
USCA1 Opinion

	




          April 24, 1996                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1192                                    UNITED STATES,                                      Appellee,                                          v.                                   ROBERTO ROSALES,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Carmen Consuelo Cerezo, U.S. District Judge]                                                ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ____________________            Theodore L. Craft on brief for appellant.            _________________            Guillermo Gil,  United States  Attorney, Jose A.  Quiles-Espinosa,            _____________                            ________________________        Senior  Litigation Counsel,  and Miguel  A. Pereira,  Assistant United                                         __________________        States Attorney, on brief for appellee.                                 ____________________                                 ____________________                 Per  Curiam.  In United  States v. Rosales,  19 F.3d 763                 ___________      ______________    _______            (1st  Cir. 1994), this  court affirmed defendant's conviction            on  four counts of abusive sexual conduct, in violation of 18            U.S.C.   2244(a)(1), but remanded for resentencing because of            the district court's  failure to provide a  rationale for the            degree of upward departure undertaken.  On remand,  the lower            court again departed  upward under U.S.S.G.   5K2.0 and again            imposed a 120-month prison term.  Defendant  now advances two            principal challenges to his new sentence--insisting  that (1)            the imposition of a  two-level enhancement under    3C1.1 for            obstruction  of justice was unwarranted, and (2) the level of            upward  departure was  unreasonable.   As  neither contention            proves persuasive, we summarily affirm.                  Extended  discussion  is  unnecessary.     The     3C1.1            enhancement was grounded  on the district court's  conclusion            that  defendant committed perjury  during his trial testimony            by repeatedly denying any involvement in the specific offense            conduct charged.  See,  e.g., United States v. Dunnigan,  507                              ___   ____  _____________    ________            U.S. 87, 98  (1993) ("Upon  a proper  determination that  the            accused  has committed  perjury at  trial, an  enhancement of            sentence is required by the  Sentencing Guidelines.").  In so            concluding,  the court  applied  the correct  legal test  for            perjury:  "whether  the  defendant  intentionally  gave false            testimony concerning  a material  matter."  United  States v.                                                        ______________            Campbell, 61 F.3d  976, 984  (1st Cir. 1995).   Its  findings            ________                                         -2-            adequately   encompassed   all  of   the   necessary  factual            predicates.  See, e.g.,  United States v. Matiz, 14  F.3d 79,                         ___  ____   _____________    _____            84  (1st Cir.  1994)  (rejecting challenge  to findings  less            comprehensive than  those issued  here).  And  those findings            were  adequately supported  by the  record.   Indeed, as  the            district court observed, the  nature of defendant's denials--            pertaining  to specific  allegations  of  personal  conduct--            belied  any  suggestion  that  his inaccurate  testimony  was            attributable  to  "confusion,  mistake,  or  faulty  memory."            Dunnigan, 507 U.S. at 95.            ________                 In objecting to the upward departure, defendant does not            contend that either of  the aggravating circumstances  relied            on by  the district court was an improper basis upon which to            ground a departure.1   He does not assert that  either factor                               1            was factually  unsupported.  And  he does  not reiterate  his            earlier  argument   that   the  degree   of   departure   was            unexplained.  Instead, he insists  simply that the extent  of            the departure undertaken was unreasonable.  We disagree.                   The district  court departed upward by  eight levels and            imposed  a term of 120 months--a sentence representing a 110%            increase over  the applicable sentencing range  ceiling of 57                                            ____________________               1  The court rested  its decision to depart upward  on two               1            factors:  the  fact   that  four   additional  victims   were            identified beyond those involved in the counts of conviction,            and  the fact that most of defendant's victims were abused on            multiple occasions.    It  ended  up adding  four  levels  to            account  for each of these concerns, for a total departure of            eight levels.                                           -3-            months.    Such a  departure,  while  substantial, cannot  be            deemed anomalous;  we have upheld departures  of even greater            magnitude on various occasions.   See, e.g., United States v.                                              ___  ____  _____________            Rostoff, 53 F.3d 398, 411 (1st Cir. 1995) (reviewing cases in            _______            which upward departures representing  increases of from  165%            to  380%  over  the   respective  GSR  ceilings  were  deemed            reasonable).  And  the 120-month sentence  was well short  of            the  applicable  40-year  statutory  maximum.    Given  these            considerations, given the  "persuasive[ness]" of the district            court's explanation  for selecting the  degree of  departure,            United  States v. Quinones, 26 F.3d 213, 220 (1st Cir. 1994),            ______________    ________            and given  the "substantial leeway"  that is accorded  such a            determination, United States v. Pratt, 73 F.3d 450, 453  (1st                           _____________    _____            Cir. 1996), we  are unprepared  to say that  the court  acted            unreasonably.2                         2                 Affirmed.  See Loc. R. 27.1.                 ____________________________                                            ____________________               2   Defendant  has listed  some five  other issues  in his               2            "statement  of issues,"  but  has provided  no argument  with            respect thereto.  We therefore decline to address them.  See,                                                                     ___            e.g., McIntosh v. Antonio, 71 F.3d 29, 38 (1st Cir. 1995).              ____  ________    _______                                         -4-
