Notice: First Circuit Local Rule 36.2(b)6 States Unpublished Opinions May Be Cited Only in Related Cases.united States, Appellee, v. Michael Murray, Defendant-appellant, 94 F.3d 640 (1st Cir. 1996)

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US Court of Appeals for the First Circuit - 94 F.3d 640 (1st Cir. 1996)

Aug. 28, 1996

Appeal from the United States District Court for the District of Massachusetts [Hon. William G. Young, U.S. District Judge]

Daniel J. O'Connell III for appellant.

George William Vien, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney and Geoffrey E. Hobart, Assistant United States Attorney, were on brief for appellee.

D. Mass.


Before TORRUELLA, Chief Judge, CYR and LYNCH, Circuit Judges.


In United States v. Catano, 65 F.3d 219 (1st Cir. 1995), a case in which Michael Murray was a co-appellant, we remanded his case for resentencing. In sentencing him, the district court had enhanced his base offense by four levels pursuant to § 3B1.1(a), because it concluded that Murray had an aggravating role in the offense for which he had been convicted.

In remanding we concluded that:

[A]lthough the case record may very well support the four-level enhancement:

there is nothing in the sentencing record about any of this. Absent explicit findings, it could be overly impetuous for us, on so exiguous a predicate to jump to the conclusion that [the enhancement requirements were met]....

Id. at 230 (quoting United States v. McDowell, 918 F.2d 1004, 1012 n. 8 (1st Cir. 1990)). We thus remanded "for further articulation [by the district court] of the reasons for imposing the adjustment in accordance with 18 U.S.C. § 3553(c)." Catano at 230. This important, but limited, reason for the remand has been fully complied with by the district court. We therefore reject appellant's present allegations in this respect.

Appellant's additional claim of error lacks a plausible factual foundation. See Liteky v. United States, 510 U.S. 540, ---, 114 S. Ct. 1147, 1155 (1994); El Fenix v. The M/Y Johanny, 36 F.2d 136, 140 (1st Cir. 1994).