United States v. Arias-Mercedes

United States Court of Appeals
For the First Circuit

No. 17-1229

UNITED STATES OF AMERICA,

Appellee,

v.

YNOCENCIO ARIAS-MERCEDES,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Pedro A. Delgado-Hernández, U.S. District Judge]

Before
Howard, Chief Judge,
Selya and Barron, Circuit Judges.

Eric Alexander Vos, Federal Public Defender, Vivianne M.
Marrero, Assistant Federal Public Defender, and Liza L. Rosado-
Rodriguez, Research and Writing Specialist, on brief for
appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Thomas
F. Klumper, and Francisco A. Besosa-Martínez, Assistant United
States Attorneys, on brief for appellee.

August 16, 2018
[REDACTED OPINION]


The full version of this opinion was filed on July 30, 2018,
and remains on file, under seal, in the Clerk's Office."
 SELYA, Circuit Judge. Defendant-appellant Ynocencio

Arias-Mercedes challenges his 87-month incarcerative sentence as

procedurally flawed and substantively unreasonable. Among other

things, his appeal poses questions about how a district court

should apply the Sentencing Commission's revised commentary

regarding mitigating role adjustments. See USSG App. C, Amend.

794. After careful consideration of these questions and the other

issues raised on appeal, we affirm the challenged sentence.

I. BACKGROUND

This appeal follows a guilty plea and, thus, we draw the

facts from the plea colloquy, the undisputed portions of the

presentence investigation report (PSI Report), and the transcript

of the sentencing hearing. See United States v. Fields, 858 F.3d

24, 27 (1st Cir. 2017); United States v. Dietz, 950 F.2d 50, 51

(1st Cir. 1991). On April 24, 2015, the Coast Guard intercepted

a 20-foot vessel off the coast of Dorado, Puerto Rico. Aboard the

vessel were 72.5 kilograms of cocaine and three men: the

defendant, Victor Mercedes-Guerrero (Mercedes), and Juan A.

Concepción-García (Concepción). Initially, the trio claimed to be

Dominican nationals headed to Puerto Rico in search of work.

Later, the defendant changed his tune and admitted his

participation in a drug-smuggling enterprise.

On May 21, 2015, a federal grand jury sitting in the

District of Puerto Rico returned a four-count indictment. The

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indictment charged all three men with conspiracy to import five

kilograms or more of cocaine into the United States, aiding and

abetting that conspiracy, conspiracy to possess with intent to

distribute five kilograms or more of cocaine, and aiding and

abetting that conspiracy. See 18 U.S.C. § 2; 21 U.S.C.

§§ 841(a)(1), 952(a), 960(a)(1), 963. In due course, the

defendant entered a straight guilty plea to all four counts.

The probation office prepared a PSI Report. Because the

offenses of conviction involved more than 50 kilograms but less

than 150 kilograms of cocaine, the PSI Report recommended a base

offense level of 34. After factoring in a three-level credit for

acceptance of responsibility, see USSG §3E1.1, the PSI Report

suggested a total offense level of 31. Coupled with a criminal

history category of I, this offense level yielded a guideline

sentencing range (GSR) of 108-135 months. The GSR, however, was

trumped in part by a statutory mandatory minimum of 120 months.

See 21 U.S.C. §§ 841(b)(1)(A), 960(b)(1).

The defendant countered by moving for a downward

departure or variance, making clear his objection to certain

aspects of the PSI Report. Pertinently, he argued that he had

played only a minor role in the criminal activity and, therefore,

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should receive a two-level role-in-the-offense reduction. See

USSG §3B1.2. [redacted]1

The defendant took the position that, because he was a

"mere transporter of the contraband," he deserved a mitigating

role adjustment.2 He argued that he was less culpable than Mercedes

and other unindicted coconspirators (though he did not claim to be

less culpable than Concepción). He also sought a downward

departure or variance.

At the disposition hearing, the district court accepted

the PSI Report's recommendations, except that it reduced the GSR

to 87-108 months.3 The court then determined that the defendant

was not entitled to a minor participant reduction. Considering

the newly constituted GSR and the factors delineated in 18 U.S.C.

§ 3553(a), the court proceeded to reject the defendant's entreaty

for a downward departure or variance. Instead, it imposed

concurrent 87-month terms of immurement on all four counts of

conviction. This timely appeal followed.

1
[redacted]
2The sentencing guidelines recognize two strains of
mitigating role adjustments: minimal participant reductions, see
USSG §3B1.2(a), and minor participant reductions, see id.
§3B1.2(b). In this case, the defendant argues only that he should
have received a minor participant reduction.
3 [redacted]

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II. ANALYSIS

We evaluate claims of sentencing error by means of a

"two-step pavane." United States v. Matos-de-Jesús, 856 F.3d 174,

177 (1st Cir. 2017); see United States v. Martin, 520 F.3d 87, 92

(1st Cir. 2008). At the first step, we address claims of

procedural error. See Gall v. United States, 552 U.S. 38, 51

(2007); Matos-de-Jesús, 856 F.3d at 177. If the sentence passes

procedural muster, we then address challenges to its substantive

reasonableness. See Matos-de-Jesús, 856 F.3d at 177. Here, we

are confronted with claims of both procedural and substantive

error. We discuss them sequentially.

A. Alleged Procedural Flaws.

As a general matter, "claims of sentencing error are

reviewed for abuse of discretion." United States v. Pérez, 819

F.3d 541, 545 (1st Cir. 2016). This standard is not monolithic.

"Within it, 'we assay the district court's factfinding for clear

error and afford de novo consideration to its interpretation and

application of the sentencing guidelines.'" Id. (quoting United

States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013)).

1. Mitigating Role. The defendant's principal

procedural plaint posits that the district court erred in refusing

to grant him a minor participant reduction. See USSG §3B1.2(b).

At sentencing, "[a] defendant who seeks a mitigating role

adjustment bears the burden of proving, by a preponderance of the

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evidence, that he is entitled to the downward adjustment." Pérez,

819 F.3d at 545. We have cautioned before that "[r]ole-in-the-

offense determinations are notoriously fact-specific." United

States v. Cortez-Vergara, 873 F.3d 390, 393 (1st Cir. 2017)

(quoting Pérez, 819 F.3d at 545). "[A]bsent a mistake of law,

battles over a defendant's status . . . will almost always be won

or lost in the district court." United States v. Graciani, 61

F.3d 70, 75 (1st Cir. 1995).

Against this backdrop, we look first to the applicable

law. The sentencing guidelines authorize a two-level reduction in

a defendant's offense level if he "was a minor participant in any

criminal activity" for which he is being held accountable. USSG

§3B1.2(b). Prior to November 1, 2015, a two-pronged test was

typically employed to determine a defendant's entitlement to such

a reduction. First, the court had to determine whether the

defendant was "less culpable than most of those involved in the

offenses of conviction." United States v. Mateo-Espejo, 426 F.3d

508, 512 (1st Cir. 2005). If so, the court proceeded to determine

whether the defendant was less culpable than "most of those who

have perpetrated similar crimes." Id.

The legal landscape shifted when the Sentencing

Commission, effective November 1, 2015, promulgated an amendment

that displaced the second prong of the original test. See USSG

App. C, Amend. 794. This amendment made pellucid that, in deciding

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whether to grant a minor participant reduction, a sentencing court

should not compare the defendant to hypothetical participants in

similar offenses.4 See id. Instead, the sentencing court should

limit its inquiry to whether a given defendant is "substantially

less culpable than the average participant in the criminal

activity" in which he was involved. Id. §3B1.2, cmt. n.3(A). For

this purpose, a "participant" is defined as "a person who is

criminally responsible for the commission of the offense, but need

not have been convicted." Id. §3B1.1, cmt. n.1. We treat this

revised commentary as authoritative. See Stinson v. United States,

508 U.S. 36, 38 (1993); United States v. Carrasco-Mateo, 389 F.3d

239, 244 (1st Cir. 2004).

The defendant contends that the court erred in

performing this task because it did not properly identify the

universe of participants. Specifically, the defendant complains

that the court compared his conduct only to that of Mercedes and

Concepción, not to the full pantheon of co-conspirators (whether

indicted or unindicted) in the broader drug-smuggling enterprise.

[redacted] This plaint lacks force.

4
Even though the offenses of conviction occurred in April of
2015, the defendant was not sentenced until February 10, 2017.
"Barring any ex post facto problem, a defendant is to be punished
according to the guidelines in effect at the time of sentencing."
United States v. Harotunian, 920 F.2d 1040, 1041-42 (1st Cir.
1990). Neither party disputes the sentencing court's decision to
apply the version of the guidelines in effect on the date of
sentencing.

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 Under the revised commentary — as before — the defendant

bears the burden of showing that he was substantially less culpable

than the average participant in the criminal endeavor. See United

States v. De la Cruz-Gutíerrez, 881 F.3d 221, 225-26 (1st Cir.),

cert. denied, 2018 WL 2064973 (2018). A defendant cannot carry

this burden merely by showing "that he was a minimal or minor

participant in the conspiracy overall." United States v. Coviello,

225 F.3d 54, 67 (1st Cir. 2000) (emphasis in original). Rather,

he must focus on the offenses of conviction and "demonstrate that

he was a minimal or minor participant in the conduct that formed

the basis of his sentence." Id. To that end, the court must

consider a universe composed of those involved in "his relevant

conduct as a whole." United States v. Vargas, 560 F.3d 45, 50

(1st Cir. 2009); see United States v. Rodríguez De Varón, 175 F.3d

930, 944 (11th Cir. 1999) (en banc) (looking to "those participants

who were involved in the relevant conduct attributed to the

defendant"); see also United States v. Roberts, 223 F.3d 377, 381

(6th Cir. 2000) (similar). As we have explained, "[w]here a

defendant is hired to transport a single shipment of drugs and

does not otherwise participate in the larger conspiracy, his

relevant conduct ordinarily will be limited to that shipment."

Vargas, 560 F.3d at 49-50.

The defendant would have us believe that Amendment 794

expanded those parameters. We think not. The amendment simply

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eliminated the need to compare a defendant's conduct with the

conduct of hypothetical participants in similar offenses (the now-

obsolete second prong of the original test). It does not require

courts, when weighing mitigating role adjustments, to appraise a

defendant's role in the broader conspiracy as opposed to his role

in the specific criminal activity for which he is being held

accountable. See USSG App. C, Amend. 794 (instructing courts to

determine "defendant's relative culpability . . . only by reference

to his or her co-participants in the case at hand").

The upshot is that with respect to identifying the

universe of relevant participants, earlier precedent developed

under the first prong of our minor participant jurisprudence

remains velivolent, notwithstanding the promulgation of Amendment

794. See De la Cruz-Gutiérrez, 881 F.3d at 225-26. Since the

district court colored within these lines, we hold that the

defendant's claim of legal error in the court's application of

section 3B1.2 is without substance.

This holding does not end our journey. Even when it

hews to the correct legal rule, a district court must still

exercise judgment to identify the universe of participants

involved in the particular conduct that forms the basis of the

defendant's sentence. Here, the defendant challenges the district

court's exercise of that judgment — a challenge that we review for

clear error. See Cortez-Vergara, 873 F.3d at 393.

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 The defendant pleaded guilty to conspiracy to import

five kilograms or more of cocaine into the United States,

conspiracy to possess with intent to distribute five kilograms or

more of cocaine, and aiding and abetting both conspiracies. The

charges were premised on the defendant's participation in a

discrete enterprise: he was one of three men who brought a drug-

laden vessel into the maritime jurisdiction of the United States.

The defendant's base offense level was determined by reference to

the specific drug quantity involved in that singular transport —

not the amount trafficked through any broader conspiracy. It

follows that the conduct for which the defendant is being held

responsible is his role in that voyage. See Vargas, 560 F.3d at

50; cf. United States v. Olibrices, 979 F.2d 1557, 1559-60 (D.C.

Cir. 1992) (refusing to compare defendant to participants in

"overall conspiracy" when base offense level was determined with

reference to narrower offense); United States v. Walton, 908 F.2d

1289, 1303 (6th Cir. 1990) (refusing to compare defendants to

members in broader conspiracy because defendants had "only been

held responsible for cocaine that they were actively involved in

distributing — not the additional amounts involved in the entire

conspiracy").

Given the scope of the conduct for which the defendant

is being held accountable, there is no principled way in which we

can find clear error in the district court's decision to limit its

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comparison only to those persons directly involved in this

particular drug-smuggle. See, e.g., De la Cruz-Gutiérrez, 881

F.3d at 225-27 (comparing defendant in maritime drug-transport

case to others aboard vessel when considering minor participation

reduction); Cortez-Vergara, 873 F.3d at 393 (similar); Pérez, 819

F.3d at 545-46 (similar). That the record contains "references"

to unindicted and unidentified persons who had links to the broader

criminal organization does not alter this conclusion. [redacted]

[A] sentencing court cannot make mitigating role adjustments based

on suppositions woven entirely out of gossamer strands of

speculation and surmise. See Rodríguez De Varón, 175 F.3d at 944

(explaining that a sentencing "court should look to other

participants only to the extent that they are identifiable or

discernable from the evidence"); cf. Pérez, 819 F.3d at 546

(rejecting argument that defendant's "bit part" compared to drug

"owners" and distributors entitled him to minor participant

reduction). [redacted] After all, determinations relating to

mitigating role adjustments are "invariably fact-specific," United

States v. Meléndez-Rivera, 782 F.3d 26, 28 (1st Cir. 2015), and

the court reasonably could have determined that the defendant had

not carried his burden [redacted].

With the district court's universe of comparable

participants validated, we turn to the substance of the comparison.

The defendant maintains that the district court clearly erred in

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determining that he was not substantially less culpable than the

average participant in the offenses of conviction. Our review is

for clear error. See Pérez, 819 F.3d at 545.

The determination as to whether to grant a minor

participant reduction is "based on the totality of the

circumstances and involves a determination that is heavily

dependent upon the facts of the particular case." USSG §3B1.2,

cmt. n.3(C). The Sentencing Commission has provided a non-

exhaustive list of factors to be considered:

(i) the degree to which the defendant
understood the scope and structure of the
criminal activity;
(ii) the degree to which the defendant
participated in planning or organizing the
criminal activity;
(iii) the degree to which the defendant
exercised decision-making authority or
influenced the exercise of decision-making
authority;
(iv) the nature and extent of the defendant's
participation in the commission of the
criminal activity, including the acts the
defendant performed and the responsibility and
discretion the defendant had in performing
those acts;
(v) the degree to which the defendant stood to
benefit from the criminal activity.
Id.

The court below found that, under the totality of the

circumstances, the defendant "was not substantially less culpable

than the average participant" in the drug smuggle. In its view,

the defendant understood the scope and structure of the criminal

activity and knew that he was transporting narcotics. By the

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defendant's own account, he had agreed to participate in an illegal

smuggling operation.5 Once aboard the vessel, the defendant's

participation in the criminal activity was substantial: he worked

in tandem with the captain (Mercedes) to assure the success of the

voyage. Although he did not participate in either planning or

organizing the criminal activity, he exercised a modicum of

decisionmaking authority in steering and navigating the vessel

toward its destination.

Last — but surely not least — the district court

supportably found that the defendant stood to benefit from the

criminal activity. He was paid handsomely to traverse the

Caribbean Sea and, in addition, received what he had sought all

along: passage to the United States.

"To be entitled to the role reduction, [the defendant]

had to prove that he was less culpable than his cohorts." De la

Cruz-Gutíerrez, 881 F.3d at 226 (emphasis in original). The

district court found that he had failed to carry this burden, and

that finding was not clearly erroneous. The defendant's cohorts

can be located on a continuum. Mercedes, who had primary

5Of course, the defendant went to the port of departure
anticipating that he would be assisting in the smuggling of illegal
aliens, not the smuggling of narcotics. That the criminal activity
proved to involve a different cargo does not detract from the
significance of the defendant's decision to join an illegal
smuggling venture (although it may help to explain why the district
court opted to sentence him at the bottom of the applicable
guideline range).

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responsibility for the voyage, stands at one end of the continuum.

Concepción, whom even the defendant seems to admit was not a

meaningful contributor to the enterprise, stands at the opposite

end. The defendant, who was involved in the navigation and

steering of the vessel, stands somewhere in the middle. Thus, the

district court reasonably could have found that he was not

substantially less culpable than the average participant. When a

person undertakes to provide material assistance in transporting

a large quantity of drugs as a member of a tiny crew in a hazardous

voyage at sea, it ordinarily will not be clear error for the

sentencing court to refuse him a mitigating role adjustment. See,

e.g., Pérez, 819 F.3d at 546. So it is here.

In an effort to efface the district court's reasoning,

the defendant argues that an offender who lacks a proprietary

interest in the criminal activity should receive a mitigating role

adjustment. In support, he relies on Amendment 794. His reliance,

however, is misplaced. The commentary does not indicate that every

such offender is entitled to a mitigating role adjustment; it

merely instructs that every such offender "should be considered

for a mitigating role adjustment." USSG App. C, Amend. 794. Here,

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the court considered the defendant's importunings and found them

wanting.

2. [redacted]6

B. Substantive Reasonableness.

This brings us to the defendant's claim that his sentence

is substantively unreasonable. We review this claim of error for

abuse of discretion. See United States v. Ruiz-Huertas, 792 F.3d

223, 226 (1st Cir. 2015).

"The 'linchpin' of substantive reasonableness review is

an assessment of whether the sentencing court supplied a 'plausible

sentencing rationale' and reached a 'defensible result.'"

Rodríguez-Adorno, 852 F.3d at 177 (quoting Martin, 520 F.3d at

96). This formulation recognizes that "[t]here is no one

reasonable sentence in any given case but, rather, a universe of

reasonable sentencing outcomes." Clogston, 662 F.3d at 592.

"Challenging a sentence as substantively unreasonable is

[generally] a heavy lift," and this "lift grows even heavier where,

as here, the sentence falls within a properly calculated GSR."

Cortés-Medina, 819 F.3d at 572; see Rita v. United States, 551

U.S. 338, 347 (2007).

We need not tarry. The district court sentenced the

defendant at the very bottom of the applicable guideline range

6 [redacted]

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notwithstanding that the offenses of conviction involved a very

large quantity of drugs. Even so, the defendant says that the

court should have varied downward.

This is pie in the sky. The district court explained

that it had balanced all the section 3553(a) factors and had mulled

the defendant's personal circumstances. It concluded that an

87-month sentence was appropriate because after reviewing the

defendant's background, studying his file, analyzing the arguments

presented by defense counsel, and hearing defendant's allocution,

"a sentence at the lower end of the guideline range . . . [was]

just and not greater than necessary to promote the objectives of

sentencing." This rationale is plausible, and the defendant has

offered no convincing basis on which we might disavow it.

So too, the length of the sentence is easily defensible.

The offenses of conviction were serious, and they involved a large

quantity of drugs. Yet, the court chose a sentence at the nadir

of a properly calculated GSR. Nothing in the record suggests a

compelling reason to override the district court's exercise of its

discretion.

To say more would be to paint the lily. We conclude,

with scant hesitation, that the challenged sentence fell well

within the wide compass of the district court's discretion. It

was, therefore, substantively reasonable.

III. CONCLUSION

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 We need go no further. For the reasons elucidated above,

the sentence is

Affirmed.

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