USCA1 Opinion

May 2, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-2114
UNITED STATES,
Appellee,
v.
CLIFFORD K. TAPIA,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, Senior U.S. District Judge]
__________________________
____________________
Before
Selya, Circuit Judge,
_____________
Coffin and Bownes, Senior Circuit Judges.
_____________________
____________________
Marie T. Roebuck and John F. Cicilline on brief for appellant.

________________
_________________
Sheldon Whitehouse, United States Attorney,
___________________
and Gerard B. Sullivan, Assistant United States
__________________
for appellee.

Margaret E. Cur
________________
Attorneys, on br

____________________
____________________

Per Curiam.
__________
is

The sole issue raised by this appeal

whether the district

court erred, on

remand, in denying

defendant-appellant Clifford K. Tapia an additional one-level

reduction in

his offense level under

for acceptance of responsibility.

U.S.S.G.

3E1.1(b)(1)

We affirm.

I.
On
possession
U.S.C.

September

28,

of heroin with

1993,
intent to

Tapia

pled

guilty

distribute it,

to

see 18
___

841(a)(1); being a felon in possession of a firearm,

see 18 U.S.C.
___

922(g); and possession of a

altered serial number, see

___

18 U.S.C.

firearm with an

922(k).

On November

24, 1993, the district court sentenced Tapia to a prison term

of

forty-one months.

Tapia

appealed, contending

that the

district court, which granted him a two-level reduction under

U.S.S.G.
in

failing

3E1.1(a)
to

for acceptance of responsibility,

consider

whether

he

is

additional one-level reduction for having

complete information
involvement in the
June

9, 1994, we

to the
offense."

entitled

erred
to

an

"timely provid[ed]

government

concerning his

own

U.S.S.G.

3E1.1(b)(1).

On

vacated Tapia's sentence

and remanded the

case to the district court so that it could determine whether

Tapia

is eligible for the extra reduction.

Clifford K. Tapia, No. 93-2306, slip op. at 6

_________________
9, 1994).

United States v.
_____________
(1st Cir. June

Following a hearing

on remand, the district

court

denied Tapia's request for the additional one-level decrease.

In support of its

determination, the district court observed

that "there is really

the

[d]efendant in

nothing in the record to

fact

gave complete

[g]overnment, nothing at all."

the government, acting
position

that

the

information to

The court also

the

observed that

pursuant to a plea agreement, took no

on the issue.

concluded that

suggest that

Under the

circumstances, the court

it was "virtually impossible for [it] to find

[d]efendant

3E1.1(b)(1)]."

meets

the

requirements

of

This appeal followed.

II.

Contrary

to Tapia's

that the district court ruled

suggestion, we

do not

against him simply because the

government took no position on his eligibility for

reduction.

The court's

think

questions

during

the extra

the hearing

on

remand indicate that it had serious doubts whether Tapia ever

provided

complete information

Tapia's burden
States
______

v.

to prove

to

that he

Ocasio-Rivera, 991
_____________

the government.
had done

F.2d

1,

so.

It

See
___

was

United
______

(1st Cir.

1993)

(observing that the defendant bears the burden of proving his

entitlement
district

to an acceptance-of-responsibility credit).
court

ultimately

decrease because it found,

failed to carry this burden.

denied

Tapia

the

The

additional

based on the record, that

he had

-3-

We add that the district court's finding adverse to

Tapia is

not

Morillo,
_______

review).

clearly
F.3d

Based

erroneous.

864,
on

871 (1st
undisputed

See
___

United States
______________

Cir.

1993)

facts

set

(standard
forth

in

v.
of
the

Presentence Investigation Report, it appears that at the time

of his arrest, Tapia resorted to some half-truths and evasion
in order to
told

minimize his responsibility.

arresting officers

found

that he

For example, Tapia

was merely

in his apartment for dealers.

holding heroin

When the officers asked

about an additional one ounce of heroin, Tapia stated that it

had been
ledger

retrieved the day before

found in

Tapia's apartment,

profits that could be derived

heroin.

Although

arresting officers
on this record

by his supplier.

Tapia

however,

reflected the

from the sale of one

was

very

forthcoming

in certain other respects,

A drug

ounce of
to

the

we cannot say

that he ever provided complete information to

the government, much less that he did so in a timely fashion.

Affirmed.
_________

See Loc. R. 27.1.

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