United States v. Brignoni-Nieves ( 1999 )

[NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 98-2314
UNITED STATES,
Appellee,
v.
CARLOS BRIGNONI-NIEVES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
Before
Selya, Boudin and Lynch,
Circuit Judges.
Jorge E. Rivera-Ortiz on brief for appellant.
Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco,
Assistant United States Attorney, and Camille Velez-Rive, Assistant
United States Attorney, on brief for appellee.
SEPTEMBER 29, 1999
Per Curiam. Carlos Brignoni-Nieves appeals from the
district court's refusal to reduce his sentence for acceptance
of responsibility under U.S.S.G. 3E1.1. Although appellant
pled guilty and admitted the conduct comprising the offense of
conviction, the sentencing judge found that appellant had
denied relevant conduct that the court had determined to be
true and that appellant was not genuinely repentant. Because
those findings are supported by the record and provide a basis
for denial of an acceptance of responsibility adjustment under
3E1.1, we affirm appellant's sentence.
To qualify for a decrease in offense level under
3E1.1, the defendant must "clearly demonstrate acceptance of
responsibility for his offense." 3E1.1. "A defendant may
remain silent in respect to relevant conduct beyond the offense
of conviction without affecting his ability to obtain a
reduction under this subsection. However, a defendant who
falsely denies, or frivolously contests, relevant conduct that
the court determines to be true has acted in a manner
inconsistent with acceptance of responsibility." 3E1.1,
comment. (n.1(a)); see United States v. Hernandez-Coplin, 24
F.3d 312, 317 (1st Cir. 1994).
"A defendant bears the burden of proving entitlement
to decreases in the offense level, including downward
adjustments for acceptance of responsibility." United States
v. Gonzales, 12 F.3d 298, 300 (1st Cir. 1993). "A sentencing
court has very wide latitude in determining whether to grant
this adjustment and a finding on this issue is normally set
aside only if it was clearly erroneous." United States v. De
Leon Ruiz, 47 F.3d 452, 455 (1st Cir. 1995)(citations omitted);
see 3E1.1, comment.(n.5) ("The sentencing judge is in a
unique position to evaluate a defendant's acceptance of
responsibility. For this reason, the determination of the
sentencing judge is entitled to great deference on review.").
To qualify for an adjustment under 3E1.1, "the
defendant must admit to the conduct comprising the offense and
either admit or remain silent as to other relevant conduct."
Hernandez Coplin, 24 F.3d at 317. "[A]cceptance of
responsibility necessitates candor and authentic remorse -- not
merely a pat recital of the vocabulary of contrition . . . .
Credibility and demeanor play a crucial role in determining
whether a person is genuinely contrite." United States v.
Royer, 895 F.2d 28, 30 (1st Cir. 1990). The sentencing judge
found that, with respect to other relevant conduct, appellant
had "den[ied] matters that have been established clearly." The
district court also found that appellant's "demeanor, the way
[he had] been expressing [him]self, [his] justifications" were
inconsistent with genuine repentance. "Because the court had
a plausible basis for arriving at the conclusion, no more was
required." Id.
Appellant's sentence is affirmed. See Loc. R. 27.1.