          United States Court of Appeals
                      For the First Circuit


No. 13-2136

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                      JULIO MELÉNDEZ-RIVERA,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Juan M. Pérez-Giménez, U.S. District Judge]



                              Before

                  Torruella, Selya and Thompson,
                          Circuit Judges.



     Joshua L. Solomon, Matthew B. Arnould, and Pollack Solomon
Duffy LLP 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.



                          April 1, 2015
           SELYA, Circuit Judge.    This sentencing appeal hinges on

two claims of error.    One is hopeless, but the other requires us to

answer a question about whether an additional one-level downward

adjustment for acceptance of responsibility, see USSG §3E1.1(b),

sometimes may be available without a government motion. Concluding

that the answer to this question is affirmative, we remand for

resentencing.

           Because this appeal follows a guilty plea, we glean the

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

portions of the presentence investigation report (PSI Report), and

the transcript of the disposition hearing.      See United States v.

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

950 F.2d 50, 51 (1st Cir. 1991).   In April of 2011, Immigration and

Customs Enforcement (ICE) agents were hot on the heels of a drug-

trafficking ring.      As part of this investigation, an undercover

agent (whom we shall call "X") began negotiating a drug smuggle

with members of the ring.       On April 14, one of the suspects,

Eliezer Delgado-Ramos ("Delgado"), met with X to coordinate the

venture.   Defendant-appellant Julio Meléndez-Rivera attended this

meeting.

           The hatched plot contemplated that X would rendezvous

with a vessel at sea, receive approximately 1,000 kilograms of

cocaine, bring the contraband ashore in Puerto Rico, and place it

in a van that would subsequently be driven away by the drug ring.


                                  -2-
On May 1, X effected the transfer at sea, and federal agents seized

the cocaine before it reached the shore.

            Blissfully unaware that the drugs had been intercepted,

the appellant and Delgado gave X the keys to the van in which the

cocaine was to be loaded.   The next day, federal agents and other

law enforcement officers conducted a controlled delivery: they

loaded the van with ersatz cocaine and left the van at the agreed

location.    The appellant drove away in the van and was promptly

apprehended.

            In due season, a federal grand jury sitting in the

District of Puerto Rico returned an indictment.     Pertinently, it

charged the appellant with conspiracy to import over five kilograms

of cocaine into the United States (count 1), see 21 U.S.C. §§ 960,

963, and conspiracy to distribute over five kilograms of cocaine

(count 2), see id. §§ 841(a)(1), 846.       After some preliminary

skirmishing, the appellant entered a straight guilty plea.      The

probation office then prepared the PSI Report, which recommended a

guideline sentencing range of 188-235 months.

            Prior to the disposition hearing, the appellant filed a

sentencing memorandum urging a downward adjustment for what he

deemed his mitigating role in the offense.1     See USSG §3B1.2(b).



     1
      If applicable, this adjustment would have made the appellant
eligible for the so-called "safety valve," see USSG §2D1.1(a)(5),
which potentially could have lowered his offense level even
further.

                                 -3-
The sentencing memorandum further urged a three-level downward

adjustment for acceptance of responsibility (rather than the two-

level    adjustment      recommended   in    the   PSI      Report).        See    id.

§3E1.1(b).

             The sentencing court convened the disposition hearing on

August    23,    2013.      The   court     eschewed     any    mitigating        role

adjustment, concluding that the appellant's part in the conspiracy

was not minor.      At the same time, it granted a two-level reduction

for acceptance of responsibility but rejected the appellant's

importunings for an additional adjustment, stating "I don't think

I can grant it.       I don't have the discretion to do so unless the

government files [a] motion."             The court proceeded to impose a

bottom-of-the-range term of immurement: 188 months.                    This timely

appeal ensued.

             The    appellant's    first     claim     of      error   is    easily

dispatched.        It rests on the notion that, on the facts, the

sentencing court should have classified the appellant as merely a

bit player in the conspiracy and discounted his offense level

accordingly.       That notion is fatuous.

             The sentencing guidelines authorize a two-level reduction

in a defendant's offense level upon a finding that "the defendant

was a minor participant in [the relevant] criminal activity."                     Id.

§3B1.2(b).      To qualify for this adjustment, a defendant must show

that he is both less culpable than most of his cohorts in the


                                       -4-
particular criminal endeavor and less culpable than the mine-run of

those who have committed similar crimes.     See United States v.

Ocasio, 914 F.2d 330, 333 (1st Cir. 1990).   A defendant bears the

burden of proving his entitlement to a minor participant reduction

by a preponderance of the evidence. See United States v. Quiñones-

Medina, 553 F.3d 19, 22 (1st Cir. 2009).

          A determination of a defendant's role in the offense is

invariably fact-specific and, thus, appellate review of such a

determination is respectful. See United States v. Santos, 357 F.3d

136, 142 (1st Cir. 2004).    "Consequently, we review a district

court's resolution of the facts relative to a minor role adjustment

for clear error . . . ."   Quiñones-Medina, 553 F.3d at 22.   Given

this deferential standard of review, battles over a defendant's

role in the offense "will almost always be won or lost in the

district court."   United States v. Graciani, 61 F.3d 70, 75 (1st

Cir. 1995).

          In this instance, the sentencing court concluded that the

appellant had not demonstrated by preponderant evidence that he was

a minor participant in the drug-smuggling venture.   To support its

conclusion, the court emphasized that the appellant had been

present when the plot was hatched; that he and Delgado delivered

the van in which the drugs were to be transported; and that, after

the van was loaded with what the appellant thought were drugs, he




                                -5-
drove it away.    The appellant does not dispute the accuracy of any

of these facts.

          The appellant labors nevertheless to portray himself as

an "expendable cog" in the venture by labeling Delgado as the

decisionmaker.     This sets up a false dichotomy: a defendant need

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

mitigating role-in-the-offense adjustment.            See, e.g., United

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

States v. Mateo-Espejo, 426 F.3d 508, 512 (1st Cir. 2005).           What

counts is that the appellant was present for the planning of the

scheme and deeply involved in its execution.      There is, therefore,

no good reason to believe that he was less culpable than the mine-

run of those who have committed similar crimes.         Indeed, we have

routinely upheld the denial of a mitigating role adjustment in

drug-trafficking cases for defendants who have had even less

involvement than the appellant. See, e.g., Vargas, 560 F.3d at 50-

51   (affirming    denial   of   adjustment   where    defendant's   sole

involvement in conspiracy was driving delivery truck containing

single shipment of cocaine); United States v. Ortiz-Santiago, 211

F.3d 146, 149 (1st Cir. 2000) (affirming denial of adjustment where

defendant performed only "menial tasks" such as unloading drugs and

standing watch).

          That ends this aspect of the matter.           Mindful of the

deferential lens through which we must review fact-intensive role-


                                   -6-
in-the-offense determinations, we cannot say that the sentencing

court committed any error, clear or otherwise, in rejecting the

appellant's bid for such an adjustment.2

                 This   brings   us   to    the   appellant's    claim   that    the

sentencing court erred in holding that it lacked discretion to

grant       an   additional      one-level    adjustment   for    acceptance      of

responsibility absent a government motion.              The question presented

is legal in nature and engenders de novo review.                   See Quiñones-

Medina, 553 F.3d at 22.

                 We set the stage.         The sentencing guidelines create a

two-tiered system for treating acceptance of responsibility.                    The

first tier comprises a basic two-level reduction in the offense

level when the court determines that a defendant has accepted

responsibility for the offense of conviction.              See USSG §3E1.1(a).

If the defendant receives this first-tier adjustment and if his

offense level, calculated without reference to the first-tier

adjustment, is 16 or more, the second tier comes into play.                     That

tier makes available a further one-level adjustment "upon motion of

the government stating that the defendant has assisted authorities


        2
       To the extent that the appellant implies that the district
court committed procedural error by failing adequately to explain
the reasons for its denial of a mitigating role adjustment, the
implication is unwarranted. The court spelled out in sufficient
detail the reasons why it believed the appellant did not deserve a
mitigating role adjustment. See United States v. McDowell, 918
F.2d 1004, 1012 (1st Cir. 1990) (tasking district courts with
making "reasonably specific findings" in constructing guideline
sentencing range).

                                           -7-
in the investigation or prosecution of his own misconduct by timely

notifying 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."      Id. §3E1.1(b).

           Here, the court awarded the two-level discount provided

in    section    3E1.1(a).     The      appellant,   whose   offense      level

(calculated without reference to the section 3E1.1(a) reduction)

was 38, then sought the additional one-level reduction under

section 3E1.1(b).      When the government refused to move for this

additional reduction, the appellant claimed that the government was

improperly withholding the motion because it wanted to punish him

for spurning a plea agreement.       The district court did not resolve

this claim, concluding instead that a government motion was a sine

qua non to a section 3E1.1(b) reduction.

           The    present    problem,    of   course,   arises     out   of   the

language of section 3E1.1(b), which is prefaced with the phrase

"upon motion of the government."           At the time that the appellant

was   sentenced,    the   November   2012     edition   of   the    guidelines

pertained.       The then-current guideline commentary stated that

"[b]ecause 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


                                     -8-
of sentencing."         Id.    §3E1.1, comment. (n.6).          But guideline

commentary is not always to be taken as gospel, see Stinson v.

United States, 508 U.S. 36, 43-45 (1993); United States v. Piper,

35 F.3d 611, 617 (1st Cir. 1994), and the main question presented

by this appeal is the extent (if at all) to which the sentencing

court   retains   discretion       to   grant    the   additional     one-level

adjustment under section 3E1.1(b) without a government motion.

           The answer to this question is informed by our decision

in United States v. Beatty, 538 F.3d 8 (1st Cir. 2008).               There, we

considered the scope of the government's discretion to withhold a

motion for the additional one-level discount for acceptance of

responsibility.     Id. at 13-17.             We held that even though the

government enjoys wide discretion in deciding whether to move for

this adjustment, the district court's hands are not tied simply

because the government abjures such a motion.                See id. at 14-15.

Rather,   the   court    may    grant    the    additional    level   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."         Id. at 14 (internal quotation marks

omitted); cf. Wade v. United States, 504 U.S. 181, 185-86 (1992)

(adopting this approach in the context of the government's refusal

to file a substantial-assistance motion under USSG §5K1.1).                  The

district court's conclusion that it lacked discretion to grant the




                                        -9-
requested adjustment without a government motion overlooked the

Beatty exception and, thus, was incorrect as a matter of law.3

           Let us be perfectly clear.     We do not suggest that the

appellant is deserving of the additional one-level adjustment.       We

do not know, and, in all events, that matter is for the sentencing

court.   But once the appellant raised a claim that the government

withheld its section 3E1.1(b) motion for an improper reason, he was

entitled to have the district court resolve this point. Cf. United

States v. Mariano, 983 F.2d 1150, 1153 (1st Cir. 1993) (remanding

where    district   court   erroneously   concluded   that   it   lacked

discretion to depart downward based on defendant's substantial

assistance).

           We need go no further. For the reasons elucidated above,

we affirm the denial of a mitigating role adjustment, vacate the

denial of a second-tier acceptance of responsibility adjustment,

and remand the case with directions to vacate the sentence and

conduct a new sentencing hearing consonant with this opinion.4        At


     3
       Beatty adumbrated subsequent action by the Sentencing
Commission. Amendment 775, which became effective on November 1,
2013, provides that "[t]he government should not withhold [a
3E1.1(b) motion] based on interests not identified in §3E1.1
. . . ."     USSG §3E1.1, comment. (n.6).     Amendment 775 makes
pellucid that, consistent with Beatty, the sentencing court has the
authority to review the government's reasons for withholding a
section 3E1.1(b) motion. See United States v. Palacios, 756 F.3d
325, 326 (5th Cir. 2014) (per curiam).
     4
      We note that, when an appellate court vacates a sentence and
remands for sentencing, the resentencing court normally is to apply
the version of the guidelines in effect at the time of

                                  -10-
resentencing, the only open questions (apart from the length of the

sentence to be imposed) shall be whether the government improperly

withheld the section 3E1.1(b) motion     and, if so, whether the

appellant is entitled to the additional one-level discount for

acceptance of responsibility.




resentencing. See Restrepo-Contreras v. United States, 99 F.3d
1128 (1st Cir. 1996) (per curiam) (table), full text at 1996 WL
636560, at *1.

                                -11-
