United States v. Melendez-Rivera, 1st Cir. (2015)
United States v. Melendez-Rivera, 1st Cir. (2015)
United States v. Melendez-Rivera, 1st Cir. (2015)
No. 13-2136
UNITED STATES OF AMERICA,
Appellee,
v.
JULIO MELNDEZ-RIVERA,
Defendant, Appellant.
Before
Torruella, Selya and Thompson,
Circuit Judges.
April 1, 2015
Vargas, 560 F.3d 45, 47 (1st Cir. 2009); United States v. Dietz,
950 F.2d 50, 51 (1st Cir. 1991).
Customs Enforcement (ICE) agents were hot on the heels of a drugtrafficking ring.
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-
apprehended.
In due season, a federal grand jury sitting in the
District of Puerto Rico returned an indictment.
Pertinently, it
The
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
This timely
appeal ensued.
The
dispatched.
appellant's
first
claim
of
error
is
easily
Id.
-4-
Given
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
-5-
drove it away.
of these facts.
The appellant labors nevertheless to portray himself as
an "expendable cog" in the venture by labeling Delgado as the
decisionmaker.
States v. Garca-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.
no good reason to believe that he was less culpable than the minerun of those who have committed similar crimes.
Indeed, we have
(affirming
denial
of
adjustment
where
defendant's
sole
Mindful of the
-6-
brings
us
to
the
appellant's
claim
that
the
an
additional
one-level
adjustment
for
acceptance
of
See Quiones-
The
That
Id. 3E1.1(b).
section
3E1.1(a).
The
appellant,
whose
offense
level
present
problem,
of
course,
arises
out
of
the
sentenced,
pertained.
the
November
2012
edition
of
the
guidelines
-8-
of sentencing."
Id.
But guideline
retains
discretion
to
grant
the
additional
one-level
There, we
Id. at 13-17.
the
court
may
grant
the
additional
when
the
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
-9-
We
do not know, and, in all events, that matter is for the sentencing
court.
district
court
erroneously
concluded
that
it
lacked
At
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