text:
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Guy Morrison Bryan
Born Jan. 12, 1821, at Herculaneum, MO.
Moved to Texas in 1831,
Died at Austin, Texas,
Laura Harrison Jack
Wife of Guy Morrison Brayn
Born Jan. 13, 1839,
in Brazoria Co., Tex.
Died January 1, 1872,
at Galveston, Tex.
Full Name: Guy Morrison Bryan
Location: Section:Republic Hill, Section 1 (C1)
Row:J Number:19
Reason for Eligibility: Republic of Texas Veteran; Member and Speaker, Texas House of Representatives; Member and President Pro Tempore, Texas Senate; Member, United States Congress
Birth Date: January 12, 1821
BRYAN, GUY MORRISON (1821-1901) Guy Morrison Bryan, legislator, Confederate officer, and judge, son of James and Emily Austin Bryan, was born at Herculaneum, Jefferson County, Missouri, on January 12, 1821. His mother was the sister of Stephen F. Austin. James Bryan died in 1822, and Emily married James F. Perry in 1824. In 1831 the family moved to Texas and lived at San Felipe and at Pleasant Bayou until December 1832, when they located at Peach Point Plantation in Brazoria County.
Bryan was boarding with Josiah H. Bell to attend a school taught by Thomas J. Pilgrim in March 1836, when he was selected as a courier to carry the William B. Travis letter written at the Alamo from Bell's Landing to Brazoria and Velasco. Bryan accompanied his mother on the Runaway Scrape and after her return home visited the battlefield at San Jacinto and enlisted in the Texas army as orderly for Alexander Somervell. Bryan attended school at Chocolate Bayou in 1836 and 1837 and in May 1837 entered Kenyon College, where he graduated in 1842. He returned to Texas and studied law in the Brazoria law office of William H. Jack until failing eyesight ended his law studies.
Soon after the outbreak of the Mexican War, Bryan enlisted in a Brazoria volunteer company and was in service under John C. (Jack) Hays east of the Rio Grande until he had to return home with his brother, Stephen S. Perry, who had become ill. In 1847 Bryan was elected to the Texas legislature. He served six years in the House (1847-53) and four years in the Senate (1853-57). On October 20, 1858, he married Laura H. Jack, daughter of William H. Jack. She accompanied him to Washington, D.C., where he represented the Western District of Texas in the Thirty-fifth Congress, 1857-59. His testimony before the House probably caused the collapse of the impeachment case against John C. Watrous.
Bryan moved to Galveston in 1860 and operated ranches in Galveston and Brazoria counties. He was a delegate to the Democratic National Convention at Charleston, South Carolina, in 1860, and as chairman and spokesman for the delegation led in the split from the convention. A leader in the movement for secession, Bryan associated himself with Oran M. Roberts. George M. Flournoy, John F. Marshall, and Williamson S. Oldham in calling for the election of delegates to the Secession Convention. During the Civil War, early in 1862, Jefferson Davis sent Bryan to visit the governors of the Trans-Mississippi Department to reconcile the clash between civil and military authorities. When Bryan requested active field duty in May 1863, General Edmund Kirby Smith made him confidential adjutant general.
Later Bryan helped organize the Texas Cotton Bureau. He was offered a place on Davis's staff and was later appointed by Pendleton Murrah as Texas representative at the headquarters of the Trans-Mississippi Department. After the war, Bryan lived at Galveston except for a time spent in Hot Springs, Arkansas. He was elected to the Texas House of Representatives in 1873, 1879, and 1887, serving as speaker of the Fourteenth Legislature in 1874. In May 1873 he was a charter member of the Texas Veterans Association and from 1892 until his death served as its president. He was also a charter member and vice president of the Texas State Historical Association. He moved to Austin in 1898 and died there on June 4, 1901. He was buried in the State Cemetery.
BIBLIOGRAPHY: John Adriance Papers, Barker Texas History Center, University of Texas at Austin. Guy Morrison Bryan Papers, Barker Texas History Center, University of Texas at Austin. Moses Austin Bryan Papers, Barker Texas History Center, University of Texas at Austin. George P. Garrison, "Guy Morrison Bryan," Quarterly of the Texas State Historical Association 5 (October 1901). James Franklin and Stephen Samuel Perry Papers, Barker Texas History Center, University of Texas at Austin. Fannie B. Sholars, Life and Services of Guy M. Bryan (M.A. thesis, University of Texas, 1930). Vertical Files, Barker Texas History Center, University of Texas at Austin. E. W. Winkler, ed., "The Bryan-Hayes Correspondence," Southwestern Historical Quarterly 25 (October 1921-April 1922).
Handbook of Texas Online, s.v. "BRYAN, GUY MORRISON," http://www.tsha.utexas.edu/handbook/online/articles/BB/fbram.html (accessed September 17, 2005).
#8994) Served in the State Senate from 1853-57. Served in the House from 1847-1853, 1873, 1879, and 1887.
Entered by Administrator on 2/1/1998 12:11:40 PM
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text:
Posted on July 27, 2017 by Brian Cronin
Were Tom and Jerry Inspired By….Tom and Jerry?!
Here is the latest in a series of examinations into urban legends about movies and whether they are true or false. Click here to view an archive of the Movie urban legends featured so far.
MOVIE LEGEND: Tom and Jerry were named after a cartoon featuring human characters named Tom and Jerry that Tom and Jerry co-creator, Joe Barbera, had worked on earlier.
Created for MGM in 1940 (well, technically 1941, as you'll see later on in this story), the Tom and Jerry characters were William Hanna and Joe Barbera's first huge hit working together, as they worked on the cartoons (which aired as film shorts) for nearly 20 years, picking up a pile of Academy Awards for their work. MGM eventually decided that it was cheaper to just re-air old cartoons than make new ones, so they shut down their entire cartoon division.
Luckily, Hanna and Barbera then teamed up to form a cartoon studio that made cartoons for television and, well, I think you know how well THAT turned out.
In any event, my friend Chris N. wrote to me to ask if Tom and Jerry were inspired by an old 1930s cartoon duo, a human team who were ALSO called Tom and Jerry!
Created by Amadee J. Van Beuren's New York studio, Joe Barbera even WORKED for Van Beueren it the early 1930s (after the original Tom and Jerry cartoons had debuted, though)! So, is there a connection?
Oddly enough, it doesn't appear to be one, no.
Tom and Jerry is credited as being introduced in 1940, but in reality, the 1940 story that introduced the characters, "Puss Gets the Boot," technically starred two OTHER characters, Jasper and Jinx, who had slightly different designs…
MGM originally did not like Hanna and Barbera's idea of doing another cat and mouse cartoon right after "Puss Gets the Boot" (which was nominated for an Academy Award), but they eventually let the pair go with their idea to do more stories featuring the characters. However, now that they were going to be a regular thing, Hanna and Barbera wanted to both tweak their design and come up with a new name for the pair. So they had a contest with the animators at MGM to name the pair.
Animator Jack Carr won the contest. He suggested "Tom and Jerry," Tom and Jerry were characters in an old Pierre Egan play, but by the 20th Century, they had become much more familiar as both the name of a drink (a Christmastime drink involving eggnog, rum and brandy – also devised by Egan) and as the slang term people used to describe British and German soldiers (Tom and Jerry, respectively) during World War I. So the phrase was a common one, and when you add in the double meaning of "tomcat," it just made sense. Hanna and Barbera weren't thrilled with naming their characters after a phrase then most popular as being a drink name, but they went with it, and obviously the cartoon ended up taking over the name (by the way, when the original Tom and Jerry cartoon aired on TV years later, they obviously had to change their names, so they went with Dick and Harry).
So there does not appear to be any connection to the original Tom and Jerry cartoon, so I'm going with the legend as…
STATUS: False
Thanks to Chris for the question!
Feel free (heck, I implore you!) to write in with your suggestions for future installments! My e-mail address is bcronin@legendsrevealed.com.
Was Hanna-Barbera's Fonz and the Happy Days Gang Originally a Doctor Who Cartoon Series?
In "TV Legends Revealed"
Was Mumbly Invented to Replace Muttley in the Laff-A-lympics?
Was the Animated Series Wacky Races Originally Intended for a Live Action Game Show?
CategoriesMovie Legends Revealed TagsAmadee Van Beuren, Hanna-Barbera, Jack Carr, Joe Barbera, MGM, tom and jerry, William Hanna
Previous PostPrevious Were Gary Cooper's Batting Scenes Reversed in Pride of the Yankees?
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redpajama_set_name: RedPajamaCommonCrawl


WordPress Change the Order of Admin Menu Items is useful, when your client asks to rearrange the menu items. Its useful certain situations to avoid confusions and sometimes takes time to find the options for new users and non technical peoples. So changing the order based on the project requirement helps to added advantage.
The following function will help you to rearrange the order of the admin menu items.
now, you can add your array to change the order of the admin menu items. Example here I just changed two menu orders.
The above one will help you to place the order of index.php(Dashboard, Themes, Plugins).
Likewise you can change your desired order, even custom menu items too.


The tally is finally in! Nameberry, an extensive name database created by experts and authors Pamela Redmond Satran and Linda Rosenkrantz, has released its top trending 100 boys' and girls' names of 2015 so far. Nameberry gathered this data based which names were searched the most of the 50,000 it has descriptions of on its site.
The long-time top boys name, Asher, was finally beaten this year by Atticus, a reference to the brave father willing to fight for what's right from Harper Lee's inconic novel To Kill a Mockingbird. It's a Latin name that means a person from the region surrounding Athens. The name's victory might be short-lived, however, based on the recent uproar over Harper Lee making Atticus Finch a considerably less likeable character in her newest book.
And the top girls' name is no suprise. It's Charlotte, whose search volume skyrocketed after Prince William and Kate Middleton announced the name of their second child and first daughter. Princess Charlotte was born in May 2015, so the Cambridges and little Charlotte must be incredibly popular to have dethroned Amelia to the number two spot in just a couple of months. The name Charlotte has French and English origins and is the female version of Charles.
Now, you can go ahead and use this list for inspiration—or as a warning for names to avoid, depending on your taste.


text:
package bl.common;

import java.util.List;
import java.util.Map;
import java.util.Set;

public interface BusinessInterface<F extends BeanContext, L extends BeanContext> {

    /**
     * Construct a Leaf bean of the appropriate type.
     */
    public L constructLeafBean();

    /**
     * Business method to create a new Leaf.
     *
     * @param ctx
     *            The request context.
     * @return The result of the business operation.
     */
    public BusinessResult createLeaf(L genLeafBean);

    /**
     * Business method to get a Leaf with string UID type.
     *
     * @param ctx
     *            The request context.
     * @return The result of the business operation.
     */
    public BusinessResult getLeaf(String objectId);

    /**
     * Business method to get a Leaf with string UID type.
     *
     * @param ctx
     *            The request context.
     * @return The result of the business operation.
     */
    public BusinessResult getLeafByName(String name);

    /**
     * Business method to delete a Leaf.
     *
     * @param ctx
     *            The request context.
     * @return The result of the business operation.
     */
    public BusinessResult deleteLeaf(String objectId);

    /**
     * Business method to update a Leaf.
     *
     * @param ctx
     *            The request context.
     * @return The result of the business operation.
     */
    public BusinessResult updateLeaf(L origBean, L newBean);

    /**
     * Business method to get all of the Leaves in the system.
     *
     * @param ctx
     *            The request context.
     * @return The result of the business operation.
     */
    public BusinessResult getAllLeaves();

    public List<L> queryDataByCondition(Map<String,String> filter, Set<String> sorted);

    public abstract List<L> queryDataByCondition(Map<String,String> filter, Set<String> sorted, SpecPaginationContext spc);

    public abstract void deleteByCondition(Map<String,String> filter);

}

redpajama_set_name: RedPajamaGithub


Good Morning! Today is my last post for the Twisted Tuesday design team. I have decided to step down and I wanted to take a moment to say thank you to Melina and the other DT members for having me. It was truly a pleasure and I had such a great time visiting new blogs and leaving comments for everyone! Melina, I wish you the best with your Twisted Tuesday challenge blog!
This week's Twisted Tuesday challenge needs be a tag or have a tag on it and the twist is to show something that makes you smile. It can be a favorite stamp, embellishments, something crafty you received as a gift, etc. Be sure to post what it is that makes you smile.
What makes me smile...?? Well, I decided to use one of my very favorite stamp sets, Lovely As a Tree and I just love a fresh coat of snow and how pretty it makes everything look so I decided that my card needed to have lots of snow. Now if we'd only get some snow here for Christmas!
I stamped the tree image onto my background and then again onto my tag. I masked off the snowy areas so that they would remain white and I sponged my background using night of navy ink and I sponged heavier around the edges and lighter towards the center.
I made the tag by cutting a strip of card stock and inserting the top portion through my large tag punch and simply punched to top design. My night of navy layer was cut 1/8" larger and since I don't have a tag punch that's 1/8" larger I simply trimmed the top design by hand. Then I punched a hole at the top of my tag and I threaded some silver cording through and tied it off. You could easily use ribbon here instead.
And what's a snowy card without any glitter, right? So I decided to add lots of glitter! I simply swiped my 2 way glue pen all over the snow and sprinkled dazzling diamonds all over....easy peasy!
Well, I'm off to bake some Christmas cookies! Thank you so much for stopping by! Have a great day!
Patty, this card is amazing looking and in creativity. I will miss seeing your challenge cards. Great job this round!
Absolutely love this project and it surely made me smile. A big one in fact. Love the haloing of the sponging and the layer of the tag over top. I think I'd be tempted to Dotto the tag on so it could be removed and used as a bookmark by the recipient. Although the books might not appreciate the glitter! LOL.
Thanks Patty for sharing this and the details on how it was made. It's going into the CASE file for sure.
I just love this card! The eye appeal draws me in.
Ohhhhh Patty this is so beautiful! Merry Christmas to you and your family!
Patty, I do think this is one of my favorites of all the cards you've made and you've made a lot of fantasic ones! Lovely As a Tree is one of my favorite stamp sets and the way you used the tag is ingenious!


I have data coming form a database which contains bulleted information along with table data. I need to merge the first row of data with the bullets and other strings in a praticular order and am having trouble getting the desired result... Sample XML and the desired out put are below, along with XSL I am currently using, which is close but falling short.


text:
Q: What is an example of a connected subset of $\mathbb{R}^2$ where the interior is not connected? In $\mathbb{R}^2$ with the usual metric, could this be an open disk, e.g. $ \{(x,y) : x^2 + y^2 \le 2\}$?
Thanks in advance!

A: Two disks a unit apart, joined by a line. The line disappears when you take the interior.

redpajama_set_name: RedPajamaStackExchange


text:
Q: AmCharts Map Disable Rollover Color on Mouseover I've checked the documentation but I cannot find it... how can I disable the rollover color on AmCharts Map on mouseover? Basically disable the change of color of map (for example, a state on US map). I don't want any mouseover interactivity or change of color. Thanks.
var map = AmCharts.makeChart("propertiesMap", {

"type": "map",
"listeners": [{
  "event": "mouseover",
  "method": removeListener
  }],
"dragMap": false,
"theme": "light",
"colorSteps": 5,
"mouseEnabled": false,
"selectable": false,
"zoomOnDoubleClick": false,
"dataLoader": {
    "url": "https://s3-us-west-2.amazonaws.com/s.cdpn.io/t-160/22422.json",
    format: "json",
    "areas": [{
        "mouseEnabled": false
    }]
},

"areasSettings": {
    "autoZoom": false,
    "balloonText": "",
    "outlineThickness": 1,
    "selectable": false,
},

"valueLegend": {
    "right": 10,
    "minValue": "Cold",
    "maxValue": "Hot"
},

"zoomControl": {
    "zoomControlEnabled": false,
    "panControlEnabled": false,
    "homeButtonEnabled": false
}
});

A: To disable the rollover color for all states/areas, set the rollOverColor to null in your areasSettings object:
  "areasSettings": {
    // ...
    "rollOverColor": null
  },

Demo

A: From the docs
removeListener(chart, type, handler)
So in your case:
removeListener(myChart, 'mouseover', stateHoverFunction)


text:
Xiaomi Mi Note 11 release date, price, news and leaks
Sorry guys: at this point in time, the chances of Xiaomi Mi Note 11 are very low.
When the Xiaomi Mi Note 10 launched in late 2019, it was at the top of our list of best smartphones, but since then we haven't heard a glimpse from the sporadically dusty Note line of Xiaomi Mi phones.
So we have lost hope that a Mi Note 11 is coming out, especially because with the Xiaomi 12, it is clear that the company has moved on from its 11th generation (and also the Mi in its name).
That doesn't mean we'll never see a new Xiaomi Note phone, as the company doesn't release them every year, and the Note 10 was a big surprise. So maybe we'll see a Note 12 or 13, but that's just speculation.
We used to use this Xiaomi Mi Note 11 page to list the rumors and speculations we've heard about the device – some details were leaked in 2020 and 2021 – but, since the phone will almost certainly not appear at this point , we won't add anything else.
So for a historical look at the leaks, rumors and our wish-list on the Xiaomi Mi Note 11, scroll down. But if you want to see more contemporary mobiles from the brand, check out our ranking of the best Xiaomi phones.
cut to the chase:
What is this? Expected next mid-range smartphone from Xiaomi
When is it out? no info
How much will it cost? Probably around £459 / AU$888 (about $590)
Xiaomi Mi Note 11 release date and price
Xiaomi Mi Note 10 was launched in November 2019 – 2020 and 2021 came and went without Mi Note 11. There's no indication of when it will come, or even if it will happen at all.
As for the price, the Mi Note 10 costs £459 / AU$888 (about $590) for its most affordable variant, so it's possible that the Mi Note 11 will cost that much or maybe a little more.
Having said that, the Xiaomi Mi 10 was significantly more expensive than the Mi 9. It is possible that the company will repeat this leap in the Mi Note lineup, but we hope that the low price was not the driving force of the Mi Note 10.
Xiaomi Mi Note 11 Leaks and Rumors
We have heard a big rumor about the Xiaomi Mi CC11, which will probably be revealed outside China as the Mi Note 11. Apparently it will have a 90Hz screen, 64MP main camera, 67W charging and a Snapdragon 778 or 780 chipset.
Apart from this, there is said to be a Pro model with Snapdragon 870 chipset and 5x zoom periscope sensor.
Apart from this, we have not heard a single rumor or leak about Xiaomi Mi Note 11 yet. Although we have heard of several new Xiaomi technology that was not tied to a designated smartphone, so it could debut in the Mi Note 11 – although this is just speculation.
For example, Xiaomi has patented a front-facing snapper, an under-display camera for tech that will allow a phone to have an all-screen front without any moving parts or novelty tricks to ensure That's still a front-facing camera. The gimmick is, for example, this other Xiaomi patent that shows a phone that folds in half to take selfies.
We would expect a mid-range chipset in the Xiaomi Mi Note 11, and the company is said to be working on a smartphone with MediaTek's Dimensity 1000 Plus processor. This will make the phone 5G-compatible, and will also allow for a 144Hz refresh rate display. Having said that, Xiaomi has considered using Samsung's Exynos chipset in its phones as well.
In terms of camera capabilities, it looks like Xiaomi is working on a phone with a 108MP camera and 120x digital zoom, possibly via a different telephoto lens, which will blow all the competitors out of the water in terms of numbers.
We hear that Xiaomi is working on a new cheap phone with a 108MP main sensor, which could be a Redmi phone (probably Redmi Note 10) but could also be the Mi Note 11.
Since this super-powerful camera phone is called the Mi CC Phone, it could also be the Mi Note 11 (as the Mi Note 10 was known as Mi CC 9 Pro in China).
Lastly, we hear that Xiaomi is working on a 120W charger that will power a phone in minutes. The Xiaomi Mi Note 11 might not be the phone to debut, as the phone is set to be a mid-ranger and it's definitely a premium feature, but the Mi Note 10 was the first Xiaomi phone with a 108MP camera, so it's possible Is.
Xiaomi Mi Note 11: what we want to see
These are all the features and specs we wish the Xiaomi Mi Note 11 came with.
1. A Better 'Main' Telephoto Camera
The Xiaomi Mi Note 10 had five rear cameras, but only three were really impressive or useful. One of the bad piles was the 8MP telephoto snapper. Theoretically it was useful with 5x optical zoom, but due to the low-res sensor, pictures looked a bit fuzzy, and you could get better pictures by taking a 108MP snap and cropping it manually.
We would like to see the Mi Note 11 pack a better sensor with its telephoto or periscope lens for zoomed shots, so there was a reason to close the distance with the camera.
2. Long lasting battery
Xiaomi Mi phones generally have good battery life, but we are rarely as impressed with how long they last as we would handsets from another Xiaomi brand, Redmi. Mi phones will last a day, well, but you'll have to work hard to get them to last you another day – or even a full day if you're pushing the camera to its limits.
We wish the Xiaomi Mi Note 11 would last longer without a charge, either with a better battery or – possibly with a better alternative – with some software optimizations that mean it drains power at a slower rate. Is.
3. A Better Chipset
The Xiaomi Mi Note 10 didn't have a top-end processor – instead, it used the mid-range Snapdragon 730. It was a decision that we initially found quite curious, but we didn't notice the lack of processing after using the phone. Power too much.
The Mi Note 11 needs a better processor, though in one important respect – the 730 had a lot of trouble taking and processing 108MP photos, and if the new phone is ready to keep or improve on this snapper, it should be able to take pictures. Needs to be handled better.
Qualcomm (which makes Snapdragon chipsets) has since launched the 765G, which is a great processor for gaming and long battery life, and is also 5G-capable, so that would be an obvious choice, but there are others that work. do.
4. a low price
The Xiaomi Mi Note 10 had impressive specs, but it didn't even have a handset with similar features – a lower price tag.
Xiaomi is known for putting out affordable phones, and the Mi Note 10 was certainly one, but the later-launched Mi 10 series was arguably not, as the Xiaomi Mi 10 Pro cost twice as much as the Mi Note 10. Apparently Xiaomi realized that it can offer expensive phones as well.
We want the Mi Note 11 to be affordable but not overpriced like the Mi 10, as this will keep it extremely competitive against a lot of rivals and give more people a chance to see what is likely to be an impressive phone. .
5. Fast Charging Capability
Xiaomi phones generally have fast charging speeds, perhaps some of the best available, but every year the top available charging technology gets faster and faster. We want to see Xiaomi Mi Note 11 ahead of the curve.
While the Mi Note 10 had 30W charging, which is already faster than a lot of the competition, could potentially rival the Xiaomi Note 11 with up to 50W or 65W, really outpacing its rivals. Xiaomi has demonstrated 100W fast charging technology before, so it's not so unreasonable either.
See our Xiaomi Mi Note 10 review
Philips Hue's four-pack of white ambiance smart bulbs are half off


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A rare Keemun, black tea sourced by Twinings Tea buyers from in China. Keemun tea is produced is an area called Qimen County in south Anhui Province, China from where the tea gets its name. Smooth and aromatic with a slightly flowery aroma this is a perfect afternoon tea. Keemun is a light Chinese black tea with a smooth, well-balanced flavour and its distinctive red copper colour and low tannins make it a delight to drink. As one of the most popular black teas in the world, it has a complex and sophisticated taste and is often described as the "Burgundy of teas.".
Returning home with his treasured knowledge, he worked his magic on the local tea bushes and Keemun was born; soon it was known as the 'the king of black teas' due to . Twinings English Breakfast Tea is a bold-tasting blend of Ceylon, Kenyan and Indian teas. Earl Grey tea from Twinings is a black tea blended with the citrus fruit flavor of bergamot. This tea has a unique floral aroma. Irish Breakfast tea from Twinings is a blend of Ceylon and Assam teas from Sri Lanka and India.


Despite tragedy just hours before the opening ceremonies of the 21st Olympic Games; tradition carried on in Vancouver, Canada.
The 2010 Winter Olympic Games began with tragedy. Nodar Kumaritashvili, a luger from Georgia, died in an accident while practicing.


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Tagged: Film
Getting to Know Dance on Film: Recommendations for #FramerNation
by Kerri Frame | Work Links We Like
Houston is a dance town; readers of Frame Work know that. But do you know about the massive territory being explored at the intersection of dance and film? And are you aware that now, with the opening of the second annual Frame x Frame Film Fest on October 4-6, Houston is becoming a locus for the particular art of dance on film (also known as dance for film, dance film, and dance for camera)? #FramerNation, this is a new and exciting way to be involved with dance, and we encourage you to jump in as artists and audiences. To provide a head start on your education in this field, and/or to satisfy your deeper dive after viewing the films on offer, we have assembled recommendations from our FxFFF jurors and dance on film luminaries, Rosie Trump, Laura Gutierrez, and Lydia Hance.
Frame Work: Film-making and film-viewing friends, can you tell me some of the dance films – outside of the ones in our festival – that you find really exciting?
Rosie Trump: My favorite feature length dance on film is Blush by Wim Vandekeybus. I saw it screen at Dance Camera West in 2006 and it blew my mind. I also love Rosas danst Rosas choreographed by Anne Teresa De Keersmaeker and directed by Thierry de Mey.
Laura Gutierrez: Dance Documentaries really excite me. Most recent ones are Restless Creature by Wendy Whelan, and Bobbi Jene and a non documentary is Girl (2018) by Lukas Dhont
Lydia Hance: Right now I am really excited about ANIMA, directed by Paul Thomas Anderson and can be found on Netflix! I've always loved Pina. Feelings are Facts is a fantastic documentary about Yvonne Rainer, co-founder of the Judson Dance Theater who is a dancer and choreographer turned filmmaker.
FW: Can you recommend any books about dance or dance on film to help our readers explore the genre?
RT: I read a lot of books about dance history. Brenda Dixon Gottschild and Susan Foster are two dance theorists that completely changed how I think about dance. Misty Copeland's biography is on the top of my reading list.
LG: Deborah Hay, My Body, The Buddhist is my favorite book about dance.
LH: I love books about community creativity and finding ways to engage people with dance in authentic and meaningful ways that validate all humans as artists. I love Liz Lerman's book Hiking the Horizontal. Right now I'm reading Anna Halprin's book Making Dances that Matter with the MultiGen Framers.
FW: Any other recommendations? Inspirations?
RT: The OA and Russian Doll. These are not films, but the best small screen cinema I have seen in a while. I am currently reading Lucia Berlin's Evening in Paradise. My last dance film was inspired by an essay in Kim Gordon's Is it My Body? Selected Texts.
LG: seeing is forgetting the name of the thing one sees, a book by Robert Irwin.
LH: I've recently (finally) seen Junebug directed by Phil Morrison and i thought it was fantastic. I would recommend The Goldfinch (not a short read) for something fun and captivating, and I have been a fan of Virginia Woolf for many years.
FW: Thank you, dance-on-film gurus, and we'll see you in the theater!
Rosie Trump is a dance choreographer, filmmaker, and educator. Her work is nostalgic in style, feminist, and deliberately understated. Trump's dance films have recently screened at ADFs Movies for Movers, San Souci Dance Film Festival, Extremely Short Shorts at the Aurora Picture Show, the Utah Dance Film Festival, the Philadelphia Dance Film Festival, RADfest, andDance Film Association's Long Legs Short Films. She is the founder and chief curator of the Third Coast Dance Film Festival. Trump is an Associate Professor of Dance at the University of Nevada, Reno. Rosie finds inspiration in pop culture, politics, and visual art.
Laura Gutierrez is a performing artist and choreographer and has been named one of Dance Magazine's "25 to Watch". Her most recent work "Center Aisle Blues" was named Best Placemaking of 2018 by Dance Magazine. She is a graduate of UNCSA and was on adjunct faculty at the High School for the Performing and Visual Arts from 2011-2019 where she is also an Alum. Since 2014, she has toured with Jonah Bokaer Choreography. Laura's inspiration comes from her family, politics, history, nature, traveling, architecture and art.
Lydia Hance is the Founder Artistic Director of Frame Dance. She has been named an Emerging Leader by Dance/USA and has led Frame Dance in performances from the Galveston pier onto the METRO light rail, in the backs of U Haul trucks, downtown tunnels, and into museums, stages, and warehouses for the past ten years. A champion of new music composers, her work deepens interdisciplinary and multigenerational collaborations, and investigates the placement of dance in our lives. She is a choreographer, curator, filmmaker, educator, and dance writer. Her. She holds degrees in Dance Performance and English Literature from SMU and trained at the Taylor School, Graham School, Tisch School of the Arts, Limon Institute and SMU. Lydia is inspired by people's stories, vulnerability, textures, the dessert, behavioral science, and new music.
September 26, 2019 September 26, 2019 Tagged: contemporary dance, Dance, Dance on film, Film, houston artists, Houston Dance, modern dance, postmodern dance	Comment
3rd Coast Dance Film Festival
Hello Dance Filmmakers!
I am super excited to be Co-Curating 3rd Coast Dance Film Festival again this year. Submit here.
Good luck, can't wait to see your work!
June 17, 2014 Tagged: 3rd coast, Dance, festival, Film, Frame Dance, framers, third coast	Comment
Tuesday Tunes: Gregory Hines
by Lydia Tuesday Tunes
Gregory Hines!
Born in New York City to Maurice Hines Sr. and Alma Hines, Gregory Hines began tapping when he was two years old, and began dancing semi-professionally at the age of five. Since then, he and his older brother Maurice performed together, studying with choreographer Henry LeTang. Gregory and Maurice also learned from veteran tap dancers such as Howard Sims and The Nicholas Brothers whenever they performed in the same venues. The two brothers were known as "The Hines Kids", making nightclub appearances, and later as "The Hines Brothers". When their father joined the act as a drummer,the name changed again in 1963 to "Hines, Hines, and Dad".
Hines performed as the lead singer and musician in a rock band called Severance in the year of 1975-1976 based in Venice, California. Severance was one of the house bands at an original music club called Honky Hoagies Handy Hangout, otherwise known as the 4H Club. In 1986, he sang a duet with Luther Vandross, entitled "There's Nothing Better Than Love", which reached the No. 1 position on the Billboard R&B charts.
Hines made his movie debut in Mel Brooks's History of the World, Part 1. Critics took note of Hines's comedic charm, and he later appeared in such movies as The Cotton Club, White Nights alongside Mikhail Baryshnikov, Running Scared, Tap and Waiting to Exhale. On television, he starred in his own series in 1997 called The Gregory Hines Show on CBS, as well as in the recurring role of Ben Doucette on Will & Grace. In 1999, Hines made his return to television with Nick Jr.'s Little Bill, as the voice of Big Bill in which he won an Emmy Award for Outstanding Performer In An Animated Program.
Hines made his Broadway debut with his brother in The Girl in Pink Tights in 1954. He earned Tony Award nominations for Eubie! (1979), Comin' Uptown (1980) and Sophisticated Ladies (1981), and won the Tony Award and Drama Desk Award for Jelly's Last Jam (1992) and the Theatre World Award for Eubie!. In 1989, Gregory Hines created "Gregory Hines' Tap Dance in America," which he also hosted. The PBS special featured seasoned tap dancers such as Savion Glover and Bunny Briggs. He also co-hosted the Tony Awards ceremony in 1995 and 2002.
In 1990, Hines visited with his idol, Sammy Davis, Jr., as he was dying of throat cancer, unable to speak. After Davis died, an emotional Hines spoke at Davis's funeral of how Sammy had made a gesture to him, "as if passing a basketball … and I caught it." Hines spoke of the honor that Sammy thought that Hines could carry on from where he left off.
Hines was an avid improviser. He did a lot of improvisation of tap steps, tap sounds, and tap rhythms alike. His improvisation was like that of a drummer, doing a solo and coming up with all sorts of rhythms. He also improvised the phrasing of a number of tap steps that he would come up with, mainly based on sound produced. A laid back dancer, he usually wore nice pants and a loose-fitting shirt. Although he inherited the roots and tradition of the black rhythmic tap, he also influenced the new black rhythmic tap, as a proponent. "'He purposely obliterated the tempos,' wrote tap historian Sally Sommer, 'throwing down a cascade of taps like pebbles tossed across the floor. In that moment, he aligned tap with the latest free-form experiments in jazz and new music and postmodern dance.'"
Throughout his career, Hines wanted to and continued to be an advocate for tap in America. In 1988, he successfully petitioned the creation of National Tap Dance Day, which is now celebrated in 40 cities in the United States. It is also celebrated in eight other nations. Gregory Hines was on the Board of Directors of Manhattan Tap, he was a member of the Jazz Tap Ensemble, and a member of the American Tap Foundation (formerly the American Tap Dance Orchestra). He was a good teacher, influencing tap dance artists Savion Glover, Dianne Walker, Ted Levy, and Jane Goldberg.
In an interview with The New York Times in 1988, Hines said that everything he did was influenced by his dancing–"my singing, my acting, my lovemaking, my being a parent.
Hines died of liver cancer at 57, on August 9, 2003, en route to hospital from his home in Los Angeles. He had been diagnosed with the disease more than a year earlier but had informed only his closest friends. At the time of his death, he was engaged to Negrita Jayde. Hines is interred at Saint Volodymyr's Ukrainian Orthodox Cemetery in Oakville, Ontario, Canada, the country in which he met Negrita. Negrita, who died in 2009, is buried next to him.
Gregory Hines Solo Tap Scene White Nights
Fit As A Fiddle: Steve Martin & Gregory Hines
Gregory and Maurice Hines in the Cotton Club
Fun Facts about Mr. Gregory Hines
He and Maurice Hines were cast as brothers in Francis Ford Coppola's The Cotton Club (1984), set in the Harlem club where their grandmother had been one of the elite black entertainers performing for a whites-only audience in the twenties and thirties. Coppola encouraged the brothers to improvise so they based one scene on their real-life reunion in "Eubie!" and admitted the tears were real.
In the late '60s he decided to try his hand at performing rock 'n' roll music, and writing his own songs.
Was aged six when he and brother Maurice Hines performed, as the Hines Kids, at the Apollo Theatre in Harlem.
Had his professional debut when only 5 years old.
When he was in his twenties he worked on a farm.
Was considered for the part of "Winston Zeddemore" in Ghostbusters (1984).
Hines made his feature film debut in Mel Brooks' History of the World: Part I (1981). He was a last minute replacement for Richard Pryor, who had to cancel his appearance in the movie due to his freebasing accident.
Won Broadway's 1992 Tony Award as Best Actor (Musical) for "Jelly's Last Jam," for which he also shared a Best Choreographer nomination with Hope Clarke and Ted L. Levy. He was also nominated for Tonys three other times: as Best Actor (Featured Role – Musical) in 1979 for "Eubie!", which he recreated in the television version with the same title, Eubie! (1981); ; and as Best Actor (Musical), in 1980 for "Comin' Uptown" and in 1981 for "Sophisticated Ladies."
In 1954 he and brother Maurice Hines they were cast in the Broadway musical "The Girl in the Pink Tights".
He had a reunion with brother Maurice Hines when they were both hired for the Broadway musical, "Eubie!" in 1978. It earned him a Tony nomination, as did his role in another musical, "Sophisticated Ladies".
His own stage show took him from New York's Bottom Line to spots as far-flung as Atlantic City, Las Vegas, Japan and Monte Carlo.
Inducted into the International Tap Dance Hall of Fame in 2004.
February 18, 2014 Tagged: #whydancematters, Actor, Celebrity, Dance, Dancer, Dancers, Entertainment, Facebook, Famous, Film, Gregory Hines, Hollywood, Movies, Music, Pinterest, Stage, Tap Dance, Tuesday, Tumblr, Tunes, Twitter, YouTube	Comment


text:
August Term, 1998
(Argued: December 14, 1998 Decided: April 28, 1999 )
Docket No. 98-1124
Appellee,
JOHN NAPOLI, a/k/a John Bianco, a/k/a
"Vince,"
Defendant Appellant,
BARRY D. PINCUS; ROBERT SAN FILIPPO; DARRIN WIGGER,
Defendants.
Before: FEINBERG, CALABRESI and SOTOMAYOR, Circuit Judges.
John Napoli appeals from a judgment of the United States District Court for the Eastern District of New York (Jacob Mishler, Judge), convicting him of conspiracy, wire fraud, bank fraud and money laundering. We hold that convictions for money laundering and wire fraud should not ordinarily be grouped as "related" counts under � 3D1.2(d) of the United States Sentencing Guidelines ("U.S.S.G.") and that the district court properly treated Napoli's counts of conviction as "unrelated" under U.S.S.G. � 3D1.4. Although we hold that the district court properly found that two of Napoli's prior convictions, administratively consolidated for sentencing after a transfer under Rule 20 of the Federal Rules of Criminal Procedure, were not factually "related" under U.S.S.G. � 4A1.2, we vacate that portion of the sentence and remand for the district court to determine whether Napoli served a prison term exceeding a year and a month for one of the convictions. We affirm the district court's other criminal history category calculations and its decision not to depart downwardly because of Napoli's heart impairments or his cooperation with state law enforcement authorities.
Affirmed in part, vacated in part and remanded.
AZRA RAYCHES FELDMAN, Feldman and Feldman, Rosyln, New York, for Defendant-Appellant.
DEBRA NEWMAN, Assistant United States Attorney, Brooklyn, New York (Zachary W. Carter, United States Attorney for the Eastern District of New York, Emily Berger, David C. James, Jo Ann Navickas, Assistant United States Attorneys, on the brief), for Appellee.
SOTOMAYOR, Circuit Judge:
Following a jury trial in the United States District Court for the Eastern District of New York (Mishler, J.), John Napoli was convicted of one count of conspiracy to commit wire fraud and money laundering in violation of 18 U.S.C. � 371, twenty-one counts of money laundering in violation of 18 U.S.C. � 1956(a)(1)(B), nine counts of wire fraud in violation of 18 U.S.C. � 1343, one count of conspiracy to commit bank fraud in violation of 18 U.S.C. � 371, and one count of bank fraud in violation of 18 U.S.C. � 1344. The district court sentenced Napoli principally to 210 months imprisonment and 36 months supervised release. Napoli appeals his conviction on grounds that we reject in a summary order issued simultaneously with this opinion. United States v. Napoli, No. 98-1124, 1999 WL ____ (___, 1999). In this opinion, we address only Napoli's sentencing claims.
Napoli maintains on appeal that the district court erred by (1) failing to group his convictions for wire fraud and money laundering as "related" counts under � 3D1.2 of the United States Sentencing Guidelines ("U.S.S.G." or the "Guidelines"); (2) failing to treat two of his prior convictions that were consolidated for sentencing as "related" under � 4A1.2; (3) assigning him a four-level offense level increase as an organizer or leader of a criminal activity under �3B1.1(a); (4) assigning him criminal history points for three prior convictions under ��4A1.1 and 4A1.2(e); and (5) declining to depart downwardly because of his heart impairments and cooperation with state law enforcement authorities.
We hold that the district court properly decided not to group Napoli's wire fraud and money laundering counts of conviction and affirm the court's treatment of these counts as "unrelated" under � 3D1.4. We also hold that prior convictions, administratively consolidated for sentencing after a transfer under Rule 20 of the Federal Rules of Criminal Procedure ("Rule 20"), should be treated as unrelated when the convictions are factually different. We therefore affirm the district court's treatment of Napoli's prior convictions as "unrelated" under � 4A1.2. Napoli received an incarceration sentence for one of these convictions that was later reduced to probation, however, and we remand for the district court to determine whether it properly assigned Napoli criminal history points for that conviction. We reject all of Napoli's remaining challenges to his sentence and affirm the district court's rulings.
A. The Trial
According to the government's witnesses at trial, including Napoli's three accomplices i.e., Robert San Filippo, Darrin Wigger and Barry Pincus, all of whom had signed cooperation agreements with the government Napoli devised a scheme to lure buyers in foreign countries into making sizeable deposits for the delivery of large quantities of cigarettes. Napoli, however, had neither a supply of cigarettes nor the intention of delivering any. In February 1995, the first buyer, Evangelist Gatzones, sent Napoli's accomplice, San Fillippo, a deposit in the form of a cashier's check in the amount of $100,000. Napoli instructed San Fillippo to deposit the check at Trump Plaza casino in Atlantic City, New Jersey, and to gamble a portion of it without losing more than $10,000. San Fillippo followed these instuctions and gave Napoli a remaining $91,000 cash balance the next day.
Because the second buyer, Irena Fishman, hesitated to give a deposit without any security, Napoli arranged for the deposit to be held in escrow with Pincus, a lawyer, pending confirmation of the buyer's receipt of the promised cigarettes. Satisfied with this security, Fishman sent San Fillippo a certified check on February 27, 1995, in the amount of $60,000 for deposit into Pincus's escrow account. Initially, Pincus refused to give Napoli the funds in escrow until Napoli delivered the goods. Pincus released the monies, however, after Napoli threatened to kill him. Once again, Napoli instructed San Fillippo to gamble a portion of this money at Trump Plaza casino. San Fillippo lost $50,000 and gave the remainder to Napoli in cash.
On March 18, 1993, Fishman sent Pincus another certified check in the amount of $100,000. Another buyer, Romeo Walser, also deposited a certified check in the amount of $600,000 in Pincus's escrow account. Napoli directed Pincus to write a check payable to the Trump Taj Mahal casino in the amount of $180,000, which Pincus did. San Fillippo then deposited the check at the casino and tried to withdraw the money, but the casino permitted only an initial withdrawal of $50,000. After San Fillippo won $15,000 gambling, Napoli ordered San Fillippo to demand the release of the rest of their funds. San Fillippo made the demand and the casino complied nine days later, after the deposited check had cleared. San Fillippo and Wigger delivered the money to Napoli after their return from Atlantic City.
Between April 5, 1995 and July 31, 1995, checks sent by other buyers to Pincus's escrow account were transferred into Wigger's Off Track Betting account and into various other accounts at banks and at Merrill Lynch. At Napoli's direction, those funds were then withdrawn and given to him. Napoli used a portion of these funds to finance a gourmet market and his daily living expenses.
In order to explain his wealth during the time of the charged conspiracy, Napoli presented trial witnesses who testified about his successful history as a gambler. At the end of the trial, the jury convicted Napoli on all counts.
A. The Sentencing
Prior to his sentencing, Napoli raised various objections to the offense level and criminal history calculations contained in his Pre-Sentence Report ("PSR"), all of which the district court rejected in a written opinion dated February 25, 1998. First, Napoli argued that his wire fraud and money laundering counts should have been grouped as "related counts" under �3D1.2. Napoli maintained that the PSR's treatment of these counts as "unrelated" under �3D1.4 thus resulted in an improper one-level enhancement to his base offense level. The district court rejected Napoli's contention, citing, without discussion, United States v. Lombardi, 5 F.3d 568 (1st Cir. 1993), and United States v. Harper, 972 F.2d 321 (11th Cir. 1992) (per curiam).
Second, Napoli claimed that his base offense level should have been enhanced by only two levels for his leadership role in the offense because his criminal activity involved less than five participants and was not "otherwise extensive." The district court disagreed, finding that the combination of four knowing participants with numerous other unknowing participants qualified Napoli's scheme as "otherwise extensive" and justified a four-level leadership enhancement under � 3B1.1(a).
Third, Napoli maintained that two of his prior sentences, which had been administratively consolidated for sentencing pursuant to Rule 20, were "related" as that term is defined in 4A1.2(2), thereby qualifying him for three less criminal history points than the six recommended in his PSR. The district court, however, held that the facts of the two prior crimes, as set forth in the PSR, "clearly show[ed] that the crimes were unrelated" for purposes of �4A1.2(2).
Fourth, Napoli challenged the PSR's assignment of one criminal point each to three other of his prior convictions. Napoli argued that the sentences for those convictions should have been deemed as imposed more than ten years before the commencement of the instant offense, and that for this reason, these convictions should not have been counted as part of Napoli's criminal history points under � 4A1.1 and � 4A1.2(e). Without addressing Napoli's arguments, the district court simply adopted the PSR's calculations.
Finally, Napoli sought a downward departure under ��5H1.4, 5K1.1 or 5K2.0 because of his poor heart condition and his cooperation with state law enforcement agencies. The district court held that in the absence of a �5K1.1 downward departure motion by the government, the court lacked authority to depart and that even if it had such authority, it would decline to use it because Napoli's seeming cooperation was only a "means for facilitating his criminal activities." In particular, the court found that during his cooperation with state authorities, Napoli stole $120,000 of government funds and supplied government agents with "bogus narcotics" in the undercover transactions in which they were engaged. The district court also considered, but rejected, Napoli's heart condition as a ground for departure after determining that the Bureau of Prisons, which had treated Napoli since his arrest in December 17, 1996, had the ability to provide adequate care for Napoli's condition.
For the reasons discussed in its written opinion and at sentencing, the district court adopted the factual findings of the PSR and its offense level and criminal history calculations. The court sentenced Napoli to 210 months' of imprisonment, followed by three years of supervised release, restitution in the amount of $1,199,400, and a special assessment of $1,650. This appeal followed.
I. Standard of Review
We review the factual determinations underlying the district court's application of the Sentencing Guidelines under the clearly erroneous standard, but we review the court's legal interpretation of the Guidelines de novo. See United States v. Azeem, 946 F.2d 13, 15 (2d Cir. 1991).
II. The Offense Level Challenges
A. Grouping of the Fraud and Money Laundering Counts
U.S.S.G. � 3D1.1 establishes a three step procedure for determining total combined offense levels in cases of multiple count convictions: (i) all counts are separated into "groups" of "closely related" counts in accordance with the rules set forth in � 3D1.2, which allow for single as well as multiple-count groups; (ii) the count with the highest offense level in each group is used to determine that group's offense level in accordance with the rules set forth in � 3D1.3; and (iii) if application of � 3D1.2 results in more than one group, then, in accordance with the rules set forth in � 3D1.4, each group is assigned a number of "units," and these units are used to increase the offense level of the group with the highest offense level, thus producing a "total combined offense level" for the entire multi-count conviction. In this case, the district court grouped Napoli's fraud counts separately from his money laundering counts under �3D1.2. The district court then assigned units to each group, which added one offense level to Napoli's money laundering group under � 3D1.4.
Napoli argues that the district court should have placed his fraud and money laundering counts into a single group of related counts under both subsections (b) and (d) of �3D1.2. This section provides that:
All counts involving substantially the same harm shall be grouped together into a single
Group. Counts involve substantially the same harm within the meaning of this rule:
(a) When counts involve the same victim and the same act or transaction.
(b) When counts involve the same victim and two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan.
(c) When one of the counts embodies conduct that is treated as a specific offense characteristic in, or other adjustment to, the guideline applicable to another of the counts.
(d) When the offense level is determined largely on the basis of the total amount of harm or loss, the quantity of a substance involved, or some other measure of aggregate harm, or if the offense is ongoing or continuous in nature and the offense guideline is written to cover such behavior.
Offenses covered by the following guidelines are to be grouped under this subsection:
�� 2B1.1 [larceny or embezzlement], 2B1.3 [destruction of property], 2B4.1, 2B5.1, 2B5.3, 2B6.1;
�� 2D1.1 [drug trafficking], 2D1.2, 2D1.5, 2D1.11, 2D1.13;
�� 2F1.1 [fraud or forgery], � 2F1.2 [insider trading];
�� 2S1.1 [money laundering], 2S1.2 [dealing with criminally obtained funds] ;
�� 2T1.1 [tax evasion], 2T1.4, 2T1.6, 2T1.7, 2T1.9, 2T2.1, 2T3.1.
U.S.S.G. � 3D1.2.
This Circuit has not yet addressed the question of when, if ever, fraud and money laundering counts should be grouped. It is a question that has split many of our sister circuits. Compare, e.g., United States v. Wilson, 98 F.3d 281, 283 (7th Cir. 1996) (grouping where "the money laundering took place in an effort to conceal the fraud and keep the entire [Ponzi] scheme afloat"); United States v. Mullens, 65 F.3d 1560, 1564 (11th Cir. 1995) (grouping where fraud and money laundering were "integral cogs in [a] continuing . . . scheme"); United States v. Leonard, 61 F.3d 1181, 1186 (5th Cir. 1995) (grouping where fraud and money laundering "constituted part of the same continuing common criminal endeavor"), with, e.g., United States v. Hildebrand, 152 F.3d 756, 763 (8th Cir.), cert. denied sub nom. Webb v. United States, 119 S. Ct. 575 (1998) (refusing to group because fraud and money laundering "do not measure the same types of harm"); United States v. O'Kane, 155 F.3d 969, 972-73 (8th Cir. 1998) (refusing to group because fraud and money laundering guidelines measure harm differently); United States v. Kunzman, 54 F.3d 1522, 1531 (10th Cir. 1995) (refusing to group because fraud and money laundering involve different classes of victims); Lombardi, 5 F.3d at 570 (refusing to group because fraud and money laundering harm different classes of victims). We hold that in the circumstances of this case, the district court was correct to apply � 3D1.4 and calculate Napoli's sentence on the basis of separate groups for his fraud and money laundering counts.
(a) � 3D1.2(b): Same Victim and Common Criminal Objective, Scheme or Plan
As an initial matter, because � 3D1.2(b) only allows for grouping when counts involve the same victim, we reject Napoli's argument that his fraud and money laundering counts should have been grouped under this subsection. See � 3D1.2(b) (allowing for grouping only when "counts involve the same victim and two or more acts or transactions connected by a common criminal objective or constituting part of a common scheme or plan"). Application Note 2 to � 3D1.2 explains that:
[t]he term "victim" [as used in � 3D1.2(a) and (b)] is not intended to include indirect or secondary victims. Generally, there will be one person who is directly and most seriously affected by the offense and is therefore identifiable as the victim. For offenses in which there are no identifiable victims (e.g., drug or immigration offenses, where society at large is the victim), the "victim" for purposes of subsections (a) and (b) is the societal interest that is harmed.
The "victims" of fraud counts are those persons who have lost money or property as a direct result of the fraud. See, e.g., United States v. Kaye, 23 F.3d 50, 53-54 (2d Cir. 1994) (identifying victim of fraud as person who has lost assets because of the fraud). The "victim" of money laundering is, by contrast, ordinarily society at large. See, e.g., Harper, 972 F.2d at 322 (remarking that money laundering invades societal, rather than individual, interests); United States v. Lopez, 104 F.3d 1149, 1150 (9th Cir. 1997) (per curiam) (remarking that money laundering is a "victimless crime" that harms society in general). Society is harmed when, for example, the ill-gotten gains from a criminal enterprise are allowed to be used for profit, the sources of these funds are concealed from police investigation or criminals are allowed to "disperse[] capital from lawfully operating economic institutions to [other] criminals in and out of the country." United States v. Gallo, 927 F.2d 815, 824 (5th Cir. 1991); see also O'Kane, 155 F.3d at 972 (stating that "money laundering harms society's interest in discovering and deterring criminal conduct, because by laundering the proceeds of crime, the criminal vests that money with the appearance of legitimacy"). Because we find that Napoli's fraud and money laundering counts involved different harms to different victims, they cannot be grouped under subsection (b). See Lombardi, 5 F.3d at 570 (refusing to group fraud and money laundering counts under subsection (b) because "the victim of fraud is the insurance company and the victim of money laundering is society"); Kunzman, 54 F.3d at 1531 (refusing to group fraud and money laundering counts under subsection (b) because "the 'victim' of fraud, the defrauded individual, is not the same as the 'victim' of money laundering, society in general").
(ii) � 3D1.2(d): Offense Level Based on Aggregate Harm or Guideline Written to Cover Continuous Behavior
Napoli also argues that his fraud and money laundering counts should have been grouped under � 3D1.2(d), which requires grouping when "the offense level is determined largely on the basis of the total amount of harm or loss, the quantity of a substance involved, or some other measure of aggregate harm, or if the offense is ongoing or continuous in nature and the offense guideline is written to cover such behavior." Whether Napoli's fraud and money laundering counts should have been grouped together under this subsection presents a more difficult question.
Some circuits have held that fraud and money laundering counts cannot be grouped under subsection (d) for precisely the same reasons that we reject grouping under subsection (b), namely, that the crimes involve different victims. See, e.g., United States v. Johnson, 971 F.2d 562, 576 (10th Cir. 1992); cf. also United States v. McElroy, 910 F.2d 1016, 1026-27 (2d Cir. 1990) (declining to group receipt of bribes and acceptance of bribes under �3D1.2(d) because different victims and property were involved in the two sets of crimes). It would be wrong, however, to project a same-victim requirement into � 3D1.2(d). First, no such requirement is mentioned in subsection (d); we find this omission especially telling in light of the fact that subsections (a) and (b) both explicitly require harm to the "same victim." Moreover, the Background to � 3D1.2's Commentary states that counts "involving different victims (or societal harms in the case of 'victimless' crimes) are grouped together only as provided in subsection...(d)." (Emphasis added.) Finally, Application Note 6 to subsection (d) gives examples of counts that should be grouped under that subsection, including cases in which a "defendant is convicted of two counts of theft of social security checks and three counts of theft from the mail, each from a different victim." (Emphasis added.) Unlike with subsection (b), the mere fact that Napoli's fraud and money laundering counts harmed different victims is therefore insufficient to establish that these counts cannot be grouped under subsection (d).
The most promising argument for grouping under subsection (d) derives from the fact that the guidelines for both fraud and money laundering measure some part of their respective harms in terms of monetary values. In summarizing the "essence" of the multi-count rules, the Introductory Commentary to Chapter 3, Part D of the Guidelines explains that "[i]f the offense guidelines [for two counts] base the offense level primarily on the amount of money . . . involved . . . add the numerical quantities [associated with each] and apply the pertinent offense guideline, including any specific offense characteristics for the conduct taken as a whole." Section 3D1.2(d) also states that counts involving harms to different victims should be grouped "[w]hen the offense level [for each count] is determined largely on the basis of the total amount of harm or loss . . . or some other measure of aggregate harm . . . ." Often, individual counts grouped under subsection (d) involve different individual victims, as in the case of five frauds to five persons. In such cases, the dollar amount associated with each count measures the harm to each independent victim, and the "total harm" is calculated by adding up all these numbers. See, e.g., Illustration 4 to � 3D1.5 (Where defendant "convicted of four counts arising out of a scheme pursuant to which he received kickbacks from subcontractors" i.e., two counts involving mail fraud, one involving ordinary fraud and one involving commercial bribery add the "money involved" and apply the guideline that produces the highest offense level for this total.) At other times, some of the counts grouped under subsection (d) involve essentially one harm to one victim. In such cases, the counts should first be grouped under subsection (a) and the one harm to the one victim should be counted only once when adding the different harms to the different victims. See Application Note 7 to � 3D1.2 ("A single case may result in application of several of the rules in this section. [One] example . . . in the discussion of subsection (d) involves an application of � 3D1.2(a) followed by an application of � 3D1.2(d)."). In either case, however, grouping under subsection (d) essentially involves the aggregation of the various harms to all victims and a consequent determination of the "total harm or loss" to be associated with the group. The best argument for grouping Napoli's fraud and money laundering counts under this subsection therefore derives from the fact that both measure harm in seemingly aggregable amounts of money.
Several other considerations persuade us, however, that grouping of these two counts was never intended under subsection (d). In particular, Application Note 6 to � 3D1.2 states that two counts that measure harm in quantities should only be grouped if the counts are also of the "same general type." Although the Guidelines are not altogether explicit about how to identify counts of the "same general type," they do provide several valuable clues, and none of them speaks in favor of grouping Napoli's fraud and money laundering counts with one another.
First, as noted earlier, the Introductory Commentary to Chapter 3, Part D directs that with regard to different guidelines that measure harm in monetary values, counts should be grouped, and their numerical quantities added, only when the "offense guidelines [for the two counts] base the offense level primarily on the amount of money . . . involved." (Emphasis added.) The offense level for money laundering is not, however, based primarily on the amount of money involved. To see this, one should recognize that the guidelines for different offenses generally determine offense levels by, first, beginning with a "base offense level" (which measures society's initial disapprobation for the type of activity in question) and then adding certain "specific offense level" increases (which reflect either the amount of harm caused by a specified activity or other relevant disapproved conduct, such as harm to multiple victims). With regard to counts that can be grouped under subsection (d), the amount of harm is, in turn, measured primarily in quantities of certain fungible items, such as money or grams of narcotics, with the total offense level increasing as the money or weight increases. Importantly, fraud and all the other offenses explicitly mentioned in the Guidelines as of the "same general type" i.e., larceny, embezzlement and forgery set their base offense levels either at 4 (larceny and embezzlement) or 6 (fraud and forgery). The guidelines then add specific offense levels for certain monetary values, beginning at $100 (larceny and embezzlement) or $2,000 (fraud and forgery), and allowing for up to 18 (larceny and embezzlement) or 20 (fraud and forgery) additional levels, or up to 333% to 450% of the base offense level. Thus, the total offense level for fraud, as well as for every other count that is explicitly mentioned in the guidelines as of the "same general type," depends primarily on the amount of monetary loss involved.
By contrast, the guideline for money laundering sets the base level for that offense at either 20 or 23, depending on whether the laundering was used to promote or only conceal the underlying criminal activity, respectively. See � 2S1.1(a). The guideline then adds specific offense levels for the amount of money laundered, but begins increasing offense levels only when the amount laundered exceeds $100,000 and only allows for up to 13 additional levels (or up to approximately 60% of the base offense level) i.e., when the laundered amount exceeds $100 million. See � 2S.1(b)(2). Thus, even for the largest money laundering scheme, the total offense level will be based primarily on the base offense level, which reflects society's disapprobation of the activity, rather than on the amount of money involved. It is worth noting in this respect that the Guidelines never give any examples that involve the grouping of money laundering with fraud, forgery or any of the coordinated property crimes. Cf. O'Kane, 155 F.3d at 972 ("[W]e do not simply squint at shadows on a dark wall; the Guidelines provide clear examples of the types of counts which should be grouped under Section 3D1.2(b)."). These facts suggest that although fraud and money laundering both measure their respective harms in part in amounts of money, the two crimes might not otherwise meet the criteria for being of the "same general type" because only the offense level for fraud is based "primarily" on these quantities.
Moreover, Application Note 3 to � 3D1.3 explains that the guidelines for similar property offenses, which are all of the "same general type," "have been coordinated to produce identical offense levels, at least when substantial property losses are involved." (Emphasis added). For example, all the counts discussed above that are of the "same general type" i.e., fraud, larceny, embezzlement, forgery use tables that translate the amount of "losses" involved into specific offense level increases at exactly the same rate, and at exactly the same monetary division points, beginning at $2,000. See � 2B1.1(b)(1) (larceny and embezzlement); �2F1.1(b)(1) (forgery and fraud). The guidelines for fraud and money laundering, by contrast, contain tables that translate monetary values into specific offense level increases at different rates, and at different monetary division points. Between a fraud of $100,000 and one of $100,000,000, there is, for example, a 12 offense-level difference, see �2F1.1(b)(1); whereas between two money laundering schemes of the same amounts, there is a difference of 13 levels, see � 2S1.1(b)(2). Although the difference between a 12-offense level gap and a 13 offense-level gap is relatively small, even that small difference translates into a significant result at sentencing. To translate the harm to defrauded individuals that is measured in dollar losses by means of the money laundering tables would therefore exaggerate the amount of punishment that the Guidelines normally deem appropriate for such losses. This result should not be altogether surprising, given that fraud counts use monetary amounts to measure the value of loss to victims, whereas money laundering counts use monetary amounts to measure "the magnitude of the criminal enterprise, and the extent to which the defendant aided the enterprise." � 2S1.1 commentary; see also � 2B1.1 commentary n. 2; � 2F1.1 commentary note 7 (defining "loss" for fraud as equivalent to the notion of "loss" involved in property crimes). These facts suggest, once again, that fraud and money laundering counts are not of the "same general type."
Finally, grouping fraud and money laundering counts would produce an anomalous result in an important class of cases: viz., where only a small portion of the funds obtained by a fraud scheme are thereafter laundered, as when a defendant fraudulently obtains $1,000,000 but launders only $100,000 of that money. If the two counts in this example were not grouped, the defendant's fraud count would be assigned a total offense level of 19 (i.e., for frauds involving more than two victims and more than $800,000 but no more than $1,500,000) under �2F1.1, and his money laundering count would be assigned a total offense level of 20 (i.e., for laundering $100,000 or less) under � 2S1.1. After these counts were assigned units and combined under the rules set forth in � 3D1.4, the defendant would receive a total combined offense level of 22. If, however, the two counts were grouped and their harms aggregated under � 3D1.2(d), the defendant would receive a total combined offense level that is equal to that of a money laundering charge for $1,100,000. This would, in turn, result in sentence based on a total offense level of 25 (i.e., for laundering more than $1,000,000 but no more than $2,000,000), which is 3 points higher than if the counts were not grouped. Thus, grouping which is meant to protect defendants against arbitrary additions resulting from the government's formal charging decision would actually increase the defendant's sentence, and this problem occurs systematically in cases where only a small portion of the funds obtained from a fraud victim are laundered.
Contrary to Napoli's view of the matter, grouping would not help him even in the present circumstances. Napoli's fraud counts amounted to approximately $1.6 million in loss to individuals, and he laundered $1.3 million of this money. Napoli committed two separate types of crimes, however, at separate times and harming two separate types of victims. The "total" or "aggregate" harm associated with the crimes would thus be set at approximately $2.9 million. See, e.g., O'Kane, 155 F.3d at 973 (holding that defendant who defrauds his employer of $304,667 but only launders $73,562.50 "would be punished for laundering the total sum of $378,229.50"). Whether or not Napoli's counts were grouped, his sentence would thus remain the same. If these counts were grouped, for example, Napoli would receive a base offense level of 20 and 6 additional levels (i.e., for laundering more than $2 million but no more than $3.5 million). See � 2S1.1. This would, in turn, yield a total offense level of 26. See id. If, however, the counts were not grouped, Napoli's fraud counts yield an offense level of 20 (i.e., for frauds involving more than two victims and more than $1,500,000 but not more than $2,500,000), see �2F1.1, and his money laundering count would yield an offense level of 25 (i.e., for a money laundering with a base offense level 20 and of more than $1,000,000 but no more than $2,000,000), see �2S1.1. Under � 3D1.4, the total combined offense level for these two counts would thus be 26 as well.
Because the guidelines for fraud and money laundering measure different types of harms and measure them in different ways, and because grouping these crimes would permit unintended results in many circumstances, we find that Napoli's fraud and money laundering counts are not of the "same general type" and should not be grouped together under subsection (d). See, e.g., United States v. Taylor, 984 F.2d 298, 303 (9th Cir. 1993) (holding that "grouping under section 3D1.2(d) is not appropriate when the guidelines measure harm differently"). We therefore join several of our sister circuits and hold that the district court was correct not to group Napoli's fraud and money laundering counts under subsection (d). See, e.g., O'Kane, 155 F.3d at 974 (refusing to group money laundering and fraud counts under subsection (d) because, "on the facts before [the court], the offense level for money laundering [was] not 'determined largely on the basis of the total amount of harm or loss'; rather it [was] determined largely by the eleven level higher starting base offense level"); United States v. Kneeland, 148 F.3d 6, 15-16 (1st Cir. 1998) ("Without making any determination as to whether there are situations in which the offense level for money laundering might be largely determined on the basis of total amount of harm or loss, we are persuaded that, in this case at least, the offense level for money laundering was not based on aggregate harm and thus does not fall within the purview of subsection (d)" (footnote omitted).).
B. Organizer/Leader
U.S.S.G. � 3B1.1 instructs courts to increase the offense level as follows:
(a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels.
(Emphasis added.) Application Note 3 to � 3B1.1(a) directs that "[i]n assessing whether an organization is 'otherwise extensive,' all persons involved during the course of the entire offense are to be considered." For example, "a fraud that involved only three participants but used the unknowing services of many outsiders could be considered extensive." Id.
Although Napoli was the leader of a scheme involving only four knowing participants i.e., Pincus, San Fillippo, Wigger and Napoli himself the district court made a factual finding that Napoli's criminal activity was "otherwise extensive" because it involved numerous unknowing participants, including employees of the Trump Plaza casino, OTB, various banks and Wigger's girlfriend, Mary Ann Brown. Napoli claims the district court's finding was clearly erroneous because the court did not properly apply the three-part test promulgated in United States v. Carrozzella, 105 F.3d 796 (2d Cir. 1997).
In Carrozzella, we held that
[i]n determining whether a criminal activity is "otherwise extensive" as the functional equivalent of one involving five or more knowing participants, we believe that the following must be determined by the sentencing court:
(i) the number of knowing participants;
(ii) the number of unknowing participants whose activities were organized or led by the defendant with specific criminal intent;
(iii) the extent to which the services of the unknowing participants were peculiar and necessary to the criminal scheme.
Id. at 803-4. We explained in Carrozzella that the "otherwise extensive" language of �3B1.1(a) relates not to factors like the "amount of loss, extent of planning, [or] the number of victims," which are typically considered in other enhancements to a defendant's offense level, but rather to "the size of the organization in terms of persons involved that a defendant 'organize[d]' or 'le[d].'" Id. at 802-03 (citing to the offense level calculations of fraud under � 2F1.1). To be counted, unknowing participants must, however, do more than facilitate the defendant's conduct; they must perform conduct that is "peculiar and necessary" to the criminal scheme. Id. at 803-04 (noting that a taxi driver who happens to drive a leader of a fraud scheme to the scene of the fraudulent transaction would not be counted in determining whether the criminal activity was "otherwise extensive").
In this case, the district court determined that Napoli's criminal activities were "otherwise extensive" under � 3B1.1(a) only after making explicit factual findings relating to the first two prongs in Carrozzella. See Unites States v. Napoli, CR 95-993 at 7-13 (E.D.N.Y. Feb. 25, 1998) (specifically identifying knowing and unknowing participants). The court did not explicitly address Carrozella's third prong, which concerns the extent to which the services of the unknowing participants were peculiar and necessary to the criminal scheme. Napoli argues that by failing directly to address this third prong, and by relying on a summary of the amount of loss involved, the number of victims and the extent of the planning in Napoli's criminal activities, the court committed clear error in concluding that Napoli's criminal activities were "otherwise extensive." We disagree.
We recently held that district courts should be given "latitude" concerning their supervisory role findings, even when their "findings were not as precise as they might have been." United States v. Persico, 164 F.3d 796, 804 (2d Cir. 1999); see also United States v. Spencer, 129 F.3d 246, 253 (2d Cir. 1997), cert. denied, 118 S.Ct. 1388 (1998) (holding that because sentencing judge properly limited her inquiry to persons involved in scheme, "[n]o useful purpose would be served in remanding the case and requiring [the judge] to simply recast her findings in the more explicit terms described by our . . . decision in Carrozzella"). Moreover, a "sentencing court's findings as to the defendant's role in the offense will be overturned only if they are clearly erroneous." United States v. Farah, 991 F.2d 1065, 1068 (2d Cir. 1993). Although the district court here did not explicitly articulate "the extent to which the services of the unknowing participants were peculiar and necessary to the criminal scheme," the court described how Napoli used the casinos and its personnel to cash and launder the checks from Pincus's accounts. None of these findings is clearly erroneous, and together, they support the conclusion that Napoli was an organizer and leader of an "otherwise extensive" criminal conduct and therefore the four-level enhancement to his offense level. See United States v. Chacko, No. 98-1087, ___ F.3d ___ , 1999 WL 101272 (2d Cir. March 1, 1999) ("[T]he district court need only state the general identity of the unknowing participants (or category thereof, in instances where numerous institutional employees were indiscriminately drawn into the scheme) and the basic tasks which these participants unwittingly conducted for the organization.").
IV. The Criminal History Category Calculations
A. The Rule 20 Consolidation
U.S.S.G. � 4A1.1 requires the addition of three points to a defendant's criminal history calculations "for each prior sentence of imprisonment exceeding one year and one month." Under � 4A1.2, however, sentences imposed in "related" cases are each assessed only one criminal history point. Application Note 3 to the � 4A1.2(a) directs that cases should be deemed related if they "[1] occurred on the same occasion, [2] were part of a single common scheme or plan, or [3] were consolidated for trial or sentencing."
Napoli contends that the district court erred by assigning three criminal points to each of two of his prior convictions that had been consolidated for sentencing after one of the cases had been transferred to the district court under Rule 20 for purposes of plea and sentence. The first conviction, which involved an indictment for bank fraud, originated in New Jersey and was subsequently transferred to a Connecticut district court under Rule 20. The second conviction, which involved an indictment for wire fraud, originated in the Connecticut district court. Napoli pled guilty to the two indictments before the same Connecticut judge and was subsequently sentenced on the same day, October 29, 1991, to two consecutive 3-year sentences. The district court here nevertheless determined that these sentences were "unrelated" for purposes of � 4A1.2 because the frauds alleged in the two indictments were factually unrelated. Napoli does not challenge the factual unrelatedness of the convictions but maintains that the clear terms of � 4A1.2 require that sentences for these convictions must be treated as related because they were "consolidated for . . . sentencing." � 4A1.1.
Despite the initial appeal of this argument, Napoli's position is inconsistent with long established precedent in this circuit. We have repeatedly held that prior sentences imposed on the same day are not "related" as the term is understood under � 4A1.2(a) unless a formal order or statement on the record is made consolidating the sentences and the two cases are "factually related." See United States v. Mapp, Nos. 97-1342, 1344, __F.3d __ , 1999 WL 140591, at *10 (2d Cir. March 16, 1999) ("Our precedents clearly establish that we do not consider cases to have been consolidated (functionally or otherwise) for sentencing simply because a defendant received concurrent sentences that were imposed on the same day."); United States v. Gelzer, 50 F.3d 1133, 1143 (2d Cir. 1995) (holding that because two prior sentences were "factually distinct," they were not related under � 4A1.2); United States v. Rappaport, 999 F.2d 57, 60 (2d Cir. 1993) (holding that although defendant's two prior state court convictions were disposed of simultaneously pursuant to Fla. R. Crim. P. Rule 3.170(b), a "close factual relationship between the underlying convictions" was still required under � 4A1.2); see also United States v. Patasnik, 89 F.3d 63, 74 (2d Cir. 1996) (holding that even though concurrent sentences were imposed on the same date, they were unrelated because the underlying offenses occurred on different dates, the victims were different, and there was no formal order made on the record consolidating the convictions); United States v. Keller, 58 F.3d 884, 895 (2d Cir. 1995) ("Simply because the same court imposes concurrent sentences at the same time does not establish that two or more otherwise unrelated cases were 'consolidated for sentencing,' and therefore 'related.'"). Sentences imposed on the same day only because of "administrative convenience" are, accordingly, not "related" unless a close factual relationship exists between them and they have been consolidated pursuant to a formal order. See United States v. Lopez, 961 F.2d 384, 387 (2d Cir. 1992).
A Rule 20 transfer order is, moreover, virtually indistinguishable from a transfer order issued under Fla. R. Crim. P. Rule 3.170(b), which we have held not to constitute a "formal order" consolidating two sentences. See Rappaport, 999 F.2d at 57. In Rappaport, the defendant had been sentenced on the same day before the same judge for two state court convictions. One of the cases had been transferred to the judge under Rule 3.170(b), which permits a defendant to plead guilty to all charges pending in the state in one court. We held that the nothing in the language of Rule 3.170(b) required the consolidation of the sentences and that therefore, the Rule 3.170(b) transfer order was not a "formal order" consolidating the sentences. As with Rule 3.170(b), Rule 20 permits a defendant to transfer a pending case to a district court in which he has been arrested. As with Rule 3.170(b), the consolidation of sentences before one district court judge is also not a direct function of the Rule 20 transfer order but is done instead purely for administrative purposes. Consequently, the mere fact that the PSR reports that Napoli's prior convictions were sentenced on the same day under Rule 20 is proof neither that the prior sentences were consolidated by formal order of the court nor that the underlying convictions were factually related. The district court committed no error in treating Napoli's two prior convictions as unrelated under � 4A1.2.
Napoli also contends that on March 23, 1994, his sentence of three years imprisonment for his Connecticut conviction was vacated and replaced with a probationary sentence. Under � 4A1.1(a), any sentence for which a defendant has served more than a year and a month of incarceration is assessed three criminal history points. Under 4A1.1(c), however, probationary sentences are assessed only one criminal history point. Because it is possible that Napoli may have served only his New Jersey sentence by the time his Connecticut sentence was vacated, we agree with the government that a remand is necessary for the district court to determine whether Napoli served more than a year and a month for his Connecticut conviction. If Napoli did not, then the district court must resentence him and correct the assessment of criminal history points for that conviction.
B. The Other Challenged Criminal History Calculations
(i) Paragraph 91 of the PSR
Napoli further argues that the district court erred by assigning him three criminal history points for a conviction for which a ten-year sentence of imprisonment had been imposed on January 20, 1984, because that sentence was subsequently vacated and reduced to probation on October 20, 1986. Napoli maintains that the district court should have deemed the January 20, 1984 sentence a probationary sentence imposed more than ten years before the commencement of the instant offense, and that he should have therefore received no points because under � 4A1.2(e)(2), prior probationary sentences are only assessed one criminal history point if the offense was committed within ten years of "the commencement of the defendant's instant offense."
Napoli's position is, however, directly contrary to the explicit terms of �4A1.2(e)(1), which states that:
Any prior sentence of imprisonment exceeding one year and one month that was imposed within fifteen years of the defendant's commencement of the instant offense is counted. Also count any prior sentence of imprisonment exceeding one year and one month, whenever imposed, that resulted in the defendant being incarcerated during any part of such fifteen-year period.
(Emphasis added.)
Napoli was incarcerated for over two and one half years on his original sentence before the sentence was reduced to probation. He therefore served a term of imprisonment of over one year and one month within the fifteen-year period covered by � 4A1.2(e)(1), and the district court properly assigned three criminal history points to the conviction.
(ii) Paragraphs 92 and 93 of the PSR
Napoli also challenges the district court's assignment of one criminal history point to each of two sentences of five years' probation imposed on him, respectively, on April 1, 1985, for conspiracy to commit fraud, and on May 29, 1985, for conspiracy to distribute cocaine. Napoli pled guilty to the cocaine conspiracy on September 28, 1982, and to the conspiracy to commit fraud on March 10, 1984. Napoli's sentencings for the two convictions were delayed, however, while he was cooperating with the government. Napoli maintains the delay in both cases was unnecessary and that it is fundamentally unfair for the government's actions to have brought his probationary sentences into the ten-year period for assignment of criminal history points under 4A1.2(e)(2). Under the plain terms of � 4A1.2(e)(2), however, any sentence of probation imposed "within ten years of the defendant's commencement of the instant offense is counted" in a defendant's criminal history calculations.
We agree with the government that Napoli's argument is an attempt "to have it both ways." Napoli's sentences were delayed to give him the potential benefits of cooperation. There is nothing "fundamentally unfair" in assessing Napoli criminal history points for sentences imposed within ten years of the instant offense when Napoli faced the possibility, if sentenced earlier, of having received extensive prison terms for the very serious crimes to which he had pled guilty and the consequent assessment of three criminal history points under �4A1.1(a) for those convictions.
V. Downward Departure Motion
U.S.S.G. � 5H1.4 authorizes courts to depart downwardly if a defendants suffers from an "extraordinary physical impairment." A heart condition by itself is not necessarily a reason to depart downwardly under the Guidelines. See United States v. Altman, No. 96�1298, 1996 WL 739239 (2d Cir. 1996) (affirming district court's refusal to downwardly depart based on sixty-four year-old defendant's serious heart problems and degenerative hip condition). Napoli maintains that he was nevertheless entitled to a departure because poor prison food and his administrative confinement as a former cooperating witness would negatively impact his condition. Napoli argues that the district court focused primarily on the ability of the Bureau of Prisons to treat his heart condition medically without adequately considering his status as an informant and the effect that segregation would have on his health. Napoli's argument is without merit.
It is well established in this circuit that a court's decision not to depart from the Guidelines is normally unappealable. See United States v. Brown, 98 F.3d 690, 692 (2d Cir. 1996) (per curiam). Such decisions are "appealable only where the [G]uidelines were misapplied, the court misapprehended its authority or imposed an illegal sentence." Id. (internal quotation marks omitted). There is nothing in the record to indicate that the district court erroneously believed it lacked the authority to depart if it so chose. Instead, the district court refused to depart downwardly only after satisfying itself that Napoli was receiving adequate treatment from the Bureau of Prisons, and only after the Chief of the FBI's Witness Security Program reported that Napoli would not be kept in segregation. In short, Napoli has asserted no proper ground to appeal the district court's refusal to depart downwardly on account of his physical condition.
Napoli also argues that he is entitled to a departure downwardly under �� 5K1.1 and 5K2.0 because he rendered "substantial assistance" to state law enforcement officials. We need not review the district court's conclusion that it lacked authority to depart without a motion from the government, see e.g., United States v. Kaye, 140 F.3d 86, 88-89 (2d Cir. 1998) (remanding for resentencing so district court could consider whether or not it wanted to downwardly depart under � 5K2.0 for defendant's cooperation with local law enforcement), because here the district court expressly stated that even if it had authority, it would not exercise it as a matter of discretion. In coming to this decision, the court explained that Napoli's alleged cooperation with law enforcement authorities was really nothing more than "a means for facilitating his criminal activities." There is ample evidence in the record to sustain the district court's conclusion, and Napoli may not appeal the district court's exercise of its discretion. See Brown, 98 F.3d at 692.
For the reasons discussed, we remand for the district court to determine whether Napoli served a year and a month for his Connecticut prison sentence before it was vacated and reduced to probation. If Napoli did not serve at least that amount of time on this conviction, the district court should resentence Napoli and correct its assessment of his criminal history points to reflect that fact. We affirm Napoli's sentence in all other respects.


text:
NBN Co and Sunshine Coast Council have reached an agreement over NBN towers in Glasshouse, Eudlo and Beerwah.
NBN towers for Beerwah, Eudlo, Glass House Mountains
by Sherele Moody
HIGH-speed wireless internet towers are set to be erected in Beerwah, Eudlo and Glass House Mountains.
Sunshine Coast Regional Council and the National Broadband Network Co have reached an agreement for the structures to be erected despite the council's original opposition to them.
Both parties appeared briefly in the Planning and Environment Court of Queensland on Wednesday.
Final judgments, listing their agreed terms, have not yet been released.
The Sunshine Coast Council rejected NBN Co's request to build the towers more than 12 months ago when the company applied for a planning permit at 419 Mooloolah Rd, Eudlo; 2001 Old Gympie Rd, Glass House Mountains; and at Lot 890, Tower Lane, Beerwah.
The council said no to the proposed towers on a number of grounds including that they did not fit in with the "identity and sense of place" of the Eudlo community; they would have an impact on the Glass House Mountains scenery; and the Beerwah structure conflicted with the region's planning scheme.
The council listed a number of other issues including that NBN Co's proposals did not "demonstrate sufficient grounds" that the towers were in the public interest.
In its appeal, NBN Co said there were no alternative places to erect the towers in each community.
The company also said there were "sufficient grounds" that the towers should go ahead because they were in the public interest; they would not look out of place; they would facilitate investment in each community; and they would not impact on residents' health.
- ARM NEWSDESK
beerwah eudlo glass house mountains internet nbn co planning and environment court sunshine coast regional council technology