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

appellant.
F. Mark Terison, Assistant
________________
P. McCloskey,
_____________

United

States

United States Attorney, with whom

Attorney,

and

George T. Dilwor
__________________

Assistant United States Attorney, were on brief for appellee.

____________________

June 25, 1996

____________________

STAHL, Circuit Judge.

Defendant-appellant

Melvin

STAHL, Circuit Judge.

_____________

B.

Lagasse,

Jr.,

conspiracy and

Lagasse

guilty

was sentenced to

now appeals

enhancement

pleaded

to

of

drug

264 months'

three aspects of

for possession

trafficking

incarceration.

his sentence:

a dangerous

(1) an

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

portions of

the

accept

the

facts

found

in

the

uncontested

the Presentence Investigation Report ("PSR") and

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

Agency ("MDEA")

summer of 1994, the

began investigating a crack

the Lewiston/Auburn

area.

the drug

suppliers, Raul

operated

out

Guzman,

Toni

Martinez

of

Baez, Jesus Baez

Appellant

and Angel

Massachusetts,

Lemieux Naftali

the

cocaine ring in

The investigation revealed

Lawrence,

transported

distribution.

Maine Drug Enforcement

("Naftali")

drugs

to

and

and

Maine

Melvin Lagasse

that

that

Baez,

Jose

Jose Mejia-

for

ultimate

("Lagasse"),

his

brother, Michael Lagasse, and three others, Marlane Driggers,

-22

Lisa Booth and Thomas Booth, would also on occasion transport

the

crack cocaine ("crack") to Maine and sell it in Lewiston

and Auburn.

From

purchased

July

about 100

through early

bags

of crack

September

per

1994, Lagasse

week from

various

persons including

Mejia-Martinez.

Naftali, Jesus Baez, Guzman,

Lagasse

procured

distribution and for personal

use.

the

Driggers and

drug

He continued to

both

for

use and

sell crack until December 7, 1994, when he was arrested while

in possession of almost 100 grams of crack.

On

December 20,

indictment charging

1994,

in Count

the Baezes, Driggers, Michael

to distribute

and to

a grand

jury returned

I that Lagasse

conspired with

Lagasse, the Booths and others

possess with

intent to

distribute in

excess of fifty grams of cocaine base (i.e., crack).

____

pleaded

guilty to that count

against him were dismissed.

B. Sentencing
______________

an

Lagasse

in February 1995; other counts

The

district court

September 14, 1995,

the testimony of

conclusion

of

weapon

an

hearing on

and heard

nine witnesses, including Lagasse.

the hearing,

upward adjustment

was

sentencing

during which it took evidence

findings and rulings which

that

held a

the

court

made the

are at issue in this

for

applicable because

-33

possession

Lagasse

was

of a

At the

following

appeal: (1)

dangerous

involved in

knife-point

Guzman;

robbery

(2) that

justice was

an

money

upward adjustment

for, and

authorities; and

acceptance of

smuggled

to prevent his

(3)

that a

from Naftali

and

for obstruction

of

assaulted a witness

further cooperation

downward adjustment

responsibility was not warranted

Lagasse obstructed

drugs

and

appropriate because Lagasse

in retaliation

with

of drugs

to

justice and because he

him

in

prison

sentencing.

II.
II.
___

Discussion
Discussion

for

both because

attempted to have

where he

was

awaiting

__________

A. Standard of Review
______________________

We

review

sentencing

court's

factual

determinations, which must be found by a preponderance of the

evidence, for

clear error.

United States
_____________

F.3d 522, 535 (1st Cir. 1995).

including

novo.
____

the applicability

v. McCarthy,
________

We review questions of

of

a sentencing

77

law,

guideline, de
__

Id.
___

B. Enhancement for Possession of a Dangerous Weapon

____________________________________________________

Lagasse challenges the district court's application

of

a dangerous

pertinent

weapon

sentencing

provides for a

enhancement to

guideline,

his

U.S.S.G.

two-level increase in the

sentence.

The

2D1.1(b)(1),

base offense level

-44

"[i]f

possessed."1

dangerous

weapon

Application note

(including

firearm)

was

3 to that guideline provides,

in part:

The

enhancement

for

weapon

possession

reflects the increased danger of violence

when

drug

traffickers possess

The adjustment should

weapon was present,

weapons.

be applied if

the

unless it is clearly

improbable that the weapon

was connected

with the offense.

U.S.S.G.

2D1.1, comment. (n.3).

At

the

coconspirator,

September

the

sentencing

testified

8, 1994 (a

received crack from her.

his

requests

continued to use

morning hours

throughout

point within the

charged conspiracy),

rebuffed

that,

hearing,

Lagasse

Naftali,

the

repeatedly requested

more of

rather than sell

it.

of September 9, Lagasse

of

indictment period of

Naftali stated that she

for

day

the

drug

Later, in

and

eventually

because

he

the early

returned to Naftali's

apartment and requested more crack from her and her roommate,

Guzman.

Both refused,

however, Lagasse

and Lagasse

forcibly reentered

left.

Seconds

later,

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

indicated, all guideline

citations are

____________________

1.

Unless otherwise

to the

November 1994 United

States Sentencing

Guidelines Manual.

-55

Commission's

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:

observe

first

of

all

that the

circumstances here are

rather unique

the

this

application

of

in

adjustment

because here the possession of the weapon

was

not

in

furtherance

conspiracy in the

of

the

drug

sense that Weaver with

Lagasse's connivance was trying

to steal

from the conspiracy.

Nevertheless,

[Application note

3]

points

out

that

adjustment

is

the

the

when

weapons.

I certainly
the

weapon
they

unusual

case that

here

fit

the definition

Note

call

of

possess

to

this

were

there

And I conclude although

and

the

attribute Weaver's

because

jointly.3
an

drug traffickers

of

defendant

for

increased danger

violence

possession

reason

it is

the circumstances

for

of Application
the

two

level

increase.

We

begin our analysis

basic principles underlying the

weapon enhancement.

certain

shown.

nexus between

See
___

with a brief

review of the

application of the dangerous

For the enhancement to

the weapon

and the

be warranted, a

offense must

United States v. Pineda, 981 F.2d

_____________
______

be

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

after

same day, police arrested

discovering

large

quantities

of

Naftali and Guzman

crack

in

their

automobile.

3.

On

appeal,

Lagasse

does

not

contest

the

court's

attribution of the knife possession to him.

-66

offense.

United States v. Castillo, 979 F.2d 8, 10 (1st Cir.

_____________
________

1992); see also,

___ ____

(1st

Cir.

United States
_____________

1990).

Rather,

v. Ruiz, 905
____

for

the

F.2d 499,

purposes

of

507

the

enhancement, we have repeatedly recognized that

"when

the

weapon's

readily available to
participants

location

makes

protect either

themselves

during

it
the
the

commission of the illegal activity or the

drugs

and

cash

involved

business,

there

will

evidence

to connect

in
be

the

drug

sufficient

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

1992)), cert.
_____

denied, 115
______

947, 1322

(1st Cir.

(1995).

In other

words, the presence of a

at some point during

S. Ct.

dangerous weapon

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

defendant

"special

that

may

presence of a weapon

avoid the

circumstances"

the

weapon

was

connected

Ovalle-Marques,
______________

"special

circumstance"

commentary:

"the

enhancement only

rendering

offense.

is established, the

it "clearly

to

the

drug

36 F.3d at 224.

is

by demonstrating

provided

enhancement would

improbable"

trafficking

An example

by

not be

the

of a

guideline

applied if

the

defendant, arrested at his residence, had an unloaded hunting

rifle in the closet."

U.S.S.G.

-77

2D1.1, comment. (n.3).

Here,

the

unassailable and

during

robbing

money.

application

period, Lagasse

coconspirator,4 at knife

What the

factual
_______

Lagasse does not challenge

the indictment

of a

district court's

findings are

them on appeal:

was involved

point, of

parties do dispute is the

in the

drugs and

district court's

of the guidelines to these facts.

While we give

"due deference" to

U.S.C.

the court's exercise

in this regard,

3742(e), if its application is contrary

we must correct the error.

18

to the law,

See United States v. Grandmaison,

___ _____________
___________

77 F.3d 55, 560 (1st Cir. 1996).

The government concedes that

rob fellow

conspirators, but

the knife was used to

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

government emphasizes

more crack

Lagasse

to

sell.

used the knife on

The

the very premises

conspiracy was carried out and

the conspiracy"

the

from which the

"during the active course

of

and concludes that thus, it was not "clearly

improbable" that

Finally,

that

the knife was connected

government

relies

on

the

with that offense.

expressed

policy

concern behind

the weapon enhancement: the

increased danger

____________________

4.

Although

Guzman and Naftali

in the indictment as
in

the prosecution's

were not specifically named

coconspirators, they were so identified

version of

accepted when pleading guilty.

-88

the events,

which Lagasse

of violence when drug

traffickers possess weapons.

U.S.S.G.

2D1.1, comment. (n.3).

Lagasse responds

and money

that the armed

robbery of

from a coconspirator was clearly

drugs

unrelated to the

charge to which he pleaded guilty: conspiracy to possess with

intent to distribute crack.

adverse

to the

cannot

fairly be

conspiracy's interests,

"connected"

meaning of the guideline.

The

with the

and thus

offense within

observation that

drug trafficking activity, on

misses

recognized that the

the

the knife

the

We agree.

government's

"present" during

this case,

He contends that the robbery was

mark.

It

"presence" of

is

true

a weapon at

the

knife was

the facts of

that

we

the site

have

of

drug

trafficking activity

supports

United States v. Almonte, 952

______________
_______

enhancement.

F.2d 20, 25

cert. denied, 503 U.S. 1010 (1992).

_____ ______

have invariably

the

observed that the

See
___

(1st Cir. 1991),

In addition, however, we

weapon's presence implied

its purpose to "protect" some aspect of the drug operation --

e.g., the drugs

____

actually

or the

participants -- even

used to perpetrate

Marquez, 36 F.3d at
_______

the crime.

if it was

See, e.g., Ovalle___ ____ _______

224; Pineda, 981 F.2d at

______

574; Castillo,
________

979 F.2d at 11; United States v. Preakos, 907 F.2d

_____________
_______

Cir.

1990);

Ruiz,
____

905 F.2d

at

508.

not

Thus, our

7, 9 (1st

caselaw

establishes only that a weapon's presence during the criminal

activity

will trigger the enhancement when the circumstances

-99

permit

an

inference that

the weapon

served to

protect or

otherwise facilitate the offense conduct.

Here, in

was

entirely

contrast, the

adverse

to

the

weapon played a

"interests"

of

role that

the

crime.

Lagasse's

offense, to

which the

enhancement

attached, was

criminal conspiracy -- an agreement with others to

unlawful

conduct.

As

the district

robbery was "not in furtherance of the

in

effect,

theft

quintessentially

from

the

antithetical to

court

observed,

the

drug conspiracy" but,

conspiracy

the

engage in

--

offense.5

an

act

The facts

found by the district court indisputably negate the inference

that normally

arises from

drug trafficking

drug

activity.

possession or

the presence

of a

Had Lagasse been

distribution crime

weapon during

convicted of a

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

of

the

is no evidence in the record that Lagasse sold any

drugs

suggestion

taken

that he

from

Guzman

shared some

(although

of them

with

there

is

his brother,

Michael Lagasse).

6.

The government incorrectly

previous version of

possessed

increase by 2 levels."

here, a

2D1.1(b), which contained the following

underscored language:
firearm) was

cites, as applicable

"If

a dangerous weapon

during commission
______ __________

of
__

(including a
the
___

See Amendment 394, U.S.S.G.

___

offense,
_______
App. C.

The Sentencing Commission deleted that language by amendment,

effective November 1, 1991.

Id.
___

-1010

enhancement.

See
___

(indicating that

somehow

U.S.S.G.

the enhancement

"connected" with

unpersuaded by the

underlying

2D1.1,

the

applies if the

offense).

concern about

the increased

to cover every instance

possesses a weapon.

weapon

(n.3)

weapon was

Moreover, we

government's reliance on

when drug traffickers possess weapons.

intended

comment.

are

the guideline's

danger

of violence

The guideline

is not

in which a drug trafficker

Rather, the enhancement applies when the

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

accordingly.

justice

Sentencing Guideline

defendant willfully

adjusting his

sentence

3C1.1 provides:

"If the

obstructed or impeded,

obstruct or impede, the

investigation,

and in

or attempted

to

administration of justice during the

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

-1111

individuals named Scott and

Patty Poulin were "the

rats" in

the operation and that their cooperation with authorities was

the

cause

of the

arrests.

Kennebec County jail

corrections officer

testified that, on

at the

the morning of

May

22, 1995 -- a time after which Lagasse had pleaded guilty but

before his

the jail

sentencing -- Lagasse approached

recreation

further testified

yard

and punched

that Poulin

Scott Poulin in

him.

The

was groggy and

officer

bleeding from

the mouth and nose, and was sent to the prison infirmary.

agent

Poulin

with the MDEA testified

about the assault,

"sucker punched" him and

is for being a rat.

From this

Lagasse struck

time when

that, in July

and Poulin told

An

1995, he asked

him that Lagasse

stated, "I know you're a

rat, this

You better . . . stop talking."7

evidence, the district court

Poulin because of Poulin's

these matters

were still

found that

cooperation "at a

pending" and thus,

the

obstruction of justice enhancement was warranted.

Lagasse

improper

contends

because,

that

the

while

he

retaliation for being a

obstruction

may

have

On appeal,

enhancement

struck

Poulin

"rat," there could not have

was

in

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

He

further stated

cooperating

with the

(Lagasse) was the

grand jury.

that

he did

that he never hit Poulin.

not

authorities, and

know that

Poulin

pointed out

one who testified against Poulin

was

that he
before a

Lagasse does not press this position on appeal.

-1212

to the sentencing determination

involved with

and, in fact, was in

that disposition.

Lagasse is

no way

wrong for

two

reasons.

First,

the district

court supportably

Lagasse

knew of

Poulin's cooperation

prevent

further

similar

conduct.

found that

and assaulted

Although

him to

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

Baez,

indicted as

two

believed

of

that

reasonable

Lagasse's

Poulin was

inference

thought that

coconspirator of

codefendants.

the

from

"rat"

the

Raul and

Because

in the

evidence

his sentence.

is

that

that

Lagasse's

assault

the court

clearly

further cooperation in the

Lagasse

of this

talking," we

finding

that

to prevent

any

proceedings against Lagasse.

The

on Poulin

was

erred in

such as drug

In light

evidence, especially Lagasse's warning to "stop

cannot say

Lagasse

operation,

Poulin could provide information,

quantity, that would affect

Jesus

intended

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.
___

United States v.
______________

Cotts, 14
_____

3C1.1, comment. (n.3(a)); see

___

F.3d 300,

307 (7th

Cir. 1994)

-1313

(finding enhancement proper

where the

defendant plotted

to

kill a fictional informant).

Second,

finding that

even

if

the

evidence

the assault was intended to

only

supported a

retaliate for past

cooperation (and not to prevent future acts), the obstruction

of

justice enhancement

note

3(i)

enhancement

to

the

applies

1501-1516."

would be

obstruction guideline

for "conduct

U.S.S.G.

1513(b)

injury

intent to

information relating to

Application

states

prohibited

3C1.1, comment.

turn, 18 U.S.C.

with the

appropriate.

by

that

the

18 U.S.C.

(n.3(i)).

In

prohibits the infliction of bodily

retaliate

for the

a federal offense.

providing of

Here, there was

ample evidence that Lagasse injured Poulin in retaliation for

his past cooperation.

obstruction

This conduct falls squarely within the

of justice guideline.

See Cotts, 14 F.3d at 308

___ _____

(holding that

obstruction

the guideline's reference to

enhancement even

where the

1513 allows an

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

pleaded

for

guilty

acceptance

of

within months

responsibility

of

his

arrest and

before a grand jury on the government's behalf.

-1414

because

he

appeared

Although the

court refused to grant the adjustment,

into

it did expressly take

account Lagasse's guilty plea when fixing a sentence in

the

middle of

government's

the applicable

recommendation

guideline range,

for

the

maximum

despite the

imprisonment

term.

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

see also United

___ ____ ______

States
______

v.

of right."

Royer,
_____

(explaining

that "a

responsibility

every

will

and

constitute

F.2d

29-30

automatically

pleads guilty").

to

"significant

(1st

evidence"

Cir.

be conferred

the offense

of

of

upon

pleading guilty

conduct

acceptance

may be outweighed

that is inconsistent."

1990)

for acceptance

While

truthfully admitting

responsibility, "this evidence

of the defendant

28,

downward adjustment

is not

accused who

before trial

895

Id. comment. (n.3);

___

U.S.S.G.

of

by conduct

3E1.1,

comment. (n.3).

Only in

"extraordinary cases" will

the adjustment

be appropriate where, as here, the defendant has received

obstruction of justice enhancement

comment. (n.4).

pursuant to

3E1.1.

an

Id.
___

Other than referring to his challenge to the

obstruction of justice enhancement, Lagasse does not indicate

-1515

how his case

acceptance

might be

"extraordinary" enough

of responsibility adjustment.

to allow

the

Because Lagasse's

case is "ordinary" in that the obstructive conduct "indicates

that the

defendant has

not accepted responsibility

criminal

conduct," id.,
___

proper.

See United States v. Wheelwright, 918 F.2d 226, 229

___ _____________
___________

the

denial of

for his

the adjustment

was

(1st Cir. 1990).

The district court alternatively found that Lagasse

did

not deserve the

acceptance of responsibility adjustment

because he was involved

prison.

At

the sentencing hearing, an MDEA

that on March

Center

to

in an attempt to smuggle

25, 1995,

investigate

he went to

an

agent testified

the Maine

anonymous

tip

drugs into

Correctional

that

Lagasse's

girlfriend, Grace

into

the

Sheloske, would

prison that

prison,

she told

Lagasse

and eventually

small

the

amount of crack.

day.

When

agent that

attempt to

smuggle drugs

Sheloske arrived

she

admitted that

was there

she was

at the

to

visit

concealing a

Sheloske refused to identify to whom

she intended to give the drugs, stating that she did not want

to

"get him

testified

in trouble."

that,

just

before

interviewed Jeffrey Rumore

prison laundry -- who

deputy United

the

States Marshal

sentencing

-- an inmate

hearing,

who worked for

told him that Lagasse had

he

the

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

was

plan,

this testimony,

Rumore who tipped

the court found

off the authorities

that it

of the smuggling

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

tried to feed his habit,"

to

an admitted drug

combined with the Poulin

addict

assault,

deny him any credit for acceptance of responsibility.

We

must disagree.

"[I]t

is primarily

decide whether or not

for

his

conduct

up

to the

district court

the appellant accepted

`with

candor

and

to

responsibility

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

to accept

responsibility for

conviction,

conduct --

the

it

consider

conduct beyond the

defendant's

offense of

post-offense

including illegal drug activity -- as evidence of

sincerity

offense.

may

a defendant

of

his

claimed remorse

for

the

convicted

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

Byrd, 76
____

mail theft offense); accord

______

F.3d 194, 196-97

While such conduct does

(8th Cir. 1996)

United States v.
_____________

(listing cases).

not compel the denial of

-1717

credit for

acceptance of

responsibility, O'Neil,
______

court

reasonably

could

involvement

in the

prison

inconsistent

was

conclude

attempted

negating

the applicability

States v.
______

Olvera, 954 F.2d

______

here

smuggling of

with

court permissibly found that

936 F.2d at

his

of the

788, 793

claimed

that

600, the

Lagasse's

drugs into

the

remorse,

thus

adjustment.

See United
___ ______

(2d Cir.)

(sentencing

the smuggling of marijuana into

prison "was inconsistent with acceptance of responsibility"),

cert. denied, 505 U.S. 1211 (1992).8

_____ ______

In

grant

sum, we find no error in the court's refusal to

Lagasse the benefit of an adjustment for acceptance of

responsibility.

____________________

8.

We note that the guideline commentary lists the following

considerations in favor
adjustment

that,

termination

or

here,

of the acceptance of
weigh

withdrawal

against
from

responsibility

Lagasse:

criminal

voluntary

conduct

or

associations,

and

post-offense

including drug treatment.

U.S.S.G.

rehabilitative

efforts

3E1.1, comment. (n.1(b)

& (g)).

-1818

III.
III.
____

Conclusion
Conclusion
__________

We affirm the district court's sentence enhancement

______

for

obstruction

of justice

acceptance of responsibility.

the

application of

sentence

opinion.

and remand
______

the

and

its denial

Because

credit for

of the legal error in

weapon enhancement,

for resentencing

of

we vacate
______

consistent with

the

this

-1919