USCA1 Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 97-1033

UNITED STATES,

Appellee,

v.

DAVID RIVERA, A/K/A KENNETH BAKER,

A/K/A CHRISTOPHER TOLAN,

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,

_____________
Cyr, Senior Circuit Judge,
____________________
and Boudin, Circuit Judge.
_____________

____________________

Robert A. Strumwasser on brief for appellant.

_____________________

Sheldon Whitehouse,
___________________

United

States

Attorney,

on

brief

appellee.

____________________

December 10, 1997

____________________

Per Curiam.
__________

Upon careful

review

of the

briefs

and

record, we find no reason to overturn defendant's sentence.

Defendant

alleged

alert

of the

plea

breach

defendant's

plain

did not

acceptance

district

agreement,

appellate allegation for

error appears.

government's

the

Under

obligation

and so

not

plainly

not

to

was

oppose

the

conditional upon

breach that

conditional

obligation unconditional;

transcript,

read as a whole, convinces

adequately

alerted

No

defendant

the

for

whether

in the criminal

the government

obligation.

that the plea colloquy

government's

court

any

review

decrease

he is pleading guilty," and

reject defendant's argument

we

plain error only.

defendant "truthfully admits his involvement

did

to

the written plea agreement, the

of responsibility

conduct to which

court

We

made the

change of

plea

us that the district

that his

truthfulness

would be a continuing question at sentencing.

The district

court

properly refused

the decrease

for

acceptance of responsibility based on its negative assessment

of

of

defendant's credibility and candor and its interpretation

defendant's

statements

purporting

instant offense.

F.2d

ambiguous,

1, 5 (1st

assessment

and

arguments,

it

See
___

to

rationalized,

accept

does

not

for

the

v. Ocasio-Rivera,
_____________

991

We will not

interpretation.

appear

-2-

qualified

responsibility

United States
_____________

Cir. 1993).

and

Contrary

that

the

second-guess that

to

defendant's

district

court

considered

impermissible

factors

speculation in that regard.

district

court

that

or

engaged

improper

In any event, we agree with the

defendant's

statements

demonstrate a clear acceptance of responsibility.

Affirmed.
________

in

See 1st Cir. Loc. R. 27.1.

___

did

not

-3-