
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 95-2109                                    UNITED STATES,                                      Appellee,                                          v.                               MELVIN B. LAGASSE, JR.,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Walter F.  McKee with whom Lipman  & Katz, P.A.  was on brief  for            ________________           ____________________        appellant.            F.  Mark Terison, Assistant  United States Attorney, with whom Jay            ________________                                               ___        P.  McCloskey,  United  States   Attorney,  and  George  T.  Dilworth,        _____________                                    ____________________        Assistant United States Attorney, were on brief for appellee.                                 ____________________                                    June 25, 1996                                 ____________________                      STAHL, Circuit Judge.  Defendant-appellant   Melvin                      STAHL, Circuit Judge.                             _____________            B.  Lagasse,  Jr.,  pleaded  guilty  to  a  drug  trafficking            conspiracy and  was sentenced to  264 months'  incarceration.            Lagasse  now appeals  three aspects of  his sentence:  (1) an            enhancement  for possession  of  a dangerous  weapon; (2)  an            enhancement for obstruction of justice; and (3) the denial of            an adjustment for acceptance of responsibility.  We affirm in            part, vacate in part and remand.                                          I.                                          I.                                          __                       Factual Background and Prior Proceedings                       Factual Background and Prior Proceedings                       ________________________________________                      We  accept  the  facts  found  in  the  uncontested            portions of  the Presentence Investigation Report ("PSR") and            the  sentencing hearing  transcript.   See  United States  v.                                                   ___  _____________            Lindia, 82 F.3d 1154, 1158 (1st Cir. 1996).  Additional facts            ______            pertinent to the issues in this appeal are discussed below.            A.  Offense Conduct            ___________________                      In the  summer of 1994, the  Maine Drug Enforcement            Agency ("MDEA")  began investigating a crack  cocaine ring in            the Lewiston/Auburn  area.   The investigation revealed  that            the drug  suppliers, Raul  Baez, Jesus Baez  and Angel  Baez,            operated  out  of  Lawrence,  Massachusetts,  and  that  Jose            Guzman,  Toni  Lemieux Naftali  ("Naftali")  and  Jose Mejia-            Martinez   transported  the  drugs   to  Maine  for  ultimate            distribution.    Appellant  Melvin Lagasse  ("Lagasse"),  his            brother, Michael Lagasse, and three others, Marlane Driggers,                                         -2-                                          2            Lisa Booth and Thomas Booth, would also on occasion transport            the  crack cocaine ("crack") to Maine and sell it in Lewiston            and Auburn.                      From  July  through early  September  1994, Lagasse            purchased  about 100  bags  of crack  per  week from  various            persons including  Naftali, Jesus Baez, Guzman,  Driggers and            Mejia-Martinez.     Lagasse  procured   the  drug   both  for            distribution and for personal  use.  He continued to  use and            sell crack until December 7, 1994, when he was arrested while            in possession of almost 100 grams of crack.                      On  December 20,  1994,  a grand  jury returned  an            indictment charging  in Count  I that Lagasse  conspired with            the Baezes, Driggers, Michael  Lagasse, the Booths and others            to distribute  and to  possess with  intent to  distribute in            excess of fifty grams of cocaine base (i.e., crack).  Lagasse                                                   ____            pleaded  guilty to that count  in February 1995; other counts            against him were dismissed.            B.  Sentencing            ______________                      The  district court  held a  sentencing  hearing on            September 14, 1995,  during which it took evidence  and heard            the testimony of  nine witnesses, including Lagasse.   At the            conclusion  of  the hearing,  the  court  made the  following            findings and rulings which  are at issue in this  appeal: (1)            that  an  upward adjustment  for  possession  of a  dangerous            weapon  was  applicable because  Lagasse  was  involved in  a                                         -3-                                          3            knife-point  robbery  of drugs  and  money  from Naftali  and            Guzman;  (2) that  an  upward adjustment  for obstruction  of            justice was  appropriate because Lagasse  assaulted a witness            in retaliation  for, and  to prevent his  further cooperation            with  authorities; and  (3)  that a  downward adjustment  for            acceptance of  responsibility was not warranted  both because            Lagasse obstructed  justice and because he  attempted to have            drugs  smuggled  to  him  in  prison  where he  was  awaiting            sentencing.                                         II.                                         II.                                         ___                                      Discussion                                      Discussion                                      __________            A.  Standard of Review            ______________________                      We    review    a   sentencing    court's   factual            determinations, which must be found by a preponderance of the            evidence, for  clear error.   United States  v. McCarthy,  77                                          _____________     ________            F.3d 522, 535 (1st Cir. 1995).   We review questions of  law,            including  the applicability  of  a sentencing  guideline, de                                                                       __            novo.  Id.            ____   ___            B.  Enhancement for Possession of a Dangerous Weapon            ____________________________________________________                      Lagasse challenges the district court's application            of  a dangerous  weapon  enhancement to  his  sentence.   The            pertinent   sentencing  guideline,   U.S.S.G.    2D1.1(b)(1),            provides for a  two-level increase in the  base offense level                                         -4-                                          4            "[i]f   a   dangerous  weapon   (including  a   firearm)  was            possessed."1  Application note  3 to that guideline provides,            in part:                      The  enhancement  for  weapon  possession                      reflects the increased danger of violence                      when  drug  traffickers possess  weapons.                      The adjustment should  be applied if  the                      weapon was present,  unless it is clearly                      improbable that the weapon  was connected                      with the offense.            U.S.S.G.   2D1.1, comment. (n.3).                      At    the    sentencing    hearing,   Naftali,    a            coconspirator,   testified  that,   throughout  the   day  of            September  8, 1994 (a  point within the  indictment period of            the  charged conspiracy),  Lagasse  repeatedly requested  and            received crack from her.  Naftali stated that she  eventually            rebuffed  his  requests  for  more of  the  drug  because  he            continued to use  rather than sell  it.  Later, in  the early            morning hours  of September 9, Lagasse  returned to Naftali's            apartment and requested more crack from her and her roommate,            Guzman.   Both refused,  and Lagasse  left.   Seconds  later,            however, Lagasse  forcibly reentered  the apartment with  one            Michael Weaver who walked into Guzman's room and held a knife            to Guzman's  neck; Lagasse  stood close behind  Weaver during                                            ____________________            1.  Unless otherwise  indicated, all guideline  citations are            to the  November 1994 United  States Sentencing  Commission's            Guidelines Manual.                                         -5-                                          5            this  encounter.   Lagasse and  Weaver then  took all  of the            drugs and cash in the apartment and left.2                      Based  on this  event, the  court found  the weapon            enhancement appropriate, explaining:                           I  observe  first  of  all  that the                      circumstances here are  rather unique  in                      the   application   of  this   adjustment                      because here the possession of the weapon                      was   not  in  furtherance  of  the  drug                      conspiracy in the  sense that Weaver with                      Lagasse's connivance was trying  to steal                      from the conspiracy.                           Nevertheless,  [Application note  3]                      points  out  that  the  reason   for  the                      adjustment  is  the  increased danger  of                      violence  when  drug traffickers  possess                      weapons.  I certainly  attribute Weaver's                      possession   of   the   weapon  to   this                      defendant   because   they   were   there                      jointly.3  And I conclude although  it is                      an  unusual  case that  the circumstances                      here  fit  the definition  of Application                      Note  3  and  call   for  the  two  level                      increase.                      We  begin our analysis  with a brief  review of the            basic principles underlying the  application of the dangerous            weapon enhancement.   For the enhancement to  be warranted, a            certain  nexus between  the weapon  and the  offense must  be            shown.  See  United States v. Pineda, 981 F.2d  569, 573 (1st                    ___  _____________    ______            Cir. 1992).   It need not be  shown, however, that the weapon            was used, or  was intended to be used, to perpetrate the drug                                            ____________________            2.  Later that  same day, police arrested  Naftali and Guzman            after  discovering  large  quantities   of  crack  in   their            automobile.            3.  On  appeal,   Lagasse  does  not   contest  the   court's            attribution of the knife possession to him.                                         -6-                                          6            offense.  United States v. Castillo, 979 F.2d 8, 10 (1st Cir.                      _____________    ________            1992); see also,  United States  v. Ruiz, 905  F.2d 499,  507                   ___ ____   _____________     ____            (1st  Cir.   1990).    Rather,   for  the  purposes   of  the            enhancement, we have repeatedly recognized that                      "when  the  weapon's  location  makes  it                      readily available to  protect either  the                      participants   themselves    during   the                      commission of the illegal activity or the                      drugs  and  cash  involved  in  the  drug                      business,   there   will  be   sufficient                      evidence  to connect  the weapons  to the                      offense conduct."            United States v.  Ovalle-Marquez, 36 F.3d 212,  224 (1st Cir.            _____________     ______________            1994) (quoting  United States  v. Corcimiglia, 967  F.2d 724,                            _____________     ___________            727  (1st Cir.  1992)), cert.  denied, 115  S. Ct.  947, 1322                                    _____  ______            (1995).  In other  words, the presence of a  dangerous weapon            at some point during  the underlying drug crime may  indicate            the probability of a "facilitative nexus between the [weapon]            and the crime."   United States v. Gonzalez-Vazquez,  34 F.3d                              _____________    ________________            19, 25 (1st Cir. 1994).                      Once the  presence of a weapon  is established, the            defendant  may  avoid the  enhancement only  by demonstrating            "special  circumstances"  rendering  it "clearly  improbable"            that  the  weapon  was  connected  to  the  drug  trafficking            offense.  Ovalle-Marques,  36 F.3d at 224.   An example  of a                      ______________            "special   circumstance"  is   provided   by  the   guideline            commentary:  "the  enhancement would  not be  applied if  the            defendant, arrested at his residence, had an unloaded hunting            rifle in the closet."  U.S.S.G.   2D1.1, comment. (n.3).                                          -7-                                          7                      Here,  the  district court's  factual  findings are                                                    _______            unassailable and  Lagasse does not challenge  them on appeal:            during  the indictment  period, Lagasse  was involved  in the            robbing  of a  coconspirator,4 at knife  point, of  drugs and            money.  What the  parties do dispute is the  district court's            application  of the guidelines to these facts.  While we give            "due deference" to  the court's exercise  in this regard,  18            U.S.C.   3742(e), if its application is contrary  to the law,            we must correct the error.  See United States v. Grandmaison,                                        ___ _____________    ___________            77 F.3d 55, 560 (1st Cir. 1996).                      The government concedes that  the knife was used to            rob fellow  conspirators, but  contends that  the use  of the            weapon was intended to "protect" Lagasse's access to the very            drugs involved in the conspiracy  and to "enforce" his demand            for  more crack  to  sell.   The  government emphasizes  that            Lagasse  used the knife on  the very premises  from which the            conspiracy was carried out and  "during the active course  of            the conspiracy"  and concludes that thus, it was not "clearly            improbable" that  the knife was connected  with that offense.            Finally,  the  government  relies  on  the  expressed  policy            concern behind  the weapon enhancement: the  increased danger                                            ____________________            4.  Although  Guzman and Naftali  were not specifically named            in the indictment as  coconspirators, they were so identified            in  the prosecution's  version of  the events,  which Lagasse            accepted when pleading guilty.                                         -8-                                          8            of violence when drug  traffickers possess weapons.  U.S.S.G.              2D1.1, comment. (n.3).                      Lagasse responds  that the armed  robbery of  drugs            and money  from a coconspirator was clearly  unrelated to the            charge to which he pleaded guilty: conspiracy to possess with            intent to distribute crack.  He contends that the robbery was            adverse  to the  conspiracy's interests,  and thus  the knife            cannot  fairly be  "connected"  with the  offense within  the            meaning of the guideline.  We agree.                      The  government's  observation that  the  knife was            "present" during  drug trafficking activity, on  the facts of            this case,  misses  the  mark.   It  is  true  that  we  have            recognized that the  "presence" of  a weapon at  the site  of            drug  trafficking activity  supports  the  enhancement.   See                                                                      ___            United  States v. Almonte, 952  F.2d 20, 25  (1st Cir. 1991),            ______________    _______            cert. denied, 503 U.S. 1010 (1992).  In addition, however, we            _____ ______            have invariably  observed that the  weapon's presence implied            its purpose to "protect" some aspect of the drug operation --            e.g., the drugs  or the  participants -- even  if it was  not            ____            actually  used to perpetrate  the crime.   See, e.g., Ovalle-                                                       ___  ____  _______            Marquez, 36 F.3d at  224; Pineda, 981 F.2d at  574; Castillo,            _______                   ______                    ________            979 F.2d at 11; United States v. Preakos, 907 F.2d  7, 9 (1st                            _____________    _______            Cir.  1990);  Ruiz,  905 F.2d  at  508.    Thus, our  caselaw                          ____            establishes only that a weapon's presence during the criminal            activity  will trigger the enhancement when the circumstances                                         -9-                                          9            permit  an  inference that  the weapon  served to  protect or            otherwise facilitate the offense conduct.                      Here, in  contrast, the  weapon played a  role that            was  entirely  adverse  to  the  "interests"  of  the  crime.            Lagasse's  offense, to  which the  enhancement  attached, was            criminal conspiracy -- an agreement with others to  engage in            unlawful  conduct.    As  the district  court  observed,  the            robbery was "not in furtherance of the  drug conspiracy" but,            in   effect,  a   theft  from   the  conspiracy  --   an  act            quintessentially  antithetical to  the  offense.5   The facts            found by the district court indisputably negate the inference            that normally  arises from  the presence  of a  weapon during            drug trafficking  activity.  Had Lagasse been  convicted of a            drug  possession or  distribution crime  with respect  to the            drugs stolen from Guzman, the case might have been different;            but that is not what happened here.6                      Thus,  we hold that the  facts of this  case do not            come  within  the  seemingly  broad  purview  of  the  weapon                                            ____________________            5.  There  is no evidence in the record that Lagasse sold any            of   the  drugs  taken  from  Guzman  (although  there  is  a            suggestion  that he  shared some  of them  with  his brother,            Michael Lagasse).            6.  The government incorrectly  cites, as applicable  here, a            previous version of   2D1.1(b), which contained the following            underscored language:   "If  a dangerous weapon  (including a            firearm) was  possessed  during commission  of  the  offense,                                     ______ __________  __  ___  _______            increase by 2 levels."   See Amendment 394, U.S.S.G.  App. C.                                     ___            The Sentencing Commission deleted that language by amendment,            effective November 1, 1991.  Id.                                         ___                                         -10-                                          10            enhancement.     See   U.S.S.G.     2D1.1,   comment.   (n.3)                             ___            (indicating that  the enhancement  applies if the  weapon was            somehow  "connected" with  the  offense).   Moreover, we  are            unpersuaded by the  government's reliance on  the guideline's            underlying  concern about  the increased  danger  of violence            when drug traffickers possess weapons.  The guideline  is not            intended  to cover every instance  in which a drug trafficker            possesses a weapon.  Rather, the enhancement applies when the            weapon  possession has  the requisite  nexus to  the relevant            offense.  Because the  court erred in its  interpretation and            _______            application of the weapon enhancement, that part of Lagasse's            sentence must be vacated.            C.  Enhancement for Obstruction of Justice            __________________________________________                      Lagasse also claims that the court erred in finding            that  he obstructed  justice  and in  adjusting his  sentence            accordingly.  Sentencing Guideline   3C1.1 provides:  "If the            defendant willfully  obstructed or impeded,  or attempted  to            obstruct or impede, the  administration of justice during the            investigation,  prosecution, or  sentencing  of  the  instant            offense, increase the offense level by 2 levels."                      At the sentencing hearing, an agent with the United            States Immigration and Naturalization Service testified that,            on December  22, 1994,  he heard  a general  discussion among            Lagasse and his codefendants (who, at the time, were awaiting            arraignment in a  lockup area) relating their belief that two                                         -11-                                          11            individuals named Scott and  Patty Poulin were "the  rats" in            the operation and that their cooperation with authorities was            the  cause  of the  arrests.   A  corrections officer  at the            Kennebec County jail  testified that, on  the morning of  May            22, 1995 -- a time after which Lagasse had pleaded guilty but            before his  sentencing -- Lagasse approached  Scott Poulin in            the jail  recreation  yard  and punched  him.    The  officer            further testified  that Poulin  was groggy and  bleeding from            the mouth and nose, and was sent to the prison infirmary.  An            agent  with the MDEA testified  that, in July  1995, he asked            Poulin  about the assault,  and Poulin told  him that Lagasse            "sucker punched" him and  stated, "I know you're a  rat, this            is for being a rat.  You better . . . stop talking."7                      From this  evidence, the district court  found that            Lagasse struck  Poulin because of Poulin's  cooperation "at a            time when  these matters  were still  pending" and thus,  the            obstruction of justice enhancement was warranted.  On appeal,            Lagasse  contends   that  the  obstruction   enhancement  was            improper  because,  while  he   may  have  struck  Poulin  in            retaliation for being a  "rat," there could not have  been an            obstruction of justice because he had already pleaded guilty.            To this end, he asserts that Poulin had nothing to contribute                                            ____________________            7.  In contrast, Lagasse testified  that he never hit Poulin.            He  further stated  that  he did  not  know that  Poulin  was            cooperating  with the  authorities, and  pointed out  that he            (Lagasse) was the  one who testified against Poulin  before a            grand jury.  Lagasse does not press this position on appeal.                                         -12-                                          12            to the sentencing determination  and, in fact, was in  no way            involved with  that disposition.   Lagasse is  wrong for  two            reasons.                      First,  the district  court supportably  found that            Lagasse  knew of  Poulin's cooperation  and assaulted  him to            prevent  further  similar  conduct.    Although  Lagasse  had            already pleaded guilty to the offense, he struck Poulin after            the  preparation of his PSR but before his sentencing.  While            Poulin was not specifically mentioned in the PSR, he had been            separately  indicted as  a  coconspirator of  Raul and  Jesus            Baez,   two  of  Lagasse's  codefendants.    Because  Lagasse            believed  that  Poulin was  the  "rat"  in the  operation,  a            reasonable  inference  from  the  evidence  is  that  Lagasse            thought that  Poulin could provide information,  such as drug            quantity, that would affect  his sentence.  In light  of this            evidence, especially Lagasse's warning to "stop  talking," we            cannot say  that  the court  clearly  erred in  finding  that            Lagasse's  assault  on Poulin  was  intended  to prevent  any            further cooperation in the  proceedings against Lagasse.  The            fact that Poulin did not, or even could not have, contributed            anything to the sentencing  process is irrelevant because the            enhancement applies to attempted,  as well as actual, witness            intimidation.   See U.S.S.G.    3C1.1, comment. (n.3(a)); see                            ___                                       ___            United  States v.  Cotts, 14  F.3d 300,  307 (7th  Cir. 1994)            ______________     _____                                         -13-                                          13            (finding enhancement proper  where the  defendant plotted  to            kill a fictional informant).                      Second,  even  if  the  evidence  only  supported a            finding that  the assault was intended to  retaliate for past            cooperation (and not to prevent future acts), the obstruction            of  justice enhancement  would be  appropriate.   Application            note  3(i)  to  the  obstruction guideline  states  that  the            enhancement  applies  for "conduct  prohibited  by  18 U.S.C.               1501-1516."   U.S.S.G.    3C1.1, comment.  (n.3(i)).    In            turn, 18 U.S.C.   1513(b)  prohibits the infliction of bodily            injury  with the  intent to  retaliate  for the  providing of            information relating to  a federal offense.   Here, there was            ample evidence that Lagasse injured Poulin in retaliation for            his past cooperation.  This conduct falls squarely within the            obstruction  of justice guideline.  See Cotts, 14 F.3d at 308                                                ___ _____            (holding that  the guideline's reference to    1513 allows an            obstruction  enhancement even  where the  motive was  only to            "punish a snitch").                      We  find no  error  in the  court's enhancement  of            Lagasse's sentence for obstruction of justice.            D.   Denial  of Adjustment  for Acceptance  of Responsibility            _____________________________________________________________                      Lagasse contends that he was entitled to a downward            adjustment  for  acceptance  of  responsibility   because  he            pleaded  guilty  within months  of  his  arrest and  appeared            before a grand jury on the government's behalf.  Although the                                         -14-                                          14            court refused to grant the adjustment,  it did expressly take            into  account Lagasse's guilty plea when fixing a sentence in            the  middle of  the applicable  guideline range,  despite the            government's  recommendation  for  the  maximum  imprisonment            term.                      A  two-level  reduction  in the  offense  level  is            warranted "[i]f the defendant clearly demonstrates acceptance            of  responsibility  for  his  offense."    U.S.S.G.    3E1.1.            However,  "[a] defendant  who  enters a  guilty  plea is  not            entitled to an adjustment [for acceptance of  responsibility]            as a matter  of right."  Id. comment. (n.3);  see also United                                     ___                  ___ ____ ______            States  v.  Royer,  895  F.2d   28,  29-30  (1st  Cir.  1990)            ______      _____            (explaining  that "a  downward adjustment  for acceptance  of            responsibility  is not  automatically  to  be conferred  upon            every  accused who  pleads guilty").   While  pleading guilty            before trial  and  truthfully admitting  the offense  conduct            will  constitute  "significant  evidence"  of  acceptance  of            responsibility, "this evidence  may be outweighed  by conduct            of the defendant  that is inconsistent."   U.S.S.G.    3E1.1,            comment. (n.3).                      Only in  "extraordinary cases" will  the adjustment            be appropriate where, as here, the defendant has received  an            obstruction of justice enhancement  pursuant to   3E1.1.  Id.                                                                      ___            comment. (n.4).  Other than referring to his challenge to the            obstruction of justice enhancement, Lagasse does not indicate                                         -15-                                          15            how his case  might be  "extraordinary" enough  to allow  the            acceptance  of responsibility adjustment.   Because Lagasse's            case is "ordinary" in that the obstructive conduct "indicates            that the  defendant has  not accepted responsibility  for his            criminal  conduct," id.,  the  denial of  the adjustment  was                                ___            proper.   See United States v. Wheelwright, 918 F.2d 226, 229                      ___ _____________    ___________            (1st Cir. 1990).                      The district court alternatively found that Lagasse            did  not deserve the  acceptance of responsibility adjustment            because he was involved  in an attempt to smuggle  drugs into            prison.  At  the sentencing hearing, an MDEA  agent testified            that on March  25, 1995,  he went to  the Maine  Correctional            Center  to  investigate  an   anonymous  tip  that  Lagasse's            girlfriend, Grace  Sheloske, would  attempt to  smuggle drugs            into  the  prison that  day.   When  Sheloske arrived  at the            prison,  she told  the  agent that  she  was there  to  visit            Lagasse  and eventually  admitted that  she was  concealing a            small  amount of crack.  Sheloske refused to identify to whom            she intended to give the drugs, stating that she did not want            to  "get him  in trouble."   A  deputy United  States Marshal            testified  that,  just  before  the  sentencing  hearing,  he            interviewed Jeffrey Rumore  -- an inmate  who worked for  the            prison laundry -- who  told him that Lagasse had  confided to            Rumore that Sheloske planned to smuggle crack into the prison            and pass it during contact visits in the visiting room.                                         -16-                                          16                      Based on  this testimony,  the court found  that it            was  Rumore who tipped  off the authorities  of the smuggling            plan,  that Lagasse must have told Rumore about the plan, and            thus Lagasse knew in advance that Sheloske was carrying drugs            for  him  and indeed,  that she  did so  at  his behest.   On            appeal, Lagasse argues that the court should not hold against            him "the one  single occasion where  an admitted drug  addict            tried to feed his habit,"  combined with the Poulin  assault,            to  deny him any credit for acceptance of responsibility.  We            must disagree.                      "[I]t  is primarily  up  to the  district court  to            decide whether or not  the appellant accepted  responsibility            for  his  conduct  `with   candor  and  authentic  remorse.'"            Wheelwright, 918 F.2d at 229 (quoting Royer, 895 F.2d at 30).            ___________                           _____            We have held that, while a court may not require  a defendant            to accept  responsibility for  conduct beyond the  offense of            conviction,  it  may  consider  a   defendant's  post-offense            conduct --  including illegal drug activity -- as evidence of            the  sincerity  of  his  claimed remorse  for  the  convicted            offense.  United States v. O'Neil, 936 F.2d 599, 599-601 (1st                      _____________    ______            Cir.  1991) (upholding  sentencing  court's consideration  of            post-offense use of marijuana in determining applicability of            adjustment for  mail theft offense); accord  United States v.                                                 ______  _____________            Byrd, 76  F.3d 194, 196-97  (8th Cir. 1996)  (listing cases).            ____            While such conduct does  not compel the denial of  credit for                                         -17-                                          17            acceptance of  responsibility, O'Neil,  936 F.2d at  600, the                                           ______            court  could   reasonably   conclude  here   that   Lagasse's            involvement  in the  attempted  smuggling of  drugs into  the            prison  was  inconsistent  with  his  claimed  remorse,  thus            negating  the applicability  of the  adjustment.   See United                                                               ___ ______            States v.  Olvera, 954 F.2d  788, 793  (2d Cir.)  (sentencing            ______     ______            court permissibly found that  the smuggling of marijuana into            prison "was inconsistent with acceptance of responsibility"),            cert. denied, 505 U.S. 1211 (1992).8            _____ ______                      In  sum, we find no error in the court's refusal to            grant  Lagasse the benefit of an adjustment for acceptance of            responsibility.                                            ____________________            8.  We note that the guideline commentary lists the following            considerations in favor  of the acceptance of  responsibility            adjustment  that,  here,  weigh  against  Lagasse:  voluntary            termination   or  withdrawal   from   criminal   conduct   or            associations,   and   post-offense   rehabilitative   efforts            including drug treatment.  U.S.S.G.   3E1.1, comment. (n.1(b)            & (g)).                                         -18-                                          18                                         III.                                         III.                                         ____                                      Conclusion                                      Conclusion                                      __________                      We affirm the district court's sentence enhancement                         ______            for  obstruction  of justice  and  its denial  of  credit for            acceptance of responsibility.  Because  of the legal error in            the  application of  the  weapon enhancement,  we vacate  the                                                              ______            sentence  and remand  for resentencing  consistent with  this                          ______            opinion.                                         -19-                                          19
