APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Juan M. Pérez-Giménez, U.S. District Judge.
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-Martí nez, Assistant United States Attorney, on brief for appellee.
Before Torruella, Selya and Thompson, Circuit Judges.
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 U.S.S.G. § 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 Melé ndez-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. 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. See U.S.S.G. § 3B1.2(b). The sentencing memorandum further urged a three-level downward adjustment for acceptance of responsibility (rather than ...