
USCA1 Opinion

	




          February 14, 1994     [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 93-1923                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                            TIRSO BOLIVAR GONZALEZ AVALO,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                              _________________________                                        Before                              Torruella, Circuit Judge,                                         _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Selya, Circuit Judge.                                         _____________                              _________________________               Christopher W. Dilworth on brief for appellant.               _______________________               Jay P.  McCloskey, United  States Attorney,  and Michael  M.               _________________                                ___________          DuBose, Assistant United States Attorney, on brief for the United          ______          States.                              _________________________                              _________________________                    Per Curiam.   This  criminal appeal  arises out  of the                    Per Curiam.                    __________          conviction of  defendant-appellant, Tirso Bolivar  Gonzalez Avalo          (Gonzalez),  on two counts of  conspiracy to possess a controlled          substance, cocaine, with intent to  distribute it.  See 21 U.S.C.                                                              ___             841(a)(1), 841(b)(1)(C), 846.   After a trial in which  a jury          found appellant  guilty, the  district court  imposed a  97-month          incarcerative  sentence.   Appellant contests the  conviction and          also  challenges aspects  of  the  computations  leading  to  his          sentence.  We affirm.                                          I                                          I                    Appellant assails his  conviction solely on the  ground          of  alleged  evidentiary  insufficiency.    Following   a  guilty          verdict,  a reviewing court  must scrutinize the  record, drawing          all reasonable inferences in  favor of the verdict, to  ascertain          if a  rational jury could  have found that the  government proved          each element of the crime beyond a  reasonable doubt.  See United                                                                 ___ ______          States v.  Echeverri, 982 F.2d  675, 677 (1st Cir.  1993); United          ______     _________                                       ______          States v. Ortiz, 966 F.2d 707, 711 (1st Cir. 1992), cert. denied,          ______    _____                                     _____ ______          113 S. Ct. 1005 (1993).  The government can satisfy its burden of          proof  by  either   direct  or  circumstantial  evidence.     See                                                                        ___          Echeverri, 982 F.2d at 679; United States v. Rivera-Santiago, 872          _________                   _____________    _______________          F.2d 1073,  1079 (1st Cir.),  cert. denied, 492 U.S.  910 (1989).                                        _____ ______          To sustain a conviction, a reviewing court need not conclude that          only  a  guilty verdict  could  appropriately be  reached;  it is          enough that  the jury's  determination draws its  essence from  a          plausible reading of the record.  See Echeverri, 982 F.2d at 677;                                            ___ _________                                          3          Ortiz, 966 F.2d at 711.          _____                    Using these guideposts, the quantum of evidence adduced          here  is  more   than  adequate.    If  the   jury  believed  the          government's  witnesses,  Gonzalez was  guilty, pure  and simple.          Appellant virtually  concedes this point, but argues that the key          witnesses  against him had  poor memories, character  flaws, drug          addictions,  and  selfish  reasons  for  finger-pointing.    This          argument  has some basis  in the record,  but it  was fully aired          during cross-examination and in defense counsel's summation.  The          jury obviously believed the evidence was reliable.  That ends the          matter:   credibility  calls  are  within  the  jury's  exclusive          province, see  United Sates v. David, 940 F.2d 722, 730 (1st Cir.                    ___  ____________    _____          1991), cert.  denied, 112 S.  Ct. 2301 (1992), and,  therefore, a                 _____  ______          claim  of  evidentiary  insufficiency  that  rests  upon  witness          credibility cannot succeed.  See, e.g., United States v. Serrano,                                       ___  ____  _____________    _______          870 F.2d 1, 5 (1st Cir. 1989).  So it is here.                                          II                                          II                    Appellant's  attack  on his  sentence  advances  on two          fronts.  Neither invasion succeeds.                    1.   Role in  the Offense.   Appellant claims  that the                    1.   Role in  the Offense.                         ____________________          district  court erred  in its  determination of  his role  in the          criminal activity.  See U.S.S.G.  3B1.1(c) (Nov. 1992) (providing                              ___          a two-level increase for  assuming managerial responsibilities in          certain  criminal endeavors).  Hiking a defendant's offense level          under  this provision  is  justified  if  the  court  supportably          determines  that the offense(s)  of conviction involved  at least                                          4          two participants, and  that the defendant exercised  control over          one of them.   See United States  v. Fuller, 897 F.2d  1217, 1220                         ___ _____________     ______          (1st Cir. 1990).  "The government must bear the burden of proving          that  an  upward  role-in-the-offense adjustment  is  warranted."          United Sates v. Morillo, 8 F.3d 864, 872 (1st Cir. 1993).          ____________    _______                    In  his brief,  appellant says  that  the increase  was          unjustified, not because of a  lack of evidence, but because "the          government's  witnesses were not credible."  Appellant's Brief at          10.   That suggestion  goes nowhere.   Just  as the  jury is  the          principal arbiter of  witness credibility at trial,  the judge is          the  principal arbiter of credibility at  sentencing.  See United                                                                 ___ ______          States  v. St.  Cyr, 977 F.2d  698, 706 (1st  Cir. 1992) (holding          ______     ________          that credibility determinations during the sentencing phase  "lie          within  the domain  of the  district court").   Consequently, the          claim of error cannot prosper.                    2.   Acceptance of Responsibility.   Finally, appellant                    2.   Acceptance of Responsibility.                         ____________________________          posits  that the  district court  erred in  failing to  lower his          offense level  for acceptance  of responsibility.   See  U.S.S.G.                                                              ___           3E1.1 (Nov. 1992).  We do not agree.                    A   defendant  must   carry   the  burden   of  proving          entitlement   to  reductions  in  the  offense  level,  including          downward  adjustments for  acceptance  of  responsibility.    See                                                                        ___          Morillo, 8 F.3d at 871;  United States v. Bradley, 917  F.2d 601,          _______                  _____________    _______          606 (1st  Cir. 1990).  Where,  as here, the sentencing  court has          ruled against a defendant on  such an issue, the defendant "faces          an uphill battle."   Morillo, 8 F.3d  at 871.  It  is, after all,                               _______                                          5          firmly settled  that "[w]hether a defendant 'clearly demonstrates          a   recognition   and   affirmative   acceptance   of    personal          responsibility'  is  a  fact-dominated issue,  and  the  district          court's  decision to withhold  a reduction  in the  offense level          will not  be overturned unless clearly erroneous."  United States                                                              _____________          v. Royer, 895 F.2d 28, 29 (1st Cir. 1990) (citation omitted).             _____                    We  have  read  the  record  with  care,  and  find  no          compelling evidence that appellant  accepted responsibility in  a          timely manner.  To the contrary he pled not guilty and maintained          his innocence  throughout the  trial.  To  be sure,  a sentencing          court can  still find a  timely acceptance  of responsibility  in          such circumstances, see U.S.S.G.  E1.1, comment. (n.2), but it is                              ___          hard to fault  the court for being  skeptical.1  There is  no way          that we,  from the vista of a  cold appellate record, can second-          guess the trial  judge (who saw and  heard the defendant).   See,                                                                       ___          e.g., United States v.  Cepeda, 907 F.2d 11, 11 (1st  Cir. 1990).          ____  _____________     ______          Absent clear error    and we see none  here   we must  uphold the          sentencing court's refusal  to reduce  appellant's offense  level          for acceptance of responsibility.                                        ____________________               1Appellant argues that he would have accepted responsibility          earlier, but  for his uncertainty about the  drug quantities that          would  be attributed  to him.   There are two  problems with this          asseveration.  First,  there is nothing in the  record to suggest          that this is  any more  than post-hoc  rationalization.   Second,                                       ____ ___          even if it were to be given some  credence, we have characterized          an  offer to  plead  guilty  "subject to"  an  agreement on  drug          quantity   as  "too  problematic"  to  serve  as  the  functional          equivalent of acceptance  of responsibility.  Morillo,  8 F.3d at                                                        _______          872.                                          6                    The defendant's  conviction and sentence  are summarily                    The defendant's  conviction and sentence  are summarily                    _______________________________________________________          affirmed.  See 1st Cir. R. 27.1.          affirmed.  See 1st Cir. R. 27.1.          ________   ____________________                                          7
