U.S. v. Cepeda, 90-1117

Decision Date07 June 1990
Docket NumberNo. 90-1117,90-1117
PartiesUNITED STATES, Appellee, v. Luis CEPEDA, Defendant, Appellant. . Heard
CourtU.S. Court of Appeals — First Circuit

John F. Cicilline, Providence, R.I., for defendant-appellant.

Margaret E. Curran, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., and Kenneth P. Madden, Asst. U.S. Atty., Providence, R.I., were on brief, for appellee.

Before BREYER, Chief Judge, BOWNES, Senior Circuit Judge, and SELYA, Circuit Judge.

BREYER, Chief Judge.

The appellant, Luis Cepeda, was convicted of distributing heroin to an undercover agent. Under the Sentencing Guidelines, he was sentenced to twenty-seven months imprisonment. He appeals from that sentence, claiming that he should have received reductions for acceptance of responsibility and for minimal participation in the offense. We find no error in the sentence imposed by the district court.

1. Acceptance of Responsibility. The Sentencing Guidelines state that a defendant's offense level shall be reduced by two levels if he "clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct." U.S.S.G. Sec. 3E1.1(a). The application notes recognize that "[t]he sentencing judge is in a unique position to evaluate a defendant's acceptance of responsibility." They provide that the judge's determination "is entitled to great deference on review and should not be disturbed unless it is without foundation." U.S.S.G. Sec. 3E1.1, application note 5. The court below found "no indication of genuine remorse," noting that the defendant had not admitted his guilt until after he had been convicted by a jury. While this alone would not preclude a finding that a defendant had accepted responsibility, the district judge was entitled to consider the timing of the confession in evaluating its credibility. See U.S.S.G. Sec. 3E1.1, application note 1(g).

The appellant also argues that the district court should have granted him the reduction for acceptance of responsibility because he voluntarily withdrew from criminal activity. See U.S.S.G. Sec. 3E1.1, application note 1(a). His only basis for this claim is that federal investigators did not discover any evidence of appellant's involvement in drug transactions other than the one for which he was indicted. However, lack of evidence of other criminal activity does not in any way indicate an affirmative withdrawal from such activity. The district court could reasonably reject this argument.

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  • U.S. v. Ortiz
    • United States
    • U.S. Court of Appeals — First Circuit
    • 4 d1 Maio d1 1992
    ...Cir.1991) (per curiam); United States v. Osorio, 929 F.2d 753, 763-64 (1st Cir.1991); Ocasio, 914 F.2d at 332-33; United States v. Cepeda, 907 F.2d 11, 12 (1st Cir.1990). 2. Supervisory Role. The enhancement of Nunez's BOL is a horse of a different hue. On that issue, the government bore th......
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    • United States
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    • 2 d1 Dezembro d1 1991
    ...and relative culpability with the elements of the offense." Ocasio, 914 F.2d at 333 (emphasis added); see also United States v. Cepeda, 907 F.2d 11, 12 (1st Cir.1990) (§ 3B1.2 reduction--based on defendant's lesser involvement in drug activities as compared with codefendants--rejected by co......
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    • U.S. Court of Appeals — First Circuit
    • 5 d2 Maio d2 1992
    ...the money." We find no error in the determination that Milagros was not entitled to a "minimal role" reduction. Cf. United States v. Cepeda, 907 F.2d 11, 12 (1st Cir.1990) (courier who drove car to deliver cocaine and collect money not entitled to either "minimal" or "minor" role reduction)......
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    ...to escape. Certainly, the district court was not legally required to find Ocasio to be a minor participant. See, e.g., United States v. Cepeda, 907 F.2d 11 (1st Cir.1990). III. DOWNWARD We are without jurisdiction to consider appellant's contention that the district court erred in declining......
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