United States v. Tirado-Torres

Opinion

USCA1 Opinion

April 12, 1994
                                [NOT FOR PUBLICATION]
                                [NOT FOR PUBLICATION]

                            United States Court of Appeals
                            United States Court of Appeals
                                For the First Circuit
                                For the First Circuit
                                 ____________________

        No. 93-1582

                                    UNITED STATES,

                                      Appellee,

                                          v.

                              GERARDO H. TIRADO-TORRES,

                                Defendant, Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                    [Hon. Jose Antonio Fuste, U.S. District Judge]
                                              ___________________

                                 ____________________

                                        Before

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

                                 ____________________

            Hector Deliz on brief for appellant.
            ____________
            Jose  A.  Quiles-Espinosa,  Senior  Litigation  Counsel,   Ernesto
            _________________________                                  _______
        Hernandez-Milan,  Assistant United States Attorney, and Guillermo Gil,
        _______________                                         _____________
        United States Attorney, on brief for appellee.

____________________

____________________

Per  Curiam.   Defendant-appellant  Gerardo Tirado-
                      ___________

            Torres appeals  from the sentence imposed  upon him following

            his  guilty plea, arguing, inter alia, that he is entitled to
                                       _____ ____

            an   additional  point   reduction  for  his   acceptance  of

            responsibility  and  that  he   is  entitled  to  a  downward

            departure  for  his  assistance  to  government  authorities.

            Finding no error, we affirm.

                                          I.
                                          I.
                                          __

                       FACTUAL BACKGROUND AND PRIOR PROCEEDINGS
                       FACTUAL BACKGROUND AND PRIOR PROCEEDINGS
                       ________________________________________

                      Defendant   established    business   colleges   at

            different   locations   and  fraudulently   obtained  federal

            education  funds, mostly  Pell Grants.   He  then used  these

            funds for his own private, non-educational purposes.  Through

            the  scheme,   defendant   improperly  obtained   more   than

            $2,500,000.   A fifteen-count  indictment charged him  with a

            variety of  offenses  involving the  manipulation of  federal

            funds.  On the day before trial, he pleaded guilty to four of

            the counts.

                      As  part of  the  plea  agreement,  the  government

            agreed  to consider  filing a  motion for  downward departure

            depending  on   the  degree  of  defendant's   assistance  to

            government authorities.  Prior to the day of sentencing,  the

            government  filed such  a  motion pursuant  to United  States

            Sentencing Guidelines ("U.S.S.G.")   5K1.1.

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Based on the offenses covered by the four counts to

            which defendant pleaded,  he began with a base  offense level

            (BOL) of six, pursuant  to U.S.S.G.   2F1.1(a).   Because the

            fraudulent  scheme resulted  in losses  to the  government in

            excess of  $2,500,000, a thirteen-level upward adjustment was

            made  to the BOL pursuant  to U.S.S.G.    2F1.1(b)(1)(N).  In

            addition, a further two-level  upward adjustment was made for

            more than minimal planning under U.S.S.G.   2F1.1(b)(2)(A); a

            four-level  upward adjustment was  added based on appellant's

            role  in the offense pursuant  to U.S.S.G.    3B1.1(a); and a

            two-level upward adjustment was added for abuse of a position

            of trust under U.S.S.G.   3B1.3.

                      Finally, the court granted a two-level reduction in

            defendant's    offense   level   for    his   acceptance   of

            responsibility, but it rejected the government's motion for a

            downward  departure  based  upon  defendant's  assistance  to

            government authorities.  This  left defendant with an offense

            level of twenty-five.   Given a criminal history of  one, the

            sentence range was from  fifty-seven to seventy-one months of

            imprisonment  with a  possible fine  ranging from  $10,000 to

            $100,000, plus a  term of supervised release  of three years.

            Defendant was sentenced  to concurrent  terms of  fifty-seven

            months imprisonment, the lowest possible under the applicable

            guideline  range, concurrent  three-year terms  of supervised

            release and  a special  monetary assessment of  fifty dollars

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per count for a total of two hundred dollars, with no further

            fine.

                      On  appeal,  defendant  argues  that  his  sentence

            should be vacated because 1) his acceptance of responsibility

            entitled  him to a three  point reduction, rather  than a two

            point  reduction in  his BOL;  and 2)  his assistance  to the

            government entitled him to a downward departure.1

                                         II.
                                         II.
                                         ___

                                      DISCUSSION
                                      DISCUSSION
                                      __________

            A.  Section 3E1.1:  The Downward Adjustment
            ___________________________________________

                      "Whether   a   defendant   has  accepted   personal

            responsibility is a `fact-dominated  issue.'"  United  States
                                                           ______________

            v. Donovan,  996 F.2d  1343,  1346 (1st  Cir. 1993)  (quoting
               _______

            United States v.  Royer, 895  F.2d 28, 29  (1st Cir.  1990)).
            _____________     _____

            Thus,  a  decision  to  grant  a  two-point  reduction  under

            U.S.S.G.    3E1.1(a),  rather than  a  three-point  reduction

            under  U.S.S.G.    3E1.1(b), "will  not be  overturned unless

            clearly erroneous."  Id.
                                 ___

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            1.  In addition, defendant argues  that the court  improperly
            departed upward  in arriving  at his 57-month  sentence.   In
            fact,  no  upward  departure  occurred.   Rather,  the  court
            applied  several adjustments  which  raised defendant's  BOL.
            All upward adjustments are fully supported by  the record and
            by the district court's findings of fact.
                      Defendant  also  argues  that  the  district  court
            failed to  properly explain  its reasons  for the  degree and
            direction of its departure.  We see no merit to  this line of
            argument, both  because no departure took  place, and because
            the  district  court  fully  explained  all  aspects  of  the
            sentence.

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Using this lens of  review we find no  error, clear

            or  otherwise.   Because defendant's  decision to  change his

            plea  did not occur until the day before trial, defendant did

            not satisfy section 3E1.1(b)'s requirement that a plea permit

            the  government  to  avoid  preparing for  trial.    Although

            defendant may have contemplated a change of plea at some time

            earlier than the  actual change,  it appeared up  to the  day

            before  trial that  defendant and  his two  codefendants were

            going  to stand  trial  in a  lengthy  and complicated  case.

            Thus,  it was not error  for the court  to determine that the

            government  was not spared  the task of  preparing for trial,

            and that therefore the strictures of section 3E1.1(b) had not

            been met.  

            B.  Section 5K1.1:  The Downward Departure
            __________________________________________

                      The second arrow in defendant's quiver is his claim

            that  he is  entitled to  a downward  departure based  on his

            assistance to the government.

                      Where, as  here, the government has  filed a motion

            requesting  a downward  departure  under  U.S.S.G.     5K1.1,

            "weighing  the relevant factors in order to decide whether to

            depart (and if so, by how much) is something best done by the

            sentencing court."  United States v. Mariano, 983 F.2d  1150,
                                _____________    _______

            1157  (1st  Cir.  1993).   We  review  the  district  court's

            determination for abuse of discretion only.  Id.  
                                                         ___

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The district court found that  the circumstances in

            this case  did not warrant such  a departure.   In arguing to

            the contrary,  defendant states that  the government breached

            its  plea   agreement  by   failing   to  disclose   complete

            information   concerning   his   assistance   to   government

            authorities.   As a preliminary  matter, the record  does not

            support  such   a  conclusion.    The   transcript  from  the

            sentencing  proceeding shows  that the  government repeatedly

            urged the court to depart downward and does not at all reveal

            a  withholding  of information.   Thus,  as a  purely factual

            matter, we see no merit in defendant's claim to the contrary.

                           More   importantly,  we   find  no   abuse  of

            discretion  in  the   district  court's  determination   that

            defendant is  not entitled  to a  downward departure  for his

            assistance  to  authorities.    Both  below  and  on  appeal,

            defendant merely recites the fact that, subsequent to his own

            guilty  plea, two codefendants  also pleaded guilty.   At the

            sentencing   hearing,   the   district   court   scrupulously

            questioned  a  government  investigator  on  the  subject  of

            defendant's assistance to government authorities  and learned

            that defendant's plea  was of virtually no  assistance to the

            government  in  its   ongoing  case  against   codefendants.2

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            2.  For example, the following colloquy occurred:

                      The Court:  Would it be fair to say that
                                  when  you interviewed  [defendant after
            his

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Accordingly, we find no  abuse of discretion in  the district

            court's   determination  that   no  downward   departure  for

            assistance to government authorities was warranted.     

____________________

                                  guilty plea], you already had 99.9
                                  percent of this case [against 
                                  codefendants] made?
                      Witness:    Yes, the case was completed.

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III.
                                         III.
                                         ____

                                      CONCLUSION
                                      CONCLUSION
                                      __________

                      For the foregoing reasons, the sentence imposed  by

            the district court is 

                      Affirmed.
                      ________

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