# United States Court of Appeals **For the First Circuit**

No. 99-1343 UNITED STATES, Appellee,

v. JESSICA VEGA-COREANO, Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO [Hon. Jose Antonio Fuste, U.S. District Judge ]

Before Stahl and Lynch, Circuit Judges , and Gorton,* U.S. District Judge .

Luis Rafael Rivera on brief for appellant. NelsonPerez-Sosa , Assistant United States Attorney, Jorge E. Vega-Pacheco , Assistant United States Attorney, and Guillermo Gil , United States Attorney, on brief for appellee.

August 30, 2000_____________________

*Of the District of Massachusetts, sitting by designation.1 At the time, Loomis Fargo was called Wells Fargo. For

convenience, we will refer to the company by its present name. -3- ST AHL, Circuit Judge . The Defendant, Jessica VegaCoreano (“Vega”), pleaded guilty to acting as an accessory after the fact to a robbery. She nowappeals her sentence. For the following reasons, we affirm. I. Background OnMay 13, 1997, three armed robbers dressed as Loomis Fargo security guards seized control of a Loomis Fargo truck depot in Ponce, Puerto Rico. 1 As armored vehicles arrived at the depot, the drivers were held at gunpoint and the contents of each truck were removed to a getaway van. The robbers escaped withover five million dollars that Loomis Fargo had transported from Banco Popular, Banco Santander, and a United States postal facility. On May28, 1997, a grand jury returned an indictment against those purportedly responsible for the robbery. The Superseding Indictment that followed alleged, in pertinent part, that Vega had acted as an accessory after the fact to the robbery, in violation of 18 U.S.C. § 3. Although Vega initially pleaded not guilty, she later changed her plea and received a sentence of eighty-seven months in prison with three years of-4-

supervised release. Vega appeals her sentence on a variety of grounds.-5- II. Inreviewing a sentence under the United States Sentencing Guidelines (“the Guidelines”), "[w]e first determine the applicability of [each guideline] to a particular case de

novo. After determining the guideline's scope and meaning, we reviewthe district court's factual determinations for clear error, giv[ing] due deference to the district court's applicationof the guidelines to the facts." United States v. Cali , 87 F.3d 571, 575 (1st Cir. 1996) (citations and internal quotationmarks omitted). With this standard of review in mind, we turn to the merits. A.

Vega contends that because she did no more than give ref uge to those charged with committing the robbery, her base of fense level should have been capped at twenty pursuant to U.S.S.G. § 2X3.1.

Section 2X3.1 of the Guidelines provides that for the crime of acting as an accessory after the fact, the defendant's base offense level should be “6 levels lower than the offense level for the underlying offense, but in no event less than 4, or more than30.” Even so, “where the [defendant's] conduct is limited to harboring a fugitive,” the Guidelines indicate that the offense level “shall not be more than level 20.” Id. Here,-6-

althoughthe district court applied the six level adjustment that U.S.S.G. § 2X3.1 requires, it did not cap Vega's base offense level at twentybecause, in its view, she had done more than simply giving shelter to fugitives.

The record amply supports this view. Jessica Diaz testified that on the day of the robbery, Vega had accompanied one of the robbers, Jose Ramos-Cartagena, out of the house, at first for one hour and then for two hours. When Ramos returned fromthe robbery, Vega helped him secrete the proceeds of the robberyby retrieving a key for him. Vega later advised someone named “Rodi” that the money had been counted successfully. Finally, using a false name, Vega obtained three hotel rooms for the other participants in the robbery to use as a hideout. Against this background, the district court was entitled to find that Vega had helped the other defendants in ways that were not “limited to harboring a fugitive.” Id . There was no clear
er ror in refusing to cap Vega's base offense level at twenty under § 2X3.1. B.

Vega also claims that the district court should have reduced her offense level to reflect her acceptance of responsibility. See U.S.S.G. § 3E1.1.-7- Section3E1.1 of the Guidelines provides that a defendant's offense level should be reduced by two points, and sometimes three points, if she “clearly demonstrates acceptance of responsibility for [her] offense.” Even so, the Guidelines make clear that “[a] defendant who enters a guilty plea is not entitled to [this] adjustment . . . as a matter of right.” Id. applicationnote 3. “The defendant has the burden of proving [her] entitlement to an acceptance-of-responsibility credit, and the sentencing court's determination to withhold the reduction will be overturned only if it is clearly erroneous.” United States v. Ocasio-Rivera , 991 F.2d 1, 4 (1st Cir. 1993) (citations omitted).

Inthis case, Vega's Pre-Sentence Report recommended

a two point reduction in her offense level to reflect her acceptance of responsibility. See U.S.S.G. § 3E1.1(a). The district court tentatively agreed with that recommendation, but whenVega's attorney pressed for a third acceptance of responsibility point, see id. § 3E1.1(b), the court considered the matter more fully and decided against any acceptance of responsibilitycredit, basing its decision on the fact that Vega had wavered in her willingness to take complete responsibility for her criminal acts.-8- At the start of her plea colloquy, Vega claimed that she did not know about the other defendants' participation in the Loomis Fargo robbery until after they had gone into hiding. Whenpressed, Vega conceded that she actually had learned about their involvement in the robbery much earlier. But then, when Vega met with the United States Probation Office shortly before

se ntencing, she again tried to suggest that several days had passed after the robbery before she learned that the others, not just Ramos, had been involved. It was not clearly erroneous for the district court to conclude that on these facts, acceptance of responsibility credit was unwarranted. See United States v. Muriel , 111 F.3d 975, 982-83 (1st Cir. 1997) (“It is within the discretionof the district court to deny a reduction on the basis of its determination that a defendant has resorted to half-truths or evasions from the truth in an effort to minimize his or her culpability.”). C.

Vega next argues that the district court should have given her a role reduction pursuant to U.S.S.G. § 3B1.2.

Under the Guidelines, a defendant's offense level should be reduced by two levels if she was a “minor participant” inthe criminal activity. See U.S.S.G. § 3B1.2. To receive this adjustment, the defendant must show that she was “less-9-

culpable than most other participants” in the offense of conviction. Id. application note 3. In this case, Vega contends that because she was merely an accessory after the fact, she is entitled to credit for being a minor participant in the robbery.

If Vega were charged with conspiracy, then we might have occasion to consider whether she was more or less culpable thanthose who actually carried out the robbery. But Vega only faced one count of acting as an accessory after the fact, and under U.S.S.G. § 3B1.2, the relevant inquiry is whether she was culpable with respect to this particular offense. See United States v. Neal , 36 F.3d 1190, 1211 (1st Cir. 1994) (“[S]ection 3B1.2 focuses on the role of a defendant with respect to the offense(s) of which he was convicted.”); see also U.S.S.G. § 2X3.1 application note 2 (indicating that mitigating role adjustments “normally would not apply” to those charged with acting as an accessory after the fact “because an adjustment for reduced culpability is incorporated in the base offense level” for that offense).

Evenif Vega was less blameworthy than those who committed the robbery, she was as much of an accessory after the fact as the others charged with that offense, Raphael BaezGonzalez and Rodolfo Landa-Rivera. As we have said, in addition-10-

to helping Ramos secrete the proceeds of the robbery, Vega also used a false identity to obtain three hotel rooms for the other defendants. On these facts, we cannot say that the district court's refusal to grant a role-in-the-offense adjustment was clearlyerroneous. See United States v. Graciani , 61 F.3d 70, 75 (1st Cir. 1995) (observing that “battles over a defendant's status . . . will almost always be won or lost in the district court”). D.

Vega's final argument is that she should have received

a downward departure from the Guidelines because she had a difficult upbringing and because extended incarceration would disrupt her relationship with her three young children.

District courts have the discretion to depart from the sentencing range that the Guidelines suggest if “there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission.” Koonv. United States , 518 U.S. 81, 92 (1996) (quoting 18 U.S.C. § 3553(b)) (internal quotation marks omitt ed). “[E]xtraordinary characteristics such as unusual familyobligations . . . may, in certain circumstances, provide

a basis for a downward departure.” United States v. Grandmaison , 77 F.3d 555, 564 (1st Cir. 1996). Generally-11-

speaking, a district court's refusal to depart is not subject to appellate review unless the court misapprehended its authority to do so or committed some other mistake of law. See United States v. DeCosta , 37 F.3d 5, 8 (1st Cir. 1994).

Inthis case, the district court was well-aware of its discretionto grant a downward departure if “big, major, unique circumstances” warranted a sentence below the applicable guideline range. The district court chose not to exercise that discretionbecause, in its view, Vega's family circumstances

were not sufficiently unusual to justify a reduced sentence. AlthoughVega disagrees, we are not empowered to second-guess the district court in this regard. Where the trial court understood its authority to depart from the Guidelines, its refusal to exercise that authority represents a factually intensive determination that is not open to appellate review. See United States v. Caron , 208 F.3d 321, 323 (1st Cir. 2000) (observing that “refusals to depart are generally unreviewable”). III. Conclusion For the foregoing reasons, we affirm the defendant's sentence. Affirmed.