United States v. Avalo

Opinion

USCA1 Opinion

February 14, 1994     [NOT FOR PUBLICATION]
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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          No. 93-1923

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                            TIRSO BOLIVAR GONZALEZ AVALO,

                                Defendant, Appellant.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                     [Hon. D. Brock Hornby, U.S. District Judge]
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                              _________________________

                                        Before

                              Torruella, Circuit Judge,
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                            Bownes, Senior Circuit Judge,
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                              and Selya, Circuit Judge.
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                              _________________________

               Christopher W. Dilworth on brief for appellant.
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               Jay P.  McCloskey, United  States Attorney,  and Michael  M.
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          DuBose, Assistant United States Attorney, on brief for the United
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          States.

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Per Curiam.   This  criminal appeal  arises out  of the
                    Per Curiam.
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          conviction of  defendant-appellant, Tirso Bolivar  Gonzalez Avalo

          (Gonzalez),  on two counts of  conspiracy to possess a controlled

          substance, cocaine, with intent to  distribute it.  See 21 U.S.C.
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             841(a)(1), 841(b)(1)(C), 846.   After a trial in which  a jury

          found appellant  guilty, the  district court  imposed a  97-month

          incarcerative  sentence.   Appellant contests the  conviction and

          also  challenges aspects  of  the  computations  leading  to  his

          sentence.  We affirm.

                                          I
                                          I

                    Appellant assails his  conviction solely on the  ground

          of  alleged  evidentiary  insufficiency.    Following   a  guilty

          verdict,  a reviewing court  must scrutinize the  record, drawing

          all reasonable inferences in  favor of the verdict, to  ascertain

          if a  rational jury could  have found that the  government proved

          each element of the crime beyond a  reasonable doubt.  See United
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          States v.  Echeverri, 982 F.2d  675, 677 (1st Cir.  1993); United
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          States v. Ortiz, 966 F.2d 707, 711 (1st Cir. 1992), cert. denied,
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          113 S. Ct. 1005 (1993).  The government can satisfy its burden of

          proof  by  either   direct  or  circumstantial  evidence.     See
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          Echeverri, 982 F.2d at 679; United States v. Rivera-Santiago, 872
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          F.2d 1073,  1079 (1st Cir.),  cert. denied, 492 U.S.  910 (1989).
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          To sustain a conviction, a reviewing court need not conclude that

          only  a  guilty verdict  could  appropriately be  reached;  it is

          enough that  the jury's  determination draws its  essence from  a

          plausible reading of the record.  See Echeverri, 982 F.2d at 677;
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Ortiz, 966 F.2d at 711.
          _____

                    Using these guideposts, the quantum of evidence adduced

          here  is  more   than  adequate.    If  the   jury  believed  the

          government's  witnesses,  Gonzalez was  guilty, pure  and simple.

          Appellant virtually  concedes this point, but argues that the key

          witnesses  against him had  poor memories, character  flaws, drug

          addictions,  and  selfish  reasons  for  finger-pointing.    This

          argument  has some basis  in the record,  but it  was fully aired

          during cross-examination and in defense counsel's summation.  The

          jury obviously believed the evidence was reliable.  That ends the

          matter:   credibility  calls  are  within  the  jury's  exclusive

          province, see  United Sates v. David, 940 F.2d 722, 730 (1st Cir.
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          1991), cert.  denied, 112 S.  Ct. 2301 (1992), and,  therefore, a
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          claim  of  evidentiary  insufficiency  that  rests  upon  witness

          credibility cannot succeed.  See, e.g., United States v. Serrano,
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          870 F.2d 1, 5 (1st Cir. 1989).  So it is here.

                                          II
                                          II

                    Appellant's  attack  on his  sentence  advances  on two

          fronts.  Neither invasion succeeds.

                    1.   Role in  the Offense.   Appellant claims  that the
                    1.   Role in  the Offense.
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          district  court erred  in its  determination of  his role  in the

          criminal activity.  See U.S.S.G.  3B1.1(c) (Nov. 1992) (providing
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          a two-level increase for  assuming managerial responsibilities in

          certain  criminal endeavors).  Hiking a defendant's offense level

          under  this provision  is  justified  if  the  court  supportably

          determines  that the offense(s)  of conviction involved  at least

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two participants, and  that the defendant exercised  control over

          one of them.   See United States  v. Fuller, 897 F.2d  1217, 1220
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          (1st Cir. 1990).  "The government must bear the burden of proving

          that  an  upward  role-in-the-offense adjustment  is  warranted."

          United Sates v. Morillo, 8 F.3d 864, 872 (1st Cir. 1993).
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                    In  his brief,  appellant says  that  the increase  was

          unjustified, not because of a  lack of evidence, but because "the

          government's  witnesses were not credible."  Appellant's Brief at

          10.   That suggestion  goes nowhere.   Just  as the  jury is  the

          principal arbiter of  witness credibility at trial,  the judge is

          the  principal arbiter of credibility at  sentencing.  See United
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          States  v. St.  Cyr, 977 F.2d  698, 706 (1st  Cir. 1992) (holding
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          that credibility determinations during the sentencing phase  "lie

          within  the domain  of the  district court").   Consequently, the

          claim of error cannot prosper.

                    2.   Acceptance of Responsibility.   Finally, appellant
                    2.   Acceptance of Responsibility.
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          posits  that the  district court  erred in  failing to  lower his

          offense level  for acceptance  of responsibility.   See  U.S.S.G.
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           3E1.1 (Nov. 1992).  We do not agree.

                    A   defendant  must   carry   the  burden   of  proving

          entitlement   to  reductions  in  the  offense  level,  including

          downward  adjustments for  acceptance  of  responsibility.    See
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          Morillo, 8 F.3d at 871;  United States v. Bradley, 917  F.2d 601,
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          606 (1st  Cir. 1990).  Where,  as here, the sentencing  court has

          ruled against a defendant on  such an issue, the defendant "faces

          an uphill battle."   Morillo, 8 F.3d  at 871.  It  is, after all,
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firmly settled  that "[w]hether a defendant 'clearly demonstrates

          a   recognition   and   affirmative   acceptance   of    personal

          responsibility'  is  a  fact-dominated issue,  and  the  district

          court's  decision to withhold  a reduction  in the  offense level

          will not  be overturned unless clearly erroneous."  United States
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          v. Royer, 895 F.2d 28, 29 (1st Cir. 1990) (citation omitted).
             _____

                    We  have  read  the  record  with  care,  and  find  no

          compelling evidence that appellant  accepted responsibility in  a

          timely manner.  To the contrary he pled not guilty and maintained

          his innocence  throughout the  trial.  To  be sure,  a sentencing

          court can  still find a  timely acceptance  of responsibility  in

          such circumstances, see U.S.S.G.  E1.1, comment. (n.2), but it is
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          hard to fault  the court for being  skeptical.1  There is  no way

          that we,  from the vista of a  cold appellate record, can second-

          guess the trial  judge (who saw and  heard the defendant).   See,
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          e.g., United States v.  Cepeda, 907 F.2d 11, 11 (1st  Cir. 1990).
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          Absent clear error    and we see none  here   we must  uphold the

          sentencing court's refusal  to reduce  appellant's offense  level

          for acceptance of responsibility.

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               1Appellant argues that he would have accepted responsibility
          earlier, but  for his uncertainty about the  drug quantities that
          would  be attributed  to him.   There are two  problems with this
          asseveration.  First,  there is nothing in the  record to suggest
          that this is  any more  than post-hoc  rationalization.   Second,
                                       ____ ___
          even if it were to be given some  credence, we have characterized
          an  offer to  plead  guilty  "subject to"  an  agreement on  drug
          quantity   as  "too  problematic"  to  serve  as  the  functional
          equivalent of acceptance  of responsibility.  Morillo,  8 F.3d at
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          872.

                                          6

The defendant's  conviction and sentence  are summarily
                    The defendant's  conviction and sentence  are summarily
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          affirmed.  See 1st Cir. R. 27.1.
          affirmed.  See 1st Cir. R. 27.1.
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