________
_______

601, 604 (1st Cir. 1990).

Affirmed.
________

"[W]hen

of fourteen

Loc. R. 27.1.

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