United States v. Gonzalez, 1st Cir. (1995)
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Scribd Government DocsUnited States v. Gonzalez, 1st Cir. (1995)
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Scribd Government DocsUSCA1 Opinion
October 30, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 95-1228
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
JOSE GONZALEZ,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
___________________
____________________
Before
Lynch, Circuit Judge,
_____________
Aldrich and Campbell, Senior Circuit Judges.
_____________________
____________________
Marcia G. Shein with
_______________
whom Law Office of Miller and Shein was
_______________________________
brief for appellant.
Geoffrey E. Hobart, Assistant United
___________________
States Attorney, with
Donald K. Stern, United States Attorney, was on brief for appellee.
_______________
______________________
____________________
____________________
Per Curiam.
___________
Appellant,
who
pled
guilty
to
conspiracy
and to possession of cocaine with intent to sell,
appeals because of the sentencing
court's failure to allow a
three
base
point
reduction
in
his
acceptance of responsibility.
The appeal
the
wrong foot.
U.S.S.G.
is a classic
Appellant's
offense
3E1.1.
level
for
We affirm.
example of taking
off on
brief flatly charges the court
with "totally disregarding the plea [agreement]."
"Appellant
specifically
the three-
point
so.
expected, . . .
reduction . . . when entering his plea."
The agreement is to be read as a whole
It was
that
bargained for, and
between the
though it
parties.
stated
he was
for what it was.
Appellant fails
entitled
This was not
to a
to recognize
three
point
reduction for acceptance of responsibility, the agreement was
that
the government
would so
recommend at
expressly recited that it was not
addition,
the
court
orally
sentencing, and
binding on the court.
repeated
this
admonition
In
to
appellant before accepting his plea.
The Presentence Report originally
appellant
Thereafter,
be
recognized
however,
information tending to
about his role
to be
offense behavior."
as
accepting
supplementary
recommended that
responsibility.
report
show appellant's previous
"an extreme minimization
The government acknowledged
-2-
recited
new
statements
of his
true
that it was
nonetheless
bound
by
the
agreement, and
recommended
the
reduction.
Appellant was
the
sentencing,
counsel.1
allowed to address
besides
presenting
his
the court before
case
The court ultimately ruled,
I do not find on the totality of the
record before the Court that
genuine
here.
acceptance
of
there's any
responsibility
through
The record
was short, but there was
the court's conclusion.
28,
29, 30 (1st Cir.
adequate foundation for
See United States v. Royer, 895 F.2d
___ _____________
_____
1990).
Appellant
spoke frequently of
his children -- which the court said was irrelevant -- of the
taxes
he
had paid,
and the
information
he had
given the
government -- which the prosecutor felt had not been truthful
-- and, generally, how, though
was
made out.
than repetition
Acceptance
guilty, he was not as bad
of responsibility
of a formula.
defendant to prove
and we
see no clear error.
involves more
Id. at 30; United States v.
___
______________
Ocasio-Rivera, 991 F.2d 1, 4 (1st Cir. 1993).
_____________
on the
as
entitlement to a
Id. at 5
___
The burden is
reduction, id.,
___
("[w]here a defendant
resorts to evasions, distortions, or half-truths in an effort
to
minimize
his
culpability,"
the
court
acceptance-of-responsibility credit under
may
withhold
3E1.1).
Affirmed.
________
____________________
1.
The court took this
step because appellant had requested
a second change of counsel and the court refused.
-3-
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