
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2205                                    UNITED STATES,                                      Appellee,                                          v.                                LUIS A. COLON-RIVERA,                                Defendant, Appellant.                                      __________        No. 92-2206                                    UNITED STATES,                                      Appellee,                                          v.                             JOSE ALBERTO ACEVEDO-GUZMAN,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Hector M. Laffitte, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                        Torruella and Boudin, Circuit Judges.                                              ______________                                 ____________________            Gustavo Adolfo  Del Toro  on brief  for appellant  Luis A.  Colon-            ________________________        Rivera.            H.  Manuel Hernandez  on  brief  for appellant  Jose  A.  Acevedo-            ____________________        Guzman.            Charles E.  Fitzwilliam, United States  Attorney, Jose A.  Quiles-            _______________________                           ________________        Espinosa, Senior  Litigation Counsel, and Edwin  O. Vazquez, Assistant        ________                                  _________________        United States Attorney, on brief for appellee.                                 ____________________                                  September 9, 1993                                 ____________________                       Per  Curiam.    Appellants Jose  Alberto  Acevedo-                       ___________             Guzman ("Acevedo") and  Luis A. Colon-Rivera  ("Colon") each             pled  guilty to one count of committing bank robbery, see 18                                                                   ___             U.S.C.    2113(a), 2113(d), and  one count of using firearms             during  the commission  of  such crime.    See 18  U.S.C.                                                           ___             924(c)(1)(3).  Acevedo and Colon  challenge their respective             sentences on  grounds  that the  sentencing judge  committed             various  errors in  applying  the Sentencing  Guidelines  to             their cases.  We affirm.                                          I                                      Background                                      __________                       In  the presentence  report and  at the  change of             plea  hearing,  the United  States  proffered  the following             evidence of the appellants'  guilt.  On January 3,  1992, at             approximately 9:30  a.m., Colon  and Acevedo arrived  at the             doors of the Banco Santander de Puerto Rico,  Laguna Gardens             Branch.   Upon  encountering  a bank  security guard,  Colon             struck  the security guard on  the head with  a revolver and             dragged him inside the  bank.  Colon and Acevedo,  armed and             wearing masks, then entered  the bank, along with  two other             perpetrators,  and  announced a  bank  robbery.   Colon  and             Acevedo jumped  over the  tellers' counter and  proceeded to             take money from the bank tellers' drawers. During this time,             Acevedo instructed Colon as to which money be taken in order             to avoid  dye packs.  He  also struck one of  the tellers in             the  back with his weapon,  threatened to kill  all of them,                                         -2-             and  asked   the  tellers   where  the  bank   manager  was.             Thereafter, Acevedo  went to  the manager's office,  grabbed             the  manager by the hair,  and asked for  the combination to             the vault,  from where he took almost $30,000.                        After leaving the bank,  the four men attempted to             make their  get-away in  a Mitsubishi Mirage,  which Acevedo             had helped to  steal two  days earlier.   Their attempt  was             quickly  stymied when a  dye pack  exploded inside  the car,             forcing them to abandon it.  They then carjacked a Chevrolet             Cavalier station  wagon from a passing  motorist, and headed             towards the San Jose lagoon.   At the lagoon, they boarded a             small boat in an attempt to  escape.  Their escape route was             blocked by  a police  helicopter, whose pilot  observed five             people  on the vessel.   Shots were fired  at the helicopter             from the boat, and Colon, in particular, was observed firing             an AR-15 rifle at the helicopter.  The boat then turned back             to the lagoon.  Before surrendering himself,  Colon was seen             shooting towards the police officers on the ground.                        On  June  22-23, 1992,  the  appellants  each pled             guilty  to  both counts  of  the  indictment.   Acevedo  was             sentenced  to  a  term of  235  months  on  the first  (bank             robbery) count, and a  consecutive term of 60 months  on the             second (firearms)  count.  In  arriving at this  amount, the                                         -3-                                          3             sentencing  judge  determined  that  Acevedo  had  played  a             leadership role in an  offense involving five  participants;             he  therefore increased  the  offense level  by  four.   See                                                                      ___             U.S.S.G.    3B1.1(a).   He also found  that Acevedo  had not             accepted responsibility for his involvement  in the offense,             and thus  denied  a  two-level  decrease.   See  U.S.S.G.                                                            ___             3E1.1(a).    Colon was  sentenced to  a  term of  175 months             imprisonment on the  first count,  and 60 months  as to  the             second,  to  be  served   concurrently.    In  setting  this             sentence,  the judge  awarded a  seven-level increase  after             finding that  a revolver was discharged  during the robbery,             see  U.S.S.G.    2B3.1(b)(2)(A),  and a  two level  increase             ___             after finding that Colon  had recklessly created grave risks             to  others in the course  of fleeing from  a law enforcement             officer.  See U.S.S.G.   3C1.2.                       ___                                          II                                       Acevedo                                       _______                       Acevedo argues that the  sentencing judge erred by             enhancing his offense level  for his alleged leadership role             in the crime, and  by declining to reduce his  offense level             for his acceptance of responsibility.  We disagree.                       A. Leadership Role                          _______________                                         -4-                                          4                       The sentencing  judge found  that  Acevedo was  an             "organizer or  leader" of a criminal  activity that involved             five  or   more  participants,  and  imposed   a  four-level             enhancement,   as   authorized  by   U.S.S.G.      3B1.1(a).             Appellant attacks  this enhancement  on grounds that  (1) he             had  a  co-equal  role in  the  offense,  and  (2) there  is             insufficient evidence to establish that the offense involved             five or more participants.                         We find that the district court had ample evidence             to support its conclusion.  See United States v. Wright, 873                                         ___ _____________    ______             F.2d 437, 443 (1st  Cir. 1989) (district court's application             of the  "role in the  offense" guidelines to  the particular             facts  of  each  case  should,  absent  mistake  of  law, be             reviewed only  for clear  error).  Acevedo's  leadership was             demonstrated  by  his prominent  role  in orchestrating  the             heist.    See U.S.S.G.     3B1.1,  Application  Note  3  (in                       ___             determining  whether   a  defendant  had  a   leadership  or             organizational role  within the  meaning of  this provision,             the  court   considers  such  factors  as   "the  nature  of             participation  in the  commission of  the offense").   After             jumping over the tellers' counter with Colon, it was Acevedo             who gave orders to Colon as to which money to  take in order             to avoid the  dye pack.   Acevedo engaged  in other  conduct                                         -5-                                          5             critical to the enterprise that apparently  no one else did,             such  as procuring the get-away car, threatening to kill the             tellers, asking them  for the bank manager,  asking the bank             manager for the vault combination, and taking the money  out             of the safe.   See United States  v. Fuller, 897 F.2d  1217,                            ___ _____________     ______             1220  (1st  Cir.  1990)  (   3B1.1  enhancement  applies  if             defendant  "exercised some  degree  of control  over  others             involved  in the commission of  the offense or  he must have             been responsible  for organizing  others for the  purpose of             carrying out the crime").                          We also reject Acevedo's contention that there was             insufficient evidence for  the sentencing judge to  conclude             that there were  five or more  participants involved in  the             offense.  According to the  record, the helicopter pilot who             intercepted the fleeing boat  asserted that he observed five             individuals  aboard   it.     Such  evidence  was   properly             considered  by the sentencing  judge.  See  U.S.S.G.   6A1.3                                                    ___             (sentencing  court may  consider  all pertinent  information             which has "sufficient indicia  of reliability to support its             probable accuracy").  Furthermore, the judge's determination             as to its reliability is entitled to considerable deference.             See  United States v. Bradley,  917 F.2d 601,  605 (1st Cir.             ___  _____________    _______             1990).                                           -6-                                          6                                         -7-                                          7                       B.  Acceptance of Responsibility                           ____________________________                       We  also  find that  the  district  court did  not             clearly  err  in  finding  that  Acevedo  had  not  accepted             responsibility for his criminal  conduct, and in refusing to             reduce  his  offense level  by two.    See United  States v.                                                    ___ ______________             Reyes, 927 F.2d 48, 50 (1st Cir. 1991) (denial of a downward             _____             adjustment  for  acceptance of  responsibility  reviewed for             clear error).   The  Sentencing  Guidelines authorize  trial             courts to  grant a two-level reduction to a defendant's base             offense level only "[i]f  the defendant clearly demonstrates             a   recognition  and  affirmative   acceptance  of  personal             responsibility for his  criminal conduct."    See U.S.S.G.                                                             ___             3E1.1(a).  Although  Acevedo did enter  a guilty plea,  this             act alone does  not entitle him to an adjustment as a matter             of  right.  See U.S.S.G.    3E1.1(c).   Rather, a sentencing                         ___             court  considers  a  variety   of  factors  in  making  this             determination.   See  Reyes, 927  F.2d at  51.   A defendant                              ___  _____             presents   significant  evidence   of   his  acceptance   of             responsibility by -- in addition to entering a guilty plea -             -   truthfully  admitting,  or   not  falsely  denying,  his             involvement  in  the  offense  and  related  conduct.    See                                                                      ___             U.S.S.G.    3E1.1,  Application Note 3.   At  his sentencing             hearing, however,  Acevedo denied having played a leadership                                         -8-                                          8             role  in the  offense,  giving instructions  to his  cohorts             inside the  bank, threatening the bank  teller, and grabbing             the manager  by the  hair.   See Reyes, 927  F.2d at  51 (no                                          ___ _____             clear   error   to   deny  reduction   for   acceptance   of             responsibility  for a  defendant who,  after being  found to             have had a leadership role in offense, attempted to minimize             such role); United States  v. Shipley, 963 F.2d 56,  59 (5th                         _____________     _______             Cir.)  (same),   cert.  denied,  113  S.   Ct.  348  (1992).                              _____  _______             Moreover, the record here, as in Reyes, "is most notable for                                              _____             the fact that a genuine feeling  of remorse is conspicuously             lacking."  Reyes, 927 F.2d at 51.  When asked why he pleaded                        _____             guilty, for example, Acevedo answered "because I had nothing             in  my favor so to speak," and  when asked how he felt about             participating in the  robbery, he said that  "I am repentant             because I'm not able to see my family."                                           II                                        Colon                                        _____                       Colon contends that the  sentencing judge erred by             raising  his  offense level  to reflect  the discharge  of a             firearm  and  his  reckless  endangerment  of  others.    We             disagree.      A.  Firing Weapon                                _____________                       The  district court enhanced Colon's offense level             by  seven levels,  pursuant  to U.S.S.G.    2B3.1(b),  which                                         -9-                                          9             discusses "Specific Offense Characteristics," and authorizes             an  increase   of  such   magnitude  "[i]f  a   firearm  was             discharged." U.S.S.G.   2B3.1(b)(2).                       Colon  challenges this  enhancement on  the ground             that "[t]here is  no evidence whatsoever that  a firearm was             discharged during the robbery."   But the presentence report             specifically states  that Colon "was  observed shooting  the             helicopter with  an  AR-15 rifle,"  and that  "he also  shot             toward the police officers  before surrendering."  Colon may             mean to argue that   2B3.1(b)(2)(A) authorizes a seven-level             increase  only if a firearm was discharged during the actual             robbery,  i.e., while he and  his cohorts were  in the bank;                       ____             since  he fired his weapon  after they had  already left the             bank, such an  increase is  not warranted.   See U.S.S.G.                                                             ___             2B3.1,  Background ("Possession  or use  of a  weapon .  . .             sometimes occur[s] during a robbery.  The guideline provides                                ________________             for  a  range of  enhancements  where  th[is] factor[]  [is]             present.") (emphasis added).                       If  this  is Colon's  intended  argument,  then it             fails.   The  Sentencing Guidelines  expressly state  that a             defendant's conduct in  escaping detection or responsibility             for an  offense is to be considered  in determining specific             offense characteristics,  and  hence the  Guideline  offense                                         -10-                                          10             level.    See U.S.S.G.     1B1.3(a)(1) ("[U]nless  otherwise                       ___             specified,  . .  . specific  offence  characteristics .  . .             shall  be determined  on the  basis of  . .  . all  acts and             omissions committed or aided and abetted by the defendant  .             . . that occurred . . . in the course of attempting to avoid             detection  or responsibility  for  that offense  . .  . .").             Indeed, two sister circuits  have specifically stated that a             bank robber's conduct,  and the consequences  thereof, while             fleeing the  bank are considered for  sentencing purposes as             part of the  offense.   See United States  v. Muhammad,  948                                     ___ _____________     ________             F.2d 1449, 1456  (6th Cir. 1991) (police officer  injured by             bank robber after he had fled the bank was a "victim" of the             robbery   within  the  meaning  of  U.S.S.G.    2B3.1(b)(3),             thereby  warranting an  increase  in offense  level),  cert.                                                                    _____             denied,  112 S. Ct. 1239 (1992); United States v. Bates, 896             ______                           _____________    _____             F.2d 912, 914-15 (5th Cir.) (rejecting as meritless argument             that defendant's  conduct during flight from  bank he robbed             was not part of  offense while allowing upward departure  on             ground   that   post-robbery   conduct    was   particularly             egregious), cert. denied, 496 U.S. 929, 942 (1990).                         _____ ______                       B.  Reckless Endangerment during Flight                           ___________________________________                       Colon  also  challenges  the   sentencing  judge's             decision  to   increase  his   offense  level  by   two  for                                         -11-                                          11             "recklessly  creat[ing]  a  substantial  risk  of  death  or             serious bodily  injury to  another person in  the course  of             fleeing from a law enforcement  officer."  U.S.S.G.   3C1.2.             Although Colon  does not  state  the precise  ground of  his             challenge, he  may have intended  to contend that  the judge             enhanced  his sentence  twice  for firing  a  weapon at  the             police, the first time  being the seven-level increase under                2B3.1(b)(2)(A).    A  double  enhancement  for  the  same             conduct, however, would disregard the commentary to U.S.S.G.               3C1.2, which  states that  judges should  "not apply  this             enhancement where the offense guideline in Chapter Two . . .             results  in an  equivalent  or greater  increase in  offense             level solely on the basis of the same conduct."   U.S.S.G.               3C1.2, Application Note 1.                         If  this  is  Colon's  argument,  then  it  fails.             Continuously firing a rifle, and carrying on a gunfight with             the police  in  public, outside  the bank,  carries with  it             significantly greater risks to others than a simple shooting             episode.  Moreover, during  his flight from the  bank, Colon             recklessly created grave risks  to other individuals in ways             other than simply firing  at the police: he and  his cohorts             also crashed  their get-away  car into another  vehicle, and             carjacked another vehicle by  holding its owner at gunpoint.                                         -12-                                          12             These  are more  than sufficient  to warrant  an enhancement             under   3C1.2, without double counting.                       For the  foregoing reasons, the  sentences imposed             are                       Affirmed.                       ________                                         -13-                                          13
