United States v. Olude ( 1995 )

USCA1 Opinion

          November 14, 1995     [NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



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          No. 95-1416





                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                                    MICHAEL OLUDE,



                                Defendant, Appellant.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                   [Hon. Nathaniel M. Gorton, U.S. District Judge]
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                                        Before



                        Selya, Cyr and Stahl, Circuit Judges.
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               Mark F. Itzkowitz on brief for appellant.
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               Donald  K. Stern,  United  States Attorney,  and Michael  J.
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          Pelgro, Assistant United States Attorney, on brief for the United
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          States.



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                    Per Curiam.  This is another in the long, grey line  of
Per Curiam.
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          sentencing appeals that trail  in the roiled wake of  the federal



          courts'  introduction   to  guideline  sentencing.     Defendant-



          appellant  Michael Olude advances a lone assignment of error.  He



          claims that he  was merely a minor participant in  the offense of



          conviction,  and that the lower court erred in refusing to reduce



          his  offense level accordingly.   See U.S.S.G.  3B1.2(b).   We do
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          not agree.



                    Absent a mistake of law   and we discern none here   we



          review a  district court's  factual findings anent  a defendant's



          role in the offense only  for clear error.  See United  States v.
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          Akitoye,  923 F.2d  221, 227  (1st Cir.  1991); United  States v.
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          Ocasio, 914 F.2d 330, 333 (1st Cir. 1990).  Although  this is not
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          an  insurmountable hurdle, it is nevertheless a daunting one.  As



          we  have  said before,  battles over  a  defendant's role  in the



          offense are fact-based and, therefore, "will almost always be won



          or lost  in the district  court."  United States  v. Graciani, 61
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          F.3d 70,  75 (1st Cir. 1995).  There  is no basis for a different



          result here.



                    We will  not belabor  the obvious.   See,  e.g., United
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          States  v.  Ruiz-Garcia,  886  F.2d  474,  477  (1st  Cir.  1989)
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          (warning, in a  sentencing appeal, that an appellate court should



          not "wast[e]  overtaxed judicial resources razing  castles in the



          air").  The appellant  had the burden of proving  his entitlement



          to a  downward role-in-the-offense  adjustment.  See  Ocasio, 914
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          F.2d at  332-33.    In  determining  whether  the  appellant  had





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          satisfied that burden, the sentencing court was not obligated  to



          accept   the   appellant's   self-interested   account   of   his



          involvement.  See United  States v. Paz-Uribe, 891 F.2d  396, 399
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          (1st  Cir.), cert. denied, 495  U.S. 951 (1990).   And, moreover,
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          even if, as appellant claims, he was merely a courier, he was not



          automatically   entitled   to   a  downward   role-in-the-offense



          adjustment.    See, e.g.,  United States  v. Lopez-Gil,  965 F.2d
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          1124, 1131 (1st Cir.), cert. denied, 113 S. Ct. 484 (1992); United
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          States v. Cepeda, 907 F.2d 11, 12 (1st Cir. 1990).
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                    We need  go no further.   Though appellant, represented



          on appeal by able counsel,  presents a somewhat sympathetic case,



          he has not  overcome the  formidable standard of  review.   After



          all, in the world  of guideline sentencing, "where there  is more



          than  one plausible  view  of the  circumstances, the  sentencing



          court's choice  among supportable alternatives cannot  be clearly



          erroneous."  United  States v. Ruiz, 905 F.2d 499,  508 (1st Cir.
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          1990).











          Affirmed.
Affirmed.
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