USCA1 Opinion
April 12, 1994
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
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No. 93-1582
UNITED STATES,
Appellee,
v.
GERARDO H. TIRADO-TORRES,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Boudin and Stahl, Circuit Judges.
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Hector Deliz on brief for appellant.
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Jose A. Quiles-Espinosa, Senior Litigation Counsel, Ernesto
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Hernandez-Milan, Assistant United States Attorney, and Guillermo Gil,
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United States Attorney, on brief for appellee.
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Per Curiam. Defendant-appellant Gerardo Tirado-
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Torres appeals from the sentence imposed upon him following
his guilty plea, arguing, inter alia, that he is entitled to
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an additional point reduction for his acceptance of
responsibility and that he is entitled to a downward
departure for his assistance to government authorities.
Finding no error, we affirm.
I.
I.
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FACTUAL BACKGROUND AND PRIOR PROCEEDINGS
FACTUAL BACKGROUND AND PRIOR PROCEEDINGS
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Defendant established business colleges at
different locations and fraudulently obtained federal
education funds, mostly Pell Grants. He then used these
funds for his own private, non-educational purposes. Through
the scheme, defendant improperly obtained more than
$2,500,000. A fifteen-count indictment charged him with a
variety of offenses involving the manipulation of federal
funds. On the day before trial, he pleaded guilty to four of
the counts.
As part of the plea agreement, the government
agreed to consider filing a motion for downward departure
depending on the degree of defendant's assistance to
government authorities. Prior to the day of sentencing, the
government filed such a motion pursuant to United States
Sentencing Guidelines ("U.S.S.G.") 5K1.1.
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Based on the offenses covered by the four counts to
which defendant pleaded, he began with a base offense level
(BOL) of six, pursuant to U.S.S.G. 2F1.1(a). Because the
fraudulent scheme resulted in losses to the government in
excess of $2,500,000, a thirteen-level upward adjustment was
made to the BOL pursuant to U.S.S.G. 2F1.1(b)(1)(N). In
addition, a further two-level upward adjustment was made for
more than minimal planning under U.S.S.G. 2F1.1(b)(2)(A); a
four-level upward adjustment was added based on appellant's
role in the offense pursuant to U.S.S.G. 3B1.1(a); and a
two-level upward adjustment was added for abuse of a position
of trust under U.S.S.G. 3B1.3.
Finally, the court granted a two-level reduction in
defendant's offense level for his acceptance of
responsibility, but it rejected the government's motion for a
downward departure based upon defendant's assistance to
government authorities. This left defendant with an offense
level of twenty-five. Given a criminal history of one, the
sentence range was from fifty-seven to seventy-one months of
imprisonment with a possible fine ranging from $10,000 to
$100,000, plus a term of supervised release of three years.
Defendant was sentenced to concurrent terms of fifty-seven
months imprisonment, the lowest possible under the applicable
guideline range, concurrent three-year terms of supervised
release and a special monetary assessment of fifty dollars
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per count for a total of two hundred dollars, with no further
fine.
On appeal, defendant argues that his sentence
should be vacated because 1) his acceptance of responsibility
entitled him to a three point reduction, rather than a two
point reduction in his BOL; and 2) his assistance to the
government entitled him to a downward departure.1
II.
II.
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DISCUSSION
DISCUSSION
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A. Section 3E1.1: The Downward Adjustment
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"Whether a defendant has accepted personal
responsibility is a `fact-dominated issue.'" United States
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v. Donovan, 996 F.2d 1343, 1346 (1st Cir. 1993) (quoting
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United States v. Royer, 895 F.2d 28, 29 (1st Cir. 1990)).
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Thus, a decision to grant a two-point reduction under
U.S.S.G. 3E1.1(a), rather than a three-point reduction
under U.S.S.G. 3E1.1(b), "will not be overturned unless
clearly erroneous." Id.
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1. In addition, defendant argues that the court improperly
departed upward in arriving at his 57-month sentence. In
fact, no upward departure occurred. Rather, the court
applied several adjustments which raised defendant's BOL.
All upward adjustments are fully supported by the record and
by the district court's findings of fact.
Defendant also argues that the district court
failed to properly explain its reasons for the degree and
direction of its departure. We see no merit to this line of
argument, both because no departure took place, and because
the district court fully explained all aspects of the
sentence.
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Using this lens of review we find no error, clear
or otherwise. Because defendant's decision to change his
plea did not occur until the day before trial, defendant did
not satisfy section 3E1.1(b)'s requirement that a plea permit
the government to avoid preparing for trial. Although
defendant may have contemplated a change of plea at some time
earlier than the actual change, it appeared up to the day
before trial that defendant and his two codefendants were
going to stand trial in a lengthy and complicated case.
Thus, it was not error for the court to determine that the
government was not spared the task of preparing for trial,
and that therefore the strictures of section 3E1.1(b) had not
been met.
B. Section 5K1.1: The Downward Departure
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The second arrow in defendant's quiver is his claim
that he is entitled to a downward departure based on his
assistance to the government.
Where, as here, the government has filed a motion
requesting a downward departure under U.S.S.G. 5K1.1,
"weighing the relevant factors in order to decide whether to
depart (and if so, by how much) is something best done by the
sentencing court." United States v. Mariano, 983 F.2d 1150,
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1157 (1st Cir. 1993). We review the district court's
determination for abuse of discretion only. Id.
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The district court found that the circumstances in
this case did not warrant such a departure. In arguing to
the contrary, defendant states that the government breached
its plea agreement by failing to disclose complete
information concerning his assistance to government
authorities. As a preliminary matter, the record does not
support such a conclusion. The transcript from the
sentencing proceeding shows that the government repeatedly
urged the court to depart downward and does not at all reveal
a withholding of information. Thus, as a purely factual
matter, we see no merit in defendant's claim to the contrary.
More importantly, we find no abuse of
discretion in the district court's determination that
defendant is not entitled to a downward departure for his
assistance to authorities. Both below and on appeal,
defendant merely recites the fact that, subsequent to his own
guilty plea, two codefendants also pleaded guilty. At the
sentencing hearing, the district court scrupulously
questioned a government investigator on the subject of
defendant's assistance to government authorities and learned
that defendant's plea was of virtually no assistance to the
government in its ongoing case against codefendants.2
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2. For example, the following colloquy occurred:
The Court: Would it be fair to say that
when you interviewed [defendant after
his
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Accordingly, we find no abuse of discretion in the district
court's determination that no downward departure for
assistance to government authorities was warranted.
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guilty plea], you already had 99.9
percent of this case [against
codefendants] made?
Witness: Yes, the case was completed.
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III.
III.
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CONCLUSION
CONCLUSION
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For the foregoing reasons, the sentence imposed by
the district court is
Affirmed.
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