United States v. Rosales

April 24, 1996
                    [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                         

No. 95-1192

                        UNITED STATES,

                          Appellee,

                              v.

                       ROBERTO ROSALES,

                    Defendant, Appellant.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF PUERTO RICO

      [Hon. Carmen Consuelo Cerezo, U.S. District Judge]
                                                                   

                                         

                            Before

                     Selya, Circuit Judge,
                                                     
                Bownes, Senior Circuit Judge,
                                                        
                   and Cyr, Circuit Judge.
                                                     

                                         

Theodore L. Craft on brief for appellant.
                             
Guillermo Gil,  United States  Attorney, Jose A.  Quiles-Espinosa,
                                                                             
Senior  Litigation Counsel,  and Miguel  A. Pereira,  Assistant United
                                                           
States Attorney, on brief for appellee.

                                         

                                         


     Per  Curiam.  In United  States v. Rosales,  19 F.3d 763
                                                           

(1st  Cir. 1994), this  court affirmed defendant's conviction

on  four counts of abusive sexual conduct, in violation of 18

U.S.C.   2244(a)(1), but remanded for resentencing because of

the district court's  failure to provide a  rationale for the

degree of upward departure undertaken.  On remand,  the lower

court again departed  upward under U.S.S.G.   5K2.0 and again

imposed a 120-month prison term.  Defendant  now advances two

principal challenges to his new sentence--insisting  that (1)

the imposition of a  two-level enhancement under    3C1.1 for

obstruction  of justice was unwarranted, and (2) the level of

upward  departure was  unreasonable.   As  neither contention

proves persuasive, we summarily affirm. 

     Extended  discussion  is  unnecessary.     The     3C1.1

enhancement was grounded  on the district court's  conclusion

that  defendant committed perjury  during his trial testimony

by repeatedly denying any involvement in the specific offense

conduct charged.  See,  e.g., United States v. Dunnigan,  507
                                                                   

U.S. 87, 98  (1993) ("Upon  a proper  determination that  the

accused  has committed  perjury at  trial, an  enhancement of

sentence is required by the  Sentencing Guidelines.").  In so

concluding,  the court  applied  the correct  legal test  for

perjury:  "whether  the  defendant  intentionally  gave false

testimony concerning  a material  matter."  United  States v.
                                                                      

Campbell, 61 F.3d  976, 984  (1st Cir. 1995).   Its  findings
                    

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adequately   encompassed   all  of   the   necessary  factual

predicates.  See, e.g.,  United States v. Matiz, 14  F.3d 79,
                                                           

84  (1st Cir.  1994)  (rejecting challenge  to findings  less

comprehensive than  those issued  here).  And  those findings

were  adequately supported  by the  record.   Indeed, as  the

district court observed, the  nature of defendant's denials--

pertaining  to specific  allegations  of  personal  conduct--

belied  any  suggestion  that  his inaccurate  testimony  was

attributable  to  "confusion,  mistake,  or  faulty  memory."

Dunnigan, 507 U.S. at 95.
                    

     In objecting to the upward departure, defendant does not

contend that either of  the aggravating circumstances  relied

on by  the district court was an improper basis upon which to

ground a departure.1   He does not assert that  either factor
                               1

was factually  unsupported.  And  he does  not reiterate  his

earlier  argument   that   the  degree   of   departure   was

unexplained.  Instead, he insists  simply that the extent  of

the departure undertaken was unreasonable.  We disagree.  

     The district  court departed upward by  eight levels and

imposed  a term of 120 months--a sentence representing a 110%

increase over  the applicable sentencing range  ceiling of 57

                    
                                

   1  The court rested  its decision to depart upward  on two
               1
factors:  the  fact   that  four   additional  victims   were
identified beyond those involved in the counts of conviction,
and  the fact that most of defendant's victims were abused on
multiple occasions.    It  ended  up adding  four  levels  to
account  for each of these concerns, for a total departure of
eight levels.  

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months.    Such a  departure,  while  substantial, cannot  be

deemed anomalous;  we have upheld departures  of even greater

magnitude on various occasions.   See, e.g., United States v.
                                                                      

Rostoff, 53 F.3d 398, 411 (1st Cir. 1995) (reviewing cases in
                   

which upward departures representing  increases of from  165%

to  380%  over  the   respective  GSR  ceilings  were  deemed

reasonable).  And  the 120-month sentence  was well short  of

the  applicable  40-year  statutory  maximum.    Given  these

considerations, given the  "persuasive[ness]" of the district

court's explanation  for selecting the  degree of  departure,

United  States v. Quinones, 26 F.3d 213, 220 (1st Cir. 1994),
                                      

and given  the "substantial leeway"  that is accorded  such a

determination, United States v. Pratt, 73 F.3d 450, 453  (1st
                                                 

Cir. 1996), we  are unprepared  to say that  the court  acted

unreasonably.2
                         2

     Affirmed.  See Loc. R. 27.1.
                                             

                    
                                

   2   Defendant  has listed  some five  other issues  in his
               2
"statement  of issues,"  but  has provided  no argument  with
respect thereto.  We therefore decline to address them.  See,
                                                                        
e.g., McIntosh v. Antonio, 71 F.3d 29, 38 (1st Cir. 1995).  
                                     

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