[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-2461
UNITED STATES OF AMERICA,
Appellee,
v.
CARLOS DANIEL ROSA-HERNANDEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
Before
Selya, Circuit Judge,
Feinberg,* Senior Circuit Judge,
and Stahl, Circuit Judge.
Irma R. Valldejuli on brief for appellant.
Daniel F. Lopez-Romo, United States Attorney, Jose A.
Quiles-Espinosa, Senior Litigation Counsel, and Warren Vazquez,
Assistant United States Attorney, on brief for appellee.
May 11, 1993
*Of the Second Circuit, sitting by designation.
Per Curiam. This sentencing appeal has two foci. We
Per Curiam.
consider each in turn.
First, defendant-appellant Carlos Daniel Rosa-Hernandez
claims that the district court erred in refusing to treat him as
a minor player in the offense of conviction (a drug-trafficking
crime). See U.S.S.G. 3B1.2(b) (providing for a two-level
reduction in the applicable offense level if the defendant is a
minor participant). Absent mistake of law, we review a trial
judge's role-in-the-offense assessments only for clear error.
See United States v. Garcia, 954 F.2d 12, 18 (1st Cir. 1992);
United States v. Akitoye, 923 F.2d 223, 227 (1st Cir. 1991). We
approach this task mindful that, "[a]s with other sentence-
decreasing adjustments, a defendant must shoulder the burden of
proving his entitlement to a downward role-in-the-offense
adjustment." United States v. Ocasio-Rivera, No. 92-2100, slip
op. at 5 (1st Cir. April 1, 1993).
Appellant did not challenge the factual underpinnings
of the presentence investigation report. From the contents of
that report, the district court could permissibly have found that
appellant actively participated in a meeting on April 16, 1992
with his cohort, Miguel Rodriguez-Gonzalez, and a confidential
informant (who was acting as an internuncio for the prospective
purchaser, a government agent); that, when the undercover agent
joined the trio, appellant made it clear that he did not want
anybody to see his (appellant's) face; that, after the men had
shooed the purchaser away, the informant emerged from a further
2
meeting with appellant and Rodriguez-Gonzalez, met with the
agent, and gave him instructions, attributed to appellant, for
delivery of the purchase money to a specific site (a shopping
center); that, thereafter, appellant transported Rodriguez-
Gonzalez and the informant to the shopping center, where he
introduced the informant to Julio Gomez-Gonzalez; and that, later
the same afternoon, the informant and Gomez-Gonzalez attempted
to consummate the sale of five kilograms of cocaine for $85,000.
At the time of the arrest, appellant was still at the shopping
center, standing by his truck, and (or so the court could have
found) either overseeing or keeping watch to safeguard the
transaction.
To be sure, appellant was not a direct, hands-on
participant at the time of sale. Nevertheless, based on the
facts recounted above, the lower court supportably could have
found that appellant was a full-fledged player in the venture.
In short, given, especially, the burden of proof, we do not
believe that the court was legally required to accept appellant's
self-serving claim that he was a minor participant. Compare,
e.g., Ocasio-Rivera, slip op. at 5-7; United States v. Ortiz, 966
F.2d 707, 717 (1st Cir. 1992), cert. denied, 113 S. Ct. 1005
(1993); United States v. DiIorio, 948 F.2d 1, 5-6 (1st Cir.
1991); United States v. Rosado-Sierra, 938 F.2d 1, 1-2 (1st Cir.
1991) (per curiam); United States v. Osorio, 929 F.2d 753, 764
(1st Cir. 1991); United States v. Cepeda, 907 F.2d 11, 12 (1st
Cir. 1990). In the final analysis, when there are several
3
plausible views of the record, "the sentencing court's adoption
of one such view cannot be clearly erroneous." United States v.
St. Cyr, 977 F.2d 698, 706 (1st Cir. 1992). So it is in this
case.
Appellant's remaining asseveration is no more hardy.
He claims that, as part of a plea agreement, the government
promised that it would "not oppose [his] request for a downward
adjustment for his role in the offense," Appellant's Brief at 11,
but reneged on the promise. The problems with this argument are
many and they are insurmountable. The most fundamental
difficulty is the ephemeral nature of the alleged agreement: the
record does not contain a whisper of a hint of an intimation of
the supposed promise. Moreover, appellant, who was represented
at all times by able counsel, did not assert the existence of any
such promise in the written petition that accompanied his request
to the district court for permission to plead guilty, in the
colloquy that transpired during the change-of-plea hearing, see
Fed. R. Crim. P. 11, or in his written objections to the
presentence report. In point of fact, on the first two of these
occasions, appellant explicitly denied that any promises, not
previously disclosed, had been made to him.
We see no reason to look behind appellant's own
statements. We have repeatedly refused to imply plea agreements
or plea agreement provisions out of thin air, see, e.g., United
States v. Doyle, 981 F.2d 591, 594 & n.3 (1st Cir. 1992); United
States v. Atwood, 963 F.2d 476, 479 (1st Cir. 1992); Garcia, 954
4
F.2d at 17; United States v. Hogan, 862 F.2d 386, 388-89 (1st
Cir. 1988), and we adhere to that view today. If there was a
promise and we emphasize that we have found no sign of one it
should have been made known to the district court no later than
the date of the Rule 11 hearing, not kept hidden amidst counsel's
or defendant's unspoken reveries. See Garcia, 954 F.2d at 17
n.3; Hogan, 862 F.2d at 389 n.4.
The upshot is that appellant has no case. Because it
clearly appears that Rosa-Hernandez was lawfully sentenced and
that his appeal presents no substantial question, we need go no
further. See 1st Cir. Loc.R. 27.1.
Affirmed.
5
6
United States v. Rosa-Hernandez
Combined Opinion