UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1122
UNITED STATES OF AMERICA,
Appellee,
v.
ANTHONY L. TALLADINO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Stahl, Circuit Judge.
Susan K. Howards, with whom Launie and Howards P.A. was on
brief, for appellant.
Dina Michael Chaitowitz, Assistant United States Attorney,
with whom Donald K. Stern, United States Attorney, was on brief,
for appellee.
November 14, 1994
SELYA, Circuit Judge. This appeal constitutes one more
SELYA, Circuit Judge.
link in the lengthening chain of sentencing appeals that binds
the federal courts of appeals ever more tightly to the sentencing
process. In this instance, defendant-appellant Anthony L.
Talladino challenges the district court's determination of the
guideline sentencing range (GSR) in respect to: (1) the court's
enhancement of his offense level based on his aggravating role in
the offense; and (2) the court's handling of the delicate
interface between obstruction of justice and acceptance of
responsibility. We find the first assignment of error to be
unavailing. We detect some merit, however, in the second
assigned error. Consequently, we vacate appellant's sentence and
remand for resentencing.
I. BACKGROUND
I. BACKGROUND
Because the underlying conviction results from a guilty
plea rather than a trial, we draw the facts from the uncontested
portions of the Presentence Investigation Report (PSI Report) and
the transcript of the sentencing hearing. See United States v.
Garcia, 954 F.2d 12, 14 (1st Cir. 1992); United States v. Dietz,
950 F.2d 50, 51 (1st Cir. 1991).
Talladino, a chemist by trade, attempted to parlay his
technological expertise into ill-gotten gains by illicitly
manufacturing and distributing a kaleidoscopic array of drugs,
including methamphetamine, psilocybin, PHP (1-(1-
2
phenylcyclohexyl)-pyrrolidine), and MDMA
(methylenedioxymethamphetamine).1 Talladino plied this
nefarious trade in concert with several other persons, among them
Michael Hanley, Anthony Miller, and Scott Dailey.
The venture apparently took wing when, sometime in
1989, Talladino told Hanley that he (Talladino) had the skills
needed to manufacture illegal drugs. Hanley expressed interest
and the two men set up shop. In the fall of 1990, Talladino
began manufacturing PHP at locations in Boston and Dorchester.
He explained to Hanley that he had selected PHP as the product of
choice because, as an analogue of PCP, it was "non-classified"
under Massachusetts law and, thus, the producers "would avoid any
sort of legal ramifications." Within a few months, the
principals had recruited Miller and Dale McDonnell (an
acquaintance of Talladino's) as retailers for the manufactured
PHP.
For a spell, Talladino's rodomontade seemed to be
congruent with the relevant realities. In April of 1991, a local
police department caught wind of a suspected PCP distribution
ring. The police arrested Talladino and Miller. Once
apprehended, Miller, who believed he had been trafficking in PCP,
told the officers that McDonnell was peddling PCP "for
Talladino." The Commonwealth of Massachusetts charged Talladino
with distributing PCP, but, when chemical tests proved the
1Psilocybin is familiarly known as "mushrooms" or "magic
mushrooms." PHP is an analogue for PCP (sometimes called "angel
dust"). MDMA is generally referred to as "Ecstasy."
3
product to be PHP, the authorities dropped the charges.
Talladino's luck began to sour in late 1991, when the
federal Drug Enforcement Administration (DEA) launched an
investigation. At that juncture, Talladino was using Hanley's
residence in Quincy, Massachusetts, as a site for manufacturing
PHP. A chemical company informed the DEA that Hanley, employing
a pseudonym, had ordered a chemical frequently used to
manufacture PCP. The DEA orchestrated a surveillance and Hanley
unwittingly led the lawmen to his lodgings. Early the next
morning, a Quincy police officer stopped Talladino's car and
found inside a bottle containing approximately 50.50 grams of a
substance that the officer thought was PCP (but which was in
actuality PHP).
The police arrested Talladino for possessing PCP with
intent to distribute. Perhaps emboldened by his previous
triumphant encounter with the law, Talladino freely admitted that
he was manufacturing PHP. The state once again dismissed the
charges against him, but the DEA's interest did not wane.
Meanwhile, Talladino began to expand his horizons. In
1992, he proposed to Dailey, a co-worker, that they use the
latter's apartment as a site for producing phenylacetic acid (a
precursor chemical to methamphetamine). The men tried, but the
reaction failed. The entrepreneurs shelved the plan to
manufacture methamphetamine until February of 1993, when
Talladino noticed that Dailey's laboratory had received a
shipment of phenylacetic acid. Talladino told Dailey that it
4
would be easy to manufacture methamphetamine with pure
phenylacetic acid. At Talladino's instigation, Dailey pilfered
300 grams of phenylacetic acid from his employer. Talladino then
installed a production facility at Dailey's apartment. By June,
the pair had succeeded in manufacturing roughly 140 grams of
liquid methamphetamine. Dailey described himself as Talladino's
"lab assistant" for purposes of this endeavor.
Apparently not satisfied with PHP and methamphetamine,
Talladino continued to enlarge his product line. Presumably
because his paramour knew an individual who stood ready to buy
large quantities of the drug known as Ecstasy, Talladino next
focused his considerable energies in that direction. Talladino
obtained a quantity of safrole (a precursor chemical), and
attempted to manufacture the drug.
During the same time frame, Talladino and Hanley
decided to produce psilocybin, a hallucinogen. Talladino ordered
the seeds, took petri dishes and other necessary paraphernalia
from his place of legitimate employment, and ordered Hanley to
procure lime and peat moss. The attempt to produce psilocybin
was well on the way to fruition when a federal grand jury
indicted Talladino.2
2The grand jury later returned a superseding eleven-count
indictment against Talladino, Hanley, Miller, and Dailey. Count
1 charged all four men with conspiring to manufacture and
distribute PHP, methamphetamine, Ecstasy, and psilocybin. The
remaining ten counts charged various defendants with assorted
crimes such as distributing PHP; possessing PHP and-or
metamphetamine with intent to distribute; possessing listed
chemicals with intent to manufacture methamphetamine and P2P (a
methamphetamine precursor); attempting to manufacture psilocybin
5
DEA agents arrested Talladino and Hanley on June 3,
1993. Both men were detained. Immediately prior to Hanley's
release on bail, Talladino instructed him to destroy all evidence
of drug manufacture at a location the two men had used in
Charlestown, Massachusetts. Hanley followed Talladino's
instructions. Through an intermediary, Talladino also managed to
alert Dailey to the dire nature of the situation and suggest that
he take cautionary measures. As a result of the warning call,
Dailey disposed of the methamphetamine and other chemicals.3
On September 17, 1993, Talladino pled guilty to the ten
counts of the indictment in which he was named. The district
court convened a disposition hearing on January 20, 1994.4
Dailey testified. The court also inspected transcripts of grand
jury testimony, reviewed the PSI Report, and mulled Talladino's
objections thereto. Two of those objections lie at the epicenter
of this appeal: appellant's lament that he should not be
subjected to a four-level enhancement for playing an aggravating
and Ecstasy; and maintaining facilities for manufacturing
controlled substances. See, e.g., 21 U.S.C. 841(a)(1) &
(d)(1), 846, 856; 18 U.S.C. 2. Although all defendants were
not implicated in all counts, ten of the eleven counts targeted
Talladino.
3Dailey did not succeed fully in covering the conspirators'
tracks. On June 5, 1993, the DEA searched Dailey's apartment and
found a residue of methamphetamine and methamphetamine
precursors.
4The November 1993 edition of the federal sentencing
guidelines applies in this case. See United States v. Aymelek,
926 F.2d 64, 66 n.1 (1st Cir. 1991) ("Barring ex post facto
concerns, the guidelines in effect at the time of sentencing . .
. control."). All references herein are to that version.
6
role in the offense; and his contention that he should receive a
three-level credit for acceptance of responsibility (as opposed
to the two-level credit recommended in the PSI Report).
The district court overruled appellant's role-in-the-
offense and acceptance-of-responsibility objections. It then
calculated the GSR at 135-168 months (offense level 33/criminal
history category I) and imposed an incarcerative sentence at the
bottom of the range. This appeal ensued.
II. ROLE IN THE OFFENSE
II. ROLE IN THE OFFENSE
Appellant asseverates that the lower court erred in
enhancing his base offense level for his role in the commission
of the offense. We start our analysis by inspecting the legal
framework on which this asseveration rests, and then proceed to
examine the merits.
A
A
The federal sentencing guidelines provide two different
tiers of upward adjustments for defendants who are in the higher
echelons of criminal enterprises. Generally speaking, a
"manager" or "supervisor" is treated less kindly than a
journeyman, but more kindly than an "organizer" or "leader."
Compare U.S.S.G. 3B1.1(b) with U.S.S.G. 3B1.1(a). In the
latter case, the guidelines call for an increase of four levels
"[i]f the defendant was an organizer or leader of a criminal
activity that involved five or more participants or was otherwise
extensive . . . ." Id.
7
It is evident from this language that the guideline
puts in place two preconditions to a four-level enhancement. One
is enterprise-specific; the court must find that the criminal
activity involved five or more participants, or was otherwise
extensive. The second is offender-specific; the court must find
that a particular defendant acted as an organizer or leader of
the activity. We have consistently read the guideline in this
manner. See, e.g., United States v. Olivier-Diaz, 13 F.3d 1, 4
(1st Cir. 1993); Dietz, 950 F.2d at 52; United States v.
McDowell, 918 F.2d 1004, 1011 (1st Cir. 1990).
The commentary to the guidelines furnishes a
nonexhaustive list of factors to aid courts in delineating the
difference between the roles of organizer/leader and
manager/supervisor:
[1] the exercise of decision making
authority, [2] the nature of participation in
the commission of the offense; [3] the
recruitment of accomplices, [4] the claimed
right to a larger share of the fruits of the
crime, [5] the degree of participation in
planning or organizing the offense, [6] the
nature and scope of the illegal activity, and
[7] the degree of control and authority
exercised over others.
U.S.S.G. 3B1.1, comment. (n.4). These seven factors, while
useful as guideposts, do not possess talismanic significance.
"There need not be evidence of every factor before a defendant is
found to be a leader or organizer." United States v. Preakos,
907 F.2d 7, 9 (1st Cir. 1990) (per curiam) (citation and internal
quotation marks omitted). Moreover, because role-in-the-offense
determinations are inherently fact-specific, the district court's
8
views demand "considerable respect." United States v. Ocasio,
914 F.2d 330, 333 (1st Cir. 1990). As a consequence, such
judgments are reviewed on appeal only for clear error or mistake
of law. See Dietz, 950 F.2d at 52; United States v. Akitoye, 923
F.2d 221, 227 (1st Cir. 1991); McDowell, 918 F.2d at 1011; United
States v. Diaz-Villafane, 874 F.2d 43, 48 (1st Cir.), cert.
denied, 493 U.S. 862 (1989).
B
B
Appellant eschews any challenge to the court's
determination of extensiveness (and, in all events, the record
persuasively demonstrates the scope of the criminal activity and
the large number of persons participating therein). Instead,
appellant complains about the court's assessment of his role in
the enterprise. We think that the facts, fairly viewed, verify
the conclusion that appellant served as both an "organizer" and
"leader" of the drug manufacturing and distribution ring.
Appellant's argument, distilled to its essence, is that
he and his coconspirators were equal partners embarked upon a
joint venture. This self-deprecation cannot withstand the
crucible of close examination. Most tellingly, the record shows
with pristine clarity that appellant made the key strategic
decisions for the group: what drugs would be manufactured, when
the manufacturing would take place, at what locations, what
processes would be used, and what quantities of contraband would
be manufactured. Where, as here, one individual in a multi-
defendant enterprise makes the critical strategic and operational
9
decisions on behalf of the group (unilaterally answering
questions such as "what? when? where? how? and how much?"), that
individual exhibits precisely the sort of characteristics that
are emblematic of an organizer or leader.
In this case, moreover, the record is replete with
evidence that appellant not only exercised decisionmaking
authority, but also did the lion's share of the planning,
recruited accomplices, and exerted control over those
accomplices. Indeed, appellant used Hanley and Dailey on an
ongoing basis to run errands in furtherance of the project (e.g.,
directing Hanley to obtain peat moss and lime needed for the
proposed production of psilocybin; directing Dailey to filch
glassware and machinery from his place of employment, and
otherwise treating him as an assistant). If more were needed
and we do not think that it is the events that occurred after
appellant's arrest confirm his place in the conspiracy's
hierarchy. While in jail, he instructed Hanley and Dailey to
destroy evidence, and they complied unquestioningly with those
instructions.
We will not wax longiloquent. The evidence
demonstrates appellant's hegemony beyond the shadow of a doubt
and, thus, amply supports the district court's finding that
appellant was an organizer and leader of the criminal activity.
See, e.g., United States v. Fuller, 897 F.2d 1217, 1220 (1st Cir.
1990) (holding that the four-level enhancement applies when a
defendant "exercise[s] some degree of control over others
10
involved in the commission of the offense or [is] responsible for
organizing others for the purpose of carrying out the crime").
C
C
Appellant has one more arrow in his quiver. He argues
that, given the centrality of his training in chemistry to his
participation in the offense, the district court erred in
deciding upon a role-in-the-offense enhancement (four levels)
rather than a lesser "special skill" enhancement (two levels).
See U.S.S.G. 3B1.3 (providing in pertinent part for a two-level
enhancement if the defendant "used a special skill, in a manner
that significantly facilitated the commission or concealment of
the offense").
To be sure, there is some potential overlap between the
special skill provision and the aggravating role adjustment.
Although double counting may be permissible in certain
circumstances under the guidelines, see, e.g., United States v.
Lilly, 13 F.3d 15, 19 (1st Cir. 1994), the Sentencing Commission
chose to avoid it in respect to this overlap. To this end,
section 3B1.3 specifically declares that a special skill
adjustment "may not be employed in addition to an adjustment
under 3B1.1 (Aggravating Role)." U.S.S.G. 3B1.3. Therefore,
the district court could not lawfully have piled a four-level
increase for role in the offense atop a two-level increase for
the use of a special skill. But the district court did not run
afoul of this prohibition; it unleashed only the former
enhancement, not the latter. We discern no error.
11
We agree with appellant that some of the facts that
demonstrate his leadership role relate to his work as a chemist.
When the same set of facts implicates two different adjustment
provisions, however, the guidelines ordinarily do not require a
sentencing court to embrace the lesser of the two equally
applicable adjustments. See, e.g., United States v. Medeiros,
897 F.2d 13, 20 (1st Cir. 1990). In fact, the guidelines point
rather conspicuously in the opposite direction. See generally
U.S.S.G. 1B1.1, comment. (n.5) ("Where two or more guideline
provisions appear equally applicable, but the guidelines
authorize the application of only one such provision, use the
provision that results in the greater offense level.").
In this instance, the record solidly supports the
district court's finding that appellant acted as an organizer and
leader5 and no provision in the guidelines suggests that a
sentencing court must resort to a special skill enhancement in
lieu of an equally justified aggravating role enhancement. Thus,
notwithstanding the imbrication of which appellant complains, the
5To the extent appellant argues that the sentencing court
misconstrued actions he took as a chemist, his argument falls far
short of the mark. Appellant was by no means an independent
contractor whose authority was confined to the laboratory and
whose decisions were limited to discrete issues related to
production. Instead, the district court warrantably found that
appellant, aided by his knowledge of chemistry and his ready
access to raw materials and equipment, made a series of tactical
and strategic choices for the organization on a wide-ranging
basis. We must accept this rendition of the record. See United
States v. St. Cyr, 977 F.2d 698, 706 (1st Cir. 1992) (holding
that "when there are two plausible views of the record, the
sentencing court's adoption of one such view cannot be clearly
erroneous"); Diaz-Villafane, 874 F.2d at 49 (similar; discussing
role-in-the-offense adjustment).
12
district court acted properly in embracing the four-level upward
adjustment described in section 3B1.1 rather than settling for
the two-level adjustment described in section 3B1.3.6
III. ACCEPTANCE OF RESPONSIBILITY
III. ACCEPTANCE OF RESPONSIBILITY
Appellant's remaining challenge concerns acceptance of
responsibility. U.S.S.G. 3E1.1(a) provides for a basic two-
level reduction in the offense level if a defendant accepts
responsibility as that phrase is used in the guidelines. Section
3E1.1(b) makes provision for an additional one-level reduction if
the defendant qualifies for the initial decrease under subsection
(a), has an offense level of 16 or more, and either: "(1) timely
provid[es] complete information to the government concerning his
own involvement in the offense; or (2) timely notif[ies]
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."
U.S.S.G. 3E1.1(b).
A different guideline, U.S.S.G. 3C1.1, provides for a
two-level increase in the offense level for obstructing or
impeding the administration of justice. A natural tension arises
between these two guidelines when a defendant obstructs justice,
6We note in passing that the special skill provision
operates differently than the abuse of trust provision contained
in the same guideline. With respect to the latter, the
guidelines specifically authorize the imposition of separate
enhancements for both abuse of a position of trust and
aggravating role, see U.S.S.G. 3B1.3, notwithstanding that the
two enhancements may arise out of the same nucleus of operative
facts, see United States v. Hickman, 991 F.2d 1110, 1112 (3d Cir.
1993) (discussing operation of these interlocking guidelines).
13
yet professes to accept responsibility. In such cases, the
defendant faces an uphill, but not necessarily an impossible,
climb. While the Sentencing Commission recognizes that conduct
requiring an enhancement under section 3C1.1 "ordinarily
indicates that the defendant has not accepted responsibility for
his criminal conduct," U.S.S.G. 3E1.1, comment. (n.4), it
acknowledges in the same breath that there are "extraordinary
cases in which adjustments under both 3C1.1 and 3E1.1 may
apply." Id.
In the instant case, the district court invoked
U.S.S.G. 3C1.1 and imposed a two-level enhancement for
obstruction of justice as a result of appellant's campaign to
destroy evidence. The court nevertheless found that appellant
had accepted responsibility, and, although troubled by the
obstruction of justice, found his case to be extraordinary.
Then, without any analysis of the requirements set forth in
section 3E1.1(b), the court gave appellant a two-level rather
than a three-level acceptance-of-responsibility credit. The
court offered no explanation of, or insight into, the source of
its authority to make so Solomonic a decision.7 Cf. 2 Kings
3:16-18 (proposing resolution of dispute by splitting small child
in half).
On appeal, Talladino assails the district court's
decision to deny the extra one-level reduction under section
7The court apparently emulated the PSI Report, which had
recommended this very course. The PSI Report, too, glossed over
the question of authority.
14
3E1.1(b). He contends that, once the district court determined
that he qualified for the basic acceptance-of-responsibility
reduction, U.S.S.G. 3E1.1(a), the court had no discretion to
withhold the additional level due to obstruction of justice, but,
instead, could only undertake the circumscribed inquiry limned in
section 3E1.1(b), and grant or deny the further reduction solely
on that basis. We agree with appellant's analysis.
A
A
We deal first with the standard of appellate review
that applies to this aspect of the case. The government
importunes us to review the challenged ruling for clear error,
while appellant urges us to undertake plenary review.
Whether a defendant has, or has not, accepted personal
responsibility is normally a fact-dominated issue, and the
district court's decision to grant or withhold a reduction in the
offense level on that account will not be overturned unless it
can be shown to be clearly erroneous. See, e.g., United States
v. Morillo, 8 F.3d 864, 871 (1st Cir. 1993); United States v.
Royer, 895 F.2d 28, 29 (1st Cir. 1990). Nonetheless, questions
of law including interpretive questions concerning the meaning
and scope of the sentencing guidelines engender de novo review.
See, e.g., United States v. St. Cyr, 977 F.2d 698, 701 (1st Cir.
1992); United States v. Connell, 960 F.2d 191, 197-98 (1st Cir.
1992). When a sentencing court's factfinding is inextricably
intertwined with an allegedly improper application of the
sentencing guidelines, the latter standard of review controls.
15
See United States v. Tavano, 12 F.3d 301, 307 (1st Cir. 1993).
In its present posture, the issue presented on appeal
does not involve a factual determination under either subsection
(a) or (b) of section 3E1.1.8 Instead, this case poses the
quintessentially legal question of whether the district court had
discretion to deny appellant the additional one-level reduction
described in U.S.S.G. 3E1.1(b), without considering the
timeliness of appellant's acceptance of responsibility. We,
therefore, review the challenged ruling de novo.
B
B
As a matter of common sense, the district court's
determination that, having obstructed justice, appellant deserved
something less than the maximum three-level reduction for
acceptance of responsibility is attractive. As a matter of law,
however, the court's decision is more vulnerable, because nothing
in the language of U.S.S.G. 3E1.1(b) makes any reference, veiled
or otherwise, to judicial power to withhold the one-level
reduction due to obstruction of justice. The language of
subsection (b) is absolute on its face. It simply does not
confer any discretion on the sentencing judge to deny the extra
one-level reduction so long as the subsection's stated
requirements are satisfied.
8Although the district court found as a fact that appellant
accepted responsibility, U.S.S.G. 3E1.1(a), neither side has
appealed from that finding. Insofar as U.S.S.G. 3E1.1(b) is
concerned, the district court made no findings even though
appellant's counsel argued the point both in a sentencing
memorandum and in objections to the PSI Report.
16
The government argues that the district court's
discretion to withhold the one-level reduction, even when a
defendant has met the explicit requirements of subsection (b), is
inherent in, or a necessary concomitant of, the need for the
district court to find that the case is "extraordinary" a
finding that is essential to overcome the effect of a defendant's
obstruction of justice and remove the roadblock that otherwise
bars all access to section 3E1.1. Withal, the government is
wholly unable to cite to anything in the guidelines or in the
Sentencing Commission's commentary that supports its theory and
courts must be very cautious about retrofitting the guidelines to
suit an individual judge's concepts of justice. Cf. United
States v. Norflett, 922 F.2d 50, 53 (1st Cir. 1990) (explaining
that judges "must subrogate personal views [about what sentences
are too severe or too lenient] to the Congress' sense of how best
to achieve uniformity"). When all is said and done, the best
authority that the government can muster in support of this
proposition consists of two cases, United States v. Booth, 996
F.2d 1395 (2d Cir. 1993) (per curiam), and United States v.
Tello, 9 F.3d 1119 (5th Cir. 1993). We find neither case
particularly helpful.
In Booth the defendant, prior to his indictment for
sexual exploitation of children, made several attempts to keep
his victims from talking to the FBI. In constructing the GSR,
the district court employed both a two-level enhancement for
obstruction of justice and a two-level decrease for acceptance of
17
responsibility under section 3E1.1(a). The court then declined
to bestow an additional one-level reduction under section
3E1.1(b). Although the Second Circuit upheld the district
court's decision, it did not squarely address the issue that
confronts us today. Booth argued that he was entitled to the
one-level reduction because of the extraordinary quality of his
cooperation, not because his conduct satisfied the criteria set
forth in section 3E1.1(b). Here, however, Talladino makes the
rather different argument, apparently overlooked by Booth, that
timeliness is the only relevant inquiry under subsection (b).
Thus, Booth is inapposite.
In Tello, the defendant obstructed justice after
pleading guilty by providing false information about his criminal
history. The district court imposed a two-level enhancement for
obstruction of justice and granted an offsetting two-level
decrease for acceptance of responsibility. Despite Tello's
admittedly timely guilty plea, the court did not afford him the
additional one-level reduction under subsection (b).
Tello appealed. The Fifth Circuit reversed, declaring
that once an affirmative determination of acceptance of
responsibility has been made, "no sentencing discretion remains."
Tello, 9 F.3d at 1124. The court explicitly rejected the
district court's reliance on the defendant's obstruction of
justice as a reason for denying the additional one-level
reduction, explaining that:
When the court granted [the defendant] the
basic 2-level reduction for acceptance of
18
responsibility under subsection (a), despite
having found obstruction of justice and
having increased his offense level by two
therefor, obstruction became irrelevant. It
evaporated from the sentencing calculus.
Id. at 1128.
Despite these seemingly unequivocal assertions, the
government insists that Tello contains a per se exception for
cases in which an obstruction of justice occurs prior to the
defendant's tender of a guilty plea. To support this argument
the government relies on the following footnote:
This is not to say that, under greatly
different circumstances, obstruction of
justice could not constitute discretionary
grounds for denying the additional 1-level
decrease, such as when the defendant first
obstructs justice in the investigation of his
offense and only subsequently admits his
guilt and cooperates with the government.
Id. at 1128 n.22 (citing Booth).
The government's reliance on the dictum contained in
footnote 22 is misplaced. Rather than creating a broad exception
to the holding in Tello, footnote 22 merely leaves open the
possibility that a defendant's obstruction of justice might be
relevant to the sentencing court's timeliness inquiry under
section 3E1.1(b). See, e.g., infra note 10. In other words, if
a defendant's obstruction of justice directly precludes a finding
of timeliness under section 3E1.1(b), then a denial of the
additional one-level decrease would be appropriate. If, however,
the defendant's obstruction of justice has no bearing on the
section 3E1.1(b) timeliness inquiry, as was the case in Tello,
19
then the obstruction drops from the equation.9
We consider the Fifth Circuit's holding in Tello to be
much more convincing than the government's sanguine
interpretation of footnote 22. We believe that such a holding is
compelled by the language of the sentencing guidelines. The text
of section 3E1.1, as the government concedes, does not confer
discretion on the district court to deny the extra one-level
reduction so long as certain stated prerequisites are satisfied.
And there is no principled basis, linguistic or otherwise, for
arguing that obstruction of justice affects this baseline
interpretation of section 3E1.1(b).
The commentary to the guidelines is to the same effect.
It establishes that, in the universe of cases where obstruction
of justice looms, a reduction for acceptance of responsibility is
ordinarily forestalled altogether. See U.S.S.G. 3C1.1, comment.
(n.4). Yet, there will be "extraordinary cases in which
adjustments under both 3C1.1 and 3E1.1 may apply." Id. The
use of the permissive word "may" makes it pellucid that the
district court, having found obstruction of justice, has
discretion to bypass section 3E1.1. Nonetheless, once the court
finds that a case is "extraordinary" within the meaning of
Application Note 4, the bypass option is blocked off, section
3E1.1 comes into play, and the court at that point is bound to
9The confusion surrounding footnote 22 stems in part from
the inclusion of the phrase "discretionary grounds." This term
appears to be used incorrectly in the context of a discussion of
section 3E1.1(b), as the additional one-level decrease is not a
matter of discretion, but of factfinding.
20
apply the guideline according to its own terms. Those terms do
not permit an allowance to be made for the circuitous route by
which the acceptance of responsibility guideline came to be
applied in the first place.
Our focus on the plain language of the guidelines and
commentary is a necessary offshoot of the policy concerns
undergirding the sentencing guidelines. The guidelines' primary
purpose is to alleviate disparity in the sentencing of similarly
situated offenders. See S. Rep. No. 225, 98th Cong., 2d Sess.
38, 51, 161 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3221,
3234, 3344. "Ensuring uniformity inevitably means restricting
judicial discretion." United States v. Jackson, 30 F.3d 199, 201
(1st Cir. 1994). This phenomenon, in turn, places more emphasis
on the text and purport of the guidelines.
Where, as here, the text and purport of the guidelines
are clear, courts may not tinker, but, rather, must apply the
provision in question according to its tenor. After all, toying
with the scope and meaning of carefully crafted guideline
provisions would undermine the principle of uniformity that
engendered the guidelines. See Norflett, 922 F.2d at 54 (stating
that guidelines cannot "be adulterated by a judge's personal
sense of inequity, no matter how well intentioned the judge may
be"); see also Jackson, 30 F.3d at 204 (holding that the courts'
role vis-a-vis the Sentencing Commission is as "interpreters of
the words chosen by [the Commission], not as policymakers or
enlargers of [the Commission's] intent").
21
Viewed against this backdrop, we are of the opinion
that, in denying appellant the extra one-level reduction under
section 3E1.1(b) because of his obstruction of justice, the
district court erred. Faced with this sort of dilemma, a court
should pose two separate questions. First, the court should ask
whether the defendant is entitled to receive any reduction for
acceptance of responsibility, given his obstruction of justice.
The court can only answer this query in the affirmative by
finding, inter alia, that the situation is "extraordinary." If,
notwithstanding the height of this threshold, the court vaults
it, makes the requisite finding, and answers the first question
affirmatively, it is then obliged to award the defendant the
standard two-level credit for acceptance of responsibility. At
that juncture, the court should place obstruction of justice to
one side and pose the second question, inquiring whether the
defendant qualifies for an additional one-level reduction based
on the timeliness of his acceptance of responsibility.10 In
other words, once the initial inquiry has been resolved in the
defendant's favor, with the explicit or implicit finding that his
case is "extraordinary," the only relevant inquiry that remains
is whether the defendant either: "(1) timely provid[ed] complete
10Of course, in some cases a particular act of obstruction
may bear directly upon the criteria specified in section
3E1.1(b). For example, obstructive conduct might render
information furnished to the government incomplete, even in an
"extraordinary" case. In such a situation, the obstructive
conduct can be considered during the second stage of the inquiry.
Given the absence of findings in this case, however, we take no
view as to how (if at all) this possibility might affect the
proceedings on remand.
22
information to the government concerning his own involvement in
the offense; or (2) timely notif[ied] 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." U.S.S.G. 3E1.1(b).
Here, the court in effect conflated these two
inquiries. In following this course, the court erred. And,
moreover, its error requires that appellant be resentenced.
After all, the court made no findings whatever concerning the
section 3E1.1(b) criteria. Furthermore, the record does not
suggest an obvious basis for excluding appellant from the
benefits of subsection (b). Consequently, we must vacate
appellant's sentence to allow the district court a fresh
opportunity to consider, in light of our opinion, whether
appellant is, or is not, entitled to the additional one-level
reduction under section 3E1.1(b).
IV. CONCLUSION
IV. CONCLUSION
We need go no further. For the reasons discussed
herein, we affirm appellant's conviction, but vacate his sentence
and remand for resentencing.
It is so ordered.
It is so ordered.
23