
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 93-1388                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    JOSH MORILLO,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                              _________________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Selya and Stahl, Circuit Judges.                                            ______________                              _________________________               Ernest Barone for appellant.               _____________               Zechariah  Chafee, Assistant  United  States Attorney,  with               _________________          whom Edwin J. Gale, United States Attorney, was on brief, for the               _____________          United States.                              _________________________                                   November 8, 1993                              _________________________                    SELYA, Circuit Judge.  This proceeding requires us, for                    SELYA, Circuit Judge.                           _____________          the first  time, to chart  the interrelationship between  Fed. R.          App. P. 4(b) (delimiting the appeal period in criminal cases) and          Fed. R. Crim.  P. 35(c) (the  text of which is  set forth in  the          margin).1     We  conclude   that,  under  certain  circumscribed          circumstances,  post-judgment  motions brought  under  the latter          rule can operate to extend the appeal period limned by the former          rule, and  that the  instant case  qualifies for  this elongating          effect.   Thus, the appeal prosecuted by defendant-appellant Josh          Morillo is  properly before us.   This initial success  heralds a          hollow  victory,  however,  for  we  find  Morillo's  substantive          arguments unpersuasive and affirm the judgment below.                                          I.                                          I.                                          __                                      Background                                      Background                                      __________                    A thumbnail  sketch suffices  to put  this appeal  into          workable  perspective.2  In  1992, a federal  grand jury indicted          appellant on three counts of  distributing heroin in violation of                                        ____________________               1The rule provides:                    The  court, acting  within  7 days  after the                    imposition   of  sentence,   may  correct   a                    sentence  that  was imposed  as  a result  of                    arithmetical,  technical,   or  other   clear                    error.          Fed. R. Crim. P. 35(c).   This provision has been in effect  only          since December, 1991.               2The   November  1992  edition  of  the  federal  sentencing          guidelines  applies  in   this  case.    See  United   States  v.                                                   ___  _______________          Harotunian,  920  F.2d  1040,  1041-42  (1st  Cir.  1990).    All          __________          references   herein  are  to   that  version,   unless  otherwise          specifically indicated.                                          2          21 U.S.C.    841(a)(1) (1988).  He entered  a plea of not guilty.          The  district court  set  the case  for trial  in  December.   On          November   30,  appellant  moved   for  the  appointment   of  an          independent toxicologist to  weigh the drugs that  the government          planned to offer  in evidence against him.  He made it clear that          he was ready to  plead guilty to the charges but  for the dispute          over drug quantity.  On December 10, 1992,  without any agreement          anent weight,  appellant changed  his plea  and acknowledged  his          guilt  on all counts.   Some two months  later the district court          granted  appellant's longstanding  motion and  ordered the  drugs          reweighed at a state-run laboratory.  The laboratory reported its          findings soon thereafter.                    At  a sentencing hearing  held on  March 18,  1993, the          district court  determined that the heroin involved in the counts          of conviction warranted  a base offense level  (BOL) of 18.   See                                                                        ___          U.S.S.G.   2D1.1(c)(13)  (Drug  Quantity   Table).3    The  judge          increased the BOL by two  levels because of Morillo's aggravating          role in the  offense, see U.S.S.G.   3B1.1(c), and decreased  the                                ___          BOL  by two  levels  for acceptance  of  responsibility, see  id.                                                                   ___  ___           3E1.1(a).    When  combined  with  appellant's  criminal history          category  (III),  the various  adjustments  produced a  guideline          sentencing range  (GSR)  of 33-41  months.   The court  sentenced          appellant at the range's apex and entered final judgment on March          19, 1993.                                        ____________________               3In  Part III(A), infra, we  discuss the relevant details of                                 _____          the debate over  drug weight and, relatedly,  the appropriateness          of the BOL.                                          3                    On March 23, appellant filed  a motion asking the court          to  correct his sentence because of  an alleged miscalculation in          figuring drug quantity.  On April 1, appellant filed a  notice of          appeal.   On April  19, the district  court addressed appellant's          post-judgment motion  and denied it  by means of a  margin order.          Appellant did not file a further notice of appeal.                                         II.                                         II.                                         ___                                Appellate Jurisdiction                                Appellate Jurisdiction                                ______________________                                          A.                                          A.                                          __                           Suspensory Motions:  An Overview                           Suspensory Motions:  An Overview                           ________________________________                    In  a criminal case, a defendant  must appeal within 10          days after entry of  a judgment of conviction.  See  Fed. R. App.                                                          ___          P. 4(b).  Because the obligation is mandatory and jurisdictional,          unexcused failures of compliance inevitably result in the loss of          appeal rights.  See United States v. Kress, 944 F.2d 155, 161 (3d                          ___ _____________    _____          Cir. 1991), cert.  denied, 112 S. Ct. 1163  (1992); United States                      _____  ______                           _____________          v. Zuleta-Molina, 840 F.2d 157, 158 (1st Cir. 1988).  However, in             _____________          cases where the entry  of a judgment is  closely followed by  the          filing  of a certain  type of revisory motion,  the time limit is          relaxed.  For example, most timely motions for new trial, Fed. R.          Crim. P.  33, or timely  motions in  arrest of judgment,  Fed. R.          Crim. P. 34, stall the running of the appeal period and permit an          appeal to  be taken  from the judgment  of conviction,  should it          stand, "within  10 days after the  entry of an order  denying the          [Rule 33 or Rule 34] motion."  Fed. R. App. P. 4(b).                    Post-judgment  motions   apart  from   those  expressly                                          4          enumerated in Fed. R. App.  P. 4(b) can have the  same suspensory          effect.    The  paradigmatic  example  is  a  timely  motion  for          rehearing  or reconsideration.  See  United States v. Ibarra, 112                                          ___  _____________    ______          S. Ct.  4,  6-7 (1991)  (per curiam)  (holding that  government's          timely motion  for  reconsideration restarted  the appeal  period          with respect to  the underlying judgment as of  the date when the          district court denied  the motion); United States v.  Dieter, 429                                              _____________     ______          U.S.  6,  8 (1976)  (per  curiam)  (noting that  "the  consistent          practice  in civil  and criminal  cases alike  has been  to treat          timely petitions for rehearing as rendering the original judgment          nonfinal for  purposes of appeal  for as long as  the petition is          pending"); United  States v.  Healy, 376  U.S. 75, 78-80  (1964);                     ______________     _____          United  States v.  Carr, 932  F.2d  67, 71-72  (1st Cir.),  cert.          ______________     ____                                     _____          denied, 112  S. Ct.  112 (1991); United  States v.  Gallardo, 915          ______                           ______________     ________          F.2d 149, 150  n.2 (5th Cir. 1990),  cert. denied, 498  U.S. 1038                                               _____ ______          (1991).                                          B.                                          B.                                          __                                  Framing The Issue                                  Framing The Issue                                  _________________                    The pivotal question here is whether  appellant's post-          judgment motion is of  this suspensory genre.4  If  the filing of          the motion did  not interrupt the progress of  the appeal period,                                        ____________________               4We  use the term "suspensory" because, although some courts          and litigants  describe the effect  of such motions  as "tolling"          the time for appeal, that description is inaccurate.  Because the          appeal period begins to run afresh at the  time of disposition of          the  motion, the  motion does  not  toll the  appeal period,  but          restarts it.   See Ibarra, 112 S. Ct. at  5 n.2; see also Fed. R.                         ___ ______                        ___ ____          App. 4(b) (discussing  effect of timely motions  filed under Fed.          R. Crim P. 33, 34).                                          5          then Fed. R. App. P.  4(b) applies without dilution and Morillo's          notice  of  appeal,  filed  more  than 10  days  after  entry  of          judgment, is  a nullity.   To avoid  this result,  appellant must          convince us  that  bringing the  March  23 motion  suspended  the          running of the appeal  period by rendering the original  judgment          nonfinal for appeal  purposes, or,  put in  its simplest  aspect,          extended  the time  within which  an  appeal from  the underlying          judgment could be taken.                                          C.                                          C.                                          __                                       Analysis                                       Analysis                                       ________                    1.   Characterization.  Our first  order of business is                    1.   Characterization.                         ________________          to determine  the character of the  March 23 motion.   The motion          did not invoke, or even refer to, any particular procedural rule.          When  a motion  is silent as  to the  location of  its procedural          moorings, an inquiring court must look to the motion's substance,          including the relief requested, in order properly to characterize          it.  See,  e.g., Dieter, 429 U.S. at 8-9; Hannon v. Maschner, 981               ___   ____  ______                   ______    ________          F.2d 1142,  1144 n.2  (10th Cir. 1992);  Feinstein v.  Moses, 951                                                   _________     _____          F.2d  16, 19 n.3  (1st Cir. 1991);  United States  v. Lefler, 880                                              _____________     ______          F.2d  233, 234  n.2  (9th  Cir. 1989);  see  also Perez-Perez  v.                                                  ___  ____ ___________          Popular Leasing Rental,  Inc., 993 F.2d 281, 283  (1st Cir. 1993)          _____________________________          (stating  that  a  court  should  examine  the   function  of  an          uncaptioned post-judgment  motion in order to gauge its effect on          the appeal period).                     Here,  appellant styled  his motion  as  a motion  "to          correct  sentence."  Elevating  substance over form,  we conclude                                          6          that the motion invokes, or is at least the functional equivalent          of a motion  brought pursuant to, Fed. R. Crim.  P. 35(c), quoted          supra note 1.  The motion posits, in fairly blunt terms, that the          _____          district  court made a  numerical mistake  in its  aggregation of          discerned drug  quantities.  Whether  or not one  classifies this          claimed bevue as  "arithmetical," the motion  alleges, at a  bare          minimum,  a strain of  "clear error."   This is the  very sort of          situation that Rule 35(c) was  designed to address.  See Fed.  R.                                                               ___          Crim.  P.  35(c)  advisory   committee's  note  (1991  amendment)          (stating that  the rule  enables a court  to rectify  "an obvious          error or mistake" affecting the sentence so long as  the error or          mistake is "discovered  shortly after the sentence  is imposed");          see also  United States v.  Corey, 999  F.2d 493, 496  (10th Cir.          ___ ____  _____________     _____          1993) (explaining that  Rule 35(c) codifies the  district court's          "inherent authority .  . . to correct sentencing  errors").  And,          moreover, no one has suggested a better fit elsewhere.                    2.  Effect.   Having identified the motion  as a motion                    2.  Effect.                        ______          under Fed. R.  Crim. P. 35(c), the  lens of inquiry narrows.   We          focus next  on whether  a motion brought  pursuant to  Rule 35(c)          extends the  time for  appealing from  the underlying  judgment.5                                        ____________________               5To be sure, the text of Rule 35(c) does not mention motions          and   contemplates  that  the   district  court,  within  certain          specified constraints, may  act sua sponte to  correct sentencing                                          ___ ______          errors.  But  we do not read  the rule as prohibiting  either the          government or the defendant from calling  the need for corrective          action to the  sentencing court's attention by means  of a timely          filed post-judgment  motion.   We believe that  such motions  are          permissible  and note  that other  courts have  read the  rule as          authorizing them.   See, e.g., Corey, 999 F.2d  at 494-96; United                              ___  ____  _____                       ______          States v. Turner, 998 F.2d 534, 536 (7th Cir. 1993).          ______    ______                                          7          We conclude that it does.                    It  is settled beyond peradventure that a timely motion          for rehearing or reconsideration of a judgment in a criminal case          interrupts  the  original  appeal  period.    See supra  pp.  4-5                                                        ___ _____          (listing  precedents).    This tenet  applies  in  criminal cases          notwithstanding  that, by  and  large,  there  are  "no  explicit          provisions  for rehearing  proceedings in  criminal  cases."   16          Charles A. Wright et al., Federal Practice & Procedure   3950, at                                    ____________________________          482 (Supp. 1993).  Justice Harlan, writing for a unanimous Court,          explained  the  rationale  for  giving  such  motions  suspensory          effect:                    [Depriving parties to a criminal case] of the                    opportunity to petition a lower court for the                    correction   of   errors   might,   in   some                    circumstances, actually  prolong the  process                    of litigation    since  plenary consideration                    of a question  of law [on appeal]  ordinarily                    consumes  more  time  than  disposition of  a                    petition  for rehearing    and could, in some                    cases, impose an added and unnecessary burden                    of adjudication upon [the appellate court].          Healy,  376 U.S. at  80.  The  Healy doctrine is  still good law,          _____                          _____          having survived  the massive  changes wrought  by the  Sentencing          Reform Act of 1984.   See Carr, 932 F.2d at  71-72; accord Corey,                                ___ ____                      ______ _____          999 F.2d  at 495-96; United  States v. Greenwood, 974  F.2d 1449,                               ______________    _________          1470-71 (5th Cir. 1992), cert. denied, 113 S. Ct. 2354 (1993).                                   _____ ______                    It stands to reason that,  if a sentence is infected by          clear error,  a timely motion seeking to correct  it   at least a          motion which,  like this one,  seeks to shrink  the incarcerative          portion  of  the sentence  and,  thus, carries  the  potential to          affect substantive rights   fits the Healy mold.  Forcing a party                                               _____                                          8          to press  ahead with  an appeal  while such a  motion is  pending          would countervail the principles of efficacy and judicial economy          that undergird Healy.  Consequently, we hold that when, as now, a                         _____          party  to a  criminal case  files a  timely motion under  Fed. R.          Crim. P.  35(c), asking  the sentencing  court  to reconsider  an          issue in the case in a way  that will, if successful, bring about          an alteration  of the  defendant's substantive  rights, then  the          filing of that motion renders  the judgment nonfinal for purposes          of appeal.6  Accord Corey, 999 F.2d at 496.                       ______ _____                    3.      Timeliness.      Our   speleology   into   this                    3.      Timeliness.                            __________          jurisdictional cave also uncovers a temporal dimension.   We have          been careful  to note,  and believe it  is prudent  to emphasize,          that only a timely motion for rehearing or reconsideration should                      ______          be accorded suspensory effect.  See, e.g., Dieter, 429 U.S.  at 8                                          ___  ____  ______          (limiting suspensory effect to "timely petitions for rehearing");          Healy,  376  U.S.  at  77,  80  (same).  Timeliness  is  measured          _____          differently in different  contexts.  In Carr,  we were confronted                                                  ____          with  a  motion for  rehearing  addressed to  a  district court's          inherent power  to correct an  erroneous sentence.7   We accorded          suspensory effect, holding the motion to be timely because it was          brought "within the time frame  allowed for taking an appeal from                                        ____________________               6The likelihood that  appellant might prevail on  his motion          is irrelevant for purposes of determining the motion's suspensory          effect.  See Ibarra, 112 S. Ct. at 6.  It is the character of the                   ___ ______          post-judgment  motion, not its  intrinsic merit or  lack thereof,          that determines whether,  if seasonably filed, it  will interrupt          the running of the appeal period.               7The events  in Carr antedated  the adoption of  Rule 35(c).                               ____          See Carr, 932 F.2d at 71 n.5.          ___ ____                                          9          the sentencing order."  Carr, 932 F.2d at 72.  Hence,  the motion                                  ____          interrupted the  running  of  the  appeal period.    Id.;  accord                                                               ___   ______          Lefler,  880  F.2d at  235  (explaining  that,  "for  a  criminal          ______          defendant's  motion for reconsideration to extend the time within          which a notice of appeal must  be filed, it must be filed  within          the [original 10-day appeal period]").                    In precincts patrolled by Rule 35(c), however, the Carr                                                                       ____          formulation  is overgenerous.    The drafters  of  the rule  were          concerned lest  they pave  further  avenues of  delay within  the          criminal  justice system.    To assuage  this  concern, the  rule          states  that a court may act  thereunder "within 7 days after the          imposition of sentence."  Fed.  R. Crim. P. 35(c).   The interval          constitutes  a limitation, see  Fed. R.  Crim. P.  35(c) advisory                                     ___          committee's  note  (1991 amendment)  (discussing  the new  rule's          "stringent time requirement")    and the limitation  is absolute:          if no motion  is made within  the seven-day  period, none can  be          made thereafter; and, moreover, if a motion is timely made but is          not decided within the seven-day period, the judge's power to act          under  the rule subsides  and the pending motion  is deemed to be          denied as  of that date.   Judge Easterbrook neatly  captured the          essence of the  limitation:  "The district court's inaction ha[s]          the same effect as denying  the motion, making the judgment final          on  the date  the district  judge's power  to alter  the sentence          expired."  United  States v. Turner, 998 F.2d 534,  536 (7th Cir.                     ______________    ______          1993).                    We derive two valuable lessons  from the anatomy of the                                          10          rule:  (1) a motion under Rule 35(c) interrupts the appeal period          and  renders a  judgment nonfinal  only if  it is  brought within          seven  days following  the imposition  of sentence;  and  (2) the          appeal period  is  restarted when  the district  court decides  a          timeous Rule 35(c) motion or at the expiration of seven days next          following imposition of sentence, whichever first occurs.                    4.   Application.   In  this  case, the  district court                    4.   Application.                         ___________          pronounced sentence  on March  18 and  entered judgment  the next          day.8    Appellant filed  his  Rule  35(c)  motion on  March  23,          comfortably within the seven-day period.   The district court did          not  act immediately  upon  the  motion  and,  consequently,  the          pendency  of the  motion  rendered  the  judgment  nonfinal  only          through the end  of the seven-day period, when  the appeal period          restarted.  From that point forward, appellant had 10 days within          which to docket his appeal.  See Fed. R. App. P. 4(b).  By filing                                       ___          a  notice of appeal  on April 1,  1993, he met  the deadline with          room to spare.  Hence, the appeal is properly before us.9                                        ____________________               8For ease  in reference we  use March 19 as  the dispositive          date.   Withal, we  note that Rule 35(c)  purports to measure the          seven-day period from "the imposition  of sentence."  We think it          is likely that  when the two dates differ,  this phrase signifies          the date judgment enters, rather than the date sentence is orally          pronounced.  See  Zuleta-Molina, 840 F.2d at 158 n.1 (reiterating                       ___  _____________          that  "[t]he prescribed  period  for filing  a  notice of  appeal          begins at  the time  of entry  of the  judgment or  order on  the          criminal docket");  United States v. Cooper, 876  F.2d 1192, 1195                              _____________    ______          (5th Cir.  1989) (stating that an appeal's timeliness is measured          from the date  judgment is  entered on the  docket, not from  the          date of  order).  At  any rate,  the one-day differential  has no          material effect in this case.               9There   are   other   questions  that   might   affect  the          jurisdictional  calculus in  cases  of this  stripe    but  those          questions are  not presented  on this record.   For  instance, we                                          11                                         III.                                         III.                                         ____                                      The Merits                                      The Merits                                      __________                                          A.                                          A.                                          __                                    Drug Quantity                                    Drug Quantity                                    _____________                    Under the guidelines, drug quantity is "a key datum" in          the sentencing of narcotics offenders.  United States v. Bradley,                                                  _____________    _______          917  F.2d  601, 604  (1st  Cir.  1990).   Because  drug  quantity          profoundly affects sentence length, relatively small quantitative          differences  often have  a significant  leveraging  effect.   The          phenomenon grows  more pronounced as  amounts edge closer  to the          lines that have been drawn within the drug quantity  table.  This          case aptly illustrates the point.   The district court found that          the  heroin involved in  the offenses of  conviction weighed just          over  20 grams.   The  defense contends  that the  heroin weighed          19.75 grams.  This seemingly slight difference translates into an          increment of  two offense  levels.   See U.S.S.G.   2D1.1(c)(13),                                               ___          (14)  (Drug  Quantity Table)  (setting  BOL  of 18  for  offenses          involving  at  least 20  but less  than  40 grams  of  heroin and                                        ____________________          have no occasion to consider (i) whether a different result might          obtain if it could be shown that a movant brought a post-judgment          motion in  bad faith, see Ibarra,  112 S. Ct.  at 7 n.3;  or (ii)                                ___ ______          whether a  Rule 35(c) motion that  seeks to correct an  error but          not  to alter substantive rights possesses suspensory effect, cf.                                                                        ___          FCC  v.  League  of  Women  Voters,  468  U.S.  364,  373  (1984)          ___      _________________________          (emphasizing that suspension of the appeal period while a  motion          for  reconsideration  is  pending results  only  when  the motion          "actually seeks an alteration of  the rights adjudicated in the .          . . judgment")  (citation and internal quotation  marks omitted);          FTC v.  Minneapolis-Honeywell Co.,  344 U.S.  206, 211-12  (1952)          ___     _________________________          (similar); or  (iii) whether  the seven-day  period mentioned  in          Rule 35(c) should be counted under Fed. R. Crim. P. 45(a) or Fed.          R. App.  P. 26(a)    a choice that  will affect how  weekends and          holidays factor into the count.                                          12          setting  BOL of  16 for offenses  involving at least  10 but less          than 20 grams of heroin).   A two-level spread easily can produce          a difference of over a year in a standard sentence.10                    The  facts relating to  the dispute over  drug quantity          can  be  succinctly  summarized.    Defendant  was  charged  with          distributing heroin on three occasions:   February 7, 20, and 21,          1992.     Each  transaction  culminated  in  the  exchange  of  a          substantial number of "browns," individually packaged for street-          level sales.  Immediately following each transaction, the federal          Drug Enforcement Administration (DEA) estimated the weight of the          purveyed drugs by representative sampling, that is, by weighing a          few of  the "browns"  and multiplying the  average weight  by the          total  number of  packs contained  in the  consignment.   On this          basis, the  DEA reported that the first transaction involved 6.51          grams of heroin, the second transaction  involved 1.24 grams, and          the  final transaction involved 20.30 grams.  Appellant contested          only  the last  of  these  three assessments.    Pursuant to  the          district court's order,  the state toxicology laboratory  studied          the  heroin involved  in  the third  transaction,  using its  own          formula, and  estimated that it  weighed between 10.39  and 16.21          grams.  Of necessity, however,  this estimate did not include the          weight of the heroin previously extracted from the third batch by          the   DEA,  used   in  arriving   at  the  DEA's   drug  quantity          determination, and never replaced.                                        ____________________               10For example, in Morillo's criminal history category (III),          the spread between the high end of a Level 18 GSR (41 months) and          the low end of a Level 16 GSR (27 months) is 14 months.                                          13                    Faced with these competing  estimates, the judge  found          it probable  that the  third batch contained  at least  12 grams.          This total, when  augmented by the  weight of the drugs  from the          first  two transactions (6.51  and 1.24 grams,  respectively) and          the sample amount originally extracted from the third transaction          (0.41 grams), brought the drug quantity over 20 grams and the BOL          to 18.11                    The  government has the burden of proving drug quantity          by  a fair preponderance of  the evidence.   See United States v.                                                       ___ _____________          Sklar, 920 F.2d  107, 110 (1st Cir.  1990).  Absent a  mistake of          _____          law, we will set aside a sentencing court's determination of drug          quantity only if it is  clearly erroneous.  See United  States v.                                                      ___ ______________          Argencourt, 996 F.2d 1300, 1307 (1st Cir. 1993); United States v.          __________                                       _____________          McCarthy, 961 F.2d 972, 978 (1st Cir. 1992); Bradley, 917 F.2d at          ________                                     _______          605.  In other  words, as a precondition to relief  on appeal, an          appellant  must  convince us  that  the  district  court made  "a          serious mistake" in  figuring drug quantity.  Sklar,  920 F.2d at                                                        _____          111.                    We discern  no error  here.  When  it is  impossible or          impractical  to  obtain  an exact  drug  quantity  for sentencing          purposes, a reasoned estimate will  suffice.  See Sklar, 920 F.2d                                                        ___ _____          at 113;  United States v.  Hilton, 894  F.2d 485,  488 (1st  Cir.                   _____________     ______                                        ____________________               11Appellant's post-judgment  motion claimed  clear error  on          the theory  that the judge  intended to aggregate only  the first          three of the quantities mentioned in the text.  In  rejecting the          Rule 35(c) motion,  however, Judge Lagueux made it  clear that he          also  intended  to  include  the sample  amount  from  the  final          transaction.                                          14          1990);  United States  v. Gerante,  891 F.2d  364, 369  (1st Cir.                  _____________     _______          1989).    The  court  below  achieved  this  benchmark, taking  a          conservative approach to  the disputed third transaction.   Given          the  divergent laboratory estimates  ranging from a  low of 10.39          grams to a high of 20.3 grams, the court's decision that a figure          toward the low end of the continuum represented the most probable          weight  cannot be  faulted.   Cf., e.g.,  United States  v. 22.80                                        ___  ____   _____________     _____          Acres of  Land, 839  F.2d 1362, 1365  (9th Cir.  1988) (stressing          ______________          district  court's flexibility  in determining  value of  property          where testimony of  six expert witnesses indicated  wide range of          values).  Where,  as here, the evidence fully  supports more than          one inference, a  sentencing court's choice from  among plausible          alternatives cannot be clearly erroneous.  See  Bradley, 917 F.2d                                                     ___  _______          at 606; United States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990).                  _____________    ____                                          B.                                          B.                                          __                             Acceptance of Responsibility                             Acceptance of Responsibility                             ____________________________                    The district  court found  that appellant  had accepted          responsibility  for his criminality and trimmed his offense level          by  two  levels on  that  account,  see U.S.S.G.   3E1.1(a),  but                                              ___          refused  to grant an  additional one-level credit  under U.S.S.G.           3E1.1(b).12   Appellant assigns error  to this refusal, eyeing a                                        ____________________               12The applicable guideline reads:                    (a)  If  the defendant  clearly  demonstrates                    acceptance 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                                          15          further reduction pursuant to section 3E1.1(b)(2).                    A  defendant bears the burden of proving entitlement to          decreases in  the offense  level, including  downward adjustments          for  acceptance of responsibility.   See, e.g.,  United States v.                                               ___  ____   _____________          Ocasio-Rivera,  991  F.2d  1,  4  (1st  Cir.  1993).    Once  the          _____________          sentencing  court has  ruled against  him on  such an  issue, the          defendant  faces an uphill battle.  We  have held, in the context          of  what is  now section  3E1.1(a), that  "[w]hether a  defendant          `clearly demonstrates a recognition and affirmative acceptance of          personal  responsibility'  is  a fact-dominated  issue,  and  the          district court's decision to withhold a reduction in  the offense          level  will not be overturned  unless clearly erroneous."  United                                                                     ______          States  v. Royer,  895  F.2d  28, 29  (1st  Cir. 1990)  (citation          ______     _____          omitted).  The  clearly erroneous standard also  guides appellate          review of district court  determinations under section  3E1.1(b).          See  United States  v. Donovan,  996  F.2d 1343,  1346 (1st  Cir.          ___  _____________     _______          1993); see also U.S.S.G.  3E1.1 comment. (n.5).                 ___ ____                                        ____________________                    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                         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,                     decrease  the offense  level by  1 additional                    level.          U.S.S.G.  3E1.1.                                          16                    We   find  no  clear  error  in  the  district  court's          determination  that appellant  failed to  qualify  for the  added          discount under section  3E1.1(b)(2).  Appellant was  arraigned on          October 20, 1992.  He pleaded  not guilty.  Several weeks  later,          in his November  30 motion for the appointment  of an independent          toxicologist,  appellant indicated that he was "prepared to plead          guilty  to the three charges . . .  but for the dispute as to the          weight" of the drugs.  In our view,  notification of an intention          to enter a guilty plea, subject to  a major condition, is far too          problematic to  meet the standard  of section 3E1.1(b)(2).   That          provision  was designed to allow the  government and the district          court  to  conserve  resources  by  avoiding   unnecessary  trial          preparation.  See, e.g., United States v. Lombardi, ___ F.3d ___,                        ___  ____  _____________    ________          ___ (1st Cir. 1993) [No. 92-2450, slip op. at 11].  A conditional          offer to plead  does not serve this end; until the contingency is          removed, the  prosecution must  still prepare for  trial and  the          court must still reserve calendar time.  Thus, the district judge          did not  err in  refusing to  treat the  November 30  offer as  a          "notification" within the purview of section 3E1.1(b)(2).                    There is little more that  need be said.  Appellant did          not plead unconditionally until December 10, 1992   the very date          that  the court  had  set for  jury selection.   A  defendant who          withholds a  guilty plea until he  stands poised on  the brink of          trial  has  no entitlement  to  the soothing  unguent  of section          3E1.1(b)(2).  Therefore,  the court below acted  appropriately in          awarding  appellant  a  two-level,  rather  than  a  three-level,                                          17          decrease for acceptance of responsibility.                                          C.                                          C.                                          __                                 Role in the Offense                                 Role in the Offense                                 ___________________                    Finally, appellant claims that the district court erred          in its determination of  his role in the criminal activity.   See                                                                        ___          U.S.S.G.  3B1.1(c)  (providing a two-level  increase for assuming          managerial  responsibilities  in   certain  criminal  endeavors).          Boosting a defendant's BOL by  two levels under this provision is          justified  if the sentencing court determines that the offense(s)          of  conviction involved  at least  two  participants,13 and  that          the defendant  exercised control  over one of  them.   See United                                                                 ___ ______          States  v. Akitoye,  923 F.2d  221, 227  (1st Cir.  1991); United          ______     _______                                         ______          States  v. Fuller,  897 F.2d  1217, 1220  (1st Cir.  1990).   The          ______     ______          government must bear  the burden of proving that  an upward role-          in-the-offense adjustment is warranted.                    In  this case,  it is  undisputed  that at  least three          people  participated in the felonious enterprise:  appellant, his          supplier  (Faustino Moronta, Jr.), and a courier, Oscar Severino.          On at  least one occasion,  appellant paged Severino  via beeper,          and  Severino   responded  to  appellant's   apartment  with  the          merchandise    heroin apparently  originating with Moronta.   The          presentence  investigation  report  (PSI  Report)  asserted  that          Severino  worked  for   and  under  the  direction   of  Morillo.                                        ____________________               13The  defendant himself may  be counted in  determining the          overall  number of participants.   See United  States v. Preakos,                                             ___ ______________    _______          907  F.2d  7, 10  (1st  Cir. 1990)  (per  curiam).   But  he must          exercise control over  at least one other  participant to warrant          an upward adjustment.                                          18          Appellant filed written objections to  several aspects of the PSI          Report, but  he did  not object  to this  determination.   At the          sentencing hearing, appellant's attorney  argued briefly that his          client  was only a  middleman in the  criminal transaction; while          conceding that Severino brought the drugs to the desired locus at          appellant's  behest,  counsel  claimed that  Severino  did  so as          Moronta's  agent     and that  Morillo  exercised  no independent          control  over  him.    Yet,  appellant  offered  no  evidence  to          contradict  the assertion  contained  in  the  PSI Report.    Not          surprisingly,  then, the  district court  accepted the  probation          officer's version of the chain of command.                    Facts contained in a presentence report  ordinarily are          considered reliable evidence for sentencing purposes.  See United                                                                 ___ ______          States  v. Zuleta-Alvarez,  922 F.2d  33, 35-36 (1st  Cir. 1990),          ______     ______________          cert.  denied, 111  S. Ct.  2039 (1991);  Ruiz, 905 F.2d  at 508;          _____  ______                             ____          United States v. Rivera Ramos, 856 F.2d 420, 424 (1st Cir. 1988),          _____________    ____________          cert.  denied, 493  U.S. 837  (1989); see  also United  States v.          _____  ______                         ___  ____ ______________          Tardiff,  969  F.2d  1283,  1287  (1st  Cir.  1992)  (ruling that          _______          district  courts possess "broad discretion to determine what data          is, or  is not,  sufficiently dependable to  be used  in imposing          sentence"); United States  v. Iguaran-Palmar, 926 F.2d 7, 10 (1st                      _____________     ______________          Cir.  1991)  (similar).   We  lack  adequate  reason to  make  an          exception to  that rule  for appellant's sake.   A  defendant who          accepts   the   probation  department's   configuration   of  the          sentencing record without  contesting the facts set forth  in the          PSI Report can scarcely be  heard to complain when the sentencing                                          19          court uses those facts in making its findings.  See, e.g., United                                                          ___  ____  ______          States v. Montoya,  967 F.2d 1, 3 (1st Cir.)  (ruling that, where          ______    _______          the defendant offered  no information to suggest an inaccuracy in          the  PSI Report's drug quantity computation, the sentencing court          could  rely on  the computation),  cert. denied,  113 S.  Ct. 507                                             _____ ______          (1992); United States v. Garcia, 954 F.2d 12, 19 (1st Cir.  1992)                  _____________    ______          (holding that  the sentencing  court lawfully relied  on the  PSI          Report  when appellant  couched  his  objections  exclusively  as          interpretations  of  facts  rather  than  as  challenges  to  the          underlying facts themselves); United States v. Mir, 919 F.2d 940,                                        _____________    ___          943 (5th Cir.  1990) (explaining that the district  court is free          to adopt  facts  contained  in the  PSI  Report  without  further          inquiry where defendant  objects to the PSI Report  but offers no          rebuttal  evidence); Ruiz,  905  F.2d  at  508  (holding  that  a                               ____          sentencing court may rely on determinations  contained in the PSI          Report where defendant adduces no countervailing evidence).                    We need go  no further.  Mindful  that appellate review          of  role-in-the-offense  determinations  is   conducted  under  a          deferential  "clear error" standard, see United States v. Savoie,                                               ___ _____________    ______          985 F.2d 612, 615 (1st Cir.  1993); Akitoye, 923 F.2d at 227,  we                                              _______          cannot  fault  the district  court,  in the  absence  of contrary          evidence, for  adopting the organizational structure suggested in          the  PSI Report  and finding that  Morillo, who was  able to page          Severino and have  him deliver drugs  on demand, exercised  "some          degree  of  control or  organizational authority"  over Severino.          Fuller, 897 F.2d at 1220.          ______                                          20          Affirmed.          Affirmed.          ________                                          21
