          United States Court of Appeals
                     For the First Circuit


No. 18-1418

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                          DAVID LÓPEZ,
                 a/k/a CILINDRO, a/k/a VILLANO,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. F. Dennis Saylor IV, U.S. District Judge]


                             Before

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


     Michael M. Brownlee and The Brownlee Law Firm, P.A., on brief
for appellant.
     Andrew E. Lelling, United States Attorney, and Randall E.
Kromm, Assistant United States Attorney, on brief for appellee.


                         April 30, 2020
          SELYA, Circuit Judge.   The backdrop for this sentencing

appeal is the government's relentless pursuit of a notorious

criminal gang, famously known as MS-13. The appeal itself requires

us to answer a question of first impression in this circuit:         when

a defendant is convicted of racketeering conspiracy under the

Racketeer Influenced and Corrupt Organizations Act (RICO), 18

U.S.C. § 1962(d), does the imposition of a role-in-the-offense

enhancement, see USSG §3B1.1, depend upon the defendant's role in

the racketeering enterprise as a whole or, instead, upon his role

in the discrete acts of racketeering activity that underpin the

RICO conviction? We conclude that such an enhancement is dependent

upon the defendant's role in the criminal enterprise as a whole.

We further conclude that the court below supportably found that

defendant-appellant   David   López    occupied   a     managerial     or

supervisory role in the racketeering enterprise involved here.

Accordingly, we affirm the challenged sentence.

I. BACKGROUND

          "Because this appeal follows a guilty plea, we draw the

facts from . . . the change-of-plea colloquy, the unchallenged

portions of the presentence investigation report (PSI Report), and

the transcript of the disposition hearing."           United States v.

Ocasio-Cancel, 727 F.3d 85, 88 (1st Cir. 2013).       The MS-13 street

gang is a Salvadorian-based, transnational criminal enterprise

with a pervasive foothold in the United States, where it operates


                               - 2 -
a myriad of subgroups, called "cliques," in no fewer than forty-

six states.     MS-13 cliques hold meetings at which, among other

things, they collect dues, plan criminal exploits, and hash out

membership issues.     Each clique typically has two chieftains:            a

"First Word," who is responsible for organizing and directing the

clique, and a "Second Word," who serves as the First Word's alter

ego and assumes those duties in the First Word's absence.

             There is also what amounts to a caste system within each

clique.   Members, known as "homeboys," are on the upper rungs of

the hierarchy.     According to the government, an aspirant usually

must   "participate   in   the   killing   of   a   rival   gang   member   or

suspected informant" to achieve that status.          Prospective members,

called "paros," are allowed to "hang around" with members.             Paros

who are deemed to be adequately trustworthy are promoted to

"chequeos," a status that affords them increased access to members.

             In 2013 and 2014, several young chequeos and paros,

including the appellant, began forming a new MS-13 clique in

Chelsea, Massachusetts.     This group, though, was without a leader.

In the spring of 2014, centralized MS-13 command staff sent Rafael

Leoner-Aguirre (Leoner), a homeboy, from Michigan to Massachusetts

to organize the fledgling Chelsea group into a sanctioned clique.

The appellant proved to be an active and trustworthy disciple, and

he was promoted to chequeo as the clique evolved under Leoner's

direction.


                                   - 3 -
             In April of 2014, federal authorities arrested Leoner

and charged him with attacking members of a rival gang. See United

States v. Leoner-Aguirre, 939 F.3d 310, 313-14 (1st Cir. 2019),

cert.   denied,    140   S.   Ct.   820   (2020).    Notwithstanding     his

immurement, the Chelsea clique continued to regard Leoner as its

First Word.     Meanwhile, the appellant took over as the de facto

leader of the clique on the streets, directing the clique's illicit

activities with Leoner's oversight.

             On May 29, 2014, the appellant and a fellow clique

member, Daniel Menjivar, attacked a member of a rival gang, Denys

Perdomo Rodriguez (Perdomo), at a bus stop in Chelsea.             Menjivar

initiated the attack, stabbing Perdomo repeatedly.         As Perdomo lay

bleeding on the ground, the appellant shot him several times.

Although grievously wounded, Perdomo survived.

             Menjivar was subsequently arrested for his role in the

Perdomo affair.     Upon learning of Menjivar's arrest, the appellant

fled to New Jersey.       Once there, he was promoted to homeboy for

his part in the assault on Perdomo.

             We fast-forward to April of 2015.      Around that time, the

authorities learned that the Chelsea clique was planning to kill

one of its own members, CW-2, premised on the mistaken belief that

he was then a police informant.       The investigators also learned of

the clique's efforts to bring the appellant back from New Jersey

to   carry   out   the   murder.     In   seeming   confirmation   of   this


                                    - 4 -
intelligence, investigators spotted the appellant seated in a car

near CW-2's home on April 27. He was accompanied by another clique

member and a government cooperator (CW-1).              In a conversation

recorded at that time, the appellant indicated that the clique had

the "go ahead" to kill CW-2 and proposed alternative methods for

carrying out the slaying (such as cutting his throat or strangling

him with a wire).

          On April 28, CW-2 — who by then had begun cooperating

with the government — testified before a federal grand jury as

part of its probe into MS-13.    That same day, ongoing surveillance

recorded a conversation between the appellant and another clique

member, memorializing their attempts to find and murder CW-2.

          In due course, the grand jury handed up a nineteen-count

fifth superseding indictment charging sixty-one MS-13 associates

(including   the    appellant)   with    a   golconda    of   racketeering

activities, firearms and drug offenses, and sundry other crimes.

Pertinently, the grand jury charged the appellant with conspiracy

to conduct enterprise affairs through a pattern of racketeering

activity, in violation of 18 U.S.C. § 1962(d).             The indictment

listed a number of specific racketeering acts undergirding the

broader conspiracy.    With respect to the appellant, the specified

acts were the attack on Perdomo and the planned execution of

CW-2.




                                 - 5 -
               Although he initially maintained his innocence, the

appellant changed his plea to the sole count against him shortly

before his scheduled trial. The district court accepted his guilty

plea.        The court then ordered the preparation of a PSI Report

which, when received, led to a wrangle over a recommended three-

level role-in-the-offense enhancement under USSG §3B1.1(b).

               The appellant objected to the PSI Report's application

of the role enhancement and, relatedly, to its calculation of the

guideline sentencing range (GSR).           He asserted that the government

had not established that he was a manager or supervisor with

respect to the assault on Perdomo because he was only a chequeo,

not a homeboy, when that assault occurred.                 Therefore, the PSI

Report had artificially inflated both his total offense level and

GSR.

               In its sentencing memorandum, the government agreed with

the probation officer's conclusion that a three-level enhancement

for    the    appellant's   role   in    the    offense   was   warranted.   It

disagreed, though, with the probation officer's methodology for

arriving at the enhancement.            The probation officer had analyzed

the appellant's role in each of the predicate racketeering acts

separately and concluded that the enhancement only applied to the

plot to murder CW-2.          The government countered that the role

enhancement should apply across the board based on the appellant's

managerial role in the overall conspiracy.


                                        - 6 -
          At the disposition hearing, the court acknowledged the

appellant's objection to the conclusion that he "was a manager or

supervisor."     The court proceeded to overrule this objection

because the unchallenged portions of the PSI Report adumbrated

facts sufficient to support a finding that the appellant had acted

as a manager or supervisor of the clique as a whole.                The court

also acknowledged that the government had raised a "subsidiary

issue" concerning how the relevant guideline provision should be

construed and applied.         Even so, the court was content to say that

the appellant was a manager or supervisor of the enterprise as a

whole   and,    thus,    it     effectively       adopted   the   government's

interpretation of the relevant guideline.            The appellant objected,

noting that if his interpretation of the relevant guideline were

to be employed, both the offense level and the corresponding GSR

would be reduced.

          After hearing arguments of counsel and the appellant's

allocution, the court imposed the statutory maximum sentence of

240 months. See 18 U.S.C. § 1963(a). This timely appeal followed.

II. ANALYSIS

          "Appellate review of a criminal defendant's claims of

sentencing error involves a two-step pavane."               United States v.

Miranda-Díaz,    942    F.3d    33,   39   (1st   Cir.   2019).    Under   this

framework, we first examine any claims of procedural error.                See

United States v. Matos-de-Jesús, 856 F.3d 174, 177 (1st Cir. 2017).


                                      - 7 -
When examining such claims, we evaluate the district court's

interpretation and application of the sentencing guidelines de

novo.     See United States v. Ruiz-Huertas, 792 F.3d 223, 226 (1st

Cir. 2015).     "If the sentence passes procedural muster, we then

address any challenge to its substantive reasonableness."                   Matos-

de-Jesús, 856 F.3d at 177.        Here, however, the appellant does not

challenge the substantive reasonableness of his sentence.

            With this framework in mind, we tackle the appellant's

contention that his sentence was procedurally unreasonable because

the district court misinterpreted the sentencing guidelines when

calculating his total offense level. His principal claim of error,

which   engenders     de   novo   review,      poses   a   question    of    first

impression in this circuit:            when a defendant is convicted of

racketeering conspiracy under RICO, does the imposition of a role-

in-the-offense enhancement depend upon the defendant's role in the

racketeering enterprise as a whole or, instead, upon his role in

the discrete acts of racketeering activity that underpin the RICO

conviction?     Answering this question requires us to explore the

interplay between USSG §2E1.1 and USSG §3B1.1.

            Section 2E1.1 provides a roadmap for calculating the

offense    level    applicable    to    an     offender    convicted   of     RICO

conspiracy.        Specifically, it states that a defendant's base

offense level should be the greater of nineteen or "the offense

level applicable to the underlying racketeering activity."                    USSG


                                       - 8 -
§2E1.1. This offense level may be adjusted upward if the defendant

qualifies for one or more of various sentencing enhancements.                 See

USSG §2E1.1 cmt. n.1.

             In the case at hand, the district court determined that

the appellant qualified for a role-in-the-offense enhancement

under section 3B1.1(b), which provides for a three-level upward

adjustment "[i]f the defendant was a manager or supervisor (but

not an organizer or leader) and the criminal activity involved

five or more participants or was otherwise extensive."                  There is

an   open   question,   though,    as    to   how    the   foundation   for   the

enhancement should be laid.             Application Note 1, appended to

section     2E1.1,   furnishes    some    direction        for   resolving    this

quandary.    That note states:

      Where there is more than one underlying offense, treat
      each underlying offense as if contained in a separate
      count of conviction for the purposes of subsection
      (a)(2).   To determine whether subsection (a)(1) or
      (a)(2) results in the greater offense level, apply
      Chapter Three, Parts A, B, C, and D to both (a)(1) and
      (a)(2). Use whichever subsection results in the greater
      offense level.

USSG §2E1.1 cmt. n.1.

             Relying on this language and advice from the Sentencing

Commission's     Office   of     Education     and    Practices     (OEP),    the

probation officer examined the predicate acts underpinning the

RICO conspiracy conviction (the attack on Perdomo and the planned

attack on CW-2) independently to determine the applicability of



                                    - 9 -
the putative role-in-the-offense enhancement.             The district court

was not so sanguine, observing that such an approach would lead to

anomalous results:      it "would actually put a person in a better

position if [he was] a leader of a racketeering conspiracy but

didn't personally participate in the individual acts or each of

those acts involved five or fewer people."                 Thus, the court

expressed its general agreement with the approach adopted by the

Second and Seventh Circuits — an approach that assays a defendant's

role in the overarching conspiracy to determine the applicability

of any role-in-the-offense enhancement.             See United States v.

Ivezaj, 568 F.3d 88, 99-100 (2d Cir. 2009); United States v.

Damico, 99 F.3d 1431, 1437-38 (7th Cir. 1996).

            Although    the     court   suggested   that     it    would    not

definitively decide which interpretive approach was correct, it

used the approach employed by the Second and Seventh Circuits to

calculate the appellant's GSR.          It found that the appellant was a

manager or supervisor of the criminal enterprise as a whole and

applied    the   three-level     enhancement     solely    on     that   basis.

According to the appellant, the district court's suggestion that

it   did   not   have   to    resolve   this   dispute    about    the   proper

interpretation of section 2E1.1 was procedural error because the

two approaches resulted in different GSRs.               Since the district

court effectively adopted the government's interpretation of the

relevant    guideline    and    effectively    rejected     the    appellant's


                                    - 10 -
interpretation, the claim of procedural error is properly before

us.

            In this court, as below, the appellant urges us to adopt

the interpretive modality fashioned by the probation officer.                      He

submits that the plain language of Application Note 1 mandates

that   a    role-in-the-offense         enhancement     must   be    calibrated

according to a RICO defendant's role in the particular predicate

acts underlying the charged conspiracy.               The fact that the OEP

endorsed this methodology, the appellant says, is a compelling

indication that this is the better approach.

            The government demurs, relying heavily on the Seventh

Circuit's    decision    in    Damico.      There,    Damico   —    having       been

convicted of RICO conspiracy — assigned error to the district

court's    application    of     a    four-level     enhancement    under        USSG

§3B1.1(a) based upon his role in the RICO enterprise as a whole.

See Damico, 99 F.3d at 1435.              Much like the appellant, Damico

pinned his hopes on Application Note 1.              See id. at 1435-36.          The

Seventh Circuit rejected Damico's argument, noting that it failed

to "account for the fact that section 2E1.1's sole purpose is to

establish the base offense level for a RICO offense, not the

adjusted offense level."             Id. at 1437 (emphasis in original).

Consequently,    the     court       interpreted   Application      Note     1     as

requiring that the underlying offenses be treated separately only

for the purpose of determining the base offense level applicable


                                       - 11 -
to the overarching RICO conspiracy.               See id.   In a nutshell, the

court       held     "that    the   predicate-by-predicate           approach   of

Application        Note   1   applies    . . .    only   for   the    purpose   of

establishing a RICO defendant's base offense level, and not for

the purpose of applying the Chapter Three adjustments."                    Id. at

1438.

              We find the reasoning in Damico persuasive.              The weight

of the appellant's attempt to walk a tightrope between the RICO

conspiracy conviction itself and the underlying predicate acts is

more than Application Note 1 can bear.             Recognizing as much, other

circuits have declined defendants' invitations to place their

imprimatur on such an exercise in funambulism. Indeed, every court

of appeals that has spoken to the issue has followed Damico's

lead.1      See Ivezaj, 568 F.3d at 99-100; United States v. Yeager,

210 F.3d 1315, 1317 (11th Cir. 2000) (per curiam); United States

v. Coon, 187 F.3d 888, 899 (8th Cir. 1999).

              A salient reason for this unanimity is that the Damico

approach      fits    seamlessly    with     an    important   policy     concern

undergirding the RICO statute. When Congress enacted RICO in 1970,



        1
       The OEP guidance to which the appellant adverts is not a
significant counterweight to this unbroken chain of authority.
The OEP guidance is merely advisory and not binding upon the
courts. Cf. United States v. Carrozza, 4 F.3d 70, 78 n.6 (1st
Cir. 1993) (explaining that instructions published by Sentencing
Commission in informational booklet are not meant to bind the
courts or the parties in any given case).


                                        - 12 -
it was particularly concerned with bringing to justice leaders of

organized crime syndicates (such as the Mafia and La Cosa Nostra),

who were often able to avoid prosecution and "flout the best

efforts of . . . law enforcement and judicial authorities" by

hiding behind underlings.        116 Cong. Rec. 970 (1970).     In light of

this policy, it seems right as rain to conclude that a defendant's

role in the overarching conspiracy, rather than his role in

discrete predicate acts, constitutes the critical benchmark for

determining whether a role-in-the-offense enhancement is warranted

under section 3B1.1.

           To seal the deal, the text of Application Note 1 directs

courts to apply Chapter 3 adjustments — including enhancements for

a defendant's role in the offense — "to both (a)(1) and (a)(2)."

USSG §2E1.1 cmt. n.1 (emphasis supplied).             Subsection (a)(1),

though,   does   not   require    an   examination   of   the   defendant's

underlying racketeering activities but, rather, simply assigns a

base offense level of nineteen.        In considering the applicability

of a role-in-the-offense enhancement to this base offense level,

a court must look to the defendant's role in an enterprise as a

whole.    It would defy common sense to take a different tack with

respect to subsection (a)(2) and examine individual predicates

instead of the enterprise as a whole.

           Should more be needed — and we doubt that it is — the

approach advanced by the appellant would lead to incongruous


                                   - 13 -
results.       If,   say,   the    application        of   a   role-in-the-offense

enhancement depended upon assessing individual predicate acts in

a vacuum, a defendant who served as the kingpin of even the most

sprawling criminal enterprise could nonetheless escape a role-in-

the-offense enhancement simply because each of the predicate acts

underlying his conviction involved fewer than five participants

and was not otherwise extensive.                  See Ivezaj, 568 F.3d at 99;

Damico, 99 F.3d at 1437.           We agree with the Second Circuit that

"it   makes    little   sense     to    allow     a   defendant   who   acts   in    a

leadership capacity in a wide-ranging criminal enterprise to have

his offense level adjusted on the basis of his participation in

discrete racketeering acts."            Ivezaj, 568 F.3d at 99.

              To prattle on about this issue would serve no useful

purpose.        We   hold   that       when   a   defendant      is   convicted     of

racketeering conspiracy under 18 U.S.C. § 1962(d), the imposition

of a role-in-the-offense enhancement under USSG §3B1.1(b) depends

upon his role in the racketeering enterprise as a whole, not upon

his role in the discrete predicate acts that underpin the charged

conspiracy.

              This does not end our odyssey.            The appellant argues, in

the alternative, that even if we accept the approach endorsed by

Damico and its progeny — as we do — the district court's conclusion

that he served as a manager or supervisor of the overarching RICO




                                        - 14 -
enterprise lacked record support.2           It is to this argument that we

now turn.

               This claim of error is waived.       After all, the appellant

never raised it in his opening brief on appeal — and it is settled

beyond       hope   of    contradiction   that   arguments   not   made   in    an

appellant's opening brief are deemed abandoned.              See, e.g., United

States v. Fraser, 388 F.3d 371, 377 (1st Cir. 2004) (per curiam);

Sandstrom v. ChemLawn Corp., 904 F.2d 83, 86 (1st Cir. 1990).                  And

even       though   the   appellant   challenged   the   sufficiency      of   the

district court's factual findings regarding his role in the overall

enterprise in his reply brief, that was too little and too late.

By then, the claim of error had been waived.

               Waiver aside, the claim of error lacks force.         It hinges

on the supportability of the district court's factual findings,

but the appellant must pass over a higher-than-usual hurdle in

order to set aside those findings.             We explain briefly.

               To begin, the appellant does not question that the

racketeering enterprise (the clique), taken as a whole, involved

five or more participants.            Instead, he trains his fire on the



       2
       As part of this argument, the appellant alleges that "the
district court never made a finding regarding" the appellant's
role in the enterprise as a whole. This allegation is belied by
the record, as the court unequivocally stated that it was "easily
satisfied" that the appellant was "a de facto manager" of the
enterprise, given that he was "the only homeboy in the clique who
was on the streets" during the pertinent time frame.


                                      - 15 -
district     court's   factual   finding   that   he   was   a   manager    or

supervisor within the hierarchy of the clique.               But there is a

rub:       he did not object below to the district court's factual

finding that he occupied such a managerial or supervisory role.3

We therefore review his claim exclusively for plain error.                 See

United States v. Flete-Garcia, 925 F.3d 17, 37 (1st Cir.), cert.

denied, 140 S. Ct. 388 (2019); United States v. Duarte, 246 F.3d

56, 60 (1st Cir. 2001).

              Review for plain error is not appellant-friendly.             It

"entails four showings:      (1) that an error occurred (2) which was

clear or obvious and which not only (3) affected the defendant's

substantial rights, but also (4) seriously impaired the fairness,

integrity, or public reputation of judicial proceedings."           Duarte,

246 F.3d at 60.     The proponent of plain error must carry the burden

of establishing each of these four elements.            See Miranda-Díaz,

942 F.3d at 39.

              In this instance, the district court relied upon the

facts disclosed in an unchallenged paragraph of the PSI Report.4




       3
       To be sure, the appellant objected to construing the
relevant guideline in a way that made his role vis-à-vis the
racketeering enterprise a critical determinant in the enhancement
calculus. This objection, though, raised a claim of legal error,
separate and apart from the claim of factual error that he now
advances.
       4
       Although the appellant did object to certain portions of
the PSI Report, the district court did not rely on those disputed


                                  - 16 -
It is well-established that facts limned in uncontested portions

of a PSI Report are "ordinarily 'considered reliable evidence for

sentencing purposes.'"        United States v. Carbajal-Váldez, 874 F.3d

778, 783 (1st Cir. 2017) (quoting United States v. Morillo, 8 F.3d

864, 872 (1st Cir. 1993)), cert. denied, 138 S. Ct. 2586 (2018).

So it is here.

          The facts gleaned from this undisputed paragraph in the

PSI Report adequately support the district court's description of

the appellant's role in the clique.          Taking those facts as true,

the court had a solid foundation for finding that the appellant

served   as    a    "de   facto   manager"   of   the   clique    after   the

incarceration of the clique's First Word in April of 2014 and acted

in that capacity through the commission of the racketeering acts

described in the count of conviction.

          Although the appellant was not in full command of the

clique — Leoner, even though imprisoned, remained the First Word

— it does not follow that the appellant was ineligible for a role-

in-the-offense enhancement under section 3B1.1(b).                See United

States v. Savoie, 985 F.2d 612, 616 (1st Cir. 1993).             We have made

pellucid that "[a] defendant need not be the highest ranking member

of a criminal troupe in order to be a manager or supervisor" of

that troupe.       Id.    Such an interpretation is entirely consistent


paragraphs in finding that the appellant acted in a managerial or
supervisory capacity vis-à-vis the clique.


                                    - 17 -
with the text of the relevant guideline: section 3B1.1 underscores

that the managerial role enhancement, "as opposed to other upward

role-in-the-offense adjustments, appl[ies] to defendants who were

managers or supervisors, but not organizers or leaders."        Id.

(emphasis in original); see USSG §3B1.1(b).

            Given the factual support made manifest in the record,

we discern no clear or obvious error in the challenged ruling.

Consequently, we hold that the district court's factual finding

that the appellant played a managerial or supervisory role in the

RICO conspiracy was not plainly erroneous.         The role-in-the-

offense enhancement was, therefore, appropriate.

III. CONCLUSION

            We need go no further. For the reasons elucidated above,

the sentence is



Affirmed.




                               - 18 -
