USCA1 Opinion
February 14, 1994 [NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1923
UNITED STATES OF AMERICA,
Appellee,
v.
TIRSO BOLIVAR GONZALEZ AVALO,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
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Before
Torruella, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Selya, Circuit Judge.
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Christopher W. Dilworth on brief for appellant.
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Jay P. McCloskey, United States Attorney, and Michael M.
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DuBose, Assistant United States Attorney, on brief for the United
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States.
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Per Curiam. This criminal appeal arises out of the
Per Curiam.
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conviction of defendant-appellant, Tirso Bolivar Gonzalez Avalo
(Gonzalez), on two counts of conspiracy to possess a controlled
substance, cocaine, with intent to distribute it. See 21 U.S.C.
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841(a)(1), 841(b)(1)(C), 846. After a trial in which a jury
found appellant guilty, the district court imposed a 97-month
incarcerative sentence. Appellant contests the conviction and
also challenges aspects of the computations leading to his
sentence. We affirm.
I
I
Appellant assails his conviction solely on the ground
of alleged evidentiary insufficiency. Following a guilty
verdict, a reviewing court must scrutinize the record, drawing
all reasonable inferences in favor of the verdict, to ascertain
if a rational jury could have found that the government proved
each element of the crime beyond a reasonable doubt. See United
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States v. Echeverri, 982 F.2d 675, 677 (1st Cir. 1993); United
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States v. Ortiz, 966 F.2d 707, 711 (1st Cir. 1992), cert. denied,
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113 S. Ct. 1005 (1993). The government can satisfy its burden of
proof by either direct or circumstantial evidence. See
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Echeverri, 982 F.2d at 679; United States v. Rivera-Santiago, 872
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F.2d 1073, 1079 (1st Cir.), cert. denied, 492 U.S. 910 (1989).
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To sustain a conviction, a reviewing court need not conclude that
only a guilty verdict could appropriately be reached; it is
enough that the jury's determination draws its essence from a
plausible reading of the record. See Echeverri, 982 F.2d at 677;
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Ortiz, 966 F.2d at 711.
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Using these guideposts, the quantum of evidence adduced
here is more than adequate. If the jury believed the
government's witnesses, Gonzalez was guilty, pure and simple.
Appellant virtually concedes this point, but argues that the key
witnesses against him had poor memories, character flaws, drug
addictions, and selfish reasons for finger-pointing. This
argument has some basis in the record, but it was fully aired
during cross-examination and in defense counsel's summation. The
jury obviously believed the evidence was reliable. That ends the
matter: credibility calls are within the jury's exclusive
province, see United Sates v. David, 940 F.2d 722, 730 (1st Cir.
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1991), cert. denied, 112 S. Ct. 2301 (1992), and, therefore, a
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claim of evidentiary insufficiency that rests upon witness
credibility cannot succeed. See, e.g., United States v. Serrano,
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870 F.2d 1, 5 (1st Cir. 1989). So it is here.
II
II
Appellant's attack on his sentence advances on two
fronts. Neither invasion succeeds.
1. Role in the Offense. Appellant claims that the
1. Role in the Offense.
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district court erred in its determination of his role in the
criminal activity. See U.S.S.G. 3B1.1(c) (Nov. 1992) (providing
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a two-level increase for assuming managerial responsibilities in
certain criminal endeavors). Hiking a defendant's offense level
under this provision is justified if the court supportably
determines that the offense(s) of conviction involved at least
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two participants, and that the defendant exercised control over
one of them. See United States v. Fuller, 897 F.2d 1217, 1220
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(1st Cir. 1990). "The government must bear the burden of proving
that an upward role-in-the-offense adjustment is warranted."
United Sates v. Morillo, 8 F.3d 864, 872 (1st Cir. 1993).
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In his brief, appellant says that the increase was
unjustified, not because of a lack of evidence, but because "the
government's witnesses were not credible." Appellant's Brief at
10. That suggestion goes nowhere. Just as the jury is the
principal arbiter of witness credibility at trial, the judge is
the principal arbiter of credibility at sentencing. See United
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States v. St. Cyr, 977 F.2d 698, 706 (1st Cir. 1992) (holding
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that credibility determinations during the sentencing phase "lie
within the domain of the district court"). Consequently, the
claim of error cannot prosper.
2. Acceptance of Responsibility. Finally, appellant
2. Acceptance of Responsibility.
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posits that the district court erred in failing to lower his
offense level for acceptance of responsibility. See U.S.S.G.
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3E1.1 (Nov. 1992). We do not agree.
A defendant must carry the burden of proving
entitlement to reductions in the offense level, including
downward adjustments for acceptance of responsibility. See
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Morillo, 8 F.3d at 871; United States v. Bradley, 917 F.2d 601,
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606 (1st Cir. 1990). Where, as here, the sentencing court has
ruled against a defendant on such an issue, the defendant "faces
an uphill battle." Morillo, 8 F.3d at 871. It is, after all,
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firmly settled that "[w]hether a defendant 'clearly demonstrates
a recognition and affirmative acceptance of personal
responsibility' is a fact-dominated issue, and the district
court's decision to withhold a reduction in the offense level
will not be overturned unless clearly erroneous." United States
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v. Royer, 895 F.2d 28, 29 (1st Cir. 1990) (citation omitted).
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We have read the record with care, and find no
compelling evidence that appellant accepted responsibility in a
timely manner. To the contrary he pled not guilty and maintained
his innocence throughout the trial. To be sure, a sentencing
court can still find a timely acceptance of responsibility in
such circumstances, see U.S.S.G. E1.1, comment. (n.2), but it is
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hard to fault the court for being skeptical.1 There is no way
that we, from the vista of a cold appellate record, can second-
guess the trial judge (who saw and heard the defendant). See,
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e.g., United States v. Cepeda, 907 F.2d 11, 11 (1st Cir. 1990).
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Absent clear error and we see none here we must uphold the
sentencing court's refusal to reduce appellant's offense level
for acceptance of responsibility.
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1Appellant argues that he would have accepted responsibility
earlier, but for his uncertainty about the drug quantities that
would be attributed to him. There are two problems with this
asseveration. First, there is nothing in the record to suggest
that this is any more than post-hoc rationalization. Second,
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even if it were to be given some credence, we have characterized
an offer to plead guilty "subject to" an agreement on drug
quantity as "too problematic" to serve as the functional
equivalent of acceptance of responsibility. Morillo, 8 F.3d at
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872.
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The defendant's conviction and sentence are summarily
The defendant's conviction and sentence are summarily
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affirmed. See 1st Cir. R. 27.1.
affirmed. See 1st Cir. R. 27.1.
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