
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1071                                    UNITED STATES,                                      Appellee,                                          v.                                  G. DENNIS JOHNSON,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Cyr and Stahl, Circuit Judges.                                           ______________                                 ____________________            Richard H. Gens on brief for appellant.            _______________            Jay P. McCloskey, United States Attorney, Jonathan  R. Chapman and            ________________                          ____________________        Margaret D. McGaughey, Assistant United States Attorneys, on brief for        _____________________        appellee.                                 ____________________                                   August 22, 1996                                 ____________________                      Per  Curiam.   The  defendant,  G.  Dennis Johnson,                      ___________            appeals  his  convictions  and  sentences  for conspiracy  to            possess with  intent to  distribute heroin,  see 21  U.S.C.                                                           ___            846, and for aiding  and abetting in the distribution  of and            possession with intent to distribute  heroin, see 21 U.S.C.                                                            ___            841(a)(1) and 18  U.S.C.   2.   After  careful review of  the            parties' briefs and the  entire record, we find no  reason to            disturb the judgment below.                      The defendant challenges his  convictions, claiming            the  evidence  was insufficient  to  prove  he possessed  the            requisite mental  state,  i.e., that  he  was a  knowing  and            intentional participant  in the  drug deal arranged  by Daryl            Young, his co-conspirator.  We review the record to determine            whether on  all the  evidence and reasonable  inferences from            the evidence  a reasonable factfinder could  have found guilt            beyond  a reasonable doubt.   United States v.  Dodd, 43 F.3d                                          _____________     ____            759, 762 (1st Cir. 1995).  The district court, sitting as the            trier  of  fact,  heard   the  defendant,  in  tape  recorded            telephone conversations with  an undercover drug  enforcement            agent posing as  a buyer, provide the buyer  with information            necessary to lead him  to the ultimate seller of  the heroin.            Although the  defendant testified  that he was  suffering the            effects of heroin withdrawal at  the time of the conversation            and  did  not  know he  was  facilitating  a  drug deal,  the            district  court found,  as  it  was  free  to  do,  that  the                                         -2-            defendant's testimony was not credible.  See United States v.                                                     ___ _____________            DiMarzo,  80  F.3d  656,  661  (1st  Cir.  1996)  (factfinder            _______            entitled to  reject defendant's testimonial  contradiction of            government witness and his proffered innocent explanation for            his conduct).  From  all the evidence the district  court was            warranted  in  inferring that  the  defendant  was a  knowing            participant in the drug transaction.                      The  defendant  challenges  the   district  court's            imposition of  a two-level upward adjustment  to his sentence            for  obstruction of  justice, pursuant  to U.S.S.G.    3C1.1,            based  on  a finding that the defendant had committed perjury            during his  trial testimony.   The  district court  found the            defendant's  testimony that  he  was unaware  that Young  had            brought drugs  into Maine  not to  be credible  when compared            with the tape recording  of the defendant's conversation with            the  undercover  agent/buyer,  and  that  the  defendant  had            deliberately testified  falsely to obtain an  acquittal.  The            district court's finding  of untruthfulness, encompassing all            the  elements  of perjury,  is supported  by the  record, see                                                                      ___            United States v. Rehal, 940 F.2d 1, 6 (1st Cir. 1991), and we            _____________    _____            find no clear error.                      The defendant also claims that he was entitled to a            downward  adjustment  to  his  sentence  for   acceptance  of            responsibility  pursuant  to  U.S.S.G.     3E1.1.    Only  in            "extraordinary cases," however, will an adjustment be granted                                         -3-            for acceptance of responsibility when an enhancement has been            given  for  obstruction  of   justice.    U.S.S.G.     3E1.1,            Application Note 4.   The defendant has not shown  this to be            an extraordinary case.   Moreover, the clear demonstration of            acceptance of  responsibility  necessary for  this section to            apply  requires from  the defendant  an authentic  showing of            remorse, United States v. Bennett, 37 F.3d 687, 698 (1st Cir.                     _____________    _______            1994);  "[t]he  adjustment  is  not intended  to  apply  to a            defendant who puts the  government to its burden of  proof at            trial by denying the essential factual  elements of guilt, is            convicted, and only then admits guilt and expresses remorse."            U.S.S.G.   3E1.1, Application Note 2.  The district court had            a plausible  basis for concluding that the  defendant had not            accepted responsibility within the  meaning of the guideline.            See United States v. Royer, 895 F.2d 28, 30 (1st Cir. 1990).            ___ _____________    _____                      Affirmed.  Loc. R. 27.1.                      ________                                         -4-
