United States v. Gonzales, 1st Cir. (1993)

USCA1 Opinion
UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
___________________________
No. 93-1737
UNITED STATES OF AMERICA,
Appellee,
v.
ALBERTO GONZALES,
Defendant, Appellant.
___________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
___________________
_________________________
Before
Torruella, Selya and Stahl, Circuit Judges.
______________
_________________________
Stephen H. Mackenzie on brief for appellant.

____________________
Jay P. McCloskey, United States Attorney, and Michael M.

_________________
___________
DuBose, Assistant United States Attorney, on brief for appellee.
______
___________________________
December 23, 1993
___________________________
SELYA, Circuit Judge.

SELYA, Circuit Judge.
_____________
on rhetoric, but short on
defendant's
This sentencing appeal
merit.
three assignments of
is long
Having considered and rejected

error, we affirm
the judgment
below.
I
I
First,
that
defendant-appellant
the district court
enhancement for
(Nov. 1992).
court's
The
Alberto
erred in imposing
obstruction of
justice.1
contention is jejune.
factfinding
in
these
Gonzales contends
a two-level sentence
See U.S.S.G.
___
We
precincts
3C1.1
review a sentencing
with
considerable
deference.
See,
___
e.g., United States v. Veilleux,

____ _____________
________
949 F.2d 522,
525-26 (1st Cir. 1991) (explaining that an obstruction of justice

finding will be upheld if
not clearly erroneous); United States

______________
v. Wheelwright,
___________
226, 228
918 F.2d
Here, the district court

appellant
a matter
an acquaintance into
material to the
obstruction
evidence that
bearing false
Such scurrilous
clearly
warranting
a two-level enhancement of a defendant's base offense
See U.S.S.G.
___
constitute
case.
(similar).
deportment
level.
can
Cir. 1990)
had before it convincing
attempted to coax
witness about
(1st
of
justice,
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

____________________
1In general, a sentencing court applies the guidelines in

effect on the date of sentencing. See United States v. Bell, 953
___ _____________
____
F.2d 6, 7 (1st Cir. 1992); United States v. Harotunian, 920 F.2d
_____________
__________
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.

The
judge
found
"intentionally
(e.g., that
____
substances
explicitly, and
and
individual to
knowingly
law
supportably,
attempted
testify falsely in
during a
drug buy
demand that
to
when explaining
the
the
F.2d
1083, 1088
(1st
another
material matter
used
course of
rulings, "be precise to the point of pedantry."
cases).
persuade
illegally
in the
appellant
contraband
their official
In our view, no more is exigible.
judges,
Sch. Comm., 998

___________
that
court as to a
enforcement agents
duties in this case)."

not
We read the record differently.
bases for
We do
their
Lenn v. Portland
____
________
Cir. 1993)
(collecting
Giving due weight to context and common sense, we accept
sentencing
knowingly"
in
judge's
this
case
use of
the
as the
phrase
functional
"intentionally and
equivalent
of an
express finding of specific intent.2

II
II
Next, appellant posits that the district court erred in

failing to lower
See U.S.S.G.
___
A
decreases in
his sentence for acceptance
3E1.1 (Nov. 1992).
of responsibility.
We do not agree.
defendant bears the burden of proving entitlement to

the offense level,
for acceptance of
including downward
responsibility.
adjustments
See United States v. Morillo,

___ _____________
_______
___ F.3d ___, ___ (1st Cir. 1993) [No. 93-1388, slip op.
United States v.
______________
Bradley, 917
_______
F.2d 601,
606 (1st
at 16];
Cir. 1990).
____________________
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

an issue, he
"faces an uphill battle."
[slip op. at 16].

relates
to
defendant
court has ruled against a
the
defendant on such
Morillo, ___ F.3d at ___

_______
In large part, the uphill nature of the battle

standard
of
appellate
`clearly demonstrates
review:
"Whether
recognition and
affirmative
acceptance of personal responsibility' is a fact-dominated issue,

and the district court's decision
offense level will
to withhold a reduction in the
not be overturned unless
clearly erroneous."
United States v. Royer, 895 F.2d 28, 29 (1st Cir. 1990) (citation
_____________
_____
omitted).
Here, the uphill battle is
for
appellant
to climb.
There
fought on a slope too steep

is
logical
inconsistency
between, on one hand, attempting to obstruct justice, and, on the

other hand,
accepting responsibility in
guidelines acknowledge this
a timeous manner.
inconsistency.
Only
The
"extraordinary
cases"
qualify
following
an
U.S.S.G.
for
an
enhancement
acceptance-of-responsibility
for
obstruction
3E1.1, comment. (n.
States v.
______
of
justice.
4) (Nov. 1992); see

___
Olea, 987 F.2d 874, 878 (1st

____
credit
See
___
also United
____ ______
Cir. 1993).
A defendant
must carry the burden of proving that his case is "extraordinary"

and,
thus, that
exception.
it
within the
narrow
confines of
the
See Olea, 987 F.2d at 878.

___ ____
Appellant
judge
comes
discerned
extraordinary
"nothing
case
that would justify
cannot scale
in
these heights.
this
required by
case
The
to
the guideline
a reduction for acceptance
make
district
it
the
application note
of responsibility
in the base offense level, in the face of the court's

That conclusion
finding of
obstruction
of justice."
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

_____________
____________
Cir.
1989),
appellant
denied a section
says that
the
lower
3E1.1 adjustment based
court erroneously
on its perception
that
appellant failed to accept responsibility for uncharged "relevant

_________
conduct".
We think that appellant's reliance on
mislaid.
There is a
who
not
does
Perez-Franco is
____________
meaningful distinction between a defendant
accept
responsibility
for
conduct
underlying
dismissed charges (the Perez-Franco scenario) and a defendant who

____________
falsely denies, or
behavior.
required
frivolously contests, the occurrence
See Olea, 987 F.2d at 878.

___ ____
affirmatively to admit
conviction
in
order
responsibility, see
___
properly
to
consider whether
responsibility, see Olea,

___ ____
genre.
found, in
for
acted
comment.
in
(n.1(a))
effect, that
of
court may
inconsistent
987 F.2d
at 878;
(Nov. 1992).
The court's finding is supportable.
of error fizzles.
acceptance
mendaciously denies
manner
this case
offenses of
at 463, a
defendant who
accepting
court
has
conduct
3E1.1,
credit
Perez-Franco, 873 F.2d

____________
relevant
U.S.S.G.
While a defendant is not
conduct beyond the
obtain
of such
belongs to
with
see also
___ ____
The district
the latter
Thus, the assignment
III
III
Among
other
things,
purchasing, receiving,
convicted of
A
reduction
and possessing
a felony.
defendant charged
in his
possessed the
appellant
these
base offense
purposes or collection."
level
district court refused
is
if he
"solely
U.S.S.G.
to
after being
922 (g)(1), 924 (a)(2).
statutes
challenged firearms
guilty
six handguns
See 18 U.S.C.
___
under
pled
entitled
can prove
to
that he
for lawful
sporting
2K2.1(b)(2) (Nov. 1992).
to grant this
reduction.
The
Appellant
now
complains.
A
defendant
preponderance of the
adjustment
Cousens,
_______
sentencing
error.
F.2d 800,
court's
See id.
___ ___
2K2.1(b)(2).
802
of
See
___
(1st Cir.
findings of
accounts of
proving
fact
on this
to a downward
United States
_____________
1992).
why the
by
v.
We
review the
issue
for clear
record, including
handguns were
in his
Given the implausibility of appellant's tale and the
dearth of corroborative
district
burden
We have carefully sifted the
appellant's changing
possession.
the
evidence that he is entitled
under section
942
bears
evidence, we find no clear
court's finding that appellant was
error in the
acting neither as a
sportsman nor
handguns.
as a
Hence,
collector in assembling
we uphold
the court's
a small
arsenal of
refusal to
grant the
requested reduction.
IV
IV
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
_____________
___________
So it is here.
F.2d 474, 477 (1st Cir. 1989).
The defendant's conviction and sentence are summarily

The defendant's conviction and sentence are summarily
_______________________________________________________
affirmed.
affirmed.
________
See 1st Cir. Loc. R. 27.1.

See 1st Cir. Loc. R. 27.1.
_________________________
____________________
3Appellant's
bear discussion.
remaining arguments are

7
meritless and
do not

United States v. Gonzales, 1st Cir. (1993)

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USCA1 Opinion

UNITED STATES COURT OF APPEALS

Stephen H. Mackenzie on brief for appellant.

Jay P. McCloskey, United States Attorney, and Michael M.

SELYA, Circuit Judge.

This sentencing appeal

Having considered and rejected

the district court

e.g., United States v. Veilleux,

949 F.2d 522,

525-26 (1st Cir. 1991) (explaining that an obstruction of justice

not clearly erroneous); United States

Here, the district court

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

had before it convincing

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

1In general, a sentencing court applies the guidelines in

respect to obstructing justice.

rulings, "be precise to the point of pedantry."

In our view, no more is exigible.

Sch. Comm., 998

duties in this case)."

We read the record differently.

Giving due weight to context and common sense, we accept

express finding of specific intent.2

Next, appellant posits that the district court erred in

his sentence for acceptance

3E1.1 (Nov. 1992).

defendant bears the burden of proving entitlement to

See United States v. Morillo,

Once the sentencing

"faces an uphill battle."

[slip op. at 16].

court has ruled against a

Morillo, ___ F.3d at ___

In large part, the uphill nature of the battle

acceptance of personal responsibility' is a fact-dominated issue,

to withhold a reduction in the

not be overturned unless

fought on a slope too steep

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

guidelines acknowledge this

3E1.1, comment. (n.

4) (Nov. 1992); see

Olea, 987 F.2d 874, 878 (1st

must carry the burden of proving that his case is "extraordinary"

See Olea, 987 F.2d at 878.

that would justify

a reduction for acceptance

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

Indeed, the only thing extraordinary about this case

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

doctrine of United States v. Perez-Franco, 873 F.2d 455, 463 (1st

3E1.1 adjustment based

appellant failed to accept responsibility for uncharged "relevant

We think that appellant's reliance on

meaningful distinction between a defendant

dismissed charges (the Perez-Franco scenario) and a defendant who

frivolously contests, the occurrence

See Olea, 987 F.2d at 878.

responsibility, see Olea,

Morillo, _ F.3d at _