          United States Court of Appeals
                     For the First Circuit


No. 15-2025

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                   JOHNNY SARMIENTO-PALACIOS,

                      Defendant, Appellant.


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

        [Hon. Jay A. García-Gregory, U.S. District Judge]


                             Before

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


     Julia Pamela Heit for appellant.
     John A. Mathews, II, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney,
Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Juan Carlos Reyes-Ramos, Assistant United
States Attorney, were on brief, for appellee.



                         March 16, 2018
           HOWARD, Chief Judge.       Johnny Sarmiento-Palacios pleaded

guilty to two cocaine-related charges under the Maritime Drug Law

Enforcement Act ("MDLEA").       On appeal, Sarmiento claims that (1)

Congress exceeded its constitutional authority in promulgating the

MDLEA;   (2)   Amendment   794   to   the   U.S.   Sentencing    Commission

Guidelines ("the Guidelines") is retroactive, so he should be re-

sentenced under the Sentencing Commission's amended guidance; or,

in the alternative, (3) section 3B1.2 of the Sentencing Guidelines

is void for vagueness. Although we find Sarmiento's constitutional

challenges to MDLEA and section 3B1.2 meritless, because we agree

that Amendment 794 is retroactive, we vacate his sentence and

remand for re-sentencing.

                             I. Background

A. Facts and Procedural History

           In August 2013, United States Coast Guard personnel

stationed aboard a Dutch warship encountered a "go-fast" vessel1

dead in the Caribbean Sea's international waters.               Because the

vessel bore no indicia of nationality, the Coast Guard conducted

a right-of-visit2 approach.      The Coast Guard found Sarmiento and




     1 "This is a small boat, customized with additional engines
and fuel tanks for added speed and range.     Experience tells us
that such boats play a large role in the drug trade."       United
States v. González, 311 F.3d 440, 444 n.3 (1st Cir. 2002).
     2 This "doctrine of international maritime common law . . .

bestows a nation's warship with the authority to hail and board an
unidentified vessel to ascertain its nationality." United States


                                  - 2 -
two codefendants -- as well as over 600 kilograms of cocaine in

plain view -- on the vessel.     The Coast Guard arrested the three

men and seized the contraband.

          In March 2015, Sarmiento entered a straight plea of

guilty (that is, without a plea agreement) for (1) conspiracy to

possess cocaine with the intent to distribute; and (2) aiding and

abetting the same, all on a vessel subject to United States

jurisdiction.   See 46 U.S.C. §§ 70501 et seq.; 18 U.S.C. § 2.           At

his sentencing hearing in August 2015, Sarmiento argued for a

two-level reduction because he was a "minor participant" in the

offense and was "substantially less culpable than the average

participant."      See U.S.S.G. § 3B1.2(b) & cmt. n.3(A) (2014).

Sarmiento emphasized that he had no criminal record prior to his

arrest and that he was almost entirely blind.          As such, he argued

that he was both too inexperienced and too ill-suited to play more

than a minor role in the charged crimes.

          The district court rejected this argument, citing the

"substantial amount of drugs" at issue.         It sentenced Sarmiento to

135 months' imprisonment on each count -- at the bottom of the

guidelines sentencing range -- to run concurrently.            This timely

appeal followed.




v. Matos-Luchi, 627 F.3d 1, 21           (1st   Cir.   2010)   (Lipez,   J.,
dissenting) (citation omitted).


                                 - 3 -
                                    II. Analysis

A. Sarmiento's MDLEA Challenge

              Sarmiento      briefly       suggests    that      because   Congress

exceeded its constitutional authority under Article I when it

promulgated the MDLEA, the United States lacked jurisdiction to

prosecute him.       See United States v. Cardales-Luna, 632 F.3d 731,

739-51 (1st Cir. 2011) (Torruella, J., dissenting).                    But even if

this skeletal challenge has been properly presented to us, see

United States v. Zannino, 895 F.3d 1, 17, it is unavailing.

              At his change of plea hearing, Sarmiento admitted that

he was apprehended on "a vessel without nationality," and he makes

no effort to contest that admission on appeal.                   Further, Sarmiento

concedes that the MDLEA is a valid exercise of Congress's Article

I   powers,    at    least    in   cases    of   "piracy,     slave   trading,   and

stateless vessels."          See United States v. Matos-Luchi, 627 F.3d 1,

6 (1st Cir. 2010) ("[A] refusal to claim nationality renders [an]

unflagged vessel stateless and so within federal jurisdiction.");

see   also     Cardales-Luna,        632     F.3d     at   751    (Torruella,    J.,

dissenting).        Because Sarmiento's "valid guilty plea relinquishes

any claim that would contradict the 'admissions necessarily made

upon entry of a voluntary plea of guilty,'" Class v. United States,

No. 16-424, slip op. at 8 (U.S. Feb. 21, 2018) (quoting United

States v. Broce, 488 U.S. 563, 573-74 (1989)), his challenge to

the MDLEA must fail.


                                       - 4 -
B. Guidelines Amendment 794

             "Normally,      the   sentencing    judge   is    to     apply    the

guidelines version in effect at the time of sentencing."                    United

States v. Crudup, 375 F.3d 5, 8 (1st Cir. 2004).                    The district

court did just that when rejecting Sarmiento's argument for a

reduction under U.S.S.G. § 3B1.2(b) (2014). But "a reviewing court

may   give   effect    to   post-sentencing     guideline     amendments       that

clarify, without purporting substantive change, the pertinent

guideline provision."        Crudup, 375 F.3d at 8.

             Here, about three months after Sarmiento's sentencing,

the Sentencing Commission enacted Amendment 794, which altered

section 3B1.2's commentary.         See U.S.S.G. supp. to App. C, amend.

794, at 116-18 (2015) [hereinafter Amendment 794].              The amendment

added language to the commentary notes that, among other things,

explained    that   the     mitigating-role     reduction   should     apply    to

defendants who are "substantially less culpable than the average

participant    in     the   criminal   activity"   and   listed      five     "non-

exhaustive . . . factors" that courts "should consider" when

determining whether a defendant qualifies for the reduction.                   Id.

at 116 (emphasis added).           Sarmiento argues that, under this new

guidance, he would have received the two-level reduction that the

sentencing court denied.

             Amendment 794 must be "clarifying" in order to apply

retroactively to Sarmiento -- that is, it must "change[] nothing


                                       - 5 -
concerning the legal effect of the guidelines, but merely clarif[y]

what the Commission deems the guidelines to have already meant."

Crudup, 375 F.3d at 8 (quoting United States v. Smaw, 22 F.3d 330,

333 (D.C. Cir. 1994)).         All of the other circuits that have

considered this question have determined that Amendment 794 is

clarifying, and therefore retroactive.3       We agree.

            An   amendment's    retroactivity     is    a     "case-specific

inquiry" because "a clear-cut demarcation rarely can be drawn

between an amendment which is a mere clarification and one which

effects a substantive change. . . . [O]ften we must weigh various

factors and any conflicting indicia of the Commission's intent."

Id. at 9.   Our caselaw suggests four such factors: (1) whether the

amendment is listed in U.S.S.G § 1B1.10; (2) the Commission's

characterization    of   the   amendment;   (3)   whether     the   amendment

conflicts   with   our   circuit   precedent;     and   (4)    whether    the

Commission takes sides in a circuit split -- and if so, how.

Crudup, 375 F.3d at 9-10 (citing cases).          We next examine these

factors, keeping in mind that a "guideline amendment is either

substantive or it is not," and that we are ultimately seeking the

"significance of the amendment as a whole."             United States v.

Cabrera-Polo, 376 F.3d 29, 32 (1st Cir. 2004) (citation omitted).


     3 See United States v. Quintero-Leyva, 823 F.3d 519, 523 (9th
Cir. 2016); United States v. Carter, 662 F. App'x 342, 349 (6th
Cir. 2016); United States v. Casas, 632 F. App'x 1003, 1005 (11th
Cir. 2015) (per curiam).


                                   - 6 -
            1. Section 1B1.10(d)

            Section 1B1.10(d) lists amendments that the Commission

designates as retroactive.         See Crudup, 375 F.3d at 9.           The

Commission did not include Amendment 794 in section 1B1.10(d)'s

2015 version (the first published after Amendment 794), which is

"some evidence" that the Commission considered the amendment to be

substantive, not clarifying.         Id.   But whether an amendment is

listed in section 1B1.10(d) is not dispositive, as "courts may

ascribe retroactive effect to an amendment not listed . . . if

other evidence independently suggests that the Commission intended

it as a clarification."     Id.   Such evidence exists here.

            2. The Commission's characterization

            Amendment 794 does not contain the words "clarify" or

"clarification," and the government suggests that the Commission's

failure to use these words shows that the Commission intended the

amendment   to   be   substantive.     But   our   caselaw   is   not   this

formalistic.     Rather than requiring the Commission to use any

specific language when drafting guidelines amendments, the inquiry

is more holistic: we care about whether the Commission "expressed

[or] implied that [the amendment] is a clarification."             Crudup,

375 F.3d at 9. Indeed, even if the Commission expressly designated

Amendment 794 as either "clarifying" or "substantive" (which it

did not), we would consider that label worthy of "considerable

weight" but "not controlling."       Id.


                                   - 7 -
             We agree with our sister circuits that Amendment 794's

language "indicates that the Commission intended it to be a

clarifying amendment."           Quintero-Leyva, 823 F.3d at 523.                The

amendment's stated purpose is to "provide[] additional guidance to

sentencing    courts     in    determining      whether    a     mitigating      role

adjustment     applies"       because    the    Commission       determined      that

sentencing courts were applying section 3B1.2 "more sparingly than

the Commission intended." Amendment 794 at 117. Besides providing

a "non-exhaustive list of factors" for courts to consider when

applying     the    mitigating-role       reduction,      id.,    the     amendment

eliminated    prior     commentary      language   that    "may    have    had   the

unintended    effect     of    discouraging     courts    from     applying"     the

adjustment when appropriate.            Id. at 118.   By using this language,

the Commission implied that Amendment 794 was a clarification of

section 3B1.2, and the fact that the Commission never expressly

used the word "clarify" does not change the amendment's overall

intent.

             3. Conflict with our circuit precedent

             We have considered an amendment's conflict with our

circuit precedent as a "factor . . . [that] would weigh in favor

of characterizing [the amendment] as substantive."                   Crudup, 375

F.3d at 10.        Amendment 794 clearly conflicts with our precedent.

See Amendment 794 at 117 (discussing United States v. Santos, 357

F.3d 136, 142 (1st Cir. 2004)).           But in Crudup, we recognized that


                                        - 8 -
this interpretive principle was idiosyncratic to our circuit and

applied it in a situation where "there [was] no other evidence

that   the   Commission      intended     [for    the     amendment]        to    be   a

clarification."       375 F.3d at 10 n.3.        Here, on the other hand, the

evidence indicates the amendment's clarifying purpose, so we give

this factor less weight.

             4. Taking sides in a circuit split

             When, as here, the Commission weighs in on a circuit

split by "intimat[ing] that [some] circuits correctly apprehended

the Commission's original intent underlying the pre-amendment

guideline" and that circuits on the other side of the split "had

misinterpreted      that    original     intent,"       the   amendment's        likely

purpose is clarification, not substantive change.                  Id. at 10.

             Amendment 794 addressed a circuit split over section

3B1.2's   pre-amendment       guideline     commentary,        which    allowed        a

sentencing court to apply the mitigating-role reduction when the

defendant    was    "substantially       less    culpable      than    the   average

participant." U.S.S.G. § 3B1.2, cmt. n.3(A) (2014). Some circuits

evaluated the "average participant" by looking only at the other

participants in the defendant's actual activity; other circuits,

including     ours,      looked   also    to     the     "universe     of        persons

participating       in     similar     crimes"     to     define      the        average

participant.       Amendment 794 at 117 (describing the circuit split

and citing cases).        The amendment "generally adopt[ed]" the former


                                       - 9 -
approach by revising the application note to read: "substantially

less   culpable   than   the   average   participant   in   the   criminal

activity."    Id. (emphasis added).

             This factor weighs in Sarmiento's favor because the

Commission did not merely "assert[] that it follow[ed]" the winning

circuits' holdings.      Crudup, 375 F.3d at 10 (second alteration in

original)    (internal    quotation   marks   omitted).     Rather,   the

Commission determined that the "mitigating role [was] applied

inconsistently and more sparingly than the Commission intended,"

so it promulgated the amendment to "promote consistency" in section

3B1.2's application.      Amendment 794 at 117-18 (emphasis added).

In other words, the Commission did not resolve the circuit split

by creating "a new blanket rule . . . going beyond any circuit's

reading of the previous rule," but instead issued a "clarification

in favor of one view or the other."        United States v. Godin, 522

F.3d 133, 135 (1st Cir. 2008) (describing such a resolution of a

circuit split as clarifying).

             Having considered these factors, and looking at the

"significance of the amendment as a whole," Cabrera-Polo, 376 F.3d

at 32 (quotation omitted), we agree with Sarmiento that Amendment

794 clarifies the Commission's original intent regarding section

3B1.2 and therefore applies retroactively.

             The government argues in the alternative that Sarmiento

would have been denied the minor-role reduction even in light of


                                  - 10 -
Amendment 794, but we think it prudent to leave that determination

in the hands of the able district court judge.               Accordingly, a

remand is justified to allow the sentencing court the opportunity

to consider the "Commission's current policy position[,] . . .

[which]   may   have     some    influence      on   the   judge's   ultimate

discretionary choice of sentence."           United States v. Ahrendt, 560

F.3d 69, 79 (1st Cir. 2009) (quoting Godin, 522 F.3d at 136).4

                                III. Conclusion

          Although Sarmiento's MDLEA contention is unavailing, we

agree that because Amendment 794 is clarifying, not substantive,

it is retroactively applicable.          We therefore vacate the district

court's   sentence      and     remand    for    resentencing    under   the

Commission's clarified guidance, as reflected in Amendment 794.




                       -Concurring Opinion Follows-




     4 Because we remand on the basis of Sarmiento's argument about
the retroactivity of Amendment 794, we need not address his
argument in the alternative that section 3B1.2 is void for
vagueness. See United States v. Vidal-Reyes, 562 F.3d 43, 48 (1st
Cir. 2009).


                                    - 11 -
          TORRUELLA,   Circuit     Judge   (concurring).   I   write

separately to highlight that I join the majority opinion's holding

that the United States had jurisdiction to prosecute Sarmiento

solely because Sarmiento has conceded that he was aboard "a vessel

without nationality" when the Coast Guard apprehended him.     As I

have previously explained, Congress exceeded its authority under

Article I of the Constitution in attempting to extend criminal

jurisdiction via the MDLEA to conduct outside of the United States

lacking any nexus to the United States and over which the United

States does not enjoy universal jurisdiction.      See United States

v. Cardales-Luna, 632 F.3d 731, 739-42 (Torruella, J., dissenting)

(1st Cir. 2011).   And while the United States (like all nations)

does have universal jurisdiction over stateless vessels, I also

reiterate that "the MDLEA's definition of 'statelessness' goes far

beyond what is recognized by international customs or convention."

Id. at 747 (citing Eugene Kontorovich, Beyond the Article I

Horizon: Congress's Enumerated Powers and Universal Jurisdiction

over Drug Crimes, 93 Minn. L. Rev. 1191, 1228 (2009)).

          Thus, it is only by virtue of Sarmiento's concession

that he was aboard a stateless vessel that I am able to join the

panel in concluding that the United States has jurisdiction over

crimes taking place aboard a vessel crewed by Dominican and

Venezuelan nationals that was stopped by a Dutch warship in

international waters in the middle of the Caribbean Sea.


                                 - 12 -
