United States Court of Appeals 

For the First Circuit 

No. 17-1229 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

YNOCENCIO ARIAS-MERCEDES, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

[Hon. Pedro A. Delgado-Hernández, U.S. District Judge] 

Before 

Howard, Chief Judge, 

Selya and Barron, Circuit Judges. 

 

Eric Alexander Vos, Federal Public Defender, Vivianne M. 

Marrero, Assistant Federal Public Defender, and Liza L. RosadoRodriguez, Research and Writing Specialist, on brief for 

appellant. 

Rosa Emilia Rodríguez-Vélez, United States Attorney, Thomas 

F. Klumper, and Francisco A. Besosa-Martínez, Assistant United 

States Attorneys, on brief for appellee. 

August 16, 2018 

[REDACTED OPINION]

 



 The full version of this opinion was filed on July 30, 2018, 

and remains on file, under seal, in the Clerk's Office." 
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SELYA, Circuit Judge. Defendant-appellant Ynocencio 

Arias-Mercedes challenges his 87-month incarcerative sentence as 

procedurally flawed and substantively unreasonable. Among other 

things, his appeal poses questions about how a district court 

should apply the Sentencing Commission's revised commentary 

regarding mitigating role adjustments. See USSG App. C, Amend. 

794. After careful consideration of these questions and the other 

issues raised on appeal, we affirm the challenged sentence. 

I. BACKGROUND 

This appeal follows a guilty plea and, thus, we draw the 

facts from the plea colloquy, the undisputed portions of the 

presentence investigation report (PSI Report), and the transcript 

of the sentencing hearing. See United States v. Fields, 858 F.3d 

24, 27 (1st Cir. 2017); United States v. Dietz, 950 F.2d 50, 51 

(1st Cir. 1991). On April 24, 2015, the Coast Guard intercepted 

a 20-foot vessel off the coast of Dorado, Puerto Rico. Aboard the 

vessel were 72.5 kilograms of cocaine and three men: the 

defendant, Victor Mercedes-Guerrero (Mercedes), and Juan A. 

Concepción-García (Concepción). Initially, the trio claimed to be 

Dominican nationals headed to Puerto Rico in search of work. 

Later, the defendant changed his tune and admitted his 

participation in a drug-smuggling enterprise. 

On May 21, 2015, a federal grand jury sitting in the 

District of Puerto Rico returned a four-count indictment. The 
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indictment charged all three men with conspiracy to import five 

kilograms or more of cocaine into the United States, aiding and 

abetting that conspiracy, conspiracy to possess with intent to 

distribute five kilograms or more of cocaine, and aiding and 

abetting that conspiracy. See 18 U.S.C. § 2; 21 U.S.C. 

§§ 841(a)(1), 952(a), 960(a)(1), 963. In due course, the 

defendant entered a straight guilty plea to all four counts. 

The probation office prepared a PSI Report. Because the 

offenses of conviction involved more than 50 kilograms but less 

than 150 kilograms of cocaine, the PSI Report recommended a base 

offense level of 34. After factoring in a three-level credit for 

acceptance of responsibility, see USSG §3E1.1, the PSI Report 

suggested a total offense level of 31. Coupled with a criminal 

history category of I, this offense level yielded a guideline 

sentencing range (GSR) of 108-135 months. The GSR, however, was 

trumped in part by a statutory mandatory minimum of 120 months. 

See 21 U.S.C. §§ 841(b)(1)(A), 960(b)(1). 

The defendant countered by moving for a downward 

departure or variance, making clear his objection to certain 

aspects of the PSI Report. Pertinently, he argued that he had 

played only a minor role in the criminal activity and, therefore, 
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should receive a two-level role-in-the-offense reduction. See 

USSG §3B1.2. [redacted]1

The defendant took the position that, because he was a 

"mere transporter of the contraband," he deserved a mitigating 

role adjustment.2 He argued that he was less culpable than Mercedes 

and other unindicted coconspirators (though he did not claim to be 

less culpable than Concepción). He also sought a downward 

departure or variance. 

At the disposition hearing, the district court accepted 

the PSI Report's recommendations, except that it reduced the GSR 

to 87-108 months.3 The court then determined that the defendant 

was not entitled to a minor participant reduction. Considering 

the newly constituted GSR and the factors delineated in 18 U.S.C. 

§ 3553(a), the court proceeded to reject the defendant's entreaty 

for a downward departure or variance. Instead, it imposed 

concurrent 87-month terms of immurement on all four counts of 

conviction. This timely appeal followed. 

 1 [redacted]

2 The sentencing guidelines recognize two strains of 

mitigating role adjustments: minimal participant reductions, see 

USSG §3B1.2(a), and minor participant reductions, see id. 

§3B1.2(b). In this case, the defendant argues only that he should 

have received a minor participant reduction. 

3 [redacted]
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II. ANALYSIS 

We evaluate claims of sentencing error by means of a 

"two-step pavane." United States v. Matos-de-Jesús, 856 F.3d 174, 

177 (1st Cir. 2017); see United States v. Martin, 520 F.3d 87, 92 

(1st Cir. 2008). At the first step, we address claims of 

procedural error. See Gall v. United States, 552 U.S. 38, 51 

(2007); Matos-de-Jesús, 856 F.3d at 177. If the sentence passes 

procedural muster, we then address challenges to its substantive 

reasonableness. See Matos-de-Jesús, 856 F.3d at 177. Here, we 

are confronted with claims of both procedural and substantive 

error. We discuss them sequentially. 

A. Alleged Procedural Flaws. 

As a general matter, "claims of sentencing error are 

reviewed for abuse of discretion." United States v. Pérez, 819 

F.3d 541, 545 (1st Cir. 2016). This standard is not monolithic. 

"Within it, 'we assay the district court's factfinding for clear 

error and afford de novo consideration to its interpretation and 

application of the sentencing guidelines.'" Id. (quoting United 

States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013)). 

1. Mitigating Role. The defendant's principal 

procedural plaint posits that the district court erred in refusing 

to grant him a minor participant reduction. See USSG §3B1.2(b). 

At sentencing, "[a] defendant who seeks a mitigating role 

adjustment bears the burden of proving, by a preponderance of the 
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evidence, that he is entitled to the downward adjustment." Pérez, 

819 F.3d at 545. We have cautioned before that "[r]ole-in-theoffense determinations are notoriously fact-specific." United 

States v. Cortez-Vergara, 873 F.3d 390, 393 (1st Cir. 2017) 

(quoting Pérez, 819 F.3d at 545). "[A]bsent a mistake of law, 

battles over a defendant's status . . . will almost always be won 

or lost in the district court." United States v. Graciani, 61 

F.3d 70, 75 (1st Cir. 1995). 

Against this backdrop, we look first to the applicable 

law. The sentencing guidelines authorize a two-level reduction in 

a defendant's offense level if he "was a minor participant in any 

criminal activity" for which he is being held accountable. USSG 

§3B1.2(b). Prior to November 1, 2015, a two-pronged test was 

typically employed to determine a defendant's entitlement to such 

a reduction. First, the court had to determine whether the 

defendant was "less culpable than most of those involved in the 

offenses of conviction." United States v. Mateo-Espejo, 426 F.3d 

508, 512 (1st Cir. 2005). If so, the court proceeded to determine 

whether the defendant was less culpable than "most of those who 

have perpetrated similar crimes." Id. 

The legal landscape shifted when the Sentencing 

Commission, effective November 1, 2015, promulgated an amendment 

that displaced the second prong of the original test. See USSG 

App. C, Amend. 794. This amendment made pellucid that, in deciding 
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whether to grant a minor participant reduction, a sentencing court 

should not compare the defendant to hypothetical participants in 

similar offenses.4 See id. Instead, the sentencing court should 

limit its inquiry to whether a given defendant is "substantially 

less culpable than the average participant in the criminal 

activity" in which he was involved. Id. §3B1.2, cmt. n.3(A). For 

this purpose, a "participant" is defined as "a person who is 

criminally responsible for the commission of the offense, but need 

not have been convicted." Id. §3B1.1, cmt. n.1. We treat this 

revised commentary as authoritative. See Stinson v. United States, 

508 U.S. 36, 38 (1993); United States v. Carrasco-Mateo, 389 F.3d 

239, 244 (1st Cir. 2004). 

The defendant contends that the court erred in 

performing this task because it did not properly identify the 

universe of participants. Specifically, the defendant complains 

that the court compared his conduct only to that of Mercedes and 

Concepción, not to the full pantheon of co-conspirators (whether 

indicted or unindicted) in the broader drug-smuggling enterprise.

[redacted] This plaint lacks force. 

 4 Even though the offenses of conviction occurred in April of 

2015, the defendant was not sentenced until February 10, 2017. 

"Barring any ex post facto problem, a defendant is to be punished 

according to the guidelines in effect at the time of sentencing." 

United States v. Harotunian, 920 F.2d 1040, 1041-42 (1st Cir. 

1990). Neither party disputes the sentencing court's decision to 

apply the version of the guidelines in effect on the date of 

sentencing. 
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Under the revised commentary — as before — the defendant 

bears the burden of showing that he was substantially less culpable 

than the average participant in the criminal endeavor. See United 

States v. De la Cruz-Gutíerrez, 881 F.3d 221, 225-26 (1st Cir.), 

cert. denied, 2018 WL 2064973 (2018). A defendant cannot carry 

this burden merely by showing "that he was a minimal or minor 

participant in the conspiracy overall." United States v. Coviello, 

225 F.3d 54, 67 (1st Cir. 2000) (emphasis in original). Rather, 

he must focus on the offenses of conviction and "demonstrate that 

he was a minimal or minor participant in the conduct that formed 

the basis of his sentence." Id. To that end, the court must 

consider a universe composed of those involved in "his relevant 

conduct as a whole." United States v. Vargas, 560 F.3d 45, 50 

(1st Cir. 2009); see United States v. Rodríguez De Varón, 175 F.3d 

930, 944 (11th Cir. 1999) (en banc) (looking to "those participants 

who were involved in the relevant conduct attributed to the 

defendant"); see also United States v. Roberts, 223 F.3d 377, 381 

(6th Cir. 2000) (similar). As we have explained, "[w]here a 

defendant is hired to transport a single shipment of drugs and 

does not otherwise participate in the larger conspiracy, his 

relevant conduct ordinarily will be limited to that shipment." 

Vargas, 560 F.3d at 49-50. 

The defendant would have us believe that Amendment 794 

expanded those parameters. We think not. The amendment simply 
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eliminated the need to compare a defendant's conduct with the 

conduct of hypothetical participants in similar offenses (the nowobsolete second prong of the original test). It does not require 

courts, when weighing mitigating role adjustments, to appraise a 

defendant's role in the broader conspiracy as opposed to his role 

in the specific criminal activity for which he is being held 

accountable. See USSG App. C, Amend. 794 (instructing courts to 

determine "defendant's relative culpability . . . only by reference 

to his or her co-participants in the case at hand"). 

The upshot is that with respect to identifying the 

universe of relevant participants, earlier precedent developed 

under the first prong of our minor participant jurisprudence 

remains velivolent, notwithstanding the promulgation of Amendment 

794. See De la Cruz-Gutiérrez, 881 F.3d at 225-26. Since the 

district court colored within these lines, we hold that the 

defendant's claim of legal error in the court's application of 

section 3B1.2 is without substance. 

This holding does not end our journey. Even when it 

hews to the correct legal rule, a district court must still 

exercise judgment to identify the universe of participants 

involved in the particular conduct that forms the basis of the 

defendant's sentence. Here, the defendant challenges the district 

court's exercise of that judgment — a challenge that we review for 

clear error. See Cortez-Vergara, 873 F.3d at 393. 
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The defendant pleaded guilty to conspiracy to import 

five kilograms or more of cocaine into the United States, 

conspiracy to possess with intent to distribute five kilograms or 

more of cocaine, and aiding and abetting both conspiracies. The 

charges were premised on the defendant's participation in a 

discrete enterprise: he was one of three men who brought a drugladen vessel into the maritime jurisdiction of the United States. 

The defendant's base offense level was determined by reference to 

the specific drug quantity involved in that singular transport — 

not the amount trafficked through any broader conspiracy. It 

follows that the conduct for which the defendant is being held 

responsible is his role in that voyage. See Vargas, 560 F.3d at 

50; cf. United States v. Olibrices, 979 F.2d 1557, 1559-60 (D.C. 

Cir. 1992) (refusing to compare defendant to participants in 

"overall conspiracy" when base offense level was determined with 

reference to narrower offense); United States v. Walton, 908 F.2d 

1289, 1303 (6th Cir. 1990) (refusing to compare defendants to 

members in broader conspiracy because defendants had "only been 

held responsible for cocaine that they were actively involved in 

distributing — not the additional amounts involved in the entire 

conspiracy"). 

Given the scope of the conduct for which the defendant 

is being held accountable, there is no principled way in which we 

can find clear error in the district court's decision to limit its 
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comparison only to those persons directly involved in this 

particular drug-smuggle. See, e.g., De la Cruz-Gutiérrez, 881 

F.3d at 225-27 (comparing defendant in maritime drug-transport 

case to others aboard vessel when considering minor participation 

reduction); Cortez-Vergara, 873 F.3d at 393 (similar); Pérez, 819 

F.3d at 545-46 (similar). That the record contains "references" 

to unindicted and unidentified persons who had links to the broader 

criminal organization does not alter this conclusion. [redacted] 

[A] sentencing court cannot make mitigating role adjustments based 

on suppositions woven entirely out of gossamer strands of 

speculation and surmise. See Rodríguez De Varón, 175 F.3d at 944 

(explaining that a sentencing "court should look to other 

participants only to the extent that they are identifiable or 

discernable from the evidence"); cf. Pérez, 819 F.3d at 546 

(rejecting argument that defendant's "bit part" compared to drug 

"owners" and distributors entitled him to minor participant 

reduction). [redacted] After all, determinations relating to 

mitigating role adjustments are "invariably fact-specific," United 

States v. Meléndez-Rivera, 782 F.3d 26, 28 (1st Cir. 2015), and 

the court reasonably could have determined that the defendant had 

not carried his burden [redacted]. 

With the district court's universe of comparable 

participants validated, we turn to the substance of the comparison. 

The defendant maintains that the district court clearly erred in 
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determining that he was not substantially less culpable than the 

average participant in the offenses of conviction. Our review is 

for clear error. See Pérez, 819 F.3d at 545. 

The determination as to whether to grant a minor 

participant reduction is "based on the totality of the 

circumstances and involves a determination that is heavily 

dependent upon the facts of the particular case." USSG §3B1.2, 

cmt. n.3(C). The Sentencing Commission has provided a nonexhaustive list of factors to be considered: 

(i) the degree to which the defendant 

understood the scope and structure of the 

criminal activity; 

(ii) the degree to which the defendant 

participated in planning or organizing the 

criminal activity; 

(iii) the degree to which the defendant 

exercised decision-making authority or 

influenced the exercise of decision-making 

authority; 

(iv) the nature and extent of the defendant's 

participation in the commission of the 

criminal activity, including the acts the 

defendant performed and the responsibility and 

discretion the defendant had in performing 

those acts; 

(v) the degree to which the defendant stood to 

benefit from the criminal activity. 

Id. 

The court below found that, under the totality of the 

circumstances, the defendant "was not substantially less culpable 

than the average participant" in the drug smuggle. In its view, 

the defendant understood the scope and structure of the criminal 

activity and knew that he was transporting narcotics. By the 
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defendant's own account, he had agreed to participate in an illegal 

smuggling operation.5 Once aboard the vessel, the defendant's 

participation in the criminal activity was substantial: he worked 

in tandem with the captain (Mercedes) to assure the success of the 

voyage. Although he did not participate in either planning or 

organizing the criminal activity, he exercised a modicum of 

decisionmaking authority in steering and navigating the vessel 

toward its destination. 

Last — but surely not least — the district court 

supportably found that the defendant stood to benefit from the 

criminal activity. He was paid handsomely to traverse the 

Caribbean Sea and, in addition, received what he had sought all 

along: passage to the United States. 

"To be entitled to the role reduction, [the defendant] 

had to prove that he was less culpable than his cohorts." De la 

Cruz-Gutíerrez, 881 F.3d at 226 (emphasis in original). The 

district court found that he had failed to carry this burden, and 

that finding was not clearly erroneous. The defendant's cohorts 

can be located on a continuum. Mercedes, who had primary 

 5 Of course, the defendant went to the port of departure 

anticipating that he would be assisting in the smuggling of illegal 

aliens, not the smuggling of narcotics. That the criminal activity 

proved to involve a different cargo does not detract from the 

significance of the defendant's decision to join an illegal 

smuggling venture (although it may help to explain why the district 

court opted to sentence him at the bottom of the applicable 

guideline range). 
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responsibility for the voyage, stands at one end of the continuum. 

Concepción, whom even the defendant seems to admit was not a 

meaningful contributor to the enterprise, stands at the opposite 

end. The defendant, who was involved in the navigation and 

steering of the vessel, stands somewhere in the middle. Thus, the 

district court reasonably could have found that he was not 

substantially less culpable than the average participant. When a 

person undertakes to provide material assistance in transporting 

a large quantity of drugs as a member of a tiny crew in a hazardous 

voyage at sea, it ordinarily will not be clear error for the 

sentencing court to refuse him a mitigating role adjustment. See, 

e.g., Pérez, 819 F.3d at 546. So it is here. 

In an effort to efface the district court's reasoning, 

the defendant argues that an offender who lacks a proprietary 

interest in the criminal activity should receive a mitigating role 

adjustment. In support, he relies on Amendment 794. His reliance, 

however, is misplaced. The commentary does not indicate that every 

such offender is entitled to a mitigating role adjustment; it 

merely instructs that every such offender "should be considered 

for a mitigating role adjustment." USSG App. C, Amend. 794. Here, 
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the court considered the defendant's importunings and found them 

wanting. 

2. [redacted]6 

B. Substantive Reasonableness. 

This brings us to the defendant's claim that his sentence 

is substantively unreasonable. We review this claim of error for 

abuse of discretion. See United States v. Ruiz-Huertas, 792 F.3d 

223, 226 (1st Cir. 2015). 

"The 'linchpin' of substantive reasonableness review is 

an assessment of whether the sentencing court supplied a 'plausible 

sentencing rationale' and reached a 'defensible result.'" 

Rodríguez-Adorno, 852 F.3d at 177 (quoting Martin, 520 F.3d at 

96). This formulation recognizes that "[t]here is no one 

reasonable sentence in any given case but, rather, a universe of 

reasonable sentencing outcomes." Clogston, 662 F.3d at 592. 

"Challenging a sentence as substantively unreasonable is 

[generally] a heavy lift," and this "lift grows even heavier where, 

as here, the sentence falls within a properly calculated GSR." 

Cortés-Medina, 819 F.3d at 572; see Rita v. United States, 551 

U.S. 338, 347 (2007). 

We need not tarry. The district court sentenced the 

defendant at the very bottom of the applicable guideline range 

 6 [redacted] 
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notwithstanding that the offenses of conviction involved a very 

large quantity of drugs. Even so, the defendant says that the 

court should have varied downward. 

This is pie in the sky. The district court explained 

that it had balanced all the section 3553(a) factors and had mulled 

the defendant's personal circumstances. It concluded that an 

87-month sentence was appropriate because after reviewing the 

defendant's background, studying his file, analyzing the arguments 

presented by defense counsel, and hearing defendant's allocution, 

"a sentence at the lower end of the guideline range . . . [was] 

just and not greater than necessary to promote the objectives of 

sentencing." This rationale is plausible, and the defendant has 

offered no convincing basis on which we might disavow it. 

So too, the length of the sentence is easily defensible. 

The offenses of conviction were serious, and they involved a large 

quantity of drugs. Yet, the court chose a sentence at the nadir 

of a properly calculated GSR. Nothing in the record suggests a 

compelling reason to override the district court's exercise of its 

discretion. 

To say more would be to paint the lily. We conclude, 

with scant hesitation, that the challenged sentence fell well 

within the wide compass of the district court's discretion. It 

was, therefore, substantively reasonable. 

III. CONCLUSION 
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We need go no further. For the reasons elucidated above, 

the sentence is 

Affirmed.