
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 95-1301                                    UNITED STATES,                                      Appellee,                                          v.                             JUAN JOSE MIRANDA-SANTIAGO,                                Defendant - Appellant.                                 ____________________          No. 95-1302                                    UNITED STATES,                                      Appellee,                                          v.                                CARMEN PACHECO-RIJOS,                                     a/k/a FINA,                                Defendant - Appellant.                                 ____________________          No. 95-1304                                    UNITED STATES,                                      Appellee,                                          v.                                ISMAEL RIVERA-DECELIS,                                     a/k/a MACHO,                                Defendant - Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jos  Antonio Fust , U.S. District Judge]                                              ___________________                                 ____________________                                        Before                            Selya and Cyr, Circuit Judges,                                           ______________                            and Gertner,* District Judge.                                          ______________                                _____________________               Edward  E. Parson, by Appointment of the Court, on brief for               _________________          appellant   Juan  Jos    Miranda-Santiago;  Norberto   Col n,  by                                                      ________________          Appointment of the Court, for appellant Carmen Pacheco-Rijos; and          Harry R.  Segarra, by  Appointment  of the  Court, for  appellant          _________________          Ismael Rivera-DeCelis.               Miguel  A. Pereira, Assistant  United States  Attorney, with               __________________          whom Guillermo Gil,  United States Attorney, and Jos   A. Quiles-               _____________                               ________________          Espinosa, Senior Litigation Counsel, were on brief for appellee.          ________                                 ____________________                                  September 19, 1996                                 ____________________                                        ____________________          *     Of  the   District  Court  of   Massachusetts,  sitting  by          designation.                                         -2-                    GERTNER, District Judge.   In this consolidated appeal,                    GERTNER, District Judge.                             ______________          we consider challenges to the sentences of Ismael Rivera-DeCelis,          Carmen  Pacheco-Rijos  and   Juan  Jos   Miranda-Santiago.     In          September of 1994, these defendant-appellants, along with twenty-          one  co-defendants,  pled  guilty  to  participation  in  a  drug          distribution  conspiracy  spanning  over  a  year  and  involving          trafficking in crack cocaine,  cocaine, heroin, and marijuana, as          well as using or brandishing firearms, and engaging in carjacking          to facilitate their drug trade.                    The  defendants  were  arraigned  in two  groups,  pled          guilty before the  same judge  and were sentenced  before him  by          early 1995.                    Ismael Rivera-DeCelis contends that his guilty plea was          entered in violation of Rule 11 of the  Federal Rules of Criminal          Procedure, and that the  district judge erred in calculating  his          sentence. See U.S.S.G.   1B1.3.  He did not press the first point                    ___          below.  We find that the plea colloquy in his case conformed with          Fed.  R.  Crim. P.  11 and  that  the sentence  calculations with          respect to  him were not  in error.   Accordingly, we  affirm his          conviction and sentence.                    Carmen Pacheco-Rijos challenges  her sentence,  arguing          that  the district court erred  in imposing the mandatory minimum          required for  her offense.  Her attack is based on her claim that          she  met the conditions set forth in the "safety valve provision"          of  the Sentencing Guidelines.  See 18 U.S.C.   3553(f); U.S.S.G.                                          ___            5C1.2.  We find  the record inadequate to justify  the district                                         -3-          court's decision not to grant relief.  Accordingly, we vacate the          sentence  and remand  the case  for the  purpose of  allowing the          district court to revisit this issue and to clarify the record by          filing  supplemental findings.  In the event that the court finds          its initial  calculation  in error,  it  should so  identify  and          return,  as  well,  to   the  issue  of  other  adjustments,   if          appropriate, under the Guidelines.                    Juan  Jos  Miranda-Santiago also  attacks his sentence,          arguing that  the sentencing court erred, as  a matter of law, by          failing  to  grant a  two-level  downward adjustment  based  on a          finding  that the  defendant  was a  "minor  participant" in  the          criminal  activity.  See U.S.S.G.   3B1.2(b).  We find inadequate                               ___          support  in the record for the court's conclusion that a downward          adjustment was inappropriate.  We vacate this sentence and remand          the  case to  the district  court for the  purpose of  having the          court  file  supplemental  findings  with  respect  to  appellant          Miranda-Santiago's  role in the offense.   In the  event that the          court  finds its computation in  error, it should  include such a          determination in its findings.          I.  BACKGROUND          I.  BACKGROUND              __________                    We begin with an overview of events involving the three          appellants.1                                        ____________________          1  We consider the facts as set forth in the uncontested portions          of  the  Presentence  Report   ("PSR")  of  each  defendant,  the          information  to  which  each   defendant  pled  guilty,  and  the          sentencing   hearing  transcripts.     E.g.,  United   States  v.                                                 ____   _______________          Grandmaison, 77 F.3d 555,  557 (1st Cir. 1996); United  States v.          ___________                                     ______________          LeBlanc, 24 F.3d 340,  342 (1st Cir.), cert. denied,  __ U.S. __,          _______                                _____ ______          115 S. Ct. 250 (1994).                                         -4-                    On March 9,  1994 a grand  jury returned an  indictment          against 19  defendants,  including appellants  Pacheco-Rijos  and          Miranda- Santiago, charging  them with  conspiracy to  distribute          drugs, and with using firearms in connection with a drug offense.          Apparently, the  conspirators hid drug  substances, firearms  and          proceeds of  drug sales in specific locations, guarded by members          of  the  conspiracy.    Members  of   the  conspiracy  were  also          encouraged to  commit -- and committed  -- "carjacking" offenses;          armed,  they  would  steal cars  and  then  use  the vehicles  to          transport drugs back to their storage locations.                    The indictment  and the PSRs adopted  by the appellants          and  the district  court  detailed a  criminal enterprise  with a          strongly hierarchical structure;  some of the  accused controlled          the  operation,   while  others   served  as  drug   runners  and          bodyguards.   A superseding indictment, returned on May 12, 1994,          named  five  additional defendants,  including  appellant Rivera-          DeCelis.                    When arraigned,  each defendant  entered a plea  of not          guilty.  In September  of 1994, Rivera-DeCelis, Pacheco-Rijos and          Miranda- Santiago,  among others,  offered to change  their pleas          with  respect to  certain  charges.   After  each plea  colloquy,          conducted individually, the court accepted the defendants' pleas.          Each was separately sentenced.          II.  DISCUSSION          II.  DISCUSSION               __________                                        ____________________                                                   -5-                    We consider  the facts  with respect to  each defendant          and his or her legal challenges in turn.                                         -6-                    A.  Ismael Rivera-DeCelis                    A.  Ismael Rivera-DeCelis                        _____________________                        1.  Facts                        1.  Facts                    Appellant  Rivera-DeCelis  was  alleged  to  have  been          involved in several phases of the drug conspiracy detailed in the          superseding  indictment.    He  was  charged  in Count  One  with          distributing not less than fifty grams of cocaine base, an amount          of not less than five kilograms of cocaine, an amount of not less          than one kilogram  of heroin,  and some amount  of marijuana,  in          violation of 21  U.S.C.    841(a)(1)  & 846.  Counts  Three, Four          and  Five charged  him  with possessing  and brandishing  various          firearms in connection with his drug trafficking, in violation of          21 U.S.C.   924(c)(1).                    After an initial  plea of not  guilty, on September  8,          1994, Rivera-DeCelis  offered  to change  his plea  to guilty  to          Count One's charge that he acted in violation of 18 U.S.C.   846,          and Count Three's charge that he  acted in violation of 18 U.S.C.            924(c)(1).  The plea  agreement was entered into under  Fed. R.          Crim. P. 11(e)(1)(c).2   It provided that the defendant  would be          held accountable at  sentencing for the  distribution of no  less          than 15  but no more than 50 kilograms of cocaine, resulting in a          base offense  level of  34.   See U.S.S.G.     2D1.1(a)(3).   The                                        ___          parties also agreed that  the defendant was entitled to  a three-                                        ____________________          2   Rule 11(e)(1)(C) of  the Federal Rules  of Criminal Procedure          authorizes plea  agreements which stipulate specific sentences to          be  imposed.  In those circumstances, a district court may either          accept the agreement in  toto or reject it, giving  the defendant          the  opportunity to withdraw the plea entirely.  Fed. R. Crim. P.          11(e)(4); U.S.S.G.   6B1.3(ps).                                           -7-          level downward adjustment for acceptance of responsibility, under          U.S.S.G.   3E1.1(b)(1) &  (2), reducing his offense  level to 31.          The parties further defined the term of imprisonment: In light of          the ten  year  mandatory minimum  sentence facing  Rivera-DeCelis          under 21  U.S.C.   841(b)(1)(B), and a  criminal history category          of III,  they stipulated to  a 139 month  term of  confinement on          Count One to be followed by a 60 month term on Count Three.3                    During the  plea colloquy, the district  judge directly          addressed Rivera-DeCelis.   He explained each  charge, detailing,          among other things, the time frame of the conspiracy in which the          defendant allegedly  was involved  (roughly from January  of 1993          through  March of  1994), the  elements of  the offenses  and the          burden the government would  have if it tried to prove its case.4                                        ____________________          3   The  139 month  prison term  on Count  One appears,  from the          record  before us, to have been the result of negotiation between          the initial plea and sentencing.          4  As  to the factual basis of the charges to which the defendant          was offering to plead, the colloquy included the following:                    THE COURT:  Have you  received a copy  of the                    superseding indictment that  mentions you  in                    Counts One and Three?                    THE DEFENDANT: Yes, sir.                    THE COURT: Count  One is the  drug conspiracy                    count.      There,  you   are   charged  with                    participating in  a conspiracy .  . . .   The                    allegation   is   that   you  knowingly   and                    intentionally  conspired,  and agreed  with a                    number   of   persons   to    knowingly   and                    intentionally      distribute      controlled                    substances.                    THE DEFENDANT: Yes, sir.                    THE COURT: Have with  you [sic], possess  and                    distribute       controlled       substances,                    specifically in an amount of not less than 50                    grams of  crack cocaine, not  less than  five                    kilograms of regular cocaine, some marijuana,                                         -8-          He also explained to the defendant the sentences he faced and the          consequences of his  plea, inquired about coercion  and made sure          the  defendant understood  the  particular strictures  of a  plea          entered into under Rule 11(e)(1)(c).  The defendant agreed to the          facts presented  in the indictment, without  asserting that there          were  any temporal  limits  to his  personal  involvement in  the          conspiracy.                                         ____________________                    and at least one kilogram of heroin.   Do you                    understand that?                    THE DEFENDANT: Yes.          With respect to the firearms charge, the colloquy included:                     THE COURT: And that  aside from selling drugs                    and  making money,  the different  members of                    the  conspiracy  at  time possessed  weapons,                    firearms,  to provide protection  to the drug                    operations or the  conspiracy, not only  from                    innocent  people but  also from  rival gangs,                    and  to  prevent  the  intervention   of  law                    enforcement  officers,  and   to  provide   a                    certain degree  of  intimidation  .  .  .  of                    innocent people . . .                     THE DEFENDANT: Yes, sir.                     THE  COURT:  Also,   that  at  times  certain                    members of the conspiracy, of which you are a                    part,  carjacked  citizens,  took their  cars                    away by force, in  order to use the cars  for                    purposes   of   --   related   to   the  drug                    conspiracy.                    THE DEFENDANT: Yes, sir . . . .                    THE COURT:   You are also  pleading guilty to                    Count  Three,  which is  the  firearms count.                    There  the government  is alleging  that from                    January of  1993, until on or  about March of                    1994,  you, along with others, knowingly used                    and     carried    firearms,     specifically                    semiautomatic pistols, during and in relation                    to   a  drug   trafficking  crime   which  is                    precisely the drug trafficking crime that you                    are charged with in Count One.                    THE DEFENDANT: Yes, sir.                                         -9-                    Turning to the factual basis of the charges, the  judge          asked Rivera-DeCelis whether the  defendant was "recognizing [his          guilt] ... for the drug conspiracy participation and also for the          weapons  or  firearms count,"  and  whether  he acknowledged  the          punishment  he  could  face.    Rivera-DeCelis  answered  in  the          affirmative to both questions.5                    At sentencing, the defendant challenged the drug amount          attributed  to  him in  the  PSR.    Notwithstanding his  earlier          admissions, Rivera-DeCelis asserted that  he was only involved in          the  conspiracy for three months  and that the  amount of cocaine          reflected  in the plea agreement  was greater than  the amount he          could reasonably  have  foreseen  would  have been  part  of  the          conspiracy during his membership in it. The government cast doubt          on the short duration of Rivera-DeCelis' involvement, noting that          he was pictured holding a gun  and serving as a bodyguard for one          of the  conspiracy's leaders.  Logically,  the prosecutor argued,          such a responsibility  would not  devolve to a  new and  marginal          member of the  organization.  In any event, even  within a 90 day          period, the  government contended, the daily  quantities of drugs          sold as part  of the conspiracy  would result in  a drug  offense          level of over 34.                     The  district  judge  did not  accept  the  defendant's          characterization of  his involvement and rejected  his challenge.                                        ____________________          5  Rivera-DeCelis also admitted that he, as charged in Counts One          and  Three,  actually   possessed  and  distributed   "controlled          substances being a member of a conspiracy," and that he was aware          of   the  acts   of   his  co-conspirators   "involving  weapons,          carjackings and proceeds, financial gain, et cetera."                                           -10-          The judge noted  that the benefits of this  plea agreement to the          defendant  were substantial,  since, for  instance, no  amount of          crack  cocaine was attributed to the defendant, a drug "which all          of  them were  dealing ...  without a  doubt."   Accordingly, the          court  adopted a  base  offense  level  of  34  and  granted  the          defendant   a    three-level   reduction   for    acceptance   of          responsibility.    U.S.S.G.    3E1.1(b).    Based  on a  criminal          history category of III, Rivera-DeCelis was sentenced on the drug          charge to a  prison term of 139  months, at the lower  end of the          guideline range,6  to be followed by  a term of 60  months on the          firearms  charge.  The  remaining charges  against Rivera-DeCelis          were dismissed.                            2.  Legal Analysis                            2.  Legal Analysis                                a.  Challenge to the Guilty Plea                                a.  Challenge to the Guilty Plea                    Although he never moved  to withdraw his plea prior  to          sentencing,  Rivera-DeCelis now  challenges  its  validity.7   He          claims  that his  plea was  not  voluntary, because  the district          court  failed to  offer an  adequate explanation  of the  charges          against   him  or   to  determine   whether  he   understood  the          consequences of his plea.                                          ____________________          6  Given  a base offense  level of 31  and a criminal  history of          III, Rivera-DeCelis  faced a  guideline sentencing range,  on the          drug count alone, of 135 - 168 months.           7    To  the   contrary,  Rivera-DeCelis'  attorney  insisted  at          sentencing that the request  that his client be held  responsible          for a lower drug quantity was based on objections to the PSR, and          that it was not a request to withdraw the defendant's plea.  When          pressed  further, defense  counsel acknowledged  that he  was not          making a legal argument  but offering an allocution on  behalf of          his client.                                          -11-                    We do not agree.  On the record  before us, we find  no          error.                                    1.  Legal Standards                                    1.  Legal Standards                    A  defendant  does  not  enjoy  an  absolute  right  to          withdraw a  plea of  guilty, once  it has  been entered.   United                                                                     ______          States  v. Isom, 85 F.3d 831,  834 (1st Cir. 1996); United States          ______     ____                                     _____________          v. Austin, 948 F.2d 783, 786 (1st Cir. 1991); Fed. R. Crim. P. 11             ______          & 32(e).   Where a defendant  does not seek to  withdraw his plea          before the  district court  and challenges  its validity  only on          appeal, he or  she faces a high hurdle: The challenge can succeed          only if the  defendant demonstrates that there  was a substantial          defect  in  the Rule  11 proceeding  itself.8   United  States v.                                                          ______________          Piper,  35  F.3d 611,  613-14  (1st  Cir.  1994),  cert.  denied,          _____                                              _____  ______                                        ____________________          8  Rule 11(c) provides in pertinent part:                    (c) Advice to  Defendant.   Before accepting a  plea of                        guilty  . . . the court  must address the defendant                        personally in open  court and inform the  defendant                        of,  and determine  that the  defendant understands                        . . .                        (1) The nature  of the charge to which  the plea is                            offered . . .          Fed. R. Crim. P.  11(c); see McCarthy v. United  States, 394 U.S.                                   ___ ________    ______________          459, 466-67,  471-72 (1969); United  States v.  Allard, 926  F.2d                                       ______________     ______          1237, 1247 (1st Cir. 1991).                         As a general matter, minor technical violations of Rule 11 do          not  require that a  court set aside  a plea of  guilty; however,          where  the defects  in the  plea colloquy  go  to Rule  11's core          concerns   --   the   absence   of  coercion,   the   defendant's          understanding of the charges and the defendant's knowledge of the          consequences  of his or  her plea --  the Rule  mandates that the          plea be set aside.  United States v. Cotal-Crespo, 47 F.3d 1, 4-5                              _____________    ____________          (1st  Cir.), cert.  denied,  __ U.S.__,  116  S. Ct.  94  (1995);                       _____  ______          Allard, 926 F.2d at 1244-45.           ______                                         -12-          __U.S.__, 115 S. Ct. 1118 (1995); see also United States v. Japa,                                            ________ _____________    ____          994  F.2d  899, 902  (1st Cir.  1993);9  United States  v. Parra-                                                   _____________     ______          Iba ez, 936 F.2d 588  (1st Cir. 1991);10 accord United  States v.          ______                                   ______ ______________          Cotal-Crespo, 47 F.3d 1,  3 (1st Cir.), cert. denied,  __ U.S.__,          ____________                            _____ ______          116 S. Ct. 94 (1995); Fed. R. Crim. P. 32(e).                    In evaluating  the validity of an  appellant's plea, we          review the totality of the circumstances  surrounding the Rule 11          hearing.  Cotal-Crespo, 47 F.3d at 4.11                    ____________                                        ____________________          9  The Japa Court introduced a slightly different standard for an                 ____          appellant who  did not raise  the Rule  11 challenge below:   the          defendant must prove that the violation amounts to "a fundamental          defect  which inherently  results  in a  complete miscarriage  of          justice"  or  "an  omission  inconsistent  with  the  rudimentary          demands of fair procedure."  Id. at 902.                                       ___             We have remarked that the extent  of the burden on a defendant          on  direct appeal from a guilty plea "is somewhat cloudy," United                                                                     ______          States  v. Mart nez-Mart nez,  69  F.3d 1215,  1219-20 (1st  Cir.          ______     _________________          1995),  cert. denied, __U.S. __, 116 S. Ct. 1243 (1996), and have                  _____ ______          suggested  that the  more imposing  standard articulated  in Japa                                                                       ____          might most appropriately operate  only in collateral attacks upon          a guilty plea, brought under 18 U.S.C.   2255.  Id. at 1220.                                                          ___             We  need not resolve that  question in this  case, because the          defendant fails to meet either standard.          10  Although our review does not generally include matters raised          for the first time on  appeal, Rule 11 challenges are not  waived          if a  defendant fails to raise  the issue below.   Rule 11's core          concerns  oblige  courts  of  appeals to  review  the  challenged          processes,  since the  Rule's  strictures go  to "'the  fairness,          integrity  [and]  public  reputation  of  judicial proceedings.'"          Parra-Iba ez, 936 F.2d at 593 (citations omitted).           ____________          11   The Allard  Court noted: "There  is no  talismanic test  for                   ______          determining  whether the  core  concerns  of  Rule 11  have  been          satisfied.   The manner in which the  charge is explained and the          method for determining the defendant's  understanding necessarily          vary  from  case  to case  depending  upon  the  capacity of  the          defendant and the attendant circumstances."  Allard, 926  F.2d at                                                       ______          1245.                                         -13-                                    2.  The Plea Colloquy                                    2.  The Plea Colloquy          As to the  validity of  the Rule 11  proceeding below,  appellant          Rivera-DeCelis rests his argument on two points: (1)  his limited          education and ability  to understand the written word, because of          his dyslexia; and (2) the district court's failure to ensure that          Rivera-DeCelis actually had read the superseding indictment under          which he was charged.  The government argues that the appellant's          Rule  11 challenge  -- at  this late  hour --  is wholly  without          merit.                    The government has the better argument.                    The core concerns of Rule 11 require that the defendant          be instructed in open  court with respect  to the "nature of  the          charge to which the  plea is offered," Fed. R. Crim. P. 11(c)(1),          and that a plea "'cannot be considered truly voluntary unless the          defendant possesses  an understanding of  the law in  relation to          the facts.'" United  States v.  Broce, 488 U.S.  563, 570  (1989)                       ______________     _____          (quoting  McCarthy v. United  States, 394 U.S.  459, 466 (1969));                    ________    ______________          Piper, 35 F.3d at 614.           _____                    In  the case  before us,  the district  judge addressed          Rivera-DeCelis  personally, directly, and  with careful questions                                        ____________________              Factors surrounding the request to set aside a plea come into          play: the plausibility and strength of the proffered reason for a          plea withdrawal; the timing of the request; whether the defendant          now asserts legal innocence; and whether the  parties had reached          a  plea agreement. See United States v. Pellerito, 878 F.2d 1535,                             ___ _____________    _________          1537 (1st Cir. 1989),  cert. denied, 502 U.S. 862 (1991); Fed. R.                                 _____ ______          Crim. P.  32.  As we  have noted, "these factors  are relevant to          the ultimate issue to  be addressed, namely whether the  plea was          'knowing, voluntary  and intelligent within the  meaning of [Fed.          R.  Crim. P.] 11.'"  United States v.  Gray, 63 F.3d  57, 60 (1st                               _____________     ____          Cir. 1995) (citations omitted).                                         -14-          designed  to  ensure  that   defendant  actually  understood  the          proceedings.  The judge  specifically explained both the elements          of  each   offense  and  the  factual   accusations  against  the          defendant.  As  he walked Rivera-DeCelis through these aspects of          the  case against  him, the  judge inquired  -- at  each turn  --          whether  Rivera-DeCelis  subjectively  understood the  situation.          The district judge  also made  sure that  Rivera-DeCelis in  fact          grasped the consequences of his plea.  Fed. R. Crim. P. 11(c)(1).          Only after  assuring himself  that Rivera-DeCelis  understood the          charges, the  facts that formed their bases  and the consequences          of  his plea, did the district judge ask Rivera-DeCelis to attest          to the facts to which he was pleading guilty.12                    Consideration  of  other factors  surrounding  the plea          does not yield a better  result for the appellant.  With  respect          to the validity of  the proffered reasons for requesting  that we          set   aside  Rivera-DeCelis'   plea,   we   are  not   persuaded,          particularly  given  the  care  with  which  the  district  judge                                        ____________________          12   It strikes  us that  the appellant  has turned a  legitimate          argument on its head.  If the district court had merely made sure          that  a dyslexic  defendant  with  only  eight  years  of  formal          schooling had read  an indictment -- without  oral questioning to          ensure actual understanding --  we might find error.   See, e.g.,                                                                 ___  ____          United  States v.  Gray,  63  F.3d  57,  60-61  (1st  Cir.  1995)          ______________     ____          (reliance  on a  written document  is  an insufficient  proxy for          personal examination by the court).              That  is  not  the  case  before  us.  Given  Rivera-DeCelis'          particular  circumstances, the  district court's  direct, probing          and careful  questioning of  the defendant  assures  us that  the          trial judge was doing as Rule 11 requires, looking to the reality          of the situation faced by the defendant and  making sure that the          defendant actually  understood the nature of  the charges against          him and  the consequences of his  plea.  See Allard,  926 F.2d at                                                   ___ ______          1245.                                          -15-          directly addressed the defendant on each issue of central concern          under  Rule 11.   The timing of  the request, made  for the first          time  before an  appellate court,  also counsels  against setting          aside  the  plea.   The  defendant  made  no  assertion of  legal          innocence; and,  finally,  the plea  was  offered pursuant  to  a          negotiated plea agreement.                     In short,  the district judge fully  addressed the core          concerns  of Rule  11.   Accordingly,  we  decline to  set  aside          appellant Rivera-DeCelis' plea of guilty.                                b.  Sentencing Challenge:  Relevant Conduct                                b.  Sentencing Challenge:  Relevant Conduct                    Rivera-DeCelis  also  challenges  his  sentence  on the          ground  that the drug quantity attributed  to him was incorrectly          inflated and  did not  reflect his  limited participation in  the          conspiracy.  The  error is  based, the appellant  argues, on  the          district court's  failure to  make individualized findings.   The          government  disagrees,  stating   that  the  sentencing   court's          findings  were  sufficiently precise  and  based  solidly on  the          evidence presented.                    We  review the district judge's quantity determinations          at  sentencing  for  clear  error.    United  States  v.  Jim nez                                                ______________      _______          Mart nez, 83 F.3d 488, 492 (1st Cir. 1996); 18 U.S.C.   3742(e).           ________                    The appellant's argument is wholly without merit.                     Under U.S.S.G.    1B1.3,  where a defendant  engaged in          "jointly  undertaken  criminal  activity,"   he  or  she  may  be          sentenced for his or her own acts and "all reasonably foreseeable          acts and  omissions  of  others  in  furtherance  of  [that]  ...                                         -16-          activity."  U.S.S.G.    1B1.3(a)(1)(B)  &  comment n.1.    In the          context of drug trafficking  offenses, where sentences are driven          largely  by the amount  of drugs  for which  a defendant  is held          accountable,  "the base  offense  level of  a co-conspirator  ...          should reflect only the quantity of drugs  he reasonably foresees          is the object of the conspiracy to distribute after  he joins the          conspiracy."   United States v. O'Campo, 973 F.2d 1015, 1026 (1st                         _____________    _______          Cir. 1992); see also United States  v. Campbell, 61 F.3d 976, 982                      ________ _____________     ________          (1st  Cir.  1995), cert.  denied,  __ U.S.  __,  116 S.  Ct. 1556                             _____  ______          (1996); U.S.S.G.   2D1.1(c) (drug quantity table).                       It is well settled that defendants in a drug conspiracy          are  not   only  responsible  for  drug   quantities  which  they          themselves   sold,  transported  or  negotiated;  they  are  also          responsible  for    drug  amounts which,  from  their  particular          vantage points  in the conspiracy, it  was reasonably foreseeable          would  be involved,  and  which were  in  fact involved,  in  the          offense.   See, e.g., United States  v. Lombard, 72 F.3d 170, 176                     ___  ____  _____________     _______          (1st Cir.  1995); United States v.  Carrozza, 4 F.3d  70, 80 (1st                            _____________     ________          Cir. 1993),  cert. denied, __  U.S. __,  114 S. Ct.  1644 (1994);                       _____ ______          U.S.S.G.    1B1.3  &  commentary.    It is  the  project  of  the          sentencing court  to determine what a  particular defendant could          reasonably have foreseen.  Carrozza, 4 F.3d at 76.                                      ________                    In  this case,  the sentencing  judge carried  out this          responsibility without error.                    It is  undisputed  that Rivera-DeCelis  pled guilty  to          engaging in  jointly undertaken criminal  activity triggering the                                         -17-          application  of section  1B1.3(a)(1)(B).   At  his plea  hearing,          Rivera-DeCelis accepted the factual recitation of the indictment,          indicating  an involvement  in the  conspiracy from  January 1993          through  March  of   1994.    He  also  acknowledged  knowing  of          trafficking in crack cocaine,  cocaine, heroin and marijuana over          that  period of  time.   His  plea, indeed,  situated him  in the          center  of  the  conspiracy's activities,  aware  of  its use  of          firearms as well as the extent of the drug dealing.                     The  district  judge  was   not  persuaded  by  defense          counsel's  explanation that he had urged his client to accept the          plea   because he was  unsure he could  confirm the circumscribed          scope of the defendant's involvement.13  The defendant did little          else to confirm that  his vantage point was  so distant from  the          main  activity and he  stood in  that place  for such  a fleeting          moment that he could  not reasonably have foreseen that  not less          than  15 but  not  more than  50 kilograms  of  cocaine would  be          involved in the  offense.   Notably, he never  suggested --  much          less  proved --  a precise  amount for  which  he should  be held          accountable.                                        ____________________          13  When  asked why the defendant  would sign a  Rule 11(e)(1)(C)          agreement for a specific  sentence, if he believed that  the true          nature  of his involvement would result in a much lower sentence,          the defendant's attorney explained:                     . .  . when I agreed to that, I was under the                    impression . . .  that three months could not                    be corroborated by the Government.  Now three                    months   could   be   corroborated   by   the                    Government . . .  the amount of cocaine would                    --  should --  be less  than  the one  in the                    indictment.                                         -18-                    Against  this shaky  challenge, the  government offered          sturdy  support for attributing the defendant with at least 15 to          50 kilograms of cocaine.  It reminded the sentencing court of the          testimony  of a  co-conspirator, which  had indicated  that daily          drug sales of which Rivera-DeCelis would have been aware amounted          to well over 50 kilograms of cocaine in a matter of months.14  It          also  cast  doubt  on the  allegedly  limited  nature of  Rivera-          DeCelis'  involvement  by focusing  the  court's  attention on  a          photograph  in  which  Rivera-DeCelis   is  pictured,  holding  a          firearm, as a bodyguard to the leader of the conspiracy.15                                          ____________________          14  The government made the following argument at sentencing:                     MR. PEREIRA:   Your  Honor, initially let  me                    address the issue of the quantity of drugs so                    that the  record is  clear as  to  that.   We                    provided, of course, to this defendant as  we                    did  to  all   defendants,  the  grand   jury                    transcripts of Ram n Alexandro L pez and it's                    part  of the record of this court. . . . [H]e                    is asked,  have you ever heard  in terms from                    anybody or your own estimation that a kilo of                    cocaine  gets consumed  or cooked  into crack                    every  11  days?    The answer  to  that  is,                    yes. . . .                    Now, even if we assume  that this individual,                    that this present  defendant, Ismael  Rivera,                    participated in this conspiracy only 90 days,                    that is  eight kilos  of crack cocaine.   1.5                    kilos of crack cocaine  is a level 38 offense                    in  the 1994  guidelines, so,  [it] certainly                    covers the sentence which he agreed to.          15  We find the government's rendition wholly believable.  Where,          as  here, a  view  of  the  record  is  entirely  plausible,  the          sentencing  court's adoption of that view  cannot amount to clear          error.  See United States v. St. Cyr, 977 F.2d 698, 706 (1st Cir.                  ___ _____________    _______          1992).                                          -19-                    On this record, the district judge did not clearly  err          in adopting the government's reasoning, noting that the defendant          reaped a  benefit  from  the  plea agreement  and  deciding  that          Rivera-DeCelis' base offense level should be 34.                    We therefore  affirm  the district  court's  sentencing          determination.                    B.  Carmen Pacheco-Rijos                    B.  Carmen Pacheco-Rijos                        ____________________                        1.  Facts                        1.  Facts                    Under  the  indictment  returned   in  March  of  1994,          appellant Pacheco-Rijos was charged with four offenses: Count One          charged her  with conspiracy to  distribute drugs, in  amounts of          not  less than fifty  grams of cocaine  base, not less  than five          kilograms of cocaine, not  less than one kilogram of  heroin, and          some  marijuana, from in  or about  January of  1993 until  in or          about March of 1994,  in violation of 21 U.S.C.     841(a)(1) and          846;  Counts Three, Four and  Five charged her,  along with other          co-defendants, with knowingly using and  carrying firearms during          and  in  relation to  her drug  trafficking,  in violation  of 18          U.S.C.    921(a)(3) & (c)(1) & 924(c)(1).                    Pacheco-Rijos was arraigned on March 14, 1994, at which          time she pled not guilty.   On September 7, 1994, she changed her          plea to guilty to Count One, which  charged her with violating 21          U.S.C.      846.16    Her  plea  was  offered  pursuant  to  Rule                                        ____________________          16    The underlying  offense was  21  U.S.C.    841(a)(1), which          prohibits  the knowing or intentional manufacturing, distributing          or possessing with intent  to manufacture, distribute or dispense          a controlled substance.  She did not plead guilty to any firearms          charges.                                          -20-          11(e)(1)(A)  & (B)  of the Federal  Rules of  Criminal Procedure,          under which the parties may  recommend sentencing terms but those          terms  are not  binding upon the  court.   Cf.  Fed.  R. Crim. P.                                                     ___          11(e)(1)(C).                      The agreement  recommended a  base offense level  of 28          under  U.S.S.G.   2D1.1 and a downward adjustment of three levels          for  acceptance of  responsibility  under  U.S.S.G.     3E1.1(b),          resulting  in an offense level of 25.  The defendant acknowledged          that  although  those  preliminary  calculations  resulted  in  a          guideline range of 57 to 71 months, she could receive a statutory          minimum of 60 months imprisonment.   The agreement, however, left          the door  open for application  of other  provisions which  might          affect her sentence.17                    At the  outset of the sentencing  hearing, the district          judge mischaracterized  the plea agreement as  a Rule 11(e)(1)(C)          agreement, under which the sentencing judge  would be required to          accept the agreement in  toto or reject it, thereby  allowing the          defendant to withdraw  her plea.   Such an  agreement would  have          represented   the  parties'   negotiations  concerning   all  the          guideline provisions that should determine the sentence.                    Pacheco-Rijos' plea agreement, however, did not pretend          to such completeness.                                        ____________________          17    The agreement  stated:   "The  United States  and defendant          stipulate a sixty (60)  month term of confinement.   No agreement          concerning the application of  any other sentencing guideline has          been entered  into by  the parties.    All other  aspects of  the          sentence are left to the sound discretion of the Court."                                          -21-                    When counsel for Pacheco-Rijos  moved for a three-level          adjustment for  acceptance of responsibility, the  court accepted          it  both because  the  plea agreement  had  contemplated such  an          adjustment  and because he  found Pacheco-Rijos'  conduct merited          it.  He accepted an  offense level of 25, with a  guideline range          of 57 to 71 months.                     However, when  counsel requested the application of the          safety valve provision, 21 U.S.C.   3553(f) and U.S.S.G.   5C1.2,          and,  if  granted,  a   further  two-level  reduction  for  minor          participant status under U.S.S.G.    3B1.2(b), requests that were          not  in the plea agreement, the district court declined to accept          them.  The appellant argued that she met all the requirements  of          the safety valve provision.  The government responded that, among          other things,  Pacheco-Rijos had failed honestly  to disclose her          own  participation in the conspiracy.18  In support of its claim,          the government stated  simply that  her failure  "can be  gleaned          from the Presentence Report in this case."                      The prosecutor's citation to the PSR is perplexing.  It          appears that initially the PSR had not placed Pacheco-Rijos among          the defendants for  whom the government had  designated a minimal          or  minor  role,  but  among  those for  whom  no  role  had been                                        ____________________          18  The government  also argued that although this  defendant did          not  participate in conduct that  led to death  or serious bodily          injury  to  any  person,  others  in  the  conspiracy  did,  thus          rendering her ineligible  for the  benefits of  the safety  valve          provision.   The district court  did not  address this  argument,          finding that Pacheco-Rijos  did not qualify for relief  under the          safety valve provision because she failed to cooperate fully.                                         -22-          "adjudicated."19   However, after reviewing the  objection of the          defendant with  respect to  the scope  of her  participation, the          probation officer,  in the final PSR,  adopted Pacheco-Rijos' own          view  of  her  participation,20   designating  her  as  a  "minor          participant" and characterizing her role as "passive."                    Notwithstanding,  the  sentencing   judge  denied   the          request  for  relief from  the  mandatory minimum  sentence.   He          summarily concluded: "5C1.2  does not apply, because she  has not          cooperated fully as required by  guideline Section 5C1.2(5)."  In                                        ____________________          19  The PSRs for all of the appellants contained the same factual          recitation  and structure.   It  therefore merits  some attention          that  Rivera-DeCelis' PSR,  prepared before  Pacheco-Rijos' final          PSR, contained the following: "[b]ased on the defendants' role in          the  drug enterprise"  other  defendants were  identified by  the          government   as   being   "minimal   participants,"   or   "minor          participants," while Pacheco-Rijos was listed among those who had          "not been adjudicated any role adjustment" since she, along  with          others, were "considered equally  culpable in their participation          in the offense."               After  Pacheco-Rijos  objected  to  the  probation  officer's          failure  to designate  her as  a minor  participant, the  PSR was          altered, not only in  terms of the ultimate calculation  but also          in terms of the factual recitation.   In her final PSR, the facts          indicated  that the  "government identified"  Pacheco-Rijos as  a          minor participant.           20   Before  sentencing,  counsel for  Pacheco-Rijos submitted  a          written statement concerning  the defendant's involvement in  the          offense and  specifically elaborating on her  contention that she          had  a role  in the  enterprise but  one more  limited than  that          suggested  in  the  indictment.   She  conceded  that  other  co-          defendants used Pacheco-Rijos' home as a place to pack controlled          substances, that she knew generally of these  activities and that          she did  little to  stop it.  She denied ever  handling money  or          drugs in the illegal  operation and ever being at all involved in          the  possession  or  concealment  of firearms.    Further,  while          Pacheco-Rijos lived with three of the co-defendants in this case,          Luis Antonio Garc a, Agustin Aponte-Merced and Juan Jos  Miranda-          Santiago, she vowed to having no other knowledge of their illegal          acts.                                           -23-          addition, he stated: "And besides that, there is a stipulation in          the plea agreement [that]  she be sentenced to  60 months.   That          was  good  enough in  September, [so  it]  should be  good enough          today."                    In the  light  of his  rejection  of the  safety  valve          provision, the judge indicated that there was no need to consider          whether  Pacheco-Rijos  should  have   been  given  a   two-level          adjustment based on her  role in the offense, an  adjustment that          would  have  brought  her  sentence under  the  Guidelines  still          further below the 60 month statutory minimum.21                    Continuing  the  same  apparent  misapprehension  under          which he labored from the beginning, the district judge concluded          the sentencing  hearing by  reiterating: "I  should make it  very          clear on this record that her plea agreement was an 11 -- Federal          Rule Criminal Procedure 11(e)(1)(C)  plea.  And therefore the  60          months that I have given her was precisely what she bargained for          during the plea negotiations."                        2.  Legal Analysis:  The Safety Valve Provision                        2.  Legal Analysis:  The Safety Valve Provision                    Appellant  Pacheco-Rijos  argues  that  the  sentencing          court erred in declining  to grant her relief from  the mandatory                                        ____________________          21   Here  again,  the  sentencing  court  focused  on  the  plea          agreement in a  way that suggested  he believed  it to have  been          binding:  "I'm going to leave it as it was in the plea agreement.          I will not honor that adjustment.  And we're going to leave it at          25. .  . .  This  Court understands  that  the defendant  is  not          entitled toa minorparticipant adjustmentunderU.S.S.G.  3B1.2(b)."              This  conclusion is  at odds  with the  district court's  own          judgment in this case, in  which the court states that it  adopts          the  findings  and  sentence  calculations  of  the  PSR  without          exception.  The PSR, however, had granted Pacheco-Rijos the minor          participant adjustment.                                         -24-          minimum sentence for the drug trafficking in which she admits she          was   involved. See 18 U.S.C.    3553(f); U.S.S.G.    5C1.2.  The                          ___          government  responds  that  the  sentencing  court  appropriately          determined that she was  not entitled, in the first  instance, to          relief  from the mandatory minimum,  and that, in  any event, the          district court's decision does not amount to clear error.                    We review for clear  error the district court's factual          determinations with respect to whether the appellant was entitled          to  relief from  the mandatory  minimum under  U.S.S.G.    5C1.2.          United  States  v. Rodr guez,  60 F.3d  193,  195 n.1  (5th Cir.)          ______________     _________          (court's refusal to apply    5C1.2 is a factual  finding reviewed          for  clear error), cert. denied, __U.S.__, 116 S. Ct. 542 (1995);                             _____ ______          see also UnitedStates v. Monta ez,82 F.3d 520,521 (1st Cir.1996).          ________ ____________    ________                    We  begin our  examination  with an  observation.   The          review  is complicated  by the  paucity of  detail in  the record          below  and our concern for two obvious mistakes in the sentencing          hearing  which shaped the outcome: first, that the district court          wrongly  believed that the plea  agreement was a  binding one and          Pacheco-Rijos  was arguing for an  outcome for which  she had not          negotiated;  and  second,  that  the PSR  somehow  supported  the          government's position  on Pacheco-Rijos' cooperation, when it did          not.                     When Congress enacted the Violent Crime Control and Law          Enforcement  Act of  1994,  it passed  into  law a  safety  valve          provision  which permits judicial  departures for some low-level,          first-time offenders  who otherwise would  face mandatory minimum                                         -25-          sentences.  Pub. L.  No. 103-322    80001,  108 Stat.  1796, 1985          (1994)(amending 18 U.S.C.   3553).22                           Under 18  U.S.C.   3553(f),  a defendant may  avoid the          mandatory minimum and be sentenced below the applicable guideline          term, if he or she  meets the five requirements set forth  in the          provision.  The section provides in pertinent part:                    . . . the court shall impose a sentence . . .                    without  regard  to  any   statutory  minimum                    sentence,  if the court  finds at sentencing,                    after  the Government  has been  afforded the                    opportunity to make a recommendation, that:                    (1) the  defendant does not have  more than 1                    criminal history point,  as determined  under                    the sentencing guidelines;                    (2)  that defendant did  not use  violence or                    credible  threats  of violence  or  possess a                    firearm or other  dangerous weapon (or induce                    another  participant to do  so) in connection                    with the offense;                    (3) the  offense did  not result in  death or                    serious bodily injury to any person;                    (4)  the  defendant  was  not  an  organizer,                    leader, manager,  or supervisor of  others in                    the offense . . .; and (5) not later than the                    time of the sentencing hearing, the defendant                    has truthfully provided to the Government all                    information  and  evidence the  defendant has                                        ____________________          22    The  safety valve  provision  was  enacted  in response  to          concerns  that mandatory  minimums  are not  compatible with  the          guideline regime.   The provision addressed  the following irony:          Mandatory  minimums had,  and  have, little  real  impact on  the          sentences  received  by  serious  repeat   offenders,  where  the          guideline calculation arrives at a base offense level higher than          the mandatory minimum, and where mitigating factors may therefore          be considered.  Prior to passage of the section 3553(f), however,          for the least culpable  offenders, mandatory minimums operated to          block sentences from reflecting  the very mitigating factors that          could ease sentences  of the more  culpable.  Ironically,  courts          were  obliged  to  impose  upon  the  least  culpable  defendants          sentences similar to those imposed on more culpable counterparts.          As  a House Report noted, the safety valve provision was designed          to "permit . . . greater integration between sentencing guideline          mitigating  factors  and mandatory  minimums .  .  ."   H.R. Rep.          No.460, 103d Cong., 2d Sess. 4 (1994).                                          -26-                    concerning  the offense or offenses that were                    part of  the same course  of conduct or  of a                    common scheme or plan,  but the fact that the                    defendant  has  no relevant  or  useful other                    information to provide or that the Government                    is already aware of the information shall not                    preclude  a determination  by the  court that                    the   defendant   has   complied  with   this                    requirement.          18  U.S.C.     3553(f); see  also  U.S.S.G.     5C1.2 (authorizes                                  _________          sentence  below the  mandatory  minimum  for  specific  offenses,          subject to compliance with section 3553(f)); Monta ez, 82 F.3d at                                                       ________          521  (discussion  of the  aims  of  the legislation).    Notably,          whether there  is a  binding plea agreement  or, as here,  a non-          binding agreement, if it  is determined that a defendant  has met          the  five requirements of the provision, the judge is required to          set aside the  mandatory minimum and sentence the defendant under          the Guidelines.                      In this case, the  district judge denied application of          the  safety  valve  provision,  focusing  only on  the  issue  of          Pacheco-Rijos'   cooperation.23      Apparently   accepting   the          government's  argument that  the facts  which could  be "gleaned"          from the PSR supported denying application of section 3553(f)(5),          the judge  determined that  Pacheco-Rijos did not  deserve relief                                        ____________________          23   As  to  the other  requirements, there  is  no dispute  that          Pacheco-Rijos  was a first-time offender  and that she  was not a          manager  or leader  of the  conspiracy.   Nor has  the government          contended that she used  threats of violence in carrying  out her          role.  The disputes arose in the context of sections 3553(f)(3) &          (5).   At  sentencing, the  government contended  that:   (1) the          offense to which  she pled guilty involved  serious bodily injury          or death; and  (2) that  Pacheco-Rijos failed to  meet the  final          requirement of the safety valve provision, namely, that she fully          disclose her involvement  in the  offense.  As  noted above,  the          court addressed only the government's second argument.                                         -27-          from  her mandatory  minimum sentence because  she had  failed to          "cooperate  fully."    In  so deciding,  he  also  stressed  that          Pacheco-Rijos had  not negotiated  for relief from  the mandatory          minimum  in  her plea  agreement,  an agreement  which,  as noted          above, he incorrectly believed to be binding.                       Section 3553(f)(5) requires that defendants "truthfully          provide  the  government" no  later  than at  sentencing  all the          information  they have  regarding "the  offense or  offenses that          were  part of  the same  course of  conduct or  part of  a common          scheme or plan."  18 U.S.C.   3553(f)(5); U.S.S.G.   5C1.2.                      Questions  with   respect  to  the  scope   of  both  a          defendant's duty to "provide" information -- and the  very nature          of  that information -- have  already confronted this  Court.  In          United  States v. Wrenn,  66 F.3d 1,  3 (1st Cir.  1995), we held          ______________    _____          that  where the  only  disclosure  to  the  government  was  made          inadvertently  -- and  through  the government's  own efforts  to          intercept the defendant's  conversations -- that defendant  could          not be said to have "provided" the information to the government.          Further,  the  Wrenn Court  noted  that where  the  defendant had                         _____          indicated  that he knew the  identity of customers  involved in a          drug trafficking enterprise, but he refused to provide any names,          it  certainly  was  not  erroneous  for  the  district  court  to          determine  that  the  defendant   had  failed  to  provide  "all"          information which he concededly had.  Id.                                                ___                     The question of scope  was further addressed in United                                                                     ______          States  v. Monta ez, 82 F.3d  520 (1st Cir.  1996), in which this          ______     ________                                         -28-          Court  confronted  a  slightly different  question:  whether  the          requirement that a defendant truthfully provide "all" information          established  an affirmative duty on the part of that defendant to          offer himself  or herself  up to  the government for  debriefing.          Id. at 522-523.  While we determined that section 3553(f)(5) does          ___          not require that much,24  we agreed with the district  court that          what the defendant provided in that case was patently inadequate.          For although Monta ez agreed  that he was supplied drugs  that he          then delivered, he  offered no  plausible reason why  he did  not          provide the  government with  the  names of  his drug  suppliers.          Under the circumstances, we found that Monta ez "did not disclose          information that he might reasonably be expected to  possess, nor          persuasively explain its absence."   Id. at 523; see  also Wrenn,                                               ___         _________ _____          66 F.3d at 3.                    This  case is  not  like  Wrenn  or  Monta ez.    In  a                                              _____      ________          submission  by her counsel, included as part of her PSR, Pacheco-          Rijos  explained the limits of her involvement in the conspiracy:          She  was a passive participant, knowing that drugs were stored in          the house and doing little  to stop it.  She said that  she never          handled the drugs, nor was she aware of the firearms.                    That  characterization   was  never  objected   to  nor          explicitly  contradicted  by  the government.    Furthermore,  it          appears to have been accepted  by the probation department  whose                                        ____________________          24  The  fact that a full debriefing is  not statutorily required          does  not provide a  full answer to  the question.   The Monta ez                                                                   ________          Court  noted:  "[A]s a practical matter, a defendant who declines          to offer himself for a debriefing takes a very dangerous course."          Monta ez, 82 F.3d at 523.           ________                                         -29-          amended  report  recommended granting  Pacheco-Rijos  a two-level          adjustment as a minor  participant and specifically characterized          her as a "passive" member of the conspiracy.                    While it is entirely  possible that a minor participant          in  the criminal activities  might know more  than her designated          role  suggests, the  government  offered nothing  concrete to  so          indicate.  In this case, as distinguished from Wrenn or Monta ez,                                                         _____    ________          the government did not rebut a facially plausible tale of limited          involvement by  pointing to information this  defendant must have          known; there was no allegation that this defendant knew the names          of  drug suppliers  or customers  and refused  to indicate  those          names.  There was no specific information the  government alleged          that Pacheco-Rijos had and failed to provide.                     The government  cannot assure success simply by saying,          "We  don't believe the defendant," and doing nothing more.  If it          could,   it  would   effectively  eliminate   the  self-conscious          difference between the safety  valve provision, U.S.S.G.   5C1.2,          which obligates the district court  to determine if the defendant          has truthfully provided all information, see Monta ez, 82 F.3d at                                                   ___ ________          523, and the substantial  assistance provision, U.S.S.G.   5K1.1,          which permits,  upon the government's  motion and at  the court's          discretion, a downward adjustment for certain defendants who have          provided substantial assistance to the government.25                                          ____________________          25   By  this analysis,  we  do not  suggest  any change  in  the          defendant's ultimate burden of proof under U.S.S.G.   5C1.2.  The          defendant  plainly has the burden of  proving, by a preponderance          of  the evidence,  entitlement to  relief under  section 3553(f).          However,   where  a   defendant  in   her  submissions   credibly                                         -30-                    In  the PSR,  there was one  conceivable basis  for the          government's position,  a basis which, standing  alone, is wholly          inadequate:  that because  Pacheco-Rijos  shared living  quarters          with other  co-defendants,26 she  must have had  more information          than she provided to the government.                     Section  3553(f)(5) does  not invite  such speculation.          If  mere conjecture  based  on personal  relationships could  bar          application  of  section 3553(f)(5),  in  all  cases where  minor          participants  knew   others  more  involved,  the   safety  valve          provision would  be beyond  their grasp.   Such a result  was not          intended by  Congress and cannot  be permitted here.   Therefore,          district  court's  bare  conclusion  that  Pacheco-Rijos  did not          "cooperate fully,"  absent either  specific  factual findings  or          easily  recognizable support in  the record, cannot  be enough to          thwart her  effort to  avoid imposition  of  a mandatory  minimum          sentence.27                                         ____________________          demonstrates  that she has  provided the government  with all the          information she  reasonably was expected to  possess, Monta ez 82                                                                ________          F.3d at 523, in order to defeat her claim, the government must at          least come forward with some sound reason to suggest otherwise.            26   One  co-defendant apparently  shared a  somewhat independent          living quarters with Pacheco-Rijos' daughter.           27  We note one other strong inference from the record:  that the          district court did not  apply this provision out of  deference to          the plea agreement into  which the parties had entered  and which          he  erroneously believed  would  be completely  voided unless  he          accepted the  sentencing terms.  This  was not the case.   In any          event, a plea agreement -- even a binding one -- does not replace          the independent determination of the district court as to whether          this provision applies.   See Carrozza, 4 F.3d at  87; U.S.S.G.                                      ___ ________          6B1.2(c) & commentary.                                          -31-                    Accordingly,  we vacate  the sentence  and remand  this          case  for the purpose of  allowing the district  court to revisit          this  issue  and  clarify   the  record  by  filing  supplemental          findings.28   In  the  event that  the  court finds  its  initial          calculation  in error, it should so identify and return, as well,          to the  issue of  other adjustments,  if  appropriate, under  the          Guidelines.                    C.  Juan Jos  Miranda-Santiago                        Juan Jos  Miranda-Santiago                        __________________________                        1.  Facts                        1.  Facts                    Appellant Miranda-Santiago was indicted on the drug and          firearms  charges detailed in Counts One, Three, Four and Five of          the superseding  indictment in this  case.   At his  arraignment,          Miranda-Santiago pled not guilty to all charges.  On September 7,          1994, he  offered to change  his plea  to guilty.   Under a  plea          agreement  entered  into  pursuant  to Rule  11(e)(1)(A)  &  (B),          Miranda-Santiago offered  to plead guilty to  Count One, charging          him  with  possession with  intent  to  distribute narcotics,  21          U.S.C.    846.  In addition, the parties recommended to the court          a  base offense  level of  30, with  a three-level  reduction for          acceptance of responsibility, under U.S.S.G.   3E1.1(b)(1) & (2),                                        ____________________          28  The remaining argument  made by the government below  -- that          the  offense  involved serious  bodily  injury  or death  thereby          disqualifying Pacheco-Rijos from the benefits of the safety valve          provision  --  lacks merit.   It  therefore  does not  provide an          alternative  reason  to  affirm the  district  court's  decision.          Indeed, the government has all but abandoned the argument in this          forum.                                         -32-          resulting in  a  sentencing range  of  70 -  87  months.29   More          specifically,  the parties  agreed to  ask for  a sentence  of 84          months.                      The Miranda-Santiago PSR  contained the same  general          recital  of the  facts  as  that  contained  in  the  other  PSRs          discussed  above.     As   to  Miranda-Santiago's  role   in  the          enterprise, the PSR  indicated that  this defendant  worked as  a          drug  distributor.   He was  not identified  as someone  who used          firearms  or provided  protection  for the  operation.   The  PSR          designated   him  as   a  minor   participant  in   the  offense.          Notwithstanding  that  finding,  the  probation  officer did  not          include a two-level downward adjustment as part of the sentencing          calculation.  The PSR recommended a base level of 30, with only a          three-level reduction for acceptance of responsibility.                      The  appellant  was  sentenced  on  January  11,  1995.          During  the  hearing, the  defendant voiced  no objection  to the          findings  contained in  the  PSR.30   Although he  did not  do so                                        ____________________          29  The  parties had recommended  that, for sentencing  purposes,          the  defendant be held  accountable for at least  3.5 but no more          than 5 kilograms of cocaine.  Accordingly, the base offense level          in this  case was set at  30.  U.S.S.G.    2D1.1.   The defendant          faced a mandatory minimum five year term of imprisonment under 21          U.S.C.   841(b)(1)(B).            30  The  district judge  asked the defendant's  counsel if  there          were any objections to the PSR. He reported that there were  none          and did not ask the  district court judge to make  specific role-          in-the-offense findings.  The  judge also asked the defendant  if          he  had  reviewed  the  PSR  with his  attorney  and  if  he  any          objections  to  it.    Miranda-Santiago  responded  that  he  had          discussed the report with  counsel and that he had  no objections          to it.                                         -33-          during the sentencing hearing, in the written judgment the  judge          adopted  the  PSR's factual  findings,  without  exception.   The          district  court arrived  at  a  base  offense  level  of  27  and          sentenced  Miranda-Santiago  to  a  prison  term  of  78  months,          eighteen months above the mandatory minimum for that offense.                            2.  Legal   Analysis:       Minor   Participant                            2.  Legal   Analysis:       Minor   Participant          Adjustment          Adjustment                    On  appeal,  Miranda-Santiago challenges  his sentence,          arguing  that the district court  erred by failing  to adjust his          offense  level downward two levels  for his role  in the offense.          The appellant  contends that  since the sentencing  court adopted          the  factual findings  of  the PSR,  the  decision not  to  grant          Miranda-Santiago  a  minor participant  adjustment  was a  simple          misapplication of the Guidelines.   Our review -- notwithstanding          the appellant's failure  to raise  the issue below  -- should  be          plenary and the sentence vacated.                    The  government disagrees  and makes,  essentially, two          arguments: First, it contends that,  as a procedural matter, this          Court ought not review this issue because the appellant waived is          rights by not raising the question below.  Second, the government          asserts  that, even  if the  issue is  not waived,  the appellant                                        ____________________              Before this Court, appellant  argues that he nor his  counsel          noticed the  inconsistency within the report. Defendant's counsel          notes that Miranda-Santiago is  illiterate, having only stayed in          school  through the  sixth grade  and that  since he  is Spanish-          speaking  and does not understand English, his only review of the          PSR came through an oral translation of its nineteen pages.                                         -34-          challenges  a   factual  determination  at  sentencing   and  the          determination was not clear error.                      We will consider each  of the government's arguments in          turn.                                a.  Waiver                                a.  Waiver                    The government argues that Miranda-Santiago, in voicing          no objection  to the PSR at  sentencing, has waived  his right to          raise this  issue on  appeal. The appellant  argues that  neither          counsel  nor   the  appellant   noticed  the  error,   and  that,          particularly  given  the pressures  put  on  non-English speaking          defendants with respect to lengthy reports only orally translated          into  Spanish, the absence of an  objection should not constitute          waiver.                    We find that this defendant, given these circumstances,          forfeited his rights but  did not waive them.   The difference is          critical: "Whereas forfeiture  is the  failure to  make a  timely          assertion of  a right, waiver is  the 'intentional relinquishment          or abandonment of a known  right.'"  United States v.  Olano, 507                                               _____________     _____          U.S. 725, 733  (1993); see also  Carrozza, 4 F.3d  at 87 &  n.13.                                 ________  ________          Under Olano, the defendant who forfeited his right is entitled to                _____          review  for plain  error.   This  is a  compelling  case for  the          doctrine.  After all, the claimed error could well have an impact          on the length of defendant's incarceration.                                         -35-                                b.  Standard of Review                                b.  Standard of Review                    The standard  of review  is nonetheless imposing.   The          appellant  seeks the benefit of a plenary review of the question.          We disagree.   Where a  defendant has failed  to raise the  legal          issue below,   the issue can be examined only  for plain error.31          Fed. R. Crim. P. 52(b); Olano, 507 U.S. at 730-32.                                   _____                                c.  Minor Participant Adjustment                                c.  Minor Participant Adjustment                    When a  defendant  is determined  to  be a  "minor"  or          "minimal" participant in criminal activity, a sentencing court is          directed to decrease the base offense level. U.S.S.G.    3B1.2(a)          & (b).32    A minor  participant  is one  "who  plays a  part  in          committing the offense that makes him substantially less culpable          than  the  average  participant."    U.S.S.G.     3B1.2,  comment          (backg'd).33                                        ____________________          31    The  plain  error  standard  requires  that  the  appellant          demonstrate that:  (1) there was an  "error;" (2) it was "plain;"          and  (3) it affected  "the substantial rights"  of the defendant.          E.g.,  United States  v. Olano,  507  U.S. at  732-33. Even  if a          ____   _____________     _____          defendant  meets the  standard  established by  the Olano  Court,                                                              _____          appellate courts  maintain discretion to recognize  the error and          are directed to consider whether the error affects "the fairness,          integrity or  public reputation of judicial proceedings."  Id. at                                                                     ___          732, 735.           32  Minimal participation  merits a four-level decrease; U.S.S.G.            1B1.2(a);  minor  participation  merits  a  two-level decrease,          U.S.S.G.   1B1.2(b).              The appellant contends -- and the government initially agreed          -- that Miranda-Santiago was a minor participant in the  criminal          enterprise.              33  The  defendant carries the  burden of proving  that he was  a          minor participant entitled to a two-level decrease under U.S.S.G.            3B1.2.  E.g.,  United States  v. Ocasio-Rivera, 991  F.2d 1,  3                    ____   _____________     _____________          (1st Cir. 1993).                                           -36-                    On appeal, Miranda-Santiago argues that he was entitled          to  that  reduction, that,  indeed,  the  district court  adopted          factual findings consistent with  granting the reduction and that          the Court committed plain error in denying him the benefit of the          role-in-the-offense adjustment.   The government  argues that the          defendant  was not  entitled  to  the  adjustment  in  the  first          instance  and that the sentencing should not be disturbed at this          late hour, in any event.                    The appellant has the better argument.                     It is  a fundamental obligation of a  district court at          sentencing to "state in open court the reasons for its imposition          of the particular sentence."  19 U.S.C.   3553(c).  To accomplish          this goal,  the court  ordinarily must make  "reasonably specific          findings" and "explain, generally, how it computed the applicable          guideline range."  United States v. McDowell, 918 F.2d 1004, 1012                             _____________    ________          (1st Cir. 1990).                      This obligation has become particularly  critical since          the enactment of the Sentencing  Guidelines.  Under the guideline          regime, factual  determinations made by the  sentencing judge may          have   a   profound  effect   on   the   length  of   defendant's          incarceration.   Ensuring  our  ability to  engage in  meaningful          review of those  findings is essential.   So while we have  found          that  a  sentencing  court  can comply  with  section  3553(c) by          adopting  findings from  the  PSR, see,  e.g.,  United States  v.                                             ___   ____   _____________          Savoie,  985 F.2d 612, 618 (1st Cir. 1993), this technique cannot          ______          be  employed  when  the  PSR  itself  is  unclear  or  inherently                                         -37-          contradictory.    Moreover,  we have  repeatedly  urged  district          courts, in  the interests of buttressing  sentencing calculations          and facilitating appellate review, to make certain that the bases          of  the calculations are clearly set forth.  See United States v.                                                       ___ _____________          Van, 87 F.3d 1, 2-3 (1st Cir. 1996) (collecting cases).              ___                    In this case, the  district judge made few findings  at          the sentencing hearing.   In his judgment, he simply  adopted the          PSR,  in toto.   There is a  problem with that  procedure in this          case:  The PSR,  as  best we  can  decipher it,  judged  Miranda-          Santiago a minor participant in the conspiracy.  It was merely in          calculating the sentence that this finding did not translate into          a  two-level downward adjustment.  The  record therefore does not          provide  an  adequate  factual  basis for  the  district  court's          determination with respect to Miranda-Santiago's role.                    This error  is clear, obvious, and  potentially affects          the appellant's substantial rights.   Accordingly, we vacate this          sentence  and  remand this  case to  the  district court  for the          purpose  of  having the  court  file  supplemental findings  with          respect to appellant Miranda-Santiago's role in the offense.   In          the event that the district court finds its computation in error,          the court should include such a determination in its findings.            III.  CONCLUSION          III.  CONCLUSION                __________                    The convictions  of all  appellants are affirmed.   The                                                            ________          sentence  of  appellant Rivera-DeCelis  is  also  affirmed.   The                                                            ________          sentences  of the  appellants Pacheco-Rijos  and Miranda-Santiago          are vacated, and their cases are remanded for further proceedings              _______                      ________                                         -38-          consistent with this opinion.                                          -39-
