USCA1 Opinion

United States Court of Appeals

For the First Circuit
For the First Circuit

____________________

No. 96-1588

UNITED STATES OF AMERICA,

Appellee,

v.

PEDRO MURIEL A/K/A PEDRO JUAN REYES-MURIEL,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

___________________

____________________

Before

Boudin, Circuit Judge,

_____________

Bownes, Senior Circuit Judge,

____________________

and Lynch, Circuit Judge.

_____________

____________________

Scott A. Lutes for appellant.

______________
Margaret E. Curran, Assistant United
___________________
Sheldon Whitehouse,
___________________

United

States Attorney, with

States Attorney,

and

Zechariah Chaf
______________

Assistant United States Attorney, were on brief for appellee.

____________________

May 5, 1997
____________________

BOWNES, Senior Circuit Judge.

BOWNES, Senior Circuit Judge.

Defendant-appellant

____________________

Pedro

Muriel

appeals the

district

court's

motion to withdraw his plea of guilty.

denial of

his

We affirm.

BACKGROUND
BACKGROUND

Muriel

warrant to

entered

was arrested

search his

the

the

execution

girlfriend's apartment.

apartment on

Muriel

standing in a

toward

the bed, upon which

Wesson 10-millimeter

during

September

bedroom in his

14,

of

When police

1995, they

found

underwear and reaching

police found a

handgun under a pillow.

loaded Smith and

Muriel claims

that he was not reaching for the gun but for his pants.

Police had obtained the

bedroom

Ostos, on

apartment

the basis

rented

by

warrant to search the two-

Muriel's

of information

girlfriend,

provided by

Ingrid

a reliable

informant previously used by

the police.

In the

bedroom in

which they found Muriel and the gun, police also found $1,065

in cash in a nightstand, an ammunition box containing sixteen

live .45

to

caliber rounds, and some

Muriel and

Ostos.

In the

personal papers belonging

other bedroom

plastic bag holding twenty-three glassine

they

found a

packets containing

traces of heroin and a small electronic scale.

Muriel

offenses.

pending

sentence

At

had previously

the

time he

violation of

in Rhode

been

convicted

was arrested,

probationary term

Island Providence County

-22

for

other

he was

facing a

and a

suspended

Superior Court.

In

the case

Count I,

at bar,

violation

Muriel was

of 21

indicted on

U.S.C.

841(a)

heroin with intent to distribute),

U.S.C.

relation

violation

three counts:

(possession

of

Count II, violation of 18

924(c)(1) (using or carrying a firearm during and in

to

of

18

drug-trafficking

U.S.C.

crime),

922(g)

possession" (i.e., possession of

by

and

being a

Count

III,

"felon-in-

a firearm after having been

convicted of a felony).

Muriel entered a plea of not guilty

to the charges at his arraignment, and the case was placed on

the

trial calendar for December 1995.

the

parties signed a plea agreement pursuant to Federal Rule

of Criminal Procedure 11(e)(1)(B),

plead guilty

to Count

III (the

and the government agreed

recommend

end

to drop the other two

to the court that

agreed

not to

in which Muriel agreed to

felon-in-possession charge)

charges and

Muriel be sentenced

of the applicable guideline

orally

On November 30, 1995,

oppose

range.

at the low

The government also

three-level reduction

for

acceptance of responsibility.

Between the

time the

and Muriel's sentencing, the

plea agreement was

accepted

Supreme Court decided Bailey v.

_________

United States, 116

______________

S.

Ct. 501

prevailing interpretation of

924(c)(1),

one

of

originally

been

government

pursuant

the

(1995),

the term "use"

offenses

charged,

to the

which altered

but

which

plea

-33

with

was

the

in 18 U.S.C.

which

Muriel

dropped

agreement.

18

by

had

the

U.S.C.

924(c)(1) provides,

"during

and in

in relevant

relation to

trafficking crime . . . uses

part, that any

any crime

of violence

Court held that, in

an offense under the

be evidence

of

"use" prong of

"active

or drug

or carries a firearm, shall . .

be sentenced to imprisonment for five years

Bailey, the Supreme

______

person who,

. . . ."

order to constitute

924(c)(1),

employment" of

there must

firearm

in

of the

firearm by

a person committing an offense is not sufficient.

1996, Muriel

could move to

At

the sentencing

moved to vacate his

mere possession

the

commission

Id. at 505.
___

predicate offense;

In

hearing

on

plea of guilty so

suppress evidence seized during

September 14, 1995.

The district

February

of a

23,

that he

the search of

court denied the

motion,

and Muriel was subsequently

in

sentenced to thirty-three months

prison, a three-year period of

fine of $7,130.80.

supervised release, and a

He then timely filed this appeal.

Muriel wants to withdraw his plea of

felon-in-possession

charge.

He

argues that

guilty to the

he

did

not

receive the benefit of his bargain in pleading guilty to this

charge because the Supreme Court's decision in Bailey, handed

______

down after Muriel had pled

would nullify the 18

U.S.C.

the indictment, which was

to

guilty pursuant to the agreement,

the plea agreement.

924(c)(1) charge, Count

II of

dropped by the government pursuant

Muriel argues further that since the

sentencing court was not convinced by a fair preponderance of

-44

the evidence on Count I, Count III is the

left against him.

Appellant's Br. at 8.

Muriel does

not profess his

suppress evidence

which

only viable charge

not request

innocence, but

in order

a trial; indeed,

wishes to file

to challenge the

the search warrant which

led to the

he does

a motion

to

affidavit upon

discovery of the

gun

was based.

permitted to

Muriel thus

withdraw

contends

his guilty

plea

that he

should

in order

to

be

avail

himself of another strategy in his defense.

ANALYSIS
ANALYSIS

Muriel makes

contends

that the

denying

his motion

two arguments

district court

to

on appeal.

abused its

withdraw

his

contends

sentencing

that the

him

district court

by denying

him

discretion in

plea because

asserted a fair and just reason for doing so.

he

has

Second, Muriel

committed clear

First, he

error in

downward adjustment

for

acceptance of responsibility.

I.
I.

Muriel moved

to vacate

his guilty plea

before he

was

sentenced.

which governs

Federal Rule

plea withdrawals,

"If a motion to withdraw a

is

of Criminal

states, in

Procedure 32(e),

pertinent part:

plea of guilty or nolo contendere

made before sentence is imposed, the court may permit the

plea to be withdrawn if the defendant shows any fair and just

reason."

defendant has

no absolute right

-55

to withdraw

guilty plea.

(1st Cir.

76,

78

See United States v. Isom,

___ ______________________

831, 834

1996); United States v. Ribas-Dominicci,

_________________________________

(1st

Cir.

1995).

decision granting or

plea

85 F.3d

may

denying a motion

be reversed

discretion.

Moreover,

only

upon

50 F.3d

district

court's

to withdraw a

a demonstrable

guilty

abuse

See United States v. Sanchez-Barreto,

___ _________________________________

of

93 F.3d

17, 23 (1st Cir. 1996), cert. denied sub nom. Arroyo-Reyes v.

_____ ______ ___ ____ _______________

United States,
______________

117

S.

Ct. 711

(1997);

United States v.
_________________

Parrilla-Tirado, 22 F.3d 368, 371 (1st Cir. 1994).

_______________

We

have

employed

four

criteria

in

determining

whether a defendant has asserted a "fair and just" reason for

withdrawing a guilty plea:

(1)

the

plausibility

of

prompting the requested

the

reasons

change of

plea;

(2) the timing of the defendant's motion;

(3) the existence

or nonexistence of

assertion of innocence; and

when

viewed

in

circumstances,

the
the

(4) whether,

light

of emergent

defendant's

appropriately

may

be

involuntary,

in

derogation

requirements

an

characterized
of

plea
as
the

imposed by Fed. R. Crim. P.

11, or otherwise legally suspect.

Sanchez-Barreto, 93
_______________

which

F.3d at

23.

The

fourth consideration,

hinges on whether the plea was knowing, voluntary, and

intelligent,

is most

significant.

Ribas-Dominicci, 50 F.3d
_______________

at 78.

If, under this analysis, the defendant successfully

meets

his burden of demonstrating a fair and just reason for

withdrawing

his plea,

the

court must

inquire whether

the

prejudice from

the

-66

government will suffer

withdrawal of

Because

the plea.

any demonstrable

Parrilla-Tirado, 22
_______________

we find that Muriel

does not meet

F.3d at

371.

his burden under

this analysis,

prejudice.

however, we need not address

See id. at 373

___ ___

the question of

n.5; United States v. Doyle,

______________________

981

F.2d 591, 596 n.6 (1st Cir. 1992).

(1)
(1)

Plausibility
Plausibility

Muriel

must

demonstrate

plausible

reason for

withdrawing his guilty plea.

See Parrilla-Tirado, 22 F.3d at

___ _______________

371.

just rest

Plausibility

thoughts "'about

wisdom

of

cannot

some fact or a

his earlier

on

Muriel's

point of law, or

decision.'"

Isom,
____

(quoting Parrilla-Tirado, 22 F.3d at 371).

_______________

second

about the

85 F.3d

at 837

Our review of the

record supports the district court's assessment that Muriel's

change

of

heart, while

"understandable,"

was

prompted by

second thoughts about the wisdom of his decision to enter the

plea agreement rather than file a motion to suppress evidence

of the

gun.

Memorandum

Muriel

advances

withdrawing

product of

the

and Order of

following

as

March 19, 1996

plausible

reasons

at 4.

for

his plea: (1) his motion to withdraw was not the

second thoughts

but was

prompted by

the Bailey
______

decision; (2) an alleged defect in the warrant makes his plea

suspect;

and

(3)

the plea

bargain

benefit.

We find none of these to be plausible reasons.

-77

ceased

to

be to

his

By his own admission Muriel had second thoughts all

along about his

strategic choice to plea bargain

had doubts about

the sufficiency of the

the search warrant

was based.

because he

evidence upon which

But Muriel

made a

tactical

decision to forgo the warrant challenge because, at the time,

he thought it was

of the

"Bailey
______

most

in his best interests to

serious

charge"),

charge, 18

which

carries

U.S.C.

secure dismissal

924(c)(1)

five-year

(the

mandatory

sentence.

Vacate

Appellant's

Memorandum in

Plea of Guilty at 2.

Muriel concluded

Support of

Nearly three months later, when

that circumstances had changed

potential motion to

Motion to

suppress seemed to be

such that a

a better strategy

than his plea bargain, he decided that withdrawal of his plea

was

in

order.

But,

as

we

have

already stated,

second

thoughts do not constitute a plausible reason for withdrawal.

Muriel

in

the affidavit

also argues that

in

support

of

the information contained

the

search

insufficient to establish probable cause, and

plausible

reason for

Muriel contends

withdrawing his

plea.

that the warrant "contained

warrant

was

that this is a

Specifically,

lies," and that

this

renders

Appellant's

out,

his

plea

Br. at 12.

Muriel has

not

and conviction

But, as the

met his

burden

"legally

suspect."

district court pointed

of showing

that

the

affidavit did not sustain a finding of probable cause for the

-88

warrant.

Memorandum

and

Order of

March

19, 1996

at

5.

Muriel has neither demonstrated

the

circumstances" test,

the

that, under the "totality of

information contained

affidavit does not

show that there

that contraband or

evidence of a crime"

at a specific

was "a fair

in the

probability

would be discovered

place, Illinois v. Gates, 462

__________________

U.S. 213,

238

(1983), nor presented evidence of "deliberate falsehood or of

reckless

disregard for the truth" on the part of the affiant

detective, Franks v. Delaware, 438 U.S. 154, 171 (1978).

__________________

Aside

allegations

that

informant and

Muriel

from

offers

the

the

affidavit

affidavit

misstatements by the

no proof

warrant was lacking.

that

itself

contained

and

lies

his

by

bare

the

investigating detective,

probable cause

On the facts before us,

to

issue the

we cannot say

that the

district court

abused its discretion

Muriel's

argument that deficiencies

his plea legally suspect.1

argument

file

that he was

motion to

facts.

To

rather

than

We

add

in rejecting

in the warrant rendered

that

Muriel

previously deprived of

suppress because

he

decision made months

motion to

was unaware

suppress,

before he moved

no

the chance to

the contrary, Muriel's decision to

file

has

of the

plead guilty,

was

tactical

to withdraw his

plea.

____________________

1.
de
__

Although we review

the denial of a motion to

novo, see United States v. Zayas-Diaz, 95

____ ___ ____________________________

n.6 (1st Cir. 1996),

we review the denial of

suppress

F.3d 105, 111

a pre-sentence

motion to withdraw a guilty plea for abuse of discretion.

-99

At the time Muriel pled guilty, he possessed all the relevant

information

defective.

about

the

affidavit

This is not a

to newly-discovered

810 F.2d 308,

court

did not

weight

to a

abuse

he

now

claims

is

case where the defendant can point

evidence.

313 (1st

that

Cf. United States v. Ramos,

___ _______________________

Cir. 1987) (finding

its discretion

self-serving,

in

unsupported

that the

lower

refusing to

"give

claim of

innocence

raised

judicially

hearing,"

the

first time

particularly where the

insight into

We

for

the substance of

conclude that

after

the

Rule 11

defendants had not offered

the exculpatory information).

Muriel's unsupported claims

sufficiency of the search warrant

regarding the

do not provide a plausible

reason for withdrawal here.

Finally, Muriel argues that

he did not receive the

benefit of his bargain because of Bailey's impact on his plea

______

agreement, because

he

received no

downward adjustment

for

acceptance of responsibility, and because he was sentenced at

the higher

end of the applicable guideline range rather than

the

end.

lower

We

have

frequently

agreements are contractual in nature.

stated

that

plea

See Parrilla-Tirado 22
___ _______________

F.3d

at 371; United States v. Atwood, 963 F.2d 476, 479 (1st

_______________________

Cir.

1992).

receives

We

some

have

further explained

"built-in" benefits

when

that

he

a defendant

or she

pleads

guilty and that,

barring material misrepresentation, default

on a promise, or

breach of the agreement by

-1010

the government,

no additional

plea.

consideration is required to

support a guilty

Parrilla-Tirado, 22 F.3d at 371-72.

_______________

Muriel's

memorandum in

support

of the

motion to

withdraw his plea states that he ultimately decided to

filing a motion to

suppress evidence of the gun

for the

chance to bargain

against

him, the

away the most

Bailey charge,
______

minimum of five years.

forgo

in exchange

significant charge

which carried

a mandatory

There was ample consideration for the

agreement--in exchange for Muriel's guilty plea to Count III,

the

government agreed

oppose

reduction

responsibility.

to drop

in

his

Counts I and

sentence

for

Muriel cannot be permitted

II and

not to

acceptance

of

now to withdraw

his plea in

the hopes

of renegotiating a

better deal

just

because Counts I and II later looked like weak charges.

Although Muriel may believe that he did not receive

any "built-in" benefits

the

government,

recommendations

Muriel would

within

which

to the

receive a

the discretion of

of his bargain, his bargain was with

could

only

court and

make

the

agreed-to

could not

guarantee that

particular sentence.

Sentencing is

the district court.

Moreover, as

Rule 11(e)(1)(B) itself makes clear, a plea agreement of this

kind is made with the "understanding that such recommendation

or request

with

shall not be

binding upon the court."

We agree

the district court that Muriel should not be allowed to

vacate his guilty plea on this basis.

-1111

(2)
(2)

Timing
Timing

The

and the

length of time

filing of the motion

considered.

between the entry

of the plea

to withdraw is a

factor to be

Ramos, 810 F.2d at 312.

_____

a defendant's attempted plea

"Because the

timing of

withdrawal is highly

probative

of

motive, close scrutiny of the

adjudicating whether

chronology is important in

retraction is

fair and just."

Doyle,
_____

981 F.2d at 595.

Muriel moved

1996, over two

three months

circuit's case

delay.

to withdraw his plea

months after Bailey

______

after

his

guilty

on February 23,

was decided, and

plea

was

entered.

law counsels against withdrawal

almost

This

after such a

See Isom, 85 F.3d at 839 (two-month delay too long);

___ ____

Ramos, 810 F.2d at 313

_____

(thirteen-day delay too long); United

______

States v. Keefe, 621 F.2d 17, 20 (1st Cir. 1980) (three-week

________________

delay

too long).

What is more significant, however, is that

Muriel's motion to withdraw came one month

after the release

of the Presentence Investigation Report ("PSI Report"), which

recommended a sentence of

to

be

ineligible

probative

actually

for

of motive,

prompted

disappointment

with

30 to 37 months, and

probation.

then

to

it would

move

the

to

(3)
(3)

Claim of Innocence
Claim of Innocence

-1212

seem

withdraw

recommended

Report.

If

timing

found Muriel

is

indeed

that Muriel

his

sentence

plea

was

by his

in the

PSI

A defendant's assertion

court

to

look

Conversely,

favorably

upon

Doyle, 981 F.2d

_____

innocent of

guilty.

not

motion

may cause

to

withdraw.

the lack of a claim of innocence weighs in favor

of sustaining a guilty plea.

373;

of innocence

See Parrilla-Tirado, 22 F.3d at

___ _______________

at 596.

Muriel does not

the felon-in-possession charge to

claim to be

which he pled

He admitted his guilt at the Rule 11 hearing and has

asserted

otherwise

Obviously, Muriel's

at

failure to

sentencing

or

assert a claim

on

appeal.

of innocence

weighs against his contention that his reason for withdrawing

his plea is fair and just.

(4)
(4)

Voluntary and Knowing Plea

Voluntary and Knowing Plea

"[B]y

entering

effectively waives

waiver to

guilty

defendant

several constitutional rights.

For that

be valid, the plea must

plea,

amount to a voluntary and

intentional relinquishment or abandonment of a known right or

privilege."

United States v. Gray, 63

_____________________

F.3d 57, 60 (1st Cir.

1995)

(citing United States v. Cotal-Crespo, 47 F.3d

_______________________________

(1st

Cir.),

cert.
_____

Accordingly, while

denied,
______

116

S.

technical violations

Ct.

94

of Rule 11

1, 4

(1995)).

"do not

count," violations of any of the three core concerns--absence

of coercion,

understanding of the charges,

and knowledge of

the consequences of the guilty plea--mandate that the plea be

set aside.

Ribas-Dominicci, 50 F.3d at 78.

_______________

-1313

Muriel

does

not

assert

that his

plea

was

not

voluntarily entered or that he did not understand the Rule 11

plea

colloquy.

Instead,

he claims

that,

at the

agreed to the plea bargain, he could not have known

time he

that the

Bailey decision would nullify Count II of the indictment, and

______

that

therefore he

was

operating under

regarding the applicable law

argument that the change in

under

giving

the law at

up

the time,

the opportunity

a false

assumption

when he entered his plea.

law rendered his plea

and that

to

he was

challenge

The

unknowing

prejudiced in

the admission

of

evidence (the gun) fails for several reasons.

First,

there

are

no allegations

of

coercion or

mistake, nor is there any evidence of such on the part of the

government.

Second, the

record shows that Muriel understood

the charges against him and that he was aware of the possible

risks involved in

that at the change

pleading guilty.

The district court found

of plea hearing, "Muriel was

apprised of

the precise nature of the charge set forth in Count III,

elements the government

was required

to prove

in order

the

to

convict him, the sentence that could be imposed if his guilty

plea

was accepted

pleading

7.

In

guilty."

addition,

understood

and that he

and the

rights he

was relinquishing

by

Memorandum and Order of March 19, 1996 at

Muriel's plea

the constitutional

agreement

rights he

he

was relinquishing,

understood that he had no right

-1414

stated that

to withdraw his

plea in the event

sentencing

signed

the court did not accept

recommendations.

the agreement

and

Muriel

the government's

acknowledged

understood its

that he

contents, and

he

concedes that he understood the Rule 11 colloquy.

This

coercion

basis that

court

or mistake,

has

to

not

allowed

renege on

defendants,

absent

plea agreements

on the

they have miscalculated their

or have belatedly discovered a new defense.

risks and benefits

United States v.
________________

Allard, 926 F.2d 1237, 1243 (1st Cir. 1991).

______

In reaching a

plea bargain, a

defendant

assesses the likelihood of conviction and

balances

that

severity

of the

receive

pursuant

that

which

conviction.

against

the

sentence he
to

could

relative
expects to

the agreement
be

imposed

and
upon

In many cases, that process

results in a compromise pursuant to which

the defendant makes a

conscious decision

to

relinquish a perceived defense. . . .

To

hold

otherwise

would

render

plea

agreements and the pleas entered pursuant

to them meaningless.

Id. (collecting cases).

___

Similarly, the Supreme Court has stated in Brady v.

________

United
States
_______________

that,

impermissible conduct

"absent

by state

misrepresentation

agents, a voluntary

or

other

plea of

guilty intelligently made in the light of the then applicable

___________________________________

law
___

does

not

become

vulnerable

because

later

judicial

decisions indicate that the plea rested on a faulty premise."

397

U.S.

(emphasis

742,

added).

757

(1970)

Muriel's

(internal

post-hoc
________

-1515

citation

omitted)

determination

after

Bailey
______

that

he

would be

better

off

filing

a motion

to

suppress the gun and then bargaining anew with the government

does not constitute grounds for vacating his plea.

We do not believe that a district court abuses

its

discretion by denying a motion to withdraw a guilty plea that

is premised on the basis that a decision by the Supreme Court

interpreting a

was

Other

criminal statute

might affect a
_____

count which

dropped by agreement of the parties in the plea bargain.

circuits have

also

faced post-Bailey
______

plea-agreement

appeals, but in contrast to the case at bar, the guilty pleas

that

the

have been vacated

Bailey-affected
______

or remanded involve

charge.2

In

other

guilty pleas to

words,

Muriel's

assertion here

that he pled guilty under

a false assumption

____________________

2.

In ruling on the validity of

a guilty plea to a

Bailey______

affected charge, the Fifth Circuit has explained that, "where

intervening law has established that a defendant's actions do
not constitute
actually

crime

innocent of

and

thus

the charged

that

the

offense," a

defendant

is

defendant is

permitted to attack a guilty plea.

United States v. Andrade,

________________________

83 F.3d 729, 731

In Andrade, the defendant

_______

pled

guilty to

other charges.
for

(5th Cir. 1996).

the

924(c)(1) charge

Determining
924(c)(1)

defendant's
remanded

conviction

in addition

to three

that there was no factual

offense,
and

the

sentence

to the district court.

Abdul, 75 F.3d 327 (7th Cir.),

_____

court
on

See also
___ ____

that

basis

vacated

the

charge

and

United States v.
________________

cert. denied, 116 S. Ct. 2569

_____ ______

(1996).
But the case at bar differs fundamentally from such
cases.

Here,

the

Bailey
______

decision

did

interpretation of

a statute to which the

guilty;

it

rather,

government

affected

charge

before Bailey was decided.

not

change

the

defendant had pled

dropped

by

the

We are not faced with

______
a defendant who may have been sentenced for conduct which did
not

constitute a federal offense, as

Muriel

does

not

deny that

he

is

in Andrade.
_______
guilty

of the

Moreover,
offense

charged.

-1616

about the law does not provide a fair and just reason because

the change in law does not affect the charge to which he pled

guilty,

but a

separate count

of the

indictment which

was

dropped.

307

A case on point is United States v. Knight, 96 F.3d

_______________________

(8th Cir.

1996),

cert. denied,
_____ ______

No.

96-8236, 1997

WL

134752 (Apr. 14, 1997), in which the defendant pled guilty to

drug-conspiracy

charge

agreement to drop a

offenses.

The

in return

for

the

government's

924(c)(1) charge, along with other drug

defendant did

not assert that

his plea

was

unknowing, but argued that "a change in the law applicable to

the

gun

charge

materially

altered

the

basis."

Id. at 309.
___

that the

possibility that the defendant's

qualify

did

plea

agreement's

On appeal, the Eighth Circuit decided

as an offense under

924(c)(1) in

not undermine his bargain with

conduct would not

light of Bailey
______

the government where the

defendant had

been indicted

on several other

were dropped pursuant to the plea agreement.

We therefore need not

charges which

Id.
___

review the factual basis for

the dropped Bailey charge against Muriel to determine whether

______

the district court was correct in concluding that it was "far

from certain" that Bailey would nullify Count II.

______

and Order

that

Muriel's contention

because of

found

of March 19, 1996 at 6.

that

Bailey is
______

"evidence

It is sufficient to note

that Count

not a

that

II would

sure bet.

Muriel

-1717

Memorandum

had

be nullified

The district

firearm

court

within

reaching distance and made

entered

could be

sufficient to

'used' the firearm."

We conclude

its discretion

a movement toward it

establish that

when police

he actively

Id. at 6.
___

that the district court

in refusing to

guilty plea.

II.
II.

allow Muriel to

did not abuse

withdraw his

Muriel

also

committed

clear

error

adjustment

of

responsibility

two

contends

by

or

that

not

three

the

district

awarding

levels

him

for

court

downward

acceptance

of

under Section 3E1.1 of the Federal Sentencing

Guidelines.3

____________________

3.

The

United

States Sentencing

Guidelines

Section 3E1.1

states:

Acceptance of Responsibility
____________________________

(a)

If

the

defendant

clearly

demonstrates acceptance of responsibility

for

his

offense,

decrease the

offense

level by 2 levels.
2

(b)

If

decrease
offense

the

defendant

under
level

qualifies for

subsection
determined

(a),

prior to

a
the
the

operation of
or

subsection (a) is

greater,

and

the

level 16
16

defendant

has

assisted authorities in the investigation

or prosecution
taking

one

or

of his own
more

of

misconduct by
the

following

steps:

(1)

timely

information

providing complete
to

concerning his

the government
own involvement

in the offense; or

-1818

A defendant who pleads guilty is

downward adjustment

for

matter

U.S.S.G.

of right.

United States v. Royer,

______________________

The

defendant has

decrease

in

the

acceptance of

3E1.1,

not entitled to a

responsibility as

application note

3;

895 F.2d 28, 29-30 (1st

the burden

offense

of proving

level,

entitlement to

including

adjustment for

acceptance of responsibility.

v. Morillo, 8
___________

F.3d 864,

defendant has

871 (1st

and therefore we

judge's ruling for clear error.

give

the

findings

of

the

downward

Whether a

for the offense

review the

court

"a

is a

district

Royer, 895 F.2d at 29.

_____

district

United States
_____________

Cir. 1993).

accepted responsibility

fact-dominated issue,

Cir. 1990).

wide

We

and

deferential

berth"

because the

assessing

the

credibility

of

U.S.S.G.

3E1.1 application

court

the

has

the benefit

defendant

of

first-hand.

note 5; Royer, 895 F.2d

_____

at 30.

While the facts are a close call, we accept the determination

made

by

the

district

judge

because

it

is

erroneous.

____________________

(2)

timely

notifying

author-

ities of his intention to enter

a

plea

of

permitting
avoid

guilty,
the

government

preparing for

permitting

the

allocate

its

efficiently,

thereby
to

trial and
court

to

resources

not

clearly

decrease

the

offense

level

by

1
1

additional level.

-1919

Muriel

responsibility for

did

some

steps

towards

his offense--he wrote a

responsibility and he

of the gun.

take

testified in court as

accepting

letter to accept

to the purchase

(PSI Report at 4; Sent. Hr'g Pt. IV at 94.)

The

prosecution and the probation officer both recommended to the

district court that Muriel receive a three-level reduction in

his

offense level

district court

for

acceptance of

did not follow the

responsibility.

The

recommendation because it

found that Muriel had lied.

It is

within the discretion of

the district court

to deny a reduction on the

basis of its determination that a

defendant has

half-truths or evasions

truth

in an

resorted to

effort

to

minimize

United States v. Ocasio-Rivera,

________________________________

1993).

his or

her

991 F.2d

1,

The district judge did not believe

from the

culpability.

5 (1st

Cir.

Muriel's repeated

assertion that the gun no longer belonged to him on the night

the

police

girlfriend.

executed

In

spite

the

of

warrant,

the

fact

but

that

belonged

Ms.

to

his

Ostos

was

unfamiliar with the gun,

had given it to her,

the pillow upon

court

found

available

to Ostos

continued to possess

Hr'g Pt.

IV

at

and that she kept the loaded

___

which he

that,

Muriel continued to insist

while

had been sleeping.

Muriel

while he

the gun

162.)

The

may

was in

have

-2020

gun under

The

made

the apartment,

up until his

district

that he

arrest.

court's

district

the

gun

Muriel

(Sent.

credibility

determination

that

Muriel

was

lying

was

not

clearly

erroneous.

III.
III.

The judgment of the district court is affirmed.

affirmed
________

-2121