
USCA1 Opinion

	




          April 12, 1996        [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 95-2130                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                               HUMBERTO PRADA CORDERO,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [HON. HECTOR M. LAFFITTE, U.S. DISTRICT JUDGE]                                              ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Stahl, Circuit Judge.                                         _____________                              _________________________               Ramon Garcia on brief for appellant.               ____________               Guillermo Gil,  United  States  Attorney,  Jos   A.  Quiles-               _____________                              _________________          Espinosa,   Senior  Litigation   Counsel,  and   Warren  V zquez,          ________                                         _______________          Assistant United States Attorney, on brief for the United States.                              _________________________                              _________________________                    Per  Curiam.   A petit  jury found  defendant-appellant                    Per  Curiam.                    ___________          Humberto Prada  Cordero (Prada)  guilty, in absentia,1  of aiding                                                   __ ________          and  abetting the  possession,  with intent  to deliver,  of just          under  one kilogram  of cocaine.   The  district court  imposed a          lengthy  incarcerative sentence.   Prada  appeals.   We summarily          affirm.                                          I                                          I                    A criminal defendant who  essays a claim of evidentiary          insufficiency must scramble across rocky terrain.  As long as the          proof  presented, taken in the light most amiable to the verdict,          suffices  to allow a rational jury to find each essential element          of the offense of conviction beyond a reasonable doubt, the claim          fails.  See United States v. Olbres, 61 F.3d 967, 970 (1st Cir.),                  ___ _____________    ______          cert.  denied, 116 S.Ct. 522 (1995); United States v. Gifford, 17          _____  ______                        _____________    _______          F.3d 462, 467 (1st Cir. 1994).   In other words, if the aggregate          evidence, examined in the required light, justifies a judgment of          conviction, "it need not rule out other hypotheses more congenial          to a finding of innocence."  Gifford, 17 F.3d at 467.                                       _______                    In applying  these criteria, all  the evidence,  direct          and  circumstantial,  must   be  viewed  from   the  government's          perspective, and the viewer must credit all reasonable inferences          consistent with the  verdict.   See United States  v. Taylor,  54                                          ___ _____________     ______          F.3d 967, 974 (1st Cir. 1995); United States v. O'Brien, 14  F.3d                                         _____________    _______          703, 706 (1st Cir.  1994).  Phrased another way, "the trial judge                                        ____________________               1The appellant  fled midway through  his trial.   The  trial          continued in his absence.   On appeal, he does  not challenge the          district court's decision to proceed.                                          3          must resolve all evidentiary  conflicts and credibility questions          in  the prosecution's  favor; and,  moreover, as  among competing          inferences,  two or more of  which are plausible,  the judge must          choose  the inference that best  fits the prosecution's theory of          guilt."  Olbres, 61 F.3d at 970.                   ______                    The appellant's insufficiency  claim cannot pass muster          under these straightforward rules.   An overview of the  crime is          set forth in United States v. Rullan-Rivera, 60 F.3d 16 (1st Cir.                       _____________    _____________          1995),  in which  we affirmed  the conviction  of one  of Prada's          codefendants.    The record  on  appeal makes  pellucid  that the          appellant, at a bare minimum, recruited  Erasto Miranda-Rodriguez          (Miranda) as a  courier, and determined the amount  to be paid to          this  somewhat reluctant dragon for  his services in the smuggle.          All  incoming calls from Miranda  were routed to  Prada and, when          the day arrived on which the cocaine was to be transported to the          mainland, Prada personally delivered it to Miranda, urged him on,          and accompanied him to  the airport.  This, and  other, evidence,          if credited by the jury    as it plainly was   left no reasonable          doubt but that the appellant associated himself with the  overall          venture, participated in it  as an enterprise he wished  to bring          to  fruition, and endeavored by  his actions to  make it succeed.          No  more is  exigible  to sustain  a  conviction for  aiding  and          abetting.  See Nye &  Nissen v. United States, 336 U.S.  613, 619                     ___ _____________    _____________          (1949); see also 18 U.S.C.   2.                  ___ ____                                          II                                          II                    The  appellant  also  challenges  the  district court's                                          4          calculation  of  the  guideline  sentencing range  (GSR)  in  two          respects.  Both sorties are unavailing.                    1.   The appellant claims  that he was  not a principal          participant  in the  offense of  conviction, and  that  the lower          court erred in designating him as a "manager" or "supervisor" and          increasing   his  offense   level  accordingly.     See  U.S.S.G.                                                              ___           3B1.1(c).  We discern no error.                    Absent  a mistake of  law   and  we see none  here   we          review  a   district  court's   factual  findings   concerning  a          defendant's  role in  the offense  for clear  error.   See United                                                                 ___ ______          States  v. Akitoye,  923 F.2d  221, 227  (1st Cir.  1991); United          ______     _______                                         ______          States v. Ocasio, 914  F.2d 330, 333  (1st Cir. 1990).   Although          ______    ______          this  is  not an  insurmountable  barrier, it  is  nevertheless a          daunting one.  Debates over a defendant's role in the offense are          fact-based  and, therefore, "will almost always be won or lost in          the district court."   United States v. Graciani, 61  F.3d 70, 75                                 _____________    ________          (1st  Cir.  1995).   There is  no  justification for  a different          result here.                    We  will not  belabor the obvious.   See,  e.g., United                                                         ___   ____  ______          States  v.  Ruiz-Garcia,  886  F.2d  474,  477  (1st  Cir.  1989)          ______      ___________          (warning, in a sentencing appeal, that an appellate  court should          not "wast[e]  overtaxed judicial resources razing  castles in the          air").    In determining  whether  the  government satisfied  its          burden of proving the appellant's liability for a two level role-          in-the-offense adjustment, the sentencing court was not obligated          to  accept   the  appellant's  self-interested   account  of  his                                          5          involvement as a mere  courier.  See United States  v. Paz-Uribe,                                           ___ _____________     _________          891 F.2d 396, 399  (1st Cir.), cert. denied, 495 U.S. 951 (1990).                                         _____ ______          The record  strongly suggests that,  in this case,  the appellant          was  Miranda's  immediate  supervisor:     he  persuaded  him  to          undertake the  journey, authorized his  compensation, brought him          the contraband, urged him  to go forward, accompanied him  to the          airport, and, presumably    based on the appellant's  own (nearly          identical) itinerary and tickets    planned personally to oversee          the contraband's  safe arrival.2  These  facts adequately support          the district court's  assessment of the  appellant's role in  the          offense.  See, e.g.,  Akitoye, 923 F.2d at 227; United  States v.                    ___  ____   _______                   ______________          Diaz-Villafane, 874 F.2d 43, 48-49 (1st Cir.), cert.  denied, 493          ______________                                 _____  ______          U.S. 862 (1989).                    2.  The appellant also  assails the district court  for          refusing  to  grant  a  downward  adjustment  for  acceptance  of          responsibility.  See U.S.S.G.   3E1.1.  This is merely  sound and                           ___          fury, signifying  little.   The appellant steadfastly  denied his          guilt,  fled in  mid-trial  when matters  did  not go  well,  and          continued  to minimize his involvement  in the affair  up to (and          including)  the time of sentencing.  Thus, the district court had          a  plausible basis  for  concluding that  the  appellant had  not          forthrightly accepted responsibility.                    We  need go  no further.    As we  wrote on  an earlier                                        ____________________               2The appellant and Miranda were both scheduled to take Delta          Flight No. 189 from  Carolina, Puerto Rico, to  Atlanta, Georgia.          Their  tickets  had been  purchased  simultaneously  at the  same          travel agency.                                          6          occasion, "[t]he guidelines do not require a sentencing judge  to          play  the ostrich,  burying his  head in  the sand,  struthiously          accepting every allocution at face value, and ignoring  the stark          reality of events."  United States v. Royer, 895 F.2d 28, 30 (1st                               _____________    _____          Cir. 1990).  The discount for acceptance of responsibility is not          automatic;  achieving  it   "necessitates  candor  and  authentic          remorse     not  merely  a  pat  recital  of  the  vocabulary  of          contrition."    Id.    The  district  court's  finding  that  the                          ___          appellant did not meet  this standard easily survives clear-error          review.                    Affirmed.  See 1st Cir. R.27.1.                    Affirmed.  See 1st Cir. R.27.1.                    ______________________________                                          7
