USCA1 Opinion
United States Court of Appeals
For the First Circuit For the First Circuit
____________________
No. 96-1588
UNITED STATES OF AMERICA,
Appellee,
v.
PEDRO MURIEL A/K/A PEDRO JUAN REYES-MURIEL,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge] ___________________
____________________
Before
Boudin, Circuit Judge, _____________
Bownes, Senior Circuit Judge, ____________________
and Lynch, Circuit Judge. _____________
____________________
Scott A. Lutes for appellant. ______________
Margaret E. Curran, Assistant United States Attorney, with whom ___________________
Sheldon Whitehouse, United States Attorney, and Zechariah Chafee, ___________________ ________________
Assistant United States Attorney, were on brief for appellee.
____________________
May 5, 1997
____________________
BOWNES, Senior Circuit Judge. Defendant-appellant BOWNES, Senior Circuit Judge. ____________________
Pedro Muriel appeals the district court's denial of his
motion to withdraw his plea of guilty. We affirm.
BACKGROUND BACKGROUND
Muriel was arrested during the execution of a
warrant to search his girlfriend's apartment. When police
entered the apartment on September 14, 1995, they found
Muriel standing in a bedroom in his underwear and reaching
toward the bed, upon which police found a loaded Smith and
Wesson 10-millimeter handgun under a pillow. Muriel claims
that he was not reaching for the gun but for his pants.
Police had obtained the warrant to search the two-
bedroom apartment rented by Muriel's girlfriend, Ingrid
Ostos, on the basis of information provided by a reliable
informant previously used by the police. In the bedroom in
which they found Muriel and the gun, police also found $1,065
in cash in a nightstand, an ammunition box containing sixteen
live .45 caliber rounds, and some personal papers belonging
to Muriel and Ostos. In the other bedroom they found a
plastic bag holding twenty-three glassine packets containing
traces of heroin and a small electronic scale.
Muriel had previously been convicted for other
offenses. At the time he was arrested, he was facing a
pending violation of a probationary term and a suspended
sentence in Rhode Island Providence County Superior Court.
-2- 2
In the case at bar, Muriel was indicted on three counts:
Count I, violation of 21 U.S.C. 841(a) (possession of
heroin with intent to distribute), Count II, violation of 18
U.S.C. 924(c)(1) (using or carrying a firearm during and in
relation to a drug-trafficking crime), and Count III,
violation of 18 U.S.C. 922(g) by being a "felon-in-
possession" (i.e., possession of a firearm after having been
convicted of a felony). Muriel entered a plea of not guilty
to the charges at his arraignment, and the case was placed on
the trial calendar for December 1995. On November 30, 1995,
the parties signed a plea agreement pursuant to Federal Rule
of Criminal Procedure 11(e)(1)(B), in which Muriel agreed to
plead guilty to Count III (the felon-in-possession charge)
and the government agreed to drop the other two charges and
recommend to the court that Muriel be sentenced at the low
end of the applicable guideline range. The government also
orally agreed not to oppose a three-level reduction for
acceptance of responsibility.
Between the time the plea agreement was accepted
and Muriel's sentencing, the Supreme Court decided Bailey v. _________
United States, 116 S. Ct. 501 (1995), which altered the ______________
prevailing interpretation of the term "use" in 18 U.S.C.
924(c)(1), one of the offenses with which Muriel had
originally been charged, but which was dropped by the
government pursuant to the plea agreement. 18 U.S.C.
-3- 3
924(c)(1) provides, in relevant part, that any person who,
"during and in relation to any crime of violence or drug
trafficking crime . . . uses or carries a firearm, shall . .
. be sentenced to imprisonment for five years . . . ." In
Bailey, the Supreme Court held that, in order to constitute ______
an offense under the "use" prong of 924(c)(1), there must
be evidence of "active employment" of a firearm in the
commission of the predicate offense; mere possession of a
firearm by a person committing an offense is not sufficient.
Id. at 505. At the sentencing hearing on February 23, ___
1996, Muriel moved to vacate his plea of guilty so that he
could move to suppress evidence seized during the search of
September 14, 1995. The district court denied the motion,
and Muriel was subsequently sentenced to thirty-three months
in prison, a three-year period of supervised release, and a
fine of $7,130.80. He then timely filed this appeal.
Muriel wants to withdraw his plea of guilty to the
felon-in-possession charge. He argues that he did not
receive the benefit of his bargain in pleading guilty to this
charge because the Supreme Court's decision in Bailey, handed ______
down after Muriel had pled guilty pursuant to the agreement,
would nullify the 18 U.S.C. 924(c)(1) charge, Count II of
the indictment, which was dropped by the government pursuant
to the plea agreement. Muriel argues further that since the
sentencing court was not convinced by a fair preponderance of
-4- 4
the evidence on Count I, Count III is the only viable charge
left against him. Appellant's Br. at 8.
Muriel does not request a trial; indeed, he does
not profess his innocence, but wishes to file a motion to
suppress evidence in order to challenge the affidavit upon
which the search warrant which led to the discovery of the
gun was based. Muriel thus contends that he should be
permitted to withdraw his guilty plea in order to avail
himself of another strategy in his defense.
ANALYSIS ANALYSIS
Muriel makes two arguments on appeal. First, he
contends that the district court abused its discretion in
denying his motion to withdraw his plea because he has
asserted a fair and just reason for doing so. Second, Muriel
contends that the district court committed clear error in
sentencing him by denying him a downward adjustment for
acceptance of responsibility.
I. I.
Muriel moved to vacate his guilty plea before he
was sentenced. Federal Rule of Criminal Procedure 32(e),
which governs plea withdrawals, states, in pertinent part:
"If a motion to withdraw a plea of guilty or nolo contendere
is made before sentence is imposed, the court may permit the
plea to be withdrawn if the defendant shows any fair and just
reason." A defendant has no absolute right to withdraw a
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guilty plea. See United States v. Isom, 85 F.3d 831, 834 ___ ______________________
(1st Cir. 1996); United States v. Ribas-Dominicci, 50 F.3d _________________________________
76, 78 (1st Cir. 1995). Moreover, a district court's
decision granting or denying a motion to withdraw a guilty
plea may be reversed only upon a demonstrable abuse of
discretion. See United States v. Sanchez-Barreto, 93 F.3d ___ _________________________________
17, 23 (1st Cir. 1996), cert. denied sub nom. Arroyo-Reyes v. _____ ______ ___ ____ _______________
United States, 117 S. Ct. 711 (1997); United States v. ______________ _________________
Parrilla-Tirado, 22 F.3d 368, 371 (1st Cir. 1994). _______________
We have employed four criteria in determining
whether a defendant has asserted a "fair and just" reason for
withdrawing a guilty plea:
(1) the plausibility of the reasons
prompting the requested change of plea;
(2) the timing of the defendant's motion;
(3) the existence or nonexistence of an
assertion of innocence; and (4) whether,
when viewed in the light of emergent
circumstances, the defendant's plea
appropriately may be characterized as
involuntary, in derogation of the
requirements imposed by Fed. R. Crim. P.
11, or otherwise legally suspect.
Sanchez-Barreto, 93 F.3d at 23. The fourth consideration, _______________
which hinges on whether the plea was knowing, voluntary, and
intelligent, is most significant. Ribas-Dominicci, 50 F.3d _______________
at 78.
If, under this analysis, the defendant successfully
meets his burden of demonstrating a fair and just reason for
withdrawing his plea, the court must inquire whether the
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government will suffer any demonstrable prejudice from the
withdrawal of the plea. Parrilla-Tirado, 22 F.3d at 371. _______________
Because we find that Muriel does not meet his burden under
this analysis, however, we need not address the question of
prejudice. See id. at 373 n.5; United States v. Doyle, 981 ___ ___ ______________________
F.2d 591, 596 n.6 (1st Cir. 1992).
(1) Plausibility (1) Plausibility
Muriel must demonstrate a plausible reason for
withdrawing his guilty plea. See Parrilla-Tirado, 22 F.3d at ___ _______________
371. Plausibility cannot just rest on Muriel's second
thoughts "'about some fact or a point of law, or about the
wisdom of his earlier decision.'" Isom, 85 F.3d at 837 ____
(quoting Parrilla-Tirado, 22 F.3d at 371). Our review of the _______________
record supports the district court's assessment that Muriel's
change of heart, while "understandable," was prompted by
second thoughts about the wisdom of his decision to enter the
plea agreement rather than file a motion to suppress evidence
of the gun. Memorandum and Order of March 19, 1996 at 4.
Muriel advances the following as plausible reasons for
withdrawing his plea: (1) his motion to withdraw was not the
product of second thoughts but was prompted by the Bailey ______
decision; (2) an alleged defect in the warrant makes his plea
suspect; and (3) the plea bargain ceased to be to his
benefit. We find none of these to be plausible reasons.
-7- 7
By his own admission Muriel had second thoughts all
along about his strategic choice to plea bargain because he
had doubts about the sufficiency of the evidence upon which
the search warrant was based. But Muriel made a tactical
decision to forgo the warrant challenge because, at the time,
he thought it was in his best interests to secure dismissal
of the most serious charge, 18 U.S.C. 924(c)(1) (the
"Bailey charge"), which carries a five-year mandatory ______
sentence. Appellant's Memorandum in Support of Motion to
Vacate Plea of Guilty at 2. Nearly three months later, when
Muriel concluded that circumstances had changed such that a
potential motion to suppress seemed to be a better strategy
than his plea bargain, he decided that withdrawal of his plea
was in order. But, as we have already stated, second
thoughts do not constitute a plausible reason for withdrawal.
Muriel also argues that the information contained
in the affidavit in support of the search warrant was
insufficient to establish probable cause, and that this is a
plausible reason for withdrawing his plea. Specifically,
Muriel contends that the warrant "contained lies," and that
this renders his plea and conviction "legally suspect."
Appellant's Br. at 12. But, as the district court pointed
out, Muriel has not met his burden of showing that the
affidavit did not sustain a finding of probable cause for the
-8- 8
warrant. Memorandum and Order of March 19, 1996 at 5.
Muriel has neither demonstrated that, under the "totality of
the circumstances" test, the information contained in the
affidavit does not show that there was "a fair probability
that contraband or evidence of a crime" would be discovered
at a specific place, Illinois v. Gates, 462 U.S. 213, 238 __________________
(1983), nor presented evidence of "deliberate falsehood or of
reckless disregard for the truth" on the part of the affiant
detective, Franks v. Delaware, 438 U.S. 154, 171 (1978). __________________
Aside from the affidavit itself and his bare
allegations that the affidavit contained lies by the
informant and misstatements by the investigating detective,
Muriel offers no proof that probable cause to issue the
warrant was lacking. On the facts before us, we cannot say
that the district court abused its discretion in rejecting
Muriel's argument that deficiencies in the warrant rendered
his plea legally suspect.1 We add that Muriel has no
argument that he was previously deprived of the chance to
file a motion to suppress because he was unaware of the
facts. To the contrary, Muriel's decision to plead guilty,
rather than file a motion to suppress, was a tactical
decision made months before he moved to withdraw his plea.
____________________
1. Although we review the denial of a motion to suppress
de novo, see United States v. Zayas-Diaz, 95 F.3d 105, 111 __ ____ ___ ____________________________
n.6 (1st Cir. 1996), we review the denial of a pre-sentence
motion to withdraw a guilty plea for abuse of discretion.
-9- 9
At the time Muriel pled guilty, he possessed all the relevant
information about the affidavit that he now claims is
defective. This is not a case where the defendant can point
to newly-discovered evidence. Cf. United States v. Ramos, ___ _______________________
810 F.2d 308, 313 (1st Cir. 1987) (finding that the lower
court did not abuse its discretion in refusing to "give
weight to a self-serving, unsupported claim of innocence
raised judicially for the first time after the Rule 11
hearing," particularly where the defendants had not offered
insight into the substance of the exculpatory information).
We conclude that Muriel's unsupported claims regarding the
sufficiency of the search warrant do not provide a plausible
reason for withdrawal here.
Finally, Muriel argues that he did not receive the
benefit of his bargain because of Bailey's impact on his plea ______
agreement, because he received no downward adjustment for
acceptance of responsibility, and because he was sentenced at
the higher end of the applicable guideline range rather than
the lower end. We have frequently stated that plea
agreements are contractual in nature. See Parrilla-Tirado 22 ___ _______________
F.3d at 371; United States v. Atwood, 963 F.2d 476, 479 (1st _______________________
Cir. 1992). We have further explained that a defendant
receives some "built-in" benefits when he or she pleads
guilty and that, barring material misrepresentation, default
on a promise, or breach of the agreement by the government,
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no additional consideration is required to support a guilty
plea. Parrilla-Tirado, 22 F.3d at 371-72. _______________
Muriel's memorandum in support of the motion to
withdraw his plea states that he ultimately decided to forgo
filing a motion to suppress evidence of the gun in exchange
for the chance to bargain away the most significant charge
against him, the Bailey charge, which carried a mandatory ______
minimum of five years. There was ample consideration for the
agreement--in exchange for Muriel's guilty plea to Count III,
the government agreed to drop Counts I and II and not to
oppose a reduction in his sentence for acceptance of
responsibility. Muriel cannot be permitted now to withdraw
his plea in the hopes of renegotiating a better deal just
because Counts I and II later looked like weak charges.
Although Muriel may believe that he did not receive
any "built-in" benefits of his bargain, his bargain was with
the government, which could only make the agreed-to
recommendations to the court and could not guarantee that
Muriel would receive a particular sentence. Sentencing is
within the discretion of the district court. Moreover, as
Rule 11(e)(1)(B) itself makes clear, a plea agreement of this
kind is made with the "understanding that such recommendation
or request shall not be binding upon the court." We agree
with the district court that Muriel should not be allowed to
vacate his guilty plea on this basis.
-11- 11
(2) Timing (2) Timing
The length of time between the entry of the plea
and the filing of the motion to withdraw is a factor to be
considered. Ramos, 810 F.2d at 312. "Because the timing of _____
a defendant's attempted plea withdrawal is highly probative
of motive, close scrutiny of the chronology is important in
adjudicating whether retraction is fair and just." Doyle, _____
981 F.2d at 595.
Muriel moved to withdraw his plea on February 23,
1996, over two months after Bailey was decided, and almost ______
three months after his guilty plea was entered. This
circuit's case law counsels against withdrawal after such a
delay. See Isom, 85 F.3d at 839 (two-month delay too long); ___ ____
Ramos, 810 F.2d at 313 (thirteen-day delay too long); United _____ ______
States v. Keefe, 621 F.2d 17, 20 (1st Cir. 1980) (three-week ________________
delay too long). What is more significant, however, is that
Muriel's motion to withdraw came one month after the release
of the Presentence Investigation Report ("PSI Report"), which
recommended a sentence of 30 to 37 months, and found Muriel
to be ineligible for probation. If timing is indeed
probative of motive, then it would seem that Muriel was
actually prompted to move to withdraw his plea by his
disappointment with the recommended sentence in the PSI
Report.
(3) Claim of Innocence (3) Claim of Innocence
-12- 12
A defendant's assertion of innocence may cause a
court to look favorably upon a motion to withdraw.
Conversely, the lack of a claim of innocence weighs in favor
of sustaining a guilty plea. See Parrilla-Tirado, 22 F.3d at ___ _______________
373; Doyle, 981 F.2d at 596. Muriel does not claim to be _____
innocent of the felon-in-possession charge to which he pled
guilty. He admitted his guilt at the Rule 11 hearing and has
not asserted otherwise at sentencing or on appeal.
Obviously, Muriel's failure to assert a claim of innocence
weighs against his contention that his reason for withdrawing
his plea is fair and just.
(4) Voluntary and Knowing Plea (4) Voluntary and Knowing Plea
"[B]y entering a guilty plea, a defendant
effectively waives several constitutional rights. For that
waiver to be valid, the plea must amount to a voluntary and
intentional relinquishment or abandonment of a known right or
privilege." United States v. Gray, 63 F.3d 57, 60 (1st Cir. _____________________
1995) (citing United States v. Cotal-Crespo, 47 F.3d 1, 4 _______________________________
(1st Cir.), cert. denied, 116 S. Ct. 94 (1995)). _____ ______
Accordingly, while technical violations of Rule 11 "do not
count," violations of any of the three core concerns--absence
of coercion, understanding of the charges, and knowledge of
the consequences of the guilty plea--mandate that the plea be
set aside. Ribas-Dominicci, 50 F.3d at 78. _______________
-13- 13
Muriel does not assert that his plea was not
voluntarily entered or that he did not understand the Rule 11
plea colloquy. Instead, he claims that, at the time he
agreed to the plea bargain, he could not have known that the
Bailey decision would nullify Count II of the indictment, and ______
that therefore he was operating under a false assumption
regarding the applicable law when he entered his plea. The
argument that the change in law rendered his plea unknowing
under the law at the time, and that he was prejudiced in
giving up the opportunity to challenge the admission of
evidence (the gun) fails for several reasons.
First, there are no allegations of coercion or
mistake, nor is there any evidence of such on the part of the
government. Second, the record shows that Muriel understood
the charges against him and that he was aware of the possible
risks involved in pleading guilty. The district court found
that at the change of plea hearing, "Muriel was apprised of
the precise nature of the charge set forth in Count III, the
elements the government was required to prove in order to
convict him, the sentence that could be imposed if his guilty
plea was accepted and the rights he was relinquishing by
pleading guilty." Memorandum and Order of March 19, 1996 at
7. In addition, Muriel's plea agreement stated that he
understood the constitutional rights he was relinquishing,
and that he understood that he had no right to withdraw his
-14- 14
plea in the event the court did not accept the government's
sentencing recommendations. Muriel acknowledged that he
signed the agreement and understood its contents, and he
concedes that he understood the Rule 11 colloquy.
This court has not allowed defendants, absent
coercion or mistake, to renege on plea agreements on the
basis that they have miscalculated their risks and benefits
or have belatedly discovered a new defense. United States v. ________________
Allard, 926 F.2d 1237, 1243 (1st Cir. 1991). ______
In reaching a plea bargain, a defendant
assesses the likelihood of conviction and
balances that against the relative
severity of the sentence he expects to
receive pursuant to the agreement and
that which could be imposed upon
conviction. In many cases, that process
results in a compromise pursuant to which
the defendant makes a conscious decision
to relinquish a perceived defense. . . .
To hold otherwise would render plea
agreements and the pleas entered pursuant
to them meaningless.
Id. (collecting cases). ___
Similarly, the Supreme Court has stated in Brady v. ________
United States that, "absent misrepresentation or other _______________
impermissible conduct by state agents, a voluntary plea of
guilty intelligently made in the light of the then applicable ___________________________________
law does not become vulnerable because later judicial ___
decisions indicate that the plea rested on a faulty premise."
397 U.S. 742, 757 (1970) (internal citation omitted)
(emphasis added). Muriel's post-hoc determination after ________
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Bailey that he would be better off filing a motion to ______
suppress the gun and then bargaining anew with the government
does not constitute grounds for vacating his plea.
We do not believe that a district court abuses its
discretion by denying a motion to withdraw a guilty plea that
is premised on the basis that a decision by the Supreme Court
interpreting a criminal statute might affect a count which _____
was dropped by agreement of the parties in the plea bargain.
Other circuits have also faced post-Bailey plea-agreement ______
appeals, but in contrast to the case at bar, the guilty pleas
that have been vacated or remanded involve guilty pleas to
the Bailey-affected charge.2 In other words, Muriel's ______
assertion here that he pled guilty under a false assumption
____________________
2. In ruling on the validity of a guilty plea to a Bailey- ______
affected charge, the Fifth Circuit has explained that, "where
intervening law has established that a defendant's actions do
not constitute a crime and thus that the defendant is
actually innocent of the charged offense," a defendant is
permitted to attack a guilty plea. United States v. Andrade, ________________________
83 F.3d 729, 731 (5th Cir. 1996). In Andrade, the defendant _______
pled guilty to a 924(c)(1) charge in addition to three
other charges. Determining that there was no factual basis
for the 924(c)(1) offense, the court vacated the
defendant's conviction and sentence on that charge and
remanded to the district court. See also United States v. ___ ____ ________________
Abdul, 75 F.3d 327 (7th Cir.), cert. denied, 116 S. Ct. 2569 _____ _____ ______
(1996).
But the case at bar differs fundamentally from such
cases. Here, the Bailey decision did not change the ______
interpretation of a statute to which the defendant had pled
guilty; rather, it affected a charge dropped by the
government before Bailey was decided. We are not faced with ______
a defendant who may have been sentenced for conduct which did
not constitute a federal offense, as in Andrade. Moreover, _______
Muriel does not deny that he is guilty of the offense
charged.
-16- 16
about the law does not provide a fair and just reason because
the change in law does not affect the charge to which he pled
guilty, but a separate count of the indictment which was
dropped. A case on point is United States v. Knight, 96 F.3d _______________________
307 (8th Cir. 1996), cert. denied, No. 96-8236, 1997 WL _____ ______
134752 (Apr. 14, 1997), in which the defendant pled guilty to
a drug-conspiracy charge in return for the government's
agreement to drop a 924(c)(1) charge, along with other drug
offenses. The defendant did not assert that his plea was
unknowing, but argued that "a change in the law applicable to
the gun charge materially altered the plea agreement's
basis." Id. at 309. On appeal, the Eighth Circuit decided ___
that the possibility that the defendant's conduct would not
qualify as an offense under 924(c)(1) in light of Bailey ______
did not undermine his bargain with the government where the
defendant had been indicted on several other charges which
were dropped pursuant to the plea agreement. Id. ___
We therefore need not review the factual basis for
the dropped Bailey charge against Muriel to determine whether ______
the district court was correct in concluding that it was "far
from certain" that Bailey would nullify Count II. Memorandum ______
and Order of March 19, 1996 at 6. It is sufficient to note
that Muriel's contention that Count II would be nullified
because of Bailey is not a sure bet. The district court ______
found that "evidence that Muriel had a firearm within
-17- 17
reaching distance and made a movement toward it when police
entered could be sufficient to establish that he actively
'used' the firearm." Id. at 6. ___
We conclude that the district court did not abuse
its discretion in refusing to allow Muriel to withdraw his
guilty plea.
II. II.
Muriel also contends that the district court
committed clear error by not awarding him a downward
adjustment of two or three levels for acceptance of
responsibility under Section 3E1.1 of the Federal Sentencing
Guidelines.3
____________________
3. The United States Sentencing Guidelines Section 3E1.1
states:
Acceptance of Responsibility ____________________________
(a) If the defendant clearly
demonstrates acceptance of responsibility
for his offense, decrease the offense
level by 2 levels. 2
(b) If the defendant qualifies for a
decrease under subsection (a), the
offense level determined prior to the
operation of subsection (a) is level 16 16
or greater, and the defendant has
assisted authorities in the investigation
or prosecution of his own misconduct by
taking one or more of the following
steps:
(1) timely providing complete
information to the government
concerning his own involvement
in the offense; or
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A defendant who pleads guilty is not entitled to a
downward adjustment for acceptance of responsibility as a
matter of right. U.S.S.G. 3E1.1, application note 3;
United States v. Royer, 895 F.2d 28, 29-30 (1st Cir. 1990). ______________________
The defendant has the burden of proving entitlement to a
decrease in the offense level, including a downward
adjustment for acceptance of responsibility. United States _____________
v. Morillo, 8 F.3d 864, 871 (1st Cir. 1993). Whether a ___________
defendant has accepted responsibility for the offense is a
fact-dominated issue, and therefore we review the district
judge's ruling for clear error. Royer, 895 F.2d at 29. We _____
give the findings of the district court "a wide and
deferential berth" because the court has the benefit of
assessing the credibility of the defendant first-hand.
U.S.S.G. 3E1.1 application note 5; Royer, 895 F.2d at 30. _____
While the facts are a close call, we accept the determination
made by the district judge because it is not clearly
erroneous.
____________________
(2) timely notifying author-
ities of his intention to enter
a plea of guilty, thereby
permitting the government to
avoid preparing for trial and
permitting the court to
allocate its resources
efficiently,
decrease the offense level by 1 1
additional level.
-19- 19
Muriel did take some steps towards accepting
responsibility for his offense--he wrote a letter to accept
responsibility and he testified in court as to the purchase
of the gun. (PSI Report at 4; Sent. Hr'g Pt. IV at 94.) The
prosecution and the probation officer both recommended to the
district court that Muriel receive a three-level reduction in
his offense level for acceptance of responsibility. The
district court did not follow the recommendation because it
found that Muriel had lied.
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.
United States v. Ocasio-Rivera, 991 F.2d 1, 5 (1st Cir. ________________________________
1993). The district judge did not believe Muriel's repeated
assertion that the gun no longer belonged to him on the night
the police executed the warrant, but belonged to his
girlfriend. In spite of the fact that Ms. Ostos was
unfamiliar with the gun, Muriel continued to insist that he
had given it to her, and that she kept the loaded gun under ___
the pillow upon which he had been sleeping. The district
court found that, while Muriel may have made the gun
available to Ostos while he was in the apartment, Muriel
continued to possess the gun up until his arrest. (Sent.
Hr'g Pt. IV at 162.) The district court's credibility
-20- 20
determination that Muriel was lying was not clearly
erroneous.
III. III.
The judgment of the district court is affirmed. affirmed ________
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