United States v. Rosales, 1st Cir. (1996)
Uploaded by
Scribd Government DocsUnited States v. Rosales, 1st Cir. (1996)
Uploaded by
Scribd Government DocsUSCA1 Opinion
April 24, 1996
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1192
UNITED STATES,
Appellee,
v.
ROBERTO ROSALES,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
___________________
____________________
Before
Selya, Circuit Judge,
_____________
Bownes, Senior Circuit Judge,
____________________
and Cyr, Circuit Judge.
_____________
____________________
Theodore L. Craft on brief for appellant.
_________________
Guillermo Gil,
_____________
Senior
United States
Litigation Counsel,
Attorney, Jose A. Quiles-Espino
______________________
and Miguel A. Pereira,
__________________
Assistant Uni
States Attorney, on brief for appellee.
____________________
____________________
Per Curiam.
___________
In United States v. Rosales,
______________
_______
19 F.3d 763
(1st
on
Cir. 1994), this
court affirmed defendant's conviction
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
degree of upward departure undertaken.
court again departed
On remand,
upward under U.S.S.G.
imposed a 120-month prison term.
rationale for the
Defendant
5K2.0 and again
now advances two
principal challenges to his new sentence--insisting
the imposition of a
obstruction
upward
the lower
two-level enhancement under
that (1)
3C1.1 for
of justice was unwarranted, and (2) the level of
departure was
unreasonable.
As
neither contention
proves persuasive, we summarily affirm.
Extended
discussion
is
unnecessary.
The
3C1.1
enhancement was grounded
that
on the district court's
defendant committed perjury
conclusion
during his trial testimony
by repeatedly denying any involvement in the specific offense
conduct charged.
U.S. 87, 98
accused
See,
___
e.g., United States v. Dunnigan,
____ _____________
________
(1993) ("Upon
has committed
perjury at
sentence is required by the
concluding,
perjury:
the court
"whether
Campbell, 61 F.3d
________
trial, an
the correct
defendant
a material
976, 984
determination that
legal test
intentionally
matter."
In so
for
gave false
United States v.
______________
(1st Cir. 1995).
-2-
the
enhancement of
Sentencing Guidelines.").
applied
the
testimony concerning
a proper
507
Its
findings
adequately
encompassed
predicates.
See, e.g.,
___ ____
84
(1st Cir.
1994)
comprehensive than
were
all
the
necessary
United States v. Matiz, 14
_____________
_____
(rejecting challenge
those issued
adequately supported
district court observed, the
pertaining
of
to specific
here).
by the
factual
F.3d 79,
to findings
And
record.
less
those findings
Indeed, as
the
nature of defendant's denials--
allegations
of
personal
conduct--
belied
any
attributable
suggestion
to
that
his inaccurate
"confusion,
mistake,
or
testimony
faulty
was
memory."
Dunnigan, 507 U.S. at 95.
________
In objecting to the upward departure, defendant does not
contend that either of
on by
the aggravating circumstances
relied
the district court was an improper basis upon which to
ground a departure.1
1
was factually
earlier
unsupported.
argument
unexplained.
He does not assert that
that
And
the
he does
degree
Instead, he insists
not reiterate
of
imposed
departure
simply that the extent
the departure undertaken was unreasonable.
The district
either factor
court departed upward by
his
was
of
We disagree.
eight levels and
a term of 120 months--a sentence representing a 110%
increase over
the applicable sentencing range
ceiling of 57
____________________
1
1
The court rested
factors:
the
fact
its decision to depart upward
that
four
additional
on two
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.
account
It
ended
up adding
four
levels
to
for each of these concerns, for a total departure of
eight levels.
-3-
months.
Such a
departure,
deemed anomalous;
while
substantial, cannot
we have upheld departures
magnitude on various occasions.
be
of even greater
See, e.g., United States v.
___ ____ _____________
Rostoff, 53 F.3d 398, 411 (1st Cir. 1995) (reviewing cases in
_______
which upward departures representing
to
380%
over
reasonable).
the
the
And
applicable
respective
increases of from
GSR
ceilings
the 120-month sentence
40-year
considerations, given the
court's explanation
statutory
were
165%
deemed
was well short
maximum.
Given
of
these
"persuasive[ness]" of the district
for selecting the
degree of
departure,
United States v. Quinones, 26 F.3d 213, 220 (1st Cir. 1994),
______________
________
and given
the "substantial leeway"
that is accorded
such a
determination, United States v. Pratt, 73 F.3d 450, 453
_____________
_____
Cir. 1996), we
are unprepared
to say that
the court
(1st
acted
unreasonably.2
2
Affirmed. See Loc. R. 27.1.
____________________________
____________________
2
2
Defendant
has listed
some five
other issues
in his
"statement
of issues,"
respect thereto.
but
has provided
no argument
with
We therefore decline to address them.
See,
___
e.g., McIntosh v. Antonio, 71 F.3d 29, 38 (1st Cir. 1995).
____ ________
_______
-4-
