USCA1 Opinion
April 24, 1996
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-1192
UNITED STATES,
Appellee,
v.
ROBERTO ROSALES,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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Theodore L. Craft on brief for appellant.
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Guillermo Gil, United States Attorney, Jose A. Quiles-Espinosa,
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Senior Litigation Counsel, and Miguel A. Pereira, Assistant United
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States Attorney, on brief for appellee.
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Per Curiam. In United States v. Rosales, 19 F.3d 763
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(1st Cir. 1994), this court affirmed defendant's conviction
on four counts of abusive sexual conduct, in violation of 18
U.S.C. 2244(a)(1), but remanded for resentencing because of
the district court's failure to provide a rationale for the
degree of upward departure undertaken. On remand, the lower
court again departed upward under U.S.S.G. 5K2.0 and again
imposed a 120-month prison term. Defendant now advances two
principal challenges to his new sentence--insisting that (1)
the imposition of a two-level enhancement under 3C1.1 for
obstruction of justice was unwarranted, and (2) the level of
upward departure was unreasonable. As neither contention
proves persuasive, we summarily affirm.
Extended discussion is unnecessary. The 3C1.1
enhancement was grounded on the district court's conclusion
that defendant committed perjury during his trial testimony
by repeatedly denying any involvement in the specific offense
conduct charged. See, e.g., United States v. Dunnigan, 507
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U.S. 87, 98 (1993) ("Upon a proper determination that the
accused has committed perjury at trial, an enhancement of
sentence is required by the Sentencing Guidelines."). In so
concluding, the court applied the correct legal test for
perjury: "whether the defendant intentionally gave false
testimony concerning a material matter." United States v.
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Campbell, 61 F.3d 976, 984 (1st Cir. 1995). Its findings
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adequately encompassed all of the necessary factual
predicates. See, e.g., United States v. Matiz, 14 F.3d 79,
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84 (1st Cir. 1994) (rejecting challenge to findings less
comprehensive than those issued here). And those findings
were adequately supported by the record. Indeed, as the
district court observed, the nature of defendant's denials--
pertaining to specific allegations of personal conduct--
belied any suggestion that his inaccurate testimony was
attributable to "confusion, mistake, or faulty memory."
Dunnigan, 507 U.S. at 95.
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In objecting to the upward departure, defendant does not
contend that either of the aggravating circumstances relied
on by the district court was an improper basis upon which to
ground a departure.1 He does not assert that either factor
1
was factually unsupported. And he does not reiterate his
earlier argument that the degree of departure was
unexplained. Instead, he insists simply that the extent of
the departure undertaken was unreasonable. We disagree.
The district court departed upward by eight levels and
imposed a term of 120 months--a sentence representing a 110%
increase over the applicable sentencing range ceiling of 57
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1 The court rested its decision to depart upward on two
1
factors: the fact that four additional victims were
identified beyond those involved in the counts of conviction,
and the fact that most of defendant's victims were abused on
multiple occasions. It ended up adding four levels to
account for each of these concerns, for a total departure of
eight levels.
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months. Such a departure, while substantial, cannot be
deemed anomalous; we have upheld departures of even greater
magnitude on various occasions. See, e.g., United States v.
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Rostoff, 53 F.3d 398, 411 (1st Cir. 1995) (reviewing cases in
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which upward departures representing increases of from 165%
to 380% over the respective GSR ceilings were deemed
reasonable). And the 120-month sentence was well short of
the applicable 40-year statutory maximum. Given these
considerations, given the "persuasive[ness]" of the district
court's explanation for selecting the degree of departure,
United States v. Quinones, 26 F.3d 213, 220 (1st Cir. 1994),
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and given the "substantial leeway" that is accorded such a
determination, United States v. Pratt, 73 F.3d 450, 453 (1st
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Cir. 1996), we are unprepared to say that the court acted
unreasonably.2
2
Affirmed. See Loc. R. 27.1.
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2 Defendant has listed some five other issues in his
2
"statement of issues," but has provided no argument with
respect thereto. We therefore decline to address them. See,
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e.g., McIntosh v. Antonio, 71 F.3d 29, 38 (1st Cir. 1995).
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