USCA1 Opinion
May 2, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-2114
UNITED STATES,
Appellee,
v.
CLIFFORD K. TAPIA,
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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Coffin and Bownes, Senior Circuit Judges.
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Marie T. Roebuck and John F. Cicilline on brief for appellant.
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Sheldon Whitehouse, United States Attorney, Margaret E. Curran
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and Gerard B. Sullivan, Assistant United States Attorneys, on brief
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for appellee.
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Per Curiam. The sole issue raised by this appeal
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is whether the district court erred, on remand, in denying
defendant-appellant Clifford K. Tapia an additional one-level
reduction in his offense level under U.S.S.G. 3E1.1(b)(1)
for acceptance of responsibility. We affirm.
I.
On September 28, 1993, Tapia pled guilty to
possession of heroin with intent to distribute it, see 18
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U.S.C. 841(a)(1); being a felon in possession of a firearm,
see 18 U.S.C. 922(g); and possession of a firearm with an
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altered serial number, see 18 U.S.C. 922(k). On November
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24, 1993, the district court sentenced Tapia to a prison term
of forty-one months. Tapia appealed, contending that the
district court, which granted him a two-level reduction under
U.S.S.G. 3E1.1(a) for acceptance of responsibility, erred
in failing to consider whether he is entitled to an
additional one-level reduction for having "timely provid[ed]
complete information to the government concerning his own
involvement in the offense." U.S.S.G. 3E1.1(b)(1). On
June 9, 1994, we vacated Tapia's sentence and remanded the
case to the district court so that it could determine whether
Tapia is eligible for the extra reduction. United States v.
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Clifford K. Tapia, No. 93-2306, slip op. at 6 (1st Cir. June
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9, 1994).
Following a hearing on remand, the district court
denied Tapia's request for the additional one-level decrease.
In support of its determination, the district court observed
that "there is really nothing in the record to suggest that
the [d]efendant in fact gave complete information to the
[g]overnment, nothing at all." The court also observed that
the government, acting pursuant to a plea agreement, took no
position on the issue. Under the circumstances, the court
concluded that it was "virtually impossible for [it] to find
that the [d]efendant meets the requirements of [
3E1.1(b)(1)]." This appeal followed.
II.
Contrary to Tapia's suggestion, we do not think
that the district court ruled against him simply because the
government took no position on his eligibility for the extra
reduction. The court's questions during the hearing on
remand indicate that it had serious doubts whether Tapia ever
provided complete information to the government. It was
Tapia's burden to prove that he had done so. See United
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States v. Ocasio-Rivera, 991 F.2d 1, 4 (1st Cir. 1993)
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(observing that the defendant bears the burden of proving his
entitlement to an acceptance-of-responsibility credit). The
district court ultimately denied Tapia the additional
decrease because it found, based on the record, that he had
failed to carry this burden.
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We add that the district court's finding adverse to
Tapia is not clearly erroneous. See United States v.
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Morillo, 8 F.3d 864, 871 (1st Cir. 1993) (standard of
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review). Based on undisputed facts set forth in the
Presentence Investigation Report, it appears that at the time
of his arrest, Tapia resorted to some half-truths and evasion
in order to minimize his responsibility. For example, Tapia
told arresting officers that he was merely holding heroin
found in his apartment for dealers. When the officers asked
about an additional one ounce of heroin, Tapia stated that it
had been retrieved the day before by his supplier. A drug
ledger found in Tapia's apartment, however, reflected the
profits that could be derived from the sale of one ounce of
heroin. Although Tapia was very forthcoming to the
arresting officers in certain other respects, we cannot say
on this record that he ever provided complete information to
the government, much less that he did so in a timely fashion.
Affirmed. See Loc. R. 27.1.
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