________________________
with whom Donald K. Stern, United States Attorney, was on brief,
_______________
for appellee.
_________________________
November 14, 1994
_________________________
of sentencing appeals
that binds
In
this
instance,
Talladino challenges
guideline
defendant-appellant
Anthony
determination of
L.
the
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
BACKGROUND
BACKGROUND
sentencing hearing.
expertise
manufacturing and
including
into
distributing a
methamphetamine,
gains
by
illicitly
kaleidoscopic array
of drugs,
psilocybin,
PHP
(1-(1-
phenylcyclohexyl)-pyrrolidine),
and
(methylenedioxymethamphetamine).1
MDMA
Talladino
plied
this
venture apparently
1989, Talladino
needed to
and
took
set up
began manufacturing
shop.
PHP at
sometime
he (Talladino) had
wing when,
In
in
the skills
1990, Talladino
locations in Boston
and Dorchester.
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
department caught
ring.
The
police
wind of
arrested
rodomontade seemed
to
be
a suspected
Talladino
and
PCP distribution
Miller.
Once
the
Talladino."
with
officers
that
McDonnell
The Commonwealth
distributing
PCP,
but,
was
peddling
PCP
"for
tests
proved
the
____________________
Drug
Enforcement
investigation.
residence in
PHP.
a
At that
to sour in late
Administration
(DEA)
Quincy, Massachusetts, as a
an
using Hanley's
pseudonym,
had
ordered
manufacture
PCP.
unwittingly
led
the lawmen
a Quincy
police
morning,
found inside a
substance
chemical
frequently
used
to
lodgings.
officer stopped
Early
Talladino's car
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
emboldened
by
his
with
previous
PHP.
again dismissed
charges against him, but the DEA's interest did not wane.
the
he
proposed to
latter's
Dailey, a
precursor
co-worker,
failed.
manufacture
Talladino
The
entrepreneurs
methamphetamine
noticed
shipment of
that
until
Dailey's
phenylacetic acid.
use the
chemical to methamphetamine).
reaction
that they
In
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
succeeded in
pure
Dailey pilfered
with
manufacturing roughly
By June,
140 grams
of
continued to
enlarge
his product
and methamphetamine,
line.
Presumably
ready to buy
large quantities
of the
drug known
as Ecstasy,
focused his
obtained
quantity
of
safrole (a
Talladino next
direction.
precursor
Talladino
chemical),
and
the
same
time
frame,
Talladino
took petri
place of legitimate
lime and peat moss.
well
on the
way
and
Talladino ordered
necessary paraphernalia
to fruition
when
Hanley
Hanley to
to produce psilocybin
a
federal grand
jury
indicted Talladino.2
____________________
DEA
1993.
Both
agents arrested
men were
detained.
Talladino and
Immediately
Hanley on
June 3,
prior to
Hanley's
manufacture
at
a location
the
two men
Hanley
had
followed
used
in
Charlestown,
Massachusetts.
Talladino's
instructions.
alert Dailey to the dire nature of the situation and suggest that
he take
cautionary measures.
As
a result of the
warning call,
indictment in which
convened
Dailey testified.
jury testimony,
this
named.
hearing on
The
January
20,
district
1994.4
objections thereto.
of
disposition
he was
appeal:
subjected to a four-level
lament
that
he
should not
be
____________________
(as opposed
overruled appellant's
acceptance-of-responsibility
calculated the
II.
II.
role-in-the-
objections.
It
then
that
the lower
court erred
in
the commission
by inspecting the
legal
to
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
____
is
was an
Generally
less
speaking,
kindly
"organizer" or
U.S.S.G.
organizer or
"leader."
3B1.1(a).
than
In
the
four levels
leader of
a criminal
Id.
___
7
It
is evident
from this
language that
the guideline
enterprise-specific; the
activity
involved five
extensive.
that
the
court must
or more
participants, or
manner.
find that
See,
___
We have
the criminal
was otherwise
as an organizer
One
or leader of
guideline in this
F.3d 1, 4
(1st
Cir. 1993);
Dietz,
_____
950
F.2d
at
52;
United States
______________
v.
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.
be a leader or
organizer."
907 F.2d 7, 9 (1st Cir. 1990) (per curiam) (citation and internal
quotation marks omitted).
views demand
914
F.2d
judgments
of law.
"considerable respect."
330, 333
(1st Cir.
United States
_____________
1990).
As
v. Ocasio,
______
consequence, such
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.
_____
eschews
any
extensiveness (and,
large number
appellant
challenge
of persons
We
court's
the record
participating therein).
Instead,
the
in all events,
the enterprise.
to
viewed, verify
and
his coconspirators
venture.
This
were equal
self-deprecation
pristine
decisions
the
clarity that
manufacturing
partners embarked
cannot
upon a
withstand
the
made
the key
strategic
would take
place,
at
what locations,
what
processes would
be
manufactured.
Where, as
here, one
individual in
a multi-
decisions
on
behalf
of
the
questions
group
(unilaterally
the sort
answering
of characteristics
that
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
Hanley to
obtain peat
production of
and
machinery
moss and
psilocybin;
from
his
lime needed
directing Dailey
place
assistant).
of
for the
to
filch
employment,
and
and we do not
appellant's
arrest
hierarchy.
destroy
think that it is
While
confirm
in jail,
the events
his
place
in
the
he instructed Hanley
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
district
The
evidence
the shadow of
a doubt
court's finding
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
his training in
He argues
chemistry to his
participation
deciding
in
upon
rather than
the
district
court
erred
in
enhancement
(four levels)
(two levels).
3B1.3 (providing in
the
a role-in-the-offense
a lesser
See U.S.S.G.
___
offense,
a manner
commission or concealment of
the offense").
skill
Although
provision
double
counting
circumstances under
Lilly,
_____
chose
may
aggravating
be
role adjustment.
permissible
in
certain
United States v.
_____________
section
3B1.3
adjustment
under
and the
the district
respect to
specifically
"may not
3B1.1
increase
it in
(Aggravating Role)."
afoul
this
prohibition;
skill
U.S.S.G.
3B1.3.
Therefore,
have piled a
four-level
unleashed
We discern no error.
11
special
adjustment
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
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,
________
opposite direction.
equally
not require a
U.S.S.G.
facts that
different adjustment
applicable adjustments.
897
of the
provisions, however,
sentencing
two or
applicable,
only one
but
See generally
___ _________
more guideline
the
guidelines
such provision,
use the
instance,
the
record
solidly
supports
the
and
no provision
in the
resort to a
guidelines suggests
that a
in
Thus,
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
in section
settling for
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
Section
"(1) timely
involvement
in
the
offense;
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
3C1.1, provides
for
for a
obstructing
or
____________________
yet
professes
defendant
to accept
faces an
responsibility.
uphill, but
In
not necessarily
such
cases, the
an impossible,
climb.
requiring
an
enhancement
under
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
two-level
court
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
adjustments under
the
obstruction of
Then,
section
Id.
___
In
had
a decision.7
Cf.
___
The
source of
2 Kings
_____
appeal,
to deny
the
Talladino
assails
extra one-level
the
district
court's
reduction under
section
____________________
3E1.1(b).
that
he
qualified
reduction,
for
U.S.S.G.
the
basic acceptance-of-responsibility
3E1.1(a),
the court
had no
discretion to
We
that
deal first
applies to
importunes us
this
with the
aspect
to review the
of
standard of
the
case.
appellate review
The
government
clear error,
is
normally
fact-dominated
issue,
and
the
be shown to be clearly
Morillo, 8
_______
will not be
erroneous.
overturned unless it
United States v.
_____________
including
Nonetheless, questions
When
intertwined
a sentencing
with
an
court's factfinding
allegedly
sentencing guidelines,
improper
(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
(b) of
presented on appeal
section 3E1.1.8
Instead, this
case poses
the
in
U.S.S.G.
3E1.1(b),
without
one-level reduction
considering
the
timeliness
of appellant's
acceptance
of
responsibility.
We,
matter of
common
sense,
the district
court's
less
than
the
maximum
three-level
acceptance
of responsibility is attractive.
reduction
for
As a matter of law,
otherwise,
reduction
subsection
to
judicial
to
obstruction
of justice.
(b) is
absolute on
its face.
due
reduction
power
to
withhold
the
The
It
language
simply does
so
long
as
the
one-level
of
not
the extra
subsection's
stated
The
discretion
government
to
argues
withhold the
that
one-level
the
district
reduction,
court's
even when
in, or
district
court
a necessary
to find
concomitant of,
that the
case
the need
for the
is "extraordinary"
justice and
all access
wholly unable to
to section
3E1.1.
cite to anything
Withal, the
that otherwise
government is
in the guidelines
or in
the
and
an individual
judge's
concepts of
justice.
Cf.
___
United
______
1990) (explaining
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
muster
in support
United States v.
_____________
curiam),
Cir. 1993).
the best
of
this
Booth, 996
_____
find neither
case
particularly helpful.
In
Booth the
_____
defendant, prior
to his
indictment for
sexual exploitation
of children,
district court
to the FBI.
employed
both a
to keep
In constructing the
GSR,
two-level enhancement
for
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
reduction
Second Circuit
squarely address
argued that
under
section
the
district
upheld
the
only relevant
to the
quality of his
is the
issue that
he was entitled
in section 3E1.1(b).
rather different
one-level
did not
Booth
The
inquiry under
Booth, that
subsection (b).
Tello,
_____
the
defendant
obstructed
justice
after
obstruction
decrease
of
for
justice
and
acceptance
granted
offsetting
of responsibility.
two-level
Despite
Tello's
him the
once
an
affirmative
determination
of
declaring
acceptance
of
F.3d
at 1124.
court's
as
The
reliance
reason
for
court
on the
denying
explicitly rejected
defendant's
the
obstruction
additional
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
the
holding in
possibility that
relevant
to
reliance on the
section 3E1.1(b).
in
Tello, footnote
_____
a defendant's
the
dictum contained
merely leaves
open the
obstruction of justice
might be
_____
sentencing court's
22
timeliness
In
inquiry
under
other words, if
timeliness
under section
3E1.1(b),
then
a denial
defendant's obstruction
section 3E1.1(b)
of justice
timeliness inquiry, as
has no
of
the
If, however,
bearing on
the
in Tello,
_____
19
more
convincing
than
the
holding in Tello to be
_____
government's
section 3E1.1,
discretion
on
as the
reduction so long as
And there
arguing
the district
court to
deny the
The text
not confer
extra one-level
is no principled
that
sanguine
obstruction
basis, linguistic or
of
justice
affects
otherwise, for
this
baseline
Yet,
there
adjustments under
both
will
be
See U.S.S.G.
___
"extraordinary
3C1.1 and
3C1.1, comment.
cases
in
Id.
___
which
The
use
of
the permissive
district
court,
word "may"
having
found
makes
obstruction
case
Application Note
3E1.1 comes
is
4, the
it pellucid
justice,
has
"extraordinary" within
bypass option
of
that the
the
meaning
is blocked off,
of
section
is bound to
____________________
the
to be made for
acceptance of
Those terms do
responsibility
guideline
came to
by
be
is
undergirding the
purpose
necessary
offshoot
sentencing guidelines.
of
the
policy
and
concerns
situated offenders.
38, 51, 161
3234,
See S. Rep.
___
(1984), reprinted in
_________ __
3344.
"Ensuring
judicial discretion."
(1st
Cir. 1994).
2d Sess.
uniformity inevitably
3221,
means restricting
provision
with
scope
the
provisions
and
would
meaning
undermine
guidelines cannot
sense of inequity, no
"be
of
the
carefully
principle
must apply
the
words
a judge's
chosen by
guideline
uniformity that
the
[the Commission],
personal
judge may
courts'
as "interpreters of
not as
policymakers or
Viewed
that, in
section
against this
denying appellant
3E1.1(b)
whether the
defendant is entitled
court can
only
answer this
it is
then
defendant qualifies
on
the timeliness
other
query
in the
justice.
affirmative
the second
If,
court vaults
defendant the
responsibility.
At
to
question,
inquiring whether
by
award the
of his
reduction for
his obstruction of
obliged to
dilemma, a court
situation is "extraordinary."
height of
the
standard two-level
one side
the opinion
reduction under
to receive any
___
are of
backdrop, we
reduction based
of responsibility.10
the
In
resolved in the
____________________
may
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
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
own involvement in
we
from
must
court
opinion,
not
the
vacate
a
fresh
whether
additional one-level
CONCLUSION
CONCLUSION
We
need go
no
further.
For
the reasons
discussed
It is so ordered.
It is so ordered.
________________
23