June 16, 1994     UNITED STATES COURT OF APPEALS
                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                     

No. 93-2306

                        UNITED STATES,

                          Appellee,

                              v.

                      CLIFFORD K. TAPIA,

                    Defendant, Appellant.

                                     

                         ERRATA SHEET

   The opinion of this court issued on June 9, 1994, is amended

as follows:

   Page 6, paragraph 2, line 2:  Delete "a" after "for."

June 9, 1994            [NOT FOR PUBLICATION]
                    [NOT FOR PUBLICATION]
                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 93-2306

                        UNITED STATES,

                          Appellee,

                              v.

                      CLIFFORD K. TAPIA,

                    Defendant, Appellant.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF RHODE ISLAND

     [Hon. Francis J. Boyle, Senior U.S. District Judge]
                                                       

                                         

                            Before

                    Selya, Circuit Judge, 
                                        
          Coffin and Bownes, Senior Circuit Judges.
                                                  

                                         

Marie T. Roebuck,  with whom John  F. Cicilline  was on brief  for
                                               
appellant.
Margaret E.  Curran, Assistant United  States Attorney, with  whom
                   
Edwin  J.  Gale, United  States  Attorney,  and  Gerard  B.  Sullivan,
                                                                 
Assistant United States Attorney, were on brief for appellee.

                                         

                                         

          BOWNES, Senior Circuit Judge.   This appeal asks us
          BOWNES, Senior Circuit Judge.
                                      

to determine  whether the  district court failed  to consider

subsection (b)(1)  of U.S.S.G.   3E1.1  in denying defendant-

appellant,  Clifford Tapia, an additional one-level reduction

in  his offense  level  for  acceptance  of  responsibility.1

Because it is likely that the court never  considered Tapia's

eligibility for  the extra reduction under    3E1.1(b)(1), we

vacate his sentence and remand so that the district court can

apply that guideline.

                              I.

                          BACKGROUND
                                    

          In February 1993 a grand jury returned a four-count

indictment that charged Tapia  with possession of heroin with

(1)  intent  to  distribute  in  violation  of  18  U.S.C.   

841(a)(1); (2) possession of a firearm during and in relation

to  a  drug trafficking  crime in  violation  of 18  U.S.C.  

924(c);  (3)  being a  felon in  possession  of a  firearm in

violation  of 18  U.S.C.    922(g); and  (4) possession  of a

firearm  with  an altered  serial number  in violation  of 18

U.S.C.   922(k).   Tapia informed the government that  he was

willing to plead guilty to the first, third and fourth counts

                    

1.  The November  1993 edition  of the guidelines  applied in
this  case.  See United States v. Quinones, No. 93-1601, slip
                                          
op. at  2 n.1 (1st Cir.  May 20, 1994) (absent  ex post facto
considerations  guidelines in  effect at  time of  sentencing
control).    All  Sentencing  Guidelines  references  in this
opinion are to that edition.

                             -2-
                              2

in consideration for the dismissal of count two, the   924(c)

count,  which carried a  mandatory minimum jail  term of five

years.   The government  declined to accept  this conditional

plea, and Tapia proceeded to trial on all four counts.

          Trial  commenced on  September  27, 1993.   On  the

second day  of trial, after  the government  had rested,  the

parties entered into a plea agreement whereby Tapia agreed to

plead guilty to counts one, three and four, in return for the

government's  dismissal of count two, the   924(c) count.  On

November 23, 1993,  the district court  sentenced Tapia to  a

prison term of forty-one months.2  This appeal ensued.

                             II.

                          DISCUSSION
                                    

          Tapia  contends that  the district  court erred  in

failing to  grant him  an additional one-level  reduction for

acceptance of  responsibility.   Tapia  received a  two-level

reduction under U.S.S.G.   3E1.1(a),  but claims he was  also

entitled  to  an  additional  reduction of  one  level  under

U.S.S.G.    3E1.1(b), which  requires the extra  reduction if

the   defendant   either   "(1)   timely   provides  complete
                                                             

information to the government  concerning his own involvement
                                                             

in  the offense;  or (2) timely  notifies authorities  of his
                    

                    

2.  The  district court calculated  an adjusted offense level
of 18 and criminal history category of III.  This  produced a
guideline  sentencing  range  of  thirty-three  to  forty-one
months.

                             -3-
                              3

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."    (Emphasis

added.)  The thrust of Tapia's argument on appeal is that the

district court  denied him the additional one-level deduction

without ever considering subsection (b)(1).3

          The  issue  of  whether a  defendant  has  accepted

responsibility   is  "fact-dominated."     United  States  v.
                                                         

Morillo,  8 F.3d 864, 871  (1st Cir. 1994);  United States v.
                                                          

Donovan, 996 F.2d  1343, 1346  (1st Cir. 1993).   It  follows
       

that  we  generally review  a  district  court's decision  to

withhold a  three-level reduction  under   3E1.1(b)  only for

clear error.   Morillo, 8 F.3d  at 871; Donovan,  996 F.2d at
                                               

1346.    Where, however,  as is  the  case here,  an improper

application of  the Guidelines is alleged,  no such deference

is warranted.  United States v. Tavano, 12 F.3d 301, 307 (1st
                                      

Cir.  1994).  The question  is not whether  Tapia satisfied  

3E1.1(b)(1)'s  strictures,  but  whether the  district  court

addressed the issue at all.

          The government  contends  that the  district  court

"expressly  address[ed]"  the     3E1.1(b)(1)  question  "and

implicitly   found  the  Defendant's  cooperation  less  than

complete."   This  characterization of  the district  court's

                    

3.  Tapia recognizes that he  is ineligible for the reduction
under   3E1.1(b)(2).

                             -4-
                              4

ruling  is both  logically inconsistent  and contrary  to the

record.  It is clear that, despite defense counsel's explicit

request that  the district court consider    3E1.1(b)(1), the

court  focussed solely on the timing of Tapia's plea, i.e.,  
                                                          

3E1.1(b)(2), in declining to  award the additional  one-level

reduction for acceptance of responsibility:

          It  seems  to  me  that  the  significant
          language  of this  guideline is  the word
          "timely"  and  that  it  must be  a  rare
          circumstance   indeed    that   where   a
          Defendant pleads, not admits,  but pleads
          to  a charge  after trial  has commenced,
          indicates that the trial was required for
          purposes    of   bargaining    with   the
          government with respect to another charge
          to  which  he did  not  plead ultimately,
          that could  hardly be  said to be  timely
          under any circumstances.

Transcript of  Sentencing Hearing at 11-12.  In denying Tapia

the additional one-level reduction, the court never made even

a veiled reference  to the timeliness or the  completeness of

the information provided by Tapia to the government, which is

the  express  subject  of     3E1.1(b)(1).    The  government

essentially  asks us  to play  the role  of mind  readers and

divine  something in  the  district court's  remarks that  is

simply not there.  We decline to do so.

          It   seems  probable  that   the  district  court's

oversight   stemmed  from   a  similar   deficiency   in  the

presentence  investigation report  (PSI).    The initial  PSI

recommended  a   two-level   reduction  for   acceptance   of

responsibility and  found that  Tapia was  not entitled  to a

                             -5-
                              5

three-level  reduction  because he  did not  enter a  plea of

guilty at a sufficiently  early point in the process  so that

the government  could avoid  preparing for  a trial,  and the

court could  schedule its calendar efficiently.   Tapia filed

an objection to the  report claiming that he was  entitled to

the  extra  reduction  because,   inter  alia,  "he  provided
                                             

complete  information to  the government  concerning his  own

involvement  in  the  offense."    An  addendum  to  the  PSI

responded that  Tapia was not entitled to the extra one-level

reduction  because he did not  enter a guilty  plea until the

second day of trial, and therefore did "not allow[] the court

to  use its  resources efficiently."   The  PSI's failure  to

address Tapia's    3E1.1(b)(1)  argument was repeated  by the

sentencing judge.

          Because  the  district  court  failed  to  consider

Tapia's eligibility for an extra one-level reduction pursuant

to U.S.S.G.    3E1.1(b)(1), Tapia's  sentence cannot  stand.4

We  therefore vacate the sentence and remand the case so that
                                                             

the district court may consider whether Tapia is eligible for
                                                             

the additional reduction of one level under   3E1.1(b)(1).
                                                          

                    

4.  We express no opinion  as to the merits of  Tapia's claim
that  he is  entitled to  the additional  one-level reduction
available under that guideline.

                             -6-
                              6
