
USCA1 Opinion

	




          October 30, 1995      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1228                              UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                                    JOSE GONZALEZ,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Lynch, Circuit Judge,                                        _____________                     Aldrich and Campbell, Senior Circuit Judges.                                           _____________________                                 ____________________            Marcia G. Shein with  whom Law Office  of Miller and Shein was  on            _______________            _______________________________        brief for appellant.            Geoffrey E.  Hobart, Assistant United  States Attorney, with  whom            ___________________        Donald K. Stern, United States Attorney, was on brief for appellee.        _______________  ______________________                                 ____________________                                 ____________________                      Per  Curiam.     Appellant,  who  pled  guilty   to                      ___________            conspiracy  and to possession of cocaine with intent to sell,            appeals because of the sentencing  court's failure to allow a            three  point   reduction  in  his  base   offense  level  for            acceptance of responsibility.  U.S.S.G.   3E1.1.  We affirm.                      The appeal  is a classic  example of taking  off on            the  wrong foot.  Appellant's  brief flatly charges the court            with "totally disregarding the plea [agreement]."  "Appellant            specifically  bargained for, and  expected, . . .  the three-            point  reduction . . . when entering his plea."  This was not            so.  The agreement is to be read as a whole  for what it was.            It was  between the  parties.   Appellant fails  to recognize            that  though it  stated  he was  entitled  to a  three  point            reduction for acceptance of responsibility, the agreement was            that  the government  would so  recommend at  sentencing, and            expressly recited that it was not  binding on the court.   In            addition,  the  court  orally  repeated  this  admonition  to            appellant before accepting his plea.                      The Presentence Report originally  recommended that            appellant   be   recognized   as  accepting   responsibility.            Thereafter,  however,  a  supplementary  report  recited  new            information tending to  show appellant's previous  statements            about his role  to be  "an extreme minimization  of his  true            offense behavior."   The government acknowledged  that it was                                         -2-            nonetheless  bound  by  the  agreement, and  recommended  the            reduction.                      Appellant was  allowed to address  the court before            the   sentencing,   besides  presenting   his   case  through            counsel.1  The court ultimately ruled,                           I do not find on the totality of the                      record before the Court that  there's any                      genuine   acceptance   of  responsibility                      here.            The record  was short, but there was  adequate foundation for            the court's conclusion.  See United States v. Royer, 895 F.2d                                     ___ _____________    _____            28,  29, 30 (1st Cir.  1990).  Appellant  spoke frequently of            his children -- which the court said was irrelevant -- of the            taxes  he  had paid,  and the  information  he had  given the            government -- which the prosecutor felt had not been truthful            -- and, generally, how, though  guilty, he was not as bad  as            was  made out.   Acceptance  of responsibility  involves more            than repetition  of a formula.   Id. at 30; United  States v.                                             ___        ______________            Ocasio-Rivera, 991 F.2d 1, 4 (1st Cir. 1993).   The burden is            _____________            on the  defendant to prove  entitlement to a  reduction, id.,                                                                     ___            and we  see no clear error.   Id. at 5  ("[w]here a defendant                                          ___            resorts to evasions, distortions, or half-truths in an effort            to  minimize  his   culpability,"  the  court   may  withhold            acceptance-of-responsibility credit under   3E1.1).                      Affirmed.                      ________                                            ____________________            1.  The court took this  step because appellant had requested            a second change of counsel and the court refused.                                         -3-
