United States Court of Appeals
For the First Circuit
No. 22-1157
UNITED STATES OF AMERICA,
Appellee,
v.
HENRI SALVADOR-GUTIERREZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Barron, Chief Judge,
Howard, Kayatta, Gelpí, Montecalvo, Rikelman, Circuit Judges.
Stephen Super, with whom George F. Gormley and George F.
Gormley, P.C., were on brief, for appellant.
Mark T. Quinlivan, Assistant U.S. Attorney, with whom Joshua
S. Levy, Acting U.S. Attorney, was on brief, for appellee.
February 13, 2025
Opinion En Banc
BARRON, Chief Judge. Section 3B1.4 of the United States
Sentencing Guidelines ("Guidelines")1 provides that "[i]f the
defendant used or attempted to use a person less than eighteen
years of age to commit the offense or assist in avoiding detection
of, or apprehension for, the offense, increase by 2 levels" the
defendant's offense level. U.S.S.G. § 3B1.4. A panel of this
Court held in United States v. Patrick, 248 F.3d 11 (1st Cir.
2001), that the application of § 3B1.4's two-level upward
adjustment is not limited to when the defendant, by an affirmative
act, personally used or attempted to use a minor to commit the
offense or assist in avoiding detection of, or apprehension for,
the offense. The panel held that, in the case of a conspiracy
offense, the adjustment also applies when it was merely reasonably
foreseeable that other members of the conspiracy would use a minor
within the scope of, and in furtherance of, that conspiracy. Id.
at 27-28.
The panel relied for this ruling on the guideline that
defines the "[r]elevant [c]onduct" for which a defendant, as a
general matter, is accountable in sentencing. See U.S.S.G.
§ 1B1.3; Patrick, 248 F.3d at 28. This guideline provides in
1 All references are to the 2021 edition of the Guidelines,
which was the edition in effect when appellant was sentenced. See
United States v. Douglas, 644 F.3d 39, 41 (1st Cir. 2011) (citing
U.S.S.G. § 1B1.11(a)). No amendments have been made to § 3B1.4
since.
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pertinent part that "[u]nless otherwise specified"
adjustments -- such as the adjustment set forth in
§ 3B1.4 -- "shall be determined on the basis of the following":
(1)(A) all acts and omissions committed,
aided, abetted, counseled, commanded,
induced, procured, or willfully caused by the
defendant; and
(B) in the case of a jointly undertaken
criminal activity . . . all acts and omissions
of others that were --
(i) within the scope of the jointly
undertaken criminal activity,
(ii) in furtherance of that criminal
activity, and
(iii) reasonably foreseeable in
connection with that criminal activity;
that occurred during the commission of the
offense of conviction, in preparation for that
offense, or in the course of attempting to
avoid detection or responsibility for that
offense.
U.S.S.G. § 1B1.3(a).
Sitting en banc, we agree with the appellant in this
case, Henri Salvador Gutierrez,2 that Patrick must be overruled,
after considering that precedent anew in the wake of developments
in the Guidelines and the case law since that ruling. Thus, we
hold that, contrary to Patrick, even in the case of a conspiracy
or other offense that involves jointly undertaken criminal
activity, § 3B1.4's upward adjustment applies only when the
defendant, by an affirmative act, personally used or attempted to
2We refer to the appellant as "Salvador" consistent with how
he refers to himself in his briefing to us. See United States v.
Rosa-Borges, 101 F.4th 66, 68 n.1 (1st Cir. 2024).
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use a minor to commit the offense or assist in avoiding detection
of, or apprehension for, the offense. We therefore conclude that,
although the District Court properly applied existing precedent,
Patrick does not provide a basis for applying § 3B1.4's upward
adjustment to Salvador.
We reach this conclusion because, by its own terms, an
adjustment may be determined based on the conduct described in
§ 1B1.3 only if the Guidelines do not "otherwise specif[y]," and
we agree with Salvador that § 3B1.4 "specifie[s]" that its upward
adjustment may not be determined based on the conduct described in
§ 1B1.3(a)(1)(B). We nonetheless affirm Salvador's life sentence
based on the sentencing judge's alternative determination that
§ 3B1.4's upward adjustment applies to Salvador because, by an
affirmative act, he personally used a minor to commit the offense.
I.
A.
In October 2019, a federal grand jury in the District of
Massachusetts returned a first superseding indictment against
Salvador and five co-defendants. That indictment charged Salvador
and the five other defendants with violating 18 U.S.C. § 1962(d),
by conspiring to violate the Racketeering Influenced Corrupt
Organization Act (RICO).
Section 1962(d) makes it unlawful to "conspire to
violate any of the [substantive RICO] provisions," including by
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conspiring to "conduct or participate . . . in the conduct" of an
enterprise's affairs "through a pattern of racketeering activity."
18 U.S.C. § 1962(d), (c). The first superseding indictment
identified the relevant "enterprise" as MS-13,3 which the
indictment alleged "is one of the largest criminal organizations
in the United States" and is "organized in Massachusetts and
elsewhere in the form of so-called 'cliques,'" including the Sykos
clique.
On May 20, 2021, the government filed a superseding
information against Salvador. It charged him with one count of
RICO conspiracy in violation of 18 U.S.C. § 1962(d). The
superseding information alleged that Salvador, as "a person
employed by and associated with MS-13," knowingly conspired "to
conduct and participate . . . in the conduct of the affairs of the
MS-13 enterprise through a pattern of racketeering activity."
RICO defines "racketeering activity" to include, among
other things, murder, id. § 1961(1)(A), and also defines a "pattern
of racketeering activity" as "at least two acts of racketeering
activity," id. § 1961(5). The superseding information identified
the "means and methods" of the alleged RICO conspiracy as including
two murders in which Salvador had allegedly participated: the
3La Mara Salvatrucha, also known as MS-13, "is a
transnational criminal organization based in El Salvador." United
States v. Sandoval, 6 F.4th 63, 73 (1st Cir. 2021).
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murder of Luis Orellano Ruano on or about December 24, 2016, and
the murder of Herson Rivas on or about July 30, 2018.
B.
On June 24, 2021, Salvador pleaded guilty to the
superseding information's one count of RICO conspiracy. He
admitted in entering his plea that he had participated in the
murders of both Ruano and Rivas.
The United States Probation Office ("Probation")
prepared a presentence investigation report ("PSR"). Because the
Ruano and Rivas murders were predicate racketeering acts for
Salvador's RICO conspiracy conviction, the PSR determined
Salvador's base offense level by relying on the base offense level
for murder. See U.S.S.G. § 2E1.1(a)(2) & cmts. 1-2.
The PSR assigned Salvador an offense level of 43 for
each murder. See id. § 2A1.1. Pursuant to § 3B1.4, the PSR then
adjusted the base offense level assigned to the Rivas murder two
levels upward on the ground that Salvador had used a minor to
commit that murder. Accounting for both murders, the PSR
calculated a combined offense level for Salvador of 47. See id.
§ 3D1.4. The PSR reduced the offense level by three levels,
however, pursuant to § 3E1.1(a), based on Salvador's "acceptance
of responsibility," and § 3E1.1(b), based on Salvador "timely
notifying authorities of his intention to enter a [guilty] plea."
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This reduction resulted in a total offense level for Salvador of
44.
The PSR went on to treat the total offense level of 44
as a total offense level of 43. See id. ch. 5, pt. A, cmt. 2 ("An
offense level of more than 43 is to be treated as an offense level
of 43."). The PSR explained that this total offense level, when
combined with Salvador's criminal-history category, resulted in a
Guidelines sentencing range for him of life imprisonment.
Salvador objected, among other things, to the PSR's
recommendation that he was subject to § 3B1.4's two-level upward
adjustment. He contended that he did not "use" a minor in the
Rivas murder because he did not direct or lead a minor in
committing the offense.
Probation responded that, under Patrick, in a case
involving a conspiracy offense, § 3B1.4's upward adjustment may be
determined based on a defendant reasonably foreseeing a
co-conspirator's use of a minor in furtherance of the conspiracy.
Probation contended that "it was reasonably foreseeable to
[Salvador] that his co-defendants . . . would recruit juveniles to
further [the] gang['s] activities." Probation thus argued that,
under Patrick, the use-of-a-minor adjustment was applicable to
Salvador. Probation also asserted that § 3B1.4's upward
adjustment applied to Salvador because he was "an older and
higher-ranking member of MS-13" and that he "likely had influence
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over [] younger, impressionable juveniles, such that he encouraged
and used them in his criminal activities, including the Rivas
murder."
Salvador and the government filed sentencing memoranda
with the District Court. Salvador's memorandum repeated his
argument that § 3B1.4's upward adjustment did not apply to him.
The memorandum contended that his total offense level should
therefore be 42, not 43.
The memorandum noted that, given Salvador's criminal
history, an offense level of 42 would yield a Guidelines sentencing
range of 360 months to life imprisonment rather than life
imprisonment. The memorandum asked the District Court to impose
a sentence of 400 months.
The government argued in its sentencing memorandum that
the "[G]uideline[s] sentencing range for [Salvador's] role in the
MS-13 racketeering conspiracy is life in prison." The memorandum
also argued that a life sentence was appropriate under 18 U.S.C.
§ 3553(a)'s sentencing factors because Salvador "brutally killed
two teenagers," "showed little remorse for his crimes," and
exhibited "deplorable conduct while in pretrial custody."
The government separately filed a response to Salvador's
sentencing memorandum. The response relied on Patrick to argue
that, in the case of a conspiracy offense, "a defendant does not
need to have personally recruited or used minors to help facilitate
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[the crime of conviction]" in order to be subject to § 3B1.4's
adjustment, if such use of a minor by a co-conspirator was
"reasonably foreseeable." The response further asserted that "an
MS-13 homeboy like Salvador knew that the gang would use a minor
to further the gang's activities" and that Salvador had "personally
associated with multiple minors as part of the charged racketeering
conspiracy," noting that, "[f]or example, the [PSR] discusses how
the gang recruited and attempted to use CW-19, a juvenile (who was
punished by Salvador and other [MS-13] members for his
non-commitment to the gang)."
Salvador thereafter filed a brief with the District
Court. He argued in the brief that Patrick was wrongly decided
and that, even in the case of a conspiracy offense, for § 3B1.4's
upward adjustment to apply to him, he must have, by an affirmative
act, personally used the minor in committing the offense.
At sentencing, the District Court concluded that it was
bound by Patrick. The District Court further concluded that "the
Sykos clique of MS-13, which included [Salvador], had as a regular
part of its mode of operating recruiting and training individuals
under 18 to engage in violent crimes in furtherance of the RICO
conspiracy." Thus, it determined that because Salvador "knew this
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and foresaw that minors would be used in the ongoing commission of
that crime," § 3B1.4's upward adjustment applied to him.4
In an alternative ruling, the District Court determined
that § 3B1.4's upward adjustment applied to Salvador on the
independent ground that he had "personally" used a minor to commit
the offense. The basis for this determination was, in part, the
finding that Salvador told a minor "to '[m]ove over' during the
Rivas murder," as the District Court determined that this statement
was "a form of directing a minor" in the murder. The District
Court then also found that Salvador had personally used a minor to
commit the offense because he personally participated in the
recruitment and training of a minor by (1) talking to a minor about
"MS-13's mode of operating," (2) showing a minor "a video of MS-13
activity which was essentially a recruitment video," and
(3) beating a minor, along with other MS-13 members, as "part of
[MS-13]'s training, teaching [that minor] the rules."
The District Court stated several times that the
application of § 3B1.4's upward adjustment to Salvador and his co-
defendants would not "make a difference" to the sentences imposed,
4The District Court also concluded, for much the same
reasons, that § 3B1.4's upward adjustment applied to Salvador's
co-defendants, whose sentences were at issue in the same hearing.
See United States v. Salvador-Gutierrez, 79 F.4th 198, 202 (1st
Cir. 2023), withdrawn, reh'g granted,
2024 WL 424446 (1st Cir.
Feb. 1, 2024). This appeal, however, concerns only the application
of § 3B1.4 to Salvador, and so we confine our discussion to those
findings that concerned his sentence.
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which would be driven by an assessment of the § 3553(a) sentencing
factors. But the District Court "reserve[d]" the issue and, before
the final day of sentencing, issued an order that acknowledged the
government's position that the asserted use of a minor "should
make a difference" to the sentences imposed and directed the
parties to be prepared to address "whether the use of a minor as
part of the RICO conspiracy to which each defendant pled guilty is
material to what sentence is sufficient and no more than
necessary . . . in order to serve the statutory purposes of
sentencing" (citing 18 U.S.C. § 3553(a)). Moreover, on the final
day of sentencing, the District Court confirmed that the
application of § 3B1.4's adjustment to Salvador resulted in his
Guidelines sentencing range being life imprisonment. In addition,
when Salvador at that point again objected to the application of
§ 3B1.4's upward adjustment to him, the District Court responded,
"That's fine. I don't know what the First Circuit would say if
you appeal, so that's prudent" (emphasis added).
After hearing argument and Salvador's allocution, the
District Court imposed a sentence of life imprisonment on Salvador.
The District Court expressly considered the § 3553(a) sentencing
factors and recognized the hardships of Salvador's upbringing in
El Salvador. The District Court concluded, however, that Salvador
was an "enthusiastic" member of MS-13, had willingly joined the
Sykos clique, and had participated in two murders. The District
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Court also explained that it had "searched to see whether there
[was] really anything in view of all the factors that weigh in
favor of a life sentence that weighed sufficiently in favor of a
lower sentence, and [it] couldn't find them."
C.
Salvador appealed his sentence. He did so by arguing
that Patrick was wrongly decided and that, in consequence, the
District Court erred in applying § 3B1.4's upward adjustment to
him based on Patrick.
The government contended in response that Patrick was
right. In addition, the government argued that Salvador's
sentencing challenge "alternatively fails because the district
court found that he directed [a minor] during Rivas's murder when
he told [the minor] to '[m]ove over.'" "Hence," the government
contended, "even if contra Patrick, § 3B1.4 were interpreted to
require that a defendant personally use or attempt to use a minor
in the course of committing the offense of conviction, as Salvador
urges here, that condition was satisfied in this case."
In his reply brief, Salvador again argued that Patrick
was wrong. But he also challenged, for the first time on appeal,
the District Court's alternative conclusion that Salvador
personally used a minor to commit the offense when he told a minor
to "move over" during the commission of the Rivas murder.
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A panel of this Court affirmed. United States v.
Salvador-Gutierrez, 79 F.4th 198 (1st Cir. 2023), withdrawn, reh'g
granted,
2024 WL 424446 (1st Cir. Feb. 1, 2024). The panel
explained that, under the law-of-the-circuit doctrine, it was
bound by Patrick. The panel went on to explain that, as a result,
§ 3B1.4's upward adjustment could be applied to Salvador based on
the reasonably foreseeable use of a minor by one of Salvador's
co-conspirators that was both within the scope of, and in
furtherance of, the conspiracy. Id. at 204-05 (citing Nevor v.
Moneypenny Holdings, LLC,
842 F.3d 113, 125 (1st Cir. 2016)). The
panel also rejected Salvador's challenge to the application of the
adjustment based on his "move over" statement, because the panel
determined that Salvador waived that ground for challenge by
raising it for the first time in his reply brief.5
Id. at 205;
see Sparkle Hill, Inc. v. Interstate Mat Corp.,
788 F.3d 25, 29
(1st Cir. 2015) ("Our precedent is clear: we do not consider
arguments for reversing a decision of a district court when the
argument is not raised in a party's opening brief.").
D.
Following the panel's decision, Salvador filed a
petition for rehearing en banc. The petition requested that we
5 The government did not advance any arguments to the panel
regarding Salvador's personal use of a minor beyond the "move over"
statement.
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reconsider Patrick and vacate Salvador's sentence due to what
Salvador contended was the erroneous application of § 3B1.4's
upward adjustment to him. We granted the petition, vacated the
panel's judgment, requested supplemental briefing, and heard oral
argument.
II.
We review a sentencing court's findings of fact for clear
error. United States v. Misla-Aldarondo, 478 F.3d 52, 70 (1st
Cir. 2007); United States v. Dixon,
449 F.3d 194, 200-01 (1st Cir.
2006). We review de novo questions of law involved in sentencing
determinations. United States v. Pho,
433 F.3d 53, 60 (1st Cir.
2006). The proper interpretation of a guideline is a question of
law. United States v. Hercules,
947 F.3d 3, 7 (1st Cir. 2020).
III.
Salvador does not challenge the District Court's factual
finding that it was reasonably foreseeable that one of his
co-conspirators would use a minor within the scope of, and in
furtherance of, the conspiracy. Thus, if Patrick remains good
law, then we would be required to affirm Salvador's sentence based
on the District Court's Patrick-based ground for applying
§ 3B1.4's upward adjustment to Salvador. In that event, moreover,
we would not need to address the various record-based challenges
that Salvador makes to the District Court's alternative, personal-
use-based ground for subjecting him to § 3B1.4's upward
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adjustment. Accordingly, we begin by addressing Salvador's
contention that Patrick was wrongly decided and so must be
overruled.6
This contention implicates both § 3B1.4 itself and, as
noted above, the additional guideline that Patrick relied on:
§ 1B1.3, titled "Relevant Conduct (Factors that Determine the
Guideline Range)." See 248 F.3d at 28. We therefore need to
describe both guidelines in greater detail before we assess the
parties' arguments about how best to construe those guidelines.
A.
Section 1B1.3 appears in Part B of Chapter One of the
Guidelines, which sets forth "[g]eneral [a]pplication
[p]rinciples." Id. ch. 1, pt. B. The guideline lays out one such
set of principles by providing, in pertinent part:
6 We agree with Salvador that, insofar as there was a
miscalculation of his Guidelines sentencing range by the District
Court due to its application of § 3B1.4's upward adjustment under
Patrick, the miscalculation may not be deemed harmless on the
ground that the District Court made clear that the same sentence
would have been imposed regardless of the applicable Guidelines
sentencing range. After first indicating that the adjustment would
not impact Salvador's sentence, the District Court instructed the
parties to be prepared to address whether the use of a minor should
"make a difference." Then, before imposing the sentence, the
District Court stated that it was "prudent" for Salvador to object
to the application of § 3B1.4's upward adjustment so that he could
preserve a challenge to its application on appeal. As a result,
we conclude that the District Court did not "make[] clear that it
would have entered the same sentence regardless of the
[g]uideline." United States v. Ouellette, 985 F.3d 107, 110 (1st
Cir. 2021).
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(a) . . . Unless otherwise specified, (i) the
base offense level where the guideline
specifies more than one base offense level,
(ii) specific offense characteristics and
(iii) cross references in Chapter Two, and
(iv) adjustments in Chapter Three, shall be
determined on the basis of the following:
(1)(A) all acts and omissions committed,
aided, abetted, counseled, commanded,
induced, procured, or willfully caused by
the defendant; and
(B) in the case of a jointly undertaken
criminal activity (a criminal plan,
scheme, endeavor, or enterprise
undertaken by the defendant in concert
with others, whether or not charged as a
conspiracy), all acts and omissions of
others that were --
(i) within the scope of the jointly
undertaken criminal activity,
(ii) in furtherance of that criminal
activity, and
(iii) reasonably foreseeable in
connection with that criminal
activity;
that occurred during the commission of the
offense of conviction, in preparation for that
offense, or in the course of attempting to
avoid detection or responsibility for that
offense . . . .
Id. § 1B1.3(a).
Section 1B1.3 expressly provides that its instructions
regarding "[r]elevant [c]onduct" do not apply if "otherwise
specified." Id. Consistent with this proviso, the commentary to
§ 1B1.3 explains that this guideline only "establishes a rule of
construction, by specifying, in the absence of more explicit
instructions in the context of a specific guideline, the range of
conduct that is relevant to determining the [defendant's]
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applicable offense level." Id. § 1B1.3 background cmt. (emphasis
added).
Section 1B1.3 sets forth its default rule of
construction through its subsections. Two of them are key for
present purposes -- § 1B1.3(a)(1)(A) and § 1B1.3(a)(1)(B).
Subsection 1B1.3(a)(1)(A), the first of § 1B1.3(a)(1)'s
relevant subsections, borrows from federal law's approach to
assigning criminal aiding-and-abetting liability. That approach
makes a defendant "punishable as a principal" if the defendant
"aids, abets, counsels, commands, induces, [] procures," or
"willfully causes" the commission of an offense. 18 U.S.C. § 2.
Subsection 1B1.3(a)(1)(A) provides that, in general, the
adjustments7 in Chapters Two and Three of the Guidelines are to be
determined based not only on "all acts and omissions" that the
defendant committed but also on those that the defendant "aided,
abetted, counseled, commanded, induced, procured, or willfully
caused." U.S.S.G. § 1B1.3(a)(1)(A).
7 Section 1B1.3 refers to "specific offense
characteristics . . . in Chapter Two" and "adjustments in Chapter
Three." Because the "specific offense characteristics" set forth
in Chapter Two also "adjust" the defendant's offense level,
U.S.S.G. ch. 2, introductory cmt., they are commonly referred
to -- both by the Guidelines and by the courts -- as "adjustments,"
see, e.g., id. § 2A4.1 background cmt.; United States v. Garcia-Torres, 341 F.3d 61, 76 (1st Cir. 2003). We therefore use the
term "adjustments" to refer to both "adjustments" like § 3B1.4 and
"specific offense characteristics" in Chapter Two.
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Subsection 1B1.3(a)(1)(B) augments § 1B1.3(a)(1)(A) by
borrowing from the approach for assigning Pinkerton criminal
liability.8 Under Pinkerton, a defendant is "criminally liable
for the substantive offenses committed by his co-conspirators
during the course of and in furtherance of the conspiracy," United
States v. Hansen, 434 F.3d 92, 103 (1st Cir. 2006), so long as the
offenses could be "reasonably foreseen as a necessary or natural
consequence of the unlawful agreement," Pinkerton v. United
States,
328 U.S. 640, 648 (1946). Subsection 1B1.3(a)(1)(B)
provides that, in general, in the case of "jointly undertaken
criminal activity," the adjustments in Chapters Two and Three of
the Guidelines are also to be determined based on "all acts and
omissions of others" that were "within the scope of the jointly
undertaken criminal activity, [] in furtherance of that criminal
activity, and [] reasonably foreseeable in connection with that
criminal activity." U.S.S.G. § 1B1.3(a)(1)(B).
Even though § 1B1.3 in this way draws from concepts
relevant to assigning criminal liability, the commentary to that
guideline expressly states that "[t]he principles and limits of
sentencing accountability under this guideline are not always the
8 Nonetheless, the two are not coextensive, as Pinkerton
liability is, "in some cases, broader than relevant conduct" under
§ 1B1.3(a)(1)(B). United States v. Rodriguez, 731 F.3d 20, 29
(1st Cir. 2013) (citing United States v. Laboy,
351 F.3d 578, 583
(1st Cir. 2003)).
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same as the principles and limits of criminal liability." Id.
§ 1B1.3 cmt. 1. The commentary explains that, in identifying the
defendant's Guidelines sentencing range, the focus must be on "the
specific acts and omissions" that the Guidelines deem relevant,
not on "whether the defendant is criminally liable for an offense
as a principal, accomplice, or conspirator." Id.; cf. id. ch. 1,
pt. A, 1(4)(a) (explaining that the Guidelines, by taking into
account "real offense elements such as role in the offense,"
diverge from a system of "pure" charge-offense sentencing).
Of course, the Guidelines' instructions include more
than § 1B1.3. They also include the individual guidelines on which
§ 1B1.3 operates. Before we take up the parties' arguments
regarding Patrick, therefore, we also need to say more about the
relevant adjustment-setting guideline here: § 3B1.4.
The guideline appears in Part B of Chapter Three of the
Guidelines -- the chapter that sets forth "adjustments" to the
defendant's offense level applicable to a variety of offenses.
Part B is titled "Role in the Offense." According to the
introductory commentary to Part B, that part specifically sets
forth "adjustments . . . based upon the role the defendant played
in committing the offense." Id. ch. 3, pt. B, introductory cmt.
Also of potential significance, § 3B1.4 uses
"defendant"-specific language in setting forth its upward
adjustment. It does so by providing that "[i]f the defendant used
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or attempted to use a person less than eighteen years of age to
commit the offense or assist in avoiding detection of, or
apprehension for, the offense, increase [the defendant's offense
level] by 2 levels." Id. § 3B1.4 (emphasis added).9
B.
Salvador contends that § 1B1.3(a)(1)(B)'s Pinkerton-
like default rule for assigning sentencing accountability does not
apply to § 3B1.4 because, in accordance with § 1B1.3, § 3B1.4
"specifie[s]" "otherwise." See id. § 1B1.3(a) ("Unless otherwise
specified . . . adjustments in Chapter Three[] shall be determined
on the basis of the following . . . ."). According to Salvador,
§ 3B1.4 "specifie[s]" that its upward adjustment is only to be
applied based on the defendant's personal conduct, and not based
on the merely reasonably foreseeable conduct of others.10 Thus,
Salvador argues that, even with respect to jointly undertaken
criminal activity, he may not be subject to § 3B1.4's upward
adjustment based solely on the reasonably foreseeable use of a
minor by another participant in that activity that is within the
scope of, and in furtherance of, that activity. Rather, Salvador
9 The guideline does have application notes appended to it.
However, they do not refer, even implicitly, to § 1B1.3 either in
whole or in part.
10 Salvador does not contend that the reference in
§ 1B1.3(a)(1)(B) to "others" in and of itself renders that
subsection inapplicable to a guideline focused on "the defendant."
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argues that he may be subject to § 3B1.4's upward adjustment only
if, by an affirmative act, he personally used a minor or attempted
to use a minor to commit the offense, or assist in avoiding
detection of, or apprehension for, the offense.
To make the case that § 3B1.4 "otherwise specifie[s],"
Salvador relies on both the Commission's choice to expressly
designate § 3B1.4 as a "Role in the Offense" guideline and
§ 3B1.4's specific reference to "the defendant" as the person who
must have used or attempted to use a minor. He notes that, based
on these same grounds, other courts have held that § 3B1.4 must be
construed as he contends that it must. See United States v.
Pojilenko, 416 F.3d 243, 248-49 (3d Cir. 2005); United States v.
Acosta,
474 F.3d 999, 1002-03 (7th Cir. 2007).
In assessing Salvador's challenge to his sentence, we
thus must decide whether the Commission "specified" that § 3B1.4's
upward adjustment may be determined based only on a narrower range
of conduct than § 1B1.3 otherwise would require. For the reasons
set forth below, we conclude that the Commission did so
"specif[y]," and thus that Patrick must be overruled, such that
§ 3B1.4's upward adjustment may not be applied to Salvador based
on the reasonably foreseeable use of a minor by another member of
the conspiracy.11
11 In accordance with § 1B1.3(a)(1)(A), we understand
- 20 -
1.
We begin with the meaning of the word "specified" in
§ 1B1.3(a). The Guidelines themselves do not define the word. We
therefore consider its ordinary meaning, while looking for
additional guidance from both our prior cases' assessment of the
word's ordinary meaning and applicable commentary in the
Guidelines, see United States v. Carbajal-Váldez, 874 F.3d 778,
784 (1st Cir. 2017) (explaining that "undefined terms in the
[G]uidelines should customarily be given their plain and ordinary
meaning"); see also United States v. Daniells,
79 F.4th 57, 89
(1st Cir. 2023) ("We interpret the guidelines, as well as the
Sentencing Commission's commentary, including application notes,
'using conventional methods of statutory construction.'" (quoting
United States v. Damon, 595 F.3d 395, 400 n.3 (1st Cir. 2010))),
insofar as that commentary is not inconsistent with the text of
§ 3B1.4's upward adjustment to apply not only when the use of the
minor "to commit the offense or assist in avoiding detection of,
or apprehension for, the offense," U.S.S.G. § 3B1.4, was
"committed" by the defendant, but also when the defendant "aided,
abetted, counseled, commanded, induced, procured, or willfully
caused" such use, id. § 1B1.3(a)(1)(A). Salvador does not argue
otherwise, and we note that this understanding accords with how
the application notes to other guidelines use the words "the
defendant." See, e.g., id. § 3B1.5 cmt. 2 ("[T]he term
'defendant' . . . limits the accountability of the defendant to
the defendant's own conduct and conduct that the defendant aided
or abetted, counseled, commanded, induced, procured, or willfully
caused.").
- 21 -
the guideline itself, see Stinson v. United States, 508 U.S. 36,
42-43 (1993).
As a matter of ordinary meaning, "specify" means "to
state explicitly." Webster's II New Riverside Univ. Dictionary
1116 (1988); see also Kucana v. Holder, 558 U.S. 233, 243 n.10
(2010) ("'[S]pecify' means 'to name or state explicitly or in
detail[.]'" (quoting Webster's New Collegiate Dictionary 1116
(1974))); Bernardo ex rel. M&K Eng'g, Inc. v. Johnson, 814 F.3d
481, 486 (1st Cir. 2016) (citing Kucana,
558 U.S. at 243 n.10).
We have made clear that a provision of law may "specify" -- and
thus "state explicitly" -- without including any express reference
to the thing that must be specified. See Bernardo,
814 F.3d at
486 (concluding, in the context of a statute that requires
authority to have been "specified" to be discretionary, that, to
the extent petitioner's argument "rest[s] on a notion that
'specified' means that Congress must use the word 'discretion' for
a decision to be discretionary," that position has been rejected
by the Supreme Court (citing Kucana,
558 U.S. at 247 n.13)); cf.
Spencer Enters., Inc. v. United States,
345 F.3d 683, 690 (9th
Cir. 2003) (observing, based on the fact that the Attorney General
"may grant asylum," that such is "[a]nother example of the type of
decision[] whose authority is specified by statute to be entirely
discretionary" (citation omitted)).
- 22 -
So, as a matter of ordinary meaning, to "specif[y]"
"otherwise" with respect to any or all the conduct described in
§ 1B1.3, an adjustment-setting guideline need not mention § 1B1.3
by name or quote from its text. To the contrary, the Guidelines
may "specif[y]" "otherwise" through language that is best read as
an explicit instruction to adjust the defendant's offense level
based on a different (or narrower) range of conduct than the
conduct specified in § 1B1.3. See U.S.S.G. § 1B1.3 background
cmt. (characterizing § 1B1.3(a) as "establish[ing] a rule of
construction by specifying, in the absence of more explicit
instructions in the context of a specific guideline, the range of
conduct that is relevant to determining the applicable offense
level"); see also, e.g., United States v. Drapeau, 121 F.3d 344,
349 (8th Cir. 1997) (explaining that the use of the term "offense
of conviction" in place of "offense" in U.S.S.G. § 3A1.2(a)
"specifies that only the offense of conviction is to be
considered," rather than the full scope of relevant conduct under
§ 1B1.3).
Against this backdrop, we must determine whether the
Commission made the requisite explicit instruction as to
§ 1B1.3(a)(1)(B)'s application through the designation of § 3B1.4
as a "Role in the Offense" guideline and the express reference in
§ 3B1.4 to "the defendant" as the person who "used" or "attempted
to use" a minor. Because our concern is, in the end, only with
- 23 -
§ 3B1.4, and not with every adjustment-setting guideline that uses
similarly "defendant"-specific language, we first address the
Commission's decision to designate § 3B1.4 as a "Role in the
Offense" guideline, before we then address the import of that
guideline's reference to "the defendant" as the one who used or
attempted to use a minor.
2.
Part B of Chapter Three is titled, "Role in the Offense."
The Commission thereby expressed its intention, as the
accompanying introductory commentary to Part B confirms, that,
unlike other guidelines, each of the "Role in the Offense"
guidelines adjusts the defendant's offense level based
specifically on the defendant's "[r]ole in the [o]ffense" and not
some characteristic of the offense itself. In this regard, the
introductory commentary states that the guidelines contained in
Part B provide adjustments to the defendant's offense level "based
upon the role the defendant played in committing the offense."
Id. ch. 3, pt. B, introductory cmt. (emphasis added). Thus,
whereas § 1B1.3(a)(1)(B)'s default definition of relevant conduct
aggregates and makes relevant all reasonably foreseeable conduct
in furtherance and within the scope of jointly undertaken criminal
activity, the "Role in the Offense" guidelines distinguish among
participants in jointly undertaken criminal activity by providing
- 24 -
for adjustments based on the specific "role" "played" by "the
defendant." Id. ch. 3, pt. B, introductory cmt.
Indeed, consistent with the title and the introductory
commentary, all the "Role in the Offense" guidelines set forth
adjustments using "defendant"-specific language, even though the
Guidelines do not typically use such language in setting forth
adjustments.12 Instead, the Commission generally defines when an
adjustment applies by identifying the conduct that triggers the
adjustment without specifying who must have engaged in that
conduct. For example, adjustment-setting guidelines often provide
that the offense level should be increased so long as "the offense
involved" the adjustment-triggering conduct.13 See, e.g., U.S.S.G.
§ 2A2.1(b)(2) ("If the offense involved the offer or the receipt
of anything of pecuniary value . . . ."); id. § 2G3.1(b)(1)(C)
("If the offense involved distribution to a minor . . . .); id.
§ 3A1.4 ("If the offense . . . involved or was intended to promote,
a federal crime of terrorism . . . ."); cf. Dean v. United States,
12 Even § 3B1.5, which is the final "Role in the Offense"
guideline, provides for an upward adjustment when "the defendant"
uses body armor above what that adjustment would be if the record
showed merely that "the offense involved" the use of body armor.
13 Even in the absence of a reference to "the offense,"
adjustments still typically leave unspecified who must commit the
adjustment-triggering conduct. See, e.g., U.S.S.G. § 2B2.1(b)(4)
("If a dangerous weapon (including a firearm) was
possessed . . . ."); id. § 2A3.2(b)(3) ("If a computer or an
interactive computer service was used . . . ."); id. § 3A1.3 ("If
a victim was physically restrained . . . .").
- 25 -
556 U.S. 568, 572 (2009) (use of the passive voice "focuses on an
event that occurs without respect to a specific actor," and
therefore "reflects 'agnosticism . . . about who does the [act]'"
(quoting Watson v. United States,
552 U.S. 74, 81 (2007))
(alteration in original)).
Thus, in accord with the Commission's own explanation of
the "Role in the Offense" guidelines, § 3B1.4 is not naturally
construed to adjust the defendant's offense level based on the
merely reasonably foreseeable conduct of others rather than the
personal conduct of the defendant. The "role" someone "played" in
committing an offense more naturally refers to what that individual
participant did rather than to what that participant reasonably
foresaw that another participant would do. It thus makes little
sense to say that someone "play[s]" a specified "role" in an
offense involving jointly undertaken criminal activity -- here,
the role of using a minor in committing the offense -- by merely
reasonably foreseeing that others engaged in that joint activity
would play that role. See Acosta, 474 F.3d at 1003 ("Pinkerton
liability makes no sense in the context of the individualized
enhancements set out in [Chapter Three, Part B] of the Guidelines,
which seek to punish the particular behavior of individual members
of a conspiracy.").
This conclusion accords with the text of § 3B1.4 itself,
which instructs us to focus on "the defendant" and that
- 26 -
individual's "use[]" -- or attempted use -- of a minor to commit
the offense. U.S.S.G. § 3B1.4. The ordinary meaning of the word
"defendant" refers to "[o]ne against whom an action is brought."
Webster's II New Riverside Univ. Dictionary 356 (1988); see also
Carbajal-Váldez, 874 F.3d at 784 (giving undefined Guidelines
terms their "ordinary meaning"). The definite article "the" to
identify the person so accused in § 3B1.4 thus supports the
conclusion that the guideline explicitly instructs that the
defendant's offense level is to be increased only if "the
defendant" used or attempted to use a minor in the specified way
and not also, in the case of joint criminal activity, merely
because it was reasonably foreseeable that some other person,
acting within the scope of and in furtherance of that activity,
would use a minor in that way. See U.S. Sugar Corp. v. EPA,
113
F.4th 984, 993 (D.C. Cir. 2024) ("Congress's choice between a
definite and indefinite article matters when determining statutory
meaning."); see also, e.g., Corner Post, Inc. v. Bd. of Governors
of Fed. Rsrv. Sys., 603 U.S. 799, 817-18 (2024) (explaining that
"the plaintiff" refers to "this particular plaintiff").
It is noteworthy in this regard that, unlike the term
"defendant," which the Guidelines do not define, the much more
commonly used "[o]ffense" is explicitly defined in the Guidelines
as "the offense of conviction and all relevant conduct under
§ 1B1.3 (Relevant Conduct) unless a different meaning is specified
- 27 -
or is otherwise clear from the context." Id. § 1B1.1 cmt. 1(I)
(emphasis added). The Commission's choice to deploy the "defendant
used" language in § 3B1.4 is therefore hard to understand if, as
the government maintains, the Commission intended to pick up the
full scope of § 1B1.3 in that guideline. The use of the
Commission's more typical "offense involved" language would have
made that intention perfectly clear.
We do recognize that the default rule that § 1B1.3 sets
forth is modeled, at least in part, on Pinkerton. We recognize,
too, that, in the context of criminal liability, Pinkerton makes
a person accountable for certain reasonably foreseeable conduct of
others even if, as a textual matter, the statute that sets forth
the offense focuses on the individual offender. See, e.g., United
States v. Flecha-Maldonado, 373 F.3d 170, 179 (1st Cir. 2004) ("We
have repeatedly held that under Pinkerton, the defendant does not
need to have carried the gun himself to be liable under
§ 924(c) . . . [because Pinkerton allows him to be] held liable as
if he himself carried or used the firearm." (citations omitted)).
Pinkerton did not purport to interpret the phrase "the
defendant used," however, let alone to interpret those words in a
provision aimed at identifying "the role played" by the defendant
relative to others. In fact, Pinkerton did not purport even to
have any bearing on issues related to sentencing, as opposed to
criminal liability.
- 28 -
Moreover, as we have seen, the commentary to § 1B1.3 is
express in stating that § 1B1.3's function is to assign
accountability in sentencing, not to mimic criminal liability.
U.S.S.G. § 1B1.3 cmt. 1. Nor is anything in § 1B1.3 inconsistent
with that commentary.
We therefore do not see why, in assessing the impact of
the Commission's decision to use the words "the defendant used" in
this expressly designated "Role in the Offense" guideline, we have
any reason to depart from the ordinary meaning of that phrase and
to instead adopt a specialized meaning gleaned inferentially from
Pinkerton. In that regard, we emphasize that § 1B1.3, in adopting
Pinkerton-like accountability at sentencing, establishes what is
only a default rule of construction, precisely because its rule
does not apply if a guideline "otherwise specifie[s]." Id.
§ 1B1.3(a). And nothing in § 1B1.3 instructs us, in assessing
whether such a specification has in fact been made, to depart from
the ordinary meaning of "specif[y]," or, for that matter, from the
ordinary meaning of "the defendant used" or "the role played by
the defendant."
Consistent with this conclusion, we note that the
government concedes that the first two "Role in the Offense"
guidelines -- which provide for adjustments based on whether "the
defendant" played an "aggravating" or "mitigating" role in the
offense, id. §§ 3B1.1, 3B1.2, -- cannot be applied, in
- 29 -
Pinkerton-like fashion, based on "the defendant" having reasonably
foreseen that another member of the conspiracy would play such an
aggravating or mitigating role. The government does contend that
those two "Role in the Offense" guidelines are different from
§ 3B1.4 in a relevant respect because their adjustments are
triggered by "status" rather than conduct. On that basis, the
government asserts that no specification at all is necessary to
leave § 1B1.3(a)(1)(B) without effect as to those two guidelines,
even though a specification is necessary for a conduct-based
guideline like § 3B1.4.
We are not persuaded by the government's asserted ground
for distinguishing these two "Role in the Offense" guidelines from
§ 3B1.4. Section 1B1.3 provides that it governs how "all" Chapter
Three adjustments are to be determined, subject only to the
possibility that the guideline in question "otherwise specifie[s]"
(emphasis added). Section 1B1.3 further provides that "all" such
adjustments are to be determined based on "acts or
omissions" -- which is to say, conduct. We thus fail to see how
the government could be right that § 3B1.1 and § 3B1.2 do not make
a defendant accountable for the conduct § 1B1.3(a)(1)(B) describes
even if they in no way "specif[y]" that this is the case.
Of course, those guidelines do trigger their adjustments
based on what "the defendant was," id. §§ 3B1.1, 3B1.2, rather
than on whom "the defendant used," id. § 3B1.4. But we see no
- 30 -
basis for concluding that the Commission intended, by using the
phrase "the defendant was," to "specif[y]" that a "Role in the
Offense" guideline may not be applied based on another member of
the conspiracy foreseeably playing that role, but not by using the
equally "defendant"-specific phrase "the defendant used."
Reinforcing this conclusion are other signs in the
Guidelines that indicate that the Commission understands "the
defendant used" formulation in § 3B1.4 to have the import that
Salvador contends that it does. For example, the Commission has
amended the language of certain adjustment-setting guidelines to
substitute references to "the defendant" with references to "the
offense." In doing so, the Commission has explained that it has
made the change out of a concern that the use of the term "the
defendant" rather than "the offense" "could be construed as a
limitation on the scope of conduct for which a defendant is
accountable under § 1B1.3." U.S.S.G. amend. 480 (amending
U.S.S.G. §§ 2A5.2, 2A6.1); see also United States v. Zarate-
Suarez, 970 F.3d 1330, 1333 & n.5 (10th Cir. 2020) (Phillips, J.,
concurring in part and dissenting in part) (stating that "[w]hen
a Guideline enhancement requires a showing that the defendant has
done a specific act, the Guidelines have 'otherwise specified'
that § 1B1.3(a)(1)(B) does not apply," and noting that the
Sentencing Commission has stated the same in its training
materials).
- 31 -
In addition, the Commission sometimes refers to conduct
undertaken by "the defendant, or a person for whose conduct the
defendant is accountable under § 1B1.3." Id. § 2D1.1(b)(7)
(emphasis added); see also, e.g., id. §§ 2D1.11(b)(4),
2D1.12(b)(3), 3A1.2(c). If the government were right that the
Commission's use of the term "defendant" in a guideline necessarily
encompasses all the conduct outlined in § 1B1.3, then the phrase
"or a person for whose conduct the defendant is accountable" would
be wholly superfluous.
Finally, the Commission has appended application notes
to various adjustment-setting guidelines that expressly single out
the use of the term "defendant" as a word that "limits" the range
of conduct for which the defendant is accountable.14 See, e.g.,
id. §§ 3B1.5 cmt. 2, 2K2.1 cmt. 13(B), 2K2.6 cmt. 1(A). We
ordinarily do not attribute a different meaning, however, to the
same word when used in different guidelines. See Cochise
Consultancy, Inc. v. United States ex rel. Hunt, 587 U.S. 262, 268
(2019).
All that said, we emphasize that our concern here is
only with § 3B1.4, which is expressly designated a "Role in the
Offense" guideline. Thus, we have no occasion to address the
For the reasons discussed below, we also do not ascribe the
14
significance that the government urges to the absence of a similar
application note to § 3B1.4. See infra Section III.B.3.
- 32 -
import of similarly "defendant"-specific language in setting forth
an adjustment that is not so designated. Rather, we conclude only
that, given the designation of § 3B1.4 as a "Role in the Offense"
guideline and the "defendant"-specific language that it employs,
that guideline has "specified" "otherwise" in accordance with
§ 1B1.3(a).
Nor, we should add, is this a case in which following
the text, and considering that text in context, yields an absurd
result. Even in the case of joint criminal activity, we cannot
say that there are no rational reasons to distinguish, in assigning
sentencing accountability, between personally doing something
wrong and merely reasonably foreseeing that others, acting within
the scope of and in furtherance of that activity, may do that
thing. Indeed, even apart from what the text of each of the "Role
in the Offense" guidelines indicates, we know that, following
Patrick, the Commission made plain its intent that
§ 1B1.3(a)(1)(B)'s default not apply to a newly added "Role in the
Offense" guideline, despite that guideline being just as
conduct-focused as § 3B1.4. See U.S.S.G. § 3B1.5 cmt. 2
("Consistent with § 1B1.3 (Relevant Conduct), the term
'defendant,' for the purposes of subdivision (2)(B), limits the
accountability of the defendant to [the conduct specified in
§ 1B1.3(a)(1)(A)]."). In addition, as we have noted, the
government itself concedes that § 1Bl.3's default rule does not
- 33 -
apply to two other "Role in the Offense" guidelines. See id.
§§ 3B1.1, 3B1.2. Thus, given the Commission's stated purpose of
differentiating between roles within an offense, we cannot say
that it would be absurd for the Commission to have declined to
apply § 3B1.4's conduct-based adjustment to a defendant involved
in joint criminal activity based only on what was reasonably
foreseeable that another participant would do.
Accordingly, contrary to Patrick, we construe § 3B1.4 to
"otherwise" "specif[y]" that § 1B1.3(a)(1)(B) does not apply to
the upward adjustment that it sets forth. We therefore conclude
that § 3B1.4 reaches only those circumstances in which "the
defendant," by some affirmative act, personally used or attempted
to use a minor to commit the offense or assist in avoiding
detection of, or apprehension for, the offense.
3.
Our conclusion regarding § 3B1.4 accords with the
conclusion that other circuits have reached, see Pojilenko, 416
F.3d at 248-49; Acosta,
474 F.3d at 1002-03, although we
acknowledge that some circuits have sided with Patrick, see United
States v. Lewis,
386 F.3d 475, 479-80 (2d Cir. 2004); United States
v. McClain,
252 F.3d 1279, 1287-88 (11th Cir. 2001); United States
v. Voegtlin,
437 F.3d 741, 747 (8th Cir. 2006). Nonetheless,
neither Patrick nor any of those circuits addressed whether the
use of "defendant"-specific language in § 3B1.4, given its
- 34 -
designation as a "Role in the Offense" guideline, "otherwise
specifie[s]" within the meaning of § 1B1.3. Thus, these precedents
do not persuade us to read § 3B1.4 in the expansive manner that
the government favors.
For its part, the government advances some reasons that
Patrick did not give for why § 3B1.4's designation as a "Role in
the Offense" guideline and its "defendant"-specific language fails
to "specif[y]" with respect to § 1B1.3(a)(1)(B). However, we are
not persuaded by those reasons.
To start, the government is right that the Introductory
Commentary to Part B of Chapter Three provides that "[t]he
determination of a defendant's role in the offense is to be made
on the basis of all conduct within the scope of § 1B1.3 (Relevant
Conduct), i.e., all conduct included under § 1B1.3(a)(1)-(4), and
not solely on the basis of elements and acts cited in the count of
conviction." U.S.S.G. ch. 3, pt. B, introductory cmt. We do not
understand this instruction, however, to bear on how the guidelines
contained in this part may, consistent with § 1B1.3(a),
"specif[y]" "otherwise" regarding the range of conduct relevant to
a particular determination. Nor do we understand this instruction
to preclude a "Role in the Offense" guideline from so
specifying -- a conclusion that would be at odds with not only the
"aggravating"- and "mitigating"-role guidelines contained in that
- 35 -
part but also § 1B1.3(a) itself, which plainly allows for such a
specification. See id. §§ 3B1.1, 3B1.2.
Instead, we understand this introductory commentary to
emphasize that, in line with the Guidelines' general approach, the
adjustments contained in the "Role in the Offense" part may take
into account conduct that is not an "element[] [or] act[] cited in
the count of conviction," so long as that conduct is "relevant
conduct" under one of the subsections of § 1B1.3(a)(1)-(4). Id.
ch. 3, pt. B, introductory cmt.; see also id. § 1B1.3 background
cmt. ("Conduct that is not formally charged or is not an element
of the offense of conviction may enter into the determination of
the applicable guideline sentencing range."). Indeed, even when
a defendant is accountable only for their own "role in the
offense," a court may nonetheless need to look more broadly than
the "elements and acts cited in the count of conviction," id.
ch. 3, pt. B, introductory cmt., to identify the "offense" in
question, and thereby the role played by the defendant in that
offense.15 We therefore see no reason to conclude that this
15The Commission announced its intention to amend the
introductory commentary to add the sentence in question in May
1990, see 55 Fed. Reg. 19202 (May 8, 1990), following decisions
from multiple circuits concluding that the aggravating and
mitigating role adjustments could only be applied by looking to
the defendant's role in the offense of conviction, and not the
role the defendant played in related criminal activity, see United
States v. Williams,
891 F.2d 921, 925-26 (D.C. Cir. 1989); United
States v. Williams,
879 F.2d 454, 458 (8th Cir. 1989); United
- 36 -
sentence of the introductory commentary bears on the precise
question at hand, which concerns whether § 3B1.4 has "otherwise
specified" that its adjustment applies only when "the defendant"
personally used or attempted to use a minor and not merely when it
was reasonably foreseeable that someone else would engage in that
conduct.
In the end, then, the government's position reduces to
the contention that we must infer that nothing in § 3B1.4
"otherwise specifie[s]" because that guideline lacks an
application note stating that the defendant is not accountable for
the merely reasonably foreseeable use of a minor by another. In
arguing that this negative inference must be drawn, the government
points out that other adjustment-setting guidelines use
"defendant"-specific language and have application notes that
expressly define the scope of the defendant's accountability to
include § 1B1.3(a)(1)(A) and exclude § 1B1.3(a)(1)(B). See, e.g.,
id. §§ 3B1.5 cmt. 2, 3C1.1 cmt. 9, 3C1.2 cmt. 5, 2K2.1 cmt. 13(B),
States v. Tezlaff, 896 F.2d 1071, 1074 (7th Cir. 1990) (concluding
that § 3B1.1's "role in the offense" adjustment could be applied
only if the offense of which the defendant was convicted has as an
"element . . . the participation of more than one person"); see
also United States v. Nuno-Para,
877 F.2d 1409, 1413 (9th Cir.
1989) (explaining that § 3B1.2 and § 3B1.2 provide adjustments
based on "the defendant's role in the offense of which he was
convicted"); United States v. Pettit,
903 F.2d 1336, 1340-41 (10th
Cir. 1990); Untied States v. Zweber,
913 F.2d 705, 708-09 (9th
Cir. 1990).
- 37 -
2K2.6 cmt. 1(A).16 The government contends that we must infer from
the application notes to those guidelines that the use of
"defendant"-specific language in § 3B1.4 -- along with its
designation as a "Role in the Offense" guideline -- cannot have
Salvador's claimed specifying effect. Otherwise, the government
argues, the application notes to those other guidelines would be
superfluous.
There is, however, good reason to conclude that the
application notes that the government invokes are playing a
clarifying function, such that those application notes do not
establish that the use of "defendant"-specific language cannot
itself be specifying. Indeed, when adding the application notes
in question to two of the guidelines that the government
cites -- § 3C1.1 and § 3C1.2 -- the Commission expressly stated
that the purpose of the added application notes was to "clarif[y]
the scope of conduct for which a defendant is accountable" under
those guidelines. U.S.S.G. amend. 457 (1992) (emphasis added);
Each application note cited by the government includes
16
substantially identical language, although some notes purport to
be "limit[ing]" the defendant's accountability, while others do
not. Compare U.S.S.G. § 2K2.1 cmt. 13(B) ("The term 'defendant,'
consistent with § 1B1.3 (Relevant Conduct), limits the
accountability of the defendant to the defendant's own conduct and
conduct that the defendant aided or abetted, counseled, commanded,
induced, procured, or willfully caused."); with id. § 3C1.1 cmt. 9
("Accountability for §1B1.3(a)(1)(A) Conduct.—Under this section,
the defendant is accountable for the defendant's own conduct and
for conduct that the defendant aided or abetted, counseled,
commanded, induced, procured, or willfully caused.").
- 38 -
see also Young v. United Parcel Serv., Inc., 575 U.S. 206, 245-46
(2015) (Scalia, J., dissenting) ("[A] clarifying function easily
overcomes any charge that the reading . . . makes the [relevant]
clause 'superfluous, void, or insignificant.'" (citation
omitted)).
Moreover, unlike § 3B1.4, those two guidelines also
contain specific language tying their adjustments to the defendant
having had a certain mental state. See U.S.S.G. § 3C1.1 ("If the
defendant willfully . . . ."); id. § 3C1.2 ("If the defendant
recklessly . . . ."). Thus, even if we were to assume that the
"defendant"-specific language in those guidelines independently
limits the defendant's accountability, it may be that the
application notes are doing no more than clarifying questions that
§ 3B1.4 does not raise about the scope of conduct relevant to those
guidelines. Thus, we do not see how those application notes
support our drawing the negative inference that the government
contends we must draw from the fact that § 3B1.4 has no similar
application note.
The other guidelines to which the government points that
are also not "Role in the Offense" guidelines are similar. They,
too, contain language that § 3B1.4 does not contain that could
cause confusion about the scope of a defendant's accountability.17
17 For example, § 2D1.1(b)(16)(C) provides for an adjustment
- 39 -
So they, too, provide no basis for concluding that a concern about
their application notes being superfluous requires the inference
that § 3B1.4's "defendant"-specific language has no independent
specifying effect.
True, the government does identify one guideline,
§ 3B1.5, that is designated a "Role in the Offense" guideline and
that uses, in one of its two subsections, "defendant"-specific
language like § 3B1.4. The government emphasizes that § 3B1.5,
unlike § 3B1.4, nonetheless includes an application note making
clear that, "for the purposes of [that] subdivision," the defendant
is not accountable for the conduct encompassed by
§ 1B1.3(a)(1)(B). See U.S.S.G. § 3B1.5 cmt. 2. The government
thus argues that the inclusion of such an application note to
§ 3B1.5 requires us to draw the negative inference that the use of
"defendant"-specific language does not itself have any specifying
if "the defendant was directly involved in the importation of a
controlled substance" (emphasis added). Its application note
appears to clarify that, notwithstanding the requirement of
"direct[]" involvement, a defendant is nonetheless accountable
under this section for the full scope of conduct under
§ 1B1.3(a)(1)(A). See id. § 2D1.1 cmt. 20(B). Likewise, when the
Commission appended the relevant application note to § 2K2.1, that
guideline expressly tied its application to "the defendant" having
"engaged in the trafficking of firearms." See U.S.S.G. amend. 691
(2006). That application note thus appears to clarify that,
notwithstanding the reference to trafficking (which, by its
nature, often involves "joint criminal activity"), "the term
'defendant'" nonetheless "limits" the defendant's accountability
to the conduct specified in § 1B1.3(a)(1)(A). See id.
- 40 -
effect, and that the absence of a similar application note to
§ 3B1.4 is therefore conclusive.
Unlike § 3B1.4, however, § 3B1.5 provides for two
adjustments: a greater adjustment if "the defendant used" body
armor, see id. § 3B1.5(2)(B), and a lesser adjustment if "the
offense" merely "involved" such use, see id. § 3B1.5(2)(A). Thus,
the application note in question appears simply to clarify the
differing scope of the defendant's accountability under the two
subsections of that guideline. Highlighting this distinction also
would appear to be particularly apt in the context of § 3B1.5, as
it is the only "Role in the Offense" guideline that provides for
separate adjustments depending on whether "the offense involved"
or "the defendant" engaged in the conduct specified.
Indeed, § 3B1.5 also includes a separate application
note that defines the term "offense," id. § 3B1.5 cmt. 1
("'Offense' has the meaning given that term in Application Note 1
of the Commentary to § 1B1.1 (Application Instructions)."), even
though that application note merely restates the
already-applicable definition of "offense" provided in Chapter
One, see id. § 1B1.1 cmt. 1. As a result, that "offense"-defining
application note is clearly doing no more than clarifying the
meaning of that term. We thus see no reason to conclude that the
- 41 -
application note concerning the word "defendant" is doing anything
different. See id. § 3B1.5 cmt. 2.18
The government separately may mean to be arguing that we
must glean from the various application notes that it foregrounds
that § 3B1.4 cannot be construed to "specif[y]" "otherwise" with
respect to the scope of relevant conduct because it does not
expressly name § 1B1.3 or quote from its text. After all, the
various application notes that the government invokes all do just
that. This negative-inference-based argument, however, is hardly
strong enough to compel the conclusion that the word "specif[y]"
necessarily demands an instruction that mimics the application
notes on which the government relies.
There remain all the reasons set forth above for
concluding that the word "specif[y]" is best read to encompass an
instruction that is explicit by other means. And the government
does not develop any argument apart from this
The one guideline that the government identifies that
18
presents no language obviously requiring clarification is § 2K2.6,
which provides an upward adjustment very similar to § 3B1.5, "[i]f
the defendant used . . . body armor in connection with another
felony offense." U.S.S.G. § 2K2.6(b)(1). (Indeed, when § 2K2.6's
upward adjustment applies, it renders § 3B1.5 "[i]napplicabl[e]."
Id. § 2K2.6 cmt. 2.) Notably, though, the Commission added § 2K2.6
to the Guidelines when § 3B1.5, with its application note, was
already on the books. Thus, because of the overlap between the
two guidelines, and the fact that the adjustment contained in
§ 2K2.6 renders § 3B1.5 inapplicable, the fact that the Commission
adopted an identical application note when adding § 2K2.6 suggests
only that the Commission sought consistency between the two nearly
identical guidelines -- itself a form of clarification.
- 42 -
negative-inference-based argument for concluding that the word
"specif[y]" requires an instruction that mirrors the text of the
application notes that it invokes.
Thus, at the very most, the application notes that the
government cites would give rise to a grievous ambiguity about
whether the word "specif[y]" demands an instruction that is
explicit in the way that those notes are, or whether a differently
worded instruction can be "explicit" through other means.19 Id.
§ 1B1.3 & background cmt. In that event, however, we would have
to apply the rule of lenity, Muscarello v. United States, 524 U.S.
125, 138-39 (1998); United States v. Bowen,
127 F.3d 9, 13 (1st
Cir. 1997), which would counsel against our adopting an
understanding of what "specif[y]" means that would rule out reading
the "defendant"-specific language in § 3B1.4 to constitute such an
explicit instruction, see United States v. Luna-Díaz,
222 F.3d 1,
3 n.2 (1st Cir. 2000) ("The rule of lenity requires that
We emphasize that we do not see how the application notes
19
that the government cites could give rise to any ambiguity about
the meaning of the words "the defendant used" separate from the
question of whether the meaning of the word "specif[y]" can
encompass a specification by the use of such "defendant"-specific
language. The application notes themselves suggest -- consistent
with the ordinary meaning of "the defendant" -- that the term
"defendant" is one of limitation. And so, an inference from those
notes that the term "defendant" means something different when
used in other guidelines is not compelled by the notes themselves
and would require us -- contrary to our normal practice -- to
attribute to the Commission an intention to use the word
"defendant" to mean different things in different guidelines.
- 43 -
ambiguities . . . be resolved in favor of the criminal
defendant."). So, even accounting for the government's arguments
for adhering to Patrick, we agree with Salvador that he may not be
subjected to § 3B1.4's upward adjustment based solely on it having
been reasonably foreseeable that his co-conspirators would use a
minor within the scope of, and in furtherance of, the conspiracy.
IV.
All that said, Salvador recognizes that he must do more
to succeed in his challenge to his sentence than demonstrate that
Patrick provides no basis for subjecting him to § 3B1.4's upward
adjustment. He must also show that the District Court erred in
separately determining that he satisfied § 3B1.4 because he
"personally used a minor" by directing a minor to "[m]ove over"
during the Rivas murder and by both recruiting and training minors
as members of the Sykos MS-13 clique. We therefore must address
Salvador's contentions on that score, which we will do after first
explaining what we understand the word "use" in § 3B1.4 to mean.20
A.
In Bailey v. United States, 516 U.S. 137 (1995), the
Supreme Court of the United States construed a federal statute
20 We consider these arguments even though Salvador did not
raise them before the panel. See Chestnut v. City of Lowell, 305
F.3d 18, 21 (1st Cir. 2002) (en banc). The government has elected
to "waive reliance on the plain error standard to ease review of
the merits."
- 44 -
that criminalizes the "use[] [of] a firearm to commit [a felony
offense]." 516 U.S. at 147 (citation omitted). The Court
explained that the term "'[u]se' draws meaning from its context"
and that it would therefore "look not only to the word itself, but
also to the statute and sentencing scheme, to determine the meaning
Congress intended."
Id. at 143.
The Court first gave "use" its "'ordinary or natural'
meaning, a meaning variously defined as '[t]o convert to one's
service,' 'to employ,' 'to avail oneself of,' and 'to carry out a
purpose or action by means of.'" Id. at 145 (quoting Smith v.
United States,
508 U.S. 223, 228-29 (1993)) (alteration in
original); see also Smith,
508 U.S. at 229 ("[O]ver 100 years ago,
we gave the word 'use' the same gloss, indicating that it means
'"to employ"' or '"to derive service from."'" (quoting Astor v.
Merritt, 111 U.S. 202, 213 (1884))). The Court then also analyzed
the way "use" appeared in the context of the statutory language,
explaining:
The phrase "uses a firearm to commit"
indicates that Congress originally intended to
reach the situation where the firearm was
actively employed during commission of the
crime. This original language would not have
stretched so far as to cover a firearm that
played no detectable role in the crime's
commission. For example, a defendant who
stored a gun in a nearby closet for retrieval
in case the deal went sour would not have
"use[d] a firearm to commit" a crime.
Bailey, 516 U.S. at 147 (alteration in original).
- 45 -
Section 3B1.4 contains materially identical language to
the language considered in Bailey: "If the defendant used or
attempted to use [a minor] to commit the offense . . . increase
[the defendant's offense level] by 2 levels." U.S.S.G. § 3B1.4
(emphasis added). As a result, we conclude that § 3B1.4's
requirement of "use[]" of a minor "to commit the offense," id.,
requires some "active[] employ[ment]" of the minor "during
commission of the [offense]," as well as that the minor, so
employed, play some "detectable role in the [offense]'s
commission." See Bailey, 516 U.S. at 147; see also United States
v. Butler,
207 F.3d 839, 847 (6th Cir. 2000) (citing Bailey to
conclude that "use" requires "affirmative action on the part of a
defendant"). Nearly all our sister circuits similarly have
concluded that the word "used" in § 3B1.4 requires some
"affirmative act" to actually involve the minor in the offense.
See United States v. Taber,
497 F.3d 1177, 1180-81 (11th Cir.
2007); United States v. Ramsey,
237 F.3d 853, 860 (7th Cir. 2001);
United States v. Suitor,
253 F.3d 1206, 1210 (10th Cir. 2001);
United States v. Paine,
407 F.3d 958, 965 (8th Cir. 2005); Butler,
207 F.3d at 849; United States v. Parker,
241 F.3d 1114, 1120 (9th
Cir. 2001); United States v. Molina,
469 F.3d 408, 415 (5th Cir.
2006).
It therefore is not enough for the government to show
that a minor was merely present during an offense. Nor is it
- 46 -
enough for the government to show that the defendant engaged the
minor to some end that was unrelated to, or merely incidental to,
the commission of the offense. This interpretation finds ample
support in the congressional statute enabling § 3B1.4, which
states:
The [Sentencing] Commission shall provide that
the guideline enhancement promulgated . . .
shall apply for any offense in relation to
which the defendant has . . . used or
attempted to use any person less than 18 years
of age with the intent that the minor would
commit a Federal offense.
Violent Crime Control and Law Enforcement Act of 1994, Pub. L.
No. 103-322, § 140008,
108 Stat. 1796, 2033 (emphasis added); see
also U.S.S.G. amend. 527 (1995) (adding the use-of-a-minor
Guideline).
B.
Against this backdrop, we agree with Salvador that the
District Court's determination that Salvador used CW-24, a minor,
to commit the offense by "directing" CW-24 to "[m]ove over" during
the Rivas murder runs afoul of our ruling today. The commentary
to § 3B1.4 explains that "[u]sed or attempted to use," in the use-
of-a-minor guideline, "includes directing, commanding,
encouraging, intimidating, counseling, training, procuring,
recruiting, or soliciting" a minor. U.S.S.G. § 3B1.4 cmt. 1
(emphasis added). The various ways in which a defendant might
"use" a minor that are listed in § 3B1.4's application note are
- 47 -
examples, however, of what might constitute a "use or attempted
use" under that guideline. They do not modify or supersede that
guideline's requirement that the defendant have used the minor "to
commit the offense," id. § 3B1.4 (emphasis added), which, as we
have explained, requires that the minor play some "detectable role
in the [offense]'s commission," Bailey, 516 U.S. at 147; see also,
e.g., Ramsey,
237 F.3d at 861 (emphasizing that the defendant "took
numerous affirmative actions to involve his brother, a minor, in
the distribution of crack cocaine"); Butler,
207 F.3d at 849
(concluding that the district court erred in applying § 3B1.4
absent a finding that the defendant "acted affirmatively to involve
[the minor] in the armed bank robbery"); United States v. Garcia,
497 F.3d 964, 970 (9th Cir. 2007) ("The evidence must show that
'the defendant acted affirmatively to involve the minor' in the
crime." (citations omitted)).
As we have seen, the storing of a firearm in a nearby
closet during a drug deal does not qualify as a "use" of a firearm
under Bailey, because that conduct plays no "detectable role" in
the commission of the offense. By contrast, the brandishing of a
firearm during the commission of a drug deal does so qualify
because that conduct plays a "detectable role" in the offense.
Bailey, 516 U.S. at 146-47. From all the record shows, CW-24, in
merely being told to "move over," was being asked to play a role
no more "detectable" in the commission of the murder than that of
- 48 -
the stored firearm in the offense considered in Bailey. We thus
see no basis for concluding that Salvador "used" him to commit the
offense.
C.
There remains to address the District Court's separate
ruling that Salvador "used" a minor to commit the offense because
he "personally recruited and trained" minors who were members of
MS-13. Salvador does not contend that this determination, if
supported by the record, is insufficient to show that he "used" a
minor "to commit the offense" in the manner required by § 3B1.4.
Salvador contends only that the District Court erred in making
this determination because this case presents "no credible
'evidence concerning [his] recruiting and training of minors.'"
Reviewing for clear error, see Misla-Aldarondo, 478 F.3d at 70, we
cannot agree.
The District Court relied for the determination that
Salvador had personally recruited and trained minors in part on
grand-jury testimony from CW-19, a minor, who was a member of the
Sykos clique. In that testimony, CW-19 described speaking with
members of the Sykos clique, including Salvador, about the need
for MS-13 members to attack rivals and the methods for doing so.
Based on this testimony, the District Court concluded that CW-19
had "talked to other members of the Sykos clique about MS-13's
- 49 -
mode of operating, particularly killing rivals," and that "those
other members included . . . Salvador Gutierrez."
Salvador asserts that the District Court erred in
relying on this testimony because it was unexamined grand-jury
testimony. However, "we repeatedly have upheld [the court's]
reliance [at sentencing] on prior hearsay testimony never
subjected to cross-examination, so long as there were other
adequate indicia of reliability." United States v. Williams, 10
F.3d 910, 914 (1st Cir. 1993) (citing U.S.S.G. § 6A1.3(a)).
Moreover, in so holding, we have taken account of the fact that
the prior "testimony was given under oath, subject to the penalties
of perjury, [and] in a formal grand jury proceeding" -- as was the
case here. Id. at 914; accord United States v. Zuleta-Alvarez,
922 F.2d 33, 37 (1st Cir. 1990).
Salvador does contend that CW-19's testimony "was not
corroborated by any other source." See United States v. Rojo-
Alvarez, 944 F.2d 959, 971 (1st Cir. 1991) ("The reliability of []
evidence may be established by corroboration."). However, the
District Court expressly found CW-19's testimony credible and, in
so finding, concluded that CW-19's testimony was "similar" to that
of CW-22, another grand-jury witness. Like CW-19, the District
Court stated, CW-22 testified about meetings led by members of the
Sykos clique as part of the recruitment and training process,
during which "the goals of MS-13 and its mission were discussed,"
- 50 -
and at which he was told that "killing rivals . . . was a goal and
part of the Sykos clique's mission."
Salvador fails to explain why the District Court's
finding regarding the similarity of the testimony from CW-22 does
not constitute a sufficient finding of corroboration of CW-19's
testimony regarding similar conversations he had with members of
the Sykos clique. We therefore see no merit to this aspect of
Salvador's challenge. See United States v. Cintrón-Echautegui,
604 F.3d 1, 6 (1st Cir. 2010) ("[A] sentencing court has wide
discretion to decide whether particular evidence is sufficiently
reliable to be used at sentencing.").
Salvador further contends that, because CW-19 was a
member of the Sykos clique before Salvador joined, CW-19's
testimony about Salvador having taken part in CW-19's training is
not credible. However, this fact about the timing of CW-19's
joining the Sykos clique does not suffice to demonstrate that the
District Court clearly erred in relying on CW-19's specific
testimony regarding conversations that he had with Salvador and
other MS-13 members about the gang's mode of operation. Thus,
this aspect of Salvador's challenge fails as well.
Finally, Salvador complains that he did not receive
prior notice that the District Court would rely on CW-19's
grand-jury testimony in the way that the District Court did. But
Salvador did not object to the District Court's reliance on the
- 51 -
testimony, even though Salvador had ample opportunity to do so
before sentencing concluded the following week. His claim of
unfair surprise is thus undercut by his failure "to meet the
claimed exigency" when it arose. United States v. Diaz-Villafane,
874 F.2d 43, 47 (1st Cir. 1989); see also United States v. Mathur,
624 F.3d 498, 508 (1st Cir. 2010) (observing that "allow[ing] the
case to proceed to sentencing without objection" "severely
undermined" the defendant's claim of unfair surprise (citation
omitted)). For this reason, too, then, we reject Salvador's
challenge to the application of § 3B1.4's adjustment to him based
on a finding that he "personally" used a minor to commit the
offense.
V.
The sentence is affirmed.
- 52 -
