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____________________
No. 96-1239
UNITED STATES,
Appellee,
v.
JOHN P. GAGLIARDI,
Defendant - Appellant.
____________________
____________________
Before
_____________________
M. Bonilla and Bourbeau & Bourbeau, Bonilla, Tocchio & Floyd, LLP
__________
__________________________________________________
on brief for appellant.
Kevin P. McGrath,
_________________
Assistant
United
States Attorney,
and
____________________
Per Curiam.
Per Curiam.
__________
of the briefs
of
counsel
and
the record
in this
case,
we affirm
affirm
______
the district
Defendant-Appellant
guilty
possess with
846,
to six counts
intent to distribute
possession with
U.S.C.
John Gagliardi
intent to
U.S.C.
853.
At
his
("Gagliardi") pled
involving conspiracy to
marijuana, under 21
U.S.C.
distribute marijuana,
under 21
sentencing
hearing,
the
government
which
the
Presentencing
pursuant to
that
the
Report
a three-level enhancement be
offense.
That
("PSR")
recommended,
The government
to
30,
also requested
to a range
sentence
of 97
corresponding
to 121 months.
months imprisonment.
The
court also
denied a
first,
that
adjustment
he
was
errors by the
improperly
pursuant to U.S.S.G.
given
sentencing court:
three-level
upward
____________________
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
-2-
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.
Gagliardi
appears
to
concede
that
four
other
men
marijuana which
he had acquired,
more participants"
-- when one
"five or
3B1.1.
as the
ample factual support in the PSR for the district court's finding
Contrary
fact
to
Gagliardi's insinuations
other persons
responsibilities does
not render
inapplicable to him.
See
___
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
________
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
44 (1st Cir.
over, or
of, at
1996) (quoting
United States v.
_____________
Savoie, 985
______
37,
F.2d
612, 616 (1st Cir. 1993)). The PSR confirms that this requirement
____________________
otherwise extensive."
-3-
was met.
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,
inference.'"
1995)).
marijuana that
evidence
Cir.
and that
may be
99 F.3d
at 45
113 (1st
supervisory control
the marijuana at
over those
in repackaging
well as from the fact that, after the four men were discovered in
In sum, there
Finally,
there
is
support
Gagliardi's
contention
consider, or
to his motion
for a downward
family circumstances.
the
that
no
facts presented
On
in
the
in
district
the
record
court
to
Gagliardi's
failed
for
eleventh hour
of unusual
appears that
memorandum,
already been
defense
counsel's
statements at
in the PSR,
the
as well as
sentencing
through
hearing.
We
-4-
further note that the district court did not abuse its discretion
in
determining
circumstances
Gagliardi's
that
--
the
the
facts
most
regarding
noteworthy
Gagliardi's
of
which
are
family
that
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
1993) (family
ties .
. .
circumstances do
not ordinarily
942, (1st
Cir.
warrant downward
972
psychologist
abused
by his
defendant and
concluded that
defendant's
biological father,
stepson, who
had unique
had been
relationship with
United States v.
______________
Johnson,
_______
964 F.2d
Affirmed.
Affirmed
________
124,
129 (2d
Cir.
1992)
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