United States v. Talladino

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.

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