United States v. Melendez , 775 F.3d 50 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 13-1899
UNITED STATES OF AMERICA,
Appellee,
v.
WILFREDO MELENDEZ,
Defendant, Appellant.
___________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
___________________
Before
Lynch, Chief Judge,
Ripple* and Selya, Circuit Judges.
___________________
Mark E. Howard for appellant.
Kelly Begg Lawrence, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.
___________________
* Of the Seventh Circuit, sitting by designation.
December 22, 2014
___________________
‐2‐
RIPPLE, Circuit Judge. Wilfredo Melendez was charged
with conspiracy to distribute cocaine, in violation of 21 U.S.C.
§§ 841(a)(1) and 846, and possession of a firearm in furtherance
of a drug offense, in violation of 18 U.S.C. § 924(c)(1)(A).
Mr. Melendez pleaded not guilty, and the case was tried to a
jury. During its deliberations, the jury posed two questions to
the district court, which the court answered after consulting
with the parties. The jury found Mr. Melendez guilty of
conspiracy to distribute five kilograms or more of cocaine, but
not guilty of possession of a firearm in furtherance of a drug
trafficking crime. The district court sentenced Mr. Melendez to
144 months’ imprisonment, a sentence below that suggested by the
United States Sentencing Guidelines. Mr. Melendez now appeals;
he contends that the district court’s responses to the jury’s
questions, as well as its determinations during sentencing, were
erroneous. For the reasons set forth in this opinion, we now
affirm the judgment of the district court.
I.
BACKGROUND
Mr. Melendez’s arrest followed a reverse sting
operation conducted by the Drug Enforcement Administration
(“DEA”). Agents posed as members of a Colombian drug-
‐3‐
trafficking organization. One of the undercover agents
contacted Rafael Guzman, the target of the investigation.
Guzman expressed an interest in buying kilogram quantities of
cocaine, and the agent agreed to sell him five kilograms. The
terms of their bargain were that Guzman would receive five
kilograms of cocaine; he would pay for three kilograms at the
time of the exchange and for the remaining two kilograms two
weeks later.
Mr. Melendez had approached Guzman in search of a
cocaine supplier and, although he was not involved in any of the
communications between Guzman and the DEA, agreed to supply the
money to purchase the cocaine from the undercover agent. He
planned to distribute the cocaine after the deal.
The DEA was unaware of Mr. Melendez’s involvement
until the day of the sting operation. Before meeting Guzman for
the transfer of money and drugs, the undercover agent called him
and asked if he was alone. Guzman responded that someone was
with him. Thereafter, Guzman arrived with Mr. Melendez. Guzman
and the undercover agent got out of their vehicles and
conversed. Guzman indicated that Mr. Melendez was working with
him in the drug deal and that he was providing the money to
purchase the cocaine. Because Guzman secretly was profiting
‐4‐
from the deal, he asked the undercover agent not to tell
Mr. Melendez the actual price of the cocaine.1
The undercover agent and Guzman then entered Guzman’s
car, where Mr. Melendez already was seated. The agent confirmed
that he would deliver “five for the three. You owe me two.”2
Mr. Melendez asked to “check [the cocaine] out” and inquired of
the undercover agent whether he and his drug-trafficking
organization typically conducted their drug deals in public
parking lots.3 The agent, pretending to call the man who would
deliver the cocaine, signaled nearby law enforcement agents to
arrest the men. Those agents converged on the vehicle and
arrested Guzman and Mr. Melendez. The agents seized two
firearms from the center front console of the vehicle and
approximately $92,000 in cash, wrapped in rubber bands, from a
laptop bag.
The Government subsequently charged Mr. Melendez with
conspiring to distribute over five kilograms of cocaine and with
1 In order to profit from the transaction, Guzman had
told Mr. Melendez that the price per kilogram of cocaine was
$31,000, even though the planned purchase price was $28,000 per
kilogram.
2 R.176 at 83.
3 Id. at 83-84.
‐5‐
possession of a firearm in furtherance of a drug offense. The
jury returned a verdict of guilty on the drug offense and of not
guilty of the firearm offense. After sentencing, Mr. Melendez
timely filed a notice of appeal.4
II.
DISCUSSION
Mr. Melendez claims that the district court issued
faulty jury instructions, focusing on the district court’s
response to two questions posed by the jury during its
deliberations. He also submits that the district court erred by
sentencing him without making an individualized finding of the
drug weight attributable to him. Finally, he contends that the
district court abused its discretion by refusing to grant him a
two-level reduction for acceptance of responsibility.
A.
We first examine whether the district court’s
instructions, including those provided in response to the jury’s
questions during its deliberations, were erroneous. About two
hours into its deliberations, the jury sent the court a note
4 The district court had jurisdiction under 18 U.S.C.
§ 3231. We have jurisdiction under 18 U.S.C. § 3742(a) and 28
U.S.C. § 1291.
‐6‐
asking, “If a conspiracy exists, if only one conspirator knew of
the entire amount of the deal, are both parties responsible for
the entire amount as, from verdict sheet, 1B states ‘distributed
by the conspirators’ (plural).”5 After some discussion, counsel
for Mr. Melendez suggested as a response:
No. Both conspirators must be in agreement
to distribute the five together. If there
was a separate agreement or scheme to
distribute to other unindicted known and
unknown co-conspirators, then the defendant
is only responsible for that amount for
which he was going to distribute separately
as well as Mr. Guzman.[6]
The court rejected this approach as well as the
Government’s formulation.7 Instead, it decided on the following
response: “The conspirators must agree as to the object of the
conspiracy. In Question 1B this means that the conspirators
must agree upon the amount of the drugs that will be distributed
5   R.178 at 70.
6 Id. at 73-74.
7 The Government suggested that the court instruct the
jury: “If the jury were to find the defendant guilty of
conspiring to distribute cocaine, the jury must unanimously
agree on the weight of the cocaine that was the subject of the
conspiracy involving the defendant, or, as an alternative, if
the conspiracy exists, the jury must unanimously agree on the
weight of cocaine that the conspirators intended to distribute.”
Id. at 73.
‐7‐
by members of the conspiracy.”8 The court denied Mr. Melendez’s
request that the instruction reference both unindicted and
unknown coconspirators. The instruction was then delivered to
the jury.
Approximately four hours later, the court convened the
parties to discuss a second question from the jury. The jury
asked, “Must we be unanimous on all three count decisions?”9 The
district court recognized that “the answer, of course, is yes,
but it has a nuance to it, and the nuance is whether or not I
give them the [Allen v. United States, 164 U.S. 492 (1896)]
charge of some sort.”10 The Government stated that it did not
believe an Allen charge was necessary at that point.
Mr. Melendez was in agreement that an Allen charge was
inappropriate because there had only been a half-day of
deliberations. The court stated that it would respond, “You
should make every effort to be unanimous, to reach a unanimous
verdict on all counts.”11 In addition, after a discussion with
the parties, it was agreed that the court would ask the jurors
8 Id. at 74.
9 Id. at 75.
10 Id. at 75-76.
11 Id. at 76.
‐8‐
if they would like dinner ordered for them. The court then
reiterated its response to the jury’s second question, and it
was taken to the jury.
Forty-two minutes later, the jury returned with a
verdict. After the jury returned to the courtroom, the court
asked, “Mr. Foreperson, I understand the jury has a unanimous
verdict; is that correct?”12 The foreperson answered, “Yes.”13
The court clerk read the verdict from the jury’s verdict slip.
The jury found Mr. Melendez guilty of conspiracy to distribute
five or more kilograms of cocaine and not guilty of possession
of a firearm in furtherance of a drug trafficking crime.
Mr. Melendez did not ask to poll the jury. The court proceeded
to set a date for sentencing.
Mr. Melendez did not object to either supplemental
instruction at trial, and we therefore review for plain error.
See United States v. Delgado-Marrero, 744 F.3d 167, 184 (1st
Cir. 2014). For a defendant to prevail under plain error
review, he must show “that an error occurred,” “that the error
was clear or obvious,” that it affected his substantial rights,
and that it seriously impaired the “fairness or integrity” of
12 Id. at 78.
13 Id.
‐9‐
the proceedings. Id. In evaluating the instructions given to
the jury, “we must examine the jury charge as a whole in order
to determine whether the district judge clearly conveyed the
relevant legal principles,” “mindful that ‘the district court
has considerable discretion in how it formulates, structures,
and words its jury instructions.’” United States v. Gonzalez,
570 F.3d 16, 21 (1st Cir. 2009) (quoting United States v.
Prigmore, 243 F.3d 1, 17 (1st Cir. 2001)).
1.
Mr. Melendez claims that the district court failed to
properly instruct the jury that it must reach a verdict beyond a
reasonable doubt. He bases this claim primarily on the district
court’s response to the jury’s first question: “If a conspiracy
exists, if only one conspirator knew of the entire amount of the
deal, are both parties responsible for the entire amount as,
from verdict sheet, 1B states ‘distributed by the
conspirators.’”14
Mr. Melendez faults the district court’s answer that
“the conspirators must agree upon the amount of the drugs that
will be distributed by the members of the conspiracy” for not
14 Id. at 70.
‐10‐
mentioning the beyond-a-reasonable-doubt standard.15 He contends
that without clear and precise instructions on the issue of drug
weight, we cannot be confident of the integrity of the jury’s
verdict.
Any fact that triggers a mandatory minimum sentence is
an element of the offense that must be submitted to the jury and
proved beyond a reasonable doubt. See Alleyne v. United States,
133 S. Ct. 2151, 2155, 2160-61 (2013). Because drug weight
determines the mandatory minimum sentence, see 21 U.S.C.
§ 841(b)(1)(A), it is an element of the aggravated crime that
must be determined by the jury beyond a reasonable doubt, see
Delgado-Marrero, 744 F.3d at 186.
We cannot accept Mr. Melendez’s contention that the
instruction as given diluted the beyond-a-reasonable-doubt
standard. Jury instructions must be read and evaluated as a
whole. See Gonzalez, 570 F.3d at 21. Here, when the jury
instructions are viewed in this manner, it is clear that they
conveyed to the jury that it must find drug weight beyond a
reasonable doubt. At the beginning of trial, the court
instructed the jury that “part of the case that the Government
15 Id. at 75.
‐11‐
must prove beyond a reasonable doubt is the amount of drugs
involved.”16 Later, before the jury began deliberating, the
district court instructed the jury that the Government had to
prove the agreement and the object of the agreement beyond a
reasonable doubt. The court then stated that “the object of the
conspiracy that is alleged in the indictment is to distribute at
least five kilograms of cocaine.”17 The court went on to explain
16 R.176 at 19. Before the parties’ opening statements,
the court also explained that “[i]t [was] the Government’s
responsibility to show [the jury] that it all fits together in
the way in which they say it fits together beyond a reasonable
doubt.” Id. at 7.
17 R.178 at 53. After closing arguments, the court gave
an instruction regarding the beyond-a-reasonable-doubt standard
and reminded the jury that “the burden is on the Government to
prove beyond a reasonable doubt that a defendant is guilty of
the charge, and here two charges, made against him and, in
addition, a question of the amount of the drugs that the
conspirators had in mind.” Id. at 40. The court clarified
that, in order for the jury to find Mr. Melendez guilty of
conspiracy, “[t]he Government has to prove beyond a reasonable
doubt two basic things.” Id. at 51. First, it must show an
agreement: “[T]he Government has to prove beyond a reasonable
doubt . . . that they shared a general understanding with
respect to the crime.” Id. at 52. The court explained that
“the object of the conspiracy that is alleged in the indictment
is to distribute at least five kilograms of cocaine.” Id. at
53. The court instructed the jury that it would have to resolve
what the defendants had contemplated and agreed to with respect
to the amount of drugs to be distributed. See id. at 54. In
other words, the jury would have to find that the conspirators
had “a shared understanding, an agreement that it [was] going to
be five kilograms of cocaine” or the Government would not have
satisfied its burden. Id. Second, the Government had to prove
‐12‐
that the jury would have to determine how much cocaine it
believed was the object of the conspiracy.18
Contrary to Mr. Melendez’s suggestion, the jury also
made an individualized drug-weight finding beyond a reasonable
doubt. Mr. Melendez was charged as a member of a two-person
conspiracy and is therefore responsible for the entire amount of
contraband. Our decision in United States v. Paladin, 748 F.3d
438 (1st Cir. 2014), squarely forecloses his argument. In
Paladin, the defendant argued that the district court should
have submitted “to the jury the question of whether [the
defendant] was individually responsible for the charged quantity
of cocaine (five kilograms or more).” Id. at 452. In rejecting
this argument, we concluded that the defendant’s submission
that Mr. Melendez willfully joined the agreement. See id. at
51.
18
Following the instructions, the court asked the
parties if they had any objections. Mr. Melendez objected on
grounds that are not raised on appeal. Following a brief
recess, the court instructed the jury that the “verdict has to
be unanimous.” Id. at 64. In explaining the deliberation
process, the court noted that the verdict would be returned on
the verdict slip, which must “be signed by the foreperson
indicating the verdict is unanimous with respect to the several
questions that are being asked.” Id. at 67. The court also
explained that the verdict must be one “that each one of you
individually is satisfied with.” Id. At the conclusion of its
instructions, the court again asked the parties if they had
“anything further.” Id. at 68. Both parties responded in the
negative. See id. at 69.
‐13‐
“overlook[ed] the nature of the charged conspiracy.” Id.
Because the charged five-kilogram weight was based solely on the
conspiratorial dealings of the two men, the district court did
not have to instruct the jury to make individualized findings
distinct from the conspiracy. See id. We specifically noted
that, in a conspiracy involving more than two conspirators, the
individualized determination that Mr. Melendez here seeks would
be necessary. See id.; see also United States v. Colón-Solís,
354 F.3d 101, 103 (1st Cir. 2004). Here, the charged conspiracy
was based on the agreement between Mr. Melendez and Guzman, and
both were responsible for the amount they agreed to distribute.
When the jury found that the “amount of cocaine intended to be
distributed by the conspirators” was “5 kilograms or more,”19 it
therefore necessarily found that the five kilograms were
attributable to Mr. Melendez. See Paladin, 748 F.3d at 452.
Delgado-Marrero, on which Mr. Melendez relies, is not to the
contrary, since the jury here was instructed properly. See 744
F.3d at 186-87.
Here, the situation is substantially different. The
district court did instruct the jury, both before and after the
19 Id. at 78.
‐14‐
parties presented their cases, that the drug weight was an
element of the crime charged and that it was the object of the
conspiracy that the Government had to prove. The district court
clearly told the jury that it had to find the drug weight beyond
a reasonable doubt. There is no indication that the jurors
failed to understand that drug weight was an element of the
offense that the Government had to prove beyond a reasonable
doubt.
2.
Mr. Melendez also submits that the district court
erroneously suggested that the verdict need not be unanimous
when it responded to the jury’s second question: “Must we be
unanimous on all three count decisions?”20 The district court
answered that the jury “should make every effort to reach a
unanimous decision regarding each of the questions put to you on
the verdict slip.”21 In Mr. Melendez’s view, this instruction
contains the obvious implication that unanimity is aspirational,
but not essential. We cannot accept this contention. The
supplemental instruction was neither incorrect nor misleading.
20 Id. at 75.
21 Id. at 77.
‐15‐
As a general principle, “a jury in a federal criminal
case cannot convict unless it unanimously finds that the
Government has proved each element.” Richardson v. United
States, 526 U.S. 813, 817 (1999). In one limited sense, of
course, a unanimous verdict is aspirational in every trial prior
to verdict. Unanimity, while possible and certainly desirable,
is not the inevitable consequence of convening a jury. See Fed.
R. Crim. P. 31(b)(3) (allowing for mistrials and retrials). The
district court’s use of the word “should,” therefore, does not
make the court’s supplemental instruction incorrect. There was,
moreover, no indication here that a jury was deadlocked. Under
these circumstances, instructing the jury that it should
continue deliberating does not warrant reversal. See United
States v. Figueroa-Encarnación, 343 F.3d 23, 31-32 (1st Cir.
2003) (noting that an “instruction to continue deliberating did
not contain the coercive elements of a garden-variety Allen
charge, but was merely intended to prod the jury into continuing
the effort to reach some unanimous resolution” (footnote
omitted)).22
22 Even if the jury were deadlocked, the district court’s
instruction would not be in error. Instructing the jury that it
was not required to reach a unanimous verdict is a cornerstone
of an Allen charge. It alleviates the coercive effect of an
‐16‐
We already have noted that the district court, on
multiple occasions, instructed the jury that its verdict must be
unanimous.23 Certainly, there is no evidence that the verdict
was anything other than unanimous. See United States v.
Lemmerer, 277 F.3d 579, 592 (1st Cir. 2002) (finding no error
for the district court’s failure to excuse a “recalcitrant
juror” in the absence of evidence that the jury’s verdict was
not unanimous). Upon returning to the courtroom to deliver its
verdict, the court asked the jury foreperson, “I understand the
instruction that encourages the jury to break a deadlock by
reconsidering their positions and continuing to deliberate. See
United States v. Manning, 79 F.3d 212, 223 (1st Cir. 1996)
(holding that the response of the district court “not only
failed to discourage the notion that the jury was bound to
continue to deliberate indefinitely, it suggested the opposite,
i.e., that the jury is required to do so”).
23
See supra note 18. Courts have upheld similar
instructions encouraging a jury to continue to deliberate to
reach a unanimous verdict. See United States v. McDonald, 759
F.3d 220, 223-25 (2d Cir. 2014) (upholding supplemental
instruction that jury was “to continue to deliberate to see
whether you can reach a unanimous verdict, in light of all the
instructions that I have given you”); United States v. Davis,
154 F.3d 772, 783 (8th Cir. 1998) (“However, [t]he mere fact
. . . that an instruction could conceivably permit a jury to
reach a non-unanimous verdict is not sufficient to require
reversal when the jury has been instructed that it must reach a
unanimous verdict.” (alterations in original) (internal
quotation marks omitted)); United States v. Solomon, 565 F.2d
364, 365-66 (5th Cir. 1978) (per curiam) (upholding instruction,
“Please try to reach a unanimous verdict as to all counts.
Please continue your deliberations for a while longer to see if
you can reach a unanimous verdict as to all counts”).
‐17‐
jury has a unanimous verdict; is that correct?”24 The foreperson
replied, “Yes.”25 After the verdict was read, the clerk asked,
“So say you Mr. Foreperson, and so say you all, members of the
jury?”26 The jury responded affirmatively.
In sum, we believe that the jury instructions,
assessed in their totality, correctly guided the jury in its
determination.
B.
24 R.178 at 78.
25 Id.
26
Id. We note that, in addition to failing to object to
the jury instruction, Mr. Melendez did not ask that the jury be
polled after it returned its verdict. If Mr. Melendez believed
that the jury verdict was not unanimous, “he should have
exercised his right to poll the jury individually before the
verdict was recorded, so that ‘any doubts whatever about the
state of the jurors’ minds could have been cleared up and
appropriate action taken before the jury was dismissed.’”
United States v. Lemmerer, 277 F.3d 579, 593 (1st Cir. 2002)
(quoting United States v. Luciano, 734 F.2d 68, 70 n.1 (1st Cir.
1984)). The rule exists so “‘the court and the parties [can]
ascertain with certainty that a unanimous verdict has in fact
been reached and that no juror has been coerced or induced to
agree to a verdict to which he has not fully assented.’” Id.
(quoting Miranda v. United States, 255 F.2d 9, 17 (1st Cir.
1958)). Having failed to request that the court poll the jury,
Mr. Melendez cannot use the supplemental instruction to question
the unanimity of the verdict. The district court did not
plainly err by encouraging, but not requiring, that the jury
deliberate until it reached a unanimous verdict.
‐18‐
We turn now to Mr. Melendez’s contentions about his
sentence. After the Presentence Report (“PSR”) was submitted to
the court, Mr. Melendez filed an objection seeking a two-level
reduction for acceptance of responsibility and the elimination
of the two-level enhancement for possession of a firearm during
the commission of the offense. Mr. Melendez also requested that
the court impose a below-guidelines sentence due to mitigating
circumstances.
At the outset of the sentencing hearing, the court
asked the parties if they thought there was an Alleyne issue.27
Mr. Melendez’s counsel responded that Alleyne was not a problem
because “[t]he factual issue of weight was brought for the jury
to determine, and the jury heard the evidence concerning that.”28
The court rejected Mr. Melendez’s objections to the PSR, finding
that Mr. Melendez did not accept responsibility for the crime
because “[h]e chose to contest it, and he was contesting the
27 As noted earlier, Alleyne v. United States, 133 S. Ct.
2151 (2013), provides that any fact that triggers a mandatory
minimum sentence is an element of the offense that must be
submitted to the jury and proved beyond a reasonable doubt. See
id. at 2155.
28 R.179 at 5.
‐19‐
core of the case, a significant amount of drugs being
trafficked.”29
The court determined Mr. Melendez’s offense level to
be thirty-four, which yielded a guidelines range of 151 to 188
months’ imprisonment. The district court nevertheless sentenced
Mr. Melendez to 144 months’ imprisonment, followed by five years
of supervised release. Among the mitigating factors noted by
the court was “Mr. Melendez’s parsing of the drug weight
involved.”30 The court noted that Mr. Melendez’s willingness to
admit to the three-kilogram charge “is a reflection of the
discount from the Guidelines that I am imposing here, a modest
one, but one nevertheless.”31
1.
Mr. Melendez first submits that the jury should have
made an individualized drug determination with respect to him.
We review de novo this issue. See United States v. Cintrón-
Echautegui, 604 F.3d 1, 5 (1st Cir. 2010).
Mr. Melendez submits that because the jury made a
determination as to the whole conspiracy rather than as to him
29 Id. at 7.
30 Id. at 25.
31 Id. at 26.
‐20‐
individually, the district court was unable, under the Supreme
Court’s holding in Alleyne, to make an individualized finding as
to whether he was responsible for sufficient drugs to justify a
mandatory minimum sentence.32 Mr. Melendez also submits that the
court should have directed the jury to make a finding as to the
drug weight specifically attributable to him.
To the degree that Mr. Melendez relies on Alleyne,
this argument is waived. Mr. Melendez expressly disclaimed any
Alleyne error at sentencing. In any event, the argument is
without merit. As we have explained, because Mr. Melendez
participated in a two-person conspiracy, the jury necessarily
made an individualized drug-weight determination. That is
sufficient to support the district court’s sentencing decision.
See United States v. Acosta-Colón, 741 F.3d 179, 192 (1st Cir.
2013).
2.
Mr. Melendez submits that the district court erred in
not granting him a two-level reduction for acceptance of
responsibility. We uphold a district court’s decision to deny
this reduction unless the decision is clearly erroneous. See
32 Mr. Melendez was subject to a ten-year mandatory
minimum sentence under 21 U.S.C. § 841(b)(1)(A).
‐21‐
United States v. Garrasteguy, 559 F.3d 34, 38 (1st Cir. 2009);
United States v. Baltas, 236 F.3d 27, 37 (1st Cir. 2001).
Section 3E1.1(a) of the Sentencing Guidelines provides
that a district court may reduce a defendant’s offense level by
two levels if the defendant “clearly demonstrates acceptance of
responsibility for his offense.” “To prove acceptance of
responsibility, a defendant must truthfully admit or not falsely
deny the conduct comprising the conviction, as well as any
additional relevant conduct for which he is accountable.”
Garrasteguy, 559 F.3d at 38. The burden is on the defendant to
establish his eligibility for a decrease in the offense level.
See id. If a defendant proceeds to trial, he greatly diminishes
his chances of receiving a reduction; “proceeding to trial
creates a rebuttable presumption that no credit is available.”
See id. at 38-39.
In support of his contention that he should have been
awarded a reduction for acceptance of responsibility,
Mr. Melendez submits that he acknowledged his guilt in his
motion to dismiss the original indictment, in his trial
memorandum, and in his repeated assertion of that position “at
‐22‐
every turn during the trial.”33 He acknowledges that he disputed
the drug weight, but contends that the weight of the substance
was not a core element of the crime of conspiracy but only an
aggravating element.
We cannot accept this contention. First, the record
clearly reveals that Mr. Melendez did not admit his
participation in the conspiracy until trial commenced. In his
pretrial memorandum, submitted to the court thirty days before
trial, Mr. Melendez continued to contest his guilt and to argue
that he did not conspire to distribute cocaine but, instead,
simply entered into a buyer-seller arrangement with Guzman.34
Mr. Melendez’s protestation that he did not
participate in a conspiracy, on its own, would be sufficient to
uphold the district court’s decision to deny the reduction. We
note, however, that Mr. Melendez’s dispute of the drug weight
would be an adequate and independent basis for refusing the
reduction. In Garrasteguy, we upheld a district court’s refusal
33 Appellant’s Br. 25.
34 See R.92 at 2 (“The defendant posits that he is not
guilty of the crimes charged as there is no evidence to prove
that a conspiracy existed to distribute cocaine between
Mr. Melendez and Mr. Guzman in said amounts nor was there a
conspiracy with any others to distribute cocaine by
Mr. Melendez.”).
‐23‐
to grant a reduction for acceptance of responsibility after a
defendant admitted his guilt to a drug-conspiracy charge but
disputed the drug weight at trial. See 559 F.3d at 39-40. We
noted that requesting a trial about drug weight is not
consistent with the acceptance of responsibility. See id. at
39. We further noted that, because the sentencing court
balanced the defendant’s admission of guilt with the fact that
he disputed the drug weight at trial, the district court did not
clearly err. See id. at 39-40.35
Here, the district court noted that after Mr. Melendez
tried unsuccessfully to “tailor the amount of drugs involved”
during plea negotiations, he refused to plead guilty and
proceeded to trial.36 The court was cognizant that “[a]
defendant is certainly entitled to test aspects of the
Government’s case without necessarily giving up the right to
35 Our decision in United States v. Garrasteguy, 559 F.3d
34 (1st Cir. 2009), is compatible with the decisions of other
courts of appeals. Courts have upheld regularly a district
court’s decision to deny an acceptance-of-responsibility
reduction for contesting facts underlying a criminal charge,
such as drug weight. See United States v. Acosta, 534 F.3d 574,
580-81 (7th Cir. 2008) (affirming the denial of the acceptance-
of-responsibility reduction after the defendant contested the
drug weight listed in the PSR); United States v. Annis, 446 F.3d
852, 857-58 (8th Cir. 2006) (affirming denial when the defendant
contested the quantity of drugs).
36 R.179 at 7.
‐24‐
assert that there has been acceptance of responsibility.”37 But
the court reasonably concluded that Mr. Melendez did not accept
responsibility because he chose to contest the drug weight,
which was “the core of the case.”38
Conclusion
The judgment of the district court is affirmed.
AFFIRMED
37 Id.
38
Id. Mr. Melendez attempts to distinguish Garrasteguy
because, after he had rejected a plea agreement for the five-
kilogram charge, the Government added the firearms charge. But
the issuance of a superseding indictment with an additional
charge has no bearing on the acceptance-of-responsibility
determination. The Government may charge a defendant with an
additional offense if the defendant refuses to plead guilty to a
lesser offense. See Bordenkircher v. Hayes, 434 U.S. 357, 364
(1978) (holding “so long as the prosecutor has probable cause to
believe that the accused committed an offense defined by
statute, the decision whether or not to prosecute, and what
charge to file or bring before a grand jury, generally rests
entirely in his discretion”); United States v. Jenkins, 537 F.3d
1, 4-5 (1st Cir. 2008) (holding that, absent a showing of actual
vindictiveness, we will not disturb the district court’s
judgment).
‐25‐