United States v. Walker ( 2023 )

United States Court of Appeals
For the First Circuit
No. 22-1929
UNITED STATES OF AMERICA,
Appellee,
v.
SHAUN WALKER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Timothy S. Hillman, U.S. District Judge]
Before
Gelpí, Montecalvo, and Rikelman,
Circuit Judges.
Sarah Varney, with whom Darren Griffis and Murphy & Rudolf,
LLP were on brief, for appellant.
Alexia R. De Vincentis, Assistant United States Attorney,
with whom Joshua S. Levy, Acting United States Attorney, was on
brief, for appellee.
December 19, 2023
RIKELMAN, Circuit Judge. Shaun Walker appeals his
thirty-six-month sentence for participating in a thwarted Hobbs
Act conspiracy to rob a home business. Walker raises four
procedural objections to his sentence, including the application
of economic-loss and dangerous-weapon enhancements, and the denial
of incomplete-conspiracy and mitigating-role reductions. Although
the district court's ultimate sentence was one month below the
low-end of the sentencing range recommended under the United States
Sentencing Guidelines, Walker asks us to review the calculation of
the range itself.
After careful consideration, we find no reversible error
in the district court’s treatment of the economic-loss and
dangerous-weapon enhancements or the incomplete-conspiracy
reduction. But because the sentencing court did not compare
Walker’s culpability to that of his co-defendants under the factors
applicable to the mitigating-role reduction, we cannot confirm
whether it erred in denying that reduction. Accordingly, we vacate
and remand for resentencing on Walker's eligibility for a
mitigating-role reduction.
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I. BACKGROUND
A. Relevant Facts1
On March 18, 2019, Junior Melendez was organizing a
robbery of a home in Rockland, Massachusetts, out of which Joseph
Wilson ran a business selling glass marijuana-smoking
paraphernalia. Melendez was planning the break-in with Grace
Katana, who had scouted the target location, Keith Johnson, who
would lead the break-in, and a fourth person, who would aid Johnson
inside the home. On March 19, Melendez told Johnson that Shaun
Walker would enter the home with Johnson as a substitute for the
original person in that role. Johnson objected at first,
preferring someone physically larger, before relenting to Walker's
participation, telling Melendez, "I’m going in first, it doesn’t
even matter."
With the four participants set, the plan was put into
motion. On March 21, Katana suggested to Melendez that the robbery
could go forward that Sunday. Two days later, on Saturday,
March 23, Melendez called Johnson and confirmed they would proceed
1 Because Walker pleaded guilty, our summary "draw[s] the
facts from the change-of-plea colloquies, the unchallenged
portions of the Presentence Investigation Report[], and the
sentencing hearing transcript." United States v. Vargas-Martinez,
15 F.4th 91, 95 n.1 (1st Cir. 2021). It also draws on phone call
transcripts in the Government’s Supplemental Appendix, which
contain undisputed statements not included elsewhere in the record
but which both parties agree were properly before the district
court.
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"tomorrow." On Sunday, March 24, Melendez informed Johnson they
would commit the robbery "tonight around 2 or 3 in the morning,"
and Johnson said he would be ready.
Around 1:42 a.m. on Monday, March 25, Katana told
Melendez he was ready to proceed "whenever the guys were ready,"
and agreed to meet Melendez near Hamilton Street in Worcester,
Massachusetts. But Melendez changed his mind twenty minutes later,
calling Katana at 2:04 a.m. to delay the break-in until "tomorrow,"
saying the middle of the night was "not really the best time to do
it" and agreeing to meet Katana that night instead.
Apparently unknown to the conspirators, state and
federal law enforcement had been intercepting Melendez's phone
calls and text messages pursuant to a wiretap since March 14, 2019.
Aware of Melendez and Katana’s middle-of-the-night plan, police
watched from a distance in the early hours of March 25 as Melendez
arrived to meet Katana in Worcester. At approximately 3:15 a.m.,
after Melendez had left the area, police observed three men loading
a wheeled dolly into the back of a Honda CR-V registered to
Katana’s sister.2
Before the four men left for Rockland later on Monday,
March 25, Johnson called Melendez to ask, "you got the thing, or
I bringing mine?" Melendez responded that "he might not, he
2 The record does not further identify the men.
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probably not even be there," apparently referring to Wilson, but
instructed Johnson to "bring [his] just in case," repeating, "just
bring one, bring one." The men were discussing whether Johnson
should carry a firearm, and, following Melendez's instructions,
Johnson brought a .380 caliber pistol to Rockland. Law enforcement
agents were listening to that call and intercepted a separate call
the following month in which Melendez told a third party that
Walker was angry that nobody told him Johnson was instructed to
bring a gun into the home.
The men traveled more than 60 miles from Worcester to
Rockland on Monday afternoon. Upon arriving in Rockland around
2:48 p.m., Melendez and Katana scoped out the Wilson property,
whereas Walker and Johnson waited in a Home Depot parking lot less
than a mile away. At 2:51 p.m., location information from
Melendez’s phone indicated he was close to the target home. At
2:53 p.m., a doorbell camera recorded Katana carrying away two
packages that had been delivered to the doorstep of the property
earlier that day.
By 3:02 p.m., Melendez and Katana had arrived at the
Home Depot. Although Melendez previously had instructed Walker to
purchase from Home Depot "whatever we need" while Melendez and
Katana went to the house, Walker asked Melendez to buy the supplies
instead, saying "we can't be going in and showin' our face," and
suggesting Melendez "grab a crowbar," before adding "what you
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think? Whatever, whatever you think's going to work." Home Depot
security footage and a purchase receipt show that at 3:07 p.m.,
Melendez and Katana bought a two-foot iron crowbar, an eight-inch
screwdriver, and razor blades, which they loaded into the Honda
occupied by Walker and Johnson.
Melendez also told Walker "[t]here's one whip [car]" in
the driveway of Wilson's house and that Katana did not "think
anybody [was] there" but that they were "not sure." Apparently,
Katana was trying to gather more information from an unspecified
fifth person. Melendez's last statement to Walker was that
"we[']re gonna look . . . and make the decision after that."
Convinced an armed robbery was imminent, Massachusetts
State Police stopped both vehicles in the Home Depot parking lot.
Walker was driving the Honda with Johnson in the front passenger
seat. From that vehicle, officers seized a loaded .380 caliber
pistol from the glove compartment; the crowbar Melendez and Katana
had purchased; and the wheeled dolly loaded the night before. In
Melendez’s vehicle, officers found a ski mask and the two boxes
Katana had taken from the front steps of the home, which contained
$2,500 worth of glass smoking pipes. Wilson later told law
enforcement that the glassware in his home on the day of the
intended robbery was worth approximately $40,000.
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B. Legal Proceedings
On May 18, 2022, Walker pleaded guilty to violating the
Hobbs Act, 18 U.S.C. § 1951(a). The presentence investigation
report (PSR) recommended a sentencing range of thirty-seven to
forty-six months based on a total offense level of 21, which was
derived from the following calculation. The Guideline applicable
to Hobbs Act conspiracies is that for "Attempt, Solicitation, or
Conspiracy (Not Covered by a Specific Offense Guideline)." U.S.
Sent'g Guidelines Manual ("U.S.S.G.") § 2Xl.l; see id. § 1B1.2
("If the offense involved a conspiracy . . . refer to
§ 2Xl.l . . . ."). Section 2X1.1 borrows the base offense level
for the substantive offense -- here, the robbery Guideline, id.
§ 2B3.1 -- "plus any adjustments from such guideline for any
intended offense conduct that can be established with reasonable
certainty," id. § 2Xl.l(a). The robbery Guideline provides a base
offense level of 20. Id. § 2B3.1(a).
The PSR also recommended two enhancements and two
reductions. It initially recommended a five-level increase for
possession of a firearm, but both Walker and the government
objected because the government was unable to prove Walker could
have reasonably foreseen that Johnson would carry the gun. In
response, the probation officer recommended instead a three-level
enhancement based on possession of "dangerous weapon[s]": the
crowbar, screwdriver, and razor blades. Id. § 2B3.1(b)(2)(E).
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The PSR also recommended a one-level economic-loss increase
because the intended loss was more than $20,000 but did not exceed
$95,000. See id. § 2B3.1(b)(7)(B). Finally, the PSR recommended
a two-level decrease for acceptance of responsibility and a further
one-level decrease for Walker’s timely notice of his intent to
plead guilty, reaching a total offense level of 21. Because Walker
had a criminal history score of zero, he qualified for criminal
history category I.
Walker asserted four objections to the PSR's guideline
calculation in his sentencing memorandum. First, he requested a
four-point reduction for his role as a minimal participant in the
conspiracy. See id. § 3B1.2(a). Walker argued that he was
"substantially less culpable than the average participant" in the
conspiracy, id. § 3B1.2 cmt. n.3(A), and "plainly among the least
culpable" in the offense under the factors laid out in the
Guideline commentary, id. § 3B1.2 cmt. n.4; see also id. § 3B1.2
cmt. n.3(C) (listing factors "the court should consider" when
determining whether defendant is eligible for a reduction). He
explained that he did not fully understand the scope or structure
of the activity, nor did he participate in its planning; he
intended to perform only a small role in the break-in itself; he
lacked decision-making authority and expressed reticence about
certain steps; and the record did not show that he stood to benefit
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from his participation. At the sentencing hearing,3 the government
responded that Walker could not be a minimal participant, arguing
that it was "hard to imagine that an individual who ultimately
agreed . . . to go into the house to actually commit the robbery
[would] be a minimal participant in that conspiracy." The
government also argued that Walker hesitated to enter the Home
Depot because he feared a witness might later identify him on
security footage, not because he was having second thoughts about
the robbery.
Second, Walker requested a three-level reduction because
he and his co-conspirators had not taken all the necessary acts to
complete the robbery. See id. § 2X1.1(b)(2). Walker argued that
Melendez had doubts about whether to carry out the robbery as late
as when the group was at Home Depot because Katana could not
determine whether the home was occupied. Walker further argued
that the group had not reached the final staging area because
Melendez had asked Walker whether the group could meet at a
restaurant to decide what to do. The government responded that
the incomplete-conspiracy reduction was "the exception to the
rule" and unwarranted in this case, when the co-conspirators had
planned the robbery for six days, armed themselves with a pistol,
3 The government did not file a sentencing memorandum.
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driven 60 miles to within half a mile of the target property, and
purchased items to perform the break-in.
Third, Walker argued that a three-level dangerous-weapon
enhancement for possession of the crowbar, screwdriver, and razor
blades was improper because he possessed the items only with the
intent to facilitate the robbery, not to cause injury. The
government argued that the enhancement was available as long as it
could show with reasonable certainty that Walker intended to
"possess[] an item that was capable of inflicting death or serious
bodily injury," and both parties agreed the crowbar, screwdriver,
and razor blades could inflict such harm.
Finally, Walker argued that the one-point economic-loss
enhancement was inappropriate. He contended that the court could
consider only the actual loss caused by the conspirators, not the
intended loss, because the government could not show with
reasonable certainty that the conspirators would have stolen all
of the glassware had the break-in occurred. The actual loss of
$2,500 would not have warranted an enhancement. See id.
§ 2B3.1(b)(7)(A). The government responded that the conspiracy
Guideline indicates that "in an attempted theft, the value of the
items that the defendant attempted to steal would be considered,"
id. § 2X1.1 cmt. n.2, so the intended $40,000 loss was sufficient
to justify the adjustment.
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The district court allowed the parties to present their
positions without questioning and, at the end of the presentations,
decided to adopt the PSR's offense level calculations. It did not
explain its reasoning on the record. The government asked for a
sentence of forty-six months of imprisonment, at the top of the
sentencing range recommended under the Guidelines, whereas Walker
requested no incarceration, two years of probation, and three years
of supervised release.4 After hearing Walker's allocution, which
the district court remarked "was one of the best [it had] ever
heard," the court sentenced him to thirty-six months'
incarceration and three years' supervised release. Walker timely
appealed.
II. DISCUSSION
A. Standard of Review
On appeal, Walker raises only procedural challenges to
his sentence. Accordingly, our review of the district court's
decision scrutinizes its legal conclusions de novo and its factual
findings for clear error. See United States v. Andino-Rodríguez,
79 F.4th 7, 31 (1st Cir. 2023). We address each of Walker's
challenges below, leaving the most complicated on this record for
last.
4Walker's sentencing memorandum noted that he spent more than
three years in court-ordered home confinement after his initial
arrest in 2019, during which he left home only for work and to
attend to his children.
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B. Economic-Loss Enhancement
Walker asks us to reverse the district court's
application of a one-point economic-loss enhancement on two
grounds. He argues that the district court committed legal error
by applying the enhancement based on the $40,000 value of the
intended loss, rather than the $2,500 value of the glassware Katana
removed from the property. See U.S.S.G. § 2B3.1(b)(7)(A)-(B)
(applying no enhancement for losses of $20,000 or less and a one-
point enhancement for losses greater than $20,000 but not exceeding
$95,000). Further, Walker contends that the government failed to
prove with "reasonable certainty" that the conspirators
"specifically intended" to cause a loss of more than $20,000. We
reject both arguments.
First, the plain language of the Guidelines and our
precedent both foreclose Walker's claim that the district court
applied the wrong legal standard. The language of the applicable
Guidelines allows district courts to consider intended losses.
The conspiracy Guideline instructs sentencing courts to apply "any
adjustments from [the substantive offense] guideline for any
intended offense conduct that can be established with reasonable
certainty." Id. § 2X1.1(a) (emphasis added). The conspiracy
Guideline commentary defines "intended offense conduct" as conduct
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that was "specifically intended" or that "actually occurred."5 Id.
§ 2X1.1 cmt. n.2. Under the robbery Guideline commentary, "loss"
is "the value of the property taken, damaged, or destroyed." Id.
§ 2B3.1 cmt. n.3. Applying the commentary of the conspiracy
Guideline to that of the robbery Guideline therefore requires
district courts to consider the value of the property that the
conspirators specifically intended to steal when sentencing for a
robbery conspiracy. Cf. § 2X1.1 cmt. n.2 ("In an attempted theft,
the value of the items that the defendant attempted to steal would
be considered."). And our case law confirms that "'intended' loss
is the test" for determining whether an economic-loss adjustment
applies to a thwarted robbery conspiracy. United States v.
Chapdelaine, 989 F.2d 28, 35 (1st Cir. 1993).6
Walker argues that a case decided by the Third Circuit
after his sentencing nevertheless commands a different result
here. See generally United States v. Banks, 55 F.4th 246 (3d Cir.
5 The commentary in the Guidelines, including the application
notes, is binding unless it conflicts with the Guidelines
themselves or a statute. Andino-Rodríguez, 79 F.4th at 35 (citing
United States v. Carrasco-Mateo, 389 F.3d 239, 244 (1st Cir.
2004)).
6 Walker argues that Chapdelaine is inapplicable because it
considered "intended loss" based on a since-amended provision in
the robbery Guideline. But as we explained in Chapdelaine, the
previous framework, in the end, directed us to "intended loss"
based on the language in the conspiracy Guideline. See 989 F.2d
at 35 n.8. The same is true today, even though the modern
Guidelines take us on a more direct route to get there.
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2022). Banks held that the plain meaning of the economic-loss
adjustment under the separate but similar theft Guideline "does
not include intended loss." Id. at 257 (interpreting U.S.S.G.
§ 2B1.1(b)(1)). In so ruling, the Third Circuit withheld deference
to the commentary accompanying the theft Guideline because that
commentary broadened the language of the Guideline beyond its text.
See id. at 256-58 & n.45 (citing United States v. Nasir, 17 F.4th
459, 472 (3rd Cir. 2021) (en banc) (Bibas, J., concurring)).
Walker argues that because the adjustments under the theft and
robbery Guidelines share the word "loss," the logic of Banks should
apply to section 2B3.1(b)(7) and compel us to reverse. But Banks
did not involve a conspiracy charge, so the sentence in that case
rested only on the language of the theft Guideline. See id. at
251, 256-58. Here, by contrast, the conspiracy Guideline governing
Hobbs Act robberies expressly instructs courts to consider
"intended offense conduct." U.S.S.G. § 2X1.1(a). And unlike the
intended loss language in the theft Guideline commentary, the
textual hook for intended conduct in the conspiracy Guideline is
contained in the Guideline itself, quelling any concern that the
commentary could have impermissibly expanded the meaning of the
relevant Guideline here.
Second, there was no error in the district court's
application of the reasonable certainty standard. Our precedent
allows sentencing courts to draw inferences from "the actual plan
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of the conspirators to determine which specific characteristics of
the offense they intended." United States v. Medeiros, 897 F.2d
13, 19 (1st Cir. 1990); see Chapdelaine, 989 F.2d at 35("[R]easonable certainty goes to what with reasonable certainty
can be determined to be the conspirator's intent." (internal
quotation marks omitted) (quoting Medeiros, 897 F.2d at 18)).
Walker argues that because the robbery did not take
place, it is "speculative" to assume that the conspirators would
have successfully stolen more than $20,000 worth of property,
thereby warranting the enhancement. Again, our precedent says
otherwise. In Chapdelaine, the defendant received a four-point
increase for a loss between $800,000 and $1,500,000 for his
unsuccessful conspiracy to rob an armored truck containing
$1,000,000. See 989 F.2d at 35. The defendant argued on appeal,
as Walker does here, that "the loss . . . was speculative," rather
than reasonably certain, "because no robbery actually occurred."
Id. But we disagreed, discerning no clear error in the finding
that the co-conspirators intended to steal all the money in the
truck. See id. So too here. Walker argues that the conspirators
might not have "kn[own] how much inventory would [have been]
inside" or "been able to locate all the inventory" or "had the
time and physical ability" to remove it all. But these
possibilities support, at best, a plausible alternative finding;
they do not demonstrate clear error. See United States v. Flete-
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Garcia, 925 F.3d 17, 26 (1st Cir. 2019) ("If two plausible but
competing inferences may be drawn from particular facts, a
sentencing court's choice between those two competing inferences
cannot be clearly erroneous." (first citing United States v. Nuñez,
852 F.3d 141, 146 (1st Cir. 2017); and then citing United States
v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990))).
C. Dangerous-Weapon Enhancement
Walker next argues that the district court erred by
applying a three-point enhancement under the robbery Guideline for
possession of dangerous weapons because the government failed to
prove that Walker intended to use the crowbar, screwdriver, and
razor blades as weapons. Walker is incorrect as a matter of law
that the Guidelines require such proof.
As explained previously, the conspiracy Guideline
directs courts to adopt the base offense level of the substantive
offense "plus any adjustments from such guideline for any intended
offense conduct that can be established with reasonable
certainty." U.S.S.G. § 2X1.1(a). Among the specific offense
characteristics of the robbery Guideline is a three-level
enhancement if "a dangerous weapon was brandished or possessed."
Id. § 2B3.1(b)(2)(E). A dangerous weapon includes "an instrument
capable of inflicting death or serious bodily injury." Id. cmt.
n.2 (incorporating by reference U.S.S.G. § 1B1.1 cmt. n.1(E)(ii)).
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Our precedent does not resolve whether the government
must show that a defendant intended to possess a dangerous weapon
with intent to use it as such. The government argues that it needs
to show only that Walker intended to possess the weapons, whereas
Walker argues that the enhancement applies only if he intended to
use the items to "inflict[] death or serious bodily injury."
"Typically, we give the language used in guideline
provisions its plain and ordinary meaning." United States v.
Patch, 9 F.4th 43, 46 (1st Cir. 2021); accord United States v.
Pope, 554 F.3d 240, 246 (2d Cir. 2009) (interpreting weapons
enhancement according to its "plain meaning"). Section 2X1.1(a)
instructs district courts to adjust the Guideline calculation from
the underlying substantive offense based on "intended offense
conduct." U.S.S.G. § 2X1.1(a). "[I]ntended" modifies "conduct,"
which, in the relevant sense, means "the act, manner, or process
of carrying on." See Conduct, Merriam-Webster’s Collegiate
Dictionary (10th ed. 1993). Accordingly, "intended offense
conduct" in the conspiracy Guideline refers to -- and the specific-
intent requirement applies to -- the actions a defendant intended
to take in the course of the substantive offense. The text of the
robbery Guideline clearly states that the relevant offense conduct
is the "possess[ion]" of a dangerous weapon. U.S.S.G.
§ 2B3.1(b)(2)(E); see Pope, 554 F.3d at 246 (holding enhancement
applies under theft Guideline "if the dangerous weapon 'was
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possessed'" (quoting U.S.S.G. § 2B2.1(b)(4))). Because the action
is contained in the word "possess[ion]," the plain meaning of the
Guidelines supports the government’s view that Walker needed only
to "specifically intend[]" to "possess[]" the items in connection
with the robbery. See U.S.S.G. § 2X1.1(a) cmt. n.2; id.
§ 2B3.1(b)(2)(E).
Our understanding of the dangerous-weapon enhancement is
consistent with the case law of our sister circuits, and we can
identify no out-of-circuit precedent adopting Walker's
interpretation. See United States v. Lavender, 224 F.3d 939, 941
(9th Cir. 2000) (rejecting defendant's argument that "dangerous
weapons should be considered dangerous weapons for sentencing
purposes only when they are carried with the intent to use them as
weapons"); Pope, 554 F.3d at 246 (same regarding the burglary
Guideline). For example, based on the plain meaning of the
dangerous-weapon enhancement under the burglary Guideline, the
Second Circuit held in Pope that the enhancement itself required
the government only to show "possession of a dangerous weapon,
regardless of whether the dangerous weapon was employed as such
during the commission of a crime." 554 F.3d at 246 (citing
Lavender, 224 F.3d at 941). The defendant in Pope, who had carried
a sledgehammer into a bank burglary, maintained that an enhancement
for possessing a dangerous weapon was inappropriate because the
sledgehammer was "not inherently a weapon," and the defendant had
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used it only to break into the bank, not to cause injury. Id. at
245. But the Second Circuit understood the focus of the
enhancement to require courts to evaluate whether an item "was
possessed," not the manner in which it was used. Id. at 246.
To be sure, Pope did not interpret the enhancement
through the lens of the conspiracy Guideline, which expressly
limits sentencing courts to considering conduct that was
"specifically intended or actually occurred." U.S.S.G. § 2X1.1
cmt. n.2. But Pope's explanation that the dangerous-weapon
enhancement applies when the defendant intended to possess a
dangerous weapon -- regardless of how the item would be used to
facilitate the offense -- confirms our view that the conspiracy
Guideline's intent requirement applies to possession of a
dangerous weapon and nothing more. See 554 F.3d at 245-46; accord
Lavender, 224 F.3d at 941.
Because Walker concedes that he specifically intended to
possess the crowbar, screwdriver, and razor blades during the
robbery, and that such items fit within the Guideline definition
of "dangerous weapon," the district court did not err by applying
the enhancement here.
D. Incomplete-Conspiracy Reduction
Walker next argues that the district court erred by
denying his request for a three-level incomplete-conspiracy
reduction. The sentencing court’s factual finding that the
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participants were "about to complete" the conspiracy is subject to
clear error review.7 See Chapdelaine, 989 F.2d at 35. We find no
clear error here.
A conspiracy defendant is entitled to a three-level
reduction from the base offense level of the underlying substantive
offense "unless" the court finds with "reasonable certainty" that
"the conspirators were about to complete" the object of the
conspiracy "but for apprehension or interruption by some similar
event beyond their control." U.S.S.G. § 2X1.1(a), (b)(2). Walker
argues that at the time of the conspirators' initial arrests in
the Home Depot parking lot, Melendez and Katana believed that
someone might be home and planned to undertake additional
reconnaissance before proceeding, so they were not "about to
complete" the robbery. He urges us to reverse, contending that
these facts show the conspiracy here did not proceed as far as the
robbery in Chapdelaine.8
7 A sentencing court may also deny an incomplete-conspiracy
reduction if it finds that "the defendant or a co-conspirator
completed all the acts the conspirators believed necessary on their
part for the successful completion of the substantive offense."
U.S.S.G. § 2X1.1(b)(2). In that context, "[t]he question of
whether the offense was substantially completed is a judgment
call," which we review for abuse of discretion. United States v.
Serunjogi, 767 F.3d 132, 143 (1st Cir. 2014).
8 The government, for its part, attempts to distinguish
Chapdelaine as a case in which the defendants had completed all
the acts necessary to accomplish the robbery, but our holding in
that case clearly stated otherwise. See 989 F.2d at 35 ("Under
these circumstances, there was no clear error in the district
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In that case, we found no clear error in the district
court’s finding that Chapdelaine was "'about to complete' a
robbery" when the participants had stolen getaway vehicles in
advance, scouted the arrival and departure times of the target
truck for several days, arrived at the mall on the day of the
intended robbery "prepared and equipped to carry out a robbery,"
and "were thwarted only by the unexpected early departure of the
[target] truck." Chapdelaine, 989 F.2d at 30-31, 35. Walker
contends that the presence of the car in the driveway of the Wilson
residence gave the conspirators here pause, forcing them to
reconsider whether to proceed. Unlike in Chapdelaine, Walker
argues, the conspirators here did not arrive at the final staging
area ready to complete the offense. Rather, there was still an
opportunity to withdraw from or otherwise abandon the conspiracy.
But Chapdelaine makes clear that "[i]t is nearness of
the crime to achievement . . . that defeats the reduction
available for conspiracies . . . that have not progressed very
far." Id. at 36. And Walker fails to explain why the district
court clearly erred in determining that the robbery conspiracy
here had "progressed far enough." Id.court's conclusion that Chapdelaine was 'about to complete' a
robbery 'but for apprehension or interruption by some similar event
beyond the defendant's control.'" (emphasis added) (quoting
U.S.S.G. § 2X1.1(b)(1))).
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We reverse for clear error only if the district court's
factual findings are not plausible on the record as a whole and if
we "form[] a strong, unyielding belief that a mistake has been
made." United States v. Montañez-Quiñones, 911 F.3d 59, 66 (1st
Cir. 2018) (quoting United States v. Cintrón-Echautegui, 604 F.3d
1, 6 (1st Cir. 2010)). Here, Walker and his co-conspirators
planned the robbery for nearly a week, drove more than 60 miles in
separate cars from Worcester to Rockland, and, although Melendez
and Katana saw a vehicle in the driveway at the target home, stole
items from the front porch and then purchased items at Home Depot
to facilitate the break-in. A district court could plausibly treat
these facts as demonstrating that the presence of a vehicle at the
home had merely slowed, rather than stopped, the momentum of the
conspiracy. Nor does the record contain any evidence that Walker
took steps to withdraw from the conspiracy at that time. Although
Walker disagrees with the district court's interpretation of the
facts, "the sentencing court's choice among supportable
alternatives cannot be clearly erroneous." Andino-Rodríguez, 79
F.4th at 34 (quoting United States v. De la Cruz-Gutiérrez, 881
F.3d 221, 227 (1st Cir. 2018)).
E. Mitigating-Role Reduction
Walker's final challenge to his sentence is that the
district court erroneously denied him a mitigating-role adjustment
for what he claims is his lesser role in the offense as compared
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to his co-conspirators. We conclude that we cannot evaluate on
this record whether denying the reduction constituted error and
therefore remand to the district court.
"Role-in-the-offense determinations are notoriously
fact-specific." United States v. Pérez, 819 F.3d 541, 545 (1st
Cir. 2016) (citations omitted). It is not surprising then that
"absent a mistake of law, battles over a defendant's" role are
"almost always . . . won or lost in the district court." Id. at
546 (quoting United States v. Graciani, 61 F.3d 70, 75 (1st Cir.
1995)). Indeed, "[w]e've often warned that, [b]ecause determining
one's role in an offense is a fact-specific inquiry, we rarely
reverse a district court's decision regarding whether to apply a
minor role adjustment." Andino-Rodríguez, 79 F.4th at 31 (second
alteration in original) (internal quotation marks omitted)
(quoting De la Cruz-Gutiérrez, 881 F.3d at 225-26). The defendant
"bears the burden of proving, by a preponderance of the evidence,
that he is entitled to the downward adjustment." United States v.
Arias-Mercedes, 901 F.3d 1, 5 (1st Cir. 2018) (quoting Pérez, 819
F.3d at 545). Absent a showing of legal error subject to de novo
review, "[a] defendant will 'only prevail on appeal by
demonstrating that the district court's determination as to his
role in the offense was clearly erroneous.'" De la Cruz-Gutiérrez,
881 F.3d at 226 (quoting United States v. González-Soberal, 109
F.3d 64, 74 (1st Cir. 1997)).
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"[A]ll parties engaged in a criminal enterprise can be
'located on a continuum.'" Andino-Rodríguez, 79 F.4th at 34
(quoting Arias-Mercedes, 901 F.3d at 8). "Those who are primarily
responsible stand on one end," while "the least culpable
participants . . . stand at the opposite end." Id. To be eligible
for any mitigating-role reduction, a defendant must, as a threshold
matter, be "substantially less culpable than the average
participant in the criminal activity." United States v. Mendoza-
Maisonet, 962 F.3d 1, 23 (1st Cir. 2020) (quoting U.S.S.G. § 3B1.2
cmt. n.3(A)). If that requirement is met, then a district court
must evaluate the defendant's classification among the "pool of
defendants eligible for an adjustment." Id. A minimal participant
is "plainly among the least culpable of those involved," U.S.S.G.
§ 3B1.2 cmt. n.4 (emphasis added), whereas a minor participant is
"less culpable than most other participants in the criminal
activity, but [his] role could not be described as minimal," id.
cmt. n.5 (emphasis added). A defendant may receive a four-point
reduction if he is a minimal participant; a two-point reduction if
he is a minor participant; and a three-point reduction if his
culpability falls somewhere between minimal and minor. See
U.S.S.G. § 3B1.2.
Accordingly, to be a candidate for a minimal-participant
reduction (worth four points) Walker must show that he is both
"substantially less culpable than the average participant in the
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criminal activity" and "plainly among the least culpable of those
involved"; and to be a candidate for a minor-participant reduction
(worth two points) he must be both "substantially less culpable
than the average participant in the criminal activity" and "less
culpable than most other participants in the criminal activity."
Mendoza-Maisonet, 962 F.3d at 23 (citations omitted); accord
Andino-Rodríguez, 79 F.4th at 34. Other circuits apply this
conjunctive standard too. See, e.g., United States v. Carpenter,
252 F.3d 230, 234-35 (2d Cir. 2001); United States v. Kearby, 943
F.3d 969, 977 (5th Cir. 2019); United States v. Dominguez-Caicedo,
40 F.4th 938, 960 (9th Cir. 2022).
We recognize that this framework can pose a challenge
for district courts reviewing small criminal enterprises like this
one, and comparing participants in a four-person conspiracy can be
particularly vexing. By our math, only the two least culpable
defendants in a four-person conspiracy could qualify for a two-
point reduction by showing that each is "substantially less
culpable than the average participant" and "less culpable than
most other participants." But we emphasize that the individuals
who could qualify as "substantially less culpable than the average
participant" in a four-person enterprise will vary based on the
facts of a particular case. In some four-person conspiracies, the
average participant could be the second-most culpable individual
if the most culpable individual's role was significantly greater
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than that of all the others. The third and fourth participant
might then qualify for a reduction if each was "substantially less
culpable" than the second participant. In other four-person
conspiracies, the average participant might be the third-most
culpable individual, so only the fourth participant could receive
a reduction. In all these situations, however, a sentencing court
must consider whether the defendant is also "less culpable than
most other participants" in a four-person conspiracy in order to
grant a minor-role reduction. And there may be instances when
none of the participants qualifies. See, e.g., De la Cruz-
Gutiérrez, 881 F.3d at 226 (citation omitted) (denying reduction
where participants were "equal partners in the criminal
activity").
Here, we do not have enough information about the
district court's rationale for denying the reduction. Based on
the record we can only conclude, as the government conceded at
oral argument, that Walker was less culpable than Melendez, the
mastermind, and Johnson, who planned to enter the home with a gun.
Walker also may be less culpable than Katana, who participated
heavily in planning and was the only person to remove glassware
from the premises but did not intend to enter the home. But the
district court, which is the expert on the facts, particularly
after presiding over Katana's trial, at no time identified the
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average participant or compared the culpability of Walker and
Katana on the record.
The lack of any explanation for the district court's
decision gives us special pause here because it is not apparent
from the record that the court performed the inquiry required by
the mitigating-role Guideline. U.S.S.G. § 3B1.2 cmt. n.3(C)
("[T]he court should consider the following non-exhaustive list of
factors." (emphasis added)); see also United States v. Wynn, 37
F.4th 63, 69 (2d Cir. 2022) ("The district judge . . . erred in
denying [the defendant] a mitigating role adjustment without first
addressing [four] relevant factors that appear to support such an
adjustment."); United States v. Diaz, 884 F.3d 911, 916 (9th Cir.
2018) ("[T]he assessment of a defendant's eligibility for a minor-
role adjustment must include consideration of the factors
identified by the Amendment . . . ."). Since 2015, the Guidelines
have channeled decision-making about culpability through five non-
exhaustive factors to determine whether a defendant is eligible
for a mitigating-role reduction. U.S.S.G. § 3B1.2 cmt. n.3(C);
id. Supp. to App. C, Amend. 794. The factors are:
(i) the degree to which the defendant understood the
scope and structure of the criminal activity;
(ii) the degree to which the defendant participated in
planning or organizing the criminal activity;
(iii) the degree to which the defendant exercised
decision-making authority or influenced the exercise of
decision-making authority;
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(iv) the nature and extent of the defendant’s
participation in the commission of the criminal
activity, including the acts the defendant performed and
the responsibility and discretion the defendant had in
performing those acts;
(v) the degree to which the defendant stood to benefit
from the criminal activity.
Id. § 3B1.2 cmt. n.3(C). An evaluation of these factors does not
require extensive analysis, see United States v. Castillo, 995
F.3d 14, 18 (1st Cir. 2021), but it does require both a judgment
about the defendant's own conduct and a comparison to the other
participants, see Andino-Rodríguez, 79 F.4th at 33; United States
v. Nkome, 987 F.3d 1262, 1273 (10th Cir. 2021) ("[T]he crux of
§ 3B1.2 is a defendant's relative culpability." (quoting United
States v. Yurek, 925 F.3d 423, 446 (10th Cir. 2019))).
In some cases when a sentencing court gave no explanation
on the record for denying a reduction, we have discerned the
court's rationale by inferring that the court agreed with the
government's reasoning that the reduction was unwarranted. See,
e.g., Mendoza-Maisonet, 962 F.3d at 24. Nonetheless, sentencing
courts must give sufficient explanation to "allow for meaningful
appellate review." Gall v. United States, 552 U.S. 38, 50 (2007);
see Wynn, 37 F.4th at 68 (remanding for resentencing because "[t]he
district judge's decision lack[ed] any analysis of [four of the]
relevant mitigating role factors that the Guidelines provide");
cf. United States v. Reyes-Correa, 81 F.4th 1, 10 (1st Cir. 2023)
- 28 -
(vacating sentence for procedural unreasonableness because
district court provided "boilerplate" explanation for upward
variance). Thus, although some sentences may survive clear error
review based on other information in the record, even without an
explicit comparison, we stress that comparing participants based
on the Guideline factors is critical. See United States v. Muñoz-
Fontanez, 61 F.4th 212, 214 (1st Cir. 2023) ("Inadequate
explanation is a recognized sentencing error." (citing Gall, 552
U.S. at 51)).
Against this backdrop, we conclude that we are unable to
affirm here for three reasons. First, the district court did not
explain its grounds for denying the mitigating-role reduction.
After the parties' presentations, the court stated that it would
accept the Guidelines calculations recommended in the PSR. Often
when we have affirmed the denial of the reduction in previous
cases, we have been able to rely on some explanation by the
district court. See, e.g., Andino-Rodríguez, 79 F.4th at 33, 35
(affirming the denial of a mitigating-role reduction where "the
court went through the five mitigating role adjustment factors and
matched Andino's conduct to each factor"); Castillo, 995 F.3d at
18 ("The district court's comparison to Arias-Mercedes and the
statements that Castillo must have been aware of the quantity of
cocaine on board were sufficient to 'allow for meaningful appellate
review' of the denial of the downward adjustment." (quoting Gall,
- 29 -
552 U.S. at 50)). The district court also did not engage with the
parties during their presentations in a way that would permit us
to understand its reasoning from its comments and questions to
counsel. See, e.g., United States v. Montes-Fosse, 824 F.3d 168,
172 (1st Cir. 2016) (district court's "exchange" with defense
counsel allowed inference about court's justification for denying
reduction).
Second, we cannot rely solely on the government's
arguments at sentencing as a basis for affirming. See Mendoza-
Maisonet, 962 F.3d at 24. The government argued that it was "hard
to imagine that an individual who ultimately agreed . . . to go
into the house to actually commit the robbery [could] be a minimal
participant in that conspiracy to commit a robbery." It also
briefly rejected Walker's suggestion that his reluctance to enter
the Home Depot supported the reduction, claiming that Walker simply
feared being seen on camera. Unlike in other cases where we have
inferred a district court's rationale from the arguments advanced
at sentencing, here, the government's argument made no explicit
comparison of the relative culpability of any of the defendants.
Cf. id. ("At sentencing, the Government argued against the minimal
participant reduction, stating that Mendoza had an 'equal
participation' in the offense, access to the stolen vehicles -- in
one of which an item that belonged to Mendoza was found -- and
that he 'had the most dangerous weapon of the two.'"). Instead,
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the government addressed "at most one of the Guidelines factors
relevant to the mitigating role determination": the extent of
Walker's participation in the planned criminal activity. Wynn, 37
F.4th at 68 (vacating sentence because district court considered
only a single factor).
Further, although we recognize that Walker focused his
arguments at sentencing on the four-level reduction, the
government never addressed below the possibility that Walker might
qualify as a "minor" participant, even if not a "minimal" one.
Our case law suggests, and the government concedes, that district
courts "faced with a request for a four-level reduction for a
minimal role could reasonably consider, in the course of that
analysis, whether a lesser two-level reduction for a minor role
had been made out." United States v. Olivero, 552 F.3d 34, 40
(1st Cir. 2009); see also De la Cruz-Gutiérrez, 881 F.3d at 225.
So we hesitate to treat the government's arguments as a sufficient
basis for the sentencing court's denial of the lesser reductions
available under section 3B1.2.
In fact, the possibility that the district court relied
on the government's argument heightens the need for clarification
here, given that the government's position below may have suggested
that Walker was ineligible for any reduction based on his integral
role in the conspiracy as "one of the individuals to go into the
house to actually commit the robbery." Integral role, however, is
- 31 -
not the correct legal standard. See U.S.S.G. § 3B1.2 cmt. n.3(C)
(whether a defendant played "an essential or indispensable role in
the criminal activity is not determinative"); see, e.g., United
States v. Sanchez-Villarreal, 857 F.3d 714, 722 (5th Cir. 2017)
(vacating and remanding where district court denied reduction
based solely on defendant's "critical" role in the offense); Diaz,
884 F.3d at 917 ("To the extent the district court's reasoning
reflects reliance on [the defendant's] courier conduct as
dispositive of [his] eligibility for a minor-role reduction, it
was error. Amendment 794 clarified that the performance of an
essential role . . . is not dispositive.").
To the extent that the sentencing court relied instead
on the PSR's rationale for denying a mitigating-role reduction, we
are still not in a position to affirm. As Walker explained at
oral argument before us, the PSR declined to recommend any
reduction on the ground that "Walker was aware of the plan, agreed
to it, and was fully prepared to effectuate the crime but for law
enforcement intervention." But the district court's adoption of
that reasoning would still fail to satisfy the multifactor factual
analysis required by the Guideline.
Third, we cannot confidently conclude that any error in
the sentencing court's application of the mitigating-role
reduction was harmless. We "may only deem [a sentencing] error
harmless 'if, after reviewing the entire record, [we are] sure
- 32 -
that the error did not affect the sentence imposed.'" United
States v. Graham, 976 F.3d 59, 62 (1st Cir. 2020) (quoting United
States v. Alphas, 785 F.3d 775, 780 (1st Cir. 2015)). Thus,
"resentencing is required if the error either affected or arguably
affected the sentence." Id. (quoting Alphas, 785 F.3d at 780).
In conducting harmless error review of a sentence, we
look not only to whether the error affected the Guidelines
calculation, but also "seek to distinguish between a judge's
reliance on facts in selecting an appropriate sentence and a
judge's reliance on the significance that the Guidelines appear to
assign to those facts." Id. (citing United States v. Goergen, 683
F.3d 1, 4 (1st Cir. 2012)). The district court exercised lenity
here by granting a thirty-six-month sentence -- one month lower
than the bottom of the recommended range of thirty-seven to forty-
six months. Although Walker's thirty-six-month sentence would be
within the Guidelines range of thirty to thirty-seven months if he
received a two-point reduction on remand, we agree with Walker
that this lower Guidelines range could result in a sentence of
less than thirty-six months. Thus, we think any error at least
"arguably affected the sentence," requiring remand. Graham, 976
F.3d at 62 (quoting Alphas, 785 F.3d at 780).
III. CONCLUSION
For these reasons, we VACATE and REMAND for resentencing
consistent with this opinion.
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