United States v. Melendez-Rivera , 782 F.3d 26 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 13-2136
UNITED STATES OF AMERICA,
Appellee,
v.
JULIO MELÉNDEZ-RIVERA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Torruella, Selya and Thompson,
Circuit Judges.
Joshua L. Solomon, Matthew B. Arnould, and Pollack Solomon
Duffy LLP on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Francisco A. Besosa-Martínez, Assistant United States
Attorney, on brief for appellee.
April 1, 2015
SELYA, Circuit Judge. This sentencing appeal hinges on
two claims of error. One is hopeless, but the other requires us to
answer a question about whether an additional one-level downward
adjustment for acceptance of responsibility, see USSG §3E1.1(b),
sometimes may be available without a government motion. Concluding
that the answer to this question is affirmative, we remand for
resentencing.
Because this appeal follows a guilty plea, we glean the
relevant facts from the change-of-plea colloquy, the unchallenged
portions of the presentence investigation report (PSI Report), and
the transcript of the disposition hearing. See United States v.
Vargas, 560 F.3d 45, 47 (1st Cir. 2009); United States v. Dietz,
950 F.2d 50, 51 (1st Cir. 1991). In April of 2011, Immigration and
Customs Enforcement (ICE) agents were hot on the heels of a drug-
trafficking ring. As part of this investigation, an undercover
agent (whom we shall call "X") began negotiating a drug smuggle
with members of the ring. On April 14, one of the suspects,
Eliezer Delgado-Ramos ("Delgado"), met with X to coordinate the
venture. Defendant-appellant Julio Meléndez-Rivera attended this
meeting.
The hatched plot contemplated that X would rendezvous
with a vessel at sea, receive approximately 1,000 kilograms of
cocaine, bring the contraband ashore in Puerto Rico, and place it
in a van that would subsequently be driven away by the drug ring.
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On May 1, X effected the transfer at sea, and federal agents seized
the cocaine before it reached the shore.
Blissfully unaware that the drugs had been intercepted,
the appellant and Delgado gave X the keys to the van in which the
cocaine was to be loaded. The next day, federal agents and other
law enforcement officers conducted a controlled delivery: they
loaded the van with ersatz cocaine and left the van at the agreed
location. The appellant drove away in the van and was promptly
apprehended.
In due season, a federal grand jury sitting in the
District of Puerto Rico returned an indictment. Pertinently, it
charged the appellant with conspiracy to import over five kilograms
of cocaine into the United States (count 1), see 21 U.S.C. §§ 960,
963, and conspiracy to distribute over five kilograms of cocaine
(count 2), see id. §§ 841(a)(1), 846. After some preliminary
skirmishing, the appellant entered a straight guilty plea. The
probation office then prepared the PSI Report, which recommended a
guideline sentencing range of 188-235 months.
Prior to the disposition hearing, the appellant filed a
sentencing memorandum urging a downward adjustment for what he
deemed his mitigating role in the offense.1 See USSG §3B1.2(b).
1
If applicable, this adjustment would have made the appellant
eligible for the so-called "safety valve," see USSG §2D1.1(a)(5),
which potentially could have lowered his offense level even
further.
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The sentencing memorandum further urged a three-level downward
adjustment for acceptance of responsibility (rather than the two-
level adjustment recommended in the PSI Report). See id.
§3E1.1(b).
The sentencing court convened the disposition hearing on
August 23, 2013. The court eschewed any mitigating role
adjustment, concluding that the appellant's part in the conspiracy
was not minor. At the same time, it granted a two-level reduction
for acceptance of responsibility but rejected the appellant's
importunings for an additional adjustment, stating "I don't think
I can grant it. I don't have the discretion to do so unless the
government files [a] motion." The court proceeded to impose a
bottom-of-the-range term of immurement: 188 months. This timely
appeal ensued.
The appellant's first claim of error is easily
dispatched. It rests on the notion that, on the facts, the
sentencing court should have classified the appellant as merely a
bit player in the conspiracy and discounted his offense level
accordingly. That notion is fatuous.
The sentencing guidelines authorize a two-level reduction
in a defendant's offense level upon a finding that "the defendant
was a minor participant in [the relevant] criminal activity." Id.
§3B1.2(b). To qualify for this adjustment, a defendant must show
that he is both less culpable than most of his cohorts in the
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particular criminal endeavor and less culpable than the mine-run of
those who have committed similar crimes. See United States v.
Ocasio, 914 F.2d 330, 333 (1st Cir. 1990). A defendant bears the
burden of proving his entitlement to a minor participant reduction
by a preponderance of the evidence. See United States v. Quiñones-
Medina, 553 F.3d 19, 22 (1st Cir. 2009).
A determination of a defendant's role in the offense is
invariably fact-specific and, thus, appellate review of such a
determination is respectful. See United States v. Santos, 357 F.3d
136, 142 (1st Cir. 2004). "Consequently, we review a district
court's resolution of the facts relative to a minor role adjustment
for clear error . . . ." Quiñones-Medina, 553 F.3d at 22. Given
this deferential standard of review, battles over a defendant's
role in the offense "will almost always be won or lost in the
district court." United States v. Graciani, 61 F.3d 70, 75 (1st
Cir. 1995).
In this instance, the sentencing court concluded that the
appellant had not demonstrated by preponderant evidence that he was
a minor participant in the drug-smuggling venture. To support its
conclusion, the court emphasized that the appellant had been
present when the plot was hatched; that he and Delgado delivered
the van in which the drugs were to be transported; and that, after
the van was loaded with what the appellant thought were drugs, he
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drove it away. The appellant does not dispute the accuracy of any
of these facts.
The appellant labors nevertheless to portray himself as
an "expendable cog" in the venture by labeling Delgado as the
decisionmaker. This sets up a false dichotomy: a defendant need
not be the key figure in a conspiracy in order to be denied a
mitigating role-in-the-offense adjustment. See, e.g., United
States v. García-Ortiz, 657 F.3d 25, 29-30 (1st Cir. 2011); United
States v. Mateo-Espejo, 426 F.3d 508, 512 (1st Cir. 2005). What
counts is that the appellant was present for the planning of the
scheme and deeply involved in its execution. There is, therefore,
no good reason to believe that he was less culpable than the mine-
run of those who have committed similar crimes. Indeed, we have
routinely upheld the denial of a mitigating role adjustment in
drug-trafficking cases for defendants who have had even less
involvement than the appellant. See, e.g., Vargas, 560 F.3d at 50-
51 (affirming denial of adjustment where defendant's sole
involvement in conspiracy was driving delivery truck containing
single shipment of cocaine); United States v. Ortiz-Santiago, 211
F.3d 146, 149 (1st Cir. 2000) (affirming denial of adjustment where
defendant performed only "menial tasks" such as unloading drugs and
standing watch).
That ends this aspect of the matter. Mindful of the
deferential lens through which we must review fact-intensive role-
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in-the-offense determinations, we cannot say that the sentencing
court committed any error, clear or otherwise, in rejecting the
appellant's bid for such an adjustment.2
This brings us to the appellant's claim that the
sentencing court erred in holding that it lacked discretion to
grant an additional one-level adjustment for acceptance of
responsibility absent a government motion. The question presented
is legal in nature and engenders de novo review. See Quiñones-
Medina, 553 F.3d at 22.
We set the stage. The sentencing guidelines create a
two-tiered system for treating acceptance of responsibility. The
first tier comprises a basic two-level reduction in the offense
level when the court determines that a defendant has accepted
responsibility for the offense of conviction. See USSG §3E1.1(a).
If the defendant receives this first-tier adjustment and if his
offense level, calculated without reference to the first-tier
adjustment, is 16 or more, the second tier comes into play. That
tier makes available a further one-level adjustment "upon motion of
the government stating that the defendant has assisted authorities
2
To the extent that the appellant implies that the district
court committed procedural error by failing adequately to explain
the reasons for its denial of a mitigating role adjustment, the
implication is unwarranted. The court spelled out in sufficient
detail the reasons why it believed the appellant did not deserve a
mitigating role adjustment. See United States v. McDowell, 918
F.2d 1004, 1012 (1st Cir. 1990) (tasking district courts with
making "reasonably specific findings" in constructing guideline
sentencing range).
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in the investigation or prosecution of his own misconduct by timely
notifying authorities of his intention to enter a plea of guilty,
thereby permitting the government to avoid preparing for trial and
permitting the government and the court to allocate their resources
efficiently." Id. §3E1.1(b).
Here, the court awarded the two-level discount provided
in section 3E1.1(a). The appellant, whose offense level
(calculated without reference to the section 3E1.1(a) reduction)
was 38, then sought the additional one-level reduction under
section 3E1.1(b). When the government refused to move for this
additional reduction, the appellant claimed that the government was
improperly withholding the motion because it wanted to punish him
for spurning a plea agreement. The district court did not resolve
this claim, concluding instead that a government motion was a sine
qua non to a section 3E1.1(b) reduction.
The present problem, of course, arises out of the
language of section 3E1.1(b), which is prefaced with the phrase
"upon motion of the government." At the time that the appellant
was sentenced, the November 2012 edition of the guidelines
pertained. The then-current guideline commentary stated that
"[b]ecause the Government is in the best position to determine
whether the defendant has assisted authorities in a manner that
avoids preparing for trial, an adjustment under subsection (b) may
only be granted upon a formal motion by the Government at the time
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of sentencing." Id. §3E1.1, comment. (n.6). But guideline
commentary is not always to be taken as gospel, see Stinson v.
United States, 508 U.S. 36, 43-45 (1993); United States v. Piper,
35 F.3d 611, 617 (1st Cir. 1994), and the main question presented
by this appeal is the extent (if at all) to which the sentencing
court retains discretion to grant the additional one-level
adjustment under section 3E1.1(b) without a government motion.
The answer to this question is informed by our decision
in United States v. Beatty, 538 F.3d 8 (1st Cir. 2008). There, we
considered the scope of the government's discretion to withhold a
motion for the additional one-level discount for acceptance of
responsibility. Id. at 13-17. We held that even though the
government enjoys wide discretion in deciding whether to move for
this adjustment, the district court's hands are not tied simply
because the government abjures such a motion. See id. at 14-15.
Rather, the court may grant the additional level when the
government's withholding of the predicate motion "was based on an
unconstitutional motive" or "was not rationally related to any
legitimate government end." Id. at 14 (internal quotation marks
omitted); cf. Wade v. United States, 504 U.S. 181, 185-86 (1992)
(adopting this approach in the context of the government's refusal
to file a substantial-assistance motion under USSG §5K1.1). The
district court's conclusion that it lacked discretion to grant the
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requested adjustment without a government motion overlooked the
Beatty exception and, thus, was incorrect as a matter of law.3
Let us be perfectly clear. We do not suggest that the
appellant is deserving of the additional one-level adjustment. We
do not know, and, in all events, that matter is for the sentencing
court. But once the appellant raised a claim that the government
withheld its section 3E1.1(b) motion for an improper reason, he was
entitled to have the district court resolve this point. Cf. United
States v. Mariano, 983 F.2d 1150, 1153 (1st Cir. 1993) (remanding
where district court erroneously concluded that it lacked
discretion to depart downward based on defendant's substantial
assistance).
We need go no further. For the reasons elucidated above,
we affirm the denial of a mitigating role adjustment, vacate the
denial of a second-tier acceptance of responsibility adjustment,
and remand the case with directions to vacate the sentence and
conduct a new sentencing hearing consonant with this opinion.4 At
3
Beatty adumbrated subsequent action by the Sentencing
Commission. Amendment 775, which became effective on November 1,
2013, provides that "[t]he government should not withhold [a
3E1.1(b) motion] based on interests not identified in §3E1.1
. . . ." USSG §3E1.1, comment. (n.6). Amendment 775 makes
pellucid that, consistent with Beatty, the sentencing court has the
authority to review the government's reasons for withholding a
section 3E1.1(b) motion. See United States v. Palacios, 756 F.3d
325, 326 (5th Cir. 2014) (per curiam).
4
We note that, when an appellate court vacates a sentence and
remands for sentencing, the resentencing court normally is to apply
the version of the guidelines in effect at the time of
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resentencing, the only open questions (apart from the length of the
sentence to be imposed) shall be whether the government improperly
withheld the section 3E1.1(b) motion and, if so, whether the
appellant is entitled to the additional one-level discount for
acceptance of responsibility.
resentencing. See Restrepo-Contreras v. United States, 99 F.3d
1128 (1st Cir. 1996) (per curiam) (table), full text at 1996 WL
636560, at *1.
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