
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 95-1887                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                            JOS  ANTONIO NU EZ-RODRIGUEZ,                                Defendant, Appellant.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. H ctor M. Laffitte, U.S. District Judge]                                              ___________________                                                                                      ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Coffin, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                                                                      ____________________             Rafael F. Castro Lang for appellant.             _____________________             Rosa Emilia  Rodr guez-V lez, Executive  Assistant United  States             ____________________________        Attorney,  with whom Guillermo  Gil, United  States Attorney,  Jos  A.                             ______________                            _______        Quiles-Espinosa, Senior  Litigation  Counsel, and  Nelson Jos   P rez-        _______________                                    ___________________        Sosa, Assistant United States Attorney, were on brief for appellee.        ____                                                                                      ____________________                                   August 14, 1996                                                                                      ____________________                    CYR,  Circuit  Judge.   Appellant  Jos   Antonio Nu ez-                    CYR,  Circuit  Judge.                          ______________          Rodriguez ("Nu ez") challenges the life sentence imposed upon him          for "carjacking", see  18 U.S.C.    2119(3), and the  consecutive                            ___          five-year sentence imposed  for using a firearm in  relation to a          crime of  violence, see  id.    924(c)(1),    2.   We vacate  the                              ___  ___          district court judgment and remand for further proceedings.                                           I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    At  an apartment  in  Santurce,  Puerto  Rico,  on  the          evening of June 7, 1994, Nu ez  and four other persons laid plans          to  free two  prisoners  from  the Bayamon  Regional  Jail.   The          conspirators  agreed to search  out a vehicle  bearing government          license plates  to  facilitate the  planned entry  upon the  jail          premises.   During their meeting,  Nu ez saw an  associate accept          delivery of  a handgun.   Later the  same evening,  after driving          around San  Juan  for several  hours,  Nu ez and  two  associates          spotted Jos   Jaime Pierluisi-Urrutia  ("Pierluisi"), brother  of          the Secretary of  Justice of the Commonwealth of  Puerto Rico, as          he returned home around midnight in a car with government plates.                    After parking their own car, Nu ez and an associate ap-          proached the  unsuspecting Pierluisi  as he  began unloading  the          trunk.  The  associate brandished a handgun and  demanded the car          keys.   After relinquishing  the keys without  protest, Pierluisi          was summarily  murdered by the associate with  a shot to the back          of  his head  as Nu ez  prepared to  drive away in  the Pierluisi                                          2          vehicle.  Following the murder, Nu ez drove the Pierluisi vehicle          to the housing development where he lived.                     The  next day,  after learning  that the  FBI  had been          inquiring  as to  his whereabouts,  Nu ez  presented himself  for          questioning.  Although he readily admitted his involvement in the          carjacking,  he steadfastly maintained that he had been abducted,          threatened  with a  gun, and  forced  to participate.   During  a          subsequent consensual search of the apartment where he lived, FBI          agents seized a  briefcase and passport, as well  as clothing and          credit cards, belonging to the victim.                      After  Nu ez was indicted, he offered to cooperate with          the  government provided he received total immunity from prosecu-          tion.  More than seven months after his confession, and less than          a week prior to the scheduled trial, Nu ez finally pled guilty to          the  charges without  the benefit  of a  plea agreement.   Subse-          quently he  filed a pro se motion to  set aside his guilty pleas,                              ___ __          which he withdrew following the  appointment of new counsel.  The          district court ultimately  sentenced Nu ez  to life  imprisonment          plus  sixty  months,  after  refusing  downward  adjustments  for          acceptance  of  responsibility  and  "minor  participation,"  and          rejecting a downward  departure request based on  "reduced mental          capacity."                                           II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________                                          3          A.   "Acceptance of Responsibility" (U.S.S.G.   3E1.1)1          A.   "Acceptance of Responsibility" (U.S.S.G.   3E1.1)1                _______________________________________________                    Nu ez first contends that  the district court committed          reversible  error in  refusing  to  adopt  a  presentence  report          ("PSR") recommendation that  he receive  a three-point  reduction          for acceptance of responsibility under U.S.S.G.   3E1.1.2                     Nu ez maintains that he  met his burden of  proof under                                        ____________________               1Nunez  was sentenced  under the  November  1994 guidelines,          wherein   3E1.1 provided:                    (a) If  the defendant clearly  demonstrates accep-               tance of  responsibility for his offense,  decrease the               offense level by 2 levels.                    (b)  If  the  defendant qualifies  for  a decrease               under  subsection  (a),  the  offense level  determined               prior to the operation of subsection (a) is level 16 or               greater, and the defendant has assisted authorities  in               the investigation or prosecution  of his own misconduct               by taking one or more of the following steps:                         (1) timely providing  complete information to                    the government  concerning his own  involvement in                    the offense; or                         (2) timely  notifying authorities of  his in-                    tention to enter a plea of guilty, thereby permit-                    ting the government  to avoid preparing for  trial                    and permitting the court to allocate its resources                    efficiently,               decrease the offense level by 1 additional level.          U.S.S.G.   3E1.1 (Nov. 1994).               2The claimed entitlement to  a three-point downward  adjust-                                              _____          ment for acceptance  of responsibility under U.S.S.G.    3E1.1(b)          is  frivolous, since  the undisputed  evidence unmistakably  dis-          closed  that  Nu ez  provided  neither  "timely"  nor  "complete"          information to the  government concerning his own  involvement in          the  offense.   U.S.S.G.    3E1.1(b)(1).   Nor did  Nu ez provide          "timely" notice to "authorities of  his intention to enter a plea          of guilty, [so as to]  permit[] the government to avoid preparing          for  trial .  . .," id.    3E1.1(b)(2).   We therefore  limit our                              __          discussion to the   3E1.1(a) claim.                                          4          U.S.S.G.   3E1.1, see United States v. Gonzalez, 12 F.3d 298, 300                            ___ _____________    ________          (1st Cir. 1993), since all the  competent evidence in the PSR was          "consistent"  with his acceptance  of responsibility:   he volun-          tarily  surrendered soon after  the crime, see  U.S.S.G.   3E1.1,                                                     ___          comment. (n.1(d)) (Nov. 1994), assisted investigators in recover-          ing  the victim's personal possessions, see id. (n.1(e)), cooper-                                                  ___ ___          ated with  the FBI and  entered a "straight" plea  (i.e., without          exacting a  plea bargain),  see United States  v. Vance,  62 F.3d                                      ___ _____________     _____          1152, 1160 (9th Cir. 1995),  and expressed sincere remorse at the          change-of-plea  hearing and at sentencing (e.g., crying in court,          and stating that he was "sorry" for the victim's  family).  Nu ez          further  contends that  the district  court erred  by  relying on          other factors it deemed "inconsistent" with acceptance of respon-          sibility,  including  Nu ez' continuing  and  willful failure  to          disclose the  names of  some of his  accomplices.3   This factor,          Nu ez maintains, can  be relevant only to a  defendant's entitle-                                            ____          ment to a   5K1.1  downward departure for "substantial assistance          to [law enforcement] authorities." See U.S.S.G.   5K1.1.4                                             ___               1.   The District Court Sentencing Decision               1.   The District Court Sentencing Decision                    ______________________________________                    In denying Nu ez  a downward adjustment under    3E1.1,          the  district court  apparently relied  on two  grounds.   First,          Nu ez delayed  his guilty  plea for six  months, until  five days                                                                  ____ ____                                        ____________________               3Nunez did provide the first names of two accomplices.               4Because a two-point  offense-level reduction under    3E1.-          1(b) would have lowered Nu ez' total offense level from 43, CHC I          (life imprisonment),  to 41,  CHC I  (324-405 months),  see supra                                                                  ___ _____          note 2, any error could not be considered harmless.                                            5          before  the  scheduled  trial,  thereby  presumably  leaving  the          government no alternative but to prepare for trial.  See U.S.S.G.                                                               ___            3E1.1, comment. (n.1(g)) (court considers timeliness of defend-          ant's manifestation of acceptance of responsibility) (Nov. 1994).          Second, the  court noted that  during the six-month  delay, Nu ez          had offered inconsistent versions  of the relevant events.5   See                                                                        ___          id.  comment. (n.1(a)) (court considers whether defendant "truth-          ___          fully  admitt[ed] the offense  comprising the offense  of convic-          tion.").  Since a  guilty plea does not entitle a  defendant to a          downward adjustment under   3E1.1,  see id. comment (n.3) (guilty                                              ___ ___          plea  and  "truthful  admission"  are "significant  evidence"  of          acceptance of responsibility but "may be outweighed by [inconsis-          tent] conduct of the defendant .  . ."), normally a trial court's          decision to deny a   3E1.1 adjustment would be affirmed  on these          grounds.   Id.  comment. (n.  5) ("The  sentencing judge is  in a                     ___          unique position to evaluate a defendant's acceptance of responsi-          bility.   For this  reason, the  determination of  the sentencing          judge is entitled to great deference on review.").                    The district  court  made other  statements during  the          sentencing hearing,  however, which are  reasonably understood to          indicate that the court declined a   3E1.1 adjustment on an inde-          pendent  ground; that is,  Nu ez' purported inability  or ongoing                                        ____________________               5Initially, Nunez told the FBI  that he had been abducted by          an unidentified male, forced at gunpoint to drive to the victim's          residence,  then forced to  drive the Pierluisi  vehicle from the          murder scene.  Later, Nunez told the FBI that while visiting at a          friend's apartment,  he had  encountered a  group of  persons who          persuaded him to assist in the prison break scheme.                                           6          refusal to  disclose the  names of other  collaborators.   As the          precise import of the district court's statements in  this regard          is critical, we recite its statements at length.                      After describing,  as incredible, Nu ez'  initial story          that he had been abducted by armed strangers, see supra p. 3, the                                                        ___ _____          district court observed:                          A defendant  who accepts  responsibility                    must  do more than that when he's involved in                    a conspiracy and  where [] human life  is in-                    volved.   He must  come forward  and identify                    and help  authorities get  the other  people.                    He has  stated time  and time  again that  he                    doesn't know these other people.                         Now,  he spent  with  these people  some                    hours  in an apartment, planning a crime.  He                    drives around . . . cruising in the rear seat                    while  he is telling the public and the Court                    that he was forced . .  . to sit on the front                    seat with the  gun pointed at  him.  When  he                    stepped out of  the car, the other .  . . un-                    identified male  got out  of the  car with  a                    gun.   Now, we don't know whether [Nu ez] was                    wearing  [or] carrying the  gun, or the other                    people [were], . . . because the track record                    of  this defendant is  that he cannot  be be-                    lieved.                         And therefore for those  reasons I'm not                                           _____                    accepting the two-points  downward adjustment                    for  acceptance of  responsibility.   I don't                    think the defendant  has done that.   When he                    comes forward  and identifies the  other peo-                    ple,  if he does  that, then that  might be a                                                       _____ __                    different story.  But  he's protecting others                    and that's why he has done all these things.          Tr. at 39-40 (emphasis added).   Later, once again after discuss-          ing Nu ez' inconsistent  versions of the relevant  events on June          7, 1994, the district court observed:                     [In his  second version,]  Nunez rode in  the                    rear seat.   So there  was no one  pointing a                    gun at him.  And  for four hours, if he tells                                          7                    the court  and the authorities that he hasn't                        he cannot recognize those two    at least                    those other two individuals, I'm not going to                    buy  that. . .  . Nunez turned  several items                    [of the victim's property]  over to those who                    he  had  originally  met  at  the  apartment.                    Again,  how could he say that he cannot iden-                    tify those  people?   He is protecting  them.                    And I  know it.   I'm pointing to  the defen-                    dant.          Tr. at 43-44.   Nu ez responded:  "I'm afraid." The court did not          respond.                     Later, in summarizing  its guidelines sentencing calcu-          lations, the district court added:                    The defendant has not  identified    although                    the  court finds  that he  can     the  other                    individuals  who participated  in the  crime.                    These are considered to have been elements of                    a strategy  to manipulate  the judicial  pro-                    ceedings, among other  things, towards estab-                    lishing a  tailor-made plea  agreement condi-                    tioned  on his own terms, failing to yield to                    this sort of  bargain, and  this occurred  at                    the beginning where  the defendant said  I'll                    plead guilty if I get "X" type of  sentence .                    . . .  A  defendant qualifies for a [  3E1.1]                    reduction when he truthfully  admits the con-                    duct comprising the offense of conviction and                    does not falsely  deny or frivolously contest                    relevant conduct  that the  Court has  deter-                    mined to  be true and  also does not  keep to                    himself the identity of other coconspirators.          Tr. at  46-47.  After  defense counsel objected to  its consider-          ation of the "informer" criterion, the district court responded:                    [M]y  point is that if anyone commits a crime                                        __ ______                    with one or more persons, knowing  those per-                    sons, does  not come forward to  the authori-                          ____  ___ ____ _______                    ties, giving the names of those persons, then                          ______ ___ _____ __ _____ _______                    you cannot have a  full acceptance of respon-                    ___ ______ ____ _  ____ __________ __ _______                    sibility because that entails precisely a ca-                    ________                    tharsis,  a full  remorse  by disclosing  the                    whole thing, being truthful  and not conceal-                    ing any  information how  to identify  . .  .                    these defendants.   I  have to  say that  for                                          8                    defendant's benefit  that there is  a section                    5K in this statute.   There's a Rule 35.  You                    have one year to think about  it . . . and to                    cooperate with the authorities.  But I'm  not                    saying that if you do that I will reconsider,                    but  your counsel knows better than I that                       . . . what I  mean. . . . All I'm     all I'm                    saying,  counsel    I want to make the record                    clear     is that there  is what is  called a                    downward departure.  I ruled that there is no                    departure, either upward  or downward, right?                    . . .  Very well.  And I am saying that there                    is what is  called a downward  departure, and                    that's up to  the defendant to avail  of that                    of himself, punto, without anything else. . .                    . I'm not  saying he is getting  life because                    of that.  I'm saying that there is that  pro-                    vision in the statute and Rule 35.          Tr. at 53-55 (emphasis added).                    Nu ez characterizes the latter explanation for refusing          a    3E1.1 adjustment as  an error of  law, in that  the district          court relied  upon an eligibility criterion  relevant exclusively          to    5K1.1 departures  for "substantial  assistance to  [law en-          forcement]  authorities,"  see  U.S.S.G.    5K1.1.6    See, e.g.,                                     ___                         ___  ____          United States  v. McKinney, 15  F.3d 849, 854 (9th  Cir. 1994) (           _____________     ________          3E1.1(a) "focuses on the defendant's sincere remorse  for his own          conduct, not his  assistance in incriminating others";  a "defen-          dant's degree of assistance  in the prosecution of  a codefendant          is relevant only to his  entitlement for a departure for substan-          tial assistance under   5K1.1"); see also Vance, 62 F.3d at 1157-                                           ___ ____ _____          58;  United States  v. Leonard,  50 F.3d  1152, 1158-59  (2d Cir.               _____________     _______                                        ____________________               6U.S.S.G.    5K1.1  reads, in  part:   "Upon  motion by  the          government stating that  the defendant  has provided  substantial          assistance  in the investigation or prosecution of another person                                                          __ _______ ______          who  has committed  an offense,  the  court may  depart from  the          guidelines." (Emphasis added.)                                          9          1995).                                          10               2.   Standard of Review               2.   Standard of Review                    __________________                    Sentencing  Guideline interpretations  are reviewed  de                                                                         __          novo, see United  States v. Bennett,  60 F.3d 902, 904  (1st Cir.          ____  ___ ______________    _______          1995), whereas  the subsidiary  findings of  fact, including  the          ultimate determination  as  to whether  the  defendant  sincerely          "accepted responsibility"  for the charged  offense and  relevant          conduct, are reviewed only for  clear error, see United States v.                                                       ___ _____________          Crass, 50 F.3d 81, 83 (1st Cir. 1995).7            _____                    Even if we were to determine that the sentencing  court          committed error,  however, its  sentence would  not be  set aside          unless  it affected defendant's substantial rights.   See Fed. R.                                                                ___          Crim. P. 52(a); see also Williams v. United States, 503 U.S. 193,                          ___ ____ ________    _____________          202-03 (1992); United States v. Curran, 926 F.2d 59, 62 (1st Cir.                         _____________    ______          1991).   A sentencing decision based in part on an invalid ground          may  be affirmed  if "excision  of the  improper ground  does not          obscure or  defeat the reasoning  of the district court,"  and we          are "left, on the record as  a whole, with the definite and  firm          conviction that removal of the inappropriate ground would not  be          likely to alter the district  court's view of the sentence right-          fully to be  imposed."  United States v.  Diaz-Bastardo, 929 F.2d                                  _____________     _____________          798, 800 (1st  Cir. 1991) (departure decision);   see also United                                                            ___ ____ ______          States v. Diaz, 39 F.3d 568, 571 (5th Cir.  1994) (same analysis,          ______    ____          reviewing denial of   3E1.1 reduction based on improper factor).                                        ____________________               7Nu ez preserved  this  issue by  lodging a  contemporaneous          objection at sentencing.                                           11               3.   The "Informer" Criterion and Section 3E1.1               3.   The "Informer" Criterion and Section 3E1.1                    __________________________________________                    The  question  whether  U.S.S.G.    3E1.1  permits  the          "informer" criterion to be  considered in determining "acceptance          of  responsibility" is unsettled  at best.   Compare McKinney, 15                                                       _______ ________          F.3d at 854 (holding that "informer" criterion is "relevant only"          to   5K1.1 departure) with United States v. Apple, 915 F.2d  899,                                ____ _____________    _____          913 n.23 (4th  Cir. 1990) (upholding use of  "informer" criterion          under pre-November 1989 guidelines, but skirting question whether          subsequent   3E1.1 amendments foreclose it) with United States v.                                                      ____ _____________          Cross, 900 F.2d  66, 70 n. 1 (6th Cir.  1990) (expressing "uncer-          _____          tainty") (dictum) with United States v. Tellez, 882 F.2d 141, 143                            ____ _____________    ______          (5th Cir. 1989) (upholding denial of adjustment for acceptance of          responsibility  for defendant who "never identified the person or          persons  who had  hired him  to smuggle  the contraband  into the          United States").                     Turning  first  to   the  specific  guideline  language          itself, see United States v. Perez-Franco, 873 F.2d 455, 458 (1st                  ___ _____________    ____________          Cir. 1989), we  find no explicit  indication that the  Sentencing          Commission  intended to preclude  consideration of the "informer"          criterion in appropriate circumstances.  Moreover, the U.S.S.G.            3E1.1  commentary expressly provides that its listing of relevant          considerations for a two-point adjustment under subsection (a) is          nonexhaustive.    See  U.S.S.G.    3E1.1,  comment.  (n.1(a)-(g))                            ___          ("include, but  are not  limited to,  the following  . .  . .").8                                        ____________________               8These indicia are: "(a) voluntary termination or withdrawal          from criminal conduct  or associations; (b) voluntary  payment of          restitution prior  to adjudication  of guilt;  (c) voluntary  and                                          12          Thus,  the absence  of an  explicit reference,  in section  3E1.1          itself, to  "voluntary assistance  to authorities  in implicating          other criminal participants" is not conclusive.                      Although the McKinney court noted that section 3E1.1 in                                 ________          general,  and  the  nonexhaustive listing  in  its  commentary in          particular, focus solely on the defendant's disclosures  relating                            ______          to his own criminal conduct, that is, his "personal responsibili-                                                     ________          ty,"  see McKinney,  15 F.3d  at  854 (citing  U.S.S.G.    3E1.1)                ___ ________          (emphasis added),  personal responsibility  may be  manifested in          various ways  and the  acceptance-of-responsibility determination          under section 3E1.1 necessarily envisions a fact-specific inquiry          in each  case, see United States v. Talladino, 38 F.3d 1255, 1258                         ___ _____________    _________          (1st  Cir. 1994).    Moreover,  by  prescribing  a  nonexhaustive          listing  in its commentary,  the Sentencing Commission  left sen-          tencing courts the  latitude to consider all  reliable, probative          indicia tending  to demonstrate, or countervail,  the genuineness          of the particular defendant's remorse.       We  can  discern  no          sound basis for  a general rule  barring a defendant's  voluntary          cooperation  in truthfully  identifying criminal  associates from          consideration by the sentencing court in determining the genuine-          ness of the  defendant's remorse.  Rather, unless otherwise fore-                                        ____________________          truthful admission to  authorities of involvement in  the offense          and  related  conduct;  (d)  voluntary  surrender  to authorities          promptly  after commission of  the offense; (e)  voluntary assis-          tance to authorities in the recovery of the fruits and instrumen-          talities  of  the  offense; (f)  voluntary  resignation  from the          office or position held during the commission of the offense; and          (g) the timeliness of the  defendant's conduct in manifesting the          acceptance of responsibility."                                          13          closed by  the Sentencing Guidelines,  but see infra, we  think a                                                 ___ ___ _____          defendant's refusal to  provide such cooperation may  be weighed,          along  with all other  relevant evidence, in  determining "accep-          tance of responsibility" under U.S.S.G.   3E1.1.  Nor do we think          this basic premise  is rendered unsound by the  concern that "[a]          cunning but not contrite defendant may buy his way out of trouble          by  providing  evidence  against someone  else,  and  an entirely          contrite  defendant may  out of  fear,  ignorance of  information          useful  to  the prosecutors,  or  other reason,  fail  to provide          assistance."  Vance, 62 F.3d at 1157.  To be sure,  such "inform-                        _____          ing" will  not always prove  a reliable or bona  fide indicium of                                                     ____  ____          the defendant's  remorse.   Be that as  it may,  however, similar          credibility determinations and inferential findings are consigned          routinely to  sentencing courts,  and, without  more, present  no          sound basis  for a per  se rule barring the  "informer" criterion                             ___  __          from consideration  under section  3E1.1, as one  more among  the          totality of the circumstances that the sentencing court considers          in  assessing a defendant's  true motives for  "informing" (e.g.,          sentence manipulation),  or not  "informing" (e.g.,  lack of  re-          morse, inability  to inform,  desire to  protect accomplices  for          personal or illicit reasons, or genuine fear of retaliation).                        Nu ez  suggests,  however,  that the  narrowly  focused          language  in  U.S.S.G.     3E1.1(b)  (three-point  reduction  for          acceptance  of responsibility)  requiring, inter  alia, that  the                                                     _____  ____          defendant "timely provid[e]  complete information to the  govern-          ment concerning  his own involvement  in the offense,"  see supra                           ___ ___ ___________                    ___ _____                                          14          note 1,  necessarily forecloses  consideration of the  "informer"          criterion under section 3E1.1.  We  do not agree.  Subsection (b)          requires  that a  defendant  first  meet  the  relevant  criteria                                       _____          prescribed  in subsection (a), and since the "informer" criterion          is  not  barred  by the  nonexhaustive  listing  included  in the          Commission  commentary to subsection  (a), see U.S.S.G.    3E1.1,                                                     ___          comment. (n.1(a)-(g)), it may be weighed in the balance under the          threshold subsection (a) inquiry.  Nothing in subsection 3E1.1(b)          purports  to supplant  the requirements of  subsection (a).   In-          stead,  the  subsection  (a)  requirements  are  explicitly  made          independent.  Thus, there is no sound basis for the view that the          imposition  of additional requirements  in subsection  (b) alters          the threshold factors appropriate for consideration under subsec-          tion (a).   A defendant must satisfy either  subsection (b)(1) or          (b)(2), as well  as subsection (a), in  order to qualify  for the          extra-point adjustment permitted under   3B1.1(b).                      Section  5K1.1  likewise  focuses  on  the   "informer"          criterion, even  to the exclusion of other  criteria, and imposes          additional  conditions precedent to  sentence mitigation  such as          the  requirement that  a  defendant's cooperation  in identifying          accomplices be sufficiently comprehensive to constitute "substan-          tial assistance" as certified by a government motion recommending          a downward  departure.  Commentary  to U.S.S.G.    5K1.1 provides          that                    [t]he sentencing reduction  for assistance to                    authorities shall be considered independently                                                    _____________                    of any reduction for acceptance of  responsi-                    bility.   Substantial assistance  is directed                                          15                    to the investigation and prosecution of crim-                    inal  activities  by persons  other  than the                    defendant, while acceptance of responsibility                    is  directed to  the defendant's  affirmative                    recognition  of  responsibility for  his  own                    conduct.          U.S.S.G.   5K1.1, comment. (n.2) (emphasis added).                      At  first blush  this commentary  may  seem to  support          Nu ez'  contention, but  it is far  from conclusive.   At most it          indicates  simply that  the  sentencing  court  is  to  undertake          sequential  inquiries under sections  3E1.1 and 5K1.1,  since the          __________          two independent  standards require the court to balance and weigh          different  criteria.   Unlike  section  5K1.1, moreover,  section          3E1.1 requires  the sentencing  court to  balance many  divergent                                                            ____          factors, consistent and inconsistent with acceptance of responsi-          bility.  Nothing in application note 2 to section 5K1.1 suggests,          however, that these sequential inquiries may not involve overlap-          ping  criteria,  in  particular the  "informer"  criterion.   See                                                                        ___          United  States v. Singh, 923 F.2d  1039, 1044 (3d Cir.) (   3E1.1          ______________    _____          and 5K1.1 are to be assessed "independently," but involve "relat-          ed concepts"), cert. denied, 500 U.S. 937 (1991).                           _____ ______                    Since reason and common sense suggest that a particular          criterion may bear relevance to the inquiries required in assess-          ing a  sentencing factor  under more than  one guideline,  and no          sentencing guideline indicates otherwise, we are unable to credit          Nu ez'  contention that  the  "informer"  criterion  may  not  be          considered under section 3E1.1.  Compare U.S.S.G.   3C1.1 (upward                                           _______          offense-level  adjustment for  obstruction  of  justice)  with                                                                       ____          3E1.1, comment. (n.4) ("Conduct resulting in an enhancement under                                          16             3C1.1 .  . . ordinarily  indicates that the  defendant has not          accepted  responsibility for  his  criminal  conduct. There  may,          however, be extraordinary  cases in which adjustments  under both              3C1.1 and  3E1.1 may  apply.").   For example,  assistance in          identifying,  apprehending,  or   prosecuting  accomplices  might          buttress a  cooperating defendant's statements  of remorse  under          section 3E1.1, without regard to whether the government considers          the cooperation  sufficiently helpful  to warrant a  "substantial          assistance" departure under section 5K1.1.                    Finally, section  5K1.2 provides that  "[a] defendant's          refusal  to  assist  authorities in  the  investigation  of other          persons  may not  be  considered  as  an  aggravating  sentencing          factor."  The October 1988 version of U.S.S.G.   5K1.2 included a          single commentary:  "The Commission .  . . rejected the use of  a          defendant's  refusal to  assist  authorities  as  an  aggravating          sentencing  factor.   Refusal to  assist  authorities based  upon          continued involvement in criminal activities and association with          accomplices may be considered, however, in evaluating a defendan-          t's sincerity  in claiming  acceptance of  responsibility."   The          Sentencing Commission  deleted this commentary  in November 1989,          explaining that it intended "to delete the unnecessary commentary                                                     ___________          containing an unclear example."   U.S.S.G. App. C, amend. 292, at                        _______          178 (November 1995) (emphasis added).                     The  current version of section 5K1.2 does not preclude          the "informer" criterion  under section 3E1.1.  First,  given its          location in  the  guidelines section  dealing with  "departures,"                                          17          section 5K1.2 clearly  forbids reliance on a  defendant's failure          to identify accomplices as a basis  for an upward departure.  But                                                            _________          it  neither expressly  nor impliedly  forbids  such reliance  for          purposes of sentencing adjustments such as section 3E1.1.  In all                                 ___________          events, since  any adjustment  under section  3E1.1  can only  be          downward,  the "informer" criterion under section 3E1.1 can never          ________          constitute  an aggravating  sentencing factor, only  a mitigating          factor. See, e.g., United States  v. Gordon, 895 F.2d 932, 936-37                  ___  ____  _____________     ______          (4th Cir.) (  3E1.1 reduction bespeaks "mitigation," not aggrava-          tion), cert. denied, 498 U.S. 846 (1990).                  _____ ______                    Notwithstanding the November 1989 amendment, it remains          clear  that the  commentary to  section  5K1.2 contemplated  that          sentencing courts were to consider the "informer" criterion under          section 3E1.1 in  appropriate circumstances.   Significantly, the          1988 version purported to allow the court to deny a section 3E1.1          adjustment  where  the  defendant did  not  identify  accomplices          because  his criminal  associations were  ongoing.   Further,  it          seems  that the 1989  amendment deleted the  "unclear" commentary          not because the Commission had  altered its view on the propriety          of the  section 3E1.1 practice  described in the  commentary, but          because it concluded that the  current text in sections 3E1.1 and          5K1.1 was sufficiently clear to  support such a sentencing  prac-          tice     without further elaboration.  We therefore conclude that          the 1989 amendment was meant to clarify, not to effect a substan-          tive change in sentencing policy.  See United States v. Campbell,                                             ___ _____________    ________          61  F.3d 976,  985 (1st  Cir.  1995) (court  should presume  that                                          18          Commission  did  not  intend substantive  change  where guideline          amendments are  unaccompanied by language declaring  intention to          abandon  earlier sentencing practice),  cert. denied, 116  S. Ct.                                                  _____ ______          1556  (1996).  This  conclusion is confirmed  by the Commission's          failure to  effect a  conforming 1989  modification  to the  non-          exhaustive listing in section 3E1.1.  See supra note 8.                                                ___ _____                     Insofar as  McKinney,  Vance,  and  Leonard  might  be                                 ________   _____        _______          thought to suggest  a per se rule,  but see McKinney, 15  F.3d at                                ___ __        ___ ___ ________          854 ("Where the defendant's refusal to assist authorities in  the          prosecution of his  codefendants does not detract  from his clear          contrition  for his  own actions,  he  is still  entitled to  the          acceptance of responsibility  reduction."), we must  respectfully          disagree.   In appropriate  circumstances a  sentencing court  is          permitted  to consider, as  relevant evidence of  the defendant's          sincerity  in accepting  responsibility for  his  own crimes,  at          least whether  a defendant truthfully has  identified accomplices          in the  crimes  to which  the  defendant has  pled  guilty.   For          example,  where a defendant does not disclose accomplices because          he has  elected to continue  his criminal associations,  the sen-          tencing  court may  consider  such conduct  along with  any other          indicia of failure to accept  responsibility.  On the other hand,          should  the court determine  that a defendant  has not identified          his  accomplices because he genuinely fears retaliation, but that          the defendant's conduct otherwise demonstrates genuine remorse, a          downward adjustment under section 3E1.1 might yet be found appro-          priate, as the  sentencing court's balancing and  weighing of the                                          19          relevant criteria under section 3E1.1 is entitled to great defer-          ence on appeal.  U.S.S.G.   3E1.1, comment. (n.5).               4.   The "Acceptance of Responsibility" Finding                4.   The "Acceptance of Responsibility" Finding                    __________________________________________                    The  district  court apparently  relied  on  two proper          grounds for  its finding that  Nu ez had not  demonstrated accep-          tance of responsibility:   (i) the six-month delay  in entering a          guilty  plea, see U.S.S.G.   3E1.1, comment. (n.1(g)) (timeliness                        ___          factor), and  (ii) the inconsistent  stories given by  Nu ez, see                                                                        ___          id. (n.1(a)) (truthful-admission factor).            ___                    In addition, the district  court discussed at consider-          able length Nu ez'  failure to assist the FBI  in identifying his          accomplices.  See  supra Section II.A.1.  The court appropriately                        ___  _____          questioned  Nu ez' motives for  not disclosing the  identities of          his associates.  Its misgivings were prompted by Nu ez' inconsis-          tent versions of the carjacking, and were explicitly connected to          its finding that Nu ez, and  by extension, his insistence that he          had accepted responsibility, were not  credible.  Nu ez had given          uncorroborated and inconsistent explanations  for not identifying          his  accomplices:  first,  he claimed that he  had not known them          before the day of the  carjacking, and never learned their names;          and, second, he was "afraid" to  identify them.  See Gonzalez, 12                                                           ___ ________          F.3d at 300 (defendant bears burden of proof under   3E1.1).  The          district court supportably found  that Nu ez' true motive was  to          "protect" his accomplices,  a motive which     when coupled  with                                                              _______          his two pretextual motives for refusing to "inform" (memory lapse          and/or fear)    belied a genuine acceptance of responsibility.                                            20                    Nonetheless, other  observations by the  district court          remain open to the plausible understanding that a  defendant must          always, at least  where an offense results in  death, "inform" on          ______          his accomplices  in order  to qualify for  a    3E1.1 adjustment,          regardless of any other circumstances in the case:                          A defendant  who accepts  responsibility                    must  do more than that when he's involved in                    ____                    a conspiracy and  where [] human life  is in-                                      _____    _____ ____  __ ___                    volved.  He  must come  forward and  identify                    ______       ____                    and help  authorities get the other people. .                    . .                         A defendant  qualifies for  a [   3E1.1]                    reduction when he  truthfully admits the con-                              ____                    duct comprising the offense of conviction and                    does not falsely deny or frivolously  contest                    relevant  conduct that  the Court  has deter-                    mined to be  true and also  does not keep  to                                      ___       ____ ___ ____  __                    himself the identity of other coconspirators.                    _______ ___ ________ __ _____ ______________                    . . .                         [M]y point is  that if anyone  commits a                    crime with one or more persons, knowing those                    persons, does not come forward to the author-                    ities,  giving the  names  of those  persons,                    then  you cannot  have a  full acceptance  of                              ______  ____                    responsibility because that entails precisely                    a catharsis, a full remorse by disclosing the                    whole thing, being  truthful and not conceal-                    ing any  information how  to identify  . .  .                    these defendants.           As we  have indicated, however,  such a per se  requirement would                                                  ___ __          prove as inconsistent with the letter and spirit of section 3E1.1          as its counterpart, see, e.g., McKinney, 15  F.3d at 854.  Conse-                              ___  ____  ________          quently, we are  unable to conclude  with confidence whether  the          district court  deemed Nu ez'  failure to  identify his  criminal          associates  as sufficient, by  itself, to preclude  an adjustment          under section  3E1.1, without  regard to  whether Nu ez knew  the          names of his accomplices or feared retaliation.                                           21                    Assuming  the  district  court  meant  that  mitigating          considerations  are never material under section 3E1.1, it erred.          Moreover, insofar as  the court envisioned  a per se  bar to  its                                                        ___ __          consideration  of mitigating  circumstances,  the present  record          precludes reliable "harmless error" analysis, since we cannot say          with any  confidence that the  court would not have  disallowed a          section 3E1.1 adjustment solely because Nu ez refused to identify          his criminal associates.                     The government  points to the district  court statement          that it was  "not saying [Nu ez] is getting life because of . . .                        ___ ______ _______ __ _______ ____ _______ __          [his  failure to  `inform']."    Yet the  literal  import of  the          district court's  language is  not necessarily  equivalent to  an          assurance that  Nu ez' life sentence  had nothing to do  with his          refusal to  identify his criminal  associates.  Thus,  the quoted          statement does not  cure the  inherent ambiguity  created by  the          categorical remarks the court made earlier.  Consequently, on the          record as  a whole,  we cannot  say that  we are  left "with  the          definite  and firm conviction  that removal of  the inappropriate          ground would not be likely to alter the  district court's view of          the sentence  rightfully to be  imposed."  See  Diaz, 39 F.3d  at                                                     ___  ____          568.   These ambiguities  counsel a  remand for resentencing  for          clarification,9 and further factfinding  as appropriate.   United                                                                     ______                                        ____________________               9Another statement  by the district  court likewise necessi-          tates  a  remand. It  noted, based  on  a review  of the  Rule 11          hearing transcript  that Nu ez had  asked to be "forgiven  by the          [victim's]  family," but "didn't  say he was  remorseful, that he          was willing to cooperate."   Tr. at 39.  Our review of  the tran-          script discloses that  Nu ez stated:  "I  would like to  ask for-          giveness from the family of the young man, (defendant crying).  I                                          22          States v. Berzon, 941 F.2d 8, 20 (1st Cir. 1991).            ______    ______          B.   The "Minor Participant" Adjustment          B.   The "Minor Participant" Adjustment               __________________________________                    Next  we consider whether  the district court  erred in          declining a two-point  adjustment under  the "minor  participant"          guideline.  See  U.S.S.G.   3B1.2(b).10   Nu ez claims it was  an                      ___          error  of law  to assess  his  participation exclusively  through          reference to the hypothetical "average participant" in a carjack-          ing and murder, rather than with reference to his coconspirators.          See  United States v. Brandon, 17 F.3d 409, 460 (1st Cir.), cert.          ___  _____________    _______                               _____          denied, 115 S. Ct. 80 (1994); United States v. Gregorio, 956 F.2d          ______                        _____________    ________          341, 344 (1st Cir. 1992) ("Role-in-the-offense adjustments depend          . .  . not  only on  the comparative conduct  of persons  jointly          engaged in criminal activity, but also on comparing each offende-          r's actions and relative culpability with the elements of the of-          fense.") (citations omitted).                      Nu ez  mischaracterizes the  district court  rationale.          The  court stated  very clearly:    "A defendant  is not  a minor                                        ____________________          know what suffering is because I have a mother, I have  a father,          and I'm very sorry and I would  like them to forgive me."  Tr. at              ___ ____ _____          21 (emphasis added).  Thus, the district court's  compound state-          ment  ("didn't say  he was  remorseful,  that he  was willing  to          cooperate") may  have been  either yet  another reference to  the          section 3E1.1 "informer"  criterion, or simply a  mistaken under-          standing that Nu ez had never even stated that he  was "sorry" at                                             ______          the time he pled  guilty.  The present record does  not permit us          to make a reliable determination.                10"A minor  participant means  any participant  who is  less          culpable  than most  other  participants."    U.S.S.G.     3B1.2,          comment. (n.3).   An adjustment  is allowed "for a  defendant who          plays a  part in committing  the offense that makes  him substan-          tially less culpable than the  average participant." Id.   3B1.2,                                                               ___          comment. (backg'd.).                                          23          participant merely because he might be less culpable than others,                      ______ _______          co-conspirators . . . .  Rather he must be less culpable than the          average  participant in  similar  offenses."   (Emphasis  added.)          This  statement      especially the  phrase  "merely  because"             negates  the  suggestion  that the  district  court  found actual          coconspirator  comparisons  immaterial  to  the  Brandon-Gregorio                                                           _______ ________          inquiry.  Instead,  the court acknowledged, as it  explained more          fully later,  that U.S.S.G.    3B1.2(b) entails a  bifocal analy-          sis.11                      We also  reject the  claim that  the evidence  does not          support  the district court ruling.   Its fact-specific ruling is          reviewed  for clear error  only, and with  "considerable respect"          for a sentencing court's superior  vantage point.  United  States                                                             ______________          v. Ocasio, 914 F.2d 330, 333 (1st Cir. 1990); see  also Gregorio,             ______                                     ___  ____ ________          956  F.2d at 344.  We find no clear error.  The evidence revealed          that Nu ez voluntarily  participated in planning the  jail break-          out,  witnessed the  delivery of  a  revolver to  be used  in the          carjacking,  drove  around with  two  coconspirators  for several          hours searching for an appropriate vehicle, approached the victim          with  an armed  associate,  and, as  agreed, drove  the Pierluisi          vehicle from the carjacking scene, despite having heard the fatal          gunshot.   Finally, the  evidence indicates  that Nu ez  played a          more active role in the carjacking-murder than at least one other          associate, who merely  waited in the car while  the shooter, with                                        ____________________               11The  court  stated:   "In  this case  [Nu ez]  planned the          offense.   He participated  in the planning  of the offense.   He          cruised with these individuals for about two hours."                                          24          Nu ez nearby, approached and killed Pierluisi.          C.   The Requested "Reduced Mental Capacity" Departure          C.   The Requested "Reduced Mental Capacity" Departure               _________________________________________________                    Finally,  Nu ez argues that the district court erred in          refusing a downward departure under U.S.S.G.   5K2.13, Diminished                                                                 __________          Capacity (Policy Statement), which provides:           ________                    If  the  defendant  committed  a  non-violent                                                      ___________                    offense  while  suffering  from significantly                    _______                    reduced  mental capacity  not resulting  from                    voluntary use of drugs  or other intoxicants,                    a lower  sentence may be warranted to reflect                    the extent  to which reduced  mental capacity                    ___ ______  __ _____ _______  ______ ________                    contributed to the commission of the offense,                    ___________ __ ___ __________ __ ___ _______                    provided that the defendant's criminal histo-                    ry does not indicate a need for incarceration                    to protect the public.          U.S.S.G.     5K2.13,  p.s. (emphasis  added).  Essentially, Nu ez          relied on a  1984 diagnosis of borderline  mental retardation and          paranoid schizophrenia, which conditions  so affected his ability          to make common-sense judgments, that  he was unable to resist his          coconspirators' requests that he join in the armed carjacking, or          to  foresee that  a  murder  might ensue.    Recognizing that  we          normally lack jurisdiction  to review a district  court's discre-          tionary refusal to make  a downward departure, see United  States                                                         ___ ______________          v. Grandmaison, 77  F.3d 555, 560 (1st Cir.  1996), Nu ez instead             ___________          argues that  the court's  refusal to depart  was premised  on its          incorrect  interpretation of  the  phrase "non-violent  offense."          Id.12          ___                                        ____________________               12In essence, Nunez  argues that there  is an inherent  con-          flict  between    2A1.1 and 5K2.13.  The former section increased          Nunez' base  offense level from  22 to 43 because  death resulted          from  the  carjacking.   See  U.S.S.G.    2A1.1,  comment. (n.1);                                   ___          2B3.1(c).   Section 2A1.1  also notes,  however, that  a downward          departure may be warranted where "the defendant did not cause the                                          25                    We need not linger over  this claim.  Without regard to          whether  the district court  misapprehended the meaning  of "non-          violent crime," see, e.g., United  States v. Weddle, 30 F.3d 532,                          ___  ____  ______________    ______          537-40  (4th  Cir.  1994)  (discussing circuit  split  concerning          proper  interpretation of  "non-violent  offense"), it  expressly          ruled      after defense  counsel cited  to the  1984 psychiatric          reports    that  it believed  Nu ez did not  suffer from the  re-          quired "significantly reduced mental capacity" at the time of the          1994 carjacking:                    This  defendant  had  this meeting  with  his                    friend's  nephew where they sat there in this                    apartment discussing precisely  a carjacking,                    stealing of  a car,  to commit another  crime                    [i.e., the  jail  break], and  he was  there.                    And then they start cruising around,  finding                    a  victim until  they  found him,  found  the                    victim.   So .  . . [it]  [s]eems to  me that                    this is totally inconsistent with the  dimin-                    ished capacity to commit a crime.          Tr.  at 22.   The court  pointed out  that Nu ez had  admitted to          long-term, daily use  of marijuana, which  would tend to  support          the  conclusion that any  diminished capacity he  might have suf-          fered on June 7, 1994 "result[ed]  from voluntary use of drugs or          other intoxicants."  U.S.S.G.   5K2.13, p.s.                      We  thus lack  appellate  jurisdiction  of this  claim.          "[I]f the [sentencing]  judge says, in effect,  . . . that  `this          circumstance [viz.,  "significantly reduced  mental capacity  not                                        ____________________          death intentionally or knowingly."  Nunez says this  is inconsis-          tent with the  district court's interpretation of    5K1.1, i.e.,          that it forbids departures for anything but "non-violent" crimes.          Whatever its questionable merits, we lack jurisdiction to consid-          er this claim.  See infra.                          ___ _____                                          26          resulting from voluntary  use of drugs or  other intoxicants"] of          which you speak has not been shown to exist in this case,' [then]          . . .  no  appeal lies."  United States  v. Pierro, 32 F.3d  611,                                    _____________     ______          619 (1st  Cir. 1994),  cert. denied, 115  S. Ct. 919  (1995); see                                 _____ ______                           ___          also United States  v. Regan,  989 F.2d  44, 45  (1st Cir.  1993)          ____ _____________     _____          (defendant has the burden of  proof under section 5K2.13).  Nu ez          does not contend  that the court misapprehended the  criteria for          determining  whether he  suffered from  a  "significantly reduced          mental capacity." Cf.  Grandmaison, 77 F.3d at  561 (jurisdiction                            ___  ___________          lies where  district court  misapprehended the  relevant criteria          for ascertaining "aberrant  behavior").13   Since some  causative          reduction in  mental capacity is the sine qua non of any downward                                               ____ ___ ___          departure under section 5K2.13, whether the murder-carjacking  be          deemed  "violent" or  "non-violent,"  we need  not     indeed  we          cannot     decide whether the  court also relied on  an incorrect          interpretation of "non-violent offense."                    The sentence is  vacated, and the case  remanded to the                    The sentence is  vacated, and the case  remanded to the                    _______________________________________________________          district  court for resentencing, consistent with our opinion and          district  court for resentencing, consistent with our opinion and          _________________________________________________________________          mandate.           mandate.           _______                                        ____________________               13While it is  unnecessary to  decide the  soundness of  the          district court's factual  conclusion, we would note  that various          psychiatric evaluations of  Nu ez following his arrest  concluded          that he did not suffer from any abnormal mental disease or defect          on the date  of the carjacking, and that he was capable of appre-          ciating the consequences of his actions.                                          27
