USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 96-1071
UNITED STATES,
Appellee,
v.
G. DENNIS JOHNSON,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Cyr and Stahl, Circuit Judges.
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Richard H. Gens on brief for appellant.
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Jay P. McCloskey, United States Attorney, Jonathan R. Chapman and
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Margaret D. McGaughey, Assistant United States Attorneys, on brief for
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appellee.
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August 22, 1996
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Per Curiam. The defendant, G. Dennis Johnson,
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appeals his convictions and sentences for conspiracy to
possess with intent to distribute heroin, see 21 U.S.C.
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846, and for aiding and abetting in the distribution of and
possession with intent to distribute heroin, see 21 U.S.C.
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841(a)(1) and 18 U.S.C. 2. After careful review of the
parties' briefs and the entire record, we find no reason to
disturb the judgment below.
The defendant challenges his convictions, claiming
the evidence was insufficient to prove he possessed the
requisite mental state, i.e., that he was a knowing and
intentional participant in the drug deal arranged by Daryl
Young, his co-conspirator. We review the record to determine
whether on all the evidence and reasonable inferences from
the evidence a reasonable factfinder could have found guilt
beyond a reasonable doubt. United States v. Dodd, 43 F.3d
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759, 762 (1st Cir. 1995). The district court, sitting as the
trier of fact, heard the defendant, in tape recorded
telephone conversations with an undercover drug enforcement
agent posing as a buyer, provide the buyer with information
necessary to lead him to the ultimate seller of the heroin.
Although the defendant testified that he was suffering the
effects of heroin withdrawal at the time of the conversation
and did not know he was facilitating a drug deal, the
district court found, as it was free to do, that the
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defendant's testimony was not credible. See United States v.
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DiMarzo, 80 F.3d 656, 661 (1st Cir. 1996) (factfinder
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entitled to reject defendant's testimonial contradiction of
government witness and his proffered innocent explanation for
his conduct). From all the evidence the district court was
warranted in inferring that the defendant was a knowing
participant in the drug transaction.
The defendant challenges the district court's
imposition of a two-level upward adjustment to his sentence
for obstruction of justice, pursuant to U.S.S.G. 3C1.1,
based on a finding that the defendant had committed perjury
during his trial testimony. The district court found the
defendant's testimony that he was unaware that Young had
brought drugs into Maine not to be credible when compared
with the tape recording of the defendant's conversation with
the undercover agent/buyer, and that the defendant had
deliberately testified falsely to obtain an acquittal. The
district court's finding of untruthfulness, encompassing all
the elements of perjury, is supported by the record, see
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United States v. Rehal, 940 F.2d 1, 6 (1st Cir. 1991), and we
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find no clear error.
The defendant also claims that he was entitled to a
downward adjustment to his sentence for acceptance of
responsibility pursuant to U.S.S.G. 3E1.1. Only in
"extraordinary cases," however, will an adjustment be granted
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for acceptance of responsibility when an enhancement has been
given for obstruction of justice. U.S.S.G. 3E1.1,
Application Note 4. The defendant has not shown this to be
an extraordinary case. Moreover, the clear demonstration of
acceptance of responsibility necessary for this section to
apply requires from the defendant an authentic showing of
remorse, United States v. Bennett, 37 F.3d 687, 698 (1st Cir.
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1994); "[t]he adjustment is not intended to apply to a
defendant who puts the government to its burden of proof at
trial by denying the essential factual elements of guilt, is
convicted, and only then admits guilt and expresses remorse."
U.S.S.G. 3E1.1, Application Note 2. The district court had
a plausible basis for concluding that the defendant had not
accepted responsibility within the meaning of the guideline.
See United States v. Royer, 895 F.2d 28, 30 (1st Cir. 1990).
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Affirmed. Loc. R. 27.1.
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