United States Court of Appeals
For the First Circuit
No. 99-1343
UNITED STATES,
Appellee,
v.
JESSICA VEGA-COREANO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
Before
Stahl and Lynch, Circuit Judges,
and Gorton,* U.S. District Judge.
Luis Rafael Rivera on brief for appellant.
Nelson Perez-Sosa, Assistant United States Attorney, Jorge
E. Vega-Pacheco, Assistant United States Attorney, and Guillermo
Gil, United States Attorney, on brief for appellee.
August 30, 2000
_____________________
*Of the District of Massachusetts, sitting by designation.
STAHL, Circuit Judge. The Defendant, Jessica Vega-
Coreano (“Vega”), pleaded guilty to acting as an accessory after
the fact to a robbery. She now appeals her sentence. For the
following reasons, we affirm.
I.
Background
On May 13, 1997, three armed robbers dressed as Loomis
Fargo security guards seized control of a Loomis Fargo truck
depot in Ponce, Puerto Rico.1 As armored vehicles arrived at the
depot, the drivers were held at gunpoint and the contents of
each truck were removed to a getaway van. The robbers escaped
with over five million dollars that Loomis Fargo had transported
from Banco Popular, Banco Santander, and a United States postal
facility.
On May 28, 1997, a grand jury returned an indictment
against those purportedly responsible for the robbery. The
Superseding Indictment that followed alleged, in pertinent part,
that Vega had acted as an accessory after the fact to the
robbery, in violation of 18 U.S.C. § 3. Although Vega initially
pleaded not guilty, she later changed her plea and received a
sentence of eighty-seven months in prison with three years of
1
At the time, Loomis Fargo was called Wells Fargo. For
convenience, we will refer to the company by its present name.
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supervised release. Vega appeals her sentence on a variety of
grounds.
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II.
In reviewing a sentence under the United States
Sentencing Guidelines (“the Guidelines”), "[w]e first determine
the applicability of [each guideline] to a particular case de
novo. After determining the guideline's scope and meaning, we
review the district court's factual determinations for clear
error, giv[ing] due deference to the district court's
application of the guidelines to the facts." United States v.
Cali, 87 F.3d 571, 575 (1st Cir. 1996) (citations and internal
quotation marks omitted). With this standard of review in mind,
we turn to the merits.
A.
Vega contends that because she did no more than give
refuge to those charged with committing the robbery, her base
offense level should have been capped at twenty pursuant to
U.S.S.G. § 2X3.1.
Section 2X3.1 of the Guidelines provides that for the
crime of acting as an accessory after the fact, the defendant's
base offense level should be “6 levels lower than the offense
level for the underlying offense, but in no event less than 4,
or more than 30.” Even so, “where the [defendant's] conduct is
limited to harboring a fugitive,” the Guidelines indicate that
the offense level “shall not be more than level 20.” Id. Here,
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although the district court applied the six level adjustment
that U.S.S.G. § 2X3.1 requires, it did not cap Vega's base
offense level at twenty because, in its view, she had done more
than simply giving shelter to fugitives.
The record amply supports this view. Jessica Diaz
testified that on the day of the robbery, Vega had accompanied
one of the robbers, Jose Ramos-Cartagena, out of the house, at
first for one hour and then for two hours. When Ramos returned
from the robbery, Vega helped him secrete the proceeds of the
robbery by retrieving a key for him. Vega later advised someone
named “Rodi” that the money had been counted successfully.
Finally, using a false name, Vega obtained three hotel rooms for
the other participants in the robbery to use as a hideout.
Against this background, the district court was entitled to find
that Vega had helped the other defendants in ways that were not
“limited to harboring a fugitive.” Id. There was no clear
error in refusing to cap Vega's base offense level at twenty
under § 2X3.1.
B.
Vega also claims that the district court should have
reduced her offense level to reflect her acceptance of
responsibility. See U.S.S.G. § 3E1.1.
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Section 3E1.1 of the Guidelines provides that a
defendant's offense level should be reduced by two points, and
sometimes three points, if she “clearly demonstrates acceptance
of responsibility for [her] offense.” Even so, the Guidelines
make clear that “[a] defendant who enters a guilty plea is not
entitled to [this] adjustment . . . as a matter of right.” Id.
application note 3. “The defendant has the burden of proving
[her] entitlement to an acceptance-of-responsibility credit, and
the sentencing court's determination to withhold the reduction
will be overturned only if it is clearly erroneous.” United
States v. Ocasio-Rivera, 991 F.2d 1, 4 (1st Cir. 1993)
(citations omitted).
In this case, Vega's Pre-Sentence Report recommended
a two point reduction in her offense level to reflect her
acceptance of responsibility. See U.S.S.G. § 3E1.1(a). The
district court tentatively agreed with that recommendation, but
when Vega's attorney pressed for a third acceptance of
responsibility point, see id. § 3E1.1(b), the court considered
the matter more fully and decided against any acceptance of
responsibility credit, basing its decision on the fact that Vega
had wavered in her willingness to take complete responsibility
for her criminal acts.
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At the start of her plea colloquy, Vega claimed that
she did not know about the other defendants' participation in
the Loomis Fargo robbery until after they had gone into hiding.
When pressed, Vega conceded that she actually had learned about
their involvement in the robbery much earlier. But then, when
Vega met with the United States Probation Office shortly before
sentencing, she again tried to suggest that several days had
passed after the robbery before she learned that the others, not
just Ramos, had been involved. It was not clearly erroneous for
the district court to conclude that on these facts, acceptance
of responsibility credit was unwarranted. See United States v.
Muriel, 111 F.3d 975, 982-83 (1st Cir. 1997) (“It is within the
discretion of the district court to deny a reduction on the
basis of its determination that a defendant has resorted to
half-truths or evasions from the truth in an effort to minimize
his or her culpability.”).
C.
Vega next argues that the district court should have
given her a role reduction pursuant to U.S.S.G. § 3B1.2.
Under the Guidelines, a defendant's offense level
should be reduced by two levels if she was a “minor participant”
in the criminal activity. See U.S.S.G. § 3B1.2. To receive
this adjustment, the defendant must show that she was “less
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culpable than most other participants” in the offense of
conviction. Id. application note 3. In this case, Vega
contends that because she was merely an accessory after the
fact, she is entitled to credit for being a minor participant in
the robbery.
If Vega were charged with conspiracy, then we might
have occasion to consider whether she was more or less culpable
than those who actually carried out the robbery. But Vega only
faced one count of acting as an accessory after the fact, and
under U.S.S.G. § 3B1.2, the relevant inquiry is whether she was
culpable with respect to this particular offense. See United
States v. Neal, 36 F.3d 1190, 1211 (1st Cir. 1994) (“[S]ection
3B1.2 focuses on the role of a defendant with respect to the
offense(s) of which he was convicted.”); see also U.S.S.G. §
2X3.1 application note 2 (indicating that mitigating role
adjustments “normally would not apply” to those charged with
acting as an accessory after the fact “because an adjustment for
reduced culpability is incorporated in the base offense level”
for that offense).
Even if Vega was less blameworthy than those who
committed the robbery, she was as much of an accessory after the
fact as the others charged with that offense, Raphael Baez-
Gonzalez and Rodolfo Landa-Rivera. As we have said, in addition
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to helping Ramos secrete the proceeds of the robbery, Vega also
used a false identity to obtain three hotel rooms for the other
defendants. On these facts, we cannot say that the district
court's refusal to grant a role-in-the-offense adjustment was
clearly erroneous. See United States v. Graciani, 61 F.3d 70,
75 (1st Cir. 1995) (observing that “battles over a defendant's
status . . . will almost always be won or lost in the district
court”).
D.
Vega's final argument is that she should have received
a downward departure from the Guidelines because she had a
difficult upbringing and because extended incarceration would
disrupt her relationship with her three young children.
District courts have the discretion to depart from the
sentencing range that the Guidelines suggest if “there exists an
aggravating or mitigating circumstance of a kind, or to a
degree, not adequately taken into consideration by the
Sentencing Commission.” Koon v. United States, 518 U.S. 81, 92
(1996) (quoting 18 U.S.C. § 3553(b)) (internal quotation marks
omitted). “[E]xtraordinary characteristics such as unusual
family obligations . . . may, in certain circumstances, provide
a basis for a downward departure.” United States v.
Grandmaison, 77 F.3d 555, 564 (1st Cir. 1996). Generally
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speaking, a district court's refusal to depart is not subject to
appellate review unless the court misapprehended its authority
to do so or committed some other mistake of law. See United
States v. DeCosta, 37 F.3d 5, 8 (1st Cir. 1994).
In this case, the district court was well-aware of its
discretion to grant a downward departure if “big, major, unique
circumstances” warranted a sentence below the applicable
guideline range. The district court chose not to exercise that
discretion because, in its view, Vega's family circumstances
were not sufficiently unusual to justify a reduced sentence.
Although Vega disagrees, we are not empowered to second-guess
the district court in this regard. Where the trial court
understood its authority to depart from the Guidelines, its
refusal to exercise that authority represents a factually
intensive determination that is not open to appellate review.
See United States v. Caron, 208 F.3d 321, 323 (1st Cir. 2000)
(observing that “refusals to depart are generally
unreviewable”).
III.
Conclusion
For the foregoing reasons, we affirm the defendant's
sentence.
Affirmed.
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