United States v. Gonzales

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
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No. 93-1737

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                  ALBERTO GONZALES,

                                Defendant, Appellant.

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APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                       [Hon. Gene Carter, U.S. District Judge]
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Before

                     Torruella, Selya and Stahl, Circuit Judges.
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Stephen H. Mackenzie 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 appellee.
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                                  December 23, 1993

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SELYA, Circuit Judge.   This sentencing appeal  is long
                    SELYA, Circuit Judge.
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          on rhetoric, but short on  merit.  Having considered and rejected

          defendant's  three assignments of  error, we affirm  the judgment

          below.

                                          I
                                          I

                    First,  defendant-appellant  Alberto  Gonzales contends

          that  the district court  erred in imposing  a two-level sentence

          enhancement for  obstruction of  justice.1   See U.S.S.G.   3C1.1
                                                       ___

          (Nov. 1992).  The  contention is jejune.  We  review a sentencing

          court's   factfinding  in   these  precincts   with  considerable

          deference.  See,  e.g., United States v. Veilleux,  949 F.2d 522,
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          525-26 (1st Cir. 1991) (explaining that an obstruction of justice

          finding will be upheld if  not clearly erroneous); United  States
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          v. Wheelwright,  918 F.2d  226, 228  (1st  Cir. 1990)  (similar).
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          Here, the district court  had before it convincing  evidence that

          appellant  attempted to coax  an acquaintance into  bearing false

          witness about  a matter  material to the  case.   Such scurrilous

          deportment  clearly  can   constitute  obstruction  of   justice,

          warranting  a two-level enhancement of a defendant's base offense

          level.  See U.S.S.G.  3C1.1, comment. (n. 3(b)) (Nov. 1992).
                  ___

                    Attempting to avoid this result, appellant asserts that

          the district court failed to make a finding of specific intent in

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               1In  general, a sentencing  court applies the  guidelines in
          effect on the date of sentencing.  See United States v. Bell, 953
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          F.2d 6, 7 (1st Cir. 1992); United States v. Harotunian,  920 F.2d
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          1040, 1041-42 (1st Cir. 1990).  Gonzales was sentenced on July 2,
          1993.   Hence,  this  case  is controlled  by  the November  1992
          edition of the guidelines.

                                          2

respect to obstructing justice.   We read the record differently.

          The  judge  found  explicitly, and  supportably,  that  appellant

          "intentionally  and  knowingly  attempted   to  persuade  another

          individual to  testify falsely in  court as to a  material matter

          (e.g., that  law  enforcement agents  illegally  used  contraband
           ____

          substances  during a  drug buy  in the  course of  their official

          duties in this case)."   In our view, no more is exigible.  We do

          not  demand that  judges,  when explaining  the  bases for  their

          rulings, "be precise to the point of pedantry."  Lenn v. Portland
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          Sch.  Comm., 998  F.2d  1083, 1088  (1st  Cir. 1993)  (collecting
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          cases).  Giving due weight to context and common sense, we accept

          the  sentencing  judge's  use of  the  phrase  "intentionally and

          knowingly"  in  this  case  as the  functional  equivalent  of an

          express finding of specific intent.2

                                          II
                                          II

                    Next, appellant posits that the district court erred in

          failing to lower  his sentence for acceptance  of responsibility.

          See U.S.S.G.  3E1.1 (Nov. 1992).  We do not agree.
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                    A  defendant bears the burden of proving entitlement to

          decreases in  the offense level,  including downward  adjustments

          for acceptance of  responsibility.  See United States v. Morillo,
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          ___ F.3d ___, ___ (1st Cir. 1993) [No. 93-1388, slip op.  at 16];

          United  States v.  Bradley, 917  F.2d 601,  606 (1st  Cir. 1990).
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               2Appellant   also  suggests  that  the  act  of  subornation
          occurred because he  was suffering from opioid withdrawal.   That
          suggestion  has no  credible support  in the  record.   We cannot
          fault the district court for  failing to accept sheer speculation
          in place of hard proof.

                                          3

Once the sentencing  court has ruled against a  defendant on such

          an issue, he  "faces an uphill battle."  Morillo, ___ F.3d at ___
                                                   _______

          [slip op. at 16].  In large part, the uphill nature of the battle

          relates  to  the  standard  of  appellate  review:    "Whether  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 v. Royer, 895 F.2d 28, 29 (1st Cir. 1990) (citation
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          omitted).

                    Here, the uphill battle is  fought on a slope too steep

          for  appellant  to climb.    There  is  a  logical  inconsistency

          between, on one hand, attempting to obstruct justice, and, on the

          other hand,  accepting responsibility in  a timeous manner.   The

          guidelines acknowledge this  inconsistency.  Only  "extraordinary

          cases"   qualify  for   an  acceptance-of-responsibility   credit

          following  an  enhancement  for  obstruction  of  justice.    See
                                                                        ___

          U.S.S.G.    3E1.1, comment. (n.  4) (Nov. 1992); see  also United
                                                           ___  ____ ______

          States v.  Olea, 987 F.2d 874, 878 (1st  Cir. 1993).  A defendant
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          must carry the burden of proving that his case is "extraordinary"

          and,  thus, that  it  comes  within the  narrow  confines of  the

          exception.  See Olea, 987 F.2d at 878.
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                    Appellant  cannot scale  these heights.   The  district

          judge  discerned  "nothing   in  this   case  to   make  it   the

          extraordinary  case  required by  the guideline  application note

          that would justify  a reduction for acceptance  of responsibility

4

in the base offense level, in the face of the court's  finding of

          obstruction  of justice."  That conclusion  is fully supported by

          the record.  Indeed, the only thing extraordinary about this case

          is appellant's temerity in continuing to press for a credit under

          section 3E1.1 notwithstanding his failed effort at subornation. 

                    Undaunted, appellant tries another tack.  Invoking  the

          doctrine of United States v. Perez-Franco, 873 F.2d 455, 463 (1st
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          Cir.  1989),  appellant  says that  the  lower  court erroneously

          denied a section  3E1.1 adjustment based  on its perception  that

          appellant failed to accept responsibility for uncharged "relevant
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          conduct".  We think that appellant's reliance on  Perez-Franco is
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          mislaid.   There is a  meaningful distinction between a defendant

          who  does  not  accept  responsibility  for  conduct   underlying

          dismissed charges (the Perez-Franco scenario) and a defendant who
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          falsely denies, or  frivolously contests, the occurrence  of such

          behavior.   See Olea, 987 F.2d at 878.   While a defendant is not
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          required  affirmatively to admit  conduct beyond the  offenses of

          conviction   in  order  to   obtain  credit  for   acceptance  of

          responsibility, see  Perez-Franco, 873 F.2d  at 463, a  court may
                          ___  ____________

          properly  consider whether  a  defendant who  mendaciously denies

          relevant   conduct  has  acted  in  a  manner  inconsistent  with

          accepting  responsibility, see Olea,  987 F.2d  at 878;  see also
                                     ___ ____                      ___ ____

          U.S.S.G.  3E1.1,  comment.  (n.1(a))  (Nov. 1992).   The district

          court  found, in  effect, that  this case  belongs to  the latter

          genre.  The court's finding is supportable.  Thus, the assignment

          of error fizzles.

5

III
                                         III

                    Among  other   things,   appellant   pled   guilty   to

          purchasing, receiving,  and possessing  six handguns  after being

          convicted of  a felony.  See 18 U.S.C.    922 (g)(1), 924 (a)(2).
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          A  defendant charged  under  these  statutes  is  entitled  to  a

          reduction  in his  base offense  level  if he  can prove  that he

          possessed the  challenged firearms  "solely  for lawful  sporting

          purposes or collection."  U.S.S.G.  2K2.1(b)(2) (Nov. 1992).  The

          district court refused  to grant this  reduction.  Appellant  now

          complains.

                    A   defendant  bears  the   burden  of  proving   by  a

          preponderance of the  evidence that he is entitled  to a downward

          adjustment  under section   2K2.1(b)(2).   See  United States  v.
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          Cousens,  942  F.2d 800,  802  (1st Cir.  1992).   We  review the
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          sentencing  court's  findings of  fact  on this  issue  for clear

          error.  See id.   We have carefully sifted the  record, including
                  ___ ___

          appellant's changing  accounts of  why the  handguns were  in his

          possession.  Given the implausibility of appellant's tale and the

          dearth of corroborative  evidence, we find no clear  error in the

          district  court's finding that appellant was  acting neither as a

          sportsman nor  as a  collector in assembling  a small  arsenal of

          handguns.   Hence,  we uphold  the court's  refusal to  grant the

          requested reduction.

                                          IV
                                          IV

6

We need go  no further.3  Shortly  after the sentencing

          guidelines took effect, we wrote that:

                    Sentencing    appeals    prosecuted   without
                    discernible rhyme  or reason, in  the tenuous
                    hope that lightning may strike,  ought not to
                    be   dignified   with    exegetic   opinions,
                    intricate  factual  synthesis,  or full-dress
                    explications  of  accepted  legal principles.
                    Assuredly, a criminal  defendant deserves his
                    day in court;but we see no purpose in wasting
                    overtaxed judicial  resources razing  castles
                    in the air.

          United States v. Ruiz-Garcia, 886  F.2d 474, 477 (1st Cir. 1989).
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          So it is here.

The defendant's  conviction and sentence  are summarily
                    The defendant's  conviction and sentence  are summarily
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          affirmed.  See 1st Cir. Loc. R. 27.1.
          affirmed.  See 1st Cir. Loc. R. 27.1.
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               3Appellant's  remaining arguments are  meritless and  do not
          bear discussion.

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