USCA1 Opinion

[NOT FOR PUBLICATION]

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

_________________________
No. 92-2461
UNITED STATES OF AMERICA,
Appellee,
v.
CARLOS DANIEL ROSA-HERNANDEZ,
Defendant, Appellant.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
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_________________________
Before
Selya, Circuit Judge,
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Feinberg,* Senior Circuit Judge,
____________________

and Stahl, Circuit Judge.

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Irma R. Valldejuli on brief for appellant.

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Daniel F. Lopez-Romo, United States Attorney, Jose A.
______________________
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Quiles-Espinosa, Senior Litigation Counsel, and Warren Vazquez,
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Assistant United States Attorney, on brief for appellee.
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May 11, 1993
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*Of the Second Circuit, sitting by designation.

Per Curiam.
Per Curiam.
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This sentencing appeal has two

foci.

We

consider each in turn.

First, defendant-appellant Carlos Daniel Rosa-Hernandez

claims that the
a minor player in

district court erred in refusing to treat him as

the offense of conviction (a

drug-trafficking

crime).

See U.S.S.G.
___

reduction in the

Absent

mistake of law,

role-in-the-offense

United States v.
_____________
this

his

adjustment."

defendant is a

for

a trial

clear error.

12, 18 (1st

Cir. 1992);

Akitoye, 923 F.2d 223, 227 (1st Cir. 1991).

_______
task

mindful that,

decreasing adjustments, a
proving

954 F.2d

a two-level

we review

assessments only

See United States v. Garcia,

___ ______________
______

approach

for

applicable offense level if the

minor participant).
judge's

3B1.2(b) (providing

"[a]s

with

other sentence-

defendant must shoulder the

entitlement

to

downward

We

burden of

role-in-the-offense

United States v. Ocasio-Rivera, No.

______________
_____________

92-2100, slip

op. at 5 (1st Cir. April 1, 1993).

Appellant did
of the presentence

not challenge the

investigation report.

factual underpinnings
From the contents

of

that report, the district court could permissibly have found that
appellant actively
with

his cohort,

participated in a

meeting on April

Miguel Rodriguez-Gonzalez, and

informant (who was acting as

purchaser, a government
joined the

trio, appellant made

anybody to

see his (appellant's)

shooed the purchaser

a confidential

an internuncio for the

agent); that, when the

it clear

prospective

undercover agent

that he did

face; that, after the

away, the informant emerged

16, 1992

not want

men had

from a further

meeting

with appellant

agent,

and gave him

delivery of

and

instructions, attributed to

the purchase

center);

that,

Gonzalez

and the

Rodriguez-Gonzalez,

money to a

thereafter,
informant

met

to the

(a shopping

transported

shopping

the

appellant, for

specific site

appellant

with

Rodriguez-

center, where

he

introduced the informant to Julio Gomez-Gonzalez; and that, later

the same afternoon,

the informant and

to consummate the sale of

At

the time of the

center, standing
found)

Gomez-Gonzalez attempted

five kilograms of cocaine for $85,000.

arrest, appellant was

by his truck, and

either overseeing

or

still at the shopping

(or so the court

keeping

watch

to

could have

safeguard

the

transaction.
To
participant

be sure,
at the

facts recounted
found
In

appellant

time of

above, the

that appellant was

short, given,

was

sale.

not

hands-on

Nevertheless, based

lower court

burden

on the

supportably could

a full-fledged player

especially, the

direct,

have

in the venture.

of proof,

we do

not

believe that the court was legally required to accept appellant's

self-serving claim

that he

was a

minor participant.

Compare,
_______

e.g., Ocasio-Rivera, slip op. at 5-7; United States v. Ortiz, 966

____ _____________
_____________
_____
F.2d 707,

717 (1st

Cir. 1992),

cert. denied,
_____ ______

113 S.

Ct. 1005

(1993);

United States
_____________

v. DiIorio,
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948

1991); United States v. Rosado-Sierra,

_____________
_____________
1991) (per

curiam); United States

_____________

(1st Cir. 1991);

Cir.

1990).

In

United States v.
_____________
the

F.2d 1,

5-6 (1st

Cir.

938 F.2d 1, 1-2 (1st Cir.

v. Osorio, 929 F.2d

______

753, 764

Cepeda, 907 F.2d 11,

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12 (1st

final analysis,

when

there are

several

plausible views of

the record, "the sentencing

of one such view cannot be

St. Cyr,
_______

court's adoption

clearly erroneous."

977 F.2d 698, 706

(1st Cir. 1992).

United States v.
_____________
So it is

in this

case.
Appellant's remaining
He

claims that,

promised that it

as part

of

asseveration is
a plea

no more

agreement, the

would "not oppose [his] request

hardy.

government

for a downward

adjustment for his role in the offense," Appellant's Brief at 11,

but
many

reneged on the promise.

and

they

The problems with this argument are

are insurmountable.

The

most

fundamental

difficulty is the ephemeral nature of the alleged agreement:

the

record does not contain

the supposed promise.

a whisper of a hint of

an intimation of

Moreover, appellant, who

was represented

at all times by able counsel, did not assert the existence of any

such promise in the written petition that accompanied his request

to

the district

colloquy that
Fed. R.

court for

plead guilty,

transpired during the change-of-plea

Crim.

P.

11,

presentence report.
occasions,

permission to

or

in his

written

hearing, see
___

objections

In point of fact, on the first two

appellant explicitly

denied

in the

that any

to

the

of these

promises, not

previously disclosed, had been made to him.

We
statements.

see

no

reason

to

look

behind

appellant's

own

We have repeatedly refused to imply plea agreements

or plea agreement

provisions out of thin air,

see, e.g., United

___ ____ ______

States v. Doyle, 981 F.2d 591, 594 & n.3 (1st Cir.
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States v. Atwood,
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1992); United
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963 F.2d 476, 479 (1st Cir. 1992); Garcia, 954

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4

F.2d

at 17;

United States v.
_____________

Cir. 1988), and

we adhere to

Hogan, 862 F.2d

_____
that view today.

386, 388-89 (1st

If there

was a

promise

and we emphasize that we have found no sign of one

should have been made known to

the district court no later

it

than

the date of the Rule 11 hearing, not kept hidden amidst counsel's
or defendant's

unspoken reveries.

See Garcia,
___ ______

954 F.2d

at 17

n.3; Hogan, 862 F.2d at 389 n.4.

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The upshot is

that appellant has no case.

clearly appears

that Rosa-Hernandez

that his appeal

presents no substantial question, we

further.

Affirmed.
Affirmed.
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See 1st Cir. Loc.R. 27.1.

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was lawfully

Because it

sentenced and

need go no