
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 94-1122                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                ANTHONY L. TALLADINO,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                        _____________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                              _________________________               Susan K. Howards, with  whom Launie and Howards P.A.  was on               ________________             _______________________          brief, for appellant.               Dina Michael  Chaitowitz, Assistant United  States Attorney,               ________________________          with  whom Donald K. Stern, United States Attorney, was on brief,                     _______________          for appellee.                              _________________________                                  November 14, 1994                              _________________________                    SELYA, Circuit Judge.  This appeal constitutes one more                    SELYA, Circuit Judge.                           _____________          link in  the lengthening chain  of sentencing appeals  that binds          the federal courts of appeals ever more tightly to the sentencing          process.    In  this  instance,  defendant-appellant  Anthony  L.          Talladino challenges  the district court's  determination of  the          guideline  sentencing range (GSR) in respect to:  (1) the court's          enhancement of his offense level based on his aggravating role in          the offense;  and  (2)  the  court's  handling  of  the  delicate          interface  between  obstruction  of  justice  and  acceptance  of          responsibility.   We  find the  first assignment  of error  to be          unavailing.    We  detect  some merit,  however,  in  the  second          assigned error.  Consequently, we vacate appellant's sentence and          remand for resentencing.          I.  BACKGROUND          I.  BACKGROUND                    Because the underlying conviction results from a guilty          plea rather than a trial, we  draw the facts from the uncontested          portions of the Presentence Investigation Report (PSI Report) and          the transcript of the  sentencing hearing.  See United  States v.                                                      ___ ______________          Garcia, 954 F.2d 12, 14 (1st  Cir. 1992); United States v. Dietz,          ______                                    _____________    _____          950 F.2d 50, 51 (1st Cir. 1991).                    Talladino, a chemist by  trade, attempted to parlay his          technological   expertise  into  ill-gotten  gains  by  illicitly          manufacturing and  distributing a  kaleidoscopic array  of drugs,          including     methamphetamine,     psilocybin,     PHP     (1-(1-                                          2          phenylcyclohexyl)-pyrrolidine),              and             MDMA          (methylenedioxymethamphetamine).1       Talladino    plied   this          nefarious trade in concert with several other persons, among them          Michael Hanley, Anthony Miller, and Scott Dailey.                    The  venture apparently  took  wing when,  sometime  in          1989, Talladino  told Hanley that  he (Talladino) had  the skills          needed to  manufacture illegal drugs.   Hanley expressed interest          and  the two men  set up  shop.  In  the fall of  1990, Talladino          began manufacturing  PHP at  locations in Boston  and Dorchester.          He explained to Hanley that he had selected PHP as the product of          choice because,  as an analogue  of PCP, it  was "non-classified"          under Massachusetts law and, thus, the producers "would avoid any          sort  of  legal   ramifications."    Within  a  few  months,  the          principals   had  recruited   Miller  and   Dale   McDonnell  (an          acquaintance of  Talladino's) as  retailers for  the manufactured          PHP.                    For  a  spell,  Talladino's  rodomontade seemed  to  be          congruent with the relevant realities.  In April of 1991, a local          police  department caught  wind of  a suspected  PCP distribution          ring.    The   police  arrested  Talladino  and   Miller.    Once          apprehended, Miller, who believed he had been trafficking in PCP,          told  the   officers  that   McDonnell  was  peddling   PCP  "for          Talladino."  The Commonwealth  of Massachusetts charged Talladino          with  distributing  PCP,  but,  when chemical  tests  proved  the                                        ____________________               1Psilocybin  is familiarly  known as  "mushrooms" or  "magic          mushrooms."   PHP is an analogue for PCP (sometimes called "angel          dust").  MDMA is generally referred to as "Ecstasy."                                          3          product to be PHP, the authorities dropped the charges.                    Talladino's luck began  to sour in late  1991, when the          federal  Drug   Enforcement  Administration  (DEA)   launched  an          investigation.   At that  juncture, Talladino was  using Hanley's          residence in  Quincy, Massachusetts, as a  site for manufacturing          PHP.   A chemical company informed the DEA that Hanley, employing          a  pseudonym,   had  ordered   a  chemical  frequently   used  to          manufacture  PCP.  The DEA orchestrated a surveillance and Hanley          unwittingly  led  the lawmen  to his  lodgings.   Early  the next          morning,  a Quincy  police  officer stopped  Talladino's car  and          found inside a  bottle containing approximately 50.50  grams of a          substance  that the  officer thought  was PCP  (but which  was in          actuality PHP).                    The police arrested Talladino  for possessing PCP  with          intent  to  distribute.    Perhaps  emboldened  by  his  previous          triumphant encounter with the law, Talladino freely admitted that          he was manufacturing  PHP.   The state once  again dismissed  the          charges against him, but the DEA's interest did not wane.                    Meanwhile, Talladino began to  expand his horizons.  In          1992,  he  proposed to  Dailey, a  co-worker,  that they  use the          latter's  apartment as a site for  producing phenylacetic acid (a          precursor  chemical to methamphetamine).   The men tried, but the          reaction  failed.     The  entrepreneurs  shelved   the  plan  to          manufacture   methamphetamine  until   February  of   1993,  when          Talladino  noticed  that  Dailey's  laboratory  had   received  a          shipment of  phenylacetic acid.   Talladino told  Dailey that  it                                          4          would   be  easy   to  manufacture   methamphetamine  with   pure          phenylacetic acid.   At Talladino's instigation,  Dailey pilfered          300 grams of phenylacetic acid from his employer.  Talladino then          installed a production  facility at Dailey's apartment.  By June,          the pair  had  succeeded in  manufacturing roughly  140 grams  of          liquid  methamphetamine.  Dailey described himself as Talladino's          "lab assistant" for purposes of this endeavor.                    Apparently not satisfied with PHP  and methamphetamine,          Talladino  continued to  enlarge  his product  line.   Presumably          because  his paramour knew an  individual who stood  ready to buy          large quantities  of the  drug known  as Ecstasy,  Talladino next          focused his  considerable energies in that  direction.  Talladino          obtained  a  quantity  of  safrole (a  precursor  chemical),  and          attempted to manufacture the drug.                    During  the  same  time  frame,  Talladino  and  Hanley          decided to produce psilocybin, a hallucinogen.  Talladino ordered          the seeds,  took petri  dishes and other  necessary paraphernalia          from his  place of legitimate  employment, and ordered  Hanley to          procure  lime and peat moss.   The attempt  to produce psilocybin          was  well  on the  way  to fruition  when  a  federal grand  jury          indicted Talladino.2                                        ____________________               2The grand  jury later returned  a superseding  eleven-count          indictment against Talladino, Hanley,  Miller, and Dailey.  Count          1  charged  all  four  men  with  conspiring  to  manufacture and          distribute PHP, methamphetamine,  Ecstasy, and  psilocybin.   The          remaining  ten counts  charged various  defendants  with assorted          crimes  such   as   distributing  PHP;   possessing  PHP   and-or          metamphetamine  with  intent  to  distribute;  possessing  listed          chemicals with  intent to manufacture methamphetamine  and P2P (a          methamphetamine precursor); attempting to  manufacture psilocybin                                          5                    DEA  agents arrested  Talladino and  Hanley on  June 3,          1993.  Both  men were  detained.  Immediately  prior to  Hanley's          release on bail, Talladino instructed him to destroy all evidence          of drug  manufacture  at  a location  the  two men  had  used  in          Charlestown,   Massachusetts.      Hanley  followed   Talladino's          instructions.  Through an intermediary, Talladino also managed to          alert Dailey to the dire nature of the situation and suggest that          he take  cautionary measures.  As  a result of the  warning call,          Dailey disposed of the methamphetamine and other chemicals.3                    On September 17, 1993, Talladino pled guilty to the ten          counts of the  indictment in which  he was  named.  The  district          court  convened  a  disposition  hearing on  January  20,  1994.4          Dailey testified.   The court also inspected transcripts of grand          jury testimony,  reviewed the PSI Report,  and mulled Talladino's          objections thereto.  Two of those objections lie at the epicenter          of  this  appeal:   appellant's  lament  that  he  should not  be          subjected to a four-level  enhancement for playing an aggravating                                        ____________________          and  Ecstasy;  and   maintaining  facilities  for   manufacturing          controlled  substances.   See,  e.g., 21  U.S.C.     841(a)(1)  &                                    ___   ____          (d)(1), 846, 856;  18 U.S.C.    2.  Although all  defendants were          not implicated in all  counts, ten of the eleven  counts targeted          Talladino.               3Dailey did not succeed  fully in covering the conspirators'          tracks.  On June 5, 1993, the DEA searched Dailey's apartment and          found   a   residue   of   methamphetamine   and  methamphetamine          precursors.               4The  November   1993  edition  of  the  federal  sentencing          guidelines applies in this  case.  See United States  v. Aymelek,                                             ___ _____________     _______          926 F.2d  64, 66  n.1  (1st Cir.  1991) ("Barring  ex post  facto                                                             __ ____  _____          concerns,  the guidelines in effect at the time of sentencing . .          . control.").  All references herein are to that version.                                          6          role in the offense; and his contention that he should receive  a          three-level credit  for acceptance of responsibility  (as opposed          to the two-level credit recommended in the PSI Report).                    The district court  overruled appellant's  role-in-the-          offense and  acceptance-of-responsibility  objections.   It  then          calculated the  GSR at 135-168 months  (offense level 33/criminal          history category I) and imposed an  incarcerative sentence at the          bottom of the range.  This appeal ensued.          II.  ROLE IN THE OFFENSE          II.  ROLE IN THE OFFENSE                    Appellant asseverates  that  the lower  court erred  in          enhancing his base offense  level for his role in  the commission          of the offense.   We start our analysis  by inspecting the  legal          framework on which this asseveration  rests, and then proceed  to          examine the merits.                                          A                                          A                    The federal sentencing guidelines provide two different          tiers  of upward adjustments for defendants who are in the higher          echelons  of   criminal  enterprises.     Generally  speaking,  a          "manager"  or   "supervisor"  is  treated  less   kindly  than  a          journeyman,  but more  kindly  than an  "organizer" or  "leader."          Compare  U.S.S.G.   3B1.1(b) with  U.S.S.G.   3B1.1(a).   In  the          _______                      ____          latter case, the guidelines  call for an increase of  four levels          "[i]f  the defendant  was an  organizer or  leader of  a criminal          activity that involved five or more participants or was otherwise          extensive . . . ."  Id.                              ___                                          7                    It  is evident  from this  language that  the guideline          puts in place two preconditions to a four-level enhancement.  One          is  enterprise-specific; the  court must  find that  the criminal          activity  involved five  or more  participants, or  was otherwise          extensive.  The second is offender-specific; the  court must find          that  a particular defendant acted  as an organizer  or leader of          the  activity.  We have  consistently read the  guideline in this          manner.  See,  e.g., United States v. Olivier-Diaz, 13  F.3d 1, 4                   ___   ____  _____________    ____________          (1st  Cir. 1993);  Dietz,  950  F.2d  at  52;  United  States  v.                             _____                       ______________          McDowell, 918 F.2d 1004, 1011 (1st Cir. 1990).          ________                    The   commentary   to   the   guidelines   furnishes  a          nonexhaustive list  of factors to  aid courts in  delineating the          difference    between   the   roles   of   organizer/leader   and          manager/supervisor:                    [1]   the   exercise   of   decision   making                    authority, [2] the nature of participation in                    the   commission  of  the  offense;  [3]  the                    recruitment of accomplices,  [4] the  claimed                    right  to a larger share of the fruits of the                    crime,  [5]  the degree  of  participation in                    planning or  organizing the offense,  [6] the                    nature and scope of the illegal activity, and                    [7]  the  degree  of  control  and  authority                    exercised over others.          U.S.S.G.   3B1.1, comment.  (n.4).   These  seven factors,  while          useful as  guideposts,  do not  possess talismanic  significance.          "There need not be evidence of every factor before a defendant is          found to  be a leader or  organizer."  United  States v. Preakos,                                                 ______________    _______          907 F.2d 7, 9 (1st Cir. 1990) (per curiam) (citation and internal          quotation marks omitted).   Moreover, because role-in-the-offense          determinations are inherently fact-specific, the district court's                                          8          views demand  "considerable respect."   United States  v. Ocasio,                                                  _____________     ______          914  F.2d  330, 333  (1st Cir.  1990).   As  a  consequence, such          judgments  are reviewed on appeal only for clear error or mistake          of law.  See Dietz, 950 F.2d at 52; United States v. Akitoye, 923                   ___ _____                  _____________    _______          F.2d 221, 227 (1st Cir. 1991); McDowell, 918 F.2d at 1011; United                                         ________                    ______          States  v. Diaz-Villafane,  874  F.2d 43,  48  (1st Cir.),  cert.          ______     ______________                                   _____          denied, 493 U.S. 862 (1989).          ______                                          B                                          B                    Appellant   eschews  any   challenge  to   the  court's          determination of  extensiveness (and,  in all events,  the record          persuasively demonstrates the scope  of the criminal activity and          the  large number  of persons  participating therein).   Instead,          appellant  complains about the court's  assessment of his role in          the enterprise.  We  think that the facts, fairly  viewed, verify          the conclusion that appellant  served as both an "organizer"  and          "leader" of the drug manufacturing and distribution ring.                    Appellant's argument, distilled to its essence, is that          he and  his coconspirators  were equal  partners embarked  upon a          joint  venture.    This  self-deprecation  cannot  withstand  the          crucible of close examination.   Most tellingly, the record shows          with  pristine  clarity that  appellant  made  the key  strategic          decisions  for the group:  what drugs would be manufactured, when          the  manufacturing  would take  place,  at  what locations,  what          processes would  be used, and what quantities of contraband would          be  manufactured.   Where, as  here, one  individual in  a multi-          defendant enterprise makes the critical strategic and operational                                          9          decisions  on   behalf  of  the  group   (unilaterally  answering          questions  such as "what? when? where? how? and how much?"), that          individual exhibits precisely  the sort  of characteristics  that          are emblematic of an organizer or leader.                    In  this case,  moreover,  the record  is replete  with          evidence  that   appellant  not  only   exercised  decisionmaking          authority,  but  also  did  the  lion's share  of  the  planning,          recruited   accomplices,   and   exerted   control   over   those          accomplices.   Indeed,  appellant used  Hanley and  Dailey on  an          ongoing basis to run errands in furtherance of the project (e.g.,                                                                      ____          directing  Hanley to  obtain peat  moss and  lime needed  for the          proposed  production of  psilocybin;  directing Dailey  to  filch          glassware  and  machinery  from  his  place  of  employment,  and          otherwise treating him as an  assistant).  If more were needed             and we do not  think that it is   the events  that occurred after          appellant's  arrest   confirm  his  place  in   the  conspiracy's          hierarchy.  While  in jail,  he instructed Hanley  and Dailey  to          destroy  evidence, and they  complied unquestioningly  with those          instructions.                    We   will   not  wax   longiloquent.     The   evidence          demonstrates appellant's  hegemony beyond  the shadow of  a doubt          and,  thus,  amply supports  the  district  court's finding  that          appellant was an organizer and  leader of the criminal  activity.          See, e.g., United States v. Fuller, 897 F.2d 1217, 1220 (1st Cir.          ___  ____  _____________    ______          1990)  (holding that  the four-level  enhancement applies  when a          defendant  "exercise[s]  some  degree  of  control  over   others                                          10          involved in the commission of the offense or [is] responsible for          organizing others for the purpose of carrying out the crime").                                          C                                          C                    Appellant  has one more arrow in his quiver.  He argues          that,  given the centrality of  his training in  chemistry to his          participation  in  the  offense,  the  district  court  erred  in          deciding  upon  a role-in-the-offense  enhancement  (four levels)          rather than  a lesser  "special skill" enhancement  (two levels).          See U.S.S.G.  3B1.3 (providing in  pertinent part for a two-level          ___          enhancement if the defendant  "used a special skill, in  a manner          that  significantly facilitated the  commission or concealment of          the offense").                    To be sure, there is some potential overlap between the          special  skill  provision  and the  aggravating  role adjustment.          Although   double  counting   may  be   permissible  in   certain          circumstances under  the guidelines, see, e.g.,  United States v.                                               ___  ____   _____________          Lilly,  13 F.3d 15, 19 (1st Cir. 1994), the Sentencing Commission          _____          chose  to avoid  it in  respect to  this overlap.   To  this end,          section  3B1.3   specifically  declares  that   a  special  skill          adjustment  "may not  be employed  in addition  to an  adjustment          under  3B1.1  (Aggravating Role)."  U.S.S.G.   3B1.3.  Therefore,          the district  court could  not lawfully  have piled a  four-level          increase  for role in the  offense atop a  two-level increase for          the use of  a special skill.  But the district  court did not run          afoul  of   this  prohibition;  it  unleashed   only  the  former          enhancement, not the latter.  We discern no error.                                          11                    We  agree with  appellant that some  of the  facts that          demonstrate  his leadership role relate to his work as a chemist.          When the  same set of  facts implicates two  different adjustment          provisions, however,  the guidelines ordinarily do  not require a          sentencing  court  to  embrace  the  lesser  of the  two  equally          applicable adjustments.   See,  e.g., United States  v. Medeiros,                                    ___   ____  _____________     ________          897  F.2d 13, 20 (1st Cir. 1990).   In fact, the guidelines point          rather conspicuously  in the  opposite direction.   See generally                                                              ___ _________          U.S.S.G.   1B1.1, comment.  (n.5) ("Where  two or  more guideline          provisions   appear  equally   applicable,  but   the  guidelines          authorize the  application of  only one  such provision,  use the          provision that results in the greater offense level.").                    In this  instance,  the  record  solidly  supports  the          district court's finding that appellant acted as an organizer and          leader5    and  no provision  in the  guidelines suggests  that a          sentencing court must  resort to a  special skill enhancement  in          lieu of an equally justified aggravating role enhancement.  Thus,          notwithstanding the imbrication of which appellant complains, the                                        ____________________               5To the  extent appellant  argues that the  sentencing court          misconstrued actions he took as a chemist, his argument falls far          short  of the  mark.   Appellant was by  no means  an independent          contractor  whose authority  was confined  to the  laboratory and          whose  decisions  were  limited  to discrete  issues  related  to          production.   Instead, the district court  warrantably found that          appellant,  aided by  his knowledge  of chemistry  and his  ready          access  to raw materials and equipment, made a series of tactical          and  strategic choices  for  the organization  on a  wide-ranging          basis.  We must accept this  rendition of the record.  See United                                                                 ___ ______          States v.  St. Cyr, 977  F.2d 698,  706 (1st Cir.  1992) (holding          ______     _______          that  "when  there are  two plausible  views  of the  record, the          sentencing court's  adoption of one  such view cannot  be clearly          erroneous"); Diaz-Villafane, 874 F.2d at 49 (similar;  discussing                       ______________          role-in-the-offense adjustment).                                          12          district court acted properly  in embracing the four-level upward          adjustment described  in section  3B1.1 rather than  settling for          the two-level adjustment described in section 3B1.3.6          III.  ACCEPTANCE OF RESPONSIBILITY          III.  ACCEPTANCE OF RESPONSIBILITY                    Appellant's remaining challenge concerns  acceptance of          responsibility.   U.S.S.G.   3E1.1(a) provides  for a  basic two-          level  reduction  in the  offense  level if  a  defendant accepts          responsibility as that phrase is used in the guidelines.  Section          3E1.1(b) makes provision for an additional one-level reduction if          the defendant qualifies for the initial decrease under subsection          (a), has an offense level of 16 or more, and either:  "(1) timely          provid[es] complete information to the government concerning  his          own  involvement  in  the   offense;  or  (2)  timely  notif[ies]          authorities of his intention  to enter a plea of  guilty, thereby          permitting  the  government  to  avoid preparing  for  trial  and          permitting  the court  to  allocate  its resources  efficiently."          U.S.S.G.  3E1.1(b).                    A different guideline, U.S.S.G.  3C1.1, provides  for a          two-level  increase  in  the  offense level  for  obstructing  or          impeding the administration of justice.  A natural tension arises          between these two guidelines  when a defendant obstructs justice,                                        ____________________               6We  note  in  passing  that  the  special  skill  provision          operates differently than the  abuse of trust provision contained          in  the  same  guideline.    With  respect  to  the  latter,  the          guidelines  specifically  authorize  the imposition  of  separate          enhancements  for  both   abuse  of  a  position   of  trust  and          aggravating  role, see U.S.S.G.   3B1.3, notwithstanding that the                             ___          two enhancements may arise  out of the same nucleus  of operative          facts, see United States v. Hickman, 991 F.2d 1110, 1112 (3d Cir.                 ___ _____________    _______          1993) (discussing operation of these interlocking guidelines).                                          13          yet  professes  to accept  responsibility.   In  such  cases, the          defendant  faces an  uphill, but  not necessarily  an impossible,          climb.   While the Sentencing Commission  recognizes that conduct          requiring   an  enhancement   under  section   3C1.1  "ordinarily          indicates that the defendant  has not accepted responsibility for          his  criminal  conduct,"  U.S.S.G.   3E1.1,  comment.  (n.4),  it          acknowledges  in the  same breath  that there  are "extraordinary          cases in  which  adjustments under  both    3C1.1 and  3E1.1  may          apply."  Id.                   ___                    In  the  instant  case,  the   district  court  invoked          U.S.S.G.    3C1.1  and  imposed   a  two-level   enhancement  for          obstruction of  justice as a  result of  appellant's campaign  to          destroy evidence.   The  court nevertheless found  that appellant          had  accepted  responsibility,  and,  although  troubled  by  the          obstruction  of  justice, found  his  case  to be  extraordinary.          Then,  without  any analysis  of  the requirements  set  forth in          section  3E1.1(b), the  court gave  appellant a  two-level rather          than  a  three-level  acceptance-of-responsibility credit.    The          court offered no explanation  of, or insight into, the  source of          its  authority to  make so Solomonic  a decision.7   Cf.  2 Kings                                                               ___    _____          3:16-18 (proposing resolution of dispute by splitting small child          in half).                    On  appeal,  Talladino  assails  the  district  court's          decision  to deny  the  extra one-level  reduction under  section                                        ____________________               7The  court apparently  emulated the  PSI Report,  which had          recommended  this very course.  The PSI Report, too, glossed over          the question of authority.                                          14          3E1.1(b).   He contends that, once the  district court determined          that  he  qualified  for  the  basic acceptance-of-responsibility          reduction,  U.S.S.G.  3E1.1(a),  the court  had no  discretion to          withhold the additional level due to obstruction of justice, but,          instead, could only undertake the circumscribed inquiry limned in          section 3E1.1(b),  and grant or deny the further reduction solely          on that basis.  We agree with appellant's analysis.                                          A                                          A                    We  deal first  with the  standard of  appellate review          that  applies to  this  aspect  of  the  case.    The  government          importunes us  to review the  challenged ruling for  clear error,          while appellant urges us to undertake plenary review.                    Whether a defendant has,  or has not, accepted personal          responsibility  is  normally  a  fact-dominated  issue,  and  the          district court's decision to grant or withhold a reduction in the          offense  level on that account  will not be  overturned unless it          can  be shown to be clearly  erroneous.  See, e.g., United States                                                   ___  ____  _____________          v.  Morillo, 8  F.3d 864, 871  (1st Cir. 1993);  United States v.              _______                                      _____________          Royer, 895 F.2d 28,  29 (1st Cir. 1990).   Nonetheless, questions          _____          of law   including  interpretive questions concerning the meaning          and scope of the sentencing guidelines   engender de novo review.                                                            __ ____          See, e.g., United States v. St. Cyr, 977 F.2d 698,  701 (1st Cir.          ___  ____  _____________    _______          1992); United States v.  Connell, 960 F.2d 191, 197-98  (1st Cir.                 _____________     _______          1992).   When  a sentencing  court's factfinding  is inextricably          intertwined  with  an  allegedly  improper  application   of  the          sentencing guidelines,  the latter standard  of review  controls.                                          15          See United States v. Tavano, 12 F.3d 301, 307 (1st Cir. 1993).          ___ _____________    ______                    In its  present posture, the issue  presented on appeal          does not involve a  factual determination under either subsection          (a) or  (b) of  section 3E1.1.8    Instead, this  case poses  the          quintessentially legal question of whether the district court had          discretion to deny  appellant the additional  one-level reduction          described   in  U.S.S.G.    3E1.1(b),  without   considering  the          timeliness  of appellant's  acceptance  of  responsibility.   We,          therefore, review the challenged ruling de novo.                                                  __ ____                                          B                                          B                    As  a  matter of  common  sense,  the district  court's          determination that, having obstructed justice, appellant deserved          something   less  than  the  maximum  three-level  reduction  for          acceptance  of responsibility is attractive.  As a matter of law,          however, the court's decision is more vulnerable, because nothing          in the language of U.S.S.G.  3E1.1(b) makes any reference, veiled          or  otherwise,  to  judicial  power  to  withhold  the  one-level          reduction  due  to  obstruction  of justice.    The  language  of          subsection  (b) is  absolute on  its face.   It  simply does  not          confer any discretion on  the sentencing judge to deny  the extra          one-level   reduction  so   long  as   the   subsection's  stated          requirements are satisfied.                                        ____________________               8Although the  district court found as a fact that appellant          accepted responsibility,  U.S.S.G.   3E1.1(a), neither  side  has          appealed from that  finding.   Insofar as  U.S.S.G.  3E1.1(b)  is          concerned,  the  district  court  made no  findings  even  though          appellant's  counsel  argued  the  point  both  in  a  sentencing          memorandum and in objections to the PSI Report.                                          16                    The  government  argues   that  the  district   court's          discretion  to  withhold the  one-level  reduction,  even when  a          defendant has met the explicit requirements of subsection (b), is          inherent  in, or  a necessary  concomitant of,  the need  for the          district  court  to find  that the  case  is "extraordinary"    a          finding that is essential to overcome the effect of a defendant's          obstruction of  justice and  remove the roadblock  that otherwise          bars  all access  to section  3E1.1.   Withal, the  government is          wholly unable to  cite to anything  in the guidelines  or in  the          Sentencing Commission's commentary that supports its theory   and          courts must be very cautious about retrofitting the guidelines to          suit  an individual  judge's  concepts of  justice.   Cf.  United                                                                ___  ______          States v. Norflett, 922  F.2d 50, 53 (1st Cir.  1990) (explaining          ______    ________          that judges "must subrogate  personal views [about what sentences          are too severe or too lenient] to the Congress' sense of how best          to achieve  uniformity").  When  all is  said and done,  the best          authority that  the  government can  muster  in support  of  this          proposition consists  of two cases,  United States v.  Booth, 996                                               _____________     _____          F.2d  1395  (2d Cir.  1993) (per  curiam),  and United  States v.                                                          ______________          Tello,  9  F.3d 1119  (5th  Cir. 1993).    We  find neither  case          _____          particularly helpful.                    In  Booth the  defendant, prior  to his  indictment for                        _____          sexual exploitation  of children,  made several attempts  to keep          his victims from talking  to the FBI.   In constructing the  GSR,          the  district court  employed  both a  two-level enhancement  for          obstruction of justice and a two-level decrease for acceptance of                                          17          responsibility under  section 3E1.1(a).  The  court then declined          to  bestow  an  additional   one-level  reduction  under  section          3E1.1(b).    Although  the  Second Circuit  upheld  the  district          court's  decision, it  did not  squarely address  the  issue that          confronts us  today.  Booth  argued that  he was entitled  to the          one-level reduction  because of the extraordinary  quality of his          cooperation, not  because his conduct satisfied  the criteria set                       ___          forth  in section 3E1.1(b).   Here, however,  Talladino makes the          rather different  argument, apparently overlooked by  Booth, that          timeliness  is the  only relevant  inquiry under  subsection (b).          Thus, Booth is inapposite.                _____                    In  Tello,  the   defendant  obstructed  justice  after                        _____          pleading guilty by providing false information about his criminal          history.  The district court imposed a  two-level enhancement for          obstruction  of  justice  and  granted  an  offsetting  two-level          decrease  for  acceptance  of responsibility.    Despite  Tello's          admittedly timely guilty plea,  the court did not afford  him the          additional one-level reduction under subsection (b).                    Tello appealed.  The Fifth Circuit reversed,  declaring          that   once  an   affirmative  determination  of   acceptance  of          responsibility has been made, "no sentencing discretion remains."          Tello,  9  F.3d  at 1124.    The  court  explicitly rejected  the          _____          district  court's  reliance  on the  defendant's  obstruction  of          justice  as  a  reason   for  denying  the  additional  one-level          reduction, explaining that:                    When  the court  granted [the  defendant] the                    basic  2-level  reduction  for acceptance  of                                          18                    responsibility under  subsection (a), despite                    having  found  obstruction  of   justice  and                    having increased  his  offense level  by  two                    therefor, obstruction became irrelevant.   It                    evaporated from the sentencing calculus.          Id. at 1128.          ___                    Despite  these  seemingly  unequivocal assertions,  the          government  insists that  Tello contains  a per se  exception for                                    _____             ___ __          cases  in which  an obstruction  of justice  occurs prior  to the          defendant's  tender of a guilty  plea.  To  support this argument          the government relies on the following footnote:                    This  is  not  to  say  that,  under  greatly                    different   circumstances,   obstruction   of                    justice  could  not constitute  discretionary                    grounds  for  denying the  additional 1-level                    decrease,  such as  when the  defendant first                                                            _____                    obstructs justice in the investigation of his                    offense  and  only  subsequently  admits  his                                        ____________                    guilt and cooperates with the government.          Id. at 1128 n.22 (citing Booth).          ___                      _____                    The government's  reliance on the  dictum contained  in          footnote 22 is misplaced.  Rather than creating a broad exception          to  the  holding in  Tello, footnote  22  merely leaves  open the                               _____          possibility that  a defendant's  obstruction of justice  might be                                                                   _____          relevant  to  the  sentencing court's  timeliness  inquiry  under          section 3E1.1(b).  See, e.g., infra note 10.  In  other words, if                             ___  ____  _____          a defendant's obstruction of justice directly precludes a finding          of  timeliness  under section  3E1.1(b),  then  a denial  of  the          additional one-level decrease would be appropriate.  If, however,          the  defendant's obstruction  of justice  has no  bearing on  the          section 3E1.1(b)  timeliness inquiry, as  was the case  in Tello,                                                                     _____                                          19          then the obstruction drops from the equation.9                    We consider the Fifth Circuit's  holding in Tello to be                                                                _____          much   more    convincing   than   the    government's   sanguine          interpretation of footnote 22.  We believe that such a holding is          compelled by the language of the sentencing guidelines.  The text          of  section 3E1.1,  as the  government concedes, does  not confer          discretion  on  the district  court to  deny the  extra one-level          reduction so long as  certain stated prerequisites are satisfied.          And there  is no principled  basis, linguistic or  otherwise, for          arguing  that  obstruction  of  justice   affects  this  baseline          interpretation of section 3E1.1(b).                    The commentary to the guidelines is to the same effect.          It  establishes that, in the  universe of cases where obstruction          of justice looms, a reduction for acceptance of responsibility is          ordinarily forestalled altogether.  See U.S.S.G.  3C1.1, comment.                                              ___          (n.4).    Yet,  there  will  be  "extraordinary  cases  in  which          adjustments under  both   3C1.1 and  3E1.1 may apply."   Id.  The                                                                   ___          use  of  the permissive  word "may"  makes  it pellucid  that the          district  court,   having  found  obstruction   of  justice,  has          discretion to bypass section 3E1.1.   Nonetheless, once the court          finds that  a  case  is  "extraordinary" within  the  meaning  of          Application Note  4, the  bypass option  is blocked off,  section          3E1.1 comes  into play, and the  court at that point  is bound to                                        ____________________               9The confusion  surrounding footnote  22 stems in  part from          the inclusion of the  phrase "discretionary grounds."   This term          appears to be used incorrectly in the context of a  discussion of          section 3E1.1(b), as  the additional one-level decrease is  not a          matter of discretion, but of factfinding.                                          20          apply the guideline  according to its own terms.   Those terms do          not permit an allowance  to be made for  the circuitous route  by          which  the  acceptance of  responsibility  guideline  came to  be          applied in the first place.                    Our focus on the plain  language of the guidelines  and          commentary  is  a  necessary  offshoot  of  the  policy  concerns          undergirding the  sentencing guidelines.  The guidelines' primary          purpose  is to alleviate disparity in the sentencing of similarly          situated offenders.   See S. Rep.  No. 225, 98th Cong.,  2d Sess.                                ___          38, 51, 161  (1984), reprinted in  1984 U.S.C.C.A.N. 3182,  3221,                               _________ __          3234,  3344.  "Ensuring  uniformity inevitably  means restricting          judicial discretion."  United States v. Jackson, 30 F.3d 199, 201                                 _____________    _______          (1st  Cir. 1994).  This phenomenon, in turn, places more emphasis          on the text and purport of the guidelines.                    Where, as  here, the text and purport of the guidelines          are clear, courts  may not  tinker, but, rather,  must apply  the          provision  in question according to its tenor.  After all, toying          with  the  scope  and  meaning  of  carefully  crafted  guideline          provisions  would  undermine  the  principle  of  uniformity that          engendered the guidelines.  See Norflett, 922 F.2d at 54 (stating                                      ___ ________          that  guidelines cannot  "be  adulterated by  a judge's  personal          sense of inequity, no  matter how well intentioned the  judge may          be"); see also Jackson, 30 F.3d at 204 (holding that the  courts'                ___ ____ _______          role vis-a-vis  the Sentencing Commission is  as "interpreters of          the  words  chosen by  [the Commission],  not as  policymakers or          enlargers of [the Commission's] intent").                                          21                    Viewed  against this  backdrop, we  are of  the opinion          that, in  denying appellant  the extra one-level  reduction under          section  3E1.1(b)  because of  his  obstruction  of justice,  the                             ________________________________________          district court erred.   Faced with this sort of  dilemma, a court          should  pose two separate questions.  First, the court should ask          whether the  defendant is entitled  to receive any  reduction for                                                         ___          acceptance of responsibility, given  his obstruction of  justice.          The  court can  only  answer this  query  in the  affirmative  by          finding, inter alia, that the  situation is "extraordinary."  If,                   _____ ____          notwithstanding the  height of  this threshold, the  court vaults          it, makes the  requisite finding, and answers  the first question          affirmatively,  it is  then  obliged to  award the  defendant the          standard two-level  credit for acceptance of  responsibility.  At          that juncture, the court should  place obstruction of justice  to          one side  and pose  the second  question,  inquiring whether  the          defendant qualifies  for an additional one-level  reduction based          on  the timeliness  of his  acceptance  of responsibility.10   In          other  words, once the initial  inquiry has been  resolved in the          defendant's favor, with the explicit or implicit finding that his          case is  "extraordinary," the only relevant  inquiry that remains          is whether the defendant either:  "(1) timely provid[ed] complete                                        ____________________               10Of course, in  some cases a particular  act of obstruction          may  bear  directly  upon   the  criteria  specified  in  section          3E1.1(b).    For   example,  obstructive  conduct   might  render          information furnished  to the  government incomplete, even  in an          "extraordinary"  case.   In  such  a  situation, the  obstructive          conduct can be considered during the second stage of the inquiry.          Given the  absence of findings in this  case, however, we take no          view  as to  how (if  at all) this  possibility might  affect the          proceedings on remand.                                          22          information to  the government concerning his  own involvement in          the  offense;  or  (2)   timely  notif[ied]  authorities  of  his          intention  to enter  a  plea of  guilty,  thereby permitting  the          government to avoid  preparing for trial and permitting the court          to allocate its resources efficiently."  U.S.S.G.  3E1.1(b).                    Here,   the  court   in  effect  conflated   these  two          inquiries.   In  following this  course, the  court erred.   And,          moreover,  its  error  requires that  appellant  be  resentenced.          After all,  the court  made no  findings whatever  concerning the          section  3E1.1(b) criteria.    Furthermore, the  record does  not          suggest  an  obvious  basis  for  excluding  appellant  from  the          benefits  of  subsection  (b).    Consequently,  we  must  vacate          appellant's  sentence  to  allow   the  district  court  a  fresh          opportunity  to  consider,  in  light  of  our  opinion,  whether          appellant  is, or  is not,  entitled to the  additional one-level          reduction under section 3E1.1(b).          IV.  CONCLUSION          IV.  CONCLUSION                    We  need go  no  further.   For  the reasons  discussed          herein, we affirm appellant's conviction, but vacate his sentence          and remand for resentencing.          It is so ordered.          It is so ordered.          ________________                                          23
