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USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2205
UNITED STATES,
Appellee,
v.
LUIS A. COLON-RIVERA,
Defendant, Appellant.
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No. 92-2206
UNITED STATES,
Appellee,
v.
JOSE ALBERTO ACEVEDO-GUZMAN,
Defendant, Appellant.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Torruella and Boudin, Circuit Judges.
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Gustavo Adolfo Del Toro on brief for appellant Luis A. Colon-
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Rivera.
H. Manuel Hernandez on brief for appellant Jose A. Acevedo-
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Guzman.
Charles E. Fitzwilliam, United States Attorney, Jose A. Quiles-
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Espinosa, Senior Litigation Counsel, and Edwin O. Vazquez, Assistant
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United States Attorney, on brief for appellee.
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September 9, 1993
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Per Curiam. Appellants Jose Alberto Acevedo-
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Guzman ("Acevedo") and Luis A. Colon-Rivera ("Colon") each
pled guilty to one count of committing bank robbery, see 18
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U.S.C. 2113(a), 2113(d), and one count of using firearms
during the commission of such crime. See 18 U.S.C.
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924(c)(1)(3). Acevedo and Colon challenge their respective
sentences on grounds that the sentencing judge committed
various errors in applying the Sentencing Guidelines to
their cases. We affirm.
I
Background
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In the presentence report and at the change of
plea hearing, the United States proffered the following
evidence of the appellants' guilt. On January 3, 1992, at
approximately 9:30 a.m., Colon and Acevedo arrived at the
doors of the Banco Santander de Puerto Rico, Laguna Gardens
Branch. Upon encountering a bank security guard, Colon
struck the security guard on the head with a revolver and
dragged him inside the bank. Colon and Acevedo, armed and
wearing masks, then entered the bank, along with two other
perpetrators, and announced a bank robbery. Colon and
Acevedo jumped over the tellers' counter and proceeded to
take money from the bank tellers' drawers. During this time,
Acevedo instructed Colon as to which money be taken in order
to avoid dye packs. He also struck one of the tellers in
the back with his weapon, threatened to kill all of them,
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and asked the tellers where the bank manager was.
Thereafter, Acevedo went to the manager's office, grabbed
the manager by the hair, and asked for the combination to
the vault, from where he took almost $30,000.
After leaving the bank, the four men attempted to
make their get-away in a Mitsubishi Mirage, which Acevedo
had helped to steal two days earlier. Their attempt was
quickly stymied when a dye pack exploded inside the car,
forcing them to abandon it. They then carjacked a Chevrolet
Cavalier station wagon from a passing motorist, and headed
towards the San Jose lagoon. At the lagoon, they boarded a
small boat in an attempt to escape. Their escape route was
blocked by a police helicopter, whose pilot observed five
people on the vessel. Shots were fired at the helicopter
from the boat, and Colon, in particular, was observed firing
an AR-15 rifle at the helicopter. The boat then turned back
to the lagoon. Before surrendering himself, Colon was seen
shooting towards the police officers on the ground.
On June 22-23, 1992, the appellants each pled
guilty to both counts of the indictment. Acevedo was
sentenced to a term of 235 months on the first (bank
robbery) count, and a consecutive term of 60 months on the
second (firearms) count. In arriving at this amount, the
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sentencing judge determined that Acevedo had played a
leadership role in an offense involving five participants;
he therefore increased the offense level by four. See
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U.S.S.G. 3B1.1(a). He also found that Acevedo had not
accepted responsibility for his involvement in the offense,
and thus denied a two-level decrease. See U.S.S.G.
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3E1.1(a). Colon was sentenced to a term of 175 months
imprisonment on the first count, and 60 months as to the
second, to be served concurrently. In setting this
sentence, the judge awarded a seven-level increase after
finding that a revolver was discharged during the robbery,
see U.S.S.G. 2B3.1(b)(2)(A), and a two level increase
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after finding that Colon had recklessly created grave risks
to others in the course of fleeing from a law enforcement
officer. See U.S.S.G. 3C1.2.
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II
Acevedo
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Acevedo argues that the sentencing judge erred by
enhancing his offense level for his alleged leadership role
in the crime, and by declining to reduce his offense level
for his acceptance of responsibility. We disagree.
A. Leadership Role
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The sentencing judge found that Acevedo was an
"organizer or leader" of a criminal activity that involved
five or more participants, and imposed a four-level
enhancement, as authorized by U.S.S.G. 3B1.1(a).
Appellant attacks this enhancement on grounds that (1) he
had a co-equal role in the offense, and (2) there is
insufficient evidence to establish that the offense involved
five or more participants.
We find that the district court had ample evidence
to support its conclusion. See United States v. Wright, 873
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F.2d 437, 443 (1st Cir. 1989) (district court's application
of the "role in the offense" guidelines to the particular
facts of each case should, absent mistake of law, be
reviewed only for clear error). Acevedo's leadership was
demonstrated by his prominent role in orchestrating the
heist. See U.S.S.G. 3B1.1, Application Note 3 (in
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determining whether a defendant had a leadership or
organizational role within the meaning of this provision,
the court considers such factors as "the nature of
participation in the commission of the offense"). After
jumping over the tellers' counter with Colon, it was Acevedo
who gave orders to Colon as to which money to take in order
to avoid the dye pack. Acevedo engaged in other conduct
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critical to the enterprise that apparently no one else did,
such as procuring the get-away car, threatening to kill the
tellers, asking them for the bank manager, asking the bank
manager for the vault combination, and taking the money out
of the safe. See United States v. Fuller, 897 F.2d 1217,
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1220 (1st Cir. 1990) ( 3B1.1 enhancement applies if
defendant "exercised some degree of control over others
involved in the commission of the offense or he must have
been responsible for organizing others for the purpose of
carrying out the crime").
We also reject Acevedo's contention that there was
insufficient evidence for the sentencing judge to conclude
that there were five or more participants involved in the
offense. According to the record, the helicopter pilot who
intercepted the fleeing boat asserted that he observed five
individuals aboard it. Such evidence was properly
considered by the sentencing judge. See U.S.S.G. 6A1.3
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(sentencing court may consider all pertinent information
which has "sufficient indicia of reliability to support its
probable accuracy"). Furthermore, the judge's determination
as to its reliability is entitled to considerable deference.
See United States v. Bradley, 917 F.2d 601, 605 (1st Cir.
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1990).
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B. Acceptance of Responsibility
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We also find that the district court did not
clearly err in finding that Acevedo had not accepted
responsibility for his criminal conduct, and in refusing to
reduce his offense level by two. See United States v.
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Reyes, 927 F.2d 48, 50 (1st Cir. 1991) (denial of a downward
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adjustment for acceptance of responsibility reviewed for
clear error). The Sentencing Guidelines authorize trial
courts to grant a two-level reduction to a defendant's base
offense level only "[i]f the defendant clearly demonstrates
a recognition and affirmative acceptance of personal
responsibility for his criminal conduct." See U.S.S.G.
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3E1.1(a). Although Acevedo did enter a guilty plea, this
act alone does not entitle him to an adjustment as a matter
of right. See U.S.S.G. 3E1.1(c). Rather, a sentencing
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court considers a variety of factors in making this
determination. See Reyes, 927 F.2d at 51. A defendant
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presents significant evidence of his acceptance of
responsibility by -- in addition to entering a guilty plea -
- truthfully admitting, or not falsely denying, his
involvement in the offense and related conduct. See
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U.S.S.G. 3E1.1, Application Note 3. At his sentencing
hearing, however, Acevedo denied having played a leadership
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role in the offense, giving instructions to his cohorts
inside the bank, threatening the bank teller, and grabbing
the manager by the hair. See Reyes, 927 F.2d at 51 (no
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clear error to deny reduction for acceptance of
responsibility for a defendant who, after being found to
have had a leadership role in offense, attempted to minimize
such role); United States v. Shipley, 963 F.2d 56, 59 (5th
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Cir.) (same), cert. denied, 113 S. Ct. 348 (1992).
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Moreover, the record here, as in Reyes, "is most notable for
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the fact that a genuine feeling of remorse is conspicuously
lacking." Reyes, 927 F.2d at 51. When asked why he pleaded
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guilty, for example, Acevedo answered "because I had nothing
in my favor so to speak," and when asked how he felt about
participating in the robbery, he said that "I am repentant
because I'm not able to see my family."
II
Colon
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Colon contends that the sentencing judge erred by
raising his offense level to reflect the discharge of a
firearm and his reckless endangerment of others. We
disagree. A. Firing Weapon
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The district court enhanced Colon's offense level
by seven levels, pursuant to U.S.S.G. 2B3.1(b), which
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discusses "Specific Offense Characteristics," and authorizes
an increase of such magnitude "[i]f a firearm was
discharged." U.S.S.G. 2B3.1(b)(2).
Colon challenges this enhancement on the ground
that "[t]here is no evidence whatsoever that a firearm was
discharged during the robbery." But the presentence report
specifically states that Colon "was observed shooting the
helicopter with an AR-15 rifle," and that "he also shot
toward the police officers before surrendering." Colon may
mean to argue that 2B3.1(b)(2)(A) authorizes a seven-level
increase only if a firearm was discharged during the actual
robbery, i.e., while he and his cohorts were in the bank;
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since he fired his weapon after they had already left the
bank, such an increase is not warranted. See U.S.S.G.
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2B3.1, Background ("Possession or use of a weapon . . .
sometimes occur[s] during a robbery. The guideline provides
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for a range of enhancements where th[is] factor[] [is]
present.") (emphasis added).
If this is Colon's intended argument, then it
fails. The Sentencing Guidelines expressly state that a
defendant's conduct in escaping detection or responsibility
for an offense is to be considered in determining specific
offense characteristics, and hence the Guideline offense
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level. See U.S.S.G. 1B1.3(a)(1) ("[U]nless otherwise
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specified, . . . specific offence characteristics . . .
shall be determined on the basis of . . . all acts and
omissions committed or aided and abetted by the defendant .
. . that occurred . . . in the course of attempting to avoid
detection or responsibility for that offense . . . .").
Indeed, two sister circuits have specifically stated that a
bank robber's conduct, and the consequences thereof, while
fleeing the bank are considered for sentencing purposes as
part of the offense. See United States v. Muhammad, 948
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F.2d 1449, 1456 (6th Cir. 1991) (police officer injured by
bank robber after he had fled the bank was a "victim" of the
robbery within the meaning of U.S.S.G. 2B3.1(b)(3),
thereby warranting an increase in offense level), cert.
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denied, 112 S. Ct. 1239 (1992); United States v. Bates, 896
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F.2d 912, 914-15 (5th Cir.) (rejecting as meritless argument
that defendant's conduct during flight from bank he robbed
was not part of offense while allowing upward departure on
ground that post-robbery conduct was particularly
egregious), cert. denied, 496 U.S. 929, 942 (1990).
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B. Reckless Endangerment during Flight
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Colon also challenges the sentencing judge's
decision to increase his offense level by two for
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"recklessly creat[ing] a substantial risk of death or
serious bodily injury to another person in the course of
fleeing from a law enforcement officer." U.S.S.G. 3C1.2.
Although Colon does not state the precise ground of his
challenge, he may have intended to contend that the judge
enhanced his sentence twice for firing a weapon at the
police, the first time being the seven-level increase under
2B3.1(b)(2)(A). A double enhancement for the same
conduct, however, would disregard the commentary to U.S.S.G.
3C1.2, which states that judges should "not apply this
enhancement where the offense guideline in Chapter Two . . .
results in an equivalent or greater increase in offense
level solely on the basis of the same conduct." U.S.S.G.
3C1.2, Application Note 1.
If this is Colon's argument, then it fails.
Continuously firing a rifle, and carrying on a gunfight with
the police in public, outside the bank, carries with it
significantly greater risks to others than a simple shooting
episode. Moreover, during his flight from the bank, Colon
recklessly created grave risks to other individuals in ways
other than simply firing at the police: he and his cohorts
also crashed their get-away car into another vehicle, and
carjacked another vehicle by holding its owner at gunpoint.
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These are more than sufficient to warrant an enhancement
under 3C1.2, without double counting.
For the foregoing reasons, the sentences imposed
are
Affirmed.
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Document Info
Docket Number： 92-2205
Filed Date： 9/9/1993
Precedential Status： Precedential
Modified Date： 9/21/2015