United States v. Johnson ( 1996 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



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        No. 96-1071





                                    UNITED STATES,



                                      Appellee,



                                          v.



                                  G. DENNIS JOHNSON,



                                Defendant, Appellant.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                              FOR THE DISTRICT OF MAINE



                       [Hon. Gene Carter, U.S. District Judge]
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                                        Before



                                Torruella, Chief Judge,
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                            Cyr and Stahl, Circuit Judges.
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            Richard H. Gens on brief for appellant.
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            Jay P. McCloskey, United States Attorney, Jonathan  R. Chapman and
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        Margaret D. McGaughey, Assistant United States Attorneys, on brief for
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        appellee.





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                                   August 22, 1996

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                      Per  Curiam.   The  defendant,  G.  Dennis Johnson,
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            appeals  his  convictions  and  sentences  for conspiracy  to



            possess with  intent to  distribute heroin,  see 21  U.S.C.
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            846, and for aiding  and abetting in the distribution  of and



            possession with intent to distribute  heroin, see 21 U.S.C.
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            841(a)(1) and 18  U.S.C.   2.   After  careful review of  the



            parties' briefs and the  entire record, we find no  reason to



            disturb the judgment below.



                      The defendant challenges his  convictions, claiming



            the  evidence  was insufficient  to  prove  he possessed  the



            requisite mental  state,  i.e., that  he  was a  knowing  and



            intentional participant  in the  drug deal arranged  by Daryl



            Young, his co-conspirator.  We review the record to determine



            whether on  all the  evidence and reasonable  inferences from



            the evidence  a reasonable factfinder could  have found guilt



            beyond  a reasonable doubt.   United States v.  Dodd, 43 F.3d
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            759, 762 (1st Cir. 1995).  The district court, sitting as the



            trier  of  fact,  heard   the  defendant,  in  tape  recorded



            telephone conversations with  an undercover drug  enforcement



            agent posing as  a buyer, provide the buyer  with information



            necessary to lead him  to the ultimate seller of  the heroin.



            Although the  defendant testified  that he was  suffering the



            effects of heroin withdrawal at  the time of the conversation



            and  did  not  know he  was  facilitating  a  drug deal,  the



            district  court found,  as  it  was  free  to  do,  that  the







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            defendant's testimony was not credible.  See United States v.
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            DiMarzo,  80  F.3d  656,  661  (1st  Cir.  1996)  (factfinder
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            entitled to  reject defendant's testimonial  contradiction of



            government witness and his proffered innocent explanation for



            his conduct).  From  all the evidence the district  court was



            warranted  in  inferring that  the  defendant  was a  knowing



            participant in the drug transaction.



                      The  defendant  challenges  the   district  court's



            imposition of  a two-level upward adjustment  to his sentence



            for  obstruction of  justice, pursuant  to U.S.S.G.    3C1.1,



            based  on  a finding that the defendant had committed perjury



            during his  trial testimony.   The  district court  found the



            defendant's  testimony that  he  was unaware  that Young  had



            brought drugs  into Maine  not to  be credible  when compared



            with the tape recording  of the defendant's conversation with



            the  undercover  agent/buyer,  and  that  the  defendant  had



            deliberately testified  falsely to obtain an  acquittal.  The



            district court's finding  of untruthfulness, encompassing all



            the  elements  of perjury,  is supported  by the  record, see
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            United States v. Rehal, 940 F.2d 1, 6 (1st Cir. 1991), and we
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            find no clear error.



                      The defendant also claims that he was entitled to a



            downward  adjustment  to  his  sentence  for   acceptance  of



            responsibility  pursuant  to  U.S.S.G.     3E1.1.    Only  in



            "extraordinary cases," however, will an adjustment be granted







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            for acceptance of responsibility when an enhancement has been



            given  for  obstruction  of   justice.    U.S.S.G.     3E1.1,



            Application Note 4.   The defendant has not shown  this to be



            an extraordinary case.   Moreover, the clear demonstration of



            acceptance of  responsibility  necessary for  this section to



            apply  requires from  the defendant  an authentic  showing of



            remorse, United States v. Bennett, 37 F.3d 687, 698 (1st Cir.
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            1994);  "[t]he  adjustment  is  not intended  to  apply  to a



            defendant who puts the  government to its burden of  proof at



            trial by denying the essential factual  elements of guilt, is



            convicted, and only then admits guilt and expresses remorse."



            U.S.S.G.   3E1.1, Application Note 2.  The district court had



            a plausible  basis for concluding that the  defendant had not



            accepted responsibility within the  meaning of the guideline.



            See United States v. Royer, 895 F.2d 28, 30 (1st Cir. 1990).
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                      Affirmed.  Loc. R. 27.1.
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