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