
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1126                                    UNITED STATES,                                      Appellee,                                          v.                                  BENJAMIN R. ZANNI,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                        FOR THE DISTRICT OF RHODE ISLAND                       [Hon. Mary M. Lisi, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                Cyr, Boudin and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            Edward J. Romano and Joel D. Landry II on brief for appellant.            ________________     _________________            Sheldon Whitehouse,  United States  Attorney, and  Edwin J.  Gale,            __________________                                 ______________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                   August 18, 1995                                 ____________________                 Per  Curiam.    Defendant-appellant  Benjamin  R.  Zanni                 ___________            appeals his sentence on  two grounds.  First, he  argues that            the district court  erred in  failing to award  him a  three-            level credit  for acceptance of responsibility  pursuant to              3E1.1   of   the   United   States    Sentencing   Guidelines            ("U.S.S.G.").    Second,  he  contends  that  the  government            breached the plea agreement by recommending a sentence at the            high end of the guideline sentencing range.                I. Acceptance of Responsibility                   ____________________________                 Zanni argues on appeal that the district court's failure            to  award  him  the  three-level  credit  for  acceptance  of            responsibility was clear error.  He contends that his initial            statement   of  acceptance   of  responsibility   was  merely            incomplete and  that he immediately amended  it following the            government's  objection.   With  respect  to  his failure  to            resign  from  office,  Zanni   emphasizes  that  he  took  no            affirmative action to retain his seat after  his guilty plea,            merely completing  his responsibilities to  his constituents.            Therefore, "appellant  clearly and unequivocally ceased to be            a public official upon his decision to enter  a plea."  Zanni            argues that the  "crucial aspects" of    3E1.1 were satisfied            by his clear acceptance  of responsibility and his expedition            in notifying the government of his intention to plead guilty.                 "The  ultimate  question  under  section  3E1.1  is  not            whether  the  defendant has  uttered  'a pat  recital  of the                                         -2-            vocabulary of  contrition,' but whether he  has accepted full            responsibility for his  part in the offense of  conviction by            demonstrating 'candor and  authentic remorse.'" United States                                                            _____________            v.  Ocasio-Rivera, 991  F.2d 1,4  (1st Cir.  1993) (citations                _____________            omitted).    The   burden  is  on  the   defendant  to  prove            entitlement to  the credit for acceptance  of responsibility.            Id.   "The sentencing  court's determination to  withhold the            ___            reduction  will   be  overturned   only  if  it   is  clearly            erroneous." Id.                        ___                 "The   inquiry  into  acceptance  of  responsibility  is            necessarily factbound.   In  deciding whether a  defendant is            entitled  to a reduction on this score, a district court must            weigh   a  multitude   of  factors,   some  objective,   some            subjective.  Credibility and demeanor  play a crucial role in            determining whether a  person is genuinely contrite."  United                                                                   ______            States v. Royer,  895 F.2d 28,  30 (1st Cir.  1990).  At  the            ______    _____            sentencing hearing,  the  court stated  that  it had  had  an            opportunity  to "evaluate [Zanni's] level of understanding of            the  crime that  he has  committed and  his remorse  for that            crime."  Zanni's statements before and during the hearing, as            well  as his actions between  the time of  his arrest and his            guilty plea  formed the  basis for the  court's determination            that Zanni  had failed to  accept responsibility.   The court            was  not   persuaded  that  Zanni   was  genuinely  contrite.                                         -3-            "Because  the court had a plausible basis for arriving at the            conclusion, no more was required."  Id.                                                  ___                 The sentencing court was  troubled by Zanni's failure to            acknowledge  the full  extent of his  conduct in  his initial            statement  contained in the PSR.   Efforts by  a defendant to            minimize   his   culpability   "whether  during   presentence            interview  or   in  his   allocution"  are   appropriate  for            consideration  in  denying  a  reduction  for  acceptance  of            responsibility. Ocasio-Rivera,  991 F.2d at 5.  The court was                            _____________            also  disturbed by  Zanni's reference  to his  conduct during            sentencing  as  a  "mistake."   The  court's  opportunity  at            sentencing to see  the defendant, "listen to  him, and assess            his credibility" is entitled to deference. Royer, 895 F.2d at                                                       _____            30.                   In denying the  three-level reduction for acceptance  of            responsibility, the  district  court was  also influenced  by            Zanni's conduct in failing to resign from  his position after            his arrest and in continuing to collect his salary and to run            for re-election until  the time  of his guilty  plea.   Zanni            argues that  this  conduct is  irrelevant  to whether  he  is            entitled to a reduction for acceptance of responsibility.  We            have  held,  however,  that  a   defendant's  later  conduct,            following the offense of conviction but before a guilty plea,            "certainly could shed light on the sincerity of a defendant's            claims of remorse"  and may be  considered. United States  v.                                                        _____________                                         -4-            O'Neil, 936 F.2d  599, 600  (1st Cir. 1991).   Moreover,  the            ______            commentary   to     3E1.1   specifically  provides  that  one            consideration in deciding whether  to grant the reduction for            acceptance of responsibility  is "voluntary resignation  from            the  office or  position held  during the  commission of  the            offense."  U.S.S.G.   3E1.1, comment, n.1(f).                 The district court did not commit clear error in denying            Zanni a reduction for acceptance of responsibility.                 II.  Breach of Plea Agreement                      ________________________                 Zanni argues that  the government "functionally  reneged            on  their plea agreement"  by recommending a  sentence at the            high  end  of the  imprisonment  range  after the  court  had            rejected the government's recommendation that Zanni receive a            reduction for acceptance of responsibility.  Zanni's argument            is essentially that when the plea agreement ("the Agreement")            was entered into, the  parties anticipated that a three-level            reduction  would be  granted,  resulting in  an  imprisonment            range of 18  to 24  months.  Therefore,  when the  government            recommended sentencing Zanni at  the high end of the 27 to 33            month range, it "functionally" breached the plea agreement.                 "[W]hen  a plea  rests in  any significant  degree on  a            promise or agreement  of the  prosecutor, so that  it can  be            said  to be  part of  the inducement  or consideration,  such            promise must be fulfilled." Santobello v. New York,  404 U.S.                                        __________    ________            257, 262  (1971); see  also United  States v. Kurkculer,  918                              ___  ____ ______________    _________                                         -5-            F.2d  295, 297 (1st Cir. 1990) ("The Government must keep its            promises  or   the  defendant  must  be   released  from  the            bargain.").                   In this  case, the government fulfilled  the promises it            made in the Agreement.   The Agreement provided that  "no one            has promised a particular sentence or sentencing range."   It            further  provided  that  "[d]efendant has  been  advised  and            understands .  .  . that  the final  decision concerning  the            range of sentences applicable  to his offense rests with  the            Court  and that defendant will  not have a  right to withdraw            his  plea   based  upon   the  Court's  application   of  the            guidelines."  After Zanni amended his statement in the PSR to            "completely  and truthfully  admit[] his  involvement in  the            criminal  conduct  to  which  he  is  pleading  guilty,"  the            government withdrew its opposition to a three-level reduction            for acceptance of responsibility.  The government recommended            a jail sentence "within  the range of jail terms  computed by            the   Court."    The  Agreement  specifically  provided  that            "Defendant understands  that the  government will be  free to            recommend  any specific  sentence it  deems appropriate  from            within that range."                   Zanni was not promised a  particular imprisonment range            or a particular sentence.  The Agreement anticipated both the            possibility that the sentencing  court would deny a reduction            for  acceptance  of responsibility  and  that the  government                                         -6-            would  recommend a sentence at the high end of the applicable            sentencing range.   The  government did not  breach the  plea            agreement by recommending a  sentence at the high end  of the            sentencing range arrived at by the court.                 Accordingly, Zanni's sentence is summarily affirmed. See                                                            ________  ___            Loc. R. 27.1.                                                                 -7-
