United States v. Colon Rivera

Opinion

USCA1 Opinion

[NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

        No. 92-2205

                                    UNITED STATES,
                                      Appellee,

                                          v.

                                LUIS A. COLON-RIVERA,
                                Defendant, Appellant.

                                      __________

        No. 92-2206

                                    UNITED STATES,
                                      Appellee,

                                          v.

                             JOSE ALBERTO ACEVEDO-GUZMAN,
                                Defendant, Appellant.
                                 ____________________

                    APPEALS FROM THE UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF PUERTO RICO

                    [Hon. Hector M. Laffitte, U.S. District Judge]
                                              ___________________
                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                        Torruella and Boudin, Circuit Judges.
                                              ______________

                                 ____________________

            Gustavo Adolfo  Del Toro  on brief  for appellant  Luis A.  Colon-
            ________________________
        Rivera.
            H.  Manuel Hernandez  on  brief  for appellant  Jose  A.  Acevedo-
            ____________________
        Guzman.
            Charles E.  Fitzwilliam, United States  Attorney, Jose A.  Quiles-
            _______________________                           ________________
        Espinosa, Senior  Litigation Counsel, and Edwin  O. Vazquez, Assistant
        ________                                  _________________
        United States Attorney, on brief for appellee.
                                 ____________________

                                  September 9, 1993
                                 ____________________

Per  Curiam.    Appellants Jose  Alberto  Acevedo-
                       ___________

             Guzman ("Acevedo") and  Luis A. Colon-Rivera  ("Colon") each

             pled  guilty to one count of committing bank robbery, see 18
                                                                   ___

             U.S.C.    2113(a), 2113(d), and  one count of using firearms

             during  the commission  of  such crime.    See 18  U.S.C.   
                                                        ___

             924(c)(1)(3).  Acevedo and Colon  challenge their respective

             sentences on  grounds  that the  sentencing judge  committed

             various  errors in  applying  the Sentencing  Guidelines  to

             their cases.  We affirm.

                                          I

                                      Background
                                      __________

                       In  the presentence  report and  at the  change of

             plea  hearing,  the United  States  proffered  the following

             evidence of the appellants'  guilt.  On January 3,  1992, at

             approximately 9:30  a.m., Colon  and Acevedo arrived  at the

             doors of the Banco Santander de Puerto Rico,  Laguna Gardens

             Branch.   Upon  encountering  a bank  security guard,  Colon

             struck  the security guard on  the head with  a revolver and

             dragged him inside the  bank.  Colon and Acevedo,  armed and

             wearing masks, then entered  the bank, along with  two other

             perpetrators,  and  announced a  bank  robbery.   Colon  and

             Acevedo jumped  over the  tellers' counter and  proceeded to

             take money from the bank tellers' drawers. During this time,

             Acevedo instructed Colon as to which money be taken in order

             to avoid  dye packs.  He  also struck one of  the tellers in

             the  back with his weapon,  threatened to kill  all of them,

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and  asked   the  tellers   where  the  bank   manager  was.

             Thereafter, Acevedo  went to  the manager's office,  grabbed

             the  manager by the hair,  and asked for  the combination to

             the vault,  from where he took almost $30,000. 

                       After leaving the bank,  the four men attempted to

             make their  get-away in  a Mitsubishi Mirage,  which Acevedo

             had helped to  steal two  days earlier.   Their attempt  was

             quickly  stymied when a  dye pack  exploded inside  the car,

             forcing them to abandon it.  They then carjacked a Chevrolet

             Cavalier station  wagon from a passing  motorist, and headed

             towards the San Jose lagoon.   At the lagoon, they boarded a

             small boat in an attempt to  escape.  Their escape route was

             blocked by  a police  helicopter, whose pilot  observed five

             people  on the vessel.   Shots were fired  at the helicopter

             from the boat, and Colon, in particular, was observed firing

             an AR-15 rifle at the helicopter.  The boat then turned back

             to the lagoon.  Before surrendering himself,  Colon was seen

             shooting towards the police officers on the ground. 

                       On  June  22-23, 1992,  the  appellants  each pled

             guilty  to  both counts  of  the  indictment.   Acevedo  was

             sentenced  to  a  term of  235  months  on  the first  (bank

             robbery) count, and a  consecutive term of 60 months  on the

             second (firearms)  count.  In  arriving at this  amount, the

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sentencing  judge  determined  that  Acevedo  had  played  a

             leadership role in an  offense involving five  participants;

             he  therefore increased  the  offense level  by  four.   See
                                                                      ___

             U.S.S.G.    3B1.1(a).   He also found  that Acevedo  had not

             accepted responsibility for his involvement  in the offense,

             and thus  denied  a  two-level  decrease.   See  U.S.S.G.   
                                                         ___

             3E1.1(a).    Colon was  sentenced to  a  term of  175 months

             imprisonment on the  first count,  and 60 months  as to  the

             second,  to  be  served   concurrently.    In  setting  this

             sentence,  the judge  awarded a  seven-level increase  after

             finding that  a revolver was discharged  during the robbery,

             see  U.S.S.G.    2B3.1(b)(2)(A),  and a  two level  increase
             ___

             after finding that Colon  had recklessly created grave risks

             to  others in the course  of fleeing from  a law enforcement

             officer.  See U.S.S.G.   3C1.2.
                       ___

                                          II

                                       Acevedo
                                       _______

                       Acevedo argues that the  sentencing judge erred by

             enhancing his offense level  for his alleged leadership role

             in the crime, and  by declining to reduce his  offense level

             for his acceptance of responsibility.  We disagree.

                       A. Leadership Role
                          _______________

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The sentencing  judge found  that  Acevedo was  an

             "organizer or  leader" of a criminal  activity that involved

             five  or   more  participants,  and  imposed   a  four-level

             enhancement,   as   authorized  by   U.S.S.G.      3B1.1(a).

             Appellant attacks  this enhancement  on grounds that  (1) he

             had  a  co-equal  role in  the  offense,  and  (2) there  is

             insufficient evidence to establish that the offense involved

             five or more participants.  

                       We find that the district court had ample evidence

             to support its conclusion.  See United States v. Wright, 873
                                         ___ _____________    ______

             F.2d 437, 443 (1st  Cir. 1989) (district court's application

             of the  "role in the  offense" guidelines to  the particular

             facts  of  each  case  should,  absent  mistake  of  law, be

             reviewed only  for clear  error).  Acevedo's  leadership was

             demonstrated  by  his prominent  role  in orchestrating  the

             heist.    See U.S.S.G.     3B1.1,  Application  Note  3  (in
                       ___

             determining  whether   a  defendant  had  a   leadership  or

             organizational role  within the  meaning of  this provision,

             the  court   considers  such  factors  as   "the  nature  of

             participation  in the  commission of  the offense").   After

             jumping over the tellers' counter with Colon, it was Acevedo

             who gave orders to Colon as to which money to  take in order

             to avoid the  dye pack.   Acevedo engaged  in other  conduct

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critical to the enterprise that apparently  no one else did,

             such  as procuring the get-away car, threatening to kill the

             tellers, asking them  for the bank manager,  asking the bank

             manager for the vault combination, and taking the money  out

             of the safe.   See United States  v. Fuller, 897 F.2d  1217,
                            ___ _____________     ______

             1220  (1st  Cir.  1990)  (   3B1.1  enhancement  applies  if

             defendant  "exercised some  degree  of control  over  others

             involved  in the commission of  the offense or  he must have

             been responsible  for organizing  others for the  purpose of

             carrying out the crime").   

                       We also reject Acevedo's contention that there was

             insufficient evidence for  the sentencing judge to  conclude

             that there were  five or more  participants involved in  the

             offense.  According to the  record, the helicopter pilot who

             intercepted the fleeing boat  asserted that he observed five

             individuals  aboard   it.     Such  evidence  was   properly

             considered  by the sentencing  judge.  See  U.S.S.G.   6A1.3
                                                    ___

             (sentencing  court may  consider  all pertinent  information

             which has "sufficient indicia  of reliability to support its

             probable accuracy").  Furthermore, the judge's determination

             as to its reliability is entitled to considerable deference.

             See  United States v. Bradley,  917 F.2d 601,  605 (1st Cir.
             ___  _____________    _______

             1990).  

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B.  Acceptance of Responsibility
                           ____________________________

                       We  also  find that  the  district  court did  not

             clearly  err  in  finding  that  Acevedo  had  not  accepted

             responsibility for his criminal  conduct, and in refusing to

             reduce  his  offense level  by two.    See United  States v.
                                                    ___ ______________

             Reyes, 927 F.2d 48, 50 (1st Cir. 1991) (denial of a downward
             _____

             adjustment  for  acceptance of  responsibility  reviewed for

             clear error).   The  Sentencing  Guidelines authorize  trial

             courts to  grant a two-level reduction to a defendant's base

             offense level only "[i]f  the defendant clearly demonstrates

             a   recognition  and  affirmative   acceptance  of  personal

             responsibility for his  criminal conduct."    See U.S.S.G.  
                                                           ___

             3E1.1(a).  Although  Acevedo did enter  a guilty plea,  this

             act alone does  not entitle him to an adjustment as a matter

             of  right.  See U.S.S.G.    3E1.1(c).   Rather, a sentencing
                         ___

             court  considers  a  variety   of  factors  in  making  this

             determination.   See  Reyes, 927  F.2d at  51.   A defendant
                              ___  _____

             presents   significant  evidence   of   his  acceptance   of

             responsibility by -- in addition to entering a guilty plea -

             -   truthfully  admitting,  or   not  falsely  denying,  his

             involvement  in  the  offense  and  related  conduct.    See
                                                                      ___

             U.S.S.G.    3E1.1,  Application Note 3.   At  his sentencing

             hearing, however,  Acevedo denied having played a leadership

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role  in the  offense,  giving instructions  to his  cohorts

             inside the  bank, threatening the bank  teller, and grabbing

             the manager  by the  hair.   See Reyes, 927  F.2d at  51 (no
                                          ___ _____

             clear   error   to   deny  reduction   for   acceptance   of

             responsibility  for a  defendant who,  after being  found to

             have had a leadership role in offense, attempted to minimize

             such role); United States  v. Shipley, 963 F.2d 56,  59 (5th
                         _____________     _______

             Cir.)  (same),   cert.  denied,  113  S.   Ct.  348  (1992).
                              _____  _______

             Moreover, the record here, as in Reyes, "is most notable for
                                              _____

             the fact that a genuine feeling  of remorse is conspicuously

             lacking."  Reyes, 927 F.2d at 51.  When asked why he pleaded
                        _____

             guilty, for example, Acevedo answered "because I had nothing

             in  my favor so to speak," and  when asked how he felt about

             participating in the  robbery, he said that  "I am repentant

             because I'm not able to see my family." 

                                          II

                                        Colon
                                        _____

                       Colon contends that the  sentencing judge erred by

             raising  his  offense level  to reflect  the discharge  of a

             firearm  and  his  reckless  endangerment  of  others.    We

             disagree.      A.  Firing Weapon
                                _____________

                       The  district court enhanced Colon's offense level

             by  seven levels,  pursuant  to U.S.S.G.    2B3.1(b),  which

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discusses "Specific Offense Characteristics," and authorizes

             an  increase   of  such   magnitude  "[i]f  a   firearm  was

             discharged." U.S.S.G.   2B3.1(b)(2).

                       Colon  challenges this  enhancement on  the ground

             that "[t]here is  no evidence whatsoever that  a firearm was

             discharged during the robbery."   But the presentence report

             specifically states  that Colon "was  observed shooting  the

             helicopter with  an  AR-15 rifle,"  and that  "he also  shot

             toward the police officers  before surrendering."  Colon may

             mean to argue that   2B3.1(b)(2)(A) authorizes a seven-level

             increase  only if a firearm was discharged during the actual

             robbery,  i.e., while he and  his cohorts were  in the bank;
                       ____

             since  he fired his weapon  after they had  already left the

             bank, such an  increase is  not warranted.   See U.S.S.G.   
                                                          ___

             2B3.1,  Background ("Possession  or use  of a  weapon .  . .

             sometimes occur[s] during a robbery.  The guideline provides
                                ________________

             for  a  range of  enhancements  where  th[is] factor[]  [is]

             present.") (emphasis added).

                       If  this  is Colon's  intended  argument,  then it

             fails.   The  Sentencing Guidelines  expressly state  that a

             defendant's conduct in  escaping detection or responsibility

             for an  offense is to be considered  in determining specific

             offense characteristics,  and  hence the  Guideline  offense

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level.    See U.S.S.G.     1B1.3(a)(1) ("[U]nless  otherwise
                       ___

             specified,  . .  . specific  offence  characteristics .  . .

             shall  be determined  on the  basis of  . .  . all  acts and

             omissions committed or aided and abetted by the defendant  .

             . . that occurred . . . in the course of attempting to avoid

             detection  or responsibility  for  that offense  . .  . .").

             Indeed, two sister circuits  have specifically stated that a

             bank robber's conduct,  and the consequences  thereof, while

             fleeing the  bank are considered for  sentencing purposes as

             part of the  offense.   See United States  v. Muhammad,  948
                                     ___ _____________     ________

             F.2d 1449, 1456  (6th Cir. 1991) (police officer  injured by

             bank robber after he had fled the bank was a "victim" of the

             robbery   within  the  meaning  of  U.S.S.G.    2B3.1(b)(3),

             thereby  warranting an  increase  in offense  level),  cert.
                                                                    _____

             denied,  112 S. Ct. 1239 (1992); United States v. Bates, 896
             ______                           _____________    _____

             F.2d 912, 914-15 (5th Cir.) (rejecting as meritless argument

             that defendant's  conduct during flight from  bank he robbed

             was not part of  offense while allowing upward departure  on

             ground   that   post-robbery   conduct    was   particularly

             egregious), cert. denied, 496 U.S. 929, 942 (1990).
                         _____ ______

                       B.  Reckless Endangerment during Flight
                           ___________________________________

                       Colon  also  challenges  the   sentencing  judge's

             decision  to   increase  his   offense  level  by   two  for

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"recklessly  creat[ing]  a  substantial  risk  of  death  or

             serious bodily  injury to  another person in  the course  of

             fleeing from a law enforcement  officer."  U.S.S.G.   3C1.2.

             Although Colon  does not  state  the precise  ground of  his

             challenge, he  may have intended  to contend that  the judge

             enhanced  his sentence  twice  for firing  a  weapon at  the

             police, the first time  being the seven-level increase under

                2B3.1(b)(2)(A).    A  double  enhancement  for  the  same

             conduct, however, would disregard the commentary to U.S.S.G.

               3C1.2, which  states that  judges should  "not apply  this

             enhancement where the offense guideline in Chapter Two . . .

             results  in an  equivalent  or greater  increase in  offense

             level solely on the basis of the same conduct."   U.S.S.G.  

             3C1.2, Application Note 1.  

                       If  this  is  Colon's  argument,  then  it  fails.

             Continuously firing a rifle, and carrying on a gunfight with

             the police  in  public, outside  the bank,  carries with  it

             significantly greater risks to others than a simple shooting

             episode.  Moreover, during  his flight from the  bank, Colon

             recklessly created grave risks  to other individuals in ways

             other than simply firing  at the police: he and  his cohorts

             also crashed  their get-away  car into another  vehicle, and

             carjacked another vehicle by  holding its owner at gunpoint.

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These  are more  than sufficient  to warrant  an enhancement

             under   3C1.2, without double counting.

                       For the  foregoing reasons, the  sentences imposed

             are

                       Affirmed.
                       ________

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