USCA1 Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-2205
UNITED STATES,
Appellee,
v.
LUIS A. COLON-RIVERA,
Defendant, Appellant.
__________
No. 92-2206
UNITED STATES,
Appellee,
v.
JOSE ALBERTO ACEVEDO-GUZMAN,
Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Torruella and Boudin, Circuit Judges.
______________
____________________

Gustavo Adolfo Del Toro on brief for appellant Luis A. Col

________________________
Rivera.
H. Manuel Hernandez on brief for appellant Jose A. Aceve
____________________
Guzman.
Charles E. Fitzwilliam, United States Attorney, Jose A. Quil
_______________________
_____________
Espinosa, Senior Litigation Counsel, and Edwin O. Vazquez, Assist
________
_________________
United States Attorney, on brief for appellee.
____________________
September 9, 1993
____________________

Per Curiam.
___________

Appellants Jose

Guzman ("Acevedo") and

pled

Alberto

Luis A. Colon-Rivera

Acevedo-

("Colon") each

guilty to one count of committing bank robbery, see 18

___

U.S.C.
during

2113(a), 2113(d), and

the commission

924(c)(1)(3).
sentences on
various

such crime.

Acevedo and Colon

grounds

errors in

their cases.

of

that the

applying

We affirm.

one count of using firearms

See 18
___

U.S.C.

challenge their respective

sentencing judge

the Sentencing

committed

Guidelines

to

I
Background
__________
In
plea

the presentence

hearing,

the United

States

evidence of the appellants'

approximately 9:30

report and

proffered

guilt.

a.m., Colon

at the

struck

Upon

encountering

dragged him inside the

wearing masks, then entered

perpetrators,

and

Acevedo jumped

Laguna Gardens
Colon

a revolver and

Colon and Acevedo,

armed and

the bank, along with

two other

announced a

over the

at the

security guard,

the head with

bank.

1992, at

and Acevedo arrived

a bank

the security guard on

the following

On January 3,

doors of the Banco Santander de Puerto Rico,

Branch.

change of

bank

robbery.

tellers' counter and

Colon

and

proceeded to

take money from the bank tellers' drawers. During this time,
Acevedo instructed Colon as to which money be taken in order
to avoid
the

dye packs.

He

back with his weapon,

also struck one of

threatened to kill

the tellers in
all of them,

-2-

and

asked

the

tellers

where

the

bank

manager

was.

Thereafter, Acevedo
the

went to

manager by the hair,

the vault,

the manager's office,

and asked for

make their

get-away in

had helped to

steal two

stymied when a

Cavalier station

days earlier.
dye pack

Their attempt

exploded inside

wagon from a passing

the car,

motorist, and headed

escape.

Their escape route was

helicopter, whose pilot

on the vessel.

was

At the lagoon, they boarded a

small boat in an attempt to

a police

which Acevedo

They then carjacked a Chevrolet

towards the San Jose lagoon.

blocked by

the four men attempted to

a Mitsubishi Mirage,

forcing them to abandon it.

people

the combination to

from where he took almost $30,000.

After leaving the bank,

quickly

grabbed

Shots were fired

observed five

at the helicopter

from the boat, and Colon, in particular, was observed firing

an AR-15 rifle at the helicopter.
to the lagoon.

The boat then turned back

Before surrendering himself,

Colon was seen

shooting towards the police officers on the ground.

On
guilty

to

sentenced

June

22-23, 1992,

both counts
to

term of

robbery) count, and a

second (firearms)

of

the
235

the

appellants

indictment.
months

on

each pled

Acevedo

the first

consecutive term of 60 months

count.

In
-33

arriving at this

was
(bank

on the

amount, the

sentencing

judge

determined

leadership role in an
he

Acevedo

had

offense involving five

therefore increased

U.S.S.G.

that

3B1.1(a).

the

offense level

He also found

denied

3E1.1(a).

Colon was

imprisonment on the
second,
sentence,

to

be

U.S.S.G.

sentenced to

served

2B3.1(b)(2)(A),

had not

See
___

U.S.S.G.

term of

In

175 months
as to

setting

seven-level increase

a revolver was discharged

and a

See
___

in the offense,

and 60 months

concurrently.

awarded a

four.

that Acevedo

decrease.

first count,

the judge

finding that
see
___

two-level

participants;
by

accepted responsibility for his involvement

and thus

played

the
this
after

during the robbery,

two level

increase

after finding that Colon

had recklessly created grave risks

to

of fleeing from

others in the course

officer.

See U.S.S.G.
___

a law enforcement

3C1.2.
II
Acevedo
_______

Acevedo argues that the

sentencing judge erred by

enhancing his offense level

in the crime, and

for his alleged leadership role

by declining to reduce his

for his acceptance of responsibility.

offense level

We disagree.

A. Leadership Role
_______________

-44

The sentencing
"organizer or
five

or

leader" of a criminal

more

enhancement,

participants,
as

Appellant attacks
had

judge found

co-equal

authorized

the

Acevedo was

an

activity that involved

and

imposed

by

U.S.S.G.

this enhancement
role in

that

four-level
3B1.1(a).

on grounds that

offense,

and

(1) he

(2) there

is

insufficient evidence to establish that the offense involved

five or more participants.
We find that the district court had ample evidence
to support its conclusion.

See United States v. Wright, 873

___ _____________
F.2d 437, 443 (1st
of the
facts

Cir. 1989) (district court's application

"role in the
of

each

reviewed only
demonstrated
heist.

should,

for clear

whether

organizational role
court

participation

absent

error).

his prominent

See U.S.S.G.
___

determining

the

offense" guidelines to

case

by

______

considers
in the

role

such

of

in orchestrating

had

commission of

as

Note

the

(in

leadership

meaning of

factors

law, be

leadership was

Application

defendant

within the

mistake

Acevedo's

3B1.1,
a

the particular

or

this provision,
"the

nature

the offense").

of

After

jumping over the tellers' counter with Colon, it was Acevedo

who gave orders to Colon as to which money to
to avoid the

dye pack.

Acevedo engaged

take in order

in other

conduct

-55

critical to the enterprise that apparently

no one else did,

such

as procuring the get-away car, threatening to kill the

tellers, asking them

for the bank manager,

asking the bank

manager for the vault combination, and taking the money

of the safe.
1220

(1st

Cir.

defendant
involved

See United States

___ _____________
1990)

v. Fuller, 897 F.2d

______

3B1.1

enhancement

"exercised some

degree

of control

in the commission of

been responsible

1217,

applies
over

the offense or

for organizing

out

if

others

he must have

others for the

purpose of

carrying out the crime").

We also reject Acevedo's contention that there was
insufficient evidence for
that there were
offense.

the sentencing judge to

five or more

According to the

conclude

participants involved in

the

record, the helicopter pilot who

intercepted the fleeing boat

asserted that he observed five

individuals

Such

considered
(sentencing

aboard

it.

by the sentencing
court may

probable accuracy").

judge.

consider

which has "sufficient indicia

evidence
See
___

was

properly

U.S.S.G.

all pertinent

6A1.3

information

of reliability to support its

Furthermore, the judge's determination

as to its reliability is entitled to considerable deference.

See
___

United States v. Bradley,

_____________
_______

1990).
-66

917 F.2d 601,

605 (1st Cir.

-77

clearly

B.

Acceptance of Responsibility
____________________________

We

also

err

in

find that
finding

that

responsibility for his criminal

reduce

his

offense level

the

district

Acevedo

had

court did
not

not

accepted

conduct, and in refusing to

by two.

See United States v.

___ ______________

Reyes, 927 F.2d 48, 50 (1st Cir. 1991) (denial of a downward

_____
adjustment

for

clear error).
courts to

acceptance of
The

Sentencing

responsibility

reviewed for

Guidelines authorize

trial

grant a two-level reduction to a defendant's base

offense level only "[i]f

the defendant clearly demonstrates

recognition

and

affirmative

responsibility for his

3E1.1(a).

Although

act alone does

of

right.

court

criminal conduct."

Acevedo did enter

of

personal

See U.S.S.G.
___

a guilty plea,

this

not entitle him to an adjustment as a matter

See U.S.S.G.
___

considers

determination.
presents

acceptance

3E1.1(c).

variety

See
___

of

factors

Reyes, 927
_____

significant

Rather, a sentencing
in

F.2d at

evidence

of

51.

his

making

this

A defendant

acceptance

of

responsibility by -- in addition to entering a guilty plea -

truthfully

involvement
U.S.S.G.

admitting,

in

the

3E1.1,

hearing, however,

or

offense

not
and

falsely
related

Application Note 3.

At

denying,
conduct.

his
See
___

his sentencing

Acevedo denied having played a leadership

-88

role

in the

offense,

giving instructions

to his

cohorts

inside the

bank, threatening the bank

the manager
clear

by the

error

responsibility

hair.

to

deny

for a

teller, and grabbing

See Reyes, 927

___ _____
reduction

F.2d at

for

defendant who,

51 (no

acceptance

after being

of

found to

have had a leadership role in offense, attempted to minimize

such role); United States
_____________
Cir.)

(same),

cert.
_____

v. Shipley, 963 F.2d 56,

_______

denied,
_______

113

S.

Ct.

348

59 (5th
(1992).

Moreover, the record here, as in Reyes, "is most notable for

_____
the fact that a genuine feeling
lacking."

of remorse is conspicuously

Reyes, 927 F.2d at 51.

_____

When asked why he pleaded

guilty, for example, Acevedo answered "because I had nothing

in

my favor so to speak," and

participating in the

when asked how he felt about

robbery, he said that

"I am repentant

because I'm not able to see my family."

II
Colon
_____
Colon contends that the

sentencing judge erred by

raising

his

offense level

to reflect

firearm

and

his

endangerment

disagree.

A.
The

by

reckless

the discharge
of

others.

of a
We

Firing Weapon
_____________

district court enhanced Colon's offense level

seven levels,

pursuant

to U.S.S.G.
-9-

2B3.1(b),

which

discusses "Specific Offense Characteristics," and authorizes

an

increase

of

such

discharged." U.S.S.G.
Colon

magnitude

firearm

enhancement on

no evidence whatsoever that

discharged during the robbery."

that Colon "was

helicopter with

AR-15 rifle,"

toward the police officers

mean to argue that

the ground

a firearm was

But the presentence report

specifically states
an

was

2B3.1(b)(2).

challenges this

that "[t]here is

"[i]f

observed shooting
and that

"he also

before surrendering."

the
shot

Colon may

2B3.1(b)(2)(A) authorizes a seven-level

increase

only if a firearm was discharged during the actual

robbery,

i.e., while he and

____

since

he fired his weapon

bank, such an
2B3.1,

increase is

his cohorts were

after they had

already left the

not warranted.

Background ("Possession

or use

sometimes occur[s] during a robbery.

in the bank;

of a

See U.S.S.G.
___
weapon .

. .

The guideline provides

________________
for

range of

enhancements

where

th[is] factor[]

[is]

present.") (emphasis added).

If
fails.

The

this

is Colon's

Sentencing Guidelines

defendant's conduct in
for an

intended

argument,

then it

expressly state

that a

escaping detection or responsibility

offense is to be considered

offense characteristics,

and

in determining specific

hence the

Guideline

offense

-1010

level.

See U.S.S.G.
___

specified,
shall

. .

1B1.3(a)(1) ("[U]nless

. specific

be determined

on the

offence
basis of

otherwise

characteristics .
. .

. all

. .

acts and

omissions committed or aided and abetted by the defendant

. . that occurred . . . in the course of attempting to avoid

detection

or responsibility

Indeed, two sister circuits

for

that offense

. .

. .").

have specifically stated that a

bank robber's conduct,

and the consequences

fleeing the

bank are considered for

part of the

offense.

F.2d 1449, 1456

thereof, while

sentencing purposes as

See United States

___ _____________

v. Muhammad,
________

(6th Cir. 1991) (police officer

948

injured by

bank robber after he had fled the bank was a "victim" of the
robbery

within

the

meaning

of

increase

U.S.S.G.
in offense

2B3.1(b)(3),

thereby

warranting an

level),

cert.
_____

denied,
______

112 S. Ct. 1239 (1992); United States v. Bates, 896

_____________
_____

F.2d 912, 914-15 (5th Cir.) (rejecting as meritless argument

that defendant's
was not part of
ground

that

conduct during flight from

bank he robbed

offense while allowing upward departure

post-robbery

conduct

was

on

particularly

egregious), cert. denied, 496 U.S. 929, 942 (1990).

_____ ______
B.

Reckless Endangerment during Flight

___________________________________

Colon
decision

to

also
increase

challenges
his

the

offense
-1111

sentencing
level

by

judge's
two

for

"recklessly

creat[ing]

serious bodily

substantial

injury to

another person in

fleeing from a law enforcement

Although Colon
challenge, he
enhanced

does not

officer."

state

twice

police, the first time

2B3.1(b)(2)(A).

of

death

or

the course

of

U.S.S.G.

the precise

may have intended

his sentence

risk

ground of

to contend that

for firing

3C1.2.

his

the judge

weapon at

the

being the seven-level increase under

A

double

enhancement

for

the

same

conduct, however, would disregard the commentary to U.S.S.G.

3C1.2, which

states that

judges should

"not apply

this

enhancement where the offense guideline in Chapter Two . . .

results

in an

equivalent

or greater

increase in

level solely on the basis of the same conduct."

offense

U.S.S.G.

3C1.2, Application Note 1.

If

this

is

Colon's

argument,

then

it

fails.

Continuously firing a rifle, and carrying on a gunfight with

the police

in

public, outside

the bank,

carries with

it

significantly greater risks to others than a simple shooting

episode.

Moreover, during

his flight from the

recklessly created grave risks

other than simply firing
also crashed

to other individuals in ways

at the police: he and

their get-away

carjacked another vehicle by

bank, Colon

car into another

his cohorts
vehicle, and

holding its owner at gunpoint.

-12-

12

These
under

are more

than sufficient

to warrant

an enhancement

3C1.2, without double counting.

For the

are
Affirmed.
________

foregoing reasons, the

sentences imposed

-1313