
USCA1 Opinion

	




          April 12, 1994                                [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]                            United States Court of Appeals                            United States Court of Appeals                                For the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. 93-1582                                    UNITED STATES,                                      Appellee,                                          v.                              GERARDO H. TIRADO-TORRES,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jose Antonio Fuste, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                          Boudin and Stahl, Circuit Judges.                                            ______________                                 ____________________            Hector Deliz on brief for appellant.            ____________            Jose  A.  Quiles-Espinosa,  Senior  Litigation  Counsel,   Ernesto            _________________________                                  _______        Hernandez-Milan,  Assistant United States Attorney, and Guillermo Gil,        _______________                                         _____________        United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                      Per  Curiam.   Defendant-appellant  Gerardo Tirado-                      ___________            Torres appeals  from the sentence imposed  upon him following            his  guilty plea, arguing, inter alia, that he is entitled to                                       _____ ____            an   additional  point   reduction  for  his   acceptance  of            responsibility  and  that  he   is  entitled  to  a  downward            departure  for  his  assistance  to  government  authorities.            Finding no error, we affirm.                                          I.                                          I.                                          __                       FACTUAL BACKGROUND AND PRIOR PROCEEDINGS                       FACTUAL BACKGROUND AND PRIOR PROCEEDINGS                       ________________________________________                      Defendant   established    business   colleges   at            different   locations   and  fraudulently   obtained  federal            education  funds, mostly  Pell Grants.   He  then used  these            funds for his own private, non-educational purposes.  Through            the  scheme,   defendant   improperly  obtained   more   than            $2,500,000.   A fifteen-count  indictment charged him  with a            variety of  offenses  involving the  manipulation of  federal            funds.  On the day before trial, he pleaded guilty to four of            the counts.                      As  part of  the  plea  agreement,  the  government            agreed  to consider  filing a  motion for  downward departure            depending  on   the  degree  of  defendant's   assistance  to            government authorities.  Prior to the day of sentencing,  the            government  filed such  a  motion pursuant  to United  States            Sentencing Guidelines ("U.S.S.G.")   5K1.1.                                         -2-                                          2                      Based on the offenses covered by the four counts to            which defendant pleaded,  he began with a base  offense level            (BOL) of six, pursuant  to U.S.S.G.   2F1.1(a).   Because the            fraudulent  scheme resulted  in losses  to the  government in            excess of  $2,500,000, a thirteen-level upward adjustment was            made  to the BOL pursuant  to U.S.S.G.    2F1.1(b)(1)(N).  In            addition, a further two-level  upward adjustment was made for            more than minimal planning under U.S.S.G.   2F1.1(b)(2)(A); a            four-level  upward adjustment was  added based on appellant's            role  in the offense pursuant  to U.S.S.G.    3B1.1(a); and a            two-level upward adjustment was added for abuse of a position            of trust under U.S.S.G.   3B1.3.                      Finally, the court granted a two-level reduction in            defendant's    offense   level   for    his   acceptance   of            responsibility, but it rejected the government's motion for a            downward  departure  based  upon  defendant's  assistance  to            government authorities.  This  left defendant with an offense            level of twenty-five.   Given a criminal history of  one, the            sentence range was from  fifty-seven to seventy-one months of            imprisonment  with a  possible fine  ranging from  $10,000 to            $100,000, plus a  term of supervised release  of three years.            Defendant was sentenced  to concurrent  terms of  fifty-seven            months imprisonment, the lowest possible under the applicable            guideline  range, concurrent  three-year terms  of supervised            release and  a special  monetary assessment of  fifty dollars                                         -3-                                          3            per count for a total of two hundred dollars, with no further            fine.                      On  appeal,  defendant  argues  that  his  sentence            should be vacated because 1) his acceptance of responsibility            entitled  him to a three  point reduction, rather  than a two            point  reduction in  his BOL;  and 2)  his assistance  to the            government entitled him to a downward departure.1                                         II.                                         II.                                         ___                                      DISCUSSION                                      DISCUSSION                                      __________            A.  Section 3E1.1:  The Downward Adjustment            ___________________________________________                      "Whether   a   defendant   has  accepted   personal            responsibility is a `fact-dominated  issue.'"  United  States                                                           ______________            v. Donovan,  996 F.2d  1343,  1346 (1st  Cir. 1993)  (quoting               _______            United States v.  Royer, 895  F.2d 28, 29  (1st Cir.  1990)).            _____________     _____            Thus,  a  decision  to  grant  a  two-point  reduction  under            U.S.S.G.    3E1.1(a),  rather than  a  three-point  reduction            under  U.S.S.G.    3E1.1(b), "will  not be  overturned unless            clearly erroneous."  Id.                                 ___                                            ____________________            1.  In addition, defendant argues  that the court  improperly            departed upward  in arriving  at his 57-month  sentence.   In            fact,  no  upward  departure  occurred.   Rather,  the  court            applied  several adjustments  which  raised defendant's  BOL.            All upward adjustments are fully supported by  the record and            by the district court's findings of fact.                      Defendant  also  argues  that  the  district  court            failed to  properly explain  its reasons  for the  degree and            direction of its departure.  We see no merit to  this line of            argument, both  because no departure took  place, and because            the  district  court  fully  explained  all  aspects  of  the            sentence.                                         -4-                                          4                      Using this lens of  review we find no  error, clear            or  otherwise.   Because defendant's  decision to  change his            plea  did not occur until the day before trial, defendant did            not satisfy section 3E1.1(b)'s requirement that a plea permit            the  government  to  avoid  preparing for  trial.    Although            defendant may have contemplated a change of plea at some time            earlier than the  actual change,  it appeared up  to the  day            before  trial that  defendant and  his two  codefendants were            going  to stand  trial  in a  lengthy  and complicated  case.            Thus,  it was not error  for the court  to determine that the            government  was not spared  the task of  preparing for trial,            and that therefore the strictures of section 3E1.1(b) had not            been met.              B.  Section 5K1.1:  The Downward Departure            __________________________________________                      The second arrow in defendant's quiver is his claim            that  he is  entitled to  a downward  departure based  on his            assistance to the government.                      Where, as  here, the government has  filed a motion            requesting  a downward  departure  under  U.S.S.G.     5K1.1,            "weighing  the relevant factors in order to decide whether to            depart (and if so, by how much) is something best done by the            sentencing court."  United States v. Mariano, 983 F.2d  1150,                                _____________    _______            1157  (1st  Cir.  1993).   We  review  the  district  court's            determination for abuse of discretion only.  Id.                                                           ___                                         -5-                                          5                      The district court found that  the circumstances in            this case  did not warrant such  a departure.   In arguing to            the contrary,  defendant states that  the government breached            its  plea   agreement  by   failing   to  disclose   complete            information   concerning   his   assistance   to   government            authorities.   As a preliminary  matter, the record  does not            support  such   a  conclusion.    The   transcript  from  the            sentencing  proceeding shows  that the  government repeatedly            urged the court to depart downward and does not at all reveal            a  withholding  of information.   Thus,  as a  purely factual            matter, we see no merit in defendant's claim to the contrary.                           More   importantly,  we   find  no   abuse  of            discretion  in  the   district  court's  determination   that            defendant is  not entitled  to a  downward departure  for his            assistance  to  authorities.    Both  below  and  on  appeal,            defendant merely recites the fact that, subsequent to his own            guilty  plea, two codefendants  also pleaded guilty.   At the            sentencing   hearing,   the   district   court   scrupulously            questioned  a  government  investigator  on  the  subject  of            defendant's assistance to government authorities  and learned            that defendant's plea  was of virtually no  assistance to the            government  in  its   ongoing  case  against   codefendants.2                                            ____________________            2.  For example, the following colloquy occurred:                      The Court:  Would it be fair to say that                                  when  you interviewed  [defendant after            his                                         -6-                                          6            Accordingly, we find no  abuse of discretion in  the district            court's   determination  that   no  downward   departure  for            assistance to government authorities was warranted.                                                 ____________________                                  guilty plea], you already had 99.9                                  percent of this case [against                                   codefendants] made?                      Witness:    Yes, the case was completed.                                         -7-                                          7                                         III.                                         III.                                         ____                                      CONCLUSION                                      CONCLUSION                                      __________                      For the foregoing reasons, the sentence imposed  by            the district court is                       Affirmed.                      ________                                         -8-                                          8
