October 30, 1995 [NOT FOR PUBLICATION]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 on
brief for appellant.
Geoffrey E. Hobart, Assistant United States Attorney, with whom
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 point reduction in his base offense level for
acceptance of responsibility. U.S.S.G. 3E1.1. We affirm.
The appeal is a classic example of taking off on
the wrong foot. Appellant's brief flatly charges the court
with "totally disregarding the plea [agreement]." "Appellant
specifically bargained for, and expected, . . . the three-
point reduction . . . when entering his plea." This was not
so. The agreement is to be read as a whole for what it was.
It was between the parties. Appellant fails to recognize
that though it stated he was entitled to a three point
reduction for acceptance of responsibility, the agreement was
that the government would so recommend at sentencing, and
expressly recited that it was not binding on the court. In
addition, the court orally repeated this admonition to
appellant before accepting his plea.
The Presentence Report originally recommended that
appellant be recognized as accepting responsibility.
Thereafter, however, a supplementary report recited new
information tending to show appellant's previous statements
about his role to be "an extreme minimization of his true
offense behavior." The government acknowledged that it was
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nonetheless bound by the agreement, and recommended the
reduction.
Appellant was allowed to address the court before
the sentencing, besides presenting his case through
counsel.1 The court ultimately ruled,
I do not find on the totality of the
record before the Court that there's any
genuine acceptance of responsibility
here.
The record was short, but there was adequate foundation for
the court's conclusion. See United States v. Royer, 895 F.2d
28, 29, 30 (1st Cir. 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 guilty, he was not as bad as
was made out. Acceptance of responsibility involves more
than repetition of a formula. Id. at 30; United States v.
Ocasio-Rivera, 991 F.2d 1, 4 (1st Cir. 1993). The burden is
on the defendant to prove entitlement to a reduction, id.,
and we see no clear error. Id. at 5 ("[w]here a defendant
resorts to evasions, distortions, or half-truths in an effort
to minimize his culpability," the court may withhold
acceptance-of-responsibility credit under 3E1.1).
Affirmed.
1. The court took this step because appellant had requested
a second change of counsel and the court refused.
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