
USCA1 Opinion

	




          May 2, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-2114                                     UNITED STATES,                                      Appellee,                                          v.                                  CLIFFORD K. TAPIA,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                 [Hon. Francis J. Boyle, Senior U.S. District Judge]                                         __________________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                      Coffin and Bownes, Senior Circuit Judges.                                         _____________________                                 ____________________            Marie T. Roebuck and John F. Cicilline on brief for appellant.            ________________     _________________            Sheldon  Whitehouse, United  States Attorney,  Margaret  E. Curran            ___________________                            ___________________        and  Gerard B. Sullivan,  Assistant United States  Attorneys, on brief             __________________        for appellee.                                 ____________________                                 ____________________                      Per Curiam.    The sole issue raised by this appeal                      __________            is  whether the district  court erred, on  remand, in denying            defendant-appellant Clifford K. Tapia an additional one-level            reduction in  his offense level under  U.S.S.G.   3E1.1(b)(1)            for acceptance of responsibility.  We affirm.                                          I.                      On  September  28,  1993,   Tapia  pled  guilty  to            possession  of heroin with  intent to  distribute it,  see 18                                                                   ___            U.S.C.   841(a)(1); being a felon in possession of a firearm,            see 18 U.S.C.    922(g); and possession of a  firearm with an            ___            altered serial number, see  18 U.S.C.   922(k).   On November                                   ___            24, 1993, the district court sentenced Tapia to a prison term            of  forty-one months.   Tapia  appealed, contending  that the            district court, which granted him a two-level reduction under            U.S.S.G.   3E1.1(a)  for acceptance of responsibility,  erred            in  failing  to   consider  whether  he  is  entitled  to  an            additional one-level reduction for having  "timely provid[ed]            complete information  to the  government  concerning his  own            involvement in the  offense."   U.S.S.G.    3E1.1(b)(1).   On            June  9, 1994, we  vacated Tapia's sentence  and remanded the            case to the district court so that it could determine whether            Tapia  is eligible for the extra reduction.  United States v.                                                         _____________            Clifford K. Tapia, No. 93-2306, slip op. at 6  (1st Cir. June            _________________            9, 1994).                        Following a hearing  on remand, the district  court            denied Tapia's request for the additional one-level decrease.            In support of its  determination, the district court observed            that "there is really  nothing in the record to  suggest that            the  [d]efendant in  fact  gave complete  information to  the            [g]overnment, nothing at all."  The court also  observed that            the government, acting  pursuant to a plea agreement, took no            position  on the issue.   Under the  circumstances, the court            concluded that  it was "virtually impossible for [it] to find            that   the  [d]efendant   meets   the  requirements   of   [             3E1.1(b)(1)]."  This appeal followed.                                         II.                      Contrary  to Tapia's  suggestion, we  do not  think            that the district court ruled  against him simply because the            government took no position on his eligibility for  the extra            reduction.    The court's  questions  during  the hearing  on            remand indicate that it had serious doubts whether Tapia ever            provided  complete information  to  the government.   It  was            Tapia's burden  to prove  that he  had done  so.  See  United                                                              ___  ______            States  v.  Ocasio-Rivera, 991  F.2d  1,  4  (1st Cir.  1993)            ______      _____________            (observing that the defendant bears the burden of proving his            entitlement  to an acceptance-of-responsibility credit).  The            district   court  ultimately  denied   Tapia  the  additional            decrease because it found,  based on the record, that  he had            failed to carry this burden.                                           -3-                      We add that the district court's finding adverse to            Tapia is  not  clearly  erroneous.    See  United  States  v.                                                  ___  ______________            Morillo,  8  F.3d  864,  871 (1st  Cir.  1993)  (standard  of            _______            review).    Based  on  undisputed  facts  set  forth  in  the            Presentence Investigation Report, it appears that at the time            of his arrest, Tapia resorted to some half-truths and evasion            in order to  minimize his responsibility.  For example, Tapia            told  arresting officers  that he  was merely  holding heroin            found  in his apartment for dealers.  When the officers asked            about an additional one ounce of heroin, Tapia stated that it            had been  retrieved the day before  by his supplier.   A drug            ledger  found in  Tapia's apartment,  however,  reflected the            profits that could be derived  from the sale of one  ounce of            heroin.      Although  Tapia  was  very  forthcoming  to  the            arresting officers  in certain other respects,  we cannot say            on this record  that he ever provided complete information to            the government, much less that he did so in a timely fashion.                      Affirmed.  See Loc. R. 27.1.                      _________  ___                                         -4-
