
USCA1 Opinion

	




          April 1, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 92-2100                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                RICHARD OCASIO-RIVERA,                                Defendant, Appellant.                                                                                     _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]                                               ___________________                                                                                     _________________________                                        Before                      Torruella, Selya and Cyr, Circuit Judges.                                                ______________                                                                                     _________________________               Jeffrey M. Williams, with  whom Javier A. Morales Ramos  and               ___________________             _______________________          Indiano, Williams & Weistein-Bacal were on brief, for appellant.          __________________________________               Jose  A.  Quiles Espinosa,  Senior Litigation  Counsel, with               _________________________          whom  Daniel F. Lopez-Romo, United States  Attorney, and Edwin O.                ____________________                               ________          Vazquez,  Assistant United  States Attorney,  were on  brief, for          _______          appellee.                                                                                     _________________________                                    April 1, 1993                                                                                     _________________________                    SELYA, Circuit Judge.  This is another in the seemingly                    SELYA, Circuit Judge.                           _____________          endless line of criminal appeals marching stolidly to the beat of          the   federal  sentencing   guidelines.     Finding   appellant's          lamentations to be  without merit, we affirm the sentence imposed          below.                                         I.                                           I.                                         __                                      Background                                      Background                                      __________                    In  February 1992, a federal grand jury in the District          of Puerto Rico returned a five-count indictment against a cluster          of  defendants.   Appellant  Richard Ocasio-Rivera  was named  in          three of the  five counts.   On May  5, 1992, Ocasio-Rivera  pled          guilty to  count 4   a  count charging that, "[f]rom  on or about          January 11, 1992  and continuing thereafter  up to and  including          January  24,   1992,"  he  and  his   codefendants  conspired  to          distribute four kilograms of cocaine to an undercover agent.  The          court  ordered the  preparation  of  a presentence  investigation          report (PSI Report).                    At a  sentencing hearing held  on August 21,  1992, the          district judge  determined the  guideline sentencing range  to be          97-121 months (offense level 30; criminal history category I) and          imposed  an  incarcerative  sentence slightly  below  the range's          midpoint.1  This appeal ensued.                                         II.                                         II.                                         ___                                      Discussion                                      Discussion                                      __________                                        ____________________               1The other charges against  appellant, contained in counts 1          and 5, were dismissed.                                          2                    Ocasio-Rivera's appeal hinges  on three assignments  of          error.  We discuss them seriatim.                                  ________                                          A.                                          A.                                          __                        The Alleged Sixth Amendment Violation                        The Alleged Sixth Amendment Violation                        _____________________________________                    Appellant contends that he had a right, under the Sixth          Amendment,2  to have  his  attorney present  during his  audience          with  the  probation officer;  that  he sought  to  exercise this          right;  that the  interview  nonetheless  proceeded in  counsel's          absence;  and that,  therefore,  appellant's  sentence should  be          vacated because it was based, in part, upon information  winnowed          from him  during the uncounselled  interview and included  in the          PSI  Report.   This contention  is reminiscent  of a  seldom used          ketchup bottle:  at first glance, it looks full    but, even when          tipped, slammed, and forcibly shaken, it is very difficult to get          anything out of it.                    The facts are these.  At  the change-of-plea hearing on          May 5,  1992, appellant and  his lawyer were  advised that  a PSI          Report  would be  compiled.   On May  22, the  probation officer,          Antonio Bruno, confirmed  in writing that  he was performing  the          required investigation.  Defense  counsel admits that he received          this billet-doux no later than May 26.                    On June 8,  Bruno interviewed appellant.  At that time,                                        ____________________               2The Sixth Amendment provides in pertinent part:                    In  all  criminal  prosecutions, the  accused                    shall  enjoy  the right  .  . .  to  have the                    Assistance of Counsel for his defence.          U.S. Const. amend. VI.                                          3          appellant  lodged no  objection to  proceeding in  his attorney's          absence.  It was not until June 10   two days after the interview          had  been completed     that Bruno  received  a letter  from  the          attorney  asking  for the  first time  to  be present  when Bruno                            ___ ___  _____ ____          questioned  his client.    At the  sentencing hearing,  appellant          neither alleged a Sixth  Amendment violation nor moved to  strike          the uncounselled statements.                    It is a  bedrock principle in this circuit  that issues          must be squarely  raised in the district court if  they are to be          preserved for appeal.   See,  e.g., United States  v. Slade,  980                                  ___   ____  _____________     _____          F.2d 27, 30 (1st Cir. 1992); United  States v. Figueroa, 818 F.2d                                       ______________    ________          1020, 1025 (1st Cir. 1987).  That principle  applies unreservedly          in  the criminal sentencing context.  See United States v. Ortiz,                                                ___ _____________    _____          966 F.2d 707, 717 (1st  Cir. 1992), cert. denied 113 S.  Ct. 1005                                              _____ ______          (1993); United States v.  Dietz, 950 F.2d 50, 55  (1st Cir. 1991)                  _____________     _____          (collecting cases); United States v. Pilgrim Mkt. Corp., 944 F.2d                              _____________    __________________          14, 21 (1st Cir. 1991); United States v. Argentine, 814 F.2d 783,                                  _____________    _________          790-91 (1st Cir. 1987).  There is, to be sure, a narrow exception          for  unusually   compelling  circumstances,  but  it   is  to  be          "exercised sparingly," mainly  in instances where  the previously          omitted ground will ensure appellant's success and thus prevent a          miscarriage of justice.  See Slade, 980 F.2d at 31; United States                                   ___ _____                  _____________          v. Krynicki, 689 F.2d 289, 291-92 (1st Cir. 1982).             ________                    That  ends  the  matter.   On  even  the  most generous          reading  of the  record, it  is pellucidly  clear that  the Sixth          Amendment  argument was  never called  to the  sentencing court's                                          4          attention.   Because  the issue  was not  distinctly raised  in a          timely  fashion in  the court  below, and  because the  attendant          circumstances  are  manifestly   insufficient  to  overcome  this          procedural  default,3 we conclude that  the issue is not properly          before us.  Consequently, the assignment of error fails.                                          B.                                          B.                                          __                                 Role in the Offense                                 Role in the Offense                                 ___________________                    The court below rejected appellant's plea that he was a          "minor"  or "minimal"  participant in  the conspiracy  and, thus,          deserving  of a reduction in  the offense level  under U.S.S.G.            3B1.2  (Nov.   1991).     As   with   other   sentence-decreasing          adjustments, a defendant must shoulder the burden of  proving his          entitlement  to a  downward role-in-the-offense adjustment.   See                                                                        ___          Ortiz,  966 F.2d at  717; United States v.  Ocasio, 914 F.2d 330,          _____                     _____________     ______                                        ____________________               3We pause to mention two of the several factors that counsel          against  relaxing  the  raise-or-waive  rule  in  this  instance.          First,  the interests of judicial economy would be poorly served;          this issue is  unlikely to arise again in  the District of Puerto          Rico  because  the  probation  department's policy  is  to  allow          defense  counsel to  attend  presentence  interviews upon  timely          request.  Second, although we leave  the question open, we do not          find appellant's argument "highly persuasive," Krynicki, 689 F.2d                                                         ________          at 292,  at least at first  blush.  Four circuits  have held that          there  is  no  constitutional  right  to  counsel  at  a  routine          presentence  interview in a non-capital case.   See United States                                                          ___ _____________          v. Tisdale, 952  F.2d 934, 940 (6th Cir. 1992);  United States v.             _______                                       _____________          Johnson, 935 F.2d 47, 50 (4th Cir.),  cert. denied, 112 S.Ct. 609          _______                               _____ ______          (1991); United States  v. Woods,  907 F.2d 1540,  1543 (5th  Cir.                  _____________     _____          1990), cert.  denied,  111 S.Ct.  792  (1991); United  States  v.                 _____  ______                           ______________          Jackson, 886  F.2d 838, 844-45 (7th  Cir. 1989).   No circuit has          _______          ruled  to the  contrary    although  the  Ninth Circuit,  without          reaching  the   constitutional   question,  has   exercised   its          supervisory powers to "direct that probation officers be required          to  permit defendants' counsel to accompany  their clients at the          presentence interview."   United States  v. Herrero-Figueroa, 918                                    _____________     ________________          F.2d 1430, 1433 (9th Cir. 1990).                                          5          332 (1st Cir. 1990).   Reviewing the  record in its entirety,  we          think the  sentencing court  was amply  justified in  refusing to          label  appellant a  minor  or minimal  participant.   We  explain          briefly.                      Based  on  the  facts  contained  in  PSI  Report,  the          sentencing court  could supportably  have found that,  on January          10,  1992,  appellant  and  a  codefendant,  Juan  Mercado  Lopez          (Mercado), together negotiated an anticipated multi-kilogram sale          of cocaine to  an undercover agent;  that the two  men agreed  to          sell three ounces as  a sample; that appellant remained  with the          prospective purchaser  while  Mercado fetched  the  sample;  that          appellant repeatedly assured the  "customer" about the quality of          the cocaine and the availability of the larger quantity for which          the trio had been  dickering; that the sample was  delivered; and          that, eleven days later,  appellant received the purchaser's call          that he was  ready to close  the deal.   The capture trap  sprang          shut as consummation neared.                    Although appellant  strives  to portray  himself  as  a          minnow  in  service to  a big  fish  (Mercado), his  portrayal is          unconvincing.  The facts set out above, in the ensemble,  paint a          picture  of appellant  as far  more than  a minnow.   The logical          inference   and the  one apparently adopted by the court  below            is that the two  men were roughly equal partners,  sharing risks,          responsibilities,  and rewards.    On this  basis,  we think  the          district court acted well  within its proper province  in finding          that  appellant's role was neither minor nor minimal.  See United                                                                 ___ ______                                          6          States  v. St. Cyr,  977 F.2d 698,  706 (1st Cir.  1992) (holding          ______     _______          that  "when  there are  two plausible  views  of the  record, the          sentencing court's  adoption of one  such view cannot  be clearly          erroneous"); United States v.  Ruiz, 905 F.2d 499, 508  (1st Cir.                       _____________     ____          1990) (similar).                    Appellant's  principal  rejoinder  is that,  since  the          January  10, 1992  "sample sale" was  the subject of  count 1 and          since count 1  was dismissed, see supra note 1,  the judge should                                        ___ _____          not have  taken the evidence into  account.  We disagree.   It is          well settled in the criminal law that evidence of prior uncharged          conduct  (or, as  here, evidence  of prior  conduct related  to a          defunct  count) is relevant and admissible  to complete the story          of a charged crime by illuminating the chain of events leading up          to the charged crime and the context in which the crime occurred.          See, e.g., United States v. Devin, 918 F.2d 280, 286, 287-88 (1st          ___  ____  _____________    _____          Cir. 1990); United States v. Reveron-Martinez,  836 F.2d 684, 688                      _____________    ________________          (1st  Cir. 1988); United States v.  Currier, 821 F.2d 52, 55 (1st                            _____________     _______          Cir. 1987).  So here.  The January 10 sale, involving, as it did,          a  sample  for  the  larger  transaction  that  the  parties were          contemplating, was  in the nature of a  dress rehearsal.  It was,          therefore, eminently reasonable for the judge to extrapolate from          the events  of  January  10 in  deducing  the  appellant's  place          within, and relationship to, the conspiracy charged in count 4.                                          C.                                          C.                                          __                             Acceptance of Responsibility                             Acceptance of Responsibility                             ____________________________                    U.S.S.G.   3E1.1 (Nov.  1991) allows a sentencing court                                          7          to bestow a  two-level downward adjustment  upon a defendant  who          accepts  responsibility.   The  ultimate  question under  section          3E1.1 is not whether the defendant has uttered  "a pat recital of          the  vocabulary of contrition,"  but whether he has accepted full          responsibility for  his  part in  the  offense of  conviction  by          demonstrating "candor  and authentic remorse."   United States v.                                                           _____________          Royer,  895 F.2d  28, 30  (1st Cir.  1990); accord,  e.g., United          _____                                       ______   ____  ______          States v. Uricoechea-Casallas, 946 F.2d 162, 167 (1st Cir. 1991);          ______    ___________________          United States v. Bradley, 917 F.2d 601, 606 (1st Cir. 1990).  The          _____________    _______          defendant  has  the  burden  of  proving  his  entitlement  to an          acceptance-of-responsibility credit,  see  Bradley, 917  F.2d  at                                                ___  _______          606,  and the  sentencing court's  determination to  withhold the          reduction will  be overturned  only if  it is clearly  erroneous.          See Royer, 895 F.2d at 29.          ___ _____                    We have placed a  gloss on the use of  section 3E1.1 in          multiple-count cases.  In United States v. Perez-Franco, 873 F.2d                                    _____________    ____________          455  (1st Cir.  1989),  we held  that,  in  order to  obtain  the          reduction, a  defendant   "must accept responsibility  solely for          the counts to which he  is pleading guilty."  Id. at 463.   Here,                                                        ___          appellant  unsuccessfully sought  an acceptance-of-responsibility          discount in  the court  below.  On  appeal, he contends  that the          district judge transgressed the Perez-Franco rule, denying relief                                          ____________          because he,  appellant, would  not accept responsibility  for the          nefarious conduct  underlying the  dismissed counts.   The record          belies the contention.                    As   indicated  previously,   see  supra   Part  II(B),                                                  ___  _____                                          8          appellant labored at sentencing to convince the court that he was          a mere tagalong  in a  conspiracy orchestrated by  Mercado.   The          judge debunked this account and found instead that  appellant, by          proclaiming  he  was  a tagalong  when  he  was  actually a  full          partner, had engaged in a campaign to minimize his involvement in                                                                         __          the offense of  conviction.  It was on that  basis that the lower          ___ _______ __  __________          court denied the downward adjustment.  We discern no error.                    Where a defendant resorts  to evasions, distortions, or          half-truths  in an  effort to  minimize his  culpability, whether          during a presentence interview or in his allocution, the district          court may  appropriately  decide to  withhold  an  acceptance-of-          responsibility credit under section 3E1.1.  See United  States v.                                                      ___ ______________          Reyes, 927 F.2d 48, 51 (1st Cir. 1991); Bradley, 917 F.2d at 606;          _____                                   _______          see  also United  States v.  Chalkias, 971  F.2d 1206,  1216 (6th          ___  ____ ______________     ________          Cir.), cert. denied, 113 S. Ct. 351 (1992).  This case is cast in                 _____ ______          that  mold.   The sentencing  court made  an explicit  finding of          conscious minimization   a  finding that was adequately supported          by the  record and not vulnerable to clear-error attack.  No more          was exigible.                                         III.                                         III.                                         ____                                      Conclusion                                      Conclusion                                      __________                    We need go no further.  The  ketchup bottle is dry (or,          at  least,  congealed)  and  the other  condiments  served  up by          appellant  lack zest.    Having tasted  the  full flavor  of  the          unseasoned appeal,  we  conclude that  appellant's  sentence  was          lawful.                                          9          Affirmed.          Affirmed.          ________                                          10
