United States v. Tapia

USCA1 Opinion









May 2, 1995
[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-2114

UNITED STATES,

Appellee,

v.

CLIFFORD K. TAPIA,

Defendant, Appellant.


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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND


[Hon. Francis J. Boyle, Senior U.S. District Judge] __________________________

____________________

Before

Selya, Circuit Judge, _____________
Coffin and Bownes, Senior Circuit Judges. _____________________

____________________

Marie T. Roebuck and John F. Cicilline on brief for appellant. ________________ _________________
Sheldon Whitehouse, United States Attorney, Margaret E. Curran ___________________ ___________________
and Gerard B. Sullivan, Assistant United States Attorneys, on brief __________________
for appellee.


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Per Curiam. The sole issue raised by this appeal __________

is whether the district court erred, on remand, in denying

defendant-appellant Clifford K. Tapia an additional one-level

reduction in his offense level under U.S.S.G. 3E1.1(b)(1)

for acceptance of responsibility. We affirm.

I.

On September 28, 1993, Tapia pled guilty to

possession of heroin with intent to distribute it, see 18 ___

U.S.C. 841(a)(1); being a felon in possession of a firearm,

see 18 U.S.C. 922(g); and possession of a firearm with an ___

altered serial number, see 18 U.S.C. 922(k). On November ___

24, 1993, the district court sentenced Tapia to a prison term

of forty-one months. Tapia appealed, contending that the

district court, which granted him a two-level reduction under

U.S.S.G. 3E1.1(a) for acceptance of responsibility, erred

in failing to consider whether he is entitled to an

additional one-level reduction for having "timely provid[ed]

complete information to the government concerning his own

involvement in the offense." U.S.S.G. 3E1.1(b)(1). On

June 9, 1994, we vacated Tapia's sentence and remanded the

case to the district court so that it could determine whether

Tapia is eligible for the extra reduction. United States v. _____________

Clifford K. Tapia, No. 93-2306, slip op. at 6 (1st Cir. June _________________

9, 1994).



















Following a hearing on remand, the district court

denied Tapia's request for the additional one-level decrease.

In support of its determination, the district court observed

that "there is really nothing in the record to suggest that

the [d]efendant in fact gave complete information to the

[g]overnment, nothing at all." The court also observed that

the government, acting pursuant to a plea agreement, took no

position on the issue. Under the circumstances, the court

concluded that it was "virtually impossible for [it] to find

that the [d]efendant meets the requirements of [

3E1.1(b)(1)]." This appeal followed.

II.

Contrary to Tapia's suggestion, we do not think

that the district court ruled against him simply because the

government took no position on his eligibility for the extra

reduction. The court's questions during the hearing on

remand indicate that it had serious doubts whether Tapia ever

provided complete information to the government. It was

Tapia's burden to prove that he had done so. See United ___ ______

States v. Ocasio-Rivera, 991 F.2d 1, 4 (1st Cir. 1993) ______ _____________

(observing that the defendant bears the burden of proving his

entitlement to an acceptance-of-responsibility credit). The

district court ultimately denied Tapia the additional

decrease because it found, based on the record, that he had

failed to carry this burden.



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We add that the district court's finding adverse to

Tapia is not clearly erroneous. See United States v. ___ ______________

Morillo, 8 F.3d 864, 871 (1st Cir. 1993) (standard of _______

review). Based on undisputed facts set forth in the

Presentence Investigation Report, it appears that at the time

of his arrest, Tapia resorted to some half-truths and evasion

in order to minimize his responsibility. For example, Tapia

told arresting officers that he was merely holding heroin

found in his apartment for dealers. When the officers asked

about an additional one ounce of heroin, Tapia stated that it

had been retrieved the day before by his supplier. A drug

ledger found in Tapia's apartment, however, reflected the

profits that could be derived from the sale of one ounce of

heroin. Although Tapia was very forthcoming to the

arresting officers in certain other respects, we cannot say

on this record that he ever provided complete information to

the government, much less that he did so in a timely fashion.

Affirmed. See Loc. R. 27.1. _________ ___

















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