
USCA1 Opinion

	




          November 24, 1992      ____________________                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT          No. 92-1030                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                             EVARISTO CARRASQUILLO-RAMOS,                                Defendant, Appellant.                                 ___________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. H ctor M. Laffitte, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                              Torruella, Circuit Judge,                                         _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              Skinner,* District Judge.                                        ______________                                 ____________________                Lydia Lizarr bar-Masini for appellant.                _______________________                Antonio R.  Baz n, with  whom Daniel F.  L pez-Romo, United                _________________             _____________________          States Attorney, was on brief for appellee.                                 ____________________                                 ____________________                                        ____________________          *  Of the District of Massachusetts, sitting by designation.                    TORRUELLA, Circuit  Judge.   This appeal arises  out of                               ______________          the district court's refusal to adjust appellant's sentence level          downward by two points for acceptance of responsibility.  Because          we  find that the district court did not abuse its discretion, we          affirm.                      Appellant was found guilty by a jury of three counts of          drug-related   crimes.1     After  the   trial,   appellant  made          statements of  admittance during an interview  with the probation          officer.   At his  sentencing hearing,  appellant also  stated "I          know I  did wrong  and besides  having done  it  wrong, I'm  very          repentant,  and I  ask forgiveness  from the  court."   Appellant          contends   that  these   statements   demonstrate  the   required          acceptance of responsibility.  The district  judge disagreed, and          sentenced  him to 48 months  imprisonment on counts  one and two,          and  78   months  imprisonment  on   count  three,  all   to  run          concurrently.  This sentence fell within the applicable guideline          range for appellant's offense level.                    We note that the district  court's conclusion as to the          downward  adjustment is  consistent  with Application  Note 2  of          United   States  Sentencing  Guideline     3E1.1,  pertaining  to          acceptance of  responsibility.   That Note explains  that "[t]his          adjustment is not intended  to apply to a defendant who  puts the                                        ____________________          1  Counts one and two charged appellant with willfully, knowingly          and   intentionally   using   a  telephone   in   committing  and          facilitating  the  commission of  the  crime  of distribution  of          cocaine on  two separate dates.   Count  three charged  appellant          with   willfully,   knowingly    and   unlawfully    distributing          approximately 918 grams of cocaine.                                         -2-          government  to  its  burden of  proof  at  trial  by denying  the          essential factual elements of guilt,  is convicted, and only then          admits guilt and expresses remorse."  The Note continues, stating          that  in  "rare situations"  a  defendant  may  qualify  for  the          adjustment  while still having a trial, but only based upon "pre-          trial statements and conduct."                    Appellant contends that he could not admit guilt before          trial  because his  codefendants threatened  him and  his family.          Appellant  contends  that  this   duress  excuses  his  otherwise          untimely admissions.  We note, however, that the trial judge knew          of appellant's contention before he  rejected the request for the          downward adjustment.                    We  review the  district court's  finding in  this case          with great deference because "the sentencing judge is in a unique          position to evaluate a defendant's acceptance of responsibility."          United States v. Uricoechea-Casallas, 946 F.2d 162, 167 (1st Cir.          _____________    ___________________          1991)  (citing  United   States  Sentencing  Guideline      3E1.1          comment).    We therefore  will reverse  the  finding only  if it          amounts to clear error.  United  States v. Bradley, 917 F.2d 601,                                   ______________    _______          606 (1st Cir.  1990).   Given this standard,  we cannot  conclude          that the district judge erred in denying the downward adjustment.                    The  district  court  had  the  opportunity  to  assess          appellant's demeanor and credibility, and evaluate his acceptance          of responsibility,  including his allegations of  threats, in the          context of the case as a whole.   See id.  Due to his  assessment                                            ___ __                                         -3-          of these factors, the district court concluded that appellant did          not accept  responsibility at  the hearing, but  merely expressed          remorse.  This conclusion is bolstered by the presentence report,          which expressly  found that  appellant was  not eligible for  the          reduction because appellant made no pre-trial admissions.                    Given   the  lack   of  any  pre-trial   acceptance  of          responsibility, and the insistence  of the Sentencing  Guidelines          for such  a timely  acceptance of responsibility,  we cannot  say          that  the district  judge committed  clear error  in refusing  to          apply the downward adjustment.                    Affirmed.                    ________                                         -4-
