United States v. Ocasio Rivera

• Court: Court of Appeals for the First Circuit
• Decided: April 1, 1993
• Docket: 92-2100
• Status: Published

Opinion

USCA1 Opinion

April 1, 1993
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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          No. 92-2100

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                RICHARD OCASIO-RIVERA,

                                Defendant, Appellant.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]
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                                        Before

                      Torruella, Selya and Cyr, Circuit Judges.
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Jeffrey M. Williams, with  whom Javier A. Morales Ramos  and
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          Indiano, Williams & Weistein-Bacal were on brief, for appellant.
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               Jose  A.  Quiles Espinosa,  Senior Litigation  Counsel, with
               _________________________
          whom  Daniel F. Lopez-Romo, United States  Attorney, and Edwin O.
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          Vazquez,  Assistant United  States Attorney,  were on  brief, for
          _______
          appellee.

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                                    April 1, 1993

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SELYA, Circuit Judge.  This is another in the seemingly
                    SELYA, Circuit Judge.
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          endless line of criminal appeals marching stolidly to the beat of

          the   federal  sentencing   guidelines.     Finding   appellant's

          lamentations to be  without merit, we affirm the sentence imposed

          below.

                                         I.  
                                         I.
                                         __

                                      Background
                                      Background
                                      __________

                    In  February 1992, a federal grand jury in the District

          of Puerto Rico returned a five-count indictment against a cluster

          of  defendants.   Appellant  Richard Ocasio-Rivera  was named  in

          three of the  five counts.   On May  5, 1992, Ocasio-Rivera  pled

          guilty to  count 4   a  count charging that, "[f]rom  on or about

          January 11, 1992  and continuing thereafter  up to and  including

          January  24,   1992,"  he  and  his   codefendants  conspired  to

          distribute four kilograms of cocaine to an undercover agent.  The

          court  ordered the  preparation  of  a presentence  investigation

          report (PSI Report).

                    At a  sentencing hearing held  on August 21,  1992, the

          district judge  determined the  guideline sentencing range  to be

          97-121 months (offense level 30; criminal history category I) and

          imposed  an  incarcerative  sentence slightly  below  the range's

          midpoint.1  This appeal ensued.

                                         II.
                                         II.
                                         ___

                                      Discussion
                                      Discussion
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               1The other charges against  appellant, contained in counts 1
          and 5, were dismissed.

                                          2

Ocasio-Rivera's appeal hinges  on three assignments  of

          error.  We discuss them seriatim.
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                                          A.
                                          A.
                                          __

                        The Alleged Sixth Amendment Violation
                        The Alleged Sixth Amendment Violation
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                    Appellant contends that he had a right, under the Sixth

          Amendment,2  to have  his  attorney present  during his  audience

          with  the  probation officer;  that  he sought  to  exercise this

          right;  that the  interview  nonetheless  proceeded in  counsel's

          absence;  and that,  therefore,  appellant's  sentence should  be

          vacated because it was based, in part, upon information  winnowed

          from him  during the uncounselled  interview and included  in the

          PSI  Report.   This contention  is reminiscent  of a  seldom used

          ketchup bottle:  at first glance, it looks full    but, even when

          tipped, slammed, and forcibly shaken, it is very difficult to get

          anything out of it.

                    The facts are these.  At  the change-of-plea hearing on

          May 5,  1992, appellant and  his lawyer were  advised that  a PSI

          Report  would be  compiled.   On May  22, the  probation officer,

          Antonio Bruno, confirmed  in writing that  he was performing  the

          required investigation.  Defense  counsel admits that he received

          this billet-doux no later than May 26.

                    On June 8,  Bruno interviewed appellant.  At that time,
                              
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               2The Sixth Amendment provides in pertinent part:

                    In  all  criminal  prosecutions, the  accused
                    shall  enjoy  the right  .  . .  to  have the
                    Assistance of Counsel for his defence.

          U.S. Const. amend. VI.

                                          3

appellant  lodged no  objection to  proceeding in  his attorney's

          absence.  It was not until June 10   two days after the interview

          had  been completed     that Bruno  received  a letter  from  the

          attorney  asking  for the  first time  to  be present  when Bruno
                            ___ ___  _____ ____

          questioned  his client.    At the  sentencing hearing,  appellant

          neither alleged a Sixth  Amendment violation nor moved to  strike

          the uncounselled statements.

                    It is a  bedrock principle in this circuit  that issues

          must be squarely  raised in the district court if  they are to be

          preserved for appeal.   See,  e.g., United States  v. Slade,  980
                                  ___   ____  _____________     _____

          F.2d 27, 30 (1st Cir. 1992); United  States v. Figueroa, 818 F.2d
                                       ______________    ________

          1020, 1025 (1st Cir. 1987).  That principle  applies unreservedly

          in  the criminal sentencing context.  See United States v. Ortiz,
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          966 F.2d 707, 717 (1st  Cir. 1992), cert. denied 113 S.  Ct. 1005
                                              _____ ______

          (1993); United States v.  Dietz, 950 F.2d 50, 55  (1st Cir. 1991)
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          (collecting cases); United States v. Pilgrim Mkt. Corp., 944 F.2d
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          14, 21 (1st Cir. 1991); United States v. Argentine, 814 F.2d 783,
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          790-91 (1st Cir. 1987).  There is, to be sure, a narrow exception

          for  unusually   compelling  circumstances,  but  it   is  to  be

          "exercised sparingly," mainly  in instances where  the previously

          omitted ground will ensure appellant's success and thus prevent a

          miscarriage of justice.  See Slade, 980 F.2d at 31; United States
                                   ___ _____                  _____________

          v. Krynicki, 689 F.2d 289, 291-92 (1st Cir. 1982).
             ________

                    That  ends  the  matter.   On  even  the  most generous

          reading  of the  record, it  is pellucidly  clear that  the Sixth

          Amendment  argument was  never called  to the  sentencing court's

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attention.   Because  the issue  was not  distinctly raised  in a

          timely  fashion in  the court  below, and  because the  attendant

          circumstances  are  manifestly   insufficient  to  overcome  this

          procedural  default,3 we conclude that  the issue is not properly

          before us.  Consequently, the assignment of error fails.

                                          B.
                                          B.
                                          __

                                 Role in the Offense
                                 Role in the Offense
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                    The court below rejected appellant's plea that he was a

          "minor"  or "minimal"  participant in  the conspiracy  and, thus,

          deserving  of a reduction in  the offense level  under U.S.S.G.  

          3B1.2  (Nov.   1991).     As   with   other   sentence-decreasing

          adjustments, a defendant must shoulder the burden of  proving his

          entitlement  to a  downward role-in-the-offense adjustment.   See
                                                                        ___

          Ortiz,  966 F.2d at  717; United States v.  Ocasio, 914 F.2d 330,
          _____                     _____________     ______

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               3We pause to mention two of the several factors that counsel
          against  relaxing  the  raise-or-waive  rule  in  this  instance.
          First,  the interests of judicial economy would be poorly served;
          this issue is  unlikely to arise again in  the District of Puerto
          Rico  because  the  probation  department's policy  is  to  allow
          defense  counsel to  attend  presentence  interviews upon  timely
          request.  Second, although we leave  the question open, we do not
          find appellant's argument "highly persuasive," Krynicki, 689 F.2d
                                                         ________
          at 292,  at least at first  blush.  Four circuits  have held that
          there  is  no  constitutional  right  to  counsel  at  a  routine
          presentence  interview in a non-capital case.   See United States
                                                          ___ _____________
          v. Tisdale, 952  F.2d 934, 940 (6th Cir. 1992);  United States v.
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          Johnson, 935 F.2d 47, 50 (4th Cir.),  cert. denied, 112 S.Ct. 609
          _______                               _____ ______
          (1991); United States  v. Woods,  907 F.2d 1540,  1543 (5th  Cir.
                  _____________     _____
          1990), cert.  denied,  111 S.Ct.  792  (1991); United  States  v.
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          Jackson, 886  F.2d 838, 844-45 (7th  Cir. 1989).   No circuit has
          _______
          ruled  to the  contrary    although  the  Ninth Circuit,  without
          reaching  the   constitutional   question,  has   exercised   its
          supervisory powers to "direct that probation officers be required
          to  permit defendants' counsel to accompany  their clients at the
          presentence interview."   United States  v. Herrero-Figueroa, 918
                                    _____________     ________________
          F.2d 1430, 1433 (9th Cir. 1990).

                                          5

332 (1st Cir. 1990).   Reviewing the  record in its entirety,  we

          think the  sentencing court  was amply  justified in  refusing to

          label  appellant a  minor  or minimal  participant.   We  explain

          briefly.  

                    Based  on  the  facts  contained  in  PSI  Report,  the

          sentencing court  could supportably  have found that,  on January

          10,  1992,  appellant  and  a  codefendant,  Juan  Mercado  Lopez

          (Mercado), together negotiated an anticipated multi-kilogram sale

          of cocaine to  an undercover agent;  that the two  men agreed  to

          sell three ounces as  a sample; that appellant remained  with the

          prospective purchaser  while  Mercado fetched  the  sample;  that

          appellant repeatedly assured the  "customer" about the quality of

          the cocaine and the availability of the larger quantity for which

          the trio had been  dickering; that the sample was  delivered; and

          that, eleven days later,  appellant received the purchaser's call

          that he was  ready to close  the deal.   The capture trap  sprang

          shut as consummation neared.

                    Although appellant  strives  to portray  himself  as  a

          minnow  in  service to  a big  fish  (Mercado), his  portrayal is

          unconvincing.  The facts set out above, in the ensemble,  paint a

          picture  of appellant  as far  more than  a minnow.   The logical

          inference   and the  one apparently adopted by the court  below  

          is that the two  men were roughly equal partners,  sharing risks,

          responsibilities,  and rewards.    On this  basis,  we think  the

          district court acted well  within its proper province  in finding

          that  appellant's role was neither minor nor minimal.  See United
                                                                 ___ ______

6

States  v. St. Cyr,  977 F.2d 698,  706 (1st Cir.  1992) (holding
          ______     _______

          that  "when  there are  two plausible  views  of the  record, the

          sentencing court's  adoption of one  such view cannot  be clearly

          erroneous"); United States v.  Ruiz, 905 F.2d 499, 508  (1st Cir.
                       _____________     ____

          1990) (similar).

                    Appellant's  principal  rejoinder  is that,  since  the

          January  10, 1992  "sample sale" was  the subject of  count 1 and

          since count 1  was dismissed, see supra note 1,  the judge should
                                        ___ _____

          not have  taken the evidence into  account.  We disagree.   It is

          well settled in the criminal law that evidence of prior uncharged

          conduct  (or, as  here, evidence  of prior  conduct related  to a

          defunct  count) is relevant and admissible  to complete the story

          of a charged crime by illuminating the chain of events leading up

          to the charged crime and the context in which the crime occurred.

          See, e.g., United States v. Devin, 918 F.2d 280, 286, 287-88 (1st
          ___  ____  _____________    _____

          Cir. 1990); United States v. Reveron-Martinez,  836 F.2d 684, 688
                      _____________    ________________

          (1st  Cir. 1988); United States v.  Currier, 821 F.2d 52, 55 (1st
                            _____________     _______

          Cir. 1987).  So here.  The January 10 sale, involving, as it did,

          a  sample  for  the  larger  transaction  that  the  parties were

          contemplating, was  in the nature of a  dress rehearsal.  It was,

          therefore, eminently reasonable for the judge to extrapolate from

          the events  of  January  10 in  deducing  the  appellant's  place

          within, and relationship to, the conspiracy charged in count 4.

                                          C.
                                          C.
                                          __

                             Acceptance of Responsibility
                             Acceptance of Responsibility
                             ____________________________

                    U.S.S.G.   3E1.1 (Nov.  1991) allows a sentencing court

7

to bestow a  two-level downward adjustment  upon a defendant  who

          accepts  responsibility.   The  ultimate  question under  section

          3E1.1 is not whether the defendant has uttered  "a pat recital of

          the  vocabulary of contrition,"  but whether he has accepted full

          responsibility for  his  part in  the  offense of  conviction  by

          demonstrating "candor  and authentic remorse."   United States v.
                                                           _____________

          Royer,  895 F.2d  28, 30  (1st Cir.  1990); accord,  e.g., United
          _____                                       ______   ____  ______

          States v. Uricoechea-Casallas, 946 F.2d 162, 167 (1st Cir. 1991);
          ______    ___________________

          United States v. Bradley, 917 F.2d 601, 606 (1st Cir. 1990).  The
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          defendant  has  the  burden  of  proving  his  entitlement  to an

          acceptance-of-responsibility credit,  see  Bradley, 917  F.2d  at
                                                ___  _______

          606,  and the  sentencing court's  determination to  withhold the

          reduction will  be overturned  only if  it is clearly  erroneous.

          See Royer, 895 F.2d at 29.
          ___ _____

                    We have placed a  gloss on the use of  section 3E1.1 in

          multiple-count cases.  In United States v. Perez-Franco, 873 F.2d
                                    _____________    ____________

          455  (1st Cir.  1989),  we held  that,  in  order to  obtain  the

          reduction, a  defendant   "must accept responsibility  solely for

          the counts to which he  is pleading guilty."  Id. at 463.   Here,
                                                        ___

          appellant  unsuccessfully sought  an acceptance-of-responsibility

          discount in  the court  below.  On  appeal, he contends  that the

          district judge transgressed the Perez-Franco rule, denying relief
                                          ____________

          because he,  appellant, would  not accept responsibility  for the

          nefarious conduct  underlying the  dismissed counts.   The record

          belies the contention.

                    As   indicated  previously,   see  supra   Part  II(B),
                                                  ___  _____

8

appellant labored at sentencing to convince the court that he was

          a mere tagalong  in a  conspiracy orchestrated by  Mercado.   The

          judge debunked this account and found instead that  appellant, by

          proclaiming  he  was  a tagalong  when  he  was  actually a  full

          partner, had engaged in a campaign to minimize his involvement in
                                                                         __

          the offense of  conviction.  It was on that  basis that the lower
          ___ _______ __  __________

          court denied the downward adjustment.  We discern no error.

                    Where a defendant resorts  to evasions, distortions, or

          half-truths  in an  effort to  minimize his  culpability, whether

          during a presentence interview or in his allocution, the district

          court may  appropriately  decide to  withhold  an  acceptance-of-

          responsibility credit under section 3E1.1.  See United  States v.
                                                      ___ ______________

          Reyes, 927 F.2d 48, 51 (1st Cir. 1991); Bradley, 917 F.2d at 606;
          _____                                   _______

          see  also United  States v.  Chalkias, 971  F.2d 1206,  1216 (6th
          ___  ____ ______________     ________

          Cir.), cert. denied, 113 S. Ct. 351 (1992).  This case is cast in
                 _____ ______

          that  mold.   The sentencing  court made  an explicit  finding of

          conscious minimization   a  finding that was adequately supported

          by the  record and not vulnerable to clear-error attack.  No more

          was exigible.

                                         III.
                                         III.
                                         ____

                                      Conclusion
                                      Conclusion
                                      __________

                    We need go no further.  The  ketchup bottle is dry (or,

          at  least,  congealed)  and  the other  condiments  served  up by

          appellant  lack zest.    Having tasted  the  full flavor  of  the

          unseasoned appeal,  we  conclude that  appellant's  sentence  was

          lawful.

9

Affirmed.
          Affirmed.
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10