USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
_________________________
No. 94-1122
UNITED STATES OF AMERICA,
Appellee,
v.
ANTHONY L. TALLADINO,
Defendant, Appellant.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
___________________
_________________________
Before
Selya, Circuit Judge,
_____________
Coffin, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________
_________________________

Susan K. Howards, with whom Launie and Howards P.A. was on

________________
_______________________
brief, for appellant.
Dina Michael Chaitowitz, Assistant United States Attorney,

________________________
with whom Donald K. Stern, United States Attorney, was on brief,
_______________
for appellee.
_________________________
November 14, 1994
_________________________

SELYA, Circuit Judge.

SELYA, Circuit Judge.
_____________
link in

the lengthening chain

This appeal constitutes one more

of sentencing appeals

that binds

the federal courts of appeals ever more tightly to the sentencing

process.

In

this

instance,

Talladino challenges
guideline

defendant-appellant

the district court's

Anthony

determination of

sentencing range (GSR) in respect to:

L.

the

(1) the court's

enhancement of his offense level based on his aggravating role in

the offense;
interface

and

between

(2)

the

court's

obstruction

of

handling
justice

of
and

the

delicate

acceptance

of

responsibility.
unavailing.

We
We

assigned error.

find the

detect

first assignment

some merit,

however,

of error
in

the

to be

second

Consequently, we vacate appellant's sentence and

remand for resentencing.

I.
I.

BACKGROUND
BACKGROUND

Because the underlying conviction results from a guilty

plea rather than a trial, we

draw the facts from the uncontested

portions of the Presentence Investigation Report (PSI Report) and

the transcript of the

sentencing hearing.

Garcia, 954 F.2d 12, 14 (1st

______

See United States v.

___ ______________

Cir. 1992); United States v. Dietz,

_____________
_____

950 F.2d 50, 51 (1st Cir. 1991).

Talladino, a chemist by
technological

expertise

manufacturing and
including

into

trade, attempted to parlay his

ill-gotten

distributing a

methamphetamine,

gains

by

illicitly

kaleidoscopic array

of drugs,

psilocybin,

PHP

(1-(1-

phenylcyclohexyl)-pyrrolidine),

and

(methylenedioxymethamphetamine).1

MDMA

Talladino

plied

this

nefarious trade in concert with several other persons, among them

Michael Hanley, Anthony Miller, and Scott Dailey.
The

venture apparently

1989, Talladino
needed to
and

took

told Hanley that

set up

began manufacturing

shop.

PHP at

sometime

he (Talladino) had

manufacture illegal drugs.

the two men

wing when,

In

in

the skills

Hanley expressed interest

the fall of

1990, Talladino

locations in Boston

and Dorchester.

He explained to Hanley that he had selected PHP as the product of

choice because,

as an analogue

of PCP, it

was "non-classified"

under Massachusetts law and, thus, the producers "would avoid any
sort

of

legal

principals

ramifications."

had

acquaintance of

recruited

Within

and

Dale

Miller

Talladino's) as

retailers for

few

months,

the

McDonnell

(an

the manufactured

PHP.
For

spell,

Talladino's

congruent with the relevant realities.

police

department caught

ring.

The

police

wind of

arrested

rodomontade seemed

to

be

In April of 1991, a local

a suspected

Talladino

and

PCP distribution
Miller.

Once

apprehended, Miller, who believed he had been trafficking in PCP,

told

the

Talladino."
with

officers

that

McDonnell

The Commonwealth

distributing

PCP,

but,

was

peddling

PCP

"for

of Massachusetts charged Talladino

when chemical

tests

proved

the

____________________

1Psilocybin is familiarly known as "mushrooms" or "magic

mushrooms."
PHP is an analogue for PCP (sometimes called "angel
dust"). MDMA is generally referred to as "Ecstasy."

product to be PHP, the authorities dropped the charges.

Talladino's luck began
federal

Drug

Enforcement

investigation.
residence in
PHP.
a

At that

to sour in late

Administration

(DEA)

juncture, Talladino was

Quincy, Massachusetts, as a

1991, when the

launched

an

using Hanley's

site for manufacturing

A chemical company informed the DEA that Hanley, employing

pseudonym,

had

ordered

manufacture

PCP.

unwittingly

led

the lawmen

a Quincy

police

morning,

found inside a
substance

chemical

frequently

used

to

The DEA orchestrated a surveillance and Hanley

to his

lodgings.

officer stopped

Early

Talladino's car

bottle containing approximately 50.50

that the

officer thought

the next

was PCP

and

grams of a

(but which

was in

actuality PHP).
The police arrested Talladino
intent

to

distribute.

Perhaps

for possessing PCP

emboldened

by

his

with

previous

triumphant encounter with the law, Talladino freely admitted that

he was manufacturing

PHP.

The state once

again dismissed

charges against him, but the DEA's interest did not wane.

the

Meanwhile, Talladino began to

1992,

he

proposed to

latter's

Dailey, a

apartment as a site for

precursor

expand his horizons.

co-worker,

failed.

manufacture
Talladino

The

entrepreneurs

methamphetamine
noticed

shipment of

that

until

Dailey's

phenylacetic acid.

use the

producing phenylacetic acid (a

chemical to methamphetamine).

reaction

that they

In

The men tried, but the

shelved

February

the
of

laboratory

1993,

had

Talladino told

plan

to

when

received

Dailey that

it

would

be

easy

phenylacetic acid.

to

manufacture

methamphetamine

At Talladino's instigation,

the pair
liquid

had

methamphetamine.

Talladino then

facility at Dailey's apartment.

succeeded in

pure

Dailey pilfered

300 grams of phenylacetic acid from his employer.

installed a production

with

manufacturing roughly

By June,

140 grams

of

Dailey described himself as Talladino's

"lab assistant" for purposes of this endeavor.

Apparently not satisfied with PHP
Talladino
because

continued to

enlarge

his paramour knew an

his product

and methamphetamine,
line.

individual who stood

Presumably

ready to buy

large quantities

of the

drug known

as Ecstasy,

focused his

considerable energies in that

obtained

quantity

of

safrole (a

Talladino next

direction.

precursor

Talladino

chemical),

and

attempted to manufacture the drug.

During

the

same

time

frame,

Talladino

decided to produce psilocybin, a hallucinogen.

the seeds,
from his
procure
was

took petri

dishes and other

place of legitimate
lime and peat moss.

well

on the

way

and

Talladino ordered

necessary paraphernalia

employment, and ordered

The attempt

to fruition

when

Hanley

Hanley to

to produce psilocybin
a

federal grand

jury

indicted Talladino.2
____________________

2The grand jury later returned a superseding eleven-count

indictment against Talladino, Hanley, Miller, and Dailey. Count
1 charged all four men with conspiring to manufacture and
distribute PHP, methamphetamine, Ecstasy, and psilocybin.
The
remaining ten counts charged various defendants with assorted
crimes such
as
distributing PHP;
possessing PHP
and-or
metamphetamine with intent to distribute; possessing listed
chemicals with intent to manufacture methamphetamine and P2P (a
methamphetamine precursor); attempting to manufacture psilocybin
5

DEA
1993.

Both

agents arrested
men were

detained.

Talladino and
Immediately

Hanley on

June 3,

prior to

Hanley's

release on bail, Talladino instructed him to destroy all evidence

of drug

manufacture

at

a location

the

two men

Hanley

had

followed

used

in

Charlestown,

Massachusetts.

Talladino's

instructions.

Through an intermediary, Talladino also managed to

alert Dailey to the dire nature of the situation and suggest that
he take

cautionary measures.

As

a result of the

warning call,

Dailey disposed of the methamphetamine and other chemicals.3

On September 17, 1993, Talladino pled guilty to the ten

counts of the
court

indictment in which

convened

Dailey testified.
jury testimony,

this

named.

hearing on

The

January

20,

district

1994.4

The court also inspected transcripts of grand

reviewed the PSI Report,

objections thereto.
of

disposition

he was

appeal:

and mulled Talladino's

Two of those objections lie at the epicenter

appellant's

subjected to a four-level

lament

that

he

should not

be

enhancement for playing an aggravating

____________________

and Ecstasy; and

maintaining facilities for
manufacturing
controlled substances.
See, e.g., 21 U.S.C.
841(a)(1) &
___
____
(d)(1), 846, 856; 18 U.S.C.
2. Although all defendants were
not implicated in all counts, ten of the eleven counts targeted
Talladino.

3Dailey did not succeed fully in covering the conspirators'

tracks. On June 5, 1993, the DEA searched Dailey's apartment and
found
a
residue
of
methamphetamine
and methamphetamine
precursors.
4The November
1993
guidelines applies in this

edition of the federal sentencing

case. See United States v. Aymelek,
___ _____________
_______
926 F.2d 64, 66 n.1 (1st Cir. 1991) ("Barring ex post facto
__ ____ _____
concerns, the guidelines in effect at the time of sentencing . .
. control."). All references herein are to that version.

role in the offense; and his contention that he should receive

three-level credit

for acceptance of responsibility

(as opposed

to the two-level credit recommended in the PSI Report).

The district court
offense and

overruled appellant's

acceptance-of-responsibility

calculated the

GSR at 135-168 months

history category I) and imposed an

bottom of the range.

II.
II.

role-in-the-

objections.

It

then

(offense level 33/criminal

incarcerative sentence at the

This appeal ensued.

ROLE IN THE OFFENSE

ROLE IN THE OFFENSE
Appellant asseverates

enhancing his base offense

of the offense.

that

the lower

level for his role in

We start our analysis

framework on which this asseveration

court erred

in

the commission

by inspecting the

legal

rests, and then proceed

to

examine the merits.

A
A

The federal sentencing guidelines provide two different

tiers

of upward adjustments for defendants who are in the higher

echelons

of

"manager"

criminal

or

journeyman,
Compare
_______

enterprises.

"supervisor"
but more

U.S.S.G.

kindly

the defendant

treated

than an

3B1.1(b) with
____

latter case, the guidelines

"[i]f

is

was an

Generally
less

speaking,

kindly

"organizer" or

U.S.S.G.

organizer or

"leader."

3B1.1(a).

call for an increase of

than

In

the

four levels

leader of

a criminal

activity that involved five or more participants or was otherwise

extensive . . . ."

Id.
___
7

It

is evident

from this

language that

the guideline

puts in place two preconditions to a four-level enhancement.

is

enterprise-specific; the

activity

involved five

extensive.
that
the

court must

or more

participants, or

The second is offender-specific; the

a particular defendant acted

activity.

manner.

find that

See,
___

We have

the criminal

was otherwise

court must find

as an organizer

consistently read the

One

or leader of

guideline in this

e.g., United States v. Olivier-Diaz, 13

____ _____________
____________

F.3d 1, 4

(1st

Cir. 1993);

Dietz,
_____

950

F.2d

at

52;

United States
______________

v.

McDowell, 918 F.2d 1004, 1011 (1st Cir. 1990).

________
The

commentary

nonexhaustive list
difference

to

the

of factors to

between

the

guidelines

aid courts in

roles

of

furnishes

delineating the

organizer/leader

and

manager/supervisor:
[1]
the
exercise
of
decision
making
authority, [2] the nature of participation in
the
commission of the offense; [3] the
recruitment of accomplices, [4] the claimed
right to a larger share of the fruits of the
crime, [5] the degree of participation in
planning or organizing the offense, [6] the
nature and scope of the illegal activity, and
[7] the degree of control and authority
exercised over others.
U.S.S.G.

3B1.1, comment.

useful as

guideposts,

(n.4).

do not

These

seven factors,

possess talismanic

while

significance.

"There need not be evidence of every factor before a defendant is

found to

be a leader or

organizer."

United States v. Preakos,

______________
_______

907 F.2d 7, 9 (1st Cir. 1990) (per curiam) (citation and internal
quotation marks omitted).

Moreover, because role-in-the-offense

determinations are inherently fact-specific, the district court's

8

views demand
914

F.2d

judgments
of law.

"considerable respect."

330, 333

(1st Cir.

United States
_____________

1990).

As

v. Ocasio,
______

consequence, such

are reviewed on appeal only for clear error or mistake

See Dietz, 950 F.2d at 52; United States v. Akitoye, 923

___ _____
_____________
_______

F.2d 221, 227 (1st Cir. 1991); McDowell, 918 F.2d at 1011; United
________
______
States
______

v. Diaz-Villafane,
______________

874

F.2d 43,

48

(1st Cir.),

cert.
_____

denied, 493 U.S. 862 (1989).

______
B
B
Appellant
determination of

eschews

any

extensiveness (and,

persuasively demonstrates the scope

the

large number

appellant

challenge

of persons

We

court's

the record

of the criminal activity and

participating therein).

Instead,

assessment of his role in

think that the facts, fairly

the conclusion that appellant

the

in all events,

complains about the court's

the enterprise.

to

viewed, verify

served as both an "organizer"

and

"leader" of the drug manufacturing and distribution ring.

Appellant's argument, distilled to its essence, is that

he and
joint

his coconspirators
venture.

This

were equal

self-deprecation

crucible of close examination.

with

pristine

decisions
the

clarity that

for the group:

manufacturing

partners embarked
cannot

upon a

withstand

the

Most tellingly, the record shows

appellant

made

the key

strategic

what drugs would be manufactured, when

would take

place,

at

what locations,

what

processes would
be

be used, and what quantities of contraband would

manufactured.

Where, as

here, one

individual in

a multi-

defendant enterprise makes the critical strategic and operational

9

decisions

on

behalf

of

the

questions

such as "what? when? where? how? and how much?"), that

individual exhibits precisely

group

(unilaterally

the sort

answering

of characteristics

that

are emblematic of an organizer or leader.

In
evidence

this case,

that

the record

appellant

not

only

also

the

lion's share

authority,

but

recruited

accomplices,

accomplices.

moreover,

did

Indeed,

and

exercised

exerted

appellant used

is replete

with

decisionmaking

of

the

control
Hanley and

planning,

over

those

Dailey on

an

ongoing basis to run errands in furtherance of the project (e.g.,

____
directing
proposed
glassware

Hanley to

obtain peat

production of
and

machinery

moss and

psilocybin;
from

otherwise treating him as an

his

lime needed

directing Dailey
place

assistant).

of

for the
to

filch

employment,

If more were needed

and

and we do not
appellant's

arrest

hierarchy.
destroy

think that it is

While

confirm
in jail,

the events
his

place

that occurred after

in

the

he instructed Hanley

evidence, and they

conspiracy's
and Dailey

complied unquestioningly

to

with those

instructions.
We

will

not

demonstrates appellant's
and,

thus,

wax

longiloquent.

hegemony beyond

amply supports

the

appellant was an organizer and

district

The

evidence

the shadow of

a doubt

court's finding

leader of the criminal

that

activity.

See, e.g., United States v. Fuller, 897 F.2d 1217, 1220 (1st Cir.
___ ____ _____________
______
1990)

(holding that

defendant

the four-level

"exercise[s]

some

degree

enhancement applies
of

control

over

when a

others

10

involved in the commission of the offense or [is] responsible for

organizing others for the purpose of carrying out the crime").
C
C
Appellant
that,

has one more arrow in his quiver.

given the centrality of

his training in

He argues

chemistry to his

participation
deciding

in

upon

rather than

the

district

court

erred

in

enhancement

(four levels)

"special skill" enhancement

(two levels).

3B1.3 (providing in

enhancement if the defendant

that

the

a role-in-the-offense

a lesser

See U.S.S.G.
___

offense,

pertinent part for a two-level

"used a special skill, in

significantly facilitated the

a manner

commission or concealment of

the offense").

To be sure, there is some potential overlap between the

special

skill

Although

provision

double

counting

circumstances under
Lilly,
_____
chose

may

aggravating
be

role adjustment.

permissible

the guidelines, see, e.g.,

___ ____

in

certain

United States v.
_____________

13 F.3d 15, 19 (1st Cir. 1994), the Sentencing Commission

to avoid

section

3B1.3

adjustment
under

and the

the district

respect to

specifically

"may not

3B1.1

increase

it in

(Aggravating Role)."

for role in the

afoul

this

prohibition;

enhancement, not the latter.

skill

U.S.S.G.

3B1.3.

Therefore,

have piled a

four-level

two-level increase for

unleashed

court did not run

only

We discern no error.
11

special

adjustment

But the district

it

this end,

to an

offense atop a

a special skill.

that

To

in addition

not lawfully

the use of
of

declares

be employed

court could

this overlap.

the

former

We

agree with

demonstrate
When the

same set of

court

facts implicates two

to

embrace
See,
___

the

lesser

rather conspicuously

in the

1B1.1, comment.

provisions

appear

authorize the

of the

(n.5) ("Where

application of

two

equally

v. Medeiros,
________

In fact, the guidelines point

opposite direction.

equally

not require a

e.g., United States

____ _____________

F.2d 13, 20 (1st Cir. 1990).

U.S.S.G.

facts that

different adjustment

the guidelines ordinarily do

applicable adjustments.
897

of the

his leadership role relate to his work as a chemist.

provisions, however,
sentencing

appellant that some

two or

applicable,
only one

but

See generally
___ _________

more guideline
the

guidelines

such provision,

use the

provision that results in the greater offense level.").

In this

instance,

the

record

solidly

supports

the

district court's finding that appellant acted as an organizer and

leader5

and

no provision

sentencing court must

in the

resort to a

guidelines suggests

that a

special skill enhancement

lieu of an equally justified aggravating role enhancement.

in

Thus,

notwithstanding the imbrication of which appellant complains, the

____________________

5To the extent appellant argues that the sentencing court

misconstrued actions he took as a chemist, his argument falls far
short of the mark.
Appellant was by no means an independent
contractor whose authority was confined to the laboratory and
whose decisions were limited to discrete issues related to

production.
Instead, the district court warrantably found that
appellant, aided by his knowledge of chemistry and his ready
access to raw materials and equipment, made a series of tactical
and strategic choices for the organization on a wide-ranging
basis. We must accept this rendition of the record. See United
___ ______
States v. St. Cyr, 977 F.2d 698, 706 (1st Cir. 1992) (holding
______
_______
that "when there are two plausible views of the record, the
sentencing court's adoption of one such view cannot be clearly
erroneous"); Diaz-Villafane, 874 F.2d at 49 (similar; discussing
______________
role-in-the-offense adjustment).
12

district court acted properly

adjustment described

in embracing the four-level upward

in section

3B1.1 rather than

settling for

the two-level adjustment described in section 3B1.3.6

III.
III.

ACCEPTANCE OF RESPONSIBILITY
ACCEPTANCE OF RESPONSIBILITY
Appellant's remaining challenge concerns

responsibility.

U.S.S.G.

level

in the

reduction

3E1.1(a) provides
offense

level if

acceptance of

for a

basic two-

defendant accepts

responsibility as that phrase is used in the guidelines.

Section

3E1.1(b) makes provision for an additional one-level reduction if

the defendant qualifies for the initial decrease under subsection

(a), has an offense level of 16 or more, and either:

"(1) timely

provid[es] complete information to the government concerning

own

involvement

in

the

offense;

authorities of his intention

permitting

the

permitting

the court

U.S.S.G.

government
to

or

(2)

to enter a plea of
to

allocate

notif[ies]

guilty, thereby

avoid preparing

for

its resources

trial

and

efficiently."

3E1.1(b).
A different guideline, U.S.S.G.

two-level

timely

his

increase

in

the

offense level

impeding the administration of justice.

between these two guidelines

3C1.1, provides
for

for a

obstructing

or

A natural tension arises

when a defendant obstructs justice,

____________________

6We note in passing that the special skill provision

operates differently than the abuse of trust provision contained
in the same guideline.
With respect to the latter, the
guidelines specifically authorize the imposition of separate
enhancements for both
abuse of a position
of trust and
aggravating role, see U.S.S.G.
3B1.3, notwithstanding that the
___
two enhancements may arise out of the same nucleus of operative
facts, see United States v. Hickman, 991 F.2d 1110, 1112 (3d Cir.
___ _____________
_______
1993) (discussing operation of these interlocking guidelines).
13

yet

professes

defendant

to accept

faces an

responsibility.

uphill, but

In

not necessarily

such

cases, the

an impossible,

climb.

While the Sentencing Commission

requiring

an

enhancement

under

indicates that the defendant

his

criminal

conduct,"

acknowledges
cases in
apply."

in the

which

U.S.S.G.

U.S.S.G.

3E1.1,

same breath

3C1.1

instant
and

"ordinarily

comment.

that there
both

accepted

obstruction

of

The

(n.4),

it

are "extraordinary

3C1.1 and

3E1.1

than

three-level

and,
his

of

may

invoked

enhancement

appellant's campaign

although
case

troubled

to be

appellant a

by

to

the

extraordinary.
set

forth in

two-level rather

acceptance-of-responsibility credit.
of, or insight into, the

make so Solomonic

for

that appellant

the requirements

court gave

court offered no explanation

authority to

two-level

court

court nevertheless found

any analysis

3E1.1(b), the

district

result of

justice, found

section

the

imposed

responsibility,

without

case,

justice as a

destroy evidence.

its

3C1.1

has not accepted responsibility for

adjustments under

the

obstruction of

Then,

section

Id.
___
In

had

recognizes that conduct

a decision.7

Cf.
___

The

source of

2 Kings
_____

3:16-18 (proposing resolution of dispute by splitting small child

in half).
On
decision

appeal,

to deny

the

Talladino

assails

extra one-level

the

district

court's

reduction under

section

____________________

7The court apparently emulated the PSI Report, which had

recommended this very course. The PSI Report, too, glossed over
the question of authority.
14

3E1.1(b).
that

He contends that, once the

he

qualified

reduction,

for

U.S.S.G.

the

district court determined

basic acceptance-of-responsibility

3E1.1(a),

the court

had no

discretion to

withhold the additional level due to obstruction of justice, but,

instead, could only undertake the circumscribed inquiry limned in

section 3E1.1(b),
on that basis.

and grant or deny the further reduction solely

We agree with appellant's analysis.

A
A

We
that

deal first

applies to

importunes us

this

with the
aspect

to review the

of

standard of
the

case.

appellate review
The

challenged ruling for

government

clear error,

while appellant urges us to undertake plenary review.

Whether a defendant has,
responsibility

is

normally

or has not, accepted personal

fact-dominated

issue,

and

the

district court's decision to grant or withhold a reduction in the

offense
can
v.

level on that account

be shown to be clearly
Morillo, 8
_______

F.3d 864, 871

will not be

erroneous.

overturned unless it

See, e.g., United States

___ ____ _____________

(1st Cir. 1993);

United States v.
_____________

Royer, 895 F.2d 28,

_____
of law

including

29 (1st Cir. 1990).

Nonetheless, questions

interpretive questions concerning the meaning

and scope of the sentencing guidelines

engender de novo review.

__ ____

See, e.g., United States v. St. Cyr, 977 F.2d 698,

___ ____ _____________
_______
1992); United States v.
_____________
1992).

When

intertwined

Connell, 960 F.2d 191, 197-98

_______

a sentencing
with

an

701 (1st Cir.

court's factfinding

allegedly

sentencing guidelines,

improper

the latter standard

(1st Cir.

is inextricably

application
of review

of

the

controls.

15

See United States v. Tavano, 12 F.3d 301, 307 (1st Cir. 1993).
___ _____________
______
In its

present posture, the issue

does not involve a

(a) or

(b) of

presented on appeal

factual determination under either subsection

section 3E1.1.8

Instead, this

case poses

the

quintessentially legal question of whether the district court had

discretion to deny
described

in

appellant the additional

U.S.S.G.

3E1.1(b),

without

one-level reduction
considering

the

timeliness

of appellant's

acceptance

of

responsibility.

We,

therefore, review the challenged ruling de novo.

__ ____
B
B
As

matter of

common

sense,

the district

court's

determination that, having obstructed justice, appellant deserved

something

less

than

the

maximum

three-level

acceptance

of responsibility is attractive.

reduction

for

As a matter of law,

however, the court's decision is more vulnerable, because nothing

in the language of U.S.S.G.
or

otherwise,

reduction
subsection

to

judicial

to

obstruction

of justice.

(b) is

absolute on

its face.

due

confer any discretion on

one-level

3E1.1(b) makes any reference, veiled

reduction

power

to

withhold

the

The
It

language

simply does

the sentencing judge to deny

so

long

as

the

one-level

of

not

the extra

subsection's

stated

requirements are satisfied.

____________________

8Although the district court found as a fact that appellant

accepted responsibility, U.S.S.G.
3E1.1(a), neither side has
appealed from that finding.
Insofar as U.S.S.G. 3E1.1(b) is
concerned, the district court made no findings even though
appellant's counsel argued the point both in a sentencing
memorandum and in objections to the PSI Report.
16

The
discretion

government

to

argues

withhold the

that

one-level

the

district

reduction,

court's

even when

defendant has met the explicit requirements of subsection (b), is

inherent

in, or

district

court

a necessary
to find

concomitant of,

that the

case

the need

for the

is "extraordinary"

finding that is essential to overcome the effect of a defendant's

obstruction of
bars

justice and

all access

wholly unable to

remove the roadblock

to section

3E1.1.

cite to anything

Withal, the

that otherwise

government is

in the guidelines

or in

Sentencing Commission's commentary that supports its theory

the

and

courts must be very cautious about retrofitting the guidelines to

suit

an individual

judge's

States v. Norflett, 922

______
________

concepts of

justice.

F.2d 50, 53 (1st Cir.

that judges "must subrogate

Cf.
___

United
______

1990) (explaining

personal views [about what sentences

are too severe or too lenient] to the Congress' sense of how best
to achieve

uniformity").

authority that

the

When

all is

government can

proposition consists

of two cases,

F.2d

1993) (per

Tello,
_____

1395

(2d Cir.

F.3d 1119

(5th

said and done,

muster

in support

United States v.
_____________

curiam),

Cir. 1993).

the best
of

this

Booth, 996
_____

and United States v.

______________
We

find neither

case

particularly helpful.
In

Booth the
_____

defendant, prior

to his

indictment for

sexual exploitation

of children,

his victims from talking

the

district court

made several attempts

to the FBI.

employed

both a

to keep

In constructing the

GSR,

two-level enhancement

for

obstruction of justice and a two-level decrease for acceptance of

17

responsibility under
to

bestow

an

3E1.1(b).
court's

additional

Although
decision, it

confronts us

today.

one-level reduction
cooperation, not
___
forth

section 3E1.1(a).

the

timeliness

court then declined

reduction

Second Circuit

squarely address

argued that

under

section

the

district

upheld

the

because his conduct satisfied

Here, however,

only relevant

to the

quality of his

the criteria set

Talladino makes the

argument, apparently overlooked by

is the

issue that

he was entitled

because of the extraordinary

in section 3E1.1(b).

rather different

one-level

did not
Booth

The

inquiry under

Booth, that

subsection (b).

Thus, Booth is inapposite.

_____
In

Tello,
_____

the

defendant

obstructed

justice

after

pleading guilty by providing false information about his criminal

history.

The district court imposed a

obstruction
decrease

of

for

justice

and

acceptance

granted

two-level enhancement for

an

offsetting

of responsibility.

admittedly timely guilty plea,

two-level

Despite

Tello's

the court did not afford

him the

additional one-level reduction under subsection (b).

Tello appealed.
that

once

an

The Fifth Circuit reversed,

affirmative

determination

of

declaring

acceptance

of

responsibility has been made, "no sentencing discretion remains."

Tello,
_____
district
justice

F.3d

at 1124.

court's
as

The

reliance

reason

for

court

on the
denying

explicitly rejected

defendant's
the

obstruction

additional

reduction, explaining that:

When the court granted [the defendant] the
basic 2-level reduction for acceptance of
18

responsibility under subsection (a), despite

having found obstruction of
justice and
having increased his offense level by two
therefor, obstruction became irrelevant.
It
evaporated from the sentencing calculus.
Id. at 1128.

the

of

one-level

___
Despite
government
cases

these

insists that

in which

defendant's

seemingly

unequivocal assertions,

Tello contains
_____

an obstruction

a per se
___ __

of justice

tender of a guilty

plea.

To

the

exception for

occurs prior

to the

support this argument

the government relies on the following footnote:

This is not to say that, under greatly
different
circumstances,
obstruction
of
justice could not constitute discretionary
grounds for denying the additional 1-level
decrease, such as when the defendant first
_____
obstructs justice in the investigation of his
offense and only subsequently admits his
____________
guilt and cooperates with the government.
Id. at 1128 n.22 (citing Booth).
___
_____
The government's
footnote 22 is misplaced.
to

the

holding in

possibility that
relevant

to

reliance on the

section 3E1.1(b).

in

Rather than creating a broad exception

Tello, footnote
_____

a defendant's

the

dictum contained

merely leaves

open the

obstruction of justice

might be
_____

sentencing court's

22

timeliness

See, e.g., infra note 10.

___ ____ _____

In

inquiry

under

other words, if

a defendant's obstruction of justice directly precludes a finding

of

timeliness

under section

3E1.1(b),

then

a denial

additional one-level decrease would be appropriate.

the

defendant's obstruction

section 3E1.1(b)

of justice

timeliness inquiry, as

has no

of

the

If, however,

bearing on

was the case

the

in Tello,
_____

19

then the obstruction drops from the equation.9

We consider the Fifth Circuit's
much

more

convincing

than

interpretation of footnote 22.

the

holding in Tello to be
_____
government's

We believe that such a holding is

compelled by the language of the sentencing guidelines.

of

section 3E1.1,

discretion

on

as the

reduction so long as
And there
arguing

government concedes, does

the district

court to

deny the

The text

not confer

extra one-level

certain stated prerequisites are satisfied.

is no principled
that

sanguine

obstruction

basis, linguistic or
of

justice

affects

otherwise, for
this

baseline

interpretation of section 3E1.1(b).

The commentary to the guidelines is to the same effect.

It

establishes that, in the

universe of cases where obstruction

of justice looms, a reduction for acceptance of responsibility is

ordinarily forestalled altogether.
(n.4).

Yet,

there

adjustments under

both

will

be

See U.S.S.G.
___

"extraordinary

3C1.1 and

3C1.1, comment.
cases

3E1.1 may apply."

in
Id.
___

which

The

use

of

the permissive

district

court,

word "may"

having

found

makes

obstruction

discretion to bypass section 3E1.1.

finds that

case

Application Note
3E1.1 comes

is

4, the

it pellucid

justice,

has

Nonetheless, once the court

"extraordinary" within
bypass option

into play, and the

of

that the

the

meaning

is blocked off,

court at that point

of

section

is bound to

____________________

9The confusion surrounding footnote 22 stems in part from

the inclusion of the phrase "discretionary grounds."
This term
appears to be used incorrectly in the context of a discussion of
section 3E1.1(b), as the additional one-level decrease is not a
matter of discretion, but of factfinding.
20

apply the guideline

according to its own terms.

not permit an allowance

which

the

to be made for

acceptance of

Those terms do

the circuitous route

responsibility

guideline

came to

by

be

applied in the first place.

Our focus on the plain
commentary

is

undergirding the
purpose

necessary

language of the guidelines

offshoot

sentencing guidelines.

of

the

policy

and

concerns

The guidelines' primary

is to alleviate disparity in the sentencing of similarly

situated offenders.
38, 51, 161
3234,

See S. Rep.
___

(1984), reprinted in
_________ __

3344.

"Ensuring

judicial discretion."
(1st

Cir. 1994).

No. 225, 98th Cong.,

2d Sess.

1984 U.S.C.C.A.N. 3182,

uniformity inevitably

3221,

means restricting

United States v. Jackson, 30 F.3d 199, 201

_____________
_______

This phenomenon, in turn, places more emphasis

on the text and purport of the guidelines.

Where, as
are clear, courts

here, the text and purport of the guidelines

may not

tinker, but, rather,

provision

in question according to its tenor.

with

scope

the

provisions

and

would

meaning

undermine

engendered the guidelines.

that

guidelines cannot

sense of inequity, no

"be

of
the

carefully
principle

must apply

After all, toying

crafted
of

the

words

See Norflett, 922 F.2d at 54 (stating

___ ________
adulterated by

a judge's

matter how well intentioned the

the Sentencing Commission is

chosen by

guideline

uniformity that

be"); see also Jackson, 30 F.3d at 204 (holding that the

___ ____ _______
role vis-a-vis

the

[the Commission],

enlargers of [the Commission's] intent").

21

personal

judge may

courts'

as "interpreters of

not as

policymakers or

Viewed
that, in
section

against this

denying appellant
3E1.1(b)

the extra one-level

Faced with this sort of

pose two separate questions.

whether the

defendant is entitled

court can

only

answer this

finding, inter alia, that the

_____ ____
notwithstanding the
it, makes the
affirmatively,

it is

then

defendant qualifies
on

the timeliness

other

query

in the

justice.

affirmative

this threshold, the

the second

If,

court vaults

defendant the

responsibility.

At

place obstruction of justice

to

question,

inquiring whether

for an additional one-level

acceptance

words, once the initial

by

the first question

award the

credit for acceptance of

of his

reduction for

his obstruction of

obliged to

that juncture, the court should

and pose

dilemma, a court

situation is "extraordinary."

height of

the

First, the court should ask

requisite finding, and answers

standard two-level

one side

the opinion

reduction under

to receive any
___

acceptance of responsibility, given

The

are of

because of his obstruction of justice,

________________________________________

district court erred.

should

backdrop, we

reduction based

of responsibility.10

inquiry has been

the

In

resolved in the

defendant's favor, with the explicit or implicit finding that his

case is

"extraordinary," the only relevant

is whether the defendant either:

inquiry that remains

"(1) timely provid[ed] complete

____________________
may

10Of course, in some cases a particular act of obstruction

bear directly upon
the criteria specified in section

3E1.1(b).
For
example, obstructive conduct
might render
information furnished to the government incomplete, even in an
"extraordinary" case.
In such a situation, the obstructive
conduct can be considered during the second stage of the inquiry.
Given the absence of findings in this case, however, we take no
view as to how (if at all) this possibility might affect the
proceedings on remand.
22

information to
the

the government concerning his

offense;

intention

or

(2)

timely

plea of

to enter

government to avoid

notif[ied]
guilty,

inquiries.

the

In

moreover,

its

After all,

court

error

the court

an

obvious

basis

subsection

appellant's

sentence

opportunity

to
is, or

his

thereby permitting

the

to

consider,
is not,

U.S.S.G.

appellant

be

findings whatever

for

(b).
allow

excluding

light

district
of

entitled to the

our

two

And,

resentenced.

concerning the
record does

appellant

Consequently,
the

these

court erred.

Furthermore, the

in

3E1.1(b).

conflated

course, the

made no

suggest

appellant

of

effect

requires that

3E1.1(b) criteria.

of

in

following this

section

benefits

authorities

preparing for trial and permitting the court

to allocate its resources efficiently."

Here,

own involvement in

we

from

must

court
opinion,

not

the

vacate
a

fresh

whether

additional one-level

reduction under section 3E1.1(b).

IV.
IV.

CONCLUSION
CONCLUSION
We

need go

no

further.

For

the reasons

discussed

herein, we affirm appellant's conviction, but vacate his sentence

and remand for resentencing.

It is so ordered.
It is so ordered.
________________

23