 

             United States Court of Appeals
                        For the First Circuit


    No. 13-1899 

                       UNITED STATES OF AMERICA,

                               Appellee,

                                   v.

                          WILFREDO MELENDEZ,

                         Defendant, Appellant.
                          ___________________

             APPEAL FROM THE UNITED STATES DISTRICT COURT

                   FOR THE DISTRICT OF MASSACHUSETTS

            [Hon. Douglas P. Woodlock, U.S. District Judge]
                         ___________________

                                 Before

                           Lynch, Chief Judge,
                   Ripple* and Selya, Circuit Judges.
                         ___________________

     Mark E. Howard for appellant.
     Kelly Begg Lawrence, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.
                       ___________________

                                                 
      * Of the Seventh Circuit, sitting by designation.




     
 
         December 22, 2014
        ___________________




                 ‐2‐
     
 
              RIPPLE, Circuit Judge.              Wilfredo Melendez was charged

with conspiracy to distribute cocaine, in violation of 21 U.S.C.

§§ 841(a)(1) and 846, and possession of a firearm in furtherance

of a drug offense, in violation of 18 U.S.C. § 924(c)(1)(A).

Mr. Melendez pleaded not guilty, and the case was tried to a

jury.    During its deliberations, the jury posed two questions to

the district court, which the court answered after consulting

with    the   parties.       The    jury    found      Mr.    Melendez      guilty   of

conspiracy to distribute five kilograms or more of cocaine, but

not guilty of possession of a firearm in furtherance of a drug

trafficking crime.         The district court sentenced Mr. Melendez to

144 months’ imprisonment, a sentence below that suggested by the

United States Sentencing Guidelines.                 Mr. Melendez now appeals;

he contends that the district court’s responses to the jury’s

questions, as well as its determinations during sentencing, were

erroneous.      For the reasons set forth in this opinion, we now

affirm the judgment of the district court.

                                           I.

                                    BACKGROUND

              Mr.   Melendez’s      arrest         followed       a    reverse    sting

operation      conducted    by     the     Drug     Enforcement         Administration

(“DEA”).        Agents     posed    as     members      of    a       Colombian   drug-


                                            ‐3‐
     
 
trafficking         organization.         One        of     the     undercover       agents

contacted      Rafael      Guzman,      the    target        of    the     investigation.

Guzman expressed an interest in buying kilogram quantities of

cocaine, and the agent agreed to sell him five kilograms.                               The

terms    of   their     bargain    were       that    Guzman      would     receive   five

kilograms of cocaine; he would pay for three kilograms at the

time of the exchange and for the remaining two kilograms two

weeks later.

              Mr.    Melendez     had   approached          Guzman    in    search    of    a

cocaine supplier and, although he was not involved in any of the

communications between Guzman and the DEA, agreed to supply the

money to purchase the cocaine from the undercover agent.                                   He

planned to distribute the cocaine after the deal.

              The    DEA   was    unaware      of     Mr.    Melendez’s       involvement

until the day of the sting operation.                     Before meeting Guzman for

the transfer of money and drugs, the undercover agent called him

and asked if he was alone.                Guzman responded that someone was

with him.      Thereafter, Guzman arrived with Mr. Melendez.                         Guzman

and     the   undercover      agent      got        out     of    their    vehicles    and

conversed.      Guzman indicated that Mr. Melendez was working with

him in the drug deal and that he was providing the money to

purchase the cocaine.             Because Guzman secretly was profiting


                                              ‐4‐
   
 
from       the     deal,    he    asked     the    undercover          agent       not   to   tell

Mr. Melendez the actual price of the cocaine.1

                 The undercover agent and Guzman then entered Guzman’s

car, where Mr. Melendez already was seated.                             The agent confirmed

that he would deliver “five for the three.                                  You owe me two.”2

Mr. Melendez asked to “check [the cocaine] out” and inquired of

the        undercover       agent        whether     he    and     his       drug-trafficking

organization          typically      conducted           their    drug      deals    in   public

parking lots.3             The agent, pretending to call the man who would

deliver the cocaine, signaled nearby law enforcement agents to

arrest       the    men.         Those    agents     converged         on    the    vehicle   and

arrested         Guzman     and     Mr.     Melendez.            The    agents      seized    two

firearms         from   the      center     front        console       of   the    vehicle     and

approximately $92,000 in cash, wrapped in rubber bands, from a

laptop bag.

                 The Government subsequently charged Mr. Melendez with

conspiring to distribute over five kilograms of cocaine and with


                                                 
          1             In order to profit from the transaction, Guzman had
told Mr. Melendez that the price per kilogram of cocaine was
$31,000, even though the planned purchase price was $28,000 per
kilogram.
       2         R.176 at 83.
       3         Id. at 83-84.


                                                   ‐5‐
   
 
possession of a firearm in furtherance of a drug offense.                         The

jury returned a verdict of guilty on the drug offense and of not

guilty of the firearm offense.                After sentencing, Mr. Melendez

timely filed a notice of appeal.4

                                         II.

                                   DISCUSSION

             Mr.   Melendez    claims     that    the   district      court   issued

faulty     jury    instructions,       focusing    on    the   district       court’s

response     to    two     questions    posed     by    the    jury    during     its

deliberations.       He also submits that the district court erred by

sentencing him without making an individualized finding of the

drug weight attributable to him.                Finally, he contends that the

district court abused its discretion by refusing to grant him a

two-level reduction for acceptance of responsibility.

                                         A.

             We    first     examine      whether       the    district       court’s

instructions, including those provided in response to the jury’s

questions during its deliberations, were erroneous.                       About two

hours into its deliberations, the jury sent the court a note


                                                 
          4             The district court had jurisdiction under 18 U.S.C.
§ 3231.                We have jurisdiction under 18 U.S.C. § 3742(a) and 28
U.S.C. § 1291.


                                          ‐6‐
   
 
asking, “If a conspiracy exists, if only one conspirator knew of

the entire amount of the deal, are both parties responsible for

the entire amount as, from verdict sheet, 1B states ‘distributed

by the conspirators’ (plural).”5                             After some discussion, counsel

for Mr. Melendez suggested as a response:

                     No.   Both conspirators must be in agreement
                     to distribute the five together.    If there
                     was a separate agreement or scheme to
                     distribute to other unindicted known and
                     unknown co-conspirators, then the defendant
                     is only responsible for that amount for
                     which he was going to distribute separately
                     as well as Mr. Guzman.[6]

                     The        court           rejected   this   approach   as   well   as   the

Government’s formulation.7                            Instead, it decided on the following

response:               “The conspirators must agree as to the object of the

conspiracy.                   In Question 1B this means that the conspirators

must agree upon the amount of the drugs that will be distributed



                                                 
          5             R.178 at 70. 
         6           Id. at 73-74.
         7 The Government suggested that the court instruct the
jury:    “If the jury were to find the defendant guilty of
conspiring to distribute cocaine, the jury must unanimously
agree on the weight of the cocaine that was the subject of the
conspiracy involving the defendant, or, as an alternative, if
the conspiracy exists, the jury must unanimously agree on the
weight of cocaine that the conspirators intended to distribute.”
Id. at 73.


                                                           ‐7‐
      
 
by members of the conspiracy.”8                                   The court denied Mr. Melendez’s

request              that          the         instruction      reference          both    unindicted     and

unknown coconspirators.                                 The instruction was then delivered to

the jury.

                        Approximately four hours later, the court convened the

parties to discuss a second question from the jury.                                                  The jury

asked, “Must we be unanimous on all three count decisions?”9                                              The

district court recognized that “the answer, of course, is yes,

but it has a nuance to it, and the nuance is whether or not I

give them the [Allen v. United States, 164 U.S. 492 (1896)]

charge of some sort.”10                                 The Government stated that it did not

believe                an         Allen             charge    was     necessary       at      that     point.

Mr. Melendez                      was          in     agreement       that    an     Allen     charge     was

inappropriate                       because           there    had     only    been       a   half-day     of

deliberations.                           The court stated that it would respond, “You

should make every effort to be unanimous, to reach a unanimous

verdict on all counts.”11                                In addition, after a discussion with

the parties, it was agreed that the court would ask the jurors

                                                 
          8             Id. at 74.
          9             Id. at 75.
          10            Id. at 75-76.
          11            Id. at 76.


                                                                ‐8‐
       
 
if they would like dinner ordered for them.                                              The court then

reiterated its response to the jury’s second question, and it

was taken to the jury.

                        Forty-two                   minutes   later,      the   jury   returned    with   a

verdict.                 After the jury returned to the courtroom, the court

asked, “Mr. Foreperson, I understand the jury has a unanimous

verdict; is that correct?”12                                    The foreperson answered, “Yes.”13

The court clerk read the verdict from the jury’s verdict slip.

The jury found Mr. Melendez guilty of conspiracy to distribute

five or more kilograms of cocaine and not guilty of possession

of        a     firearm               in       furtherance          of    a   drug   trafficking      crime.

Mr. Melendez did not ask to poll the jury.                                           The court proceeded

to set a date for sentencing.

                       Mr.         Melendez            did    not    object     to   either   supplemental

instruction at trial, and we therefore review for plain error.

See United States v. Delgado-Marrero, 744 F.3d 167, 184 (1st

Cir.           2014).               For         a     defendant      to   prevail     under   plain   error

review, he must show “that an error occurred,” “that the error

was clear or obvious,” that it affected his substantial rights,

and that it seriously impaired the “fairness or integrity” of
                                                 
          12            Id. at 78.
          13            Id.


                                                                    ‐9‐
       
 
the proceedings.                             Id.     In evaluating the instructions given to

the jury, “we must examine the jury charge as a whole in order

to determine whether the district judge clearly conveyed the

relevant legal principles,” “mindful that ‘the district court

has considerable discretion in how it formulates, structures,

and words its jury instructions.’”                                  United States v. Gonzalez,

570        F.3d          16,        21        (1st   Cir.   2009)   (quoting   United   States   v.

Prigmore, 243 F.3d 1, 17 (1st Cir. 2001)).

                                                            1.

                        Mr. Melendez claims that the district court failed to

properly instruct the jury that it must reach a verdict beyond a

reasonable doubt.                             He bases this claim primarily on the district

court’s response to the jury’s first question:                                  “If a conspiracy

exists, if only one conspirator knew of the entire amount of the

deal, are both parties responsible for the entire amount as,

from             verdict                  sheet,       1B    states    ‘distributed      by      the

conspirators.’”14

                        Mr. Melendez faults the district court’s answer that

“the conspirators must agree upon the amount of the drugs that

will be distributed by the members of the conspiracy” for not


                                                 
          14            Id. at 70.


                                                             ‐10‐
       
 
mentioning the beyond-a-reasonable-doubt standard.15                                        He contends

that without clear and precise instructions on the issue of drug

weight, we cannot be confident of the integrity of the jury’s

verdict.

                        Any fact that triggers a mandatory minimum sentence is

an element of the offense that must be submitted to the jury and

proved beyond a reasonable doubt.                                      See Alleyne v. United States,

133 S. Ct. 2151, 2155, 2160-61 (2013).                                            Because drug weight

determines                   the          mandatory         minimum      sentence,    see   21    U.S.C.

§ 841(b)(1)(A), it is an element of the aggravated crime that

must be determined by the jury beyond a reasonable doubt, see

Delgado-Marrero, 744 F.3d at 186.

                        We cannot accept Mr. Melendez’s contention that the

instruction                     as        given          diluted   the     beyond-a-reasonable-doubt

standard.                   Jury instructions must be read and evaluated as a

whole.               See Gonzalez, 570 F.3d at 21.                             Here, when the jury

instructions are viewed in this manner, it is clear that they

conveyed to the jury that it must find drug weight beyond a

reasonable                   doubt.                 At    the   beginning    of    trial,   the   court

instructed the jury that “part of the case that the Government


                                                 
          15            Id. at 75.


                                                                ‐11‐
       
 
must prove beyond a reasonable doubt is the amount of drugs

involved.”16     Later,   before   the   jury   began   deliberating,   the

district court instructed the jury that the Government had to

prove the agreement and the object of the agreement beyond a

reasonable doubt.     The court then stated that “the object of the

conspiracy that is alleged in the indictment is to distribute at

least five kilograms of cocaine.”17         The court went on to explain


                                                 
          16            R.176 at 19. Before the parties’ opening statements,
the court also explained that “[i]t [was] the Government’s
responsibility to show [the jury] that it all fits together in
the way in which they say it fits together beyond a reasonable
doubt.” Id. at 7.
      17   R.178 at 53. After closing arguments, the court gave
an instruction regarding the beyond-a-reasonable-doubt standard
and reminded the jury that “the burden is on the Government to
prove beyond a reasonable doubt that a defendant is guilty of
the charge, and here two charges, made against him and, in
addition, a question of the amount of the drugs that the
conspirators had in mind.”      Id. at 40.   The court clarified
that, in order for the jury to find Mr. Melendez guilty of
conspiracy, “[t]he Government has to prove beyond a reasonable
doubt two basic things.”     Id. at 51.   First, it must show an
agreement:    “[T]he Government has to prove beyond a reasonable
doubt . . . that they shared a general understanding with
respect to the crime.”     Id. at 52.   The court explained that
“the object of the conspiracy that is alleged in the indictment
is to distribute at least five kilograms of cocaine.”     Id. at
53. The court instructed the jury that it would have to resolve
what the defendants had contemplated and agreed to with respect
to the amount of drugs to be distributed.     See id. at 54.  In
other words, the jury would have to find that the conspirators
had “a shared understanding, an agreement that it [was] going to
be five kilograms of cocaine” or the Government would not have
satisfied its burden. Id. Second, the Government had to prove
    
                                     ‐12‐
   
 
that           the       jury          would           have          to       determine                 how         much          cocaine              it

believed was the object of the conspiracy.18

                        Contrary to Mr. Melendez’s suggestion, the jury also

made an individualized drug-weight finding beyond a reasonable

doubt.               Mr. Melendez was charged as a member of a two-person

conspiracy and is therefore responsible for the entire amount of

contraband.                     Our decision in United States v. Paladin, 748 F.3d

438        (1st          Cir.          2014),            squarely                forecloses                  his         argument.                     In

Paladin, the defendant argued that the district court should

have           submitted                “to         the         jury           the         question                of       whether               [the

defendant] was individually responsible for the charged quantity

of cocaine (five kilograms or more).”                                                         Id. at 452.                     In rejecting

this           argument,                we       concluded                 that          the         defendant’s                   submission
                                                                                                                                                             
that Mr. Melendez willfully joined the agreement.                                                                                 See id. at
51.
          18
          Following the instructions, the court asked the
parties if they had any objections.    Mr. Melendez objected on
grounds that are not raised on appeal.       Following a brief
recess, the court instructed the jury that the “verdict has to
be unanimous.”    Id. at 64.    In explaining the deliberation
process, the court noted that the verdict would be returned on
the verdict slip, which must “be signed by the foreperson
indicating the verdict is unanimous with respect to the several
questions that are being asked.”    Id. at 67.   The court also
explained that the verdict must be one “that each one of you
individually is satisfied with.” Id. At the conclusion of its
instructions, the court again asked the parties if they had
“anything further.”  Id. at 68.   Both parties responded in the
negative. See id. at 69.


                                                                             ‐13‐
       
 
“overlook[ed]                      the         nature   of   the    charged   conspiracy.”    Id.

Because the charged five-kilogram weight was based solely on the

conspiratorial dealings of the two men, the district court did

not have to instruct the jury to make individualized findings

distinct from the conspiracy.                                 See id.      We specifically noted

that, in a conspiracy involving more than two conspirators, the

individualized determination that Mr. Melendez here seeks would

be necessary.                         See id.; see also United States v. Colón-Solís,

354 F.3d 101, 103 (1st Cir. 2004).                                  Here, the charged conspiracy

was based on the agreement between Mr. Melendez and Guzman, and

both were responsible for the amount they agreed to distribute.

When the jury found that the “amount of cocaine intended to be

distributed by the conspirators” was “5 kilograms or more,”19 it

therefore                  necessarily              found    that    the   five   kilograms   were

attributable to Mr. Melendez.                                 See Paladin, 748 F.3d at 452.

Delgado-Marrero, on which Mr. Melendez relies, is not to the

contrary, since the jury here was instructed properly.                                    See 744

F.3d at 186-87.

                        Here, the situation is substantially different.                       The

district court did instruct the jury, both before and after the


                                                 
          19            Id. at 78.


                                                             ‐14‐
       
 
parties              presented                their      cases,    that   the    drug   weight     was    an

element of the crime charged and that it was the object of the

conspiracy that the Government had to prove.                                       The district court

clearly told the jury that it had to find the drug weight beyond

a reasonable doubt.                                 There is no indication that the jurors

failed to understand that drug weight was an element of the

offense that the Government had to prove beyond a reasonable

doubt.

                                                              2.
                        
                       Mr.         Melendez           also   submits      that   the    district    court

erroneously suggested that the verdict need not be unanimous

when it responded to the jury’s second question:                                           “Must we be

unanimous on all three count decisions?”20                                         The district court

answered that the jury “should make every effort to reach a

unanimous decision regarding each of the questions put to you on

the verdict slip.”21                                In Mr. Melendez’s view, this instruction

contains the obvious implication that unanimity is aspirational,

but        not        essential.                    We   cannot    accept   this    contention.          The

supplemental instruction was neither incorrect nor misleading.


                                                 
          20            Id. at 75.
         21            Id. at 77.


                                                              ‐15‐
      
 
             As a general principle, “a jury in a federal criminal

case     cannot     convict       unless    it     unanimously      finds    that     the

Government        has    proved    each    element.”          Richardson    v.     United

States, 526 U.S. 813, 817 (1999).                     In one limited sense, of

course, a unanimous verdict is aspirational in every trial prior

to verdict.        Unanimity, while possible and certainly desirable,

is not the inevitable consequence of convening a jury.                           See Fed.

R. Crim. P. 31(b)(3) (allowing for mistrials and retrials).                           The

district court’s use of the word “should,” therefore, does not

make the court’s supplemental instruction incorrect.                        There was,

moreover, no indication here that a jury was deadlocked.                            Under

these     circumstances,          instructing       the   jury     that     it     should

continue deliberating does not warrant reversal.                            See United

States v. Figueroa-Encarnación, 343 F.3d 23, 31-32 (1st Cir.

2003) (noting that an “instruction to continue deliberating did

not     contain    the    coercive    elements       of   a    garden-variety       Allen

charge, but was merely intended to prod the jury into continuing

the     effort     to     reach    some    unanimous          resolution”    (footnote

omitted)).22

                                                 
          22            Even if the jury were deadlocked, the district court’s
instruction would not be in error. Instructing the jury that it
was not required to reach a unanimous verdict is a cornerstone
of an Allen charge.                               It alleviates the coercive effect of an
       
                                            ‐16‐
     
 
                        We      already              have          noted           that          the         district               court,             on

multiple occasions, instructed the jury that its verdict must be

unanimous.23                     Certainly, there is no evidence that the verdict

was        anything                other            than           unanimous.                       See         United             States              v.

Lemmerer, 277 F.3d 579, 592 (1st Cir. 2002) (finding no error

for        the         district                court’s              failure              to       excuse             a      “recalcitrant

juror” in the absence of evidence that the jury’s verdict was

not unanimous).                           Upon returning to the courtroom to deliver its

verdict, the court asked the jury foreperson, “I understand the
                                                                                                                                                             
instruction that encourages the jury to break a deadlock by
reconsidering their positions and continuing to deliberate. See
United States v. Manning, 79 F.3d 212, 223 (1st Cir. 1996)
(holding that the response of the district court “not only
failed to discourage the notion that the jury was bound to
continue to deliberate indefinitely, it suggested the opposite,
i.e., that the jury is required to do so”).
          23
          See supra note 18.        Courts have upheld similar
instructions encouraging a jury to continue to deliberate to
reach a unanimous verdict.    See United States v. McDonald, 759
F.3d 220, 223-25 (2d Cir. 2014) (upholding supplemental
instruction that jury was “to continue to deliberate to see
whether you can reach a unanimous verdict, in light of all the
instructions that I have given you”); United States v. Davis,
154 F.3d 772, 783 (8th Cir. 1998) (“However, [t]he mere fact
. . . that an instruction could conceivably permit a jury to
reach a non-unanimous verdict is not sufficient to require
reversal when the jury has been instructed that it must reach a
unanimous   verdict.”   (alterations   in   original)  (internal
quotation marks omitted)); United States v. Solomon, 565 F.2d
364, 365-66 (5th Cir. 1978) (per curiam) (upholding instruction,
“Please try to reach a unanimous verdict as to all counts.
Please continue your deliberations for a while longer to see if
you can reach a unanimous verdict as to all counts”).


                                                                             ‐17‐
       
 
jury has a unanimous verdict; is that correct?”24                                   The foreperson

replied, “Yes.”25                         After the verdict was read, the clerk asked,

“So say you Mr. Foreperson, and so say you all, members of the

jury?”26            The jury responded affirmatively.

                      In       sum,          we     believe     that   the   jury    instructions,

assessed in their totality, correctly guided the jury in its

determination.

                                                          B.




                                                 
          24            R.178 at 78.
         25           Id.
         26
          Id. We note that, in addition to failing to object to
the jury instruction, Mr. Melendez did not ask that the jury be
polled after it returned its verdict. If Mr. Melendez believed
that the jury verdict was not unanimous, “he should have
exercised his right to poll the jury individually before the
verdict was recorded, so that ‘any doubts whatever about the
state of the jurors’ minds could have been cleared up and
appropriate action taken before the jury was dismissed.’”
United States v. Lemmerer, 277 F.3d 579, 593 (1st Cir. 2002)
(quoting United States v. Luciano, 734 F.2d 68, 70 n.1 (1st Cir.
1984)).   The rule exists so “‘the court and the parties [can]
ascertain with certainty that a unanimous verdict has in fact
been reached and that no juror has been coerced or induced to
agree to a verdict to which he has not fully assented.’”     Id.
(quoting Miranda v. United States, 255 F.2d 9, 17 (1st Cir.
1958)). Having failed to request that the court poll the jury,
Mr. Melendez cannot use the supplemental instruction to question
the unanimity of the verdict.       The district court did not
plainly err by encouraging, but not requiring, that the jury
deliberate until it reached a unanimous verdict.


                                                              ‐18‐
      
 
             We turn now to Mr. Melendez’s contentions about his

sentence.     After the Presentence Report (“PSR”) was submitted to

the court, Mr. Melendez filed an objection seeking a two-level

reduction for acceptance of responsibility and the elimination

of the two-level enhancement for possession of a firearm during

the commission of the offense.         Mr. Melendez also requested that

the court impose a below-guidelines sentence due to mitigating

circumstances.

             At the outset of the sentencing hearing, the court

asked the parties if they thought there was an Alleyne issue.27

Mr. Melendez’s counsel responded that Alleyne was not a problem

because “[t]he factual issue of weight was brought for the jury

to determine, and the jury heard the evidence concerning that.”28

The court rejected Mr. Melendez’s objections to the PSR, finding

that Mr. Melendez did not accept responsibility for the crime

because “[h]e chose to contest it, and he was contesting the




                                                 
          27            As noted earlier, Alleyne v. United States, 133 S. Ct.
2151 (2013), provides that any fact that triggers a mandatory
minimum sentence is an element of the offense that must be
submitted to the jury and proved beyond a reasonable doubt. See
id. at 2155.
        28   R.179 at 5.


                                      ‐19‐
     
 
core           of        the          case,         a     significant       amount     of    drugs    being

trafficked.”29

                        The court determined Mr. Melendez’s offense level to

be thirty-four, which yielded a guidelines range of 151 to 188

months’ imprisonment.                               The district court nevertheless sentenced

Mr. Melendez to 144 months’ imprisonment, followed by five years

of supervised release.                                   Among the mitigating factors noted by

the         court            was         “Mr. Melendez’s               parsing   of    the   drug    weight

involved.”30                    The court noted that Mr. Melendez’s willingness to

admit           to       the        three-kilogram            charge       “is   a    reflection     of   the

discount from the Guidelines that I am imposing here, a modest

one, but one nevertheless.”31

                                                                  1.

                        Mr. Melendez first submits that the jury should have

made an individualized drug determination with respect to him.

We review de novo this issue.                                          See United States v. Cintrón-

Echautegui, 604 F.3d 1, 5 (1st Cir. 2010).

                        Mr.        Melendez             submits    that    because     the   jury    made   a

determination as to the whole conspiracy rather than as to him

                                                 
          29            Id. at 7.
          30            Id. at 25.
          31            Id. at 26.


                                                                  ‐20‐
       
 
individually, the district court was unable, under the Supreme

Court’s holding in Alleyne, to make an individualized finding as

to whether he was responsible for sufficient drugs to justify a

mandatory minimum sentence.32                   Mr. Melendez also submits that the

court should have directed the jury to make a finding as to the

drug weight specifically attributable to him.

             To the degree that Mr. Melendez relies on Alleyne,

this argument is waived.                  Mr. Melendez expressly disclaimed any

Alleyne error at sentencing.                      In any event, the argument is

without     merit.         As       we   have    explained,   because    Mr.    Melendez

participated in a two-person conspiracy, the jury necessarily

made   an    individualized              drug-weight    determination.         That    is

sufficient to support the district court’s sentencing decision.

See United States v. Acosta-Colón, 741 F.3d 179, 192 (1st Cir.

2013).

                                                  2.

             Mr. Melendez submits that the district court erred in

not    granting      him        a    two-level      reduction   for     acceptance     of

responsibility.        We uphold a district court’s decision to deny

this reduction unless the decision is clearly erroneous.                              See

                                                 
          32            Mr. Melendez was subject to a ten-year                 mandatory
minimum sentence under 21 U.S.C. § 841(b)(1)(A).


                                                 ‐21‐
   
 
United States v. Garrasteguy, 559 F.3d 34, 38 (1st Cir. 2009);

United States v. Baltas, 236 F.3d 27, 37 (1st Cir. 2001).

             Section 3E1.1(a) of the Sentencing Guidelines provides

that a district court may reduce a defendant’s offense level by

two levels if the defendant “clearly demonstrates acceptance of

responsibility         for    his    offense.”          “To   prove       acceptance      of

responsibility, a defendant must truthfully admit or not falsely

deny   the     conduct       comprising      the     conviction,     as    well     as   any

additional       relevant      conduct       for     which    he    is    accountable.”

Garrasteguy, 559 F.3d at 38.                 The burden is on the defendant to

establish his eligibility for a decrease in the offense level.

See id.      If a defendant proceeds to trial, he greatly diminishes

his    chances    of     receiving      a    reduction;       “proceeding      to    trial

creates a rebuttable presumption that no credit is available.”

See id. at 38-39.

             In support of his contention that he should have been

awarded      a    reduction          for     acceptance        of        responsibility,

Mr. Melendez      submits       that    he    acknowledged         his    guilt     in   his

motion    to     dismiss       the     original       indictment,        in   his    trial

memorandum, and in his repeated assertion of that position “at




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every turn during the trial.”33                        He acknowledges that he disputed

the drug weight, but contends that the weight of the substance

was not a core element of the crime of conspiracy but only an

aggravating element.

                We cannot accept this contention.                        First, the record

clearly         reveals         that        Mr.       Melendez     did     not    admit   his

participation in the conspiracy until trial commenced.                                In his

pretrial memorandum, submitted to the court thirty days before

trial, Mr. Melendez continued to contest his guilt and to argue

that he did not conspire to distribute cocaine but, instead,

simply entered into a buyer-seller arrangement with Guzman.34

                Mr.        Melendez’s               protestation    that     he    did    not

participate in a conspiracy, on its own, would be sufficient to

uphold the district court’s decision to deny the reduction.                               We

note, however, that Mr. Melendez’s dispute of the drug weight

would be an adequate and independent basis for refusing the

reduction.          In Garrasteguy, we upheld a district court’s refusal

                                                 
          33            Appellant’s Br. 25.
        34 See R.92 at 2 (“The defendant posits that he is not
guilty of the crimes charged as there is no evidence to prove
that a conspiracy existed to distribute cocaine between
Mr. Melendez and Mr. Guzman in said amounts nor was there a
conspiracy    with  any  others   to   distribute  cocaine  by
Mr. Melendez.”).


                                                       ‐23‐
     
 
to grant a reduction for acceptance of responsibility after a

defendant admitted his guilt to a drug-conspiracy charge but

disputed the drug weight at trial.                        See 559 F.3d at 39-40.            We

noted       that        requesting    a    trial         about    drug    weight   is     not

consistent with the acceptance of responsibility.                               See id. at

39.         We   further      noted       that,     because       the    sentencing      court

balanced the defendant’s admission of guilt with the fact that

he disputed the drug weight at trial, the district court did not

clearly err.            See id. at 39-40.35

                 Here, the district court noted that after Mr. Melendez

tried unsuccessfully to “tailor the amount of drugs involved”

during       plea       negotiations,       he     refused       to     plead   guilty    and

proceeded         to     trial.36     The        court     was    cognizant      that     “[a]

defendant          is     certainly       entitled        to     test    aspects   of      the

Government’s case without necessarily giving up the right to
                                                 
          35            Our decision in United States v. Garrasteguy, 559 F.3d
34 (1st Cir. 2009), is compatible with the decisions of other
courts of appeals.                                   Courts have upheld regularly a district
court’s                 decision                  to    deny  an  acceptance-of-responsibility
reduction for contesting facts underlying a criminal charge,
such as drug weight. See United States v. Acosta, 534 F.3d 574,
580-81 (7th Cir. 2008) (affirming the denial of the acceptance-
of-responsibility reduction after the defendant contested the
drug weight listed in the PSR); United States v. Annis, 446 F.3d
852, 857-58 (8th Cir. 2006) (affirming denial when the defendant
contested the quantity of drugs).
       36        R.179 at 7.


                                                  ‐24‐
    
 
assert that there has been acceptance of responsibility.”37                                      But

the court reasonably concluded that Mr. Melendez did not accept

responsibility                       because        he   chose   to   contest   the   drug   weight,

which was “the core of the case.”38

                                                         Conclusion

                        The judgment of the district court is affirmed.

                                                                                             AFFIRMED




                                                 
          37            Id.
          38
           Id.  Mr. Melendez attempts to distinguish Garrasteguy
because, after he had rejected a plea agreement for the five-
kilogram charge, the Government added the firearms charge. But
the issuance of a superseding indictment with an additional
charge has no bearing on the acceptance-of-responsibility
determination.   The Government may charge a defendant with an
additional offense if the defendant refuses to plead guilty to a
lesser offense.   See Bordenkircher v. Hayes, 434 U.S. 357, 364
(1978) (holding “so long as the prosecutor has probable cause to
believe that the accused committed an offense defined by
statute, the decision whether or not to prosecute, and what
charge to file or bring before a grand jury, generally rests
entirely in his discretion”); United States v. Jenkins, 537 F.3d
1, 4-5 (1st Cir. 2008) (holding that, absent a showing of actual
vindictiveness, we will not disturb the district court’s
judgment).


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