United States v. Twomey ( 1997 )

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                                [NOT FOR PUBLICATION]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

                                 ____________________

































                 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







                                         -2-



























            appellant  did  not  qualify  for  the  additional  one-level



            reduction was clearly erroneous.



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



            27.1.



























































































                                         -3-