          United States Court of Appeals
                     For the First Circuit

No. 14-1186

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                  CECILIO MERCEDES-DE LA CRUZ,

                      Defendant, Appellant.



          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

         [Hon. Francisco A. Besosa, U.S. District Judge]



                             Before

                       Lynch, Chief Judge,
              Torruella and Selya, Circuit Judges.


          Daniel N. Marx, with whom Robert E. Toone, Michele L.
Adelman, Shrutih Ramlochan-Tewarie, and Foley Hoag LLP were on
brief, for appellant.
          Susan Z. Jorgensen, Assistant United States Attorney,
with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, were on brief, for appellee.



                          May 26, 2015
           LYNCH, Chief Judge.     This is the rare case in which we

find on direct appeal that there was ineffective assistance of

defense counsel and so vacate a conviction and remand for further

proceedings.

           Defendant    Cecilio   Mercedes-De     La   Cruz    appeals    his

conviction and sentence for conspiracy to possess with intent to

distribute    cocaine   and   possession   with   intent      to   distribute

cocaine.     Mercedes' primary argument as to his conviction, made

under two doctrines, is that the government agents who arrested him

lacked probable cause to do so.     First, Mercedes contends that the

failure of the district court to suppress incriminating statements

that he made shortly after the arrest was plain error.             Second, he

argues that, in any event, the failure of his counsel to file a

timely motion to suppress that evidence was a blatant display of

ineffective assistance of counsel.         Mercedes also challenges his

sentence, arguing that the district court (1) improperly increased

his sentence by making an unsupported finding that Mercedes was not

truthful at his sentencing hearing and (2) erroneously failed to

apply the safety valve under 18 U.S.C. § 3553(f).

           We agree with Mercedes' ineffective assistance of counsel

argument and need not reach the plain error issue, and so we vacate

his conviction and remand for further proceedings.            The record is

sufficiently developed and the facts concerning the apparently

unjustified arrest and counsel's failure to move to suppress are


                                   -2-
sufficiently egregious as to warrant relief.                   We also reach the

issue of whether there was sentencing error, lest the error recur

or have some lingering effect in the event of retrial.

                                        I.

              On the evening of September 16, 2012, federal agents

conducted surveillance of a remote stretch of miles of coastline in

the southeast region of Puerto Rico suspected to be an area of drug

trafficking     activity.      The     region    was   known    to    be   a   common

debarkation point for drug shipments.              It is a mountainous rural

region with a lot of brush.

              Customs   and   Border    Patrol    Agent   Luis       Capestany   was

patrolling Puerto Rico State Road 901, which runs near the coast.

He encountered a white van "in three different locations in [a]

very small amount of driving distance," which he found suspicious.

A vehicle registry check revealed that the van was registered to

Jose Miguel Guzmán-De los Santos.1

              Around 3:30 A.M., Capestany learned from his superiors

that there was a boat traveling toward the coast with its lights

out.       A helicopter spied the vessel near a point on the coast

called Punta Toro.      Capestany continued patrolling and encountered



       1
          Guzmán, a codefendant in this case, was convicted of
conspiracy to possess with intent to distribute cocaine.        He
appealed his conviction and sentence, see United States v. Guzmán-
De los Santos, No. 14-1209, but we dismissed the appeal after the
district court issued an order stating that it would dismiss the
indictment.

                                        -3-
a gold Hyundai station wagon with 19-inch nickel chrome rims at a

point where Road 901 intersected with a road going to the coast.

The vehicle turned onto Road 901 and began driving northbound.

Capestany found this suspicious in light of the time of night and

the remote nature of the area.            He ran the Hyundai's plates and

discovered that they were registered to a Mazda.

              Shortly afterward, Capestany saw three individuals run

from the direction of the beach and "spe[e]d off" along Road 901 in

a red two-door coupe.        Capestany notified the other agents in the

area of the suspicious activity he had observed.

              By that time, the vessel which the agents had been

monitoring had neared the coastline near Punta Toro.               There is no

evidence there had been previous drug encounters on the Punta Toro

beach.      Capestany called for backup, and he and seven other agents

eventually made their way down a gravel road toward Punta Toro.

They encountered approximately six residences along that road,

which were inhabited and "well kept."

              Around 4:30 A.M., the agents encountered an abandoned red

Ford Excursion stuck at the end of the gravel road.                There were

several containers of gasoline next to the vehicle, but the agents

did   not    find   any   people   or   contraband   nearby   at   that   time.

Capestany and five of the agents continued walking toward the shore

along a grass trail, while two of the agents, Wilfredo Vega-Flecha

and a municipal police officer, who were armed, stayed behind at


                                        -4-
the end of the gravel road to "mak[e] sure that nobody would try to

take that vehicle out."

             Approximately half an hour later, in the darkness of the

early morning in an unlit area, the two agents next to the

Excursion heard a noise in a nearby wooded area.     Vega had night-

vision goggles and used them to observe an individual -- later

identified as Mercedes -- walking out of the woods toward the

Excursion.     He did not observe any weapons with the man.

             Mercedes could not see the agents because it was still

dark.   Vega testified that the two agents told Mercedes to stop,

and "[h]e raised his hands, and we placed him under arrest"

(emphasis added).     The government does not dispute that Mercedes

was arrested immediately after Vega stopped him.        There was no

Terry stop; there was, rather, an immediate arrest.

             The other six officers eventually discovered 33 bundles

containing nearly 1000 kilograms of cocaine near a dry creek bed

about 100 feet away from the Excursion.          The boat that had

apparently delivered the drugs was found abandoned in the sand with

its lights on.     However, Vega and his partner did not know about

the discovery of the drugs or the boat at the time of Mercedes'

arrest. At trial on direct examination, Vega said only that he saw

Mercedes coming toward him, "told him to stop," and arrested him.

Vega did not mention any concern for officer safety.       On cross-

examination, when asked why he arrested Mercedes, Vega replied:


                                  -5-
           Well, first of all, he is in a place where
           there is a vehicle that is presumed to be in
           the drug trafficking. He doesn't know about
           the place because he seems to be from another
           places [sic].    I don't know him.    For my
           safety, I placed him under arrest.

Only after the arrest did the two officers search Mercedes; they

found a wallet with identification and $20 cash.      They found no

weapons.   They saw that Mercedes was wet from the waist down.   Vega

asked Mercedes, "How many are you?"   Mercedes did not respond, and

Vega asked him again.     Mercedes said, "Four."   Vega then asked

(again twice) how much Mercedes had been paid "to do this job."

Mercedes responded, "$1,000."

           At that time, several other officers arrived on the

scene, and Vega instructed them to take Mercedes and "place him in

a cell at the Maunabo station house."     Mercedes was later taken

from Maunabo to the Puerto Rico Police Marine Unit in Humacao, and

then to the main office of Homeland Security Investigations in

Miramar.   Mercedes was handcuffed while in the vehicle.

           Upon Mercedes' arrival in Miramar, a Homeland Security

investigator, Angel Ortiz, led Mercedes to a detention cell area.

At that point, Ortiz testified, Mercedes made "several spontaneous

statements" that he had "done this for $1,000" and that "he really

didn't know who the owners were of whatever it was that he was

doing." Ortiz stopped Mercedes from speaking because Ortiz had not

yet administered Mercedes his Miranda rights, nor had anyone else.



                                -6-
             Once the group reached a processing cell, Ortiz read

Mercedes his Miranda rights and had him sign forms indicating that

Mercedes understood his rights and would waive them.               Ortiz then

interviewed    Mercedes.      Mercedes     recounted   that   a   person    had

approached him on the previous day and asked him "if he wanted to

make $1,000"; that he had traveled to the coast in a van and helped

unload white sacks from the boat on the coast; and that all of the

men unloading the boat's cargo had run away when they saw a

helicopter approaching the vessel.         Mercedes indicated that, after

he started running, the "next thing he knew [was] that two police

officers had apprehended him."

             Mercedes and co-defendants Guzmán and Victor Manuel

Carela2 were indicted on September 27, 2012, on two charges:

conspiracy    to   possess   with   intent   to   distribute      cocaine   and

possession with intent to distribute cocaine.           The district court

issued a scheduling order requiring all motions to suppress to be

filed by "November 2, 2012 or, if the case is continued, no later

than fourteen (14) days before the trial date." Counsel for Guzmán

and Carela both filed motions to suppress statements their clients

had made during and after their arrests on the grounds that their

arrests were illegal.        The co-defendants' motions were based on

very different facts far less favorable to those defendants than



     2
          Carela has also appealed his conviction and sentence.
See United States v. Carela, No. 14-1194.

                                     -7-
the facts were as to Mercedes.     The district court denied both

motions.   Mercedes' counsel did not file a motion to suppress.

           There were two trials in this case; the first began on

April 15, 2013.   On the first day of that trial, before the jury

was brought into the courtroom, Mercedes' counsel referred to the

government's motion in limine, which had asked the court to

"preclude the defendants from presenting, at trial, any argument as

to the legality of their questioning by law enforcement officers."

In that motion, the government had repeated the district court's

observation (made in its ruling on the co-defendants' motions to

suppress) that Mercedes had waived his right to file a motion to

suppress by failing to file one by the court-imposed deadline.

Mercedes' counsel acknowledged that he had not filed a motion to

suppress, but stated that Mercedes "ha[d] waived no right" and

directed the court's attention to the Supreme Court's decision in

Crane v. Kentucky, 476 U.S. 683 (1986).3

           The district court asked Mercedes' counsel what the Crane

case "ha[d] to do with being late and not complying with the

Court's order."     The court reminded counsel that, under the

pretrial order, all motions to suppress were required to be filed

14 days before trial.   Mercedes' counsel replied that "[t]his is


     3
          Crane held that the circumstances surrounding a
defendant's   confession  are   relevant   to  the   confession's
credibility, as well as its voluntariness, and that the district
court's exclusion of testimony about those circumstances deprived
the defendant of his right to a fair trial. 476 U.S. at 687-91.

                                -8-
not a motion to suppress" (emphasis added); he merely wished to

cross-examine the agents regarding the circumstances surrounding

Mercedes' confession.4   The court stated that such questioning

would be allowed.

          The first trial ended with a hung jury on April 22, 2013.

The case was retried three weeks later, on May 13, 2013.    At the

beginning of that trial, the court stated that "the . . . rulings

stand as to [the parties'] previous motions."    Mercedes' counsel

told the court that "concerning the motion to suppress, we will

reiterate the case law we quoted the last time."      At no point,

however, did counsel explain his failure to comply with the

district court's scheduling order or even request leave to file an

untimely motion to suppress.

          The second jury convicted Mercedes on both counts in the

indictment.   This appeal followed.

                                II.

          Mercedes, through different counsel, argues on appeal

that there was no probable cause for his arrest and hence that the

inculpatory post-arrest statements he made to the agents must be

suppressed as fruit of the poisonous tree. He also argues that his

trial attorney's failure to file a motion to suppress on those



     4
          Nonetheless, Mercedes' counsel challenged the lawfulness
of Mercedes' arrest in Rule 29 motions filed at the close of the
government's case in both trials. The court denied both motions
from the bench.

                                -9-
grounds at any time constituted ineffective assistance of counsel

in violation of the Sixth Amendment.

            We very "rarely review Sixth Amendment claims against

trial counsel raised initially on direct appeal." United States v.

LaPlante, 714 F.3d 641, 648 (1st Cir. 2013).              That is, in part,

because such claims usually present factbound questions on which

the record is insufficiently developed -- questions about whether

counsel's challenged decisions were mistakes of a constitutional

magnitude or simply reasonable strategic choices that did not pan

out, and about whether any deficient performance actually made the

defendant worse off.       See id.; United States v. Downs-Moses, 329

F.3d 253, 264-65 (1st Cir. 2003). However, the usual rule does not

apply if "the key facts are not in dispute" and the record is

"'sufficiently developed to allow a reasoned consideration'" of the

claim.     Downs-Moses, 329 F.3d at 265 (quoting United States v.

Natanel, 938 F.2d 302, 309 (1st Cir. 1991)).

            This is such an exceptional case.       We have no difficulty

concluding on this record that Mercedes' trial counsel's failure to

file a timely motion to suppress amounted to constitutionally

deficient    performance    and   that   Mercedes   was   prejudiced   as   a

result.5


     5
          This case does not require us to consider the waiver-
related consequences of a failure to file a timely suppression
motion under the recently amended Federal Rule of Criminal
Procedure 12. See United States v. Anderson, 783 F.3d 727, 740-41
(8th Cir. 2015); United States v. Soto, 780 F.3d 689, 700-01 & n.2

                                    -10-
A.         Legal Framework

           "A convicted defendant's claim that counsel's assistance

was so defective as to require reversal of a conviction . . . has

two components."     Strickland v. Washington, 466 U.S. 668, 687

(1984).   First, the defendant must show that counsel's performance

was objectively unreasonable "under prevailing professional norms."

Id. at 688.     In making this assessment, courts must be "highly

deferential" and "indulge a strong presumption that . . . under the

circumstances, the challenged action might be considered sound

trial strategy."    Id. at 689 (internal quotation marks omitted);

accord Woods v. Donald, 135 S. Ct. 1372, 1375 (2015) (per curiam).

Second,   the   defendant    must    show   that   counsel's   deficient

performance resulted in prejudice -- that is, "that there is a

reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different."

Strickland, 466 U.S. at 694; accord Woods, 135 S. Ct. at 1375.        In

this specific context, where the alleged ineffectiveness was the

failure to file a motion to suppress, in order to show prejudice

the defendant must "prove that his Fourth Amendment claim is

meritorious" and that there is a reasonable probability that the




(6th Cir. 2015).    Here, Mercedes has argued that his counsel's
performance was constitutionally deficient precisely because he
failed to file such a motion. We can resolve that claim regardless
of whether the suppression claim itself was waived or forfeited.
Cf. Kimmelman v. Morrison, 477 U.S. 365, 374 n.1 (1986).

                                    -11-
verdict would have been different had the challenged evidence been

excluded.     Kimmelman v. Morrison, 477 U.S. 365, 375 (1986).6

B.            Performance

              Defense counsel's failure to file a timely motion to

suppress      Mercedes'       post-arrest       statements      was    objectively

unreasonable under prevailing professional norms.                The adequacy of

the justification for Mercedes' very prompt arrest was an issue in

the   case.         Defense   counsel   knew     that:   he    had    questioned    a

government witness at Mercedes' preliminary detention hearing about

the circumstances surrounding the arrest, asking if Mercedes had

"done anything wrong besides walking around close to a van."                   Both

of Mercedes' co-defendants, who had far less promising factual

grounds, filed timely motions to suppress. Yet counsel never filed

a motion to suppress on behalf of Mercedes, much less a timely one.

              The    government   argues       that   this    "may    have   been   a

strategic choice," reasoning that counsel may have wanted instead

to cross-examine government witnesses about the circumstances

surrounding Mercedes' arrest.            But Mercedes' counsel could have



      6
          Importantly, the prejudice inquiry does not require the
defendant to show that the unlawfully obtained evidence was
unreliable, or that its admission created a risk of convicting an
innocent person. "The 'prejudice' essential to a violation of the
Sixth Amendment right to the effective assistance of counsel is not
being convicted though one is innocent, although that is the worst
kind; it is being convicted when one would have been acquitted, or
at least would have had a good shot at acquittal, had one been
competently represented." Owens v. United States, 387 F.3d 607,
610 (7th Cir. 2004) (Posner, J.).

                                        -12-
filed a timely motion to suppress Mercedes' post-arrest statements

and still conducted such cross-examination if the motion were

denied.    The two courses of action were not mutually exclusive.7

See Johnson v. United States, 604 F.3d 1016, 1020-21 (7th Cir.

2010) (suggesting that counsel's failure to file a motion to

suppress evidence found in a car the defendant had borrowed may

have been unreasonable, and rejecting the argument that "it was a

better defense . . . for [the defendant] to claim a lack of

knowledge that the drugs were in the vehicle" because there was "no

inherent    conflict     between   a    trial    defense       based   on   [the

defendant's] lack of knowledge that the drugs were in the car, and

a motion to suppress contending that the search violated his

reasonable expectation of privacy in the vehicle"); Owens v. United

States,    387   F.3d   607,   608-09   (7th    Cir.   2004)    (finding    that

counsel's decision to forfeit his client's standing to raise a

Fourth Amendment challenge to the search of a house where crack had

been discovered by denying that the client owned the house was

unreasonable because, "in the unlikely event that the motion

failed, the defense could change course and try to prove at trial

that it was not [defendant's] house after all").

     7
          Ironically, Crane, the case defense counsel cited at the
beginning of the first trial in attempting to explain his failure
to file a motion to suppress, featured just such a strategy:
defense counsel filed a motion to suppress the defendant's
confession on the ground that it was involuntary, and then, after
the motion was denied, tried to pursue lines of attack at trial
suggesting that the confession was unreliable and not credible,
even if not coerced. 476 U.S. at 684-86.

                                    -13-
            What is more, a timely motion to suppress on the ground

that the agents did not have probable cause to arrest Mercedes

would quite likely have been meritorious.                As Vega's testimony

confirmed, the only fact the agents knew about Mercedes at the time

of his arrest which indicated that he might be involved in criminal

activity was that he was in the same general area as a suspected

drug-smuggling venture.8

            It is black-letter law that "[a]n individual's presence

in an area of expected criminal activity, standing alone, is not

enough to support a reasonable, particularized suspicion that the

person is committing a crime," Illinois v. Wardlow, 528 U.S. 119,

124 (2000) (citing Brown v. Texas, 443 U.S. 47 (1979)), much less

a finding of probable cause, see, e.g., Ybarra v. Illinois, 444

U.S. 85, 90-91 (1979) (finding no probable cause when "the agents

knew nothing in particular about [the defendant], except that he

was present, along with several other customers, in a public tavern

at a time when the police had reason to believe that the bartender

would have heroin for sale").         Although presence in a "'high crime

area'" is a "relevant contextual consideration[]," at least in a

Terry    analysis,   Wardlow,   528    U.S.   at   124    (quoting   Adams   v.

Williams, 407 U.S. 143, 144 (1972)), not even that factor is


     8
           Vega testified that Mercedes was "in a place where there
is a vehicle that is presumed to be in the drug trafficking" and
that "he seem[ed] to be from another place[]." Vega also said that
he arrested Mercedes "[f]or [Vega's] safety" because he "d[idn't]
know him."

                                      -14-
applicable here.       The location where Mercedes was found was hardly

a "high crime area."         It was a large wooded area with trails near

a beach in rural Puerto Rico, and there were five or six "well

kept" houses nearby.         The officers had no apparent basis on which

to conclude that Mercedes was not associated with those houses.

              The   government's       argument       that    there    was   no     other

reasonable outcome than a conclusion that there was probable cause

for     the   arrest   is     wrong,    as     well     as    being     confused     and

unpersuasive.       It is confused because the government invokes the

"reasonable suspicion" standard utilized for a Terry stop, which

does not apply here.         This was not a Terry stop.             An arrest must be

supported by probable cause, see Kaupp v. Texas, 538 U.S. 626, 630

(2003) (per curiam), which is an "obviously" higher burden than

reasonable suspicion, Navarette v. California, 134 S. Ct. 1683,

1687 (2014) (internal quotation marks omitted).                       The argument is

unpersuasive because the government fails to identify any fact

known    to   the   agents    before    the    arrest        that   would    have   cast

suspicion on Mercedes besides the fact that he was in a "remote

area" that "had been the site of drug smuggling over the past

month."       The government mistakenly argues the agents knew more

before the arrest: Mercedes "was found at the crime scene," "was

wet and sandy, indicating he had been on the beach," and was

walking toward "the getaway vehicle" early in the morning. But the

arresting agents did not know that Mercedes was wet until they


                                        -15-
"checked him out" after the arrest, and they did not know that the

area was a "crime scene" or that the Excursion was "the getaway

vehicle" until they discovered the drugs.      At the time of the

arrest, they knew a vessel had been spotted coming toward the

coast, but they did not know there was cocaine inside or that

Mercedes was connected with the boat.   "[A] search unlawful at its

inception may [not] be validated by what it turns up."   Wong Sun v.

United States, 371 U.S. 471, 484 (1963). And if officer safety was

truly the issue, a Terry stop would have sufficed.

          That a timely motion to suppress Mercedes' statements

would likely have been meritorious and without repercussion to

other defense strategies confutes any argument that counsel's

failure to file such a motion was professionally reasonable.    See,

e.g., Gentry v. Sevier, 597 F.3d 838, 851-52 (7th Cir. 2010);

Owens, 387 F.3d at 608-09; State v. Reichenbach, 101 P.3d 80, 84,

87 (Wash. 2004); State v. Silvers, 587 N.W.2d 325, 334 (Neb. 1998);

Commonwealth v. Davis, 743 A.2d 946, 953 (Pa. Super. Ct. 1999).

          In short, the government has not provided -- and the

record does not disclose -- any plausible strategic explanation for

counsel's failure to file a timely motion to suppress, and so we

conclude that his performance was constitutionally deficient.   See

Kimmelman, 477 U.S. at 385-86 (finding counsel's failure to file

motion to suppress objectively unreasonable because the record

suggested "no better explanation" for his failure than "ignorance


                               -16-
of the law" and "a complete lack of pretrial preparation"); Tice v.

Johnson, 647 F.3d 87, 106 (4th Cir. 2011) ("There is simply nothing

we can discern from the record that would excuse the defense team's

failure to move to suppress [the defendant's] confession.").             The

mere inconvenience to defense counsel of having to meet a pretrial

schedule for filing motions is surely not enough.

C.         Prejudice

           We   are   also   satisfied    that   there   is   a   reasonable

probability that, had Mercedes' counsel filed a motion to suppress,

the outcome of the proceeding would have been different.            As said,

had such a motion been filed, it likely would have succeeded, and

had it succeeded, many (perhaps all) of Mercedes' inculpatory

statements would have been excluded as "fruit of the poisonous

tree."    See generally Brown v. Illinois, 422 U.S. 590, 602-04

(1975); Wong Sun, 371 U.S. at 487-88; United States v. Stark, 499

F.3d 72, 76-77 (1st Cir. 2007).

           The government's case against Mercedes was based almost

exclusively on those statements.          Indeed, in the government's

closing   argument,    the   prosecutor   repeated   that     Mercedes   had

admitted his involvement in the transaction nearly every time she

mentioned him, and she referred to scant other evidence of his

participation.    Cf. United States v. Melvin, 730 F.3d 29, 40 (1st

Cir. 2013) (relying on prosecutor's closing argument to determine

whether improperly admitted testimony was sufficiently important to


                                  -17-
the government's case so as to require vacatur of the defendant's

conviction).      There   was   no   assertion   that   any   of   the   other

defendants had identified Mercedes as involved in unloading the

cocaine. Exclusion of the post-arrest statements would likely have

eviscerated the government's case.          See, e.g., Tice, 647 F.3d at

111; Reichenbach, 101 P.3d at 87.

                                     III.

           Our decision to vacate Mercedes' conviction might be

thought to render it unnecessary to reach his claims of sentencing

error.   Nevertheless, to prevent possible recurrence, we think it

appropriate to add this coda regarding the sentence imposed by the

district court.

           At sentencing, the defense contended that Mercedes should

be considered "a minor participant" for purposes of his Sentencing

Guidelines calculation because "there was no evidence whatsoever

that demonstrated that [he] in any way was a principal in this

case."   Instead, Mercedes argued, he was "merely a workman."             The

government disagreed, stating that Mercedes was "an integral part"

of "a $22 million convert [sic] offloading operation which required

individuals of trust."          As support, the prosecutor pointed to

Mercedes' confession that "he was paid $1,000 and that . . . he was

involved in the offloading of the narcotics," and to the fact that

he ran away when he saw the helicopter, suggesting "that he knew

what he was doing was wrong."


                                     -18-
          After counsel made these arguments, the district court

gave Mercedes an opportunity to allocute.   The following colloquy

ensued:

                 THE DEFENDANT: Well, I would like to
          say to you that, as far as I know, I don't
          believe there is any evidence that makes me
          responsible for that.

                 THE COURT:   For what?

                 THE DEFENDANT: For the circumstances
          that the Prosecutor is referring to, because
          he did not see me with that. And if he didn't
          see me with that and he doesn't have any
          fingerprints of mine on that, he cannot make
          me guilty of that.

                 THE COURT:   But you were there.

                 THE DEFENDANT: I was on the road. A
          policeman arrested me, and he took me. They
          had a red truck.

                 THE COURT: That's not how I remember
          the case, Mr. Mercedes.    If I remember the
          case, you were arrested right there as you
          came out of the bushes with your hands up.

                 THE DEFENDANT:      Well, that's the
          version from the policeman that arrested me.
          And he said three versions at the same time,
          and none of them were justified. My attorney
          asked him at what moment he had arrested me,
          and he said he arrested me because he saw me
          as a suspect around there.
                 On that day, the 17th of September,
          2012, the sun came out around 6:13 in the
          morning, and he said he had binoculars, night
          vision goggles, and that he had arrested me at
          6:00 in the morning.     And at 6:30 in the
          morning, if he has those night vision goggles
          that he had arrested me at 6:30 -- but at 6:13
          is when the sun came out. What can he do with
          that on his face at that time in the morning,
          at 6:30?

                               -19-
                  I think it was verified that he was not
           precise continuously as to that. And as to
           everything else, those are things that I leave
           at your sound discretion.
                  Thank you.

           The    district    court    granted   the   minor   participant

reduction and calculated Mercedes' guidelines sentencing range as

121 to 151 months.     The court then found that Mercedes had been

untruthful in his allocution:

                  Today Mr. Mercedes has indicated that
           there is no evidence of his involvement in the
           operation. He indicated that he was arrested
           on the road.
                  Trial evidence demonstrated, however,
           that Mr. Mercedes was arrested shortly after
           the agents arrived, when he came out of the
           bushes close to where the red [Excursion] was
           and close to where the [33] bales of cocaine
           were stashed.
                  He has not been truthful to the Court
           today, and the sentence will reflect it.

           The court sentenced Mercedes to 136 months in prison. We

conclude   that    there     is   a   probability   the   district   court

misunderstood the colloquy and so committed sentencing error.

           The district court's decision to increase Mercedes'

sentence rested on an extremely doubtful finding that Mercedes was

untruthful in his allocution.9        As we read the record, Mercedes was


     9
          The government says the district court did not penalize
Mercedes because it did not impose an obstruction of justice
enhancement.   That argument misses the mark.     Mercedes has not
contested any enhancement under the guidelines, nor has he argued
he should have received a reduction (for example, for acceptance of
responsibility).    Instead, as we read Mercedes' brief, he is
contesting the district court's decision to impose a more severe
sentence than it otherwise would have based on Mercedes' purported

                                      -20-
simply disputing (1) the version of events that the prosecutor

relayed at sentencing, which suggested that Mercedes was a major

player in the drug smuggling enterprise, and (2) parts of the

arresting agent's testimony. Mercedes did not contest his guilt at

sentencing. The district court's finding that Mercedes denied "his

involvement in the operation" is thus without support in the

record.        Cf. United States v. Al-Rikabi, 606 F.3d 11, 14-16 (1st

Cir. 2010).10

                Mercedes'     limited   proficiency     in   English,      which    is

apparent        from    the    sentencing      transcript,     buttresses         this

conclusion.        Any perceived inaccuracies in Mercedes's allocution

were likely a result of the language barrier, not dishonesty on

Mercedes' part.          Cf. Nadmid v. Holder, ___ F.3d ___, 2015 WL

1787066, at *3 (7th Cir. Apr. 21, 2015) (rejecting an immigration

judge's adverse credibility finding with respect to an asylum

applicant whose "answers suggest[ed] that translation problems

ha[d] made it difficult [for him] to understand the questions posed

to him"); Ramsameachire v. Ashcroft, 357 F.3d 169, 180 (2d Cir.

2004)        (noting   that   statements    made   by   an   alien   who    may    not

understand        English     "should    be    considered     less    reliable").



dishonesty during his allocution.
        10
          We note that the court's decision not to apply the safety
valve, which Mercedes also challenges on appeal, was dubious. We
leave the safety valve issue for the district court to resolve in
the first instance should it recur on remand.

                                        -21-
Sentencing courts should exercise great caution before penalizing

a defendant with limited proficiency in English based on arguably

ambiguous statements.

                               IV.

          We vacate Mercedes' conviction and sentence and remand

this case for further proceedings.




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