
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                             ___________________________          No. 93-1737                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  ALBERTO GONZALES,                                Defendant, Appellant.                             ___________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                              _________________________                                        Before                     Torruella, Selya and Stahl, Circuit Judges.                                                 ______________                              _________________________               Stephen H. Mackenzie on brief for appellant.               ____________________               Jay P.  McCloskey, United  States Attorney,  and Michael  M.               _________________                                ___________          DuBose, Assistant United States Attorney, on brief for appellee.          ______                             ___________________________                                  December 23, 1993                             ___________________________                    SELYA, Circuit Judge.   This sentencing appeal  is long                    SELYA, Circuit Judge.                           _____________          on rhetoric, but short on  merit.  Having considered and rejected          defendant's  three assignments of  error, we affirm  the judgment          below.                                          I                                          I                    First,  defendant-appellant  Alberto  Gonzales contends          that  the district court  erred in imposing  a two-level sentence          enhancement for  obstruction of  justice.1   See U.S.S.G.   3C1.1                                                       ___          (Nov. 1992).  The  contention is jejune.  We  review a sentencing          court's   factfinding  in   these  precincts   with  considerable          deference.  See,  e.g., United States v. Veilleux,  949 F.2d 522,                      ___   ____  _____________    ________          525-26 (1st Cir. 1991) (explaining that an obstruction of justice          finding will be upheld if  not clearly erroneous); United  States                                                             ______________          v. Wheelwright,  918 F.2d  226, 228  (1st  Cir. 1990)  (similar).             ___________          Here, the district court  had before it convincing  evidence that          appellant  attempted to coax  an acquaintance into  bearing false          witness about  a matter  material to the  case.   Such scurrilous          deportment  clearly  can   constitute  obstruction  of   justice,          warranting  a two-level enhancement of a defendant's base offense          level.  See U.S.S.G.  3C1.1, comment. (n. 3(b)) (Nov. 1992).                  ___                    Attempting to avoid this result, appellant asserts that          the district court failed to make a finding of specific intent in                                        ____________________               1In  general, a sentencing  court applies the  guidelines in          effect on the date of sentencing.  See United States v. Bell, 953                                             ___ _____________    ____          F.2d 6, 7 (1st Cir. 1992); United States v. Harotunian,  920 F.2d                                     _____________    __________          1040, 1041-42 (1st Cir. 1990).  Gonzales was sentenced on July 2,          1993.   Hence,  this  case  is controlled  by  the November  1992          edition of the guidelines.                                          2          respect to obstructing justice.   We read the record differently.          The  judge  found  explicitly, and  supportably,  that  appellant          "intentionally  and  knowingly  attempted   to  persuade  another          individual to  testify falsely in  court as to a  material matter          (e.g., that  law  enforcement agents  illegally  used  contraband           ____          substances  during a  drug buy  in the  course of  their official          duties in this case)."   In our view, no more is exigible.  We do          not  demand that  judges,  when explaining  the  bases for  their          rulings, "be precise to the point of pedantry."  Lenn v. Portland                                                           ____    ________          Sch.  Comm., 998  F.2d  1083, 1088  (1st  Cir. 1993)  (collecting          ___________          cases).  Giving due weight to context and common sense, we accept          the  sentencing  judge's  use of  the  phrase  "intentionally and          knowingly"  in  this  case  as the  functional  equivalent  of an          express finding of specific intent.2                                          II                                          II                    Next, appellant posits that the district court erred in          failing to lower  his sentence for acceptance  of responsibility.          See U.S.S.G.  3E1.1 (Nov. 1992).  We do not agree.          ___                    A  defendant bears the burden of proving entitlement to          decreases in  the offense level,  including downward  adjustments          for acceptance of  responsibility.  See United States v. Morillo,                                              ___ _____________    _______          ___ F.3d ___, ___ (1st Cir. 1993) [No. 93-1388, slip op.  at 16];          United  States v.  Bradley, 917  F.2d 601,  606 (1st  Cir. 1990).          ______________     _______                                        ____________________               2Appellant   also  suggests  that  the  act  of  subornation          occurred because he  was suffering from opioid withdrawal.   That          suggestion  has no  credible support  in the  record.   We cannot          fault the district court for  failing to accept sheer speculation          in place of hard proof.                                          3          Once the sentencing  court has ruled against a  defendant on such          an issue, he  "faces an uphill battle."  Morillo, ___ F.3d at ___                                                   _______          [slip op. at 16].  In large part, the uphill nature of the battle          relates  to  the  standard  of  appellate  review:    "Whether  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).                    Here, the uphill battle is  fought on a slope too steep          for  appellant  to climb.    There  is  a  logical  inconsistency          between, on one hand, attempting to obstruct justice, and, on the          other hand,  accepting responsibility in  a timeous manner.   The          guidelines acknowledge this  inconsistency.  Only  "extraordinary          cases"   qualify  for   an  acceptance-of-responsibility   credit          following  an  enhancement  for  obstruction  of  justice.    See                                                                        ___          U.S.S.G.    3E1.1, comment. (n.  4) (Nov. 1992); see  also United                                                           ___  ____ ______          States v.  Olea, 987 F.2d 874, 878 (1st  Cir. 1993).  A defendant          ______     ____          must carry the burden of proving that his case is "extraordinary"          and,  thus, that  it  comes  within the  narrow  confines of  the          exception.  See Olea, 987 F.2d at 878.                      ___ ____                    Appellant  cannot scale  these heights.   The  district          judge  discerned  "nothing   in  this   case  to   make  it   the          extraordinary  case  required by  the guideline  application note          that would justify  a reduction for acceptance  of responsibility                                          4          in the base offense level, in the face of the court's  finding of          obstruction  of justice."  That conclusion  is fully supported by          the record.  Indeed, the only thing extraordinary about this case          is appellant's temerity in continuing to press for a credit under          section 3E1.1 notwithstanding his failed effort at subornation.                     Undaunted, appellant tries another tack.  Invoking  the          doctrine of United States v. Perez-Franco, 873 F.2d 455, 463 (1st                      _____________    ____________          Cir.  1989),  appellant  says that  the  lower  court erroneously          denied a section  3E1.1 adjustment based  on its perception  that          appellant failed to accept responsibility for uncharged "relevant                                                        _________          conduct".  We think that appellant's reliance on  Perez-Franco is                                                            ____________          mislaid.   There is a  meaningful distinction between a defendant          who  does  not  accept  responsibility  for  conduct   underlying          dismissed charges (the Perez-Franco scenario) and a defendant who                                 ____________          falsely denies, or  frivolously contests, the occurrence  of such          behavior.   See Olea, 987 F.2d at 878.   While a defendant is not                      ___ ____          required  affirmatively to admit  conduct beyond the  offenses of          conviction   in  order  to   obtain  credit  for   acceptance  of          responsibility, see  Perez-Franco, 873 F.2d  at 463, a  court may                          ___  ____________          properly  consider whether  a  defendant who  mendaciously denies          relevant   conduct  has  acted  in  a  manner  inconsistent  with          accepting  responsibility, see Olea,  987 F.2d  at 878;  see also                                     ___ ____                      ___ ____          U.S.S.G.  3E1.1,  comment.  (n.1(a))  (Nov. 1992).   The district          court  found, in  effect, that  this case  belongs to  the latter          genre.  The court's finding is supportable.  Thus, the assignment          of error fizzles.                                          5                                         III                                         III                    Among  other   things,   appellant   pled   guilty   to          purchasing, receiving,  and possessing  six handguns  after being          convicted of  a felony.  See 18 U.S.C.    922 (g)(1), 924 (a)(2).                                   ___          A  defendant charged  under  these  statutes  is  entitled  to  a          reduction  in his  base offense  level  if he  can prove  that he          possessed the  challenged firearms  "solely  for lawful  sporting          purposes or collection."  U.S.S.G.  2K2.1(b)(2) (Nov. 1992).  The          district court refused  to grant this  reduction.  Appellant  now          complains.                    A   defendant  bears  the   burden  of  proving   by  a          preponderance of the  evidence that he is entitled  to a downward          adjustment  under section   2K2.1(b)(2).   See  United States  v.                                                     ___  _____________          Cousens,  942  F.2d 800,  802  (1st Cir.  1992).   We  review the          _______          sentencing  court's  findings of  fact  on this  issue  for clear          error.  See id.   We have carefully sifted the  record, including                  ___ ___          appellant's changing  accounts of  why the  handguns were  in his          possession.  Given the implausibility of appellant's tale and the          dearth of corroborative  evidence, we find no clear  error in the          district  court's finding that appellant was  acting neither as a          sportsman nor  as a  collector in assembling  a small  arsenal of          handguns.   Hence,  we uphold  the court's  refusal to  grant the          requested reduction.                                          IV                                          IV                                          6                    We need go  no further.3  Shortly  after the sentencing          guidelines took effect, we wrote that:                    Sentencing    appeals    prosecuted   without                    discernible rhyme  or reason, in  the tenuous                    hope that lightning may strike,  ought not to                    be   dignified   with    exegetic   opinions,                    intricate  factual  synthesis,  or full-dress                    explications  of  accepted  legal principles.                    Assuredly, a criminal  defendant deserves his                    day in court;but we see no purpose in wasting                    overtaxed judicial  resources razing  castles                    in the air.          United States v. Ruiz-Garcia, 886  F.2d 474, 477 (1st Cir. 1989).          _____________    ___________          So it is here.                    The defendant's  conviction and sentence  are summarily                    The defendant's  conviction and sentence  are summarily                    _______________________________________________________          affirmed.  See 1st Cir. Loc. R. 27.1.          affirmed.  See 1st Cir. Loc. R. 27.1.          ________   _________________________                                        ____________________               3Appellant's  remaining arguments are  meritless and  do not          bear discussion.                                          7
