U.S.A v. Carrasquillo-Ramos ( 1992 )

USCA1 Opinion

          November 24, 1992      ____________________
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
          No. 92-1030

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                             EVARISTO CARRASQUILLO-RAMOS,

                                Defendant, Appellant.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                    [Hon. H ctor M. Laffitte, U.S. District Judge]
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                                        Before

                              Torruella, Circuit Judge,
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                           Campbell, Senior Circuit Judge,
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                              Skinner,* District Judge.
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                Lydia Lizarr bar-Masini for appellant.
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                Antonio R.  Baz n, with  whom Daniel F.  L pez-Romo, United
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          States Attorney, was on brief for appellee.



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          *  Of the District of Massachusetts, sitting by designation.














                    TORRUELLA, Circuit  Judge.   This appeal arises  out of
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          the district court's refusal to adjust appellant's sentence level

          downward by two points for acceptance of responsibility.  Because

          we  find that the district court did not abuse its discretion, we

          affirm.  

                    Appellant was found guilty by a jury of three counts of

          drug-related   crimes.1     After  the   trial,   appellant  made

          statements of  admittance during an interview  with the probation

          officer.   At his  sentencing hearing,  appellant also  stated "I

          know I  did wrong  and besides  having done  it  wrong, I'm  very

          repentant,  and I  ask forgiveness  from the  court."   Appellant

          contends   that  these   statements   demonstrate  the   required

          acceptance of responsibility.  The district  judge disagreed, and

          sentenced  him to 48 months  imprisonment on counts  one and two,

          and  78   months  imprisonment  on   count  three,  all   to  run

          concurrently.  This sentence fell within the applicable guideline

          range for appellant's offense level.

                    We note that the district  court's conclusion as to the

          downward  adjustment is  consistent  with Application  Note 2  of

          United   States  Sentencing  Guideline     3E1.1,  pertaining  to

          acceptance of  responsibility.   That Note explains  that "[t]his

          adjustment is not intended  to apply to a defendant who  puts the

                              
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          1  Counts one and two charged appellant with willfully, knowingly
          and   intentionally   using   a  telephone   in   committing  and
          facilitating  the  commission of  the  crime  of distribution  of
          cocaine on  two separate dates.   Count  three charged  appellant
          with   willfully,   knowingly    and   unlawfully    distributing
          approximately 918 grams of cocaine.

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          government  to  its  burden of  proof  at  trial  by denying  the

          essential factual elements of guilt,  is convicted, and only then

          admits guilt and expresses remorse."  The Note continues, stating

          that  in  "rare situations"  a  defendant  may  qualify  for  the

          adjustment  while still having a trial, but only based upon "pre-

          trial statements and conduct."

                    Appellant contends that he could not admit guilt before

          trial  because his  codefendants threatened  him and  his family.

          Appellant  contends  that  this   duress  excuses  his  otherwise

          untimely admissions.  We note, however, that the trial judge knew

          of appellant's contention before he  rejected the request for the

          downward adjustment.

                    We  review the  district court's  finding in  this case

          with great deference because "the sentencing judge is in a unique

          position to evaluate a defendant's acceptance of responsibility."

          United States v. Uricoechea-Casallas, 946 F.2d 162, 167 (1st Cir.
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          1991)  (citing  United   States  Sentencing  Guideline      3E1.1

          comment).    We therefore  will reverse  the  finding only  if it

          amounts to clear error.  United  States v. Bradley, 917 F.2d 601,
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          606 (1st Cir.  1990).   Given this standard,  we cannot  conclude

          that the district judge erred in denying the downward adjustment.



                    The  district  court  had  the  opportunity  to  assess

          appellant's demeanor and credibility, and evaluate his acceptance

          of responsibility,  including his allegations of  threats, in the

          context of the case as a whole.   See id.  Due to his  assessment
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          of these factors, the district court concluded that appellant did

          not accept  responsibility at  the hearing, but  merely expressed

          remorse.  This conclusion is bolstered by the presentence report,

          which expressly  found that  appellant was  not eligible for  the

          reduction because appellant made no pre-trial admissions.

                    Given   the  lack   of  any  pre-trial   acceptance  of

          responsibility, and the insistence  of the Sentencing  Guidelines

          for such  a timely  acceptance of responsibility,  we cannot  say

          that  the district  judge committed  clear error  in refusing  to

          apply the downward adjustment.

                    Affirmed.
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