PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 22-1947

________________

UNITED STATES OF AMERICA

v.

LUIS D. MERCADO,

Appellant

________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D. C. No. 1-21-cr-00337-001)

District Judge: Sylvia H. Rambo

________________

Argued on June 29, 2023

Before: JORDAN, KRAUSE and SMITH, Circuit Judges

(Opinion filed: August 29, 2023)

Ronald A. Krauss, Esq.

Jason F. Ullman, Esq. [ARGUED]

Office of Federal Public Defender

100 Chestnut Street

Suite 306

Harrisburg, PA 17101

Counsel for Appellant

Christian T. Haugsby, Esq. [ARGUED]

Paul J. Miovas, Jr., Esq.

Carlo D. Marchioli, Esq.

Office of United States Attorney

Middle District of Pennsylvania
2 

1501 N 6th Street, 2nd Floor 

P.O. Box 202 

Harrisburg, PA 17102 

Counsel for Appellee 

________________ 

OPINION 

________________ 

KRAUSE, Circuit Judge. 

Actions speak louder than words. So when a defendant 

continues to engage in criminal activity following a guilty plea, 

that post-plea conduct may bear on whether he has genuinely 

accepted responsibility for his crime of conviction. In this 

case, Appellant Luis Mercado asks us to conclude precisely the 

opposite. He asserts that § 3E1.1(a) of the Sentencing 

Guidelines, which permits a district court to reduce a 

defendant’s sentence if he can “clearly demonstrate[] 

acceptance of responsibility for his offense,” U.S.S.G. 

§ 3E1.1(a), unambiguously precludes a district court from 

considering post-plea conduct “unrelated” to that pled-out 

offense. Opening Br. 7. 

Yet the plain text of § 3E1.1(a) contains no such 

limiting principle. Instead, the commentary to this provision 

sets forth a list of “appropriate considerations,” several of 

which expressly sweep in post-plea conduct. U.S.S.G. § 3E1.1

cmt. n.1(A)–(H). And where, as here, commentary helps to 

clarify a Guideline’s “genuinely ambiguous” text, that 

commentary may serve as an authoritative delimiting 

mechanism, provided that it is both “reasonable” and invokes 

the Sentencing Commission’s “substantive experience.” 

United States v. Nasir, 17 F.4th 459, 471 (3d Cir. 2021) (en 

banc). For the reasons explained below, the commentary to 

§ 3E1.1(a) satisfies these criteria, and the District Court did not 

clearly err in relying on Mercado’s post-plea misconduct to 

deny his request for a § 3E1.1(a) reduction. We will therefore 

affirm. 
3 

I. Background 

For a full year starting in August 2020, Mercado filed 

fraudulent Pandemic Unemployment Assistance claims on a 

weekly basis, collecting a total of $37,555 in fraudulent 

benefits. When the Government caught on a few months later, 

it opened discussions with Mercado, who waived indictment 

and entered into an agreement to plead guilty to an Information 

the Government filed the same day, charging him with wire 

fraud in violation of 18 U.S.C. § 1343. Among other things, 

that plea agreement endorsed the possibility of a downward 

adjustment under § 3E1.1(a) if Mercado could “adequately 

demonstrate recognition and affirmative acceptance of 

responsibility [for his offense].” App. 28–29. 

Mercado entered his guilty plea a few weeks later. At 

the plea hearing, Mercado “apologize[d] for what [he had] 

done,” id. at 57, and the District Court continued his bail 

pending sentencing, including several conditions of bail 

relevant to this appeal. Specifically, the District Court 

required, in relevant part, that Mercado “refrain from use or 

unlawful possession of a narcotic drug or other controlled 

substance”; “submit to substance abuse testing”; “complete a 

substance abuse evaluation and treatment if deemed 

appropriate by pretrial services”; and “get medical and 

psychiatric treatment if directed by pretrial services.” Id. at 58. 

Mercado’s compliance proved problematic from the 

start. On the same day he pleaded guilty, Mercado tested 

positive for cocaine. Probation referred him for intensive 

outpatient treatment, but he never reported for his counseling 

sessions and was terminated without having completed the

program. In January 2022, Mercado admitted to using cocaine

again, and two months later, he refused to take a follow-up 

drug test. When he finally submitted to testing in April, he

again tested positive. 

In its Presentence Investigation Report, the Probation 

Office calculated an offense level of 11 and a Criminal History 

Category of II, resulting in an applicable Guideline range of 10 

to 16 months’ imprisonment. A two-point downward 

adjustment for acceptance of responsibility under § 3E1.1(a) 

would have produced a Guideline range of 6 to 12 months’ 
4

imprisonment. But the Probation Office recommended against 

it. While the Probation Office recognized that Mercado had 

expressed remorse for committing the instant offense, it 

concluded that he had not clearly demonstrated acceptance of 

responsibility for the offense in view of his post-plea conduct, 

including cocaine use and failure to complete substance abuse 

treatment.

In response to Mercado’s objection, the Probation 

Office also issued an addendum, adhering to its original 

recommendation. Relying largely on the commentary to

§ 3E1.1(a), the addendum explained that a defendant who 

enters a guilty plea is not entitled to an adjustment based on 

acceptance of responsibility as a matter of right, see U.S.S.G.

§ 3E1.1 cmt. n.3, and that courts can consider a defendant’s 

“voluntary termination or withdrawal from criminal conduct or 

associations,” id. cmt. n.1(B), and “post-offensive 

rehabilitative efforts,” id. cmt. n.1(G), in determining whether 

a defendant qualifies for a reduction for acceptance of 

responsibility.

The District Court held a sentencing hearing in May 

2022. When given the opportunity to address the Court, 

Mercado again expressed remorse for his actions:

I want to apologize for what I’ve done first. 

Right now I have motive for life to continue 

living . . . . I have a new partner, a new friend, 

and I want to give everything that I can to her. I 

have a good job. . . . And I want to work hard to 

get out of this darkness if I can get a chance to 

do that. Something else, I watch out for my 

mother. My sister and myself are the ones that 

are in charge of taking care of my mother. I 

know I can do it, and I trust in God that I can do 

it if I have the opportunity.

App. 61. The District Court, however, was not persuaded and 

declined the two-point adjustment. By way of reasoning, the 

Court referred to the “ongoing episode” of Mercado’s drug use 

and referenced a memo from Mercado’s Probation Officer 

confirming Mercado’s most recent positive drug test. Id. at 60. 

Ultimately, the Court sentenced Mercado to the bottom of the 
5 

applicable range, 10 months’ imprisonment, and strongly 

recommended that he receive all available drug treatment 

while incarcerated. Mercado now brings this timely appeal. 

II. Discussion1

Mercado raises only one argument on appeal: that the 

District Court erred by denying him a § 3E1.1(a) adjustment 

based on the “irrelevant post-plea conduct” of his continued 

drug use. Opening Br. 2. According to Mercado, the operative 

language of § 3E1.1(a)—requiring a defendant to “clearly 

demonstrate[] acceptance of responsibility for his offense”—

unambiguously precludes a district court from considering 

such conduct. The Government, on the other hand, contends 

this language is genuinely ambiguous, enabling courts to 

consult the list of “appropriate considerations” in the 

commentary, including “voluntary termination or withdrawal 

from criminal conduct or associations,” U.S.S.G. § 3E1.1 cmt. 

n.1(B), and “post-offense rehabilitative efforts (e.g., 

counseling or drug treatment),” id. cmt. n.1(G).2

1 The District Court had jurisdiction under 18 U.S.C. § 3231. 

We have jurisdiction under 28 U.S.C. § 1291. We review the 

District Court’s interpretation of the Sentencing Guidelines de 

novo, United States v. Adair, 38 F.4th 341, 347 (3d Cir. 2022), 

and we review its “determination of whether the defendant is 

entitled to an acceptance of responsibility . . . for clear error,” 

United States v. Harris, 751 F.3d 123, 126 (3d Cir. 2014). 

2 In full, that non-exhaustive list of considerations covers: 

“(A) truthfully admitting the conduct comprising the offense(s) 

of conviction, and truthfully admitting or not falsely denying 

any additional relevant conduct for which the defendant is 

accountable under § 1B1.3 (Relevant Conduct). . . . ; 

(B) voluntary termination or withdrawal from criminal conduct 

or associations; (C) voluntary payment of restitution prior to 

adjudication of guilt; (D) voluntary surrender to authorities 

promptly after commission of the offense; (E) voluntary 

assistance to authorities in the recovery of the fruits and 

instrumentalities of the offense; (F) voluntary resignation from 

the office or position held during the commission of the 

offense; (G) post-offense rehabilitative efforts (e.g., counseling 

or drug treatment); and (H) the timeliness of the defendant's 
6 

To resolve that question, we apply the three-step 

framework set forth in United States v. Nasir, 17 F.4th 459 (3d 

Cir. 2021) (en banc). First, we ask whether a Guideline 

provision is “genuinely ambiguous” by “carefully 

consider[ing] the [Guideline’s] text, structure, history, and 

purpose.” Id. at 471 (quoting Kisor v. Wilkie, 139 S. Ct. 2400, 

2415 (2019)). If the Guideline itself is unambiguous, our 

inquiry is at an end, and we simply disregard the commentary. 

Id. If the Guideline is instead ambiguous, we proceed to step 

two and consider whether the corresponding commentary is 

“reasonable,” i.e., within “the outer bounds of permissible 

interpretation,” id., but we “accord the commentary no weight” 

when it “expands the definition” of a term within the text of the 

Guidelines, United States v. Banks, 55 F.4th 246, 258 (3d Cir. 

2022). At the third step, if the commentary reasonably 

interprets an ambiguous provision, we ask “whether the 

character and context of the agency interpretation entitles it to 

controlling weight.” Nasir, 17 F.4th at 471. In other words, 

we afford that interpretation so-called Auer deference only if it 

“implicate[s] [the Commission’s] substantive expertise” and 

“reflect[s] fair and considered judgment.” Id. (citations 

omitted). We consider § 3E1.1(a) at each step below. 

A. The Guideline Is Genuinely Ambiguous

To discern if a Guideline is “genuinely ambiguous,” id., 

we look to contemporary “dictionary definitions while keeping 

in mind the whole statutory text, the purpose, and context of 

the statute, and relevant precedent,” United States v. Brow, 62 

F.4th 114, 120 (3d Cir. 2023) (citation omitted); Adair, 38 

F.4th at 348, 350; Banks, 55 F.4th at 257. 

1. Text and Dictionary Definitions 

Section 3E1.1(a) authorizes a downward adjustment 

when a defendant has “clearly demonstrate[d] acceptance of 

responsibility for his offense.” U.S.S.G. § 3E1.1(a). The 

parties here largely agree on the applicable definition for each 

individual word in that text. They agree, in other words, that a 

defendant satisfies his burden under § 3E1.1(a) if he can “show 

clearly” by “evidence” that he “t[ook] . . . with a consenting 

conduct in manifesting the acceptance of responsibility.” 

U.S.S.G. § 3E1.1 cmt. n.1(A)–(H). 
7

mind” “moral, legal, or mental accountability” for his 

“infraction of law,” as reflected by his “contrition, remorse, 

and ownership of action.”3 Answering Br. 14–15, 21; Opening 

Br. 12, 18–19.

From there, however, they part ways. Mercado 

contends this language “unambiguously delineates the conduct 

that the defendant must ‘clearly’ acknowledge and accept 

responsibility for: conduct that violated the statute for which

he is being sentenced,” Opening Br. 20, which precludes a 

district court from considering “unrelated” post-plea criminal 

conduct, id. at 8. The Government, by contrast, homes in on 

the term “demonstrates” and the need to show accountability 

“clearly” and by “evidence.” Answering Br. 15–16. The 

ordinary meaning of “demonstrates,” it contends, does not tell 

us how a defendant can make this showing or what evidence is 

relevant, and nothing else in the text clarifies that nebulous 

burden.

The Government has it right. Mercado’s reading fails 

to grapple with the possibility that demonstrating one’s 

acceptance of responsibility for a particular offense might 

include refraining from additional criminal activity. More 

importantly, Mercado fails to explain why § 3E1.1(a) 

unambiguously forecloses such a reading. He would have us 

prohibit a district court from considering anything beyond a 

defendant’s words of remorse at a plea or sentencing hearing,

yet offers no reason, textual or otherwise, why we should draw 

that arbitrary line. The dictionary definitions on which he 

relies suggest we should not. As Mercado notes, “to 

demonstrate” means “to show clearly,” Opening Br. 18, yet to 

“show” means to “to reveal by one’s condition, nature, or 

3 Mercado largely draws his definitions from WEBSTER’S NEW 

TWENTIETH CENTURY DICTIONARY (2d ed. 1979) and 

WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY (9th ed. 

1985). The Government draws nearly all definitions from 

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (2002). 

Given that the final relevant amendment to § 3E1.1(a) occurred 

in 1992, to the extent there is a discrepancy, Mercado’s 

contemporaneous definitions control. But again, given the 

overall consensus, the meaning of each individual word has 

little impact on our analysis.
8 

behavior,” WEBSTER’S NINTH NEW COLLEGIATE

DICTIONARY 1091 (1988) (emphasis added). So whether a 

person has “demonstrated” acceptance of responsibility turns 

on both words and deeds. It is not limited—let alone 

“unambiguously” limited—to verbal expressions of remorse. 

As a fallback, Mercado also urges that even if a district 

court may consider some post-plea conduct, it cannot consider 

post-plea conduct that is “irrelevant,” Opening Br. 2, or 

“unrelated” to “the offense of conviction,” id. at 13, because 

the demonstration of acceptance must be “for his offense,” 

U.S.S.G. § 3E1.1(a). But those words cannot bear the weight 

he would place on them. The phrase “for his offense” merely 

specifies the crime for which a defendant is accepting 

responsibility—not the conduct by which he demonstrates that 

acceptance. The text, in other words, references two

temporally distinct sets of conduct. First is the conduct 

encapsulated by the term “his offense,” which, we agree with 

Mercado, means the conduct underlying the offense of 

conviction and for which the district court is sentencing the 

defendant. But the district court must also determine—based 

on evidence of the defendant’s post-offense words and 

conduct—whether the defendant is genuinely remorseful for 

having committed that offense. And it is in ascertaining what 

conduct constitutes evidence of remorse that textual ambiguity 

arises. Put differently, the fact that the defendant is seeking an 

acceptance-of-responsibility reduction in the sentence he

receives “for his offense” does not eliminate the ambiguity in 

how he evinces acceptance.

2. Other Tools of Statutory Interpretation 

Nasir instructs that we deploy all tools of statutory 

interpretation to determine ambiguity, including purpose, 

history, and precedent. 17 F.4th at 471. In some cases that 

may warrant an exhaustive review. See, e.g., Adair, 38 F.4th 

at 348. But here, where the text and context of the Guideline 

make ambiguity patent, these other tools are of limited utility. 

As for purpose, Mercado asserts only that a singular 

reference to “legitimate societal interests” in § 3E1.1(a)’s 

background section makes his reading unambiguously correct. 

Opening Br. 20. To be sure, encouraging a guilty plea via a 
9 

sentence reduction furthers certain legitimate societal interests, 

see, e.g., Minnick v. Mississippi, 498 U.S. 146, 167 (1990) 

(Scalia, J., dissenting), but so does withholding a reduction for 

continued criminal activity, U.S.S.G. § 3E1.1 cmt. 

background. In any event, the background section also states 

that “a defendant . . . clearly demonstrates acceptance of 

responsibility for his offense by taking, in a timely fashion, the 

actions listed above (or some equivalent action),” id., and those 

actions include the “voluntary termination or withdrawal from 

criminal conduct or associations,” id. cmt. n.1(B), and “postoffense rehabilitative efforts (e.g., counseling or drug 

treatment),” id. cmt. n.1(G). 

The Guideline’s history also does little to move the ball. 

Mercado accurately recounts its historical progression from 

requiring acceptance of responsibility for “the offense of 

conviction” in its initial iteration, U.S.S.G. § 3E1.1 (1987), 

then for “his criminal conduct” in 1988, see U.S.S.G. § 3E1.1 

amd. 46 (Jan. 15, 1988), and finally, in 1992, “for his offense,” 

see U.S.S.G. § 3E1.1 amd. 459 (1992). But those amendments 

were to the terminology for the offense conduct for which the 

defendant was sentenced and required to show remorse; the 

phrase “clearly demonstrates” was left unchanged, providing 

no additional insight into how the defendant goes about 

showing that remorse. 

The 1992 amendment, moreover, revised § 3E1.1(a)’s 

Application Note 3 in two ways that suggest the Commission

considered unrelated post-offense conduct to be relevant. For

one, it specified that evidence of acceptance included not only 

“admitting the conduct comprising the offense of conviction,” 

but also “additional relevant conduct for which he is 

accountable under § 1B1.3.” Id. For another, it recognized 

that evidence of acceptance could be “outweighed by conduct 

of the defendant that is inconsistent with such acceptance of 
10 

responsibility.” Id. Thus, § 3E1.1(a)’s history also supports a 

finding of ambiguity.4

So does our precedent. Before Nasir, we tackled this 

very issue in United States v. Ceccarani, 98 F.3d 126 (3d Cir. 

1996), and while Ceccarani no longer controls, its underlying 

reasoning remains valid. In holding that § 3E1.1(a) did not

“preclude[] consideration of unrelated criminal conduct in the 

acceptance of responsibility determination,” we explained that 

“the language of § 3E1.1 . . . is very general,” and given that 

ambiguity, we relied heavily on the commentary, which 

expressly swept in post-plea criminal conduct and did “not 

specify that the appropriate considerations include only 

conduct related to the charged offense.” Id. at 130. 

That reasoning is consistent with the pre- and postKisor conclusions of every other circuit—with the lone 

exception of the Sixth—that “[e]ven unrelated criminal 

conduct may make an acceptance of responsibility reduction 

inappropriate,” United States v. Cooper, 998 F.3d 806, 811

(8th Cir. 2021) (alteration in original) (citation omitted), and 

that “post-offense conduct may be highly relevant to whether 

a defendant sincerely accepted responsibility for his crime,” 

United States v. McCarthy, 32 F.4th 59, 64 (1st Cir. 2022), with 

our sister circuits often expressly noting that “Guideline 

§ 3E1.1 does not preclude the sentencing judge . . . from 

considering unlawful conduct unrelated to the offense of 

conviction,” Cooper, 998 F.3d at 811 (citation omitted). See

United States v. Strange, 65 F.4th 86, 92 (2d Cir. 2023)

(similar); United States v. Hinojosa-Almance, 977 F.3d 407, 

411 (5th Cir. 2020) (similar); United States v. Tuttle, 63 F.4th 

4

 In United States v. Murillo, we observed that “[o]rdinarily, all 

‘relevant conduct’ [as defined in § 1B1.3(a)] should be 

considered,” but we depart from that presumption if a 

particular Guideline provides an “explicit instruction which 

mandates a departure,” such as the use of “offense of 

conviction.” 933 F.2d 195, 198–199 (3d Cir. 1991). Here, in 

contrast, the commentary tells us to consider (1) “any 

additional relevant conduct,” and (2) “conduct . . . that is 

inconsistent with such acceptance of responsibility.” U.S.S.G. 

§ 3E1.1 cmt. n.3 (emphasis added). 
11 

673, 675–77 (8th Cir. 2023) (similar); United States v. Finnesy, 

953 F.3d 675, 702 (10th Cir. 2020) (similar).5

In sum, the text of § 3E1.1(a) is ambiguous, and the 

purpose, history, and precedent relating to the Guideline only 

confirm that ambiguity. 

B. Reasonableness of the Commentary

We need not tarry on the question of whether the 

Commission’s interpretation in the commentary is 

“reasonable,” Nasir, 17 F.4th at 471, as Mercado does not 

dispute it, and with good reason. 

For commentary to be reasonable, it must not 

“improperly expand[] the Guideline,” Banks, 55 F.4th at 253, 

and must remain within “the outer bounds of permissible 

interpretation,” Nasir, 17 F.4th at 471 (citation omitted). We 

explained in Ceccarani why § 3E1.1(a)’s commentary meets 

that test: the enumerated factors “bear on an important aspect 

of any criminal sentence—the defendant’s genuine feeling of 

remorse and his or her rehabilitation efforts,” and “[c]ontinual 

criminal activity, even differing in nature from the convicted 

offense, is inconsistent with an acceptance of responsibility 

and an interest in rehabilitation.” 98 F.3d at 130. As the 

Government aptly puts it, the commentary merely “provides a 

non-exhaustive list of factors that may demonstrate whether a 

defendant has demonstrated the level of contrition, remorse, 

and ownership of action necessary to clearly demonstrate 

acceptance of responsibility for his offense.” Answering Br. 

21 (emphasis removed). And if we start from the position that 

the text puts no bounds on how to clearly demonstrate 

5 See also United States v. O’Neil, 936 F.2d 599, 600–01 (1st 

Cir.1991); United States v. Chu, 714 F.3d 742, 747–48 (2d Cir. 

2013); United States v. Watkins, 911 F.2d 983, 985 (5th 

Cir.1990); United States v. McDonald, 22 F.3d 139, 143–44 

(7th Cir.1994); United States v. Arellano, 291 F.3d 1032, 1035 

(8th Cir. 2002); United States v. Mara, 523 F.3d 1036, 1038

(9th Cir. 2008); United States v. Prince, 204 F.3d 1021, 1023–

24 (10th Cir. 2000); United States v. Pace, 17 F.3d 341, 343–

44 (11th Cir. 1994); but see United States v. Morrison, 983 

F.2d 730, 733–35 (6th Cir. 1993). 
12 

responsibility, a non-exhaustive list that narrows that universe 

can hardly be said to expand it. 

C. The Commentary Invokes the Commission’s 

Substantive Expertise

At Nasir’s final step, we ask whether an otherwise 

reasonable interpretation of an ambiguous Guideline is entitled 

to “controlling weight.” 17 F.4th at 471. To make that 

assessment, we consider whether the interpretation is the 

Commission’s “official position,”6 “in some way implicates its 

substantive expertise,” and “reflect[s] fair and considered 

judgment” such that it is not simply a “convenient litigating 

position.” Id. (citations omitted). 

Contrary to Mercado’s suggestion, Adair is not 

controlling as to the two comments we consider today. In that 

case, we considered whether the commentary for § 3E1.1(b)

was entitled to Auer deference. 38 F.4th at 359–60. Section 

3E1.1(b) provides for an additional one-point reduction if a 

defendant has, among things, “assisted authorities in the 

investigation or prosecution of his own misconduct,” but only 

“upon motion of the government” requesting a reduction on 

that basis. U.S.S.G § 3E1.1(b). Application Note 6 of the 

commentary purports to limit the Government’s discretion

under the Guideline, stating that the Government “should not 

withhold such a motion based on interests not identified in

§ 3E1.1, such as whether the defendant agrees to waive his or 

her right to appeal.” U.S.S.G § 3E1.1 cmt. n.6. In concluding 

that Application Note 6 should “not receive controlling 

deference,” we reasoned that the Commission’s attempts to 

confine the Government’s prosecutorial discretion—based on 

its read of the Guideline’s “upon motion of the government” 

language—did “not invoke its data-driven expertise on 

criminal sentencing,” but rather engaged in a “legal 

interpretation” and an “application of the canons of 

construction.” Adair, 38 F.4th at 360. Put differently, we 

found that the Commission’s position on whether particular 

6 Mercado does not argue that the commentary is anything 

other than the Sentencing Commission’s official position, and 

we have seen nothing to indicate that the Commission has 

issued any countervailing statements or positions. 
13 

words or phrases in the Guideline limited the Government’s 

discretion to withhold a given motion had little connection to 

substantive sentencing concerns. 

The same cannot be said here. At bottom, this case 

requires us to determine what evidence a district court may 

consider in assessing whether a defendant has genuinely 

accepted responsibility for his actions. More precisely, the 

question is whether a defendant’s subsequent crimes are in 

some way connected to and indicative of his lack of remorse 

for previous ones. That sort of determination is squarely within 

the Sentencing Commission’s “bailiwick.” Nasir, 17 F.4th at 

471. The Commission has significant “data driven” expertise 

regarding how successive crimes relate to one another and 

routinely releases in-depth reports related to “Recidivism and 

Federal Sentencing Policy” and “Criminal History and 

Recidivism of Federal Offenders.” See, e.g., Recidivism, 

U.S.S.C., available at https://www.ussc.gov/topic/recidivism 

(last visited July 24, 2023). It is therefore optimally positioned 

to opine on what factors indicate that a defendant has or has 

not accepted responsibility for his past criminal activity, and 

whether “voluntary termination or withdrawal from criminal 

conduct or associations,” U.S.S.G. § 3E1.1 cmt. n.1(B), should 

bear on the “legitimate societal interests,” Opening Br. 20, 

underlying a § 3E1.1(a) reduction. 

In light of that expertise, the Commission’s 

interpretation of the Guideline is entitled to Auer deference, 

and we will accord it controlling weight. Nasir, 17 F.4th at 

471.7

7 Even if the Commission’s interpretation were not entitled to 

controlling weight, however, we would be free to consider its 

persuasive force, see Skidmore v. Swift & Co., 323 U.S. 134, 

140 (1944) (holding that “the rulings, interpretations and 

opinions of the Administrator” of the statute in question, 

“while not controlling upon the courts by reason of their 

authority,” were nonetheless available for guidance to the 

extent they had the “power to persuade”), and we would find it 

persuasive enough to follow here. 
14 

D. The District Court Did Not Commit Clear Error 

Mercado bore the burden of establishing by a 

preponderance of the evidence that he was entitled to a 

downward adjustment under § 3E1.1(a), United States v.

Boone, 279 F.3d 163, 193 (3d Cir. 2002), and the District Court 

concluded that he had not carried it. We review that denial for 

clear error, affording the District Court “great deference” 

because it was “in a unique position to evaluate a defendant’s 

acceptance of responsibility.” Id. (citation omitted); United 

States v. Richards, 674 F.3d 215, 219 n.2 (3d Cir. 2012) (citing 

United States v. Booker, 543 U.S. 220, 259–60 (2005) 

(Stevens, J., Concurring)). 

Under that deferential standard, we cannot say that the 

District Court erred in concluding Mercado’s post-plea 

conduct did not demonstrate genuine acceptance of 

responsibility for his offense. Following his plea, Mercado 

repeatedly used cocaine, failed to attend substance abuse 

treatment, and failed to submit to random drug testing, all of 

which were conditions of his pre-sentencing release. Courts 

have routinely upheld the denial of a § 3E1.1(a) adjustment for 

similar or less culpable post-plea conduct, see, e.g., McDonald, 

22 F.3d at 144; United States v. Olvera, 954 F.2d 788, 793 (2d 

Cir. 1992); United States v. Lagasse, 87 F.3d 18, 25 (1st Cir. 

1996), and we will do so for the disturbing pattern of post-plea 

misconduct here. 

III. Conclusion 

For the foregoing reasons, we will affirm the judgment 

of the District Court.