          United States Court of Appeals
                     For the First Circuit

No. 14-1732

                   UNITED STATES OF AMERICA,

                           Appellee,

                               v.

                     SANTOS ACEVEDO-SUEROS,

                     Defendant, Appellant.


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

         [Hon. José Antonio Fusté, U.S. District Judge]


                             Before

                  Lynch, Lipez, and Thompson,
                        Circuit Judges.


     Guillermo A. Macari-Grillo, on brief for appellant.
     Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Francisco A. Besosa-Martínez, Assistant United
States Attorney, on brief for appellee.


                         June 17, 2016
             LIPEZ, Circuit Judge.        Santos Acevedo-Sueros appeals the

sentence imposed following his guilty plea to four felony counts

related to a conspiracy to import over 1,300 kilograms of cocaine.

We affirm.

                                          I.

             Charged on December 18, 2013, Acevedo-Sueros informed

the court of his intention to plead guilty on February 12, 2014,

and entered a straight guilty plea on March 12, 2014.                       The

Presentence Investigation Report ("PSR") calculated his Total

Offense   Level      ("TOL")   at   34,    including    a   two-level   downward

adjustment     for    acceptance     of        responsibility   under   U.S.S.G.

§ 3E1.1(a).     It did not mention the additional one-level decrease

potentially available for "timely notifying authorities of his

intention to enter a plea of guilty, thereby permitting the

government to avoid preparing for trial."               U.S.S.G. § 3E1.1(b).

             Acevedo-Sueros did not object to the PSR, nor did his

sentencing memorandum mention a possible one-level decrease under

§ 3E1.1(b) or suggest that his total offense level should be 33

rather than 34. At his sentencing hearing, the court asked whether

the correct total offense level was 34, and his counsel agreed.

The court did not ask Acevedo-Sueros whether he had reviewed the

PSR and discussed it with his attorney.                  The court ultimately

sentenced him to concurrent prison terms of 151 months for each of

the four counts, the low end of the guidelines sentencing range


                                      - 2 -
given    a   TOL   of   34   and   Criminal     History    Category    ("CHC")    I.

Acevedo-Sueros      challenges      his    sentence,      claiming    that   it   is

procedurally unreasonable on two grounds. We address those grounds

in turn.

                                          II.

             Acevedo-Sueros avers that the district court should have

given him the benefit of an additional one-level reduction in his

offense level pursuant to § 3E1.1(b). Before addressing the merits

of his argument, we address a waiver argument raised by the

government.

A.      Waiver

             The government urges that Acevedo-Sueros waived the one-

level reduction issue by failing to raise it below, and hence we

should not address the issue at all.              See generally United States

v. Olano, 507 U.S. 725, 733-34 (1993) (explaining that "[w]hereas

forfeiture is the failure to make the timely assertion of a right,

waiver is the 'intentional relinquishment or abandonment of a known

right;'" the former may be reviewed for plain error, whereas the

latter may not be reviewed on appeal (quoting Johnson v. Zerbst,

304 U.S. 458, 464 (1938))); United States v. Rodriguez, 311 F.3d

435, 437 (1st Cir. 2002) (finding waiver of an objection to a

sentencing guidelines calculation where defendant "consciously

waived the issue").




                                      - 3 -
          The government argues that, in its words, "Acevedo-

Sueros' serial failures to raise this issue at various points

throughout the proceedings below constitute a waiver, rather than

a mere forfeiture."   As the government points out, he did not

object to the PSR, which mentioned § 3E1.1(a) but not § 3E1.1(b);

and he did not raise § 3E1.1(b) in his sentencing memorandum or at

the sentencing hearing.1   Acevedo-Sueros does not dispute that he

failed to object to the guidelines calculation as recommended in

the PSR, or to ask the district court to apply the § 3E1.1(b)

offense level adjustment at sentencing.   In Acevedo-Sueros' view,

however, this was a mere "lapse in the computation of the offense

level," and despite his omission the issue may be reviewed for

plain error under Olano.

          Ultimately, we need not decide the waiver issue.   Where

a defendant's claim would fail even if reviewed for plain error,

we have often declined to decide whether the defendant's failure

to raise the issue below constituted waiver or mere forfeiture.


     1 Federal Rule of Criminal Procedure 32(f)(1) requires that
"[w]ithin 14 days after receiving the presentence report, the
parties must state in writing any objections, including objections
to material information, sentencing guideline ranges, and policy
statements contained in or omitted from the report." The Local
Rules of the District of Puerto Rico also require that "[w]ithin
fourteen (14) days from disclosure of the PSR, counsel for the
government and counsel for the defense shall file . . . written
objections to the facts or guideline application in the PSR."
D.P.R. Crim. R. 132(b)(3)(A). The Local Rules add that "[a] party
waives any objection to the PSR by failing to comply with this
rule." Id.


                               - 4 -
See, e.g., United States v. Aguasvivas-Castillo, 668 F.3d 7, 13-

14 (1st Cir. 2012).       So it is here.    Even if Acevedo-Sueros'

omissions below constitute a mere forfeiture, his argument fails

on plain error review.

B.   Acceptance of Responsibility (U.S.S.G. § 3E1.1(b))

             Section 3E1.1(b) reads:


             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 upon motion of the government stating
             that the defendant has assisted authorities in the
             investigation or prosecution of his own misconduct
             by timely notifying the authorities of his
             intention to enter a plea of guilty, thereby
             permitting the government to avoid preparing for
             trial and permitting the government and the court
             to allocate their resources efficiently, decrease
             the offense level by 1 additional level.


U.S.S.G. § 3E1.1(b) (emphases omitted).       Acevedo-Sueros argues

that, because his prompt guilty plea obviated the need for the

government to prepare for trial, he was entitled to the one-level

reduction.

             The government responds that, pursuant to § 3E1.1(b),

the court was not permitted to grant the reduction except "upon

motion of the government," a motion it never made.2    Its argument

is bolstered by the relevant application note to § 3E1.1:


     2 The government acknowledges an exception to the government-
motion requirement, applicable "when the government's withholding
of the predicate motion 'was based on an unconstitutional motive'


                                 - 5 -
              Because the Government is in the best position to
              determine whether the defendant has assisted
              authorities in a manner that avoids preparing for
              trial, an adjustment under subsection (b) may only
              be granted upon a formal motion by the Government
              at the time of sentencing.


Id. § 3E1.1 cmt. n.6.

              Acevedo-Sueros argues that "the government asked orally

for the one-level reduction at the sentencing hearing."                    Though

his brief provides little explanation, the implication is that

this   oral    request     satisfied    the    need   for   a    "motion   of   the

government." Id. § 3E1.1(b).

              Acevedo-Sueros     evidently      relies      on    the   following

colloquy from the sentencing hearing:


              THE COURT:       So, [TOL] 34 and [CHC] One is a
                               guideline range of 151 to 188
                               months, a fine range of $17,500.00
                               to 10 million dollars plus a
                               supervised release of at least five
                               years.

              AUSA:            If it is a level 33, it would be 135
                               to 168.

              THE COURT:       No one said level 33, it is a level
                               34.

              AUSA:            Yes, okay.



or 'was not rationally related to any legitimate government end.'"
United States v. Meléndez-Rivera, 782 F.3d 26, 30 (1st Cir. 2015)
(quoting United States v. Beatty, 538 F.3d 8, 14 (1st Cir. 2008)).
Acevedo-Sueros does not argue, and there is no evidence to suggest,
that the Beatty exception applies. See infra.


                                       - 6 -
The suggestion that this exchange satisfied the government-motion

requirement of § 3E1.1(b) is frivolous.     This stray comment by the

prosecutor was not a motion, much less a "formal motion." U.S.S.G.

§ 3E1.1 cmt. n.6. The district court did not err by not recognizing

it as such.

          Acevedo-Sueros also makes a second argument, though,

again, his reasoning is unclear.       He suggests that the district

court made a legal error, believing that "it lacked discretion to

grant the additional one-level reduction to the offense level under

§ 3E1.1(b) without a government motion."     He points to our holding

in Meléndez-Rivera that "when the government's withholding of the

predicate motion 'was based on an unconstitutional motive' or 'was

not rationally related to any legitimate government end,'" the

district court may grant the additional one-level reduction even

absent a government motion.   United States v. Meléndez-Rivera, 782

F.3d 26, 30 (1st Cir. 2015) (quoting United States v. Beatty, 538

F.3d 8, 14 (1st Cir. 2008)).    His argument seems to be that the

district court declined to consider a downward adjustment under

§ 3E1.1(b) because it thought it was categorically forbidden from

doing so absent a government motion.       Because there is no such

categorical prohibition, the argument goes, the district court

made an error of law that prevented it from granting the reduction.

          The argument has no merit.      There is no indication in

the sentencing hearing transcript that the district court believed


                               - 7 -
it had no authority to grant an additional one-level reduction.

The court did not opine on § 3E1.1(b) at all, presumably because

neither the parties nor the PSR brought that guideline to its

attention. There is no suggestion that the government's sentencing

recommendations were driven by any improper motive that would have

allowed the court to substitute its judgment for that of the

government.

          There was no error -- plain or otherwise -- in the

court's determination that the proper TOL was 34.

                                  III.

          Acevedo-Sueros       also      challenges     the      procedural

reasonableness of his sentence on the ground that the district

court did not directly inquire at sentencing whether he had read

the PSR and reviewed it with his counsel.         See Fed. R. Crim. P.

32(i)(1)(A)   (requiring   a   district   court   to   "verify    that   the

defendant and the defendant's attorney have read and discussed the

presentence report and any addendum to the report"); United States

v. DeLeon, 704 F.3d 189, 196 (1st Cir. 2013) ("There is no doubt

'that it is the better practice for trial courts to address the

defendant directly in order to establish that he or she has had

the opportunity to read the [PSR] and to discuss it with his/her

counsel.'" (alteration in original) (quoting United States v.

Manrique, 959 F.2d 1155, 1157-58 (1st Cir. 1992))).              He did not

raise this issue at sentencing, and thus it was forfeited and may


                                 - 8 -
be reviewed only for plain error.        See United States v. Mangual-

Garcia, 505 F.3d 1, 15 (1st Cir. 2007).

           In asking us to vacate his sentence based on a plain

error, Acevedo-Sueros bears the burden of showing that "(1) an

error occurred; (2) the error was clear and obvious; (3) the error

affected the defendant's substantial rights; and (4) the error

impaired the fairness, integrity, or public reputation of the

judicial proceedings."     Id.    The district court did not ask

Acevedo-Sueros on the record whether he had read the PSR and

discussed it with counsel, and on this record it is not "abundantly

clear . . . that both defendant and his counsel [were] familiar

with the report."   DeLeon, 704 F.3d at 196 (quoting Manrique, 959

F.2d at 1157).    However, we need not decide whether the court's

omission amounted to clear and obvious error.       Because he has not

shown that his substantial rights were affected, we may not vacate

his sentence on plain error review.

           The requirement that a defendant show that a plain error

affected his substantial rights, as relevant here, "means that the

error must have been prejudicial:          It must have affected the

outcome of the district court proceedings."        Olano, 507 U.S. at

734.   A defendant can show prejudice in the context of plain error

review by pointing to "specific facts," Mangual-Garcia, 505 F.3d

at 16, that establish "a reasonable probability that, but for the

error, the district court would have imposed a different, more


                                 - 9 -
favorable sentence," id. at 15 (quoting United States v. Gilman,

478 F.3d 440, 447 (1st Cir. 2007)).

          Acevedo-Sueros    argues   that   this   requirement     is   met

because the court's alleged failure to verify that he had reviewed

the PSR with his attorney "was prejudicial since it increased the

range of his term of imprisonment from 135 to 168 months to 151 to

188 months."   He does not expand on this cursory argument.             We

read his brief to suggest that, if only the court had inquired

whether he had reviewed the PSR with his counsel, a one-level

decrease in his offense level would have been granted, resulting

in a TOL of 33 rather than 34.       It is not clear how a question

from the court would have led to this outcome, and he fails to

show a reasonable probability that this is so.

          Indeed,   even   if   Acevedo-Sueros     had   not    previously

reviewed the PSR, and if the court had inquired about his review,

prompting Acevedo-Sueros and his attorney to discuss the report

for the first time, we doubt that this review would have drawn

their attention to § 3E1.1(b), a provision that had not hitherto

been raised by the parties or the probation office.            And even if

he had asked the government for a motion under § 3E1.1(b), we have

little basis on which to infer that the government would have

agreed to his request.     Accordingly, we hold that Acevedo-Sueros

has not carried his burden to show that his substantial rights




                                - 10 -
were affected by the court's alleged failure to satisfy Rule

32(i)(1)(A).3

          Affirmed.4




     3    Acevedo-Sueros also suggests that the district court
abused its discretion by imposing a substantively unreasonable
sentence.   The argument is only "adverted to in a perfunctory
manner, unaccompanied by [any] effort at developed argumentation,"
and thus need not be considered. United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990).      The argument would fail even if
considered on its merits, however. Acevedo-Sueros does not come
close to showing that his sentence -- at the low end of the
applicable guidelines range -- was unreasonable. See, e.g., United
States v. Perretta, 804 F.3d 53, 58 (1st Cir. 2015) (finding no
abuse of discretion where a sentence was within a properly
calculated guidelines sentencing range); United States v. Torres-
Landrúa, 783 F.3d 58, 68-69 (1st Cir. 2015) (same).

     4 On January 5, 2016, while we had jurisdiction over this case
during the pendency of this appeal, the district court entered an
order purporting to reduce Acevedo-Sueros' sentence to 121 months.
This was done pursuant to Amendment 782 to the sentencing
guidelines, which effectively reduced the recommended sentences
for certain drug crimes. See U.S.S.G. App. C Supp., Amend. 782
(effective Nov. 1, 2014). This court was not notified. In United
States v. Maldonado-Rios, 790 F.3d 62 (1st Cir. 2015) (per curiam),
we made clear that while a sentence is on appeal, the district
court lacks jurisdiction to reduce that sentence under Amendment
782. However, nothing in this opinion prevents the district court
from modifying the sentence once mandate issues.      See Boston &
Maine Corp. v. Town of Hampton, 7 F.3d 281, 282 (1st Cir. 1993)
("[I]ssuance of the mandate formally marks the end of appellate
jurisdiction." (quoting Johnson v. Bechtel Assocs. Prof'l Corp.,
801 F.2d 412, 415 (D.C. Cir. 1986))).


                              - 11 -
