United States v. Rivera ( 1997 )

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 97-1033
UNITED STATES,
Appellee,
v.
DAVID RIVERA, A/K/A KENNETH BAKER,
A/K/A CHRISTOPHER TOLAN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, Senior U.S. District Judge]
Before
Selya, Circuit Judge,
Cyr, Senior Circuit Judge,
and Boudin, Circuit Judge.
Robert A. Strumwasser on brief for appellant.
Sheldon Whitehouse, United States Attorney, on brief for
appellee.
December 10, 1997
Per Curiam. Upon careful review of the briefs and
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
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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