          United States Court of Appeals
                     For the First Circuit


No. 15-1779

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                    BRIAN ERICK MONTES-FOSSE,

                      Defendant, Appellant.


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

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


                             Before

                  Torruella, Selya, and Barron,
                         Circuit Judges.


     Lydia Lizarríbar-Masini, on brief for appellant.
     Susan Z. Jorgensen, Assistant United States Attorney, Rosa
Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-
Sosa, Assistant United States Attorney, Chief, Appellate Division,
on brief for appellee.



                          May 31, 2016
            TORRUELLA, Circuit Judge.        After Defendant-Appellant

Brian Erick Montes-Fosse ("Montes") pled guilty to aiding and

abetting the robbery of a postal worker, the United States District

Court for the District of Puerto Rico sentenced him to a term of

51 months' imprisonment and 3 years' supervised release.          During

the sentencing hearing, the district court determined that Montes

should receive a sentencing enhancement under the United States

Sentencing Guidelines (the "Guidelines") because a firearm was

brandished or possessed during the robbery.          The district court

also found that Montes was not entitled to a downward adjustment

for playing a minor role in the offense.         Montes now appeals his

sentence.    We affirm.

                                    I.

            When a defendant appeals after a guilty plea, "we glean

the     relevant   facts   from   the    change-of-plea   colloquy,   the

unchallenged portions of the presentencing investigation report

(PSI Report), and the record of the disposition hearing."         United

States v. Vargas, 560 F.3d 45, 47 (1st Cir. 2009).

            On June 30, 2014, the victim -- a United States Postal

Service ("USPS") worker -- was delivering mail in Mayagüez, Puerto

Rico.    The victim was seated in her USPS vehicle when Alipio Soto-

Montalvo ("Soto") approached.       With a gun in hand, Soto demanded

that the victim turn over the packages in her vehicle.         After she


                                   -2-
placed several parcels on the front seat, Soto took two or three

of the packages and fled the scene on foot.

            Montes had driven Soto to the scene.         Montes would later

acknowledge having "taken [Soto] earlier the day to the place where

the robbery occurred for the purpose of committing that robbery."

At some point after the robbery, a witness at the housing project

where both men lived overheard them discussing the crime and

"warning of a heavy police presence" in the area.1

            Montes and Soto were arrested in October and September

2014, respectively.        Montes pled guilty to one count of aiding and

abetting the robbery of a USPS employee under 18 U.S.C. § 2114(a)

and § 2, and Soto to aiding and abetting the carrying, using, and

brandishing of a firearm during and in relation to a crime of

violence under 18 U.S.C. § 924(c)(1)(A)(ii) and § 2.

            Under Montes's written plea agreement, Montes and the

Government agreed to the following Guidelines recommendations:

Montes     would   receive     a    base    offense   level   of   20     under

U.S.S.G. § 2B3.1(a), with a 2-level increase because post office

property    was    taken    under    U.S.S.G. § 2B3.1(b)(1);       a    5-level

increase because a firearm was brandished or possessed during the

robbery under U.S.S.G. § 2B3.1(b)(2)(C); a 3-level reduction for


1  It is unclear from the record whether Montes was warning Soto
or vice versa.


                                      -3-
acceptance of responsibility under U.S.S.G. § 3E1.1; and a 2-level

reduction in light of Montes's minor role in the crime under

U.S.S.G. § 3B1.2(b).     Montes reserved the right to argue against

the 5-level weapons enhancement.         With that enhancement, the

Guidelines calculation yielded a total offense level of 22, which

correlates to a Guidelines range of 41 to 51 months' imprisonment

for an offender with a Criminal History Category ("CHC") of I.2

           At the sentencing hearing, the district court applied

the 5-level weapon enhancement and rejected the parties' joint

recommendation for a 2-level minor role reduction, both over

objections from Montes.    Based on a total offense level of 24 and

a CHC of I, Montes had a Guidelines range of 51 to 63 months'

imprisonment and was sentenced to 51 months' imprisonment and 3

years' supervised release.

                                  II.

           Where, as here, "the moving party raises an objection

below,   sentencing    determinations   are   reviewed   for   abuse   of

discretion," with the district court's factual findings subject to

clear error review and its interpretation of the Guidelines to de




2   The parties did not stipulate as to a CHC in the plea agreement.


                                  -4-
novo review.   United States v. Lasseque, 806 F.3d 618, 623 (1st

Cir. 2015).

A.   U.S.S.G. § 2B3.1(b)(2)(c):     Brandishing a Firearm

           Section   2B3.1   of   the   Guidelines   provides   a   5-level

increase "if a firearm was brandished or possessed" during the

commission of a robbery.      U.S.S.G. § 2B3.1(b)(2)(c).        During the

sentencing hearing, the Government contended that "it would be

impossible for Mr. Montes not to have known that [Soto] had a

firearm," as Soto was carrying the gun "at all times" before the

robbery.   To the contrary, Montes contends that this enhancement

is inapplicable because the evidence did not demonstrate that he

had advance knowledge of the gun.        See Rosemond v. United States,

-- U.S. --, 134 S. Ct. 1240, 1248-49 (2014).           But, for purposes

of § 2B3.1(b)(2)(c), "the proper inquiry is whether the district

court could find, by a preponderance of the evidence, that it was

reasonably foreseeable to [Montes] that [Soto] would brandish or

possess a weapon during the robbery," and "not whether [Montes]

had actual knowledge of the gun prior to the robbery."           Lasseque,

806 F.3d at 624.      Indeed, when imposing the enhancement, the

district court noted that the Guidelines contained no knowledge

requirement.

           "We have stated before that guns are often 'tools of the

trade' when it comes to certain offenses, and that an awareness of


                                   -5-
the general plan is sufficient to infer knowledge that the weapons

would be used to carry that plan through to completion."             Id.

Accordingly, we have determined that the use of a gun is reasonably

foreseeable in the context of bank robberies, see id., and certain

drug offenses, see United States v. Fermin, 771 F.3d 71, 83 (1st

Cir. 2014).      Soto contends that, as opposed to a bank robbery or

drug deal, "a knife or blade could have sufficed to rob a single

postal worker on duty delivering packages."       The possibility that

Soto may have used a less deadly weapon, however, does not mean

that the use of a gun was not reasonably foreseeable.        Montes does

not dispute that he was aware that Soto had ventured to that area

for the purpose of robbing a postal worker in broad daylight:

even if Montes had not seen the weapon, as he contends, it would

have been reasonably foreseeable that Soto would use a gun to

ensure that the postal worker gave him the packages and in case he

encountered any resistance from the victim herself or any other

passerby or authority.      See United States v. Spinney, 65 F.3d 231,

237 (1st Cir. 1995) ("[N]ot even the most sanguine criminal would

expect   clear    sailing   without   some   menace   in   the   wind.").

Accordingly, the district court did not clearly err in determining

that the application of § 2B3.1(b)(2)(c) was warranted here.




                                   -6-
B.   U.S.S.G. § 3B1.2(b):   Minor Participant

           Section 3B1.2 of the Guidelines allows for a 2-level

reduction where "the defendant was a minor participant" in the

offense.   U.S.S.G. § 3B1.2(b).3     A minor participant is one "who

is less culpable than most other participants in the criminal

activity, but whose role could not be described as minimal."

U.S.S.G. § 3B1.2 cmt. 5.      The defendant bears the burden "of

proving that he is both less culpable than most others involved in

the offense of conviction and less culpable than most other

miscreants convicted of comparable crimes."          United States v.

Ortiz-Santiago, 211 F.3d 146, 149 (1st Cir. 2000).        "Role-in-the

offense determinations are notoriously fact-sensitive," and the

district court's decision to apply a minor-role reduction is

subject to clear error review.           Id. at 148-49.   Accordingly,

"absent a mistake of law, battles over a defendant's status will

almost always be won or lost in the district court."       Id. at 149

(internal formatting omitted) (quoting United States v. Graciani,

61 F.3d 70, 75 (1st Cir. 1995)).



3  As a threshold matter, Montes contends that the Government's
arguments on appeal that he did not play a "minor role" qualify as
a breach of the plea agreement. Because it is clear under our
case law that the district court did not clearly err in determining
that Montes was not entitled to this adjustment, we need not decide
whether the Government's arguments, made on appeal but not before
the district court during sentencing, should be disregarded.


                                   -7-
           This     case,   however,      gives   us    pause.         Montes   has

consistently denied that he was involved in the planning of the

crime, and neither the Government nor the Probation Office has

stated otherwise.      The record establishes only that Montes drove

Soto to the scene of the crime (albeit with full knowledge that a

crime would be committed) and later discussed the heavy police

surveillance   in    the    area   with   Soto.        During    the   sentencing

hearing, however, the district court implied that Montes "scope[d]

out the place" prior to the robbery.          As Montes suggests, the use

of the phrase "scope out" suggests that Montes was involved in the

planning of the offense.           In the circumstances of this case, a

statement by the district court inflating a defendant's role in

the crime, without any record basis for this assertion, may well

be an indicator of error.

           Nevertheless, the district court's subsequent statements

indicate that it understood Montes's more limited role in the

offense.   After the district court expressed its doubts as to the

minor role adjustment, defense counsel clarified that Montes only

"drove . . . [Soto] to this place and left him there," to which

the district court replied, "I know, but he was taking him to the

place where the robbery occurred for the purpose of committing the

robbery, so he knew a robbery was going to be committed."                       In

light of this exchange, we are satisfied that the district court


                                       -8-
understood that Montes did not help plan the offense.                 Rather than

basing its conclusion on Montes's involvement in the underlying

scheme, the district court clarified that the act of driving his

accomplice to the scene of the crime, with full knowledge of what

was to ensue, precluded a minor-role adjustment in this instance.

          To be sure, we typically have upheld a district court's

decision not to grant a role-in-the-offense adjustment where the

defendant has more extensive involvement in the underlying crime.

See, e.g., United States v. Meléndez-Rivera, 782 F.3d 26, 29 (1st

Cir. 2015) (affirming denial of minor role adjustment where "the

appellant was present for the planning of the scheme and deeply

involved in its execution"); Vargas, 560 F.3d at 49-51 (affirming

the   denial    of    a    minor-role      adjustment     "in   light   of     [the

defendant's]     prior      participation      in   the    transportation        of

contraband, his help in loading the truck, the amount of money

paid to him, the quantity of drugs that had been entrusted to his

care, and his willingness to discuss a role in future deliveries");

United States v. Morales-Machuca, 546 F.3d 13, 24 (1st Cir. 2008)

(affirming denial of minor-role reduction where the defendant "was

in telephonic contact with the other defendants who were physically

participating    in       the   robbery;    was   supposed      to   pick-up    the

defendants after the March 27, 2002 robbery; supplied the Taurus

9mm pistol that [was involved in] the shoot-out; and enjoyed a


                                        -9-
share of the stolen money").        Montes did not retrieve Soto from

the scene, provide a weapon, assist in planning the crime, or take

any of the stolen packages following the robbery.              Still, our

deferential standard of review militates against reversal.

           No    defendant   is   entitled   to   a   minor-role   downward

adjustment.     See United States v. Santos, 357 F.3d 136, 143 (1st

Cir. 2004) ("[E]ven those who serve purely and simply as drug

couriers   are    not   automatically     guaranteed     mitigating   role

reductions."); cf. Meléndez-Rivera, 782 F.3d at 29 ("[A] defendant

need not be the key figure in a conspiracy in order to be denied

a mitigating role-in-the-offense adjustment.").              The district

court found unpersuasive the fact that Montes did not have more

extensive involvement in the robbery:         according to the district

court, Montes drove the assailant to the scene of the crime,

knowing full well that the assailant would commit robbery.             See

United States v. García-Ortiz, 657 F.3d 25, 29-30 (1st Cir. 2011)

("The fact that some other accomplice may be more culpable than

the defendant does not necessarily mean that the defendant's role

in the offense is minor.").4       The district court's determination

was not unreasonable, and we therefore affirm its decision not to


4  Indeed, Montes makes only a passing argument that he is "less
culpable than the mine-run of those who have committed similar
crimes," a required showing for those hoping to avail themselves
of the minor-role reduction. García-Ortiz, 657 F.3d at 29.


                                   -10-
grant Montes a minor-role downward adjustment.         See United States

v. Dilorio, 948 F.2d 1, 5 (1st Cir. 1991) ("[A] district court's

determination under the Guidelines of a defendant's role in an

offense   cannot   be   clearly   erroneous   where   it   is   based   on   a

reasonable inference drawn from the undisputed facts.").

                                   III.

           Because we do not find that the district court clearly

erred in either applying the weapons enhancement or in declining

to apply a minor-role reduction, we affirm Montes's sentence.

           Affirmed.




                                   -11-
