United States v. Miranda Santiago

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 95-1301

UNITED STATES,
Appellee,

v.

JUAN JOSE MIRANDA-SANTIAGO,
Defendant - Appellant.

No. 95-1302

UNITED STATES,
Appellee,

v.

CARMEN PACHECO-RIJOS,
a/k/a FINA,
Defendant - Appellant.

No. 95-1304

UNITED STATES,
Appellee,

v.

ISMAEL RIVERA-DECELIS,
a/k/a MACHO,
Defendant - Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jos Antonio Fust , U.S. District Judge]

Before

Selya and Cyr, Circuit Judges,

and Gertner,* District Judge.

Edward E. Parson, by Appointment of the Court, on brief for

appellant Juan Jos Miranda-Santiago; Norberto Col n, by

Appointment of the Court, for appellant Carmen Pacheco-Rijos; and
Harry R. Segarra, by Appointment of the Court, for appellant

Ismael Rivera-DeCelis.
Miguel A. Pereira, Assistant United States Attorney, with

whom Guillermo Gil, United States Attorney, and Jos A. Quiles-

Espinosa, Senior Litigation Counsel, were on brief for appellee.

September 19, 1996

* Of the District Court of Massachusetts, sitting by
designation.

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GERTNER, District Judge. In this consolidated appeal,
GERTNER, District Judge.

we consider challenges to the sentences of Ismael Rivera-DeCelis,

Carmen Pacheco-Rijos and Juan Jos Miranda-Santiago. In

September of 1994, these defendant-appellants, along with twenty-

one co-defendants, pled guilty to participation in a drug

distribution conspiracy spanning over a year and involving

trafficking in crack cocaine, cocaine, heroin, and marijuana, as

well as using or brandishing firearms, and engaging in carjacking

to facilitate their drug trade.

The defendants were arraigned in two groups, pled

guilty before the same judge and were sentenced before him by

early 1995.

Ismael Rivera-DeCelis contends that his guilty plea was

entered in violation of Rule 11 of the Federal Rules of Criminal

Procedure, and that the district judge erred in calculating his

sentence. See U.S.S.G. 1B1.3. He did not press the first point

below. We find that the plea colloquy in his case conformed with

Fed. R. Crim. P. 11 and that the sentence calculations with

respect to him were not in error. Accordingly, we affirm his

conviction and sentence.

Carmen Pacheco-Rijos challenges her sentence, arguing

that the district court erred in imposing the mandatory minimum

required for her offense. Her attack is based on her claim that

she met the conditions set forth in the "safety valve provision"

of the Sentencing Guidelines. See 18 U.S.C. 3553(f); U.S.S.G.

5C1.2. We find the record inadequate to justify the district

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court's decision not to grant relief. Accordingly, we vacate the

sentence and remand the case for the purpose of allowing the

district court to revisit this issue and to clarify the record by

filing supplemental findings. In the event that the court finds

its initial calculation in error, it should so identify and

return, as well, to the issue of other adjustments, if

appropriate, under the Guidelines.

Juan Jos Miranda-Santiago also attacks his sentence,

arguing that the sentencing court erred, as a matter of law, by

failing to grant a two-level downward adjustment based on a

finding that the defendant was a "minor participant" in the

criminal activity. See U.S.S.G. 3B1.2(b). We find inadequate

support in the record for the court's conclusion that a downward

adjustment was inappropriate. We vacate this sentence and remand

the case to the district court for the purpose of having the

court file supplemental findings with respect to appellant

Miranda-Santiago's role in the offense. In the event that the

court finds its computation in error, it should include such a

determination in its findings.

I. BACKGROUND
I. BACKGROUND

We begin with an overview of events involving the three

appellants.1

1 We consider the facts as set forth in the uncontested portions
of the Presentence Report ("PSR") of each defendant, the
information to which each defendant pled guilty, and the
sentencing hearing transcripts. E.g., United States v.

Grandmaison, 77 F.3d 555, 557 (1st Cir. 1996); United States v.

LeBlanc, 24 F.3d 340, 342 (1st Cir.), cert. denied, U.S. ,

115 S. Ct. 250 (1994).

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On March 9, 1994 a grand jury returned an indictment

against 19 defendants, including appellants Pacheco-Rijos and

Miranda- Santiago, charging them with conspiracy to distribute

drugs, and with using firearms in connection with a drug offense.

Apparently, the conspirators hid drug substances, firearms and

proceeds of drug sales in specific locations, guarded by members

of the conspiracy. Members of the conspiracy were also

encouraged to commit -- and committed -- "carjacking" offenses;

armed, they would steal cars and then use the vehicles to

transport drugs back to their storage locations.

The indictment and the PSRs adopted by the appellants

and the district court detailed a criminal enterprise with a

strongly hierarchical structure; some of the accused controlled

the operation, while others served as drug runners and

bodyguards. A superseding indictment, returned on May 12, 1994,

named five additional defendants, including appellant Rivera-

DeCelis.

When arraigned, each defendant entered a plea of not

guilty. In September of 1994, Rivera-DeCelis, Pacheco-Rijos and

Miranda- Santiago, among others, offered to change their pleas

with respect to certain charges. After each plea colloquy,

conducted individually, the court accepted the defendants' pleas.

Each was separately sentenced.

II. DISCUSSION
II. DISCUSSION

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We consider the facts with respect to each defendant

and his or her legal challenges in turn.

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A. Ismael Rivera-DeCelis
A. Ismael Rivera-DeCelis

1. Facts
1. Facts

Appellant Rivera-DeCelis was alleged to have been

involved in several phases of the drug conspiracy detailed in the

superseding indictment. He was charged in Count One with

distributing not less than fifty grams of cocaine base, an amount

of not less than five kilograms of cocaine, an amount of not less

than one kilogram of heroin, and some amount of marijuana, in

violation of 21 U.S.C. 841(a)(1) & 846. Counts Three, Four

and Five charged him with possessing and brandishing various

firearms in connection with his drug trafficking, in violation of

21 U.S.C. 924(c)(1).

After an initial plea of not guilty, on September 8,

1994, Rivera-DeCelis offered to change his plea to guilty to

Count One's charge that he acted in violation of 18 U.S.C. 846,

and Count Three's charge that he acted in violation of 18 U.S.C.

924(c)(1). The plea agreement was entered into under Fed. R.

Crim. P. 11(e)(1)(c).2 It provided that the defendant would be

held accountable at sentencing for the distribution of no less

than 15 but no more than 50 kilograms of cocaine, resulting in a

base offense level of 34. See U.S.S.G. 2D1.1(a)(3). The

parties also agreed that the defendant was entitled to a three-

2 Rule 11(e)(1)(C) of the Federal Rules of Criminal Procedure
authorizes plea agreements which stipulate specific sentences to
be imposed. In those circumstances, a district court may either
accept the agreement in toto or reject it, giving the defendant
the opportunity to withdraw the plea entirely. Fed. R. Crim. P.
11(e)(4); U.S.S.G. 6B1.3(ps).

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level downward adjustment for acceptance of responsibility, under

U.S.S.G. 3E1.1(b)(1) & (2), reducing his offense level to 31.

The parties further defined the term of imprisonment: In light of

the ten year mandatory minimum sentence facing Rivera-DeCelis

under 21 U.S.C. 841(b)(1)(B), and a criminal history category

of III, they stipulated to a 139 month term of confinement on

Count One to be followed by a 60 month term on Count Three.3

During the plea colloquy, the district judge directly

addressed Rivera-DeCelis. He explained each charge, detailing,

among other things, the time frame of the conspiracy in which the

defendant allegedly was involved (roughly from January of 1993

through March of 1994), the elements of the offenses and the

burden the government would have if it tried to prove its case.4

3 The 139 month prison term on Count One appears, from the
record before us, to have been the result of negotiation between
the initial plea and sentencing.

4 As to the factual basis of the charges to which the defendant
was offering to plead, the colloquy included the following:

THE COURT: Have you received a copy of the
superseding indictment that mentions you in
Counts One and Three?
THE DEFENDANT: Yes, sir.
THE COURT: Count One is the drug conspiracy
count. There, you are charged with
participating in a conspiracy . . . . The
allegation is that you knowingly and
intentionally conspired, and agreed with a
number of persons to knowingly and
intentionally distribute controlled
substances.
THE DEFENDANT: Yes, sir.
THE COURT: Have with you [sic], possess and
distribute controlled substances,
specifically in an amount of not less than 50
grams of crack cocaine, not less than five
kilograms of regular cocaine, some marijuana,

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He also explained to the defendant the sentences he faced and the

consequences of his plea, inquired about coercion and made sure

the defendant understood the particular strictures of a plea

entered into under Rule 11(e)(1)(c). The defendant agreed to the

facts presented in the indictment, without asserting that there

were any temporal limits to his personal involvement in the

conspiracy.

and at least one kilogram of heroin. Do you
understand that?
THE DEFENDANT: Yes.

With respect to the firearms charge, the colloquy included:

THE COURT: And that aside from selling drugs
and making money, the different members of
the conspiracy at time possessed weapons,
firearms, to provide protection to the drug
operations or the conspiracy, not only from
innocent people but also from rival gangs,
and to prevent the intervention of law
enforcement officers, and to provide a
certain degree of intimidation . . . of
innocent people . . .
THE DEFENDANT: Yes, sir.
THE COURT: Also, that at times certain
members of the conspiracy, of which you are a
part, carjacked citizens, took their cars
away by force, in order to use the cars for
purposes of -- related to the drug
conspiracy.
THE DEFENDANT: Yes, sir . . . .
THE COURT: You are also pleading guilty to
Count Three, which is the firearms count.
There the government is alleging that from
January of 1993, until on or about March of
1994, you, along with others, knowingly used
and carried firearms, specifically
semiautomatic pistols, during and in relation
to a drug trafficking crime which is
precisely the drug trafficking crime that you
are charged with in Count One.
THE DEFENDANT: Yes, sir.

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Turning to the factual basis of the charges, the judge

asked Rivera-DeCelis whether the defendant was "recognizing [his

guilt] ... for the drug conspiracy participation and also for the

weapons or firearms count," and whether he acknowledged the

punishment he could face. Rivera-DeCelis answered in the

affirmative to both questions.5

At sentencing, the defendant challenged the drug amount

attributed to him in the PSR. Notwithstanding his earlier

admissions, Rivera-DeCelis asserted that he was only involved in

the conspiracy for three months and that the amount of cocaine

reflected in the plea agreement was greater than the amount he

could reasonably have foreseen would have been part of the

conspiracy during his membership in it. The government cast doubt

on the short duration of Rivera-DeCelis' involvement, noting that

he was pictured holding a gun and serving as a bodyguard for one

of the conspiracy's leaders. Logically, the prosecutor argued,

such a responsibility would not devolve to a new and marginal

member of the organization. In any event, even within a 90 day

period, the government contended, the daily quantities of drugs

sold as part of the conspiracy would result in a drug offense

level of over 34.

The district judge did not accept the defendant's

characterization of his involvement and rejected his challenge.

5 Rivera-DeCelis also admitted that he, as charged in Counts One
and Three, actually possessed and distributed "controlled
substances being a member of a conspiracy," and that he was aware
of the acts of his co-conspirators "involving weapons,
carjackings and proceeds, financial gain, et cetera."

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The judge noted that the benefits of this plea agreement to the

defendant were substantial, since, for instance, no amount of

crack cocaine was attributed to the defendant, a drug "which all

of them were dealing ... without a doubt." Accordingly, the

court adopted a base offense level of 34 and granted the

defendant a three-level reduction for acceptance of

responsibility. U.S.S.G. 3E1.1(b). Based on a criminal

history category of III, Rivera-DeCelis was sentenced on the drug

charge to a prison term of 139 months, at the lower end of the

guideline range,6 to be followed by a term of 60 months on the

firearms charge. The remaining charges against Rivera-DeCelis

were dismissed.

2. Legal Analysis
2. Legal Analysis

a. Challenge to the Guilty Plea
a. Challenge to the Guilty Plea

Although he never moved to withdraw his plea prior to

sentencing, Rivera-DeCelis now challenges its validity.7 He

claims that his plea was not voluntary, because the district

court failed to offer an adequate explanation of the charges

against him or to determine whether he understood the

consequences of his plea.

6 Given a base offense level of 31 and a criminal history of
III, Rivera-DeCelis faced a guideline sentencing range, on the
drug count alone, of 135 - 168 months.

7 To the contrary, Rivera-DeCelis' attorney insisted at
sentencing that the request that his client be held responsible
for a lower drug quantity was based on objections to the PSR, and
that it was not a request to withdraw the defendant's plea. When
pressed further, defense counsel acknowledged that he was not
making a legal argument but offering an allocution on behalf of
his client.

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We do not agree. On the record before us, we find no

error.

1. Legal Standards
1. Legal Standards

A defendant does not enjoy an absolute right to

withdraw a plea of guilty, once it has been entered. United

States v. Isom, 85 F.3d 831, 834 (1st Cir. 1996); United States

v. Austin, 948 F.2d 783, 786 (1st Cir. 1991); Fed. R. Crim. P. 11

& 32(e). Where a defendant does not seek to withdraw his plea

before the district court and challenges its validity only on

appeal, he or she faces a high hurdle: The challenge can succeed

only if the defendant demonstrates that there was a substantial

defect in the Rule 11 proceeding itself.8 United States v.

Piper, 35 F.3d 611, 613-14 (1st Cir. 1994), cert. denied,

8 Rule 11(c) provides in pertinent part:

(c) Advice to Defendant. Before accepting a plea of
guilty . . . the court must address the defendant
personally in open court and inform the defendant
of, and determine that the defendant understands
. . .

(1) The nature of the charge to which the plea is
offered . . .

Fed. R. Crim. P. 11(c); see McCarthy v. United States, 394 U.S.

459, 466-67, 471-72 (1969); United States v. Allard, 926 F.2d

1237, 1247 (1st Cir. 1991).

As a general matter, minor technical violations of Rule 11 do
not require that a court set aside a plea of guilty; however,
where the defects in the plea colloquy go to Rule 11's core
concerns -- the absence of coercion, the defendant's
understanding of the charges and the defendant's knowledge of the
consequences of his or her plea -- the Rule mandates that the
plea be set aside. United States v. Cotal-Crespo, 47 F.3d 1, 4-5

(1st Cir.), cert. denied, U.S. , 116 S. Ct. 94 (1995);

Allard, 926 F.2d at 1244-45.

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U.S. , 115 S. Ct. 1118 (1995); see also United States v. Japa,

994 F.2d 899, 902 (1st Cir. 1993);9 United States v. Parra-

Iba ez, 936 F.2d 588 (1st Cir. 1991);10 accord United States v.

Cotal-Crespo, 47 F.3d 1, 3 (1st Cir.), cert. denied, U.S. ,

116 S. Ct. 94 (1995); Fed. R. Crim. P. 32(e).

In evaluating the validity of an appellant's plea, we

review the totality of the circumstances surrounding the Rule 11

hearing. Cotal-Crespo, 47 F.3d at 4.11

9 The Japa Court introduced a slightly different standard for an

appellant who did not raise the Rule 11 challenge below: the
defendant must prove that the violation amounts to "a fundamental
defect which inherently results in a complete miscarriage of
justice" or "an omission inconsistent with the rudimentary
demands of fair procedure." Id. at 902.

We have remarked that the extent of the burden on a defendant
on direct appeal from a guilty plea "is somewhat cloudy," United

States v. Mart nez-Mart nez, 69 F.3d 1215, 1219-20 (1st Cir.

1995), cert. denied, U.S. , 116 S. Ct. 1243 (1996), and have

suggested that the more imposing standard articulated in Japa

might most appropriately operate only in collateral attacks upon
a guilty plea, brought under 18 U.S.C. 2255. Id. at 1220.

We need not resolve that question in this case, because the
defendant fails to meet either standard.

10 Although our review does not generally include matters raised
for the first time on appeal, Rule 11 challenges are not waived
if a defendant fails to raise the issue below. Rule 11's core
concerns oblige courts of appeals to review the challenged
processes, since the Rule's strictures go to "'the fairness,
integrity [and] public reputation of judicial proceedings.'"
Parra-Iba ez, 936 F.2d at 593 (citations omitted).

11 The Allard Court noted: "There is no talismanic test for

determining whether the core concerns of Rule 11 have been
satisfied. The manner in which the charge is explained and the
method for determining the defendant's understanding necessarily
vary from case to case depending upon the capacity of the
defendant and the attendant circumstances." Allard, 926 F.2d at

1245.

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2. The Plea Colloquy
2. The Plea Colloquy

As to the validity of the Rule 11 proceeding below, appellant

Rivera-DeCelis rests his argument on two points: (1) his limited

education and ability to understand the written word, because of

his dyslexia; and (2) the district court's failure to ensure that

Rivera-DeCelis actually had read the superseding indictment under

which he was charged. The government argues that the appellant's

Rule 11 challenge -- at this late hour -- is wholly without

merit.

The government has the better argument.

The core concerns of Rule 11 require that the defendant

be instructed in open court with respect to the "nature of the

charge to which the plea is offered," Fed. R. Crim. P. 11(c)(1),

and that a plea "'cannot be considered truly voluntary unless the

defendant possesses an understanding of the law in relation to

the facts.'" United States v. Broce, 488 U.S. 563, 570 (1989)

(quoting McCarthy v. United States, 394 U.S. 459, 466 (1969));

Piper, 35 F.3d at 614.

In the case before us, the district judge addressed

Rivera-DeCelis personally, directly, and with careful questions

Factors surrounding the request to set aside a plea come into
play: the plausibility and strength of the proffered reason for a
plea withdrawal; the timing of the request; whether the defendant
now asserts legal innocence; and whether the parties had reached
a plea agreement. See United States v. Pellerito, 878 F.2d 1535,

1537 (1st Cir. 1989), cert. denied, 502 U.S. 862 (1991); Fed. R.

Crim. P. 32. As we have noted, "these factors are relevant to
the ultimate issue to be addressed, namely whether the plea was
'knowing, voluntary and intelligent within the meaning of [Fed.
R. Crim. P.] 11.'" United States v. Gray, 63 F.3d 57, 60 (1st

Cir. 1995) (citations omitted).

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designed to ensure that defendant actually understood the

proceedings. The judge specifically explained both the elements

of each offense and the factual accusations against the

defendant. As he walked Rivera-DeCelis through these aspects of

the case against him, the judge inquired -- at each turn --

whether Rivera-DeCelis subjectively understood the situation.

The district judge also made sure that Rivera-DeCelis in fact

grasped the consequences of his plea. Fed. R. Crim. P. 11(c)(1).

Only after assuring himself that Rivera-DeCelis understood the

charges, the facts that formed their bases and the consequences

of his plea, did the district judge ask Rivera-DeCelis to attest

to the facts to which he was pleading guilty.12

Consideration of other factors surrounding the plea

does not yield a better result for the appellant. With respect

to the validity of the proffered reasons for requesting that we

set aside Rivera-DeCelis' plea, we are not persuaded,

particularly given the care with which the district judge

12 It strikes us that the appellant has turned a legitimate
argument on its head. If the district court had merely made sure
that a dyslexic defendant with only eight years of formal
schooling had read an indictment -- without oral questioning to
ensure actual understanding -- we might find error. See, e.g.,

United States v. Gray, 63 F.3d 57, 60-61 (1st Cir. 1995)

(reliance on a written document is an insufficient proxy for
personal examination by the court).

That is not the case before us. Given Rivera-DeCelis'
particular circumstances, the district court's direct, probing
and careful questioning of the defendant assures us that the
trial judge was doing as Rule 11 requires, looking to the reality
of the situation faced by the defendant and making sure that the
defendant actually understood the nature of the charges against
him and the consequences of his plea. See Allard, 926 F.2d at

1245.

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directly addressed the defendant on each issue of central concern

under Rule 11. The timing of the request, made for the first

time before an appellate court, also counsels against setting

aside the plea. The defendant made no assertion of legal

innocence; and, finally, the plea was offered pursuant to a

negotiated plea agreement.

In short, the district judge fully addressed the core

concerns of Rule 11. Accordingly, we decline to set aside

appellant Rivera-DeCelis' plea of guilty.

b. Sentencing Challenge: Relevant Conduct
b. Sentencing Challenge: Relevant Conduct

Rivera-DeCelis also challenges his sentence on the

ground that the drug quantity attributed to him was incorrectly

inflated and did not reflect his limited participation in the

conspiracy. The error is based, the appellant argues, on the

district court's failure to make individualized findings. The

government disagrees, stating that the sentencing court's

findings were sufficiently precise and based solidly on the

evidence presented.

We review the district judge's quantity determinations

at sentencing for clear error. United States v. Jim nez

Mart nez, 83 F.3d 488, 492 (1st Cir. 1996); 18 U.S.C. 3742(e).

The appellant's argument is wholly without merit.

Under U.S.S.G. 1B1.3, where a defendant engaged in

"jointly undertaken criminal activity," he or she may be

sentenced for his or her own acts and "all reasonably foreseeable

acts and omissions of others in furtherance of [that] ...

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activity." U.S.S.G. 1B1.3(a)(1)(B) & comment n.1. In the

context of drug trafficking offenses, where sentences are driven

largely by the amount of drugs for which a defendant is held

accountable, "the base offense level of a co-conspirator ...

should reflect only the quantity of drugs he reasonably foresees

is the object of the conspiracy to distribute after he joins the

conspiracy." United States v. O'Campo, 973 F.2d 1015, 1026 (1st

Cir. 1992); see also United States v. Campbell, 61 F.3d 976, 982

(1st Cir. 1995), cert. denied, U.S. , 116 S. Ct. 1556

(1996); U.S.S.G. 2D1.1(c) (drug quantity table).

It is well settled that defendants in a drug conspiracy

are not only responsible for drug quantities which they

themselves sold, transported or negotiated; they are also

responsible for drug amounts which, from their particular

vantage points in the conspiracy, it was reasonably foreseeable

would be involved, and which were in fact involved, in the

offense. See, e.g., United States v. Lombard, 72 F.3d 170, 176

(1st Cir. 1995); United States v. Carrozza, 4 F.3d 70, 80 (1st

Cir. 1993), cert. denied, U.S. , 114 S. Ct. 1644 (1994);

U.S.S.G. 1B1.3 & commentary. It is the project of the

sentencing court to determine what a particular defendant could

reasonably have foreseen. Carrozza, 4 F.3d at 76.

In this case, the sentencing judge carried out this

responsibility without error.

It is undisputed that Rivera-DeCelis pled guilty to

engaging in jointly undertaken criminal activity triggering the

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application of section 1B1.3(a)(1)(B). At his plea hearing,

Rivera-DeCelis accepted the factual recitation of the indictment,

indicating an involvement in the conspiracy from January 1993

through March of 1994. He also acknowledged knowing of

trafficking in crack cocaine, cocaine, heroin and marijuana over

that period of time. His plea, indeed, situated him in the

center of the conspiracy's activities, aware of its use of

firearms as well as the extent of the drug dealing.

The district judge was not persuaded by defense

counsel's explanation that he had urged his client to accept the

plea because he was unsure he could confirm the circumscribed

scope of the defendant's involvement.13 The defendant did little

else to confirm that his vantage point was so distant from the

main activity and he stood in that place for such a fleeting

moment that he could not reasonably have foreseen that not less

than 15 but not more than 50 kilograms of cocaine would be

involved in the offense. Notably, he never suggested -- much

less proved -- a precise amount for which he should be held

accountable.

13 When asked why the defendant would sign a Rule 11(e)(1)(C)
agreement for a specific sentence, if he believed that the true
nature of his involvement would result in a much lower sentence,
the defendant's attorney explained:

. . . when I agreed to that, I was under the
impression . . . that three months could not
be corroborated by the Government. Now three
months could be corroborated by the
Government . . . the amount of cocaine would
-- should -- be less than the one in the
indictment.

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Against this shaky challenge, the government offered

sturdy support for attributing the defendant with at least 15 to

50 kilograms of cocaine. It reminded the sentencing court of the

testimony of a co-conspirator, which had indicated that daily

drug sales of which Rivera-DeCelis would have been aware amounted

to well over 50 kilograms of cocaine in a matter of months.14 It

also cast doubt on the allegedly limited nature of Rivera-

DeCelis' involvement by focusing the court's attention on a

photograph in which Rivera-DeCelis is pictured, holding a

firearm, as a bodyguard to the leader of the conspiracy.15

14 The government made the following argument at sentencing:

MR. PEREIRA: Your Honor, initially let me
address the issue of the quantity of drugs so
that the record is clear as to that. We
provided, of course, to this defendant as we
did to all defendants, the grand jury
transcripts of Ram n Alexandro L pez and it's
part of the record of this court. . . . [H]e
is asked, have you ever heard in terms from
anybody or your own estimation that a kilo of
cocaine gets consumed or cooked into crack
every 11 days? The answer to that is,
yes. . . .

Now, even if we assume that this individual,
that this present defendant, Ismael Rivera,
participated in this conspiracy only 90 days,
that is eight kilos of crack cocaine. 1.5
kilos of crack cocaine is a level 38 offense
in the 1994 guidelines, so, [it] certainly
covers the sentence which he agreed to.

15 We find the government's rendition wholly believable. Where,
as here, a view of the record is entirely plausible, the
sentencing court's adoption of that view cannot amount to clear
error. See United States v. St. Cyr, 977 F.2d 698, 706 (1st Cir.

1992).

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On this record, the district judge did not clearly err

in adopting the government's reasoning, noting that the defendant

reaped a benefit from the plea agreement and deciding that

Rivera-DeCelis' base offense level should be 34.

We therefore affirm the district court's sentencing

determination.

B. Carmen Pacheco-Rijos
B. Carmen Pacheco-Rijos

1. Facts
1. Facts

Under the indictment returned in March of 1994,

appellant Pacheco-Rijos was charged with four offenses: Count One

charged her with conspiracy to distribute drugs, in amounts of

not less than fifty grams of cocaine base, not less than five

kilograms of cocaine, not less than one kilogram of heroin, and

some marijuana, from in or about January of 1993 until in or

about March of 1994, in violation of 21 U.S.C. 841(a)(1) and

846; Counts Three, Four and Five charged her, along with other

co-defendants, with knowingly using and carrying firearms during

and in relation to her drug trafficking, in violation of 18

U.S.C. 921(a)(3) & (c)(1) & 924(c)(1).

Pacheco-Rijos was arraigned on March 14, 1994, at which

time she pled not guilty. On September 7, 1994, she changed her

plea to guilty to Count One, which charged her with violating 21

U.S.C. 846.16 Her plea was offered pursuant to Rule

16 The underlying offense was 21 U.S.C. 841(a)(1), which
prohibits the knowing or intentional manufacturing, distributing
or possessing with intent to manufacture, distribute or dispense
a controlled substance. She did not plead guilty to any firearms
charges.

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11(e)(1)(A) & (B) of the Federal Rules of Criminal Procedure,

under which the parties may recommend sentencing terms but those

terms are not binding upon the court. Cf. Fed. R. Crim. P.

11(e)(1)(C).

The agreement recommended a base offense level of 28

under U.S.S.G. 2D1.1 and a downward adjustment of three levels

for acceptance of responsibility under U.S.S.G. 3E1.1(b),

resulting in an offense level of 25. The defendant acknowledged

that although those preliminary calculations resulted in a

guideline range of 57 to 71 months, she could receive a statutory

minimum of 60 months imprisonment. The agreement, however, left

the door open for application of other provisions which might

affect her sentence.17

At the outset of the sentencing hearing, the district

judge mischaracterized the plea agreement as a Rule 11(e)(1)(C)

agreement, under which the sentencing judge would be required to

accept the agreement in toto or reject it, thereby allowing the

defendant to withdraw her plea. Such an agreement would have

represented the parties' negotiations concerning all the

guideline provisions that should determine the sentence.

Pacheco-Rijos' plea agreement, however, did not pretend

to such completeness.

17 The agreement stated: "The United States and defendant
stipulate a sixty (60) month term of confinement. No agreement
concerning the application of any other sentencing guideline has
been entered into by the parties. All other aspects of the
sentence are left to the sound discretion of the Court."

-21-

When counsel for Pacheco-Rijos moved for a three-level

adjustment for acceptance of responsibility, the court accepted

it both because the plea agreement had contemplated such an

adjustment and because he found Pacheco-Rijos' conduct merited

it. He accepted an offense level of 25, with a guideline range

of 57 to 71 months.

However, when counsel requested the application of the

safety valve provision, 21 U.S.C. 3553(f) and U.S.S.G. 5C1.2,

and, if granted, a further two-level reduction for minor

participant status under U.S.S.G. 3B1.2(b), requests that were

not in the plea agreement, the district court declined to accept

them. The appellant argued that she met all the requirements of

the safety valve provision. The government responded that, among

other things, Pacheco-Rijos had failed honestly to disclose her

own participation in the conspiracy.18 In support of its claim,

the government stated simply that her failure "can be gleaned

from the Presentence Report in this case."

The prosecutor's citation to the PSR is perplexing. It

appears that initially the PSR had not placed Pacheco-Rijos among

the defendants for whom the government had designated a minimal

or minor role, but among those for whom no role had been

18 The government also argued that although this defendant did
not participate in conduct that led to death or serious bodily
injury to any person, others in the conspiracy did, thus
rendering her ineligible for the benefits of the safety valve
provision. The district court did not address this argument,
finding that Pacheco-Rijos did not qualify for relief under the
safety valve provision because she failed to cooperate fully.

-22-

"adjudicated."19 However, after reviewing the objection of the

defendant with respect to the scope of her participation, the

probation officer, in the final PSR, adopted Pacheco-Rijos' own

view of her participation,20 designating her as a "minor

participant" and characterizing her role as "passive."

Notwithstanding, the sentencing judge denied the

request for relief from the mandatory minimum sentence. He

summarily concluded: "5C1.2 does not apply, because she has not

cooperated fully as required by guideline Section 5C1.2(5)." In

19 The PSRs for all of the appellants contained the same factual
recitation and structure. It therefore merits some attention
that Rivera-DeCelis' PSR, prepared before Pacheco-Rijos' final
PSR, contained the following: "[b]ased on the defendants' role in
the drug enterprise" other defendants were identified by the
government as being "minimal participants," or "minor
participants," while Pacheco-Rijos was listed among those who had
"not been adjudicated any role adjustment" since she, along with
others, were "considered equally culpable in their participation
in the offense."

After Pacheco-Rijos objected to the probation officer's
failure to designate her as a minor participant, the PSR was
altered, not only in terms of the ultimate calculation but also
in terms of the factual recitation. In her final PSR, the facts
indicated that the "government identified" Pacheco-Rijos as a
minor participant.

20 Before sentencing, counsel for Pacheco-Rijos submitted a
written statement concerning the defendant's involvement in the
offense and specifically elaborating on her contention that she
had a role in the enterprise but one more limited than that
suggested in the indictment. She conceded that other co-
defendants used Pacheco-Rijos' home as a place to pack controlled
substances, that she knew generally of these activities and that
she did little to stop it. She denied ever handling money or
drugs in the illegal operation and ever being at all involved in
the possession or concealment of firearms. Further, while
Pacheco-Rijos lived with three of the co-defendants in this case,
Luis Antonio Garc a, Agustin Aponte-Merced and Juan Jos Miranda-
Santiago, she vowed to having no other knowledge of their illegal
acts.

-23-

addition, he stated: "And besides that, there is a stipulation in

the plea agreement [that] she be sentenced to 60 months. That

was good enough in September, [so it] should be good enough

today."

In the light of his rejection of the safety valve

provision, the judge indicated that there was no need to consider

whether Pacheco-Rijos should have been given a two-level

adjustment based on her role in the offense, an adjustment that

would have brought her sentence under the Guidelines still

further below the 60 month statutory minimum.21

Continuing the same apparent misapprehension under

which he labored from the beginning, the district judge concluded

the sentencing hearing by reiterating: "I should make it very

clear on this record that her plea agreement was an 11 -- Federal

Rule Criminal Procedure 11(e)(1)(C) plea. And therefore the 60

months that I have given her was precisely what she bargained for

during the plea negotiations."

2. Legal Analysis: The Safety Valve Provision
2. Legal Analysis: The Safety Valve Provision

Appellant Pacheco-Rijos argues that the sentencing

court erred in declining to grant her relief from the mandatory

21 Here again, the sentencing court focused on the plea
agreement in a way that suggested he believed it to have been
binding: "I'm going to leave it as it was in the plea agreement.
I will not honor that adjustment. And we're going to leave it at
25. . . . This Court understands that the defendant is not
entitled toa minorparticipant adjustmentunderU.S.S.G. 3B1.2(b)."
This conclusion is at odds with the district court's own
judgment in this case, in which the court states that it adopts
the findings and sentence calculations of the PSR without
exception. The PSR, however, had granted Pacheco-Rijos the minor
participant adjustment.

-24-

minimum sentence for the drug trafficking in which she admits she

was involved. See 18 U.S.C. 3553(f); U.S.S.G. 5C1.2. The

government responds that the sentencing court appropriately

determined that she was not entitled, in the first instance, to

relief from the mandatory minimum, and that, in any event, the

district court's decision does not amount to clear error.

We review for clear error the district court's factual

determinations with respect to whether the appellant was entitled

to relief from the mandatory minimum under U.S.S.G. 5C1.2.

United States v. Rodr guez, 60 F.3d 193, 195 n.1 (5th Cir.)

(court's refusal to apply 5C1.2 is a factual finding reviewed

for clear error), cert. denied, U.S. , 116 S. Ct. 542 (1995);

see also UnitedStates v. Monta ez,82 F.3d 520,521 (1st Cir.1996).

We begin our examination with an observation. The

review is complicated by the paucity of detail in the record

below and our concern for two obvious mistakes in the sentencing

hearing which shaped the outcome: first, that the district court

wrongly believed that the plea agreement was a binding one and

Pacheco-Rijos was arguing for an outcome for which she had not

negotiated; and second, that the PSR somehow supported the

government's position on Pacheco-Rijos' cooperation, when it did

not.

When Congress enacted the Violent Crime Control and Law

Enforcement Act of 1994, it passed into law a safety valve

provision which permits judicial departures for some low-level,

first-time offenders who otherwise would face mandatory minimum

-25-

sentences. Pub. L. No. 103-322 80001, 108 Stat. 1796, 1985

(1994)(amending 18 U.S.C. 3553).22

Under 18 U.S.C. 3553(f), a defendant may avoid the

mandatory minimum and be sentenced below the applicable guideline

term, if he or she meets the five requirements set forth in the

provision. The section provides in pertinent part:

. . . the court shall impose a sentence . . .
without regard to any statutory minimum
sentence, if the court finds at sentencing,
after the Government has been afforded the
opportunity to make a recommendation, that:
(1) the defendant does not have more than 1
criminal history point, as determined under
the sentencing guidelines;
(2) that defendant did not use violence or
credible threats of violence or possess a
firearm or other dangerous weapon (or induce
another participant to do so) in connection
with the offense;
(3) the offense did not result in death or
serious bodily injury to any person;
(4) the defendant was not an organizer,
leader, manager, or supervisor of others in
the offense . . .; and (5) not later than the
time of the sentencing hearing, the defendant
has truthfully provided to the Government all
information and evidence the defendant has

22 The safety valve provision was enacted in response to
concerns that mandatory minimums are not compatible with the
guideline regime. The provision addressed the following irony:
Mandatory minimums had, and have, little real impact on the
sentences received by serious repeat offenders, where the
guideline calculation arrives at a base offense level higher than
the mandatory minimum, and where mitigating factors may therefore
be considered. Prior to passage of the section 3553(f), however,
for the least culpable offenders, mandatory minimums operated to
block sentences from reflecting the very mitigating factors that
could ease sentences of the more culpable. Ironically, courts
were obliged to impose upon the least culpable defendants
sentences similar to those imposed on more culpable counterparts.
As a House Report noted, the safety valve provision was designed
to "permit . . . greater integration between sentencing guideline
mitigating factors and mandatory minimums . . ." H.R. Rep.
No.460, 103d Cong., 2d Sess. 4 (1994).

-26-

concerning the offense or offenses that were
part of the same course of conduct or of a
common scheme or plan, but the fact that the
defendant has no relevant or useful other
information to provide or that the Government
is already aware of the information shall not
preclude a determination by the court that
the defendant has complied with this
requirement.

18 U.S.C. 3553(f); see also U.S.S.G. 5C1.2 (authorizes

sentence below the mandatory minimum for specific offenses,

subject to compliance with section 3553(f)); Monta ez, 82 F.3d at

521 (discussion of the aims of the legislation). Notably,

whether there is a binding plea agreement or, as here, a non-

binding agreement, if it is determined that a defendant has met

the five requirements of the provision, the judge is required to

set aside the mandatory minimum and sentence the defendant under

the Guidelines.

In this case, the district judge denied application of

the safety valve provision, focusing only on the issue of

Pacheco-Rijos' cooperation.23 Apparently accepting the

government's argument that the facts which could be "gleaned"

from the PSR supported denying application of section 3553(f)(5),

the judge determined that Pacheco-Rijos did not deserve relief

23 As to the other requirements, there is no dispute that
Pacheco-Rijos was a first-time offender and that she was not a
manager or leader of the conspiracy. Nor has the government
contended that she used threats of violence in carrying out her
role. The disputes arose in the context of sections 3553(f)(3) &
(5). At sentencing, the government contended that: (1) the
offense to which she pled guilty involved serious bodily injury
or death; and (2) that Pacheco-Rijos failed to meet the final
requirement of the safety valve provision, namely, that she fully
disclose her involvement in the offense. As noted above, the
court addressed only the government's second argument.

-27-

from her mandatory minimum sentence because she had failed to

"cooperate fully." In so deciding, he also stressed that

Pacheco-Rijos had not negotiated for relief from the mandatory

minimum in her plea agreement, an agreement which, as noted

above, he incorrectly believed to be binding.

Section 3553(f)(5) requires that defendants "truthfully

provide the government" no later than at sentencing all the

information they have regarding "the offense or offenses that

were part of the same course of conduct or part of a common

scheme or plan." 18 U.S.C. 3553(f)(5); U.S.S.G. 5C1.2.

Questions with respect to the scope of both a

defendant's duty to "provide" information -- and the very nature

of that information -- have already confronted this Court. In

United States v. Wrenn, 66 F.3d 1, 3 (1st Cir. 1995), we held

that where the only disclosure to the government was made

inadvertently -- and through the government's own efforts to

intercept the defendant's conversations -- that defendant could

not be said to have "provided" the information to the government.

Further, the Wrenn Court noted that where the defendant had

indicated that he knew the identity of customers involved in a

drug trafficking enterprise, but he refused to provide any names,

it certainly was not erroneous for the district court to

determine that the defendant had failed to provide "all"

information which he concededly had. Id.

The question of scope was further addressed in United

States v. Monta ez, 82 F.3d 520 (1st Cir. 1996), in which this

-28-

Court confronted a slightly different question: whether the

requirement that a defendant truthfully provide "all" information

established an affirmative duty on the part of that defendant to

offer himself or herself up to the government for debriefing.

Id. at 522-523. While we determined that section 3553(f)(5) does

not require that much,24 we agreed with the district court that

what the defendant provided in that case was patently inadequate.

For although Monta ez agreed that he was supplied drugs that he

then delivered, he offered no plausible reason why he did not

provide the government with the names of his drug suppliers.

Under the circumstances, we found that Monta ez "did not disclose

information that he might reasonably be expected to possess, nor

persuasively explain its absence." Id. at 523; see also Wrenn,

66 F.3d at 3.

This case is not like Wrenn or Monta ez. In a

submission by her counsel, included as part of her PSR, Pacheco-

Rijos explained the limits of her involvement in the conspiracy:

She was a passive participant, knowing that drugs were stored in

the house and doing little to stop it. She said that she never

handled the drugs, nor was she aware of the firearms.

That characterization was never objected to nor

explicitly contradicted by the government. Furthermore, it

appears to have been accepted by the probation department whose

24 The fact that a full debriefing is not statutorily required
does not provide a full answer to the question. The Monta ez

Court noted: "[A]s a practical matter, a defendant who declines
to offer himself for a debriefing takes a very dangerous course."
Monta ez, 82 F.3d at 523.

-29-

amended report recommended granting Pacheco-Rijos a two-level

adjustment as a minor participant and specifically characterized

her as a "passive" member of the conspiracy.

While it is entirely possible that a minor participant

in the criminal activities might know more than her designated

role suggests, the government offered nothing concrete to so

indicate. In this case, as distinguished from Wrenn or Monta ez,

the government did not rebut a facially plausible tale of limited

involvement by pointing to information this defendant must have

known; there was no allegation that this defendant knew the names

of drug suppliers or customers and refused to indicate those

names. There was no specific information the government alleged

that Pacheco-Rijos had and failed to provide.

The government cannot assure success simply by saying,

"We don't believe the defendant," and doing nothing more. If it

could, it would effectively eliminate the self-conscious

difference between the safety valve provision, U.S.S.G. 5C1.2,

which obligates the district court to determine if the defendant

has truthfully provided all information, see Monta ez, 82 F.3d at

523, and the substantial assistance provision, U.S.S.G. 5K1.1,

which permits, upon the government's motion and at the court's

discretion, a downward adjustment for certain defendants who have

provided substantial assistance to the government.25

25 By this analysis, we do not suggest any change in the
defendant's ultimate burden of proof under U.S.S.G. 5C1.2. The
defendant plainly has the burden of proving, by a preponderance
of the evidence, entitlement to relief under section 3553(f).
However, where a defendant in her submissions credibly

-30-

In the PSR, there was one conceivable basis for the

government's position, a basis which, standing alone, is wholly

inadequate: that because Pacheco-Rijos shared living quarters

with other co-defendants,26 she must have had more information

than she provided to the government.

Section 3553(f)(5) does not invite such speculation.

If mere conjecture based on personal relationships could bar

application of section 3553(f)(5), in all cases where minor

participants knew others more involved, the safety valve

provision would be beyond their grasp. Such a result was not

intended by Congress and cannot be permitted here. Therefore,

district court's bare conclusion that Pacheco-Rijos did not

"cooperate fully," absent either specific factual findings or

easily recognizable support in the record, cannot be enough to

thwart her effort to avoid imposition of a mandatory minimum

sentence.27

demonstrates that she has provided the government with all the
information she reasonably was expected to possess, Monta ez 82

F.3d at 523, in order to defeat her claim, the government must at
least come forward with some sound reason to suggest otherwise.

26 One co-defendant apparently shared a somewhat independent
living quarters with Pacheco-Rijos' daughter.

27 We note one other strong inference from the record: that the
district court did not apply this provision out of deference to
the plea agreement into which the parties had entered and which
he erroneously believed would be completely voided unless he
accepted the sentencing terms. This was not the case. In any
event, a plea agreement -- even a binding one -- does not replace
the independent determination of the district court as to whether
this provision applies. See Carrozza, 4 F.3d at 87; U.S.S.G.

6B1.2(c) & commentary.

-31-

Accordingly, we vacate the sentence and remand this

case for the purpose of allowing the district court to revisit

this issue and clarify the record by filing supplemental

findings.28 In the event that the court finds its initial

calculation in error, it should so identify and return, as well,

to the issue of other adjustments, if appropriate, under the

Guidelines.

C. Juan Jos Miranda-Santiago
Juan Jos Miranda-Santiago

1. Facts
1. Facts

Appellant Miranda-Santiago was indicted on the drug and

firearms charges detailed in Counts One, Three, Four and Five of

the superseding indictment in this case. At his arraignment,

Miranda-Santiago pled not guilty to all charges. On September 7,

1994, he offered to change his plea to guilty. Under a plea

agreement entered into pursuant to Rule 11(e)(1)(A) & (B),

Miranda-Santiago offered to plead guilty to Count One, charging

him with possession with intent to distribute narcotics, 21

U.S.C. 846. In addition, the parties recommended to the court

a base offense level of 30, with a three-level reduction for

acceptance of responsibility, under U.S.S.G. 3E1.1(b)(1) & (2),

28 The remaining argument made by the government below -- that
the offense involved serious bodily injury or death thereby
disqualifying Pacheco-Rijos from the benefits of the safety valve
provision -- lacks merit. It therefore does not provide an
alternative reason to affirm the district court's decision.
Indeed, the government has all but abandoned the argument in this
forum.

-32-

resulting in a sentencing range of 70 - 87 months.29 More

specifically, the parties agreed to ask for a sentence of 84

months.

The Miranda-Santiago PSR contained the same general

recital of the facts as that contained in the other PSRs

discussed above. As to Miranda-Santiago's role in the

enterprise, the PSR indicated that this defendant worked as a

drug distributor. He was not identified as someone who used

firearms or provided protection for the operation. The PSR

designated him as a minor participant in the offense.

Notwithstanding that finding, the probation officer did not

include a two-level downward adjustment as part of the sentencing

calculation. The PSR recommended a base level of 30, with only a

three-level reduction for acceptance of responsibility.

The appellant was sentenced on January 11, 1995.

During the hearing, the defendant voiced no objection to the

findings contained in the PSR.30 Although he did not do so

29 The parties had recommended that, for sentencing purposes,
the defendant be held accountable for at least 3.5 but no more
than 5 kilograms of cocaine. Accordingly, the base offense level
in this case was set at 30. U.S.S.G. 2D1.1. The defendant
faced a mandatory minimum five year term of imprisonment under 21
U.S.C. 841(b)(1)(B).

30 The district judge asked the defendant's counsel if there
were any objections to the PSR. He reported that there were none
and did not ask the district court judge to make specific role-
in-the-offense findings. The judge also asked the defendant if
he had reviewed the PSR with his attorney and if he any
objections to it. Miranda-Santiago responded that he had
discussed the report with counsel and that he had no objections
to it.

-33-

during the sentencing hearing, in the written judgment the judge

adopted the PSR's factual findings, without exception. The

district court arrived at a base offense level of 27 and

sentenced Miranda-Santiago to a prison term of 78 months,

eighteen months above the mandatory minimum for that offense.

2. Legal Analysis: Minor Participant
2. Legal Analysis: Minor Participant

Adjustment
Adjustment

On appeal, Miranda-Santiago challenges his sentence,

arguing that the district court erred by failing to adjust his

offense level downward two levels for his role in the offense.

The appellant contends that since the sentencing court adopted

the factual findings of the PSR, the decision not to grant

Miranda-Santiago a minor participant adjustment was a simple

misapplication of the Guidelines. Our review -- notwithstanding

the appellant's failure to raise the issue below -- should be

plenary and the sentence vacated.

The government disagrees and makes, essentially, two

arguments: First, it contends that, as a procedural matter, this

Court ought not review this issue because the appellant waived is

rights by not raising the question below. Second, the government

asserts that, even if the issue is not waived, the appellant

Before this Court, appellant argues that he nor his counsel
noticed the inconsistency within the report. Defendant's counsel
notes that Miranda-Santiago is illiterate, having only stayed in
school through the sixth grade and that since he is Spanish-
speaking and does not understand English, his only review of the
PSR came through an oral translation of its nineteen pages.

-34-

challenges a factual determination at sentencing and the

determination was not clear error.

We will consider each of the government's arguments in

turn.

a. Waiver
a. Waiver

The government argues that Miranda-Santiago, in voicing

no objection to the PSR at sentencing, has waived his right to

raise this issue on appeal. The appellant argues that neither

counsel nor the appellant noticed the error, and that,

particularly given the pressures put on non-English speaking

defendants with respect to lengthy reports only orally translated

into Spanish, the absence of an objection should not constitute

waiver.

We find that this defendant, given these circumstances,

forfeited his rights but did not waive them. The difference is

critical: "Whereas forfeiture is the failure to make a timely

assertion of a right, waiver is the 'intentional relinquishment

or abandonment of a known right.'" United States v. Olano, 507

U.S. 725, 733 (1993); see also Carrozza, 4 F.3d at 87 & n.13.

Under Olano, the defendant who forfeited his right is entitled to

review for plain error. This is a compelling case for the

doctrine. After all, the claimed error could well have an impact

on the length of defendant's incarceration.

-35-

b. Standard of Review
b. Standard of Review

The standard of review is nonetheless imposing. The

appellant seeks the benefit of a plenary review of the question.

We disagree. Where a defendant has failed to raise the legal

issue below, the issue can be examined only for plain error.31

Fed. R. Crim. P. 52(b); Olano, 507 U.S. at 730-32.

c. Minor Participant Adjustment
c. Minor Participant Adjustment

When a defendant is determined to be a "minor" or

"minimal" participant in criminal activity, a sentencing court is

directed to decrease the base offense level. U.S.S.G. 3B1.2(a)

& (b).32 A minor participant is one "who plays a part in

committing the offense that makes him substantially less culpable

than the average participant." U.S.S.G. 3B1.2, comment

(backg'd).33

31 The plain error standard requires that the appellant
demonstrate that: (1) there was an "error;" (2) it was "plain;"
and (3) it affected "the substantial rights" of the defendant.
E.g., United States v. Olano, 507 U.S. at 732-33. Even if a

defendant meets the standard established by the Olano Court,

appellate courts maintain discretion to recognize the error and
are directed to consider whether the error affects "the fairness,
integrity or public reputation of judicial proceedings." Id. at

732, 735.

32 Minimal participation merits a four-level decrease; U.S.S.G.
1B1.2(a); minor participation merits a two-level decrease,
U.S.S.G. 1B1.2(b).

The appellant contends -- and the government initially agreed
-- that Miranda-Santiago was a minor participant in the criminal
enterprise.

33 The defendant carries the burden of proving that he was a
minor participant entitled to a two-level decrease under U.S.S.G.
3B1.2. E.g., United States v. Ocasio-Rivera, 991 F.2d 1, 3

(1st Cir. 1993).

-36-

On appeal, Miranda-Santiago argues that he was entitled

to that reduction, that, indeed, the district court adopted

factual findings consistent with granting the reduction and that

the Court committed plain error in denying him the benefit of the

role-in-the-offense adjustment. The government argues that the

defendant was not entitled to the adjustment in the first

instance and that the sentencing should not be disturbed at this

late hour, in any event.

The appellant has the better argument.

It is a fundamental obligation of a district court at

sentencing to "state in open court the reasons for its imposition

of the particular sentence." 19 U.S.C. 3553(c). To accomplish

this goal, the court ordinarily must make "reasonably specific

findings" and "explain, generally, how it computed the applicable

guideline range." United States v. McDowell, 918 F.2d 1004, 1012

(1st Cir. 1990).

This obligation has become particularly critical since

the enactment of the Sentencing Guidelines. Under the guideline

regime, factual determinations made by the sentencing judge may

have a profound effect on the length of defendant's

incarceration. Ensuring our ability to engage in meaningful

review of those findings is essential. So while we have found

that a sentencing court can comply with section 3553(c) by

adopting findings from the PSR, see, e.g., United States v.

Savoie, 985 F.2d 612, 618 (1st Cir. 1993), this technique cannot

be employed when the PSR itself is unclear or inherently

-37-

contradictory. Moreover, we have repeatedly urged district

courts, in the interests of buttressing sentencing calculations

and facilitating appellate review, to make certain that the bases

of the calculations are clearly set forth. See United States v.

Van, 87 F.3d 1, 2-3 (1st Cir. 1996) (collecting cases).

In this case, the district judge made few findings at

the sentencing hearing. In his judgment, he simply adopted the

PSR, in toto. There is a problem with that procedure in this

case: The PSR, as best we can decipher it, judged Miranda-

Santiago a minor participant in the conspiracy. It was merely in

calculating the sentence that this finding did not translate into

a two-level downward adjustment. The record therefore does not

provide an adequate factual basis for the district court's

determination with respect to Miranda-Santiago's role.

This error is clear, obvious, and potentially affects

the appellant's substantial rights. Accordingly, we vacate this

sentence and remand this case to the district court for the

purpose of having the court file supplemental findings with

respect to appellant Miranda-Santiago's role in the offense. In

the event that the district court finds its computation in error,

the court should include such a determination in its findings.

III. CONCLUSION
III. CONCLUSION

The convictions of all appellants are affirmed. The

sentence of appellant Rivera-DeCelis is also affirmed. The

sentences of the appellants Pacheco-Rijos and Miranda-Santiago

are vacated, and their cases are remanded for further proceedings

-38-

consistent with this opinion.

-39-