United States v. Morillo

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1388

UNITED STATES OF AMERICA,

Appellee,

v.

JOSH MORILLO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, U.S. District Judge]

Before

Breyer, Chief Judge,

Selya and Stahl, Circuit Judges.

Ernest Barone for appellant.

Zechariah Chafee, Assistant United States Attorney, with

whom Edwin J. Gale, United States Attorney, was on brief, for the

United States.

November 8, 1993

SELYA, Circuit Judge. This proceeding requires us, for
SELYA, Circuit Judge.

the first time, to chart the interrelationship between Fed. R.

App. P. 4(b) (delimiting the appeal period in criminal cases) and

Fed. R. Crim. P. 35(c) (the text of which is set forth in the

margin).1 We conclude that, under certain circumscribed

circumstances, post-judgment motions brought under the latter

rule can operate to extend the appeal period limned by the former

rule, and that the instant case qualifies for this elongating

effect. Thus, the appeal prosecuted by defendant-appellant Josh

Morillo is properly before us. This initial success heralds a

hollow victory, however, for we find Morillo's substantive

arguments unpersuasive and affirm the judgment below.

I.

Background

A thumbnail sketch suffices to put this appeal into

workable perspective.2 In 1992, a federal grand jury indicted

appellant on three counts of distributing heroin in violation of

1The rule provides:

The court, acting within 7 days after the
imposition of sentence, may correct a
sentence that was imposed as a result of
arithmetical, technical, or other clear
error.

Fed. R. Crim. P. 35(c). This provision has been in effect only
since December, 1991.

2The November 1992 edition of the federal sentencing
guidelines applies in this case. See United States v.

Harotunian, 920 F.2d 1040, 1041-42 (1st Cir. 1990). All

references herein are to that version, unless otherwise
specifically indicated.

2

21 U.S.C. 841(a)(1) (1988). He entered a plea of not guilty.

The district court set the case for trial in December. On

November 30, appellant moved for the appointment of an

independent toxicologist to weigh the drugs that the government

planned to offer in evidence against him. He made it clear that

he was ready to plead guilty to the charges but for the dispute

over drug quantity. On December 10, 1992, without any agreement

anent weight, appellant changed his plea and acknowledged his

guilt on all counts. Some two months later the district court

granted appellant's longstanding motion and ordered the drugs

reweighed at a state-run laboratory. The laboratory reported its

findings soon thereafter.

At a sentencing hearing held on March 18, 1993, the

district court determined that the heroin involved in the counts

of conviction warranted a base offense level (BOL) of 18. See

U.S.S.G. 2D1.1(c)(13) (Drug Quantity Table).3 The judge

increased the BOL by two levels because of Morillo's aggravating

role in the offense, see U.S.S.G. 3B1.1(c), and decreased the

BOL by two levels for acceptance of responsibility, see id.

3E1.1(a). When combined with appellant's criminal history

category (III), the various adjustments produced a guideline

sentencing range (GSR) of 33-41 months. The court sentenced

appellant at the range's apex and entered final judgment on March

19, 1993.

3In Part III(A), infra, we discuss the relevant details of

the debate over drug weight and, relatedly, the appropriateness
of the BOL.

3

On March 23, appellant filed a motion asking the court

to correct his sentence because of an alleged miscalculation in

figuring drug quantity. On April 1, appellant filed a notice of

appeal. On April 19, the district court addressed appellant's

post-judgment motion and denied it by means of a margin order.

Appellant did not file a further notice of appeal.

II.

Appellate Jurisdiction

A.

Suspensory Motions: An Overview

In a criminal case, a defendant must appeal within 10

days after entry of a judgment of conviction. See Fed. R. App.

P. 4(b). Because the obligation is mandatory and jurisdictional,

unexcused failures of compliance inevitably result in the loss of

appeal rights. See United States v. Kress, 944 F.2d 155, 161 (3d

Cir. 1991), cert. denied, 112 S. Ct. 1163 (1992); United States

v. Zuleta-Molina, 840 F.2d 157, 158 (1st Cir. 1988). However, in

cases where the entry of a judgment is closely followed by the

filing of a certain type of revisory motion, the time limit is

relaxed. For example, most timely motions for new trial, Fed. R.

Crim. P. 33, or timely motions in arrest of judgment, Fed. R.

Crim. P. 34, stall the running of the appeal period and permit an

appeal to be taken from the judgment of conviction, should it

stand, "within 10 days after the entry of an order denying the

[Rule 33 or Rule 34] motion." Fed. R. App. P. 4(b).

Post-judgment motions apart from those expressly

4

enumerated in Fed. R. App. P. 4(b) can have the same suspensory

effect. The paradigmatic example is a timely motion for

rehearing or reconsideration. See United States v. Ibarra, 112

S. Ct. 4, 6-7 (1991) (per curiam) (holding that government's

timely motion for reconsideration restarted the appeal period

with respect to the underlying judgment as of the date when the

district court denied the motion); United States v. Dieter, 429

U.S. 6, 8 (1976) (per curiam) (noting that "the consistent

practice in civil and criminal cases alike has been to treat

timely petitions for rehearing as rendering the original judgment

nonfinal for purposes of appeal for as long as the petition is

pending"); United States v. Healy, 376 U.S. 75, 78-80 (1964);

United States v. Carr, 932 F.2d 67, 71-72 (1st Cir.), cert.

denied, 112 S. Ct. 112 (1991); United States v. Gallardo, 915

F.2d 149, 150 n.2 (5th Cir. 1990), cert. denied, 498 U.S. 1038

(1991).

B.

Framing The Issue

The pivotal question here is whether appellant's post-

judgment motion is of this suspensory genre.4 If the filing of

the motion did not interrupt the progress of the appeal period,

4We use the term "suspensory" because, although some courts
and litigants describe the effect of such motions as "tolling"
the time for appeal, that description is inaccurate. Because the
appeal period begins to run afresh at the time of disposition of
the motion, the motion does not toll the appeal period, but
restarts it. See Ibarra, 112 S. Ct. at 5 n.2; see also Fed. R.

App. 4(b) (discussing effect of timely motions filed under Fed.
R. Crim P. 33, 34).

5

then Fed. R. App. P. 4(b) applies without dilution and Morillo's

notice of appeal, filed more than 10 days after entry of

judgment, is a nullity. To avoid this result, appellant must

convince us that bringing the March 23 motion suspended the

running of the appeal period by rendering the original judgment

nonfinal for appeal purposes, or, put in its simplest aspect,

extended the time within which an appeal from the underlying

judgment could be taken.

C.

Analysis

1. Characterization. Our first order of business is
1. Characterization.

to determine the character of the March 23 motion. The motion

did not invoke, or even refer to, any particular procedural rule.

When a motion is silent as to the location of its procedural

moorings, an inquiring court must look to the motion's substance,

including the relief requested, in order properly to characterize

it. See, e.g., Dieter, 429 U.S. at 8-9; Hannon v. Maschner, 981

F.2d 1142, 1144 n.2 (10th Cir. 1992); Feinstein v. Moses, 951

F.2d 16, 19 n.3 (1st Cir. 1991); United States v. Lefler, 880

F.2d 233, 234 n.2 (9th Cir. 1989); see also Perez-Perez v.

Popular Leasing Rental, Inc., 993 F.2d 281, 283 (1st Cir. 1993)

(stating that a court should examine the function of an

uncaptioned post-judgment motion in order to gauge its effect on

the appeal period).

Here, appellant styled his motion as a motion "to

correct sentence." Elevating substance over form, we conclude

6

that the motion invokes, or is at least the functional equivalent

of a motion brought pursuant to, Fed. R. Crim. P. 35(c), quoted

supra note 1. The motion posits, in fairly blunt terms, that the

district court made a numerical mistake in its aggregation of

discerned drug quantities. Whether or not one classifies this

claimed bevue as "arithmetical," the motion alleges, at a bare

minimum, a strain of "clear error." This is the very sort of

situation that Rule 35(c) was designed to address. See Fed. R.

Crim. P. 35(c) advisory committee's note (1991 amendment)

(stating that the rule enables a court to rectify "an obvious

error or mistake" affecting the sentence so long as the error or

mistake is "discovered shortly after the sentence is imposed");

see also United States v. Corey, 999 F.2d 493, 496 (10th Cir.

1993) (explaining that Rule 35(c) codifies the district court's

"inherent authority . . . to correct sentencing errors"). And,

moreover, no one has suggested a better fit elsewhere.

2. Effect. Having identified the motion as a motion
2. Effect.

under Fed. R. Crim. P. 35(c), the lens of inquiry narrows. We

focus next on whether a motion brought pursuant to Rule 35(c)

extends the time for appealing from the underlying judgment.5

5To be sure, the text of Rule 35(c) does not mention motions
and contemplates that the district court, within certain
specified constraints, may act sua sponte to correct sentencing

errors. But we do not read the rule as prohibiting either the
government or the defendant from calling the need for corrective
action to the sentencing court's attention by means of a timely
filed post-judgment motion. We believe that such motions are
permissible and note that other courts have read the rule as
authorizing them. See, e.g., Corey, 999 F.2d at 494-96; United

States v. Turner, 998 F.2d 534, 536 (7th Cir. 1993).

7

We conclude that it does.

It is settled beyond peradventure that a timely motion

for rehearing or reconsideration of a judgment in a criminal case

interrupts the original appeal period. See supra pp. 4-5

(listing precedents). This tenet applies in criminal cases

notwithstanding that, by and large, there are "no explicit

provisions for rehearing proceedings in criminal cases." 16

Charles A. Wright et al., Federal Practice & Procedure 3950, at

482 (Supp. 1993). Justice Harlan, writing for a unanimous Court,

explained the rationale for giving such motions suspensory

effect:

[Depriving parties to a criminal case] of the
opportunity to petition a lower court for the
correction of errors might, in some
circumstances, actually prolong the process
of litigation since plenary consideration
of a question of law [on appeal] ordinarily
consumes more time than disposition of a
petition for rehearing and could, in some
cases, impose an added and unnecessary burden
of adjudication upon [the appellate court].

Healy, 376 U.S. at 80. The Healy doctrine is still good law,

having survived the massive changes wrought by the Sentencing

Reform Act of 1984. See Carr, 932 F.2d at 71-72; accord Corey,

999 F.2d at 495-96; United States v. Greenwood, 974 F.2d 1449,

1470-71 (5th Cir. 1992), cert. denied, 113 S. Ct. 2354 (1993).

It stands to reason that, if a sentence is infected by

clear error, a timely motion seeking to correct it at least a

motion which, like this one, seeks to shrink the incarcerative

portion of the sentence and, thus, carries the potential to

affect substantive rights fits the Healy mold. Forcing a party

8

to press ahead with an appeal while such a motion is pending

would countervail the principles of efficacy and judicial economy

that undergird Healy. Consequently, we hold that when, as now, a

party to a criminal case files a timely motion under Fed. R.

Crim. P. 35(c), asking the sentencing court to reconsider an

issue in the case in a way that will, if successful, bring about

an alteration of the defendant's substantive rights, then the

filing of that motion renders the judgment nonfinal for purposes

of appeal.6 Accord Corey, 999 F.2d at 496.

3. Timeliness. Our speleology into this
3. Timeliness.

jurisdictional cave also uncovers a temporal dimension. We have

been careful to note, and believe it is prudent to emphasize,

that only a timely motion for rehearing or reconsideration should

be accorded suspensory effect. See, e.g., Dieter, 429 U.S. at 8

(limiting suspensory effect to "timely petitions for rehearing");

Healy, 376 U.S. at 77, 80 (same). Timeliness is measured

differently in different contexts. In Carr, we were confronted

with a motion for rehearing addressed to a district court's

inherent power to correct an erroneous sentence.7 We accorded

suspensory effect, holding the motion to be timely because it was

brought "within the time frame allowed for taking an appeal from

6The likelihood that appellant might prevail on his motion
is irrelevant for purposes of determining the motion's suspensory
effect. See Ibarra, 112 S. Ct. at 6. It is the character of the

post-judgment motion, not its intrinsic merit or lack thereof,
that determines whether, if seasonably filed, it will interrupt
the running of the appeal period.

7The events in Carr antedated the adoption of Rule 35(c).

See Carr, 932 F.2d at 71 n.5.

9

the sentencing order." Carr, 932 F.2d at 72. Hence, the motion

interrupted the running of the appeal period. Id.; accord

Lefler, 880 F.2d at 235 (explaining that, "for a criminal

defendant's motion for reconsideration to extend the time within

which a notice of appeal must be filed, it must be filed within

the [original 10-day appeal period]").

In precincts patrolled by Rule 35(c), however, the Carr

formulation is overgenerous. The drafters of the rule were

concerned lest they pave further avenues of delay within the

criminal justice system. To assuage this concern, the rule

states that a court may act thereunder "within 7 days after the

imposition of sentence." Fed. R. Crim. P. 35(c). The interval

constitutes a limitation, see Fed. R. Crim. P. 35(c) advisory

committee's note (1991 amendment) (discussing the new rule's

"stringent time requirement") and the limitation is absolute:

if no motion is made within the seven-day period, none can be

made thereafter; and, moreover, if a motion is timely made but is

not decided within the seven-day period, the judge's power to act

under the rule subsides and the pending motion is deemed to be

denied as of that date. Judge Easterbrook neatly captured the

essence of the limitation: "The district court's inaction ha[s]

the same effect as denying the motion, making the judgment final

on the date the district judge's power to alter the sentence

expired." United States v. Turner, 998 F.2d 534, 536 (7th Cir.

1993).

We derive two valuable lessons from the anatomy of the

10

rule: (1) a motion under Rule 35(c) interrupts the appeal period

and renders a judgment nonfinal only if it is brought within

seven days following the imposition of sentence; and (2) the

appeal period is restarted when the district court decides a

timeous Rule 35(c) motion or at the expiration of seven days next

following imposition of sentence, whichever first occurs.

4. Application. In this case, the district court
4. Application.

pronounced sentence on March 18 and entered judgment the next

day.8 Appellant filed his Rule 35(c) motion on March 23,

comfortably within the seven-day period. The district court did

not act immediately upon the motion and, consequently, the

pendency of the motion rendered the judgment nonfinal only

through the end of the seven-day period, when the appeal period

restarted. From that point forward, appellant had 10 days within

which to docket his appeal. See Fed. R. App. P. 4(b). By filing

a notice of appeal on April 1, 1993, he met the deadline with

room to spare. Hence, the appeal is properly before us.9

8For ease in reference we use March 19 as the dispositive
date. Withal, we note that Rule 35(c) purports to measure the
seven-day period from "the imposition of sentence." We think it
is likely that when the two dates differ, this phrase signifies
the date judgment enters, rather than the date sentence is orally
pronounced. See Zuleta-Molina, 840 F.2d at 158 n.1 (reiterating

that "[t]he prescribed period for filing a notice of appeal
begins at the time of entry of the judgment or order on the
criminal docket"); United States v. Cooper, 876 F.2d 1192, 1195

(5th Cir. 1989) (stating that an appeal's timeliness is measured
from the date judgment is entered on the docket, not from the
date of order). At any rate, the one-day differential has no
material effect in this case.

9There are other questions that might affect the
jurisdictional calculus in cases of this stripe but those
questions are not presented on this record. For instance, we

11

III.

The Merits

A.

Drug Quantity

Under the guidelines, drug quantity is "a key datum" in

the sentencing of narcotics offenders. United States v. Bradley,

917 F.2d 601, 604 (1st Cir. 1990). Because drug quantity

profoundly affects sentence length, relatively small quantitative

differences often have a significant leveraging effect. The

phenomenon grows more pronounced as amounts edge closer to the

lines that have been drawn within the drug quantity table. This

case aptly illustrates the point. The district court found that

the heroin involved in the offenses of conviction weighed just

over 20 grams. The defense contends that the heroin weighed

19.75 grams. This seemingly slight difference translates into an

increment of two offense levels. See U.S.S.G. 2D1.1(c)(13),

(14) (Drug Quantity Table) (setting BOL of 18 for offenses

involving at least 20 but less than 40 grams of heroin and

have no occasion to consider (i) whether a different result might
obtain if it could be shown that a movant brought a post-judgment
motion in bad faith, see Ibarra, 112 S. Ct. at 7 n.3; or (ii)

whether a Rule 35(c) motion that seeks to correct an error but
not to alter substantive rights possesses suspensory effect, cf.

FCC v. League of Women Voters, 468 U.S. 364, 373 (1984)

(emphasizing that suspension of the appeal period while a motion
for reconsideration is pending results only when the motion
"actually seeks an alteration of the rights adjudicated in the .
. . judgment") (citation and internal quotation marks omitted);
FTC v. Minneapolis-Honeywell Co., 344 U.S. 206, 211-12 (1952)

(similar); or (iii) whether the seven-day period mentioned in
Rule 35(c) should be counted under Fed. R. Crim. P. 45(a) or Fed.
R. App. P. 26(a) a choice that will affect how weekends and
holidays factor into the count.

12

setting BOL of 16 for offenses involving at least 10 but less

than 20 grams of heroin). A two-level spread easily can produce

a difference of over a year in a standard sentence.10

The facts relating to the dispute over drug quantity

can be succinctly summarized. Defendant was charged with

distributing heroin on three occasions: February 7, 20, and 21,

1992. Each transaction culminated in the exchange of a

substantial number of "browns," individually packaged for street-

level sales. Immediately following each transaction, the federal

Drug Enforcement Administration (DEA) estimated the weight of the

purveyed drugs by representative sampling, that is, by weighing a

few of the "browns" and multiplying the average weight by the

total number of packs contained in the consignment. On this

basis, the DEA reported that the first transaction involved 6.51

grams of heroin, the second transaction involved 1.24 grams, and

the final transaction involved 20.30 grams. Appellant contested

only the last of these three assessments. Pursuant to the

district court's order, the state toxicology laboratory studied

the heroin involved in the third transaction, using its own

formula, and estimated that it weighed between 10.39 and 16.21

grams. Of necessity, however, this estimate did not include the

weight of the heroin previously extracted from the third batch by

the DEA, used in arriving at the DEA's drug quantity

determination, and never replaced.

10For example, in Morillo's criminal history category (III),
the spread between the high end of a Level 18 GSR (41 months) and
the low end of a Level 16 GSR (27 months) is 14 months.

13

Faced with these competing estimates, the judge found

it probable that the third batch contained at least 12 grams.

This total, when augmented by the weight of the drugs from the

first two transactions (6.51 and 1.24 grams, respectively) and

the sample amount originally extracted from the third transaction

(0.41 grams), brought the drug quantity over 20 grams and the BOL

to 18.11

The government has the burden of proving drug quantity

by a fair preponderance of the evidence. See United States v.

Sklar, 920 F.2d 107, 110 (1st Cir. 1990). Absent a mistake of

law, we will set aside a sentencing court's determination of drug

quantity only if it is clearly erroneous. See United States v.

Argencourt, 996 F.2d 1300, 1307 (1st Cir. 1993); United States v.

McCarthy, 961 F.2d 972, 978 (1st Cir. 1992); Bradley, 917 F.2d at

605. In other words, as a precondition to relief on appeal, an

appellant must convince us that the district court made "a

serious mistake" in figuring drug quantity. Sklar, 920 F.2d at

111.

We discern no error here. When it is impossible or

impractical to obtain an exact drug quantity for sentencing

purposes, a reasoned estimate will suffice. See Sklar, 920 F.2d

at 113; United States v. Hilton, 894 F.2d 485, 488 (1st Cir.

11Appellant's post-judgment motion claimed clear error on
the theory that the judge intended to aggregate only the first
three of the quantities mentioned in the text. In rejecting the
Rule 35(c) motion, however, Judge Lagueux made it clear that he
also intended to include the sample amount from the final
transaction.

14

1990); United States v. Gerante, 891 F.2d 364, 369 (1st Cir.

1989). The court below achieved this benchmark, taking a

conservative approach to the disputed third transaction. Given

the divergent laboratory estimates ranging from a low of 10.39

grams to a high of 20.3 grams, the court's decision that a figure

toward the low end of the continuum represented the most probable

weight cannot be faulted. Cf., e.g., United States v. 22.80

Acres of Land, 839 F.2d 1362, 1365 (9th Cir. 1988) (stressing

district court's flexibility in determining value of property

where testimony of six expert witnesses indicated wide range of

values). Where, as here, the evidence fully supports more than

one inference, a sentencing court's choice from among plausible

alternatives cannot be clearly erroneous. See Bradley, 917 F.2d

at 606; United States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990).

B.

Acceptance of Responsibility

The district court found that appellant had accepted

responsibility for his criminality and trimmed his offense level

by two levels on that account, see U.S.S.G. 3E1.1(a), but

refused to grant an additional one-level credit under U.S.S.G.

3E1.1(b).12 Appellant assigns error to this refusal, eyeing a

12The applicable guideline reads:

(a) If the defendant clearly demonstrates
acceptance of responsibility for his offense,
decrease the offense level by 2 levels.

(b) If the defendant qualifies for a decrease
under subsection (a), the offense level
determined prior to the operation of

15

further reduction pursuant to section 3E1.1(b)(2).

A defendant bears the burden of proving entitlement to

decreases in the offense level, including downward adjustments

for acceptance of responsibility. See, e.g., United States v.

Ocasio-Rivera, 991 F.2d 1, 4 (1st Cir. 1993). Once the

sentencing court has ruled against him on such an issue, the

defendant faces an uphill battle. We have held, in the context

of what is now section 3E1.1(a), that "[w]hether a defendant

`clearly demonstrates a recognition and affirmative acceptance of

personal responsibility' is a fact-dominated issue, and the

district court's decision to withhold a reduction in the offense

level will not be overturned unless clearly erroneous." United

States v. Royer, 895 F.2d 28, 29 (1st Cir. 1990) (citation

omitted). The clearly erroneous standard also guides appellate

review of district court determinations under section 3E1.1(b).

See United States v. Donovan, 996 F.2d 1343, 1346 (1st Cir.

1993); see also U.S.S.G. 3E1.1 comment. (n.5).

subsection (a) is level 16 or greater, and
the defendant has assisted authorities in the
investigation or prosecution of his own
misconduct by taking one or more of the
following steps:

(1) timely providing complete
information to the government concerning
his own involvement in the offense; or
(2) timely notifying authorities of his
intention to enter a plea of guilty,
thereby permitting the government to
avoid preparing for trial and permitting
the court to allocate its resources
efficiently,
decrease the offense level by 1 additional
level.

U.S.S.G. 3E1.1.

16

We find no clear error in the district court's

determination that appellant failed to qualify for the added

discount under section 3E1.1(b)(2). Appellant was arraigned on

October 20, 1992. He pleaded not guilty. Several weeks later,

in his November 30 motion for the appointment of an independent

toxicologist, appellant indicated that he was "prepared to plead

guilty to the three charges . . . but for the dispute as to the

weight" of the drugs. In our view, notification of an intention

to enter a guilty plea, subject to a major condition, is far too

problematic to meet the standard of section 3E1.1(b)(2). That

provision was designed to allow the government and the district

court to conserve resources by avoiding unnecessary trial

preparation. See, e.g., United States v. Lombardi, F.3d ,

(1st Cir. 1993) [No. 92-2450, slip op. at 11]. A conditional

offer to plead does not serve this end; until the contingency is

removed, the prosecution must still prepare for trial and the

court must still reserve calendar time. Thus, the district judge

did not err in refusing to treat the November 30 offer as a

"notification" within the purview of section 3E1.1(b)(2).

There is little more that need be said. Appellant did

not plead unconditionally until December 10, 1992 the very date

that the court had set for jury selection. A defendant who

withholds a guilty plea until he stands poised on the brink of

trial has no entitlement to the soothing unguent of section

3E1.1(b)(2). Therefore, the court below acted appropriately in

awarding appellant a two-level, rather than a three-level,

17

decrease for acceptance of responsibility.

C.

Role in the Offense

Finally, appellant claims that the district court erred

in its determination of his role in the criminal activity. See

U.S.S.G. 3B1.1(c) (providing a two-level increase for assuming

managerial responsibilities in certain criminal endeavors).

Boosting a defendant's BOL by two levels under this provision is

justified if the sentencing court determines that the offense(s)

of conviction involved at least two participants,13 and that

the defendant exercised control over one of them. See United

States v. Akitoye, 923 F.2d 221, 227 (1st Cir. 1991); United

States v. Fuller, 897 F.2d 1217, 1220 (1st Cir. 1990). The

government must bear the burden of proving that an upward role-

in-the-offense adjustment is warranted.

In this case, it is undisputed that at least three

people participated in the felonious enterprise: appellant, his

supplier (Faustino Moronta, Jr.), and a courier, Oscar Severino.

On at least one occasion, appellant paged Severino via beeper,

and Severino responded to appellant's apartment with the

merchandise heroin apparently originating with Moronta. The

presentence investigation report (PSI Report) asserted that

Severino worked for and under the direction of Morillo.

13The defendant himself may be counted in determining the
overall number of participants. See United States v. Preakos,

907 F.2d 7, 10 (1st Cir. 1990) (per curiam). But he must
exercise control over at least one other participant to warrant
an upward adjustment.

18

Appellant filed written objections to several aspects of the PSI

Report, but he did not object to this determination. At the

sentencing hearing, appellant's attorney argued briefly that his

client was only a middleman in the criminal transaction; while

conceding that Severino brought the drugs to the desired locus at

appellant's behest, counsel claimed that Severino did so as

Moronta's agent and that Morillo exercised no independent

control over him. Yet, appellant offered no evidence to

contradict the assertion contained in the PSI Report. Not

surprisingly, then, the district court accepted the probation

officer's version of the chain of command.

Facts contained in a presentence report ordinarily are

considered reliable evidence for sentencing purposes. See United

States v. Zuleta-Alvarez, 922 F.2d 33, 35-36 (1st Cir. 1990),

cert. denied, 111 S. Ct. 2039 (1991); Ruiz, 905 F.2d at 508;

United States v. Rivera Ramos, 856 F.2d 420, 424 (1st Cir. 1988),

cert. denied, 493 U.S. 837 (1989); see also United States v.

Tardiff, 969 F.2d 1283, 1287 (1st Cir. 1992) (ruling that

district courts possess "broad discretion to determine what data

is, or is not, sufficiently dependable to be used in imposing

sentence"); United States v. Iguaran-Palmar, 926 F.2d 7, 10 (1st

Cir. 1991) (similar). We lack adequate reason to make an

exception to that rule for appellant's sake. A defendant who

accepts the probation department's configuration of the

sentencing record without contesting the facts set forth in the

PSI Report can scarcely be heard to complain when the sentencing

19

court uses those facts in making its findings. See, e.g., United

States v. Montoya, 967 F.2d 1, 3 (1st Cir.) (ruling that, where

the defendant offered no information to suggest an inaccuracy in

the PSI Report's drug quantity computation, the sentencing court

could rely on the computation), cert. denied, 113 S. Ct. 507

(1992); United States v. Garcia, 954 F.2d 12, 19 (1st Cir. 1992)

(holding that the sentencing court lawfully relied on the PSI

Report when appellant couched his objections exclusively as

interpretations of facts rather than as challenges to the

underlying facts themselves); United States v. Mir, 919 F.2d 940,

943 (5th Cir. 1990) (explaining that the district court is free

to adopt facts contained in the PSI Report without further

inquiry where defendant objects to the PSI Report but offers no

rebuttal evidence); Ruiz, 905 F.2d at 508 (holding that a

sentencing court may rely on determinations contained in the PSI

Report where defendant adduces no countervailing evidence).

We need go no further. Mindful that appellate review

of role-in-the-offense determinations is conducted under a

deferential "clear error" standard, see United States v. Savoie,

985 F.2d 612, 615 (1st Cir. 1993); Akitoye, 923 F.2d at 227, we

cannot fault the district court, in the absence of contrary

evidence, for adopting the organizational structure suggested in

the PSI Report and finding that Morillo, who was able to page

Severino and have him deliver drugs on demand, exercised "some

degree of control or organizational authority" over Severino.

Fuller, 897 F.2d at 1220.

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Affirmed.

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