April 1, 1993
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-2100
UNITED STATES OF AMERICA,
Appellee,
v.
RICHARD OCASIO-RIVERA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
Before
Torruella, Selya and Cyr, Circuit Judges.
Jeffrey M. Williams, with whom Javier A. Morales Ramos and
Indiano, Williams & Weistein-Bacal were on brief, for appellant.
Jose A. Quiles Espinosa, Senior Litigation Counsel, with
whom Daniel F. Lopez-Romo, United States Attorney, and Edwin O.
Vazquez, Assistant United States Attorney, were on brief, for
appellee.
April 1, 1993
SELYA, Circuit Judge. This is another in the seemingly
SELYA, Circuit Judge.
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
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.
Discussion
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.
A.
The Alleged Sixth Amendment Violation
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,
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,
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)
(collecting cases); United States v. Pilgrim Mkt. Corp., 944 F.2d
14, 21 (1st Cir. 1991); United States v. Argentine, 814 F.2d 783,
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
4
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.
Role in the Offense
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,
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.
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.
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.
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
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.
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.
10
United States v. Ocasio Rivera
Combined Opinion