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.

Nelson Perez-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.
1At the time, Loomis Fargo was called Wells Fargo. For

convenience, we will refer to the company by its present name.

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STAHL, Circuit Judge. The Defendant, Jessica VegaCoreano (“Vega”), pleaded guilty to acting as an accessory after

the fact to a robbery. She now appeals her sentence. For the

following reasons, we affirm.

I.

Background

On May 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

with over five million dollars that Loomis Fargo had transported

from Banco Popular, Banco Santander, and a United States postal

facility.

On May 28, 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
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supervised release. Vega appeals her sentence on a variety of

grounds.
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II.

In reviewing 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

review the district court's factual determinations for clear

error, giv[ing] due deference to the district court's

application of the guidelines to the facts." United States v.

Cali, 87 F.3d 571, 575 (1st Cir. 1996) (citations and internal

quotation marks omitted). With this standard of review in mind,

we turn to the merits.

A.

Vega contends that because she did no more than give

refuge to those charged with committing the robbery, her base

offense 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 than 30.” 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,
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although the 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 twenty because, 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

from the robbery, Vega helped him secrete the proceeds of the

robbery by 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

error 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.
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Section 3E1.1 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.

application note 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).

In this 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

when Vega'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

responsibility credit, basing its decision on the fact that Vega

had wavered in her willingness to take complete responsibility

for her criminal acts.
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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.

When pressed, 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

sentencing, 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

discretion of 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”

in the criminal activity. See U.S.S.G. § 3B1.2. To receive

this adjustment, the defendant must show that she was “less
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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

than those 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).

Even if 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
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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

clearly erroneous. 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.” Koon v. United States, 518 U.S. 81, 92

(1996) (quoting 18 U.S.C. § 3553(b)) (internal quotation marks

omitted). “[E]xtraordinary characteristics such as unusual

family obligations . . . may, in certain circumstances, provide

a basis for a downward departure.” United States v.

Grandmaison, 77 F.3d 555, 564 (1st Cir. 1996). Generally
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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).

In this case, the district court was well-aware of its

discretion to 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

discretion because, in its view, Vega's family circumstances

were not sufficiently unusual to justify a reduced sentence.

Although Vega 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.