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USCA1 Opinion

February 14, 1994

[NOT FOR PUBLICATION]


[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1923
UNITED STATES OF AMERICA,
Appellee,
v.
TIRSO BOLIVAR GONZALEZ AVALO,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
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Before
Torruella, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Selya, Circuit Judge.
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Christopher W. Dilworth on brief for appellant.


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Jay P. McCloskey, United States Attorney, and Michael M.
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DuBose, Assistant United States Attorney, on brief for the United
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States.
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Per Curiam.
Per Curiam.
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conviction of
(Gonzalez),

This

criminal appeal

arises out

defendant-appellant, Tirso Bolivar


on two counts of

of the

Gonzalez Avalo

conspiracy to possess a controlled

substance, cocaine, with intent to


841(a)(1), 841(b)(1)(C), 846.
found appellant
incarcerative
also

guilty, the
sentence.

district court

of

See 21 U.S.C.
___

After a trial in which


imposed a

Appellant contests the

challenges aspects

sentence.

distribute it.

the

computations

a jury

97-month

conviction and
leading

to

his

We affirm.
I
I
Appellant assails his

of

alleged

verdict,

evidentiary

insufficiency.

a reviewing court

rational jury could

have found that the

Echeverri, 982 F.2d


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ground

guilty

record, drawing

favor of the verdict, to

each element of the crime beyond a


States v.
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Following

must scrutinize the

all reasonable inferences in


if a

conviction solely on the

ascertain

government proved

reasonable doubt.

675, 677 (1st Cir.

See United
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1993); United
______

States v. Ortiz, 966 F.2d 707, 711 (1st Cir. 1992), cert. denied,
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_____
_____ ______
113 S. Ct. 1005 (1993).
proof

by

either

The government can satisfy its burden of

direct

or

circumstantial

evidence.

See
___

Echeverri, 982 F.2d at 679; United States v. Rivera-Santiago, 872


_________
_____________
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F.2d 1073,

1079 (1st Cir.),

cert. denied, 492 U.S.


_____ ______

910 (1989).

To sustain a conviction, a reviewing court need not conclude that


only

guilty verdict

enough that

the jury's

could

appropriately be

determination draws its

plausible reading of the record.

reached;

it is

essence from

See Echeverri, 982 F.2d at 677;

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3

Ortiz, 966 F.2d at 711.


_____

Using these guideposts, the quantum of evidence adduced


here

is

more

government's

than

witnesses,

Appellant virtually
witnesses

and

If

the

Gonzalez was

jury

believed

guilty, pure

and simple.

poor memories, character

selfish

has some basis

reasons

for

flaws, drug

finger-pointing.

in the record,

but it

This

was fully aired

during cross-examination and in defense counsel's summation.


jury obviously believed the evidence was reliable.
matter:

credibility

province, see
___
1991), cert.
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claim

of

the

concedes this point, but argues that the key

against him had

addictions,
argument

adequate.

calls

are

within

the

The

That ends the

jury's

exclusive

United Sates v. David, 940 F.2d 722, 730 (1st Cir.


____________
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denied, 112 S.
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evidentiary

Ct. 2301 (1992), and,

insufficiency

credibility cannot succeed.

that

rests

therefore, a
upon

witness

See, e.g., United States v. Serrano,


___ ____ _____________
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870 F.2d 1, 5 (1st Cir. 1989).

So it is here.

II
II
Appellant's
fronts.

attack

sentence

advances

on two

Neither invasion succeeds.


1.
1.

district

Role in the Offense.


Role in the Offense.
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court erred

criminal activity.

in its

certain

determines

is

that the

his role

in the

3B1.1(c) (Nov. 1992) (providing

assuming managerial responsibilities in

criminal endeavors).
this provision

Appellant claims

determination of

See U.S.S.G.
___

a two-level increase for

under

on his

Hiking a defendant's offense level

justified

that the offense(s)

if

the

court

supportably

of conviction involved

at least

two participants, and


one of them.

that the defendant exercised

See United States


___ _____________

v. Fuller, 897 F.2d


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control over

1217, 1220

(1st Cir. 1990).

"The government must bear the burden of proving

that

role-in-the-offense adjustment

an

upward

is

warranted."

United Sates v. Morillo, 8 F.3d 864, 872 (1st Cir. 1993).


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In

his brief,

appellant says

that

the increase

was

unjustified, not because of a


government's
10.

witnesses were not credible."

That suggestion

principal arbiter of
the

lack of evidence, but because "the

goes nowhere.

Just

as the

jury is

witness credibility at trial,

principal arbiter of credibility at

States
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Appellant's Brief at

v. St. Cyr, 977 F.2d


________

the judge is

sentencing.

698, 706 (1st

See United
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Cir. 1992) (holding

that credibility determinations during the sentencing phase


within

the domain

of the

the

district court").

"lie

Consequently, the

claim of error cannot prosper.


2.
2.
posits

Acceptance of Responsibility.
Acceptance of Responsibility.
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that the

offense level

district court

for acceptance

3E1.1 (Nov. 1992).


A
entitlement
downward

adjustments for

Cir. 1990).

carry
in

the

acceptance

lower his

See
___

the

burden

U.S.S.G.

offense
of

of

level,

Where,

proving

including

responsibility.

United States v. Bradley, 917


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ruled against a defendant on


an uphill battle."

of responsibility.

must

reductions

Morillo, 8 F.3d at 871;


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606 (1st

failing to

We do not agree.

defendant
to

erred in

Finally, appellant

as here, the sentencing

See
___

F.2d 601,

court has

such an issue, the defendant "faces

Morillo, 8 F.3d
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5

at 871.

It

is, after all,

firmly settled
a

that "[w]hether a defendant 'clearly demonstrates

recognition

responsibility'
court's
will not

and
is

affirmative
a

acceptance

fact-dominated issue,

decision to withhold

a reduction

of

and

personal

the

district

in the

offense level

be overturned unless clearly erroneous."

United States
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v. Royer, 895 F.2d 28, 29 (1st Cir. 1990) (citation omitted).


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We

have

read

the

record

compelling evidence that appellant


timely manner.
his innocence
court can

throughout the

find

no

There is

in

no way

cold appellate record, can secondheard the defendant).

Cepeda, 907 F.2d 11, 11 (1st


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and we see none

sentencing court's refusal

a sentencing

of responsibility

skeptical.1

judge (who saw and

Absent clear error

be sure,

E1.1, comment. (n.2), but it is

the court for being

e.g., United States v.


____ _____________

To

timely acceptance

from the vista of a

guess the trial

and

accepted responsibility in

trial.

such circumstances, see U.S.S.G.


___

that we,

care,

To the contrary he pled not guilty and maintained

still find a

hard to fault

with

to reduce

for acceptance of responsibility.

here

we must

See,
___

Cir. 1990).

uphold the

appellant's offense

level

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1Appellant argues that he would have accepted responsibility


earlier, but for his uncertainty about the drug quantities that
would be attributed to him.
There are two problems with this
asseveration. First, there is nothing in the record to suggest
that this is any more than post-hoc rationalization.
Second,
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even if it were to be given some credence, we have characterized
an offer to plead guilty "subject to" an agreement on drug
quantity
as "too problematic" to serve as the functional
equivalent of acceptance of responsibility. Morillo, 8 F.3d at
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872.
6

The defendant's conviction and sentence are summarily


The defendant's conviction and sentence are summarily
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affirmed.
affirmed.
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See 1st Cir. R. 27.1.


See 1st Cir. R. 27.1.
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