                 Not for Publication in West's Federal Reporter

          United States Court of Appeals
                        For the First Circuit


No. 10-1323

                              UNITED STATES,

                                 Appellee,

                                      v.

                        CASIMIRO NÚÑEZ-POLANCO,

                         Defendant, Appellant.


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

              [Hon. José A. Fusté, U.S. District Judge]


                                   Before

                    Howard, Selya, and Thompson,
                           Circuit Judges.


     Luis A. Guzmán Dupont on brief for appellant.
     Rosa Emilia Rodriguez-Velez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Divison, and Luke Cass, Assistant United States Attorney, on brief
for appellee.


                               June 28, 2011
            Per Curiam. Casimiro Núñez Polanco ("Núñez") appeals his

conviction for aggravated identity theft, claiming insufficient

evidence.     He also seeks to set aside his 24-month sentence,

claiming he is entitled to a reduced offense level and a downward

departure. We find no merit in his arguments and summarily affirm.

            A grand jury returned a three-count indictment against

Núñez based on his sale of official identification documents.

Núñez pled guilty to two counts but took the third — aggravated

identity theft in violation of 18 U.S.C. § 1028A(a)(1) — to trial.

A jury found him guilty.    At sentencing, he sought a reduction in

offense level for acceptance of responsibility because he had

admitted two of the three counts.      See U.S.S.G. § 3E1.1.   He also

sought a downward departure for extraordinary family circumstances.

See United States v. Roselli, 366 F.3d 58, 68 (1st Cir. 2004);

U.S.S.G. § 5H1.6.    The district court rejected both requests and

imposed a sentence of 15 months for the admitted counts and a

consecutive term of 24 months for aggravated identity theft.

            On appeal, Núñez first claims there is insufficient

evidence to uphold his conviction.      Specifically, "§ 1028A(a)(1)

requires the Government to show that the defendant knew that the

means of identification at issue belonged to another person."

Flores-Figueroa v. United States, 129 S. Ct. 1886, 1894 (2009).

Núñez says that because he never directly told undercover officers

he knew the documents belonged to real people, the government did


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not   present     sufficient       evidence    to     prove    knowledge       under    §

1028A(a)(1).

            We    review     the    sufficiency       of   the      evidence    for    a

conviction   de     novo,    viewing    the    evidence       "in   the   light   most

flattering to the jury's guilty verdict [and] assess[ing] whether

a reasonable factfinder could have concluded that the defendant was

guilty beyond a reasonable doubt."               United States v. Rodríguez-

Lozada, 558 F.3d 29, 39 (1st Cir. 2009) (internal quotation marks

omitted).    Our role is not "to weigh the evidence; [it] is merely

to ensure that some evidence exists to support sufficiently the

jury's determination."         Id. (internal quotation marks omitted).

            Although Núñez never explicitly declared that he knew the

documents belonged to real people, the jury could reasonably have

inferred knowledge from circumstantial evidence.                    United States v.

Cardales-Luna, 632 F.3d 731, 732 (1st Cir. 2011).                     Specifically,

Núñez made recorded statements to undercover officers from which

his knowledge could be inferred.              First, he told an officer that

there would be no problem obtaining credit cards or benefits with

the identification documents, suggesting that they reflected actual

identities that would stand up to credit checks and government

scrutiny.        Second,    when    referring    to    a   birth     certificate       he

provided to an officer, he stated, "I'm telling you that that's a

good one.    This is my business.             I know. . . . I'm not going to

bring you something bad.           This is what I do for a living."             Third,


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he told an officer that users of the identification documents

should memorize the data on the documents to "become that person"

in   order    to   live   as   a   United    States   citizen.     Given   these

statements, we find that the jury reasonably inferred the requisite

knowledge needed to convict under § 1028A(a)(1).1

              Next, we find that the district court did not err by

denying      Núñez    a   reduced    offense     level   for     acceptance   of

responsibility.       "We review a sentencing court's determination of

whether a defendant accepted responsibility for clear error," and

give   that    determination       "great    respect."     United    States   v.

Garrasteguy, 559 F.3d 34, 38 (1st Cir. 2009); United States v.

Royer, 895 F.2d 28, 29 (1st Cir. 1990).

              Proceeding to trial creates a rebuttable presumption that

the defendant did not accept responsibility and is not entitled to

a reduction.       Garrasteguy, 559 F.3d at 38-39.       Núñez fails to offer

any sufficient basis to rebut this presumption.                  Moreover, the

district court actually held that Núñez "knew from day one that he

was doing something that involved real people" but took the issue

to trial anyway; "[t]herefore, he's not accepted responsibility."

Although Núñez pled guilty to two other counts, the district court

did not clearly err in finding no acceptance of responsibility for

aggravated identity theft.


1
  Núñez's pointing to evidence that could have supported a finding
of no knowledge is irrelevant. The question is whether there is an
evidentiary basis for the jury's finding, and there is.

                                       -4-
            Finally, there is no merit to Núñez's argument that the

district    court   erred   by   denying   a   downward    departure   for

exceptional family circumstances.          We review this denial for

reasonableness, equivalent to an abuse of discretion standard.

United States v. Anonymous Defendant, 629 F.3d 68, 73-74 (1st Cir.

2010).     Downward departures for exceptional family circumstances

are rare; they are only appropriate if the defendant provides

"irreplacable or otherwise extraordinary" care.           United States v.

Roselli, 366 F.3d 58, 68 (1st Cir. 2004) (internal quotation marks

omitted).    Núñez's circumstances — specifically the needs of his

young, disabled son — are unfortunate but not extraordinary, and

his son remains in the care of his wife.       Therefore, the court was

within its discretion to deny the downward departure.2

            For these reasons, we summarily affirm Núñez's conviction

and sentence.    See 1st Cir. R. 27.0(c).

            So ordered.




2
  The government argues that we cannot review the discretionary
denial of a downward departure, but our recent decision in United
States v. Anonymous Defendant, 629 F.3d 68 (1st Cir. 2010) provides
otherwise. See also United States v. Battle, 637 F.3d 44, 52 (1st
Cir. 2011) ("A district court's discretionary decision not to
depart from the Guidelines is reviewed for reasonableness.").

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