United States v. Sanchez ( 1997 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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        No. 97-1033





                                    UNITED STATES,



                                      Appellee,



                                          v.



                          DAVID RIVERA, A/K/A KENNETH BAKER,

                               A/K/A CHRISTOPHER TOLAN,



                                Defendant, Appellant.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF RHODE ISLAND



                 [Hon. Francis J. Boyle, Senior U.S. District Judge]
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                                        Before



                                 Selya, Circuit Judge,
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                              Cyr, Senior Circuit Judge,
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                              and Boudin, Circuit Judge.
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            Robert A. Strumwasser on brief for appellant.
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            Sheldon  Whitehouse,   United  States  Attorney,   on  brief   for
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        appellee.





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                                  December 10, 1997

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                 Per Curiam.    Upon careful  review  of the  briefs  and
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            record, we find no reason to overturn defendant's sentence.



                 Defendant  did not  alert  the  district  court  to  any



            alleged  breach  of the  plea  agreement,  and so  we  review



            defendant's  appellate allegation for  plain error only.   No



            plain  error appears.  Under  the written plea agreement, the



            government's  obligation  not  to  oppose  the  decrease  for



            acceptance  of responsibility  was  conditional upon  whether



            defendant "truthfully admits his involvement  in the criminal



            conduct to which  he is pleading guilty," and  the government



            did  not  plainly  breach that  conditional  obligation.   We



            reject defendant's argument  that the plea colloquy  made the



            government's  obligation unconditional;  the  change of  plea



            transcript,  read as a whole, convinces  us that the district



            court  adequately  alerted  defendant  that his  truthfulness



            would be a continuing question at sentencing.



                 The district  court  properly refused  the decrease  for



            acceptance of responsibility based on its negative assessment



            of  defendant's credibility and candor and its interpretation



            of   defendant's  ambiguous,   rationalized,  and   qualified



            statements  purporting  to  accept   responsibility  for  the



            instant offense.   See  United States  v. Ocasio-Rivera,  991
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            F.2d  1, 5 (1st  Cir. 1993).   We will not  second-guess that



            assessment  and  interpretation.    Contrary  to  defendant's



            arguments,  it  does  not  appear  that  the  district  court







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            considered  impermissible  factors  or  engaged  in  improper



            speculation in that regard.   In any event, we agree with the



            district   court   that   defendant's   statements  did   not



            demonstrate a clear acceptance of responsibility.



                 Affirmed.  See 1st Cir. Loc. R. 27.1.
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