March 15, 1993    UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 92-2168

                  UNITED STATES OF AMERICA,

                          Appellee,

                              v.

                         SANTOS OLEA,

                    Defendant, Appellant.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF RHODE ISLAND

         [Hon. Ernest C. Torres, U.S. District Judge]
                                                    

                                         

                            Before

                    Boudin, Circuit Judge,
                                         

               Campbell, Senior Circuit Judge,
                                             

                    Stahl, Circuit Judge.
                                        

                                         

Damon  M. D'Ambrosio  with whom  Martin  D.  Harris and  Martin D.
                                                                  
Harris, Esquire, Ltd. were on brief for appellant.
                 
Margaret E.  Curran, Assistant United  States Attorney, with  whom
                   
Lincoln  C.  Almond, United  States  Attorney,  and Zechariah  Chafee,
                                                                 
Assistant United States Attorney, were on brief for the United States.

                                         

                        March 15, 1993
                                         

          CAMPBELL,  Senior  Circuit   Judge.    This  is   a
                                            

Sentencing  Guidelines  appeal, in  which defendant-appellant

Santos  Olea  contends that  the  sentencing  court erred  by

considering  as relevant  conduct quantities of  cocaine from

sales to which  he did  not plead guilty,  by increasing  his

sentence for  an obstruction of  justice, and by  denying his

request   to   reduce   the  sentence   for   acceptance   of

responsibility.  We affirm the sentence.

                              I.

          Santos Olea  was indicted  in January 1992  on four

counts: Count I charged  that on December 12, 1991,  Olea and

codefendant Alberto Gonzalez distributed cocaine in violation

of 21  U.S.C.   841(a)(1); Counts II and III charged that the

same  occurred on December 16 and December 20, 1991; Count IV

charged that  from a time  unknown until  December 20,  1991,

Olea   and  Gonzalez  conspired   to  distribute  cocaine  in

violation of 21  U.S.C.   846.   Olea  pleaded guilty in  the

United States District Court for the District of Rhode Island

to Count I  in return  for the dismissal  of the three  other

counts.1

          At sentencing  in September  1992, the  court heard

testimony  from  Detective Gannon  of  the  Providence Police

Department,  who presented  his view  of Olea's  role in  the

                    

1.  Codefendant  Gonzalez,  who  is  not a  party  here,  was
indicted  on the same four  counts and pleaded  guilty to the
first three.

                             -2-

three sales.   A  government informant, "Luis,"  arranged for

Gannon  to  make  an  undercover  purchase  of  cocaine  from

codefendants Olea  and Gonzalez at a  shopping center parking

lot in Providence. 

On  December 12,  1991, at  11:30 a.m.,  Olea drove  into the

parking  lot with Gonzalez in the  passenger seat, where they

met with Detective  Gannon inside the  car.  Luis  introduced

defendant  Santos Olea  as "Hector"  and Alberto  Gonzalez as

"Jose."   Gonzalez  handed  a package  of  cocaine to  Gannon

(weighing approximately  60 grams).   Both Olea  and Gonzalez

told him  to check it  out.   Gannon gave Gonzalez  $1,450 in

cash,  who counted it and handed  it to Olea who also counted

it.   When Gannon said he would want more cocaine later, Olea

said that Gannon could contact him through informant Luis.

          On December  16, 1991,  Gannon called Luis,  who in

turn  called "Hector," and the three men spoke on a three-way

telephone  line   with  Luis  acting   as  a  Spanish-English

interpreter.   Gannon said to Hector that he wanted "the same

thing,"  to which Hector replied, "I'm busy today.  I'll send

my  nephew."  Hector also said, "Same place, same price, same

quantity."    Gannon testified  that  the  voice of  "Hector"

sounded like the voice of defendant-appellant Olea, and that,

in  his opinion, he was speaking  with Olea.  Later that day,

codefendant Gonzalez arrived alone at the same parking lot at

the same time in the same  car, which was registered to Olea.

                             -3-

Gonzalez delivered 60.7  grams of cocaine  to Gannon for  the

same price.  Gonzalez then gave Gannon a phone number to call

for more cocaine.  The number  was listed to the same address

where Olea and Gonzalez  apparently lived and were eventually

arrested.

          Three more times in the next few days, Gannon spoke

to  "Hector" on  the telephone  in the  same manner:   Gannon

called Luis, who in turn established a three-way conversation

with "Hector."   Luis later  told Gannon that  he established

the phone contact with  "Hector" by dialing the  phone number

given  to  Gannon by  Gonzalez.   On  the third  call, Gannon

arranged for  a purchase of  double the previous  quantity of

cocaine.  Hector  told Gannon that  his "nephew" would  again

deliver it at the same place.  On December 20, Gonzalez again

came  to  the parking  lot in  Olea's  car and  completed the

transaction  for 123.65 grams.  The total weight of the three

sales was  245.20 grams.   Police subsequently  arrested Olea

and Gonzalez  at the  address where  the  telephone line  was

registered.

          Prior  to sentencing,  Olea wrote  a letter  to the

court apologizing for his involvement in the December 12 drug

sale,  to  which  he  had  pleaded  guilty.    However,  Olea

proclaimed  that  he  merely  gave Gonzalez  a  ride  to  the

shopping center  on December 12,  never touched the  money or

drugs, and  had  nothing  else to  do  with  Gonzalez's  drug

                             -4-

dealing.  Olea also strenuously denied any connection with or

knowledge  of the December 16 and December 20 sales, claiming

that Gonzalez  merely borrowed  his car without  telling Olea

what   he  was  doing.    The  letter  was  included  in  the

presentence report.

          After  hearing  the   evidence  at  the  sentencing

hearing and  considering Olea's letter and  objections to the

presentence  report, the  court  sentenced Olea.   The  court

judged Detective  Gannon to  be a  credible  witness, and  so

found  that  the  "Hector"  on  the  telephone  was  actually

defendant Olea and that Olea had actively participated in all

three drug sales.   Based upon the evidence, the  court found

that  the entire amount of cocaine in the three sales, 245.20

grams,  should  be  considered  in  calculating  Olea's  base

offense  level.  The court  also found that  Olea's letter to

the court contained material falsehoods regarding his role in

the transactions.  After  denying any downward adjustment for

a  minor role in the offense, increasing the offense level by

two points pursuant  to U.S.S.G.    3C1.1 for obstruction  of

justice, and denying a  two-point reduction for acceptance of

responsibility under  U.S.S.G.   3E1.1, the  court calculated

the offense level as  22.  With criminal history  category I,

the applicable sentencing  range was  41 to 51  months.   The

court sentenced  defendant to  42 months incarceration  and 5

years supervised  release, along  with other fines  and other

                             -5-

conditions  not  relevant  here.     Olea  appeals  from  his

sentence.

                             -6-

                             II.

          Appellant contends that the sentencing  court erred

in  three particulars:  (1) it  included as  relevant conduct

under U.S.S.G.   1B1.3 the quantities of cocaine involved  in

the  December 16  and December  20 sales;  (2) it  found that

appellant obstructed justice under  U.S.S.G.   3C1.1; and (3)

it denied appellant a reduction in sentence for acceptance of

responsibility under  U.S.S.G.   3E1.1.2   All of appellant's

three  arguments turn on the extent of his involvement in the

three cocaine sales.

          At the sentencing hearing, the court made a factual

finding  that  appellant was  an  active  participant in  the

December 12  sale, and was not  a mere driver  as he claimed.

The court also found that appellant arranged for the December

16 and  20 sales,  even though codefendant  Gonzalez actually

delivered the drugs to the parking lot.  The court's findings

rested  in large part  on the testimony  of Detective Gannon,

whom the court found to be a credible witness.  Assessment of

the  credibility  of  witnesses is  for  the  trier of  fact.

United States  v. Serrano, 870 F.2d 1, 5 (1st Cir. 1989).  We
                         

must accept these findings  unless clearly erroneous.  United
                                                             

States v. Gerante, 891 F.2d 364, 368 (1st Cir. 1989).
                 

                    

2.  All references to the United States Sentencing Guidelines
are  to the November 1,  1991, version, which  is the version
applicable to appellant's case.

                             -7-

          We  do  not find  clear  error.   Detective  Gannon

testified  that,  on  December  12, he  met  with  appellant,

identified as "Hector," and  that appellant spoke with Gannon

about the quality of the cocaine, counted the money, and told

Gannon to contact him  through Luis if he wanted  more drugs.

Gannon arranged for each  of the two later sales  by speaking

on  the  telephone  to  someone  who  answered  to  the  name

"Hector."   Each  call took  place in  the same  manner, with

Gannon  calling Luis,  who  in turn  established a  three-way

conference  call with  "Hector" by  dialing the  phone number

supplied  to Gannon by Gonzalez.  Gannon recognized the voice

of  "Hector" each time as  that of appellant  Olea.  "Hector"

told Gannon  to meet his "nephew" at the "same place."  After

such  phone calls,  the  later two  sales  took place,  under

circumstances quite  similar to  the first sale,  with Olea's

codefendant similarly involved, using  Olea's car.  The court

was  under   no  obligation   to  accept  Olea's   denial  of

involvement, which it could have found implausible in all the

circumstances. 

          We turn next to the district court's application of

U.S.S.G.    1B1.3(a),3  concerning  relevant conduct.   In  a

                    

3.  Section 1B1.3(a) provides:

          Unless otherwise specified, (i)  the base
          offense   level   where   the   guideline
          specifies  more  than  one  base  offense
          level,     (ii)      specific     offense
          characteristics    and    (iii)     cross

                             -8-

drug distribution case, quantities  of drugs not specified in

the count of conviction are to be included in determining the

offense  level if  they  were part  of  the same  "course  of

conduct  or part of a common scheme  or plan" as the count of

conviction.   U.S.S.G.    1B1.3  comment.  (backg'd.); United
                                                             

States v. DiIorio, 948 F.2d 1, 6 (1st Cir. 1991).  We believe
                 

that  the court  reasonably concluded,  based on  its finding

that appellant had participated in all three drug sales, that

the relevant amount of cocaine here was the total amount sold

in   the  three   separate   transactions,  the   later   two

transactions being  relevant even  though  appellant did  not

actually  appear in  person  at the  delivery  of the  drugs.

DiIorio, 948 F.2d at 7.  Finding no clear error, Gerante, 891
                                                        

F.2d  at 368,  we thus  reject appellant's  challenge to  the

court's determination of the relevant conduct.

                    

          references  in  Chapter  Two,   and  (iv)
          adjustments  in  Chapter Three,  shall be
          determined on the basis of the following:
          . . .
               (2)  solely with respect to offenses
                    of  a  character  for  which   
                    3D1.2(d)  [Groups   of  Closely
                    Related  Counts] would  require
                    grouping  of  multiple  counts,
                    all    acts    and    omissions
                    described    in    subdivisions
                    (1)(A)  and  (1)(B) above  that
                    were part of the same course of
                    conduct  or  common  scheme  or
                    plan   as    the   offense   of
                    conviction; 
          . . . .

                             -9-

          Appellant  also  challenges   the  obstruction   of

justice  enhancement  under  U.S.S.G.      3C1.1.    Such  an

enhancement  is  authorized,  inter  alia,  when  a defendant
                                         

provides  "materially  false   information  to  a   judge  or

magistrate"  or  "to a  probation  officer  in respect  to  a

presentence or other investigation  for the court."  U.S.S.G.

   3C1.1,  comment.  (n.3(f),  (h)).    The  enhancement  was

properly applied  here as appellant was  supportably found to

have misrepresented two material  facts in his letter to  the

district court  (which also  was considered by  the probation

officer  in  preparing the  presentence  report): he  falsely

portrayed  himself  as  "an  unwitting  dupe"  (the  district

court's words) in  the December 12  sale, and falsely  stated

that he had nothing whatsoever to do with the December 16 and

20 sales.  Cf.  United States v. Dunnigan, 61  U.S.L.W. 4180,
                                         

4183, 1993 U.S.  LEXIS 1779 (U.S.  Feb. 23, 1993)  (upholding

obstruction  of  justice  enhancement  under     3C1.1  where

defendant committed  perjury  at  trial);  United  States  v.
                                                         

Akitoye,  923  F.2d  221,   228-29  (1st  Cir.  1991)  (same;
       

defendant falsely  denied any  knowledge of drug  dealing and

characterized  codefendant "as  the villain  of the  piece").

While  the  counts  charging   these  later  two  sales  were

dismissed in connection  with Olea's plea to  Count I, Olea's

false assertions  that he had  not participated in  them were

"material" for the  purposes of U.S.S.G.   3C1.1 because they

                             -10-

"would tend to  influence or affect"  the calculation of  his

base offense level for his conviction on Count I.  U.S.S.G.  

3C1.1, comment.  (n.5).   The sentencing  court did  not err,

therefore,  in adding a two-level enhancement for obstruction

of justice.

          Finally, we  turn to  appellant's challenge  to the

court's refusal to grant  a two-level decrease for acceptance

of responsibility.   Appellant contends that  he was entitled

to such a decrease because he pleaded guilty to and expressed

some  remorse for his crime  under Count I.   But a reduction

for  acceptance of responsibility is not "a matter of right."

U.S.S.G.    3E1.1, comment.  (n.3); United States  v. O'Neil,
                                                            

936  F.2d 599, 599 (1st Cir. 1991).  Except in "extraordinary

cases," "[c]onduct resulting in  an enhancement under   3C1.1

(Obstructing  or  Impeding  the  Administration  of  Justice)

ordinarily indicates  that  the defendant  has  not  accepted

responsibility for his criminal conduct . .  . ."  U.S.S.G.  

3E1.1, comment. (n.4); United States v. Aymelek, 926 F.2d 64,
                                               

69  (1st   Cir.  1991).    The   district  court  justifiably

determined that this was not the extraordinary case.  

          Appellant  argues that  the  court improperly  gave

weight to  his statements denying any  responsibility for the

two  later drug  sales  that were  charged  in the  dismissed

counts.   It is true that, under our precedent, appellant was

not required to have shown remorse for the dismissed charges.

                             -11-

United States v.  Perez-Franco, 873 F.2d  455, 463 (1st  Cir.
                              

1989)  ("[A] defendant  who has  made  a plea  agreement must

accept responsibility  solely for the  counts to which  he is

pleading  guilty.");  see  also  O'Neil,  936  F.2d  at  599.
                                       

However,  the district court did  not base its  denial of the

acceptance of responsibility decrease solely upon defendant's

statements relative to  the dismissed charges.  It noted that

he had also lied in  asserting that he had only a  minor role

in the December 12  sale.  His refusal to  accept appropriate

responsibility  for that  sale,  to which  he pleaded,  alone

warranted a  finding that  he did not  accept responsibility.

Moreover, the  court's supported  finding that appellant  had

lied  when denying  involvement in the  two later  sales took

appellant  well beyond  the Perez-Franco  safe harbor,  which
                                        

allows  a  defendant  to  remain  silent  as  to the  conduct

contained  in  a dismissed  charge  but does  not  sanction a

defendant's  giving of materially  false information relative

                             -12-

thereto.4  There was no error in the court's  refusal to find

that Olea had accepted responsibility.

                             III.

          Finding  no error  in  any of  the court's  rulings

below, we affirm appellant's sentence.

          Affirmed.  
                  

                    

4.  While this  proceeding is  not controlled by  the current
Application  Note  1(a)  to  section  3E1.1,  that  note  now
articulates the  distinction we make.  It reads, in pertinent
part:

          Note  that a defendant is not required to
          volunteer,   or    affirmatively   admit,
          relevant  conduct  beyond the  offense of
          conviction in order to obtain a reduction
          under  subsection (a).   A  defendant may
          remain  silent  in  respect  to  relevant
          conduct beyond the offense  of conviction
          without affecting his ability to obtain a
          reduction    under    this    subsection.
          However, a defendant who  falsely denies,
          or frivolously contests, relevant conduct
          that the court determines  to be true has
          acted  in  a  manner   inconsistent  with
          acceptance of responsibility[.]

U.S.S.G.   3E1.1,  comment. (n.1(a))  (as amended,  effective
Nov.  1, 1992).  The  district court here  indicated that had
defendant  said nothing  about  the later  sales, instead  of
falsely denying all involvement,  it would have been prepared
to  grant  the  decrease  for  acceptance  of  responsibility
(assuming truthfulness as to Count I). 

                             -13-
