        [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]

            United States Court of Appeals
                      For the First Circuit
                       ________________
No. 99-1249

                     UNITED STATES OF AMERICA,

                             Appellee,

                                v.

                           HANSEL NUÑEZ,

                       Defendant, Appellant.

                      ______________________

No. 99-1250
                     UNITED STATES OF AMERICA,

                             Appellee,

                                v.

                          EDDISON NUÑEZ,

                       Defendant, Appellant.
                     ________________________

           APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF PUERTO RICO

         [Hon. Salvador E. Casellas, U.S. District Judge]
                     ________________________

                              Before

                      Lynch, Circuit Judge,
                Coffin, Senior Circuit Judge, and
                Schwarzer,* Senior District Judge.


    *
     Of the Northern District of California, sitting by designation.
                    ____________________

     Howard R. Leader for appellants.

     Thomas F. Klumper, Assistant United States Attorney, with whom
     Guillermo Gil, United States Attorney, and Jorge E. Vega-Pacheco,
Assistant United States Attorney, were on the brief, for appellee.

                         _______________
                           JUNE 6, 2001
                         _______________
          SCHWARZER, Senior District Judge. Appellants Eddison and

Hansel NuÁez appeal their conviction on two counts of conspiracy to

distribute and distribution of cocaine in violation of 21 U.S.C.

§ 841(a)(1) and 21 U.S.C. § 846. They contend that the district court

erred in denying: (1) their motion for a new trial based on what they

claim is newly discovered evidence of trial counsel’s ineffective

assistance; (2) their motion for a downward departure; and (3) their

request for a sentence adjustment for acceptance of responsibility.



I.   MOTION FOR NEW TRIAL

          Eddison and Hansel, brothers who were born in the Dominican

Republic but are lawful permanent residents of this country, were

originally represented by attorneys Carlos Pérez-Olivo and Guillermo

Batille-Olivo, respectively. On January 31, 1997, following a jury

trial, they were found guilty on both counts. On August 26, 1998, more

than a year and a half after the verdict but before sentencing,

appellants, represented by new counsel, moved for a new trial pursuant

to Federal Rule of Criminal Procedure 33. Their motion was based on

ineffective assistance of counsel claims. In supporting declarations,

they alleged that they had not discovered until after trial that their

counsel had failed to inform them of the government’s interest in a

plea bargain and that counsel had instead actively discouraged, if not

prevented, them from negotiating a plea or cooperation agreement with


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the government. They alleged that this was due in part to attorney

Pérez-Olivo’s conflicting loyalty to another client who might have been

prejudiced by their cooperation with the government. They also alleged

that counsel misled them by minimizing and misstating the government’s

evidence against them and by failing to advise them about the

consequences of going to trial and to provide them with guidance

regarding sentencing procedures. The district court denied the motion

without prejudice on January 5, 1999.

          Rule 33 requires that a motion for a new trial on grounds

other than newly discovered evidence be filed within seven days after

the verdict.   Fed. R. Crim. P. 33.    If based on newly discovered

evidence, the motion must be made within three years after the verdict.

Id.; see also United States v. Lema, 909 F.2d 561, 566 n.6 (1st Cir.

1990) (holding that a defendant whose new trial motion is based on the

alleged ineffectiveness of trial counsel "may bypass Rule 33's seven-

day time limit only if his claim that his counsel . . . [was

ineffective] was based on information unavailable to the defendant at

the time of trial").

          "A motion for new trial based on newly discovered

evidence will not be allowed unless the movant establishes that the

evidence was: (i) unknown or unavailable at the time of trial, (ii)

despite due diligence, (iii) material, and (iv) likely to result in an

acquittal upon retrial." United States v. Tibolt, 72 F.3d 965, 971


                                  4
(1st Cir. 1995). Under the fourth requirement, "the evidence must

create an actual probability that an acquittal would have resulted if

the evidence had been available." United States v. Sepulveda, 15 F.3d

1216, 1220 (1st Cir. 1993).

          The district court, assuming arguendo that the first two

requirements were met, concluded that appellants failed to meet the

remaining requirements because their claims of ineffective assistance

of counsel were immaterial and unlikely to result in an acquittal upon

retrial because they had no bearing on the issue of guilt.

Appellants’ claims therefore were not based on newly discovered

evidence for purposes of Rule 33 and were jurisdictionally barred. See

Lema, 909 F.2d at 565 ("[R]ule [33] is jurisdictional, and the district

court is without discretion to grant a motion for new trial that is not

timely filed.").

          We review the district court's denial of the motion for a new

trial for "manifest abuse of discretion."          United States v.

Montilla-Rivera, 115 F.3d 1060, 1064 (1st Cir. 1997). Appellants do

not address the grounds on which the district court denied their

motion, i.e., that their claims of ineffective assistance are

immaterial and unlikely to result in an acquittal. Instead they argue

that given the "breadth and sophistication of the government’s case

against them" and the heavy punishment they faced, their counsel were

ineffective in failing to negotiate a favorable bargain for them in


                                  5
exchange for cooperation. While appellants may have a viable claim for

post-conviction relief, see United States v. Rodriguez Rodriguez, 929

F.2d 747 (1st Cir. 1991)--an issue on which we express no opinion--they

have failed to show error in the district court’s denial of their

motion. Nor, as appellants had not yet been sentenced at the time of

their motion, do we find error in the court’s failing to treat the Rule

33 motion as one filed pursuant to 28 U.S.C. § 2255.



II.   DOWNWARD DEPARTURES UNDER § 5K2.0

            In their Rule 33 motion, appellants moved in the alternative

for a downward departure. They argue that the district court should

have exercised its discretion to depart under U NITED STATES SENTENCING

GUIDELINES MANUAL (U.S.S.G.) § 5K2.0 (1998) and 18 U.S.C. § 3553(b)

because of the misconduct of their counsel on which their new trial

motion was based. The district court considered the various grounds

presented by appellants and found they did not warrant a departure.

            A district court’s refusal to depart downward is not

appealable. See United States v. Tardiff, 969 F.2d 1283, 1290 (1st

Cir. 1992). Where, as here, the district court recognized that it had

discretion to depart but decided that the factors cited by appellants

did not warrant a departure, we are without jurisdiction to review its

decision.

III. ACCEPTANCE OF RESPONSIBILITY UNDER § 3E1.1


                                    6
          Finally, appellants contend, on the same grounds on which

their new trial motion was based, that the district court erred in

denying them a two-point adjustment for acceptance of responsibility

under U.S.S.G. § 3E1.1(a) (1998). Acknowledging that defendants who

put the government to its proof at trial are rarely awarded such an

adjustment, they argue that they were prevented from actively

demonstrating acceptance of responsibility by trial counsel’s

obstruction. They also contend that they made substantial efforts to

cooperate after obtaining new counsel post-trial.

          The adjustment for acceptance of responsibility is applicable

when "the defendant clearly demonstrates acceptance of responsibility

for his offense." U.S.S.G. § 3E1.1(a). Only in rare circumstances

will a defendant who elects to go to trial qualify for this adjustment.

See United States v. Baltas, 236 F.3d 27, 37 (1st Cir. 2001); see also

U.S.S.G. § 3E1.1(a), App. Note 2 (1998) (noting that "[i]n rare

situations a defendant may clearly demonstrate an acceptance of

responsibility for his criminal conduct even though he exercises his

constitutional right to trial"). The burden is on the defendant to

demonstrate that he or she should have received the reduction. See

United States v. Rosario-Peralta, 199 F.3d 552, 570 (1st Cir. 1999).

Here, the district court found no indication in the record of any "rare

circumstances" warranting the adjustment after appellants had put the

government to its burden of proof at trial.        See id.


                                  7
          We discern no clear error in the district court’s denial.

Baltas, 236 F.3d 37. Our conclusion is reinforced by the tenor of

appellants’ allocution at sentencing which, rather than reflecting

remorse, was devoted largely to an attack on their former attorneys.

          The judgment is affirmed.




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