
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                                                                     _________________________          No. 92-2461                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                            CARLOS DANIEL ROSA-HERNANDEZ,                                Defendant, Appellant.                                                                                     _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jose Antonio Fuste, U.S. District Judge]                                              ___________________                                                                                     _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                           Feinberg,* Senior Circuit Judge,                                      ____________________                              and Stahl, Circuit Judge.                                         _____________                                                                                     _________________________               Irma R. Valldejuli on brief for appellant.               __________________               Daniel  F.  Lopez-Romo,  United  States  Attorney,  Jose  A.               ______________________                              ________          Quiles-Espinosa, Senior  Litigation Counsel, and  Warren Vazquez,          _______________                                   ______________          Assistant United States Attorney, on brief for appellee.                                                                                     _________________________                                     May 11, 1993                                     ____________                                                                                     _________________________                                    ________________          *Of the Second Circuit, sitting by designation.                    Per Curiam.   This sentencing appeal has two  foci.  We                    Per Curiam.                    __________          consider each in turn.                    First, defendant-appellant Carlos Daniel Rosa-Hernandez          claims that the  district court erred in refusing to treat him as          a minor player in  the offense of conviction (a  drug-trafficking          crime).    See U.S.S.G.     3B1.2(b) (providing  for  a two-level                     ___          reduction in the  applicable offense level if the  defendant is a          minor participant).   Absent  mistake of law,  we review  a trial          judge's  role-in-the-offense  assessments only  for  clear error.          See United  States v. Garcia,  954 F.2d  12, 18 (1st  Cir. 1992);          ___ ______________    ______          United States v.  Akitoye, 923 F.2d 223, 227 (1st Cir. 1991).  We          _____________     _______          approach  this  task  mindful that,  "[a]s  with  other sentence-          decreasing adjustments, a  defendant must shoulder the  burden of          proving  his   entitlement  to  a   downward  role-in-the-offense          adjustment."  United  States v. Ocasio-Rivera, No.  92-2100, slip                        ______________    _____________          op. at 5 (1st Cir. April 1, 1993).                    Appellant did  not challenge the  factual underpinnings          of the presentence  investigation report.   From the contents  of          that report, the district court could permissibly have found that          appellant actively  participated in a  meeting on April  16, 1992          with  his cohort,  Miguel Rodriguez-Gonzalez, and  a confidential          informant (who was acting as  an internuncio for the  prospective          purchaser, a government  agent); that, when the  undercover agent          joined the  trio, appellant made  it clear  that he did  not want          anybody to  see his (appellant's)  face; that, after the  men had          shooed the purchaser  away, the informant emerged  from a further                                          2          meeting  with appellant  and  Rodriguez-Gonzalez,  met  with  the          agent,  and gave him  instructions, attributed to  appellant, for          delivery of  the purchase  money to a  specific site  (a shopping          center);  that,  thereafter,   appellant  transported  Rodriguez-          Gonzalez  and the  informant  to the  shopping  center, where  he          introduced the informant to Julio Gomez-Gonzalez; and that, later          the same afternoon,  the informant and   Gomez-Gonzalez attempted          to consummate the sale of  five kilograms of cocaine for $85,000.          At  the time of the  arrest, appellant was  still at the shopping          center, standing  by his truck, and  (or so the court  could have          found)  either overseeing  or  keeping  watch  to  safeguard  the          transaction.                    To  be sure,  appellant  was  not  a  direct,  hands-on          participant  at the  time of  sale.   Nevertheless, based  on the          facts recounted  above, the  lower court  supportably could  have          found  that appellant was  a full-fledged player  in the venture.          In  short, given,  especially, the  burden  of proof,  we do  not          believe that the court was legally required to accept appellant's          self-serving claim  that he  was a  minor participant.   Compare,                                                                   _______          e.g., Ocasio-Rivera, slip op. at 5-7; United States v. Ortiz, 966          ____  _____________                   _____________    _____          F.2d 707,  717 (1st  Cir. 1992),  cert. denied,  113 S.  Ct. 1005                                            _____ ______          (1993);  United States  v. DiIorio,  948  F.2d 1,  5-6 (1st  Cir.                   _____________     _______          1991); United States v. Rosado-Sierra,  938 F.2d 1, 1-2 (1st Cir.                 _____________    _____________          1991) (per  curiam); United States  v. Osorio, 929 F.2d  753, 764                               _____________     ______          (1st Cir. 1991);  United States v.  Cepeda, 907 F.2d 11,  12 (1st                            _____________     ______          Cir.  1990).   In  the  final analysis,  when  there are  several                                          3          plausible views of  the record, "the sentencing  court's adoption          of one such view cannot be  clearly erroneous."  United States v.                                                           _____________          St. Cyr,  977 F.2d 698, 706  (1st Cir. 1992).   So it is  in this          _______          case.                    Appellant's remaining  asseveration is  no more  hardy.          He  claims that,  as part  of  a plea  agreement, the  government          promised that it  would "not oppose [his] request  for a downward          adjustment for his role in the offense," Appellant's Brief at 11,          but  reneged on the promise.  The problems with this argument are          many     and  they  are insurmountable.    The  most  fundamental          difficulty is the ephemeral nature of the alleged agreement:  the          record does not contain  a whisper of a hint of  an intimation of          the supposed promise.   Moreover, appellant, who  was represented          at all times by able counsel, did not assert the existence of any          such promise in the written petition that accompanied his request          to  the district  court for  permission to  plead guilty,  in the          colloquy that  transpired during the change-of-plea  hearing, see                                                                        ___          Fed. R.  Crim.  P.  11,  or  in his  written  objections  to  the          presentence report.  In point of fact, on the first two  of these          occasions,  appellant explicitly  denied  that any  promises, not          previously disclosed, had been made to him.                      We  see  no  reason  to  look  behind  appellant's  own          statements.   We have repeatedly refused to imply plea agreements          or plea agreement  provisions out of thin air,  see, e.g., United                                                          ___  ____  ______          States v. Doyle, 981 F.2d 591, 594 & n.3 (1st Cir.  1992); United          ______    _____                                            ______          States v. Atwood,  963 F.2d 476, 479 (1st Cir. 1992); Garcia, 954          ______    ______                                      ______                                          4          F.2d  at 17;  United States v.  Hogan, 862 F.2d  386, 388-89 (1st                        _____________     _____          Cir. 1988), and  we adhere to  that view today.   If there  was a          promise   and we emphasize that we have found no sign of one   it          should have been made known to  the district court no later  than          the date of the Rule 11 hearing, not kept hidden amidst counsel's          or defendant's  unspoken reveries.   See Garcia,  954 F.2d  at 17                                               ___ ______          n.3; Hogan, 862 F.2d at 389 n.4.               _____                    The upshot is  that appellant has no case.   Because it          clearly appears  that Rosa-Hernandez  was lawfully  sentenced and          that his appeal  presents no substantial question, we  need go no          further.  See 1st Cir. Loc.R. 27.1.                    ___          Affirmed.          Affirmed.          ________                                          5                                          6
