United States v. Gonzales

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1737

UNITED STATES OF AMERICA,

Appellee,

v.

ALBERTO GONZALES,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]

Before

Torruella, Selya and Stahl, Circuit Judges.

Stephen H. Mackenzie on brief for appellant.

Jay P. McCloskey, United States Attorney, and Michael M.

DuBose, Assistant United States Attorney, on brief for appellee.

December 23, 1993

SELYA, Circuit Judge. This sentencing appeal is long
SELYA, Circuit Judge.

on rhetoric, but short on merit. Having considered and rejected

defendant's three assignments of error, we affirm the judgment

below.

I

First, defendant-appellant Alberto Gonzales contends

that the district court erred in imposing a two-level sentence

enhancement for obstruction of justice.1 See U.S.S.G. 3C1.1

(Nov. 1992). The contention is jejune. We review a sentencing

court's factfinding in these precincts with considerable

deference. See, e.g., United States v. Veilleux, 949 F.2d 522,

525-26 (1st Cir. 1991) (explaining that an obstruction of justice

finding will be upheld if not clearly erroneous); United States

v. Wheelwright, 918 F.2d 226, 228 (1st Cir. 1990) (similar).

Here, the district court had before it convincing evidence that

appellant attempted to coax an acquaintance into bearing false

witness about a matter material to the case. Such scurrilous

deportment clearly can constitute obstruction of justice,

warranting a two-level enhancement of a defendant's base offense

level. See U.S.S.G. 3C1.1, comment. (n. 3(b)) (Nov. 1992).

Attempting to avoid this result, appellant asserts that

the district court failed to make a finding of specific intent in

1In general, a sentencing court applies the guidelines in
effect on the date of sentencing. See United States v. Bell, 953

F.2d 6, 7 (1st Cir. 1992); United States v. Harotunian, 920 F.2d

1040, 1041-42 (1st Cir. 1990). Gonzales was sentenced on July 2,
1993. Hence, this case is controlled by the November 1992
edition of the guidelines.

2

respect to obstructing justice. We read the record differently.

The judge found explicitly, and supportably, that appellant

"intentionally and knowingly attempted to persuade another

individual to testify falsely in court as to a material matter

(e.g., that law enforcement agents illegally used contraband

substances during a drug buy in the course of their official

duties in this case)." In our view, no more is exigible. We do

not demand that judges, when explaining the bases for their

rulings, "be precise to the point of pedantry." Lenn v. Portland

Sch. Comm., 998 F.2d 1083, 1088 (1st Cir. 1993) (collecting

cases). Giving due weight to context and common sense, we accept

the sentencing judge's use of the phrase "intentionally and

knowingly" in this case as the functional equivalent of an

express finding of specific intent.2

II

Next, appellant posits that the district court erred in

failing to lower his sentence for acceptance of responsibility.

See U.S.S.G. 3E1.1 (Nov. 1992). We do not agree.

A defendant bears the burden of proving entitlement to

decreases in the offense level, including downward adjustments

for acceptance of responsibility. See United States v. Morillo,

F.3d , (1st Cir. 1993) [No. 93-1388, slip op. at 16];

United States v. Bradley, 917 F.2d 601, 606 (1st Cir. 1990).

2Appellant also suggests that the act of subornation
occurred because he was suffering from opioid withdrawal. That
suggestion has no credible support in the record. We cannot
fault the district court for failing to accept sheer speculation
in place of hard proof.

3

Once the sentencing court has ruled against a defendant on such

an issue, he "faces an uphill battle." Morillo, F.3d at

[slip op. at 16]. In large part, the uphill nature of the battle

relates to the standard of appellate review: "Whether 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 v. Royer, 895 F.2d 28, 29 (1st Cir. 1990) (citation

omitted).

Here, the uphill battle is fought on a slope too steep

for appellant to climb. There is a logical inconsistency

between, on one hand, attempting to obstruct justice, and, on the

other hand, accepting responsibility in a timeous manner. The

guidelines acknowledge this inconsistency. Only "extraordinary

cases" qualify for an acceptance-of-responsibility credit

following an enhancement for obstruction of justice. See

U.S.S.G. 3E1.1, comment. (n. 4) (Nov. 1992); see also United

States v. Olea, 987 F.2d 874, 878 (1st Cir. 1993). A defendant

must carry the burden of proving that his case is "extraordinary"

and, thus, that it comes within the narrow confines of the

exception. See Olea, 987 F.2d at 878.

Appellant cannot scale these heights. The district

judge discerned "nothing in this case to make it the

extraordinary case required by the guideline application note

that would justify a reduction for acceptance of responsibility

4

in the base offense level, in the face of the court's finding of

obstruction of justice." That conclusion is fully supported by

the record. Indeed, the only thing extraordinary about this case

is appellant's temerity in continuing to press for a credit under

section 3E1.1 notwithstanding his failed effort at subornation.

Undaunted, appellant tries another tack. Invoking the

doctrine of United States v. Perez-Franco, 873 F.2d 455, 463 (1st

Cir. 1989), appellant says that the lower court erroneously

denied a section 3E1.1 adjustment based on its perception that

appellant failed to accept responsibility for uncharged "relevant

conduct". We think that appellant's reliance on Perez-Franco is

mislaid. There is a meaningful distinction between a defendant

who does not accept responsibility for conduct underlying

dismissed charges (the Perez-Franco scenario) and a defendant who

falsely denies, or frivolously contests, the occurrence of such

behavior. See Olea, 987 F.2d at 878. While a defendant is not

required affirmatively to admit conduct beyond the offenses of

conviction in order to obtain credit for acceptance of

responsibility, see Perez-Franco, 873 F.2d at 463, a court may

properly consider whether a defendant who mendaciously denies

relevant conduct has acted in a manner inconsistent with

accepting responsibility, see Olea, 987 F.2d at 878; see also

U.S.S.G. 3E1.1, comment. (n.1(a)) (Nov. 1992). The district

court found, in effect, that this case belongs to the latter

genre. The court's finding is supportable. Thus, the assignment

of error fizzles.

5

III

Among other things, appellant pled guilty to

purchasing, receiving, and possessing six handguns after being

convicted of a felony. See 18 U.S.C. 922 (g)(1), 924 (a)(2).

A defendant charged under these statutes is entitled to a

reduction in his base offense level if he can prove that he

possessed the challenged firearms "solely for lawful sporting

purposes or collection." U.S.S.G. 2K2.1(b)(2) (Nov. 1992). The

district court refused to grant this reduction. Appellant now

complains.

A defendant bears the burden of proving by a

preponderance of the evidence that he is entitled to a downward

adjustment under section 2K2.1(b)(2). See United States v.

Cousens, 942 F.2d 800, 802 (1st Cir. 1992). We review the

sentencing court's findings of fact on this issue for clear

error. See id. We have carefully sifted the record, including

appellant's changing accounts of why the handguns were in his

possession. Given the implausibility of appellant's tale and the

dearth of corroborative evidence, we find no clear error in the

district court's finding that appellant was acting neither as a

sportsman nor as a collector in assembling a small arsenal of

handguns. Hence, we uphold the court's refusal to grant the

requested reduction.

IV

6

We need go no further.3 Shortly after the sentencing

guidelines took effect, we wrote that:

Sentencing appeals prosecuted without
discernible rhyme or reason, in the tenuous
hope that lightning may strike, ought not to
be dignified with exegetic opinions,
intricate factual synthesis, or full-dress
explications of accepted legal principles.
Assuredly, a criminal defendant deserves his
day in court;but we see no purpose in wasting
overtaxed judicial resources razing castles
in the air.

United States v. Ruiz-Garcia, 886 F.2d 474, 477 (1st Cir. 1989).

So it is here.

The defendant's conviction and sentence are summarily

affirmed. See 1st Cir. Loc. R. 27.1.

3Appellant's remaining arguments are meritless and do not
bear discussion.

7