

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                                                                                

No. 95-1887

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                  JOS  ANTONIO NU EZ-RODRIGUEZ,

                      Defendant, Appellant.

                                                                                                

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

          [Hon. H ctor M. Laffitte, U.S. District Judge]                                                                 

                                                                                                

                              Before

                     Torruella, Chief Judge,                                                     

                  Coffin, Senior Circuit Judge,                                                        

                     and Cyr, Circuit Judge.                                                     

                                                                                                

   Rafael F. Castro Lang for appellant.                                  
   Rosa Emilia  Rodr guez-V lez, Executive  Assistant United  States                                         
Attorney,  with whom Guillermo  Gil, United  States Attorney,  Jos  A.                                                                              
Quiles-Espinosa, Senior  Litigation  Counsel, and  Nelson Jos   P rez-                                                                              
Sosa, Assistant United States Attorney, were on brief for appellee.            

                                                                                                

                         August 14, 1996
                                                                                                

          CYR,  Circuit  Judge.   Appellant  Jos   Antonio Nu ez-                    CYR,  Circuit  Judge.                                        

Rodriguez ("Nu ez") challenges the life sentence imposed upon him

for "carjacking", see  18 U.S.C.    2119(3), and the  consecutive                               

five-year sentence imposed  for using a firearm in  relation to a

crime of  violence, see  id.    924(c)(1),    2.   We vacate  the                                      

district court judgment and remand for further proceedings. 

                                I                                          I

                            BACKGROUND                                      BACKGROUND                                                

          At  an apartment  in  Santurce,  Puerto  Rico,  on  the

evening of June 7, 1994, Nu ez  and four other persons laid plans

to  free two  prisoners  from  the Bayamon  Regional  Jail.   The

conspirators  agreed to search  out a vehicle  bearing government

license plates  to  facilitate the  planned entry  upon the  jail

premises.   During their meeting,  Nu ez saw an  associate accept

delivery of  a handgun.   Later the  same evening,  after driving

around San  Juan  for several  hours,  Nu ez and  two  associates

spotted Jos   Jaime Pierluisi-Urrutia  ("Pierluisi"), brother  of

the Secretary of  Justice of the Commonwealth of  Puerto Rico, as

he returned home around midnight in a car with government plates.

          After parking their own car, Nu ez and an associate ap-

proached the  unsuspecting Pierluisi  as he  began unloading  the

trunk.  The  associate brandished a handgun and  demanded the car

keys.   After relinquishing  the keys without  protest, Pierluisi

was summarily  murdered by the associate with  a shot to the back

of  his head  as Nu ez  prepared to  drive away in  the Pierluisi

                                2

vehicle.  Following the murder, Nu ez drove the Pierluisi vehicle

to the housing development where he lived. 

          The  next day,  after learning  that the  FBI  had been

inquiring  as to  his whereabouts,  Nu ez  presented himself  for

questioning.  Although he readily admitted his involvement in the

carjacking,  he steadfastly maintained that he had been abducted,

threatened  with a  gun, and  forced  to participate.   During  a

subsequent consensual search of the apartment where he lived, FBI

agents seized a  briefcase and passport, as well  as clothing and

credit cards, belonging to the victim.  

          After  Nu ez was indicted, he offered to cooperate with

the  government provided he received total immunity from prosecu-

tion.  More than seven months after his confession, and less than

a week prior to the scheduled trial, Nu ez finally pled guilty to

the  charges without  the benefit  of a  plea agreement.   Subse-

quently he  filed a pro se motion to  set aside his guilty pleas,                                    

which he withdrew following the  appointment of new counsel.  The

district court ultimately  sentenced Nu ez  to life  imprisonment

plus  sixty  months,  after  refusing  downward  adjustments  for

acceptance  of  responsibility  and  "minor  participation,"  and

rejecting a downward  departure request based on  "reduced mental

capacity." 

                                II                                          II

                            DISCUSSION                                      DISCUSSION                                                

                                3

A.   "Acceptance of Responsibility" (U.S.S.G.   3E1.1)1          A.   "Acceptance of Responsibility" (U.S.S.G.   3E1.1)1                                                               

          Nu ez first contends that  the district court committed

reversible  error in  refusing  to  adopt  a  presentence  report

("PSR") recommendation that  he receive  a three-point  reduction

for acceptance of responsibility under U.S.S.G.   3E1.1.2 

          Nu ez maintains that he  met his burden of  proof under

                                                  

     1Nunez  was sentenced  under the  November  1994 guidelines,
wherein   3E1.1 provided:

          (a) If  the defendant clearly  demonstrates accep-
     tance of  responsibility for his offense,  decrease the
     offense level by 2 levels.

          (b)  If  the  defendant qualifies  for  a decrease
     under  subsection  (a),  the  offense level  determined
     prior to the operation of subsection (a) is level 16 or
     greater, and the defendant has assisted authorities  in
     the investigation or prosecution  of his own misconduct
     by taking one or more of the following steps:

               (1) timely providing  complete information to
          the government  concerning his own  involvement in
          the offense; or

               (2) timely  notifying authorities of  his in-
          tention to enter a plea of guilty, thereby permit-
          ting the government  to avoid preparing for  trial
          and permitting the court to allocate its resources
          efficiently,

     decrease the offense level by 1 additional level.

U.S.S.G.   3E1.1 (Nov. 1994).

     2The claimed entitlement to  a three-point downward  adjust-                                                   
ment for acceptance  of responsibility under U.S.S.G.    3E1.1(b)
is  frivolous, since  the undisputed  evidence unmistakably  dis-
closed  that  Nu ez  provided  neither  "timely"  nor  "complete"
information to the  government concerning his own  involvement in
the  offense.   U.S.S.G.    3E1.1(b)(1).   Nor did  Nu ez provide
"timely" notice to "authorities of  his intention to enter a plea
of guilty, [so as to]  permit[] the government to avoid preparing
for  trial .  . .," id.    3E1.1(b)(2).   We therefore  limit our                                
discussion to the   3E1.1(a) claim.

                                4

U.S.S.G.   3E1.1, see United States v. Gonzalez, 12 F.3d 298, 300                                                         

(1st Cir. 1993), since all the  competent evidence in the PSR was

"consistent"  with his acceptance  of responsibility:   he volun-

tarily  surrendered soon after  the crime, see  U.S.S.G.   3E1.1,                                                        

comment. (n.1(d)) (Nov. 1994), assisted investigators in recover-

ing  the victim's personal possessions, see id. (n.1(e)), cooper-                                                         

ated with  the FBI and  entered a "straight" plea  (i.e., without

exacting a  plea bargain),  see United States  v. Vance,  62 F.3d                                                                 

1152, 1160 (9th Cir. 1995),  and expressed sincere remorse at the

change-of-plea  hearing and at sentencing (e.g., crying in court,

and stating that he was "sorry" for the victim's  family).  Nu ez

further  contends that  the district  court erred  by  relying on

other factors it deemed "inconsistent" with acceptance of respon-

sibility,  including  Nu ez' continuing  and  willful failure  to

disclose the  names of  some of his  accomplices.3   This factor,

Nu ez maintains, can  be relevant only to a  defendant's entitle-                                                

ment to a   5K1.1  downward departure for "substantial assistance

to [law enforcement] authorities." See U.S.S.G.   5K1.1.4                                                

     1.   The District Court Sentencing Decision               1.   The District Court Sentencing Decision                                                          

          In denying Nu ez  a downward adjustment under    3E1.1,

the  district court  apparently relied  on two  grounds.   First,

Nu ez delayed  his guilty  plea for six  months, until  five days                                                                           

                                                  

     3Nunez did provide the first names of two accomplices.

     4Because a two-point  offense-level reduction under    3E1.-
1(b) would have lowered Nu ez' total offense level from 43, CHC I
(life imprisonment),  to 41,  CHC I  (324-405 months),  see supra                                                                           
note 2, any error could not be considered harmless.  

                                5

before  the  scheduled  trial,  thereby  presumably  leaving  the

government no alternative but to prepare for trial.  See U.S.S.G.                                                                  

  3E1.1, comment. (n.1(g)) (court considers timeliness of defend-

ant's manifestation of acceptance of responsibility) (Nov. 1994).

Second, the  court noted that  during the six-month  delay, Nu ez

had offered inconsistent versions  of the relevant events.5   See                                                                           

id.  comment. (n.1(a)) (court considers whether defendant "truth-             

fully  admitt[ed] the offense  comprising the offense  of convic-

tion.").  Since a  guilty plea does not entitle a  defendant to a

downward adjustment under   3E1.1,  see id. comment (n.3) (guilty                                                     

plea  and  "truthful  admission"  are "significant  evidence"  of

acceptance of responsibility but "may be outweighed by [inconsis-

tent] conduct of the defendant .  . ."), normally a trial court's

decision to deny a   3E1.1 adjustment would be affirmed  on these

grounds.   Id.  comment. (n.  5) ("The  sentencing judge is  in a                        

unique position to evaluate a defendant's acceptance of responsi-

bility.   For this  reason, the  determination of  the sentencing

judge is entitled to great deference on review.").

          The district  court  made other  statements during  the

sentencing hearing,  however, which are  reasonably understood to

indicate that the court declined a   3E1.1 adjustment on an inde-

pendent  ground; that is,  Nu ez' purported inability  or ongoing

                                                  

     5Initially, Nunez told the FBI  that he had been abducted by
an unidentified male, forced at gunpoint to drive to the victim's
residence,  then forced to  drive the Pierluisi  vehicle from the
murder scene.  Later, Nunez told the FBI that while visiting at a
friend's apartment,  he had  encountered a  group of  persons who
persuaded him to assist in the prison break scheme. 

                                6

refusal to  disclose the  names of other  collaborators.   As the

precise import of the district court's statements in  this regard

is critical, we recite its statements at length.  

          After describing,  as incredible, Nu ez'  initial story

that he had been abducted by armed strangers, see supra p. 3, the                                                                 

district court observed: 

               A defendant  who accepts  responsibility
          must  do more than that when he's involved in
          a conspiracy and  where [] human life  is in-
          volved.   He must  come forward  and identify
          and help  authorities get  the other  people.
          He has  stated time  and time  again that  he
          doesn't know these other people.

               Now,  he spent  with  these people  some
          hours  in an apartment, planning a crime.  He
          drives around . . . cruising in the rear seat
          while  he is telling the public and the Court
          that he was forced . .  . to sit on the front
          seat with the  gun pointed at  him.  When  he
          stepped out of  the car, the other .  . . un-
          identified male  got out  of the  car with  a
          gun.   Now, we don't know whether [Nu ez] was
          wearing  [or] carrying the  gun, or the other
          people [were], . . . because the track record
          of  this defendant is  that he cannot  be be-
          lieved.

               And therefore for those  reasons I'm not                                                
          accepting the two-points  downward adjustment
          for  acceptance of  responsibility.   I don't
          think the defendant  has done that.   When he
          comes forward  and identifies the  other peo-
          ple,  if he does  that, then that  might be a                                                               
          different story.  But  he's protecting others
          and that's why he has done all these things.

Tr. at 39-40 (emphasis added).   Later, once again after discuss-

ing Nu ez' inconsistent  versions of the relevant  events on June

7, 1994, the district court observed: 

          [In his  second version,]  Nunez rode in  the
          rear seat.   So there  was no one  pointing a
          gun at him.  And  for four hours, if he tells

                                7

          the court  and the authorities that he hasn't
              he cannot recognize those two    at least
          those other two individuals, I'm not going to
          buy  that. . .  . Nunez turned  several items
          [of the victim's property]  over to those who
          he  had  originally  met  at  the  apartment.
          Again,  how could he say that he cannot iden-
          tify those  people?   He is protecting  them.
          And I  know it.   I'm pointing to  the defen-
          dant.

Tr. at 43-44.   Nu ez responded:  "I'm afraid." The court did not

respond. 

          Later, in summarizing  its guidelines sentencing calcu-

lations, the district court added:

          The defendant has not  identified    although
          the  court finds  that he  can     the  other
          individuals  who participated  in the  crime.
          These are considered to have been elements of
          a strategy  to manipulate  the judicial  pro-
          ceedings, among other  things, towards estab-
          lishing a  tailor-made plea  agreement condi-
          tioned  on his own terms, failing to yield to
          this sort of  bargain, and  this occurred  at
          the beginning where  the defendant said  I'll
          plead guilty if I get "X" type of  sentence .
          . . .  A  defendant qualifies for a [  3E1.1]
          reduction when he truthfully  admits the con-
          duct comprising the offense of conviction and
          does not falsely  deny or frivolously contest
          relevant conduct  that the  Court has  deter-
          mined to  be true and  also does not  keep to
          himself the identity of other coconspirators.

Tr. at  46-47.  After  defense counsel objected to  its consider-

ation of the "informer" criterion, the district court responded:

          [M]y  point is that if anyone commits a crime                                                 
          with one or more persons, knowing  those per-
          sons, does  not come forward to  the authori-                                                
          ties, giving the names of those persons, then                                                           
          you cannot have a  full acceptance of respon-                                                                 
          sibility because that entails precisely a ca-                            
          tharsis,  a full  remorse  by disclosing  the
          whole thing, being truthful  and not conceal-
          ing any  information how  to identify  . .  .
          these defendants.   I  have to  say that  for

                                8

          defendant's benefit  that there is  a section
          5K in this statute.   There's a Rule 35.  You
          have one year to think about  it . . . and to
          cooperate with the authorities.  But I'm  not
          saying that if you do that I will reconsider,
          but  your counsel knows better than I that   
          . . . what I  mean. . . . All I'm     all I'm
          saying,  counsel    I want to make the record
          clear     is that there  is what is  called a
          downward departure.  I ruled that there is no
          departure, either upward  or downward, right?
          . . .  Very well.  And I am saying that there
          is what is  called a downward  departure, and
          that's up to  the defendant to avail  of that
          of himself, punto, without anything else. . .
          . I'm not  saying he is getting  life because
          of that.  I'm saying that there is that  pro-
          vision in the statute and Rule 35.

Tr. at 53-55 (emphasis added).

          Nu ez characterizes the latter explanation for refusing

a    3E1.1 adjustment as  an error of  law, in that  the district

court relied  upon an eligibility criterion  relevant exclusively

to    5K1.1 departures  for "substantial  assistance to  [law en-

forcement]  authorities,"  see  U.S.S.G.    5K1.1.6    See, e.g.,                                                                          

United States  v. McKinney, 15  F.3d 849, 854 (9th  Cir. 1994) (                                     

3E1.1(a) "focuses on the defendant's sincere remorse  for his own

conduct, not his  assistance in incriminating others";  a "defen-

dant's degree of assistance  in the prosecution of  a codefendant

is relevant only to his  entitlement for a departure for substan-

tial assistance under   5K1.1"); see also Vance, 62 F.3d at 1157-                                                         

58;  United States  v. Leonard,  50 F.3d  1152, 1158-59  (2d Cir.                                        

                                                  

     6U.S.S.G.    5K1.1  reads, in  part:   "Upon  motion by  the
government stating that  the defendant  has provided  substantial
assistance  in the investigation or prosecution of another person                                                                           
who  has committed  an offense,  the  court may  depart from  the
guidelines." (Emphasis added.)

                                9

1995).

                                10

     2.   Standard of Review               2.   Standard of Review                                      

          Sentencing  Guideline interpretations  are reviewed  de                                                                           

novo, see United  States v. Bennett,  60 F.3d 902, 904  (1st Cir.                                             

1995), whereas  the subsidiary  findings of  fact, including  the

ultimate determination  as  to whether  the  defendant  sincerely

"accepted responsibility"  for the charged  offense and  relevant

conduct, are reviewed only for  clear error, see United States v.                                                                        

Crass, 50 F.3d 81, 83 (1st Cir. 1995).7                 

          Even if we were to determine that the sentencing  court

committed error,  however, its  sentence would  not be  set aside

unless  it affected defendant's substantial rights.   See Fed. R.                                                                   

Crim. P. 52(a); see also Williams v. United States, 503 U.S. 193,                                                            

202-03 (1992); United States v. Curran, 926 F.2d 59, 62 (1st Cir.                                                

1991).   A sentencing decision based in part on an invalid ground

may  be affirmed  if "excision  of the  improper ground  does not

obscure or  defeat the reasoning  of the district court,"  and we

are "left, on the record as  a whole, with the definite and  firm

conviction that removal of the inappropriate ground would not  be

likely to alter the district  court's view of the sentence right-

fully to be  imposed."  United States v.  Diaz-Bastardo, 929 F.2d                                                                 

798, 800 (1st  Cir. 1991) (departure decision);   see also United                                                                           

States v. Diaz, 39 F.3d 568, 571 (5th Cir.  1994) (same analysis,                        

reviewing denial of   3E1.1 reduction based on improper factor).

                                                  

     7Nu ez preserved  this  issue by  lodging a  contemporaneous
objection at sentencing. 

                                11

     3.   The "Informer" Criterion and Section 3E1.1               3.   The "Informer" Criterion and Section 3E1.1                                                              

          The  question  whether  U.S.S.G.    3E1.1  permits  the

"informer" criterion to be  considered in determining "acceptance

of  responsibility" is unsettled  at best.   Compare McKinney, 15                                                                       

F.3d at 854 (holding that "informer" criterion is "relevant only"

to   5K1.1 departure) with United States v. Apple, 915 F.2d  899,                                                           

913 n.23 (4th  Cir. 1990) (upholding use of  "informer" criterion

under pre-November 1989 guidelines, but skirting question whether

subsequent   3E1.1 amendments foreclose it) with United States v.                                                                        

Cross, 900 F.2d  66, 70 n. 1 (6th Cir.  1990) (expressing "uncer-               

tainty") (dictum) with United States v. Tellez, 882 F.2d 141, 143                                                        

(5th Cir. 1989) (upholding denial of adjustment for acceptance of

responsibility  for defendant who "never identified the person or

persons  who had  hired him  to smuggle  the contraband  into the

United States"). 

          Turning  first  to   the  specific  guideline  language

itself, see United States v. Perez-Franco, 873 F.2d 455, 458 (1st                                                   

Cir. 1989), we  find no explicit  indication that the  Sentencing

Commission  intended to preclude  consideration of the "informer"

criterion in appropriate circumstances.  Moreover, the U.S.S.G.  

3E1.1  commentary expressly provides that its listing of relevant

considerations for a two-point adjustment under subsection (a) is

nonexhaustive.    See  U.S.S.G.    3E1.1,  comment.  (n.1(a)-(g))                               

("include, but  are not  limited to,  the following  . .  . .").8
                                                  

     8These indicia are: "(a) voluntary termination or withdrawal
from criminal conduct  or associations; (b) voluntary  payment of
restitution prior  to adjudication  of guilt;  (c) voluntary  and

                                12

Thus,  the absence  of an  explicit reference,  in section  3E1.1

itself, to  "voluntary assistance  to authorities  in implicating

other criminal participants" is not conclusive.  

          Although the McKinney court noted that section 3E1.1 in                                         

general,  and  the  nonexhaustive listing  in  its  commentary in

particular, focus solely on the defendant's disclosures  relating                                  

to his own criminal conduct, that is, his "personal responsibili-                                                             

ty,"  see McKinney,  15 F.3d  at  854 (citing  U.S.S.G.    3E1.1)                            

(emphasis added),  personal responsibility  may be  manifested in

various ways  and the  acceptance-of-responsibility determination

under section 3E1.1 necessarily envisions a fact-specific inquiry

in each  case, see United States v. Talladino, 38 F.3d 1255, 1258                                                       

(1st  Cir. 1994).    Moreover,  by  prescribing  a  nonexhaustive

listing  in its commentary,  the Sentencing Commission  left sen-

tencing courts the  latitude to consider all  reliable, probative

indicia tending  to demonstrate, or countervail,  the genuineness

of the particular defendant's remorse.       We  can  discern  no

sound basis for  a general rule  barring a defendant's  voluntary

cooperation  in truthfully  identifying criminal  associates from

consideration by the sentencing court in determining the genuine-

ness of the  defendant's remorse.  Rather, unless otherwise fore-

                                                  

truthful admission to  authorities of involvement in  the offense
and  related  conduct;  (d)  voluntary  surrender  to authorities
promptly  after commission of  the offense; (e)  voluntary assis-
tance to authorities in the recovery of the fruits and instrumen-
talities  of  the  offense; (f)  voluntary  resignation  from the
office or position held during the commission of the offense; and
(g) the timeliness of the  defendant's conduct in manifesting the
acceptance of responsibility."

                                13

closed by  the Sentencing Guidelines,  but see infra, we  think a                                                              

defendant's refusal to  provide such cooperation may  be weighed,

along  with all other  relevant evidence, in  determining "accep-

tance of responsibility" under U.S.S.G.   3E1.1.  Nor do we think

this basic premise  is rendered unsound by the  concern that "[a]

cunning but not contrite defendant may buy his way out of trouble

by  providing  evidence  against someone  else,  and  an entirely

contrite  defendant may  out of  fear,  ignorance of  information

useful  to  the prosecutors,  or  other reason,  fail  to provide

assistance."  Vance, 62 F.3d at 1157.  To be sure,  such "inform-                             

ing" will  not always prove  a reliable or bona  fide indicium of                                                               

the defendant's  remorse.   Be that as  it may,  however, similar

credibility determinations and inferential findings are consigned

routinely to  sentencing courts,  and, without  more, present  no

sound basis  for a per  se rule barring the  "informer" criterion                                    

from consideration  under section  3E1.1, as one  more among  the

totality of the circumstances that the sentencing court considers

in  assessing a defendant's  true motives for  "informing" (e.g.,

sentence manipulation),  or not  "informing" (e.g.,  lack of  re-

morse, inability  to inform,  desire to  protect accomplices  for

personal or illicit reasons, or genuine fear of retaliation).    

          Nu ez  suggests,  however,  that the  narrowly  focused

language  in  U.S.S.G.     3E1.1(b)  (three-point  reduction  for

acceptance  of responsibility)  requiring, inter  alia, that  the                                                                

defendant "timely provid[e]  complete information to the  govern-

ment concerning  his own involvement  in the offense,"  see supra                                                                           

                                14

note 1,  necessarily forecloses  consideration of the  "informer"

criterion under section 3E1.1.  We  do not agree.  Subsection (b)

requires  that a  defendant  first  meet  the  relevant  criteria                                            

prescribed  in subsection (a), and since the "informer" criterion

is  not  barred  by the  nonexhaustive  listing  included  in the

Commission  commentary to subsection  (a), see U.S.S.G.    3E1.1,                                                        

comment. (n.1(a)-(g)), it may be weighed in the balance under the

threshold subsection (a) inquiry.  Nothing in subsection 3E1.1(b)

purports  to supplant  the requirements of  subsection (a).   In-

stead,  the  subsection  (a)  requirements  are  explicitly  made

independent.  Thus, there is no sound basis for the view that the

imposition  of additional requirements  in subsection  (b) alters

the threshold factors appropriate for consideration under subsec-

tion (a).   A defendant must satisfy either  subsection (b)(1) or

(b)(2), as well  as subsection (a), in  order to qualify  for the

extra-point adjustment permitted under   3B1.1(b).  

          Section  5K1.1  likewise  focuses  on  the   "informer"

criterion, even  to the exclusion of other  criteria, and imposes

additional  conditions precedent to  sentence mitigation  such as

the  requirement that  a  defendant's cooperation  in identifying

accomplices be sufficiently comprehensive to constitute "substan-

tial assistance" as certified by a government motion recommending

a downward  departure.  Commentary  to U.S.S.G.    5K1.1 provides

that

          [t]he sentencing reduction  for assistance to
          authorities shall be considered independently                                                                 
          of any reduction for acceptance of  responsi-
          bility.   Substantial assistance  is directed

                                15

          to the investigation and prosecution of crim-
          inal  activities  by persons  other  than the
          defendant, while acceptance of responsibility
          is  directed to  the defendant's  affirmative
          recognition  of  responsibility for  his  own
          conduct.

U.S.S.G.   5K1.1, comment. (n.2) (emphasis added).  

          At  first blush  this commentary  may  seem to  support

Nu ez'  contention, but  it is far  from conclusive.   At most it

indicates  simply that  the  sentencing  court  is  to  undertake

sequential  inquiries under sections  3E1.1 and 5K1.1,  since the                    

two independent  standards require the court to balance and weigh

different  criteria.   Unlike  section  5K1.1, moreover,  section

3E1.1 requires  the sentencing  court to  balance many  divergent                                                                

factors, consistent and inconsistent with acceptance of responsi-

bility.  Nothing in application note 2 to section 5K1.1 suggests,

however, that these sequential inquiries may not involve overlap-

ping  criteria,  in  particular the  "informer"  criterion.   See                                                                           

United  States v. Singh, 923 F.2d  1039, 1044 (3d Cir.) (   3E1.1                                 

and 5K1.1 are to be assessed "independently," but involve "relat-

ed concepts"), cert. denied, 500 U.S. 937 (1991).                                       

          Since reason and common sense suggest that a particular

criterion may bear relevance to the inquiries required in assess-

ing a  sentencing factor  under more than  one guideline,  and no

sentencing guideline indicates otherwise, we are unable to credit

Nu ez'  contention that  the  "informer"  criterion  may  not  be

considered under section 3E1.1.  Compare U.S.S.G.   3C1.1 (upward                                                  

offense-level  adjustment for  obstruction  of  justice)  with                                                                           

3E1.1, comment. (n.4) ("Conduct resulting in an enhancement under

                                16

   3C1.1 .  . . ordinarily  indicates that the  defendant has not

accepted  responsibility for  his  criminal  conduct. There  may,

however, be extraordinary  cases in which adjustments  under both

    3C1.1 and  3E1.1 may  apply.").   For example,  assistance in

identifying,  apprehending,  or   prosecuting  accomplices  might

buttress a  cooperating defendant's statements  of remorse  under

section 3E1.1, without regard to whether the government considers

the cooperation  sufficiently helpful  to warrant a  "substantial

assistance" departure under section 5K1.1.

          Finally, section  5K1.2 provides that  "[a] defendant's

refusal  to  assist  authorities in  the  investigation  of other

persons  may not  be  considered  as  an  aggravating  sentencing

factor."  The October 1988 version of U.S.S.G.   5K1.2 included a

single commentary:  "The Commission .  . . rejected the use of  a

defendant's  refusal to  assist  authorities  as  an  aggravating

sentencing  factor.   Refusal to  assist  authorities based  upon

continued involvement in criminal activities and association with

accomplices may be considered, however, in evaluating a defendan-

t's sincerity  in claiming  acceptance of  responsibility."   The

Sentencing Commission  deleted this commentary  in November 1989,

explaining that it intended "to delete the unnecessary commentary                                                                

containing an unclear example."   U.S.S.G. App. C, amend. 292, at                               

178 (November 1995) (emphasis added). 

          The  current version of section 5K1.2 does not preclude

the "informer" criterion  under section 3E1.1.  First,  given its

location in  the  guidelines section  dealing with  "departures,"

                                17

section 5K1.2 clearly  forbids reliance on a  defendant's failure

to identify accomplices as a basis  for an upward departure.  But                                                                     

it  neither expressly  nor impliedly  forbids  such reliance  for

purposes of sentencing adjustments such as section 3E1.1.  In all                                            

events, since  any adjustment  under section  3E1.1  can only  be

downward,  the "informer" criterion under section 3E1.1 can never                  

constitute  an aggravating  sentencing factor, only  a mitigating

factor. See, e.g., United States  v. Gordon, 895 F.2d 932, 936-37                                                     

(4th Cir.) (  3E1.1 reduction bespeaks "mitigation," not aggrava-

tion), cert. denied, 498 U.S. 846 (1990).                              

          Notwithstanding the November 1989 amendment, it remains

clear  that the  commentary to  section  5K1.2 contemplated  that

sentencing courts were to consider the "informer" criterion under

section 3E1.1 in  appropriate circumstances.   Significantly, the

1988 version purported to allow the court to deny a section 3E1.1

adjustment  where  the  defendant did  not  identify  accomplices

because  his criminal  associations were  ongoing.   Further,  it

seems  that the 1989  amendment deleted the  "unclear" commentary

not because the Commission had  altered its view on the propriety

of the  section 3E1.1 practice  described in the  commentary, but

because it concluded that the  current text in sections 3E1.1 and

5K1.1 was sufficiently clear to  support such a sentencing  prac-

tice     without further elaboration.  We therefore conclude that

the 1989 amendment was meant to clarify, not to effect a substan-

tive change in sentencing policy.  See United States v. Campbell,                                                                          

61  F.3d 976,  985 (1st  Cir.  1995) (court  should presume  that

                                18

Commission  did  not  intend substantive  change  where guideline

amendments are  unaccompanied by language declaring  intention to

abandon  earlier sentencing practice),  cert. denied, 116  S. Ct.                                                              

1556  (1996).  This  conclusion is confirmed  by the Commission's

failure to  effect a  conforming 1989  modification  to the  non-

exhaustive listing in section 3E1.1.  See supra note 8.                                                         

           Insofar as  McKinney,  Vance,  and  Leonard  might  be                                                                

thought to suggest  a per se rule,  but see McKinney, 15  F.3d at                                                              

854 ("Where the defendant's refusal to assist authorities in  the

prosecution of his  codefendants does not detract  from his clear

contrition  for his  own actions,  he  is still  entitled to  the

acceptance of responsibility  reduction."), we must  respectfully

disagree.   In appropriate  circumstances a  sentencing court  is

permitted  to consider, as  relevant evidence of  the defendant's

sincerity  in accepting  responsibility for  his  own crimes,  at

least whether  a defendant truthfully has  identified accomplices

in the  crimes  to which  the  defendant has  pled  guilty.   For

example,  where a defendant does not disclose accomplices because

he has  elected to continue  his criminal associations,  the sen-

tencing  court may  consider  such conduct  along with  any other

indicia of failure to accept  responsibility.  On the other hand,

should  the court determine  that a defendant  has not identified

his  accomplices because he genuinely fears retaliation, but that

the defendant's conduct otherwise demonstrates genuine remorse, a

downward adjustment under section 3E1.1 might yet be found appro-

priate, as the  sentencing court's balancing and  weighing of the

                                19

relevant criteria under section 3E1.1 is entitled to great defer-

ence on appeal.  U.S.S.G.   3E1.1, comment. (n.5).

     4.   The "Acceptance of Responsibility" Finding                4.   The "Acceptance of Responsibility" Finding                                                              

          The  district  court apparently  relied  on  two proper

grounds for  its finding that  Nu ez had not  demonstrated accep-

tance of responsibility:   (i) the six-month delay  in entering a

guilty  plea, see U.S.S.G.   3E1.1, comment. (n.1(g)) (timeliness                           

factor), and  (ii) the inconsistent  stories given by  Nu ez, see                                                                           

id. (n.1(a)) (truthful-admission factor).               

          In addition, the district  court discussed at consider-

able length Nu ez'  failure to assist the FBI  in identifying his

accomplices.  See  supra Section II.A.1.  The court appropriately                                  

questioned  Nu ez' motives for  not disclosing the  identities of

his associates.  Its misgivings were prompted by Nu ez' inconsis-

tent versions of the carjacking, and were explicitly connected to

its finding that Nu ez, and  by extension, his insistence that he

had accepted responsibility, were not  credible.  Nu ez had given

uncorroborated and inconsistent explanations  for not identifying

his  accomplices:  first,  he claimed that he  had not known them

before the day of the  carjacking, and never learned their names;

and, second, he was "afraid" to  identify them.  See Gonzalez, 12                                                                       

F.3d at 300 (defendant bears burden of proof under   3E1.1).  The

district court supportably found  that Nu ez' true motive was  to

"protect" his accomplices,  a motive which     when coupled  with                                                                     

his two pretextual motives for refusing to "inform" (memory lapse

and/or fear)    belied a genuine acceptance of responsibility.  

                                20

          Nonetheless, other  observations by the  district court

remain open to the plausible understanding that a  defendant must

always, at least  where an offense results in  death, "inform" on                

his accomplices  in order  to qualify for  a    3E1.1 adjustment,

regardless of any other circumstances in the case: 

               A defendant  who accepts  responsibility
          must  do more than that when he's involved in                        
          a conspiracy and  where [] human life  is in-                                                                 
          volved.  He  must come  forward and  identify                                     
          and help  authorities get the other people. .
          . .

               A defendant  qualifies for  a [   3E1.1]
          reduction when he  truthfully admits the con-                                  
          duct comprising the offense of conviction and
          does not falsely deny or frivolously  contest
          relevant  conduct that  the Court  has deter-
          mined to be  true and also  does not keep  to                                                                 
          himself the identity of other coconspirators.                                                                
          . . .

               [M]y point is  that if anyone  commits a
          crime with one or more persons, knowing those
          persons, does not come forward to the author-
          ities,  giving the  names  of those  persons,
          then  you cannot  have a  full acceptance  of                                          
          responsibility because that entails precisely
          a catharsis, a full remorse by disclosing the
          whole thing, being  truthful and not conceal-
          ing any  information how  to identify  . .  .
          these defendants. 

As we  have indicated, however,  such a per se  requirement would                                                        

prove as inconsistent with the letter and spirit of section 3E1.1

as its counterpart, see, e.g., McKinney, 15  F.3d at 854.  Conse-                                                 

quently, we are  unable to conclude  with confidence whether  the

district court  deemed Nu ez'  failure to  identify his  criminal

associates  as sufficient, by  itself, to preclude  an adjustment

under section  3E1.1, without  regard to  whether Nu ez knew  the

names of his accomplices or feared retaliation. 

                                21

          Assuming  the  district  court  meant  that  mitigating

considerations  are never material under section 3E1.1, it erred.

Moreover, insofar as  the court envisioned  a per se  bar to  its                                                              

consideration  of mitigating  circumstances,  the present  record

precludes reliable "harmless error" analysis, since we cannot say

with any  confidence that the  court would not have  disallowed a

section 3E1.1 adjustment solely because Nu ez refused to identify

his criminal associates. 

          The government  points to the district  court statement

that it was  "not saying [Nu ez] is getting life because of . . .                                                                     

[his  failure to  `inform']."    Yet the  literal  import of  the

district court's  language is  not necessarily  equivalent to  an

assurance that  Nu ez' life sentence  had nothing to do  with his

refusal to  identify his criminal  associates.  Thus,  the quoted

statement does not  cure the  inherent ambiguity  created by  the

categorical remarks the court made earlier.  Consequently, on the

record as  a whole,  we cannot  say that  we are  left "with  the

definite  and firm conviction  that removal of  the inappropriate

ground would not be likely to alter the  district court's view of

the sentence  rightfully to be  imposed."  See  Diaz, 39 F.3d  at                                                              

568.   These ambiguities  counsel a  remand for resentencing  for

clarification,9 and further factfinding  as appropriate.   United                                                                           
                                                  

     9Another statement  by the district  court likewise necessi-
tates  a  remand. It  noted, based  on  a review  of the  Rule 11
hearing transcript  that Nu ez had  asked to be "forgiven  by the
[victim's]  family," but "didn't  say he was  remorseful, that he
was willing to cooperate."   Tr. at 39.  Our review of  the tran-
script discloses that  Nu ez stated:  "I  would like to  ask for-
giveness from the family of the young man, (defendant crying).  I

                                22

States v. Berzon, 941 F.2d 8, 20 (1st Cir. 1991).                            

B.   The "Minor Participant" Adjustment          B.   The "Minor Participant" Adjustment                                                 

          Next  we consider whether  the district court  erred in

declining a two-point  adjustment under  the "minor  participant"

guideline.  See  U.S.S.G.   3B1.2(b).10   Nu ez claims it was  an                         

error  of law  to assess  his  participation exclusively  through

reference to the hypothetical "average participant" in a carjack-

ing and murder, rather than with reference to his coconspirators.

See  United States v. Brandon, 17 F.3d 409, 460 (1st Cir.), cert.                                                                           

denied, 115 S. Ct. 80 (1994); United States v. Gregorio, 956 F.2d                                                                 

341, 344 (1st Cir. 1992) ("Role-in-the-offense adjustments depend

. .  . not  only on  the comparative conduct  of persons  jointly

engaged in criminal activity, but also on comparing each offende-

r's actions and relative culpability with the elements of the of-

fense.") (citations omitted).  

          Nu ez  mischaracterizes the  district court  rationale.

The  court stated  very clearly:    "A defendant  is not  a minor

                                                  

know what suffering is because I have a mother, I have  a father,
and I'm very sorry and I would  like them to forgive me."  Tr. at                            
21 (emphasis added).  Thus, the district court's  compound state-
ment  ("didn't say  he was  remorseful,  that he  was willing  to
cooperate") may  have been  either yet  another reference to  the
section 3E1.1 "informer"  criterion, or simply a  mistaken under-
standing that Nu ez had never even stated that he  was "sorry" at                                                   
the time he pled  guilty.  The present record does  not permit us
to make a reliable determination. 

     10"A minor  participant means  any participant  who is  less
culpable  than most  other  participants."    U.S.S.G.     3B1.2,
comment. (n.3).   An adjustment  is allowed "for a  defendant who
plays a  part in committing  the offense that makes  him substan-
tially less culpable than the  average participant." Id.   3B1.2,                                                                  
comment. (backg'd.).

                                23

participant merely because he might be less culpable than others,                                    

co-conspirators . . . .  Rather he must be less culpable than the

average  participant in  similar  offenses."   (Emphasis  added.)

This  statement      especially the  phrase  "merely  because"   

negates  the  suggestion  that the  district  court  found actual

coconspirator  comparisons  immaterial  to  the  Brandon-Gregorio                                                                           

inquiry.  Instead,  the court acknowledged, as it  explained more

fully later,  that U.S.S.G.    3B1.2(b) entails a  bifocal analy-

sis.11  

          We also  reject the  claim that  the evidence  does not

support  the district court ruling.   Its fact-specific ruling is

reviewed  for clear error  only, and with  "considerable respect"

for a sentencing court's superior  vantage point.  United  States                                                                           

v. Ocasio, 914 F.2d 330, 333 (1st Cir. 1990); see  also Gregorio,                                                                          

956  F.2d at 344.  We find no clear error.  The evidence revealed

that Nu ez voluntarily  participated in planning the  jail break-

out,  witnessed the  delivery of  a  revolver to  be used  in the

carjacking,  drove  around with  two  coconspirators  for several

hours searching for an appropriate vehicle, approached the victim

with  an armed  associate,  and, as  agreed, drove  the Pierluisi

vehicle from the carjacking scene, despite having heard the fatal

gunshot.   Finally, the  evidence indicates  that Nu ez  played a

more active role in the carjacking-murder than at least one other

associate, who merely  waited in the car while  the shooter, with
                                                  

     11The  court  stated:   "In  this case  [Nu ez]  planned the
offense.   He participated  in the planning  of the offense.   He
cruised with these individuals for about two hours."

                                24

Nu ez nearby, approached and killed Pierluisi.

C.   The Requested "Reduced Mental Capacity" Departure          C.   The Requested "Reduced Mental Capacity" Departure                                                                

          Finally,  Nu ez argues that the district court erred in

refusing a downward departure under U.S.S.G.   5K2.13, Diminished                                                                           

Capacity (Policy Statement), which provides:                   

          If  the  defendant  committed  a  non-violent                                                                 
          offense  while  suffering  from significantly                           
          reduced  mental capacity  not resulting  from
          voluntary use of drugs  or other intoxicants,
          a lower  sentence may be warranted to reflect
          the extent  to which reduced  mental capacity                                                                 
          contributed to the commission of the offense,                                                                
          provided that the defendant's criminal histo-
          ry does not indicate a need for incarceration
          to protect the public.

U.S.S.G.     5K2.13,  p.s. (emphasis  added).  Essentially, Nu ez

relied on a  1984 diagnosis of borderline  mental retardation and

paranoid schizophrenia, which conditions  so affected his ability

to make common-sense judgments, that  he was unable to resist his

coconspirators' requests that he join in the armed carjacking, or

to  foresee that  a  murder  might ensue.    Recognizing that  we

normally lack jurisdiction  to review a district  court's discre-

tionary refusal to make  a downward departure, see United  States                                                                           

v. Grandmaison, 77  F.3d 555, 560 (1st Cir.  1996), Nu ez instead                        

argues that  the court's  refusal to depart  was premised  on its

incorrect  interpretation of  the  phrase "non-violent  offense."

Id.12             
                                                  

     12In essence, Nunez  argues that there  is an inherent  con-
flict  between    2A1.1 and 5K2.13.  The former section increased
Nunez' base  offense level from  22 to 43 because  death resulted
from  the  carjacking.   See  U.S.S.G.    2A1.1,  comment. (n.1);                                      
2B3.1(c).   Section 2A1.1  also notes,  however, that  a downward
departure may be warranted where "the defendant did not cause the

                                25

          We need not linger over  this claim.  Without regard to

whether  the district court  misapprehended the meaning  of "non-

violent crime," see, e.g., United  States v. Weddle, 30 F.3d 532,                                                             

537-40  (4th  Cir.  1994)  (discussing circuit  split  concerning

proper  interpretation of  "non-violent  offense"), it  expressly

ruled      after defense  counsel cited  to the  1984 psychiatric

reports    that  it believed  Nu ez did not  suffer from the  re-

quired "significantly reduced mental capacity" at the time of the

1994 carjacking:

          This  defendant  had  this meeting  with  his
          friend's  nephew where they sat there in this
          apartment discussing precisely  a carjacking,
          stealing of  a car,  to commit another  crime
          [i.e., the  jail  break], and  he was  there.
          And then they start cruising around,  finding
          a  victim until  they  found him,  found  the
          victim.   So .  . . [it]  [s]eems to  me that
          this is totally inconsistent with the  dimin-
          ished capacity to commit a crime.

Tr.  at 22.   The court  pointed out  that Nu ez had  admitted to

long-term, daily use  of marijuana, which  would tend to  support

the  conclusion that any  diminished capacity he  might have suf-

fered on June 7, 1994 "result[ed]  from voluntary use of drugs or

other intoxicants."  U.S.S.G.   5K2.13, p.s.  

          We  thus lack  appellate  jurisdiction  of this  claim.

"[I]f the [sentencing]  judge says, in effect,  . . . that  `this

circumstance [viz.,  "significantly reduced  mental capacity  not

                                                  

death intentionally or knowingly."  Nunez says this  is inconsis-
tent with the  district court's interpretation of    5K1.1, i.e.,
that it forbids departures for anything but "non-violent" crimes.
Whatever its questionable merits, we lack jurisdiction to consid-
er this claim.  See infra.                                   

                                26

resulting from voluntary  use of drugs or  other intoxicants"] of

which you speak has not been shown to exist in this case,' [then]

. . .  no  appeal lies."  United States  v. Pierro, 32 F.3d  611,                                                            

619 (1st  Cir. 1994),  cert. denied, 115  S. Ct. 919  (1995); see                                                                           

also United States  v. Regan,  989 F.2d  44, 45  (1st Cir.  1993)                                      

(defendant has the burden of  proof under section 5K2.13).  Nu ez

does not contend  that the court misapprehended the  criteria for

determining  whether he  suffered from  a  "significantly reduced

mental capacity." Cf.  Grandmaison, 77 F.3d at  561 (jurisdiction                                            

lies where  district court  misapprehended the  relevant criteria

for ascertaining "aberrant  behavior").13   Since some  causative

reduction in  mental capacity is the sine qua non of any downward                                                           

departure under section 5K2.13, whether the murder-carjacking  be

deemed  "violent" or  "non-violent,"  we need  not     indeed  we

cannot     decide whether the  court also relied on  an incorrect

interpretation of "non-violent offense."

          The sentence is  vacated, and the case  remanded to the                    The sentence is  vacated, and the case  remanded to the                                                                           

district  court for resentencing, consistent with our opinion and          district  court for resentencing, consistent with our opinion and                                                                           

mandate.           mandate.                  

                                                  

     13While it is  unnecessary to  decide the  soundness of  the
district court's factual  conclusion, we would note  that various
psychiatric evaluations of  Nu ez following his arrest  concluded
that he did not suffer from any abnormal mental disease or defect
on the date  of the carjacking, and that he was capable of appre-
ciating the consequences of his actions.

                                27
