United States Court of Appeals 

For the First Circuit 

No. 14-1732 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

SANTOS ACEVEDO-SUEROS, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

[Hon. José Antonio Fusté, U.S. District Judge] 

Before 

Lynch, Lipez, and Thompson, 

Circuit Judges. 

Guillermo A. Macari-Grillo, on brief for appellant. 

Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson 

Pérez-Sosa, Assistant United States Attorney, Chief, Appellate 

Division, and Francisco A. Besosa-Martínez, Assistant United 

States Attorney, on brief for appellee. 

June 17, 2016 
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LIPEZ, Circuit Judge. Santos Acevedo-Sueros appeals the 

sentence imposed following his guilty plea to four felony counts 

related to a conspiracy to import over 1,300 kilograms of cocaine. 

We affirm. 

I. 

Charged on December 18, 2013, Acevedo-Sueros informed 

the court of his intention to plead guilty on February 12, 2014, 

and entered a straight guilty plea on March 12, 2014. The 

Presentence Investigation Report ("PSR") calculated his Total 

Offense Level ("TOL") at 34, including a two-level downward 

adjustment for acceptance of responsibility under U.S.S.G. 

§ 3E1.1(a). It did not mention the additional one-level decrease 

potentially available for "timely notifying authorities of his 

intention to enter a plea of guilty, thereby permitting the 

government to avoid preparing for trial." U.S.S.G. § 3E1.1(b). 

Acevedo-Sueros did not object to the PSR, nor did his 

sentencing memorandum mention a possible one-level decrease under 

§ 3E1.1(b) or suggest that his total offense level should be 33 

rather than 34. At his sentencing hearing, the court asked whether 

the correct total offense level was 34, and his counsel agreed. 

The court did not ask Acevedo-Sueros whether he had reviewed the 

PSR and discussed it with his attorney. The court ultimately 

sentenced him to concurrent prison terms of 151 months for each of 

the four counts, the low end of the guidelines sentencing range 
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given a TOL of 34 and Criminal History Category ("CHC") I. 

Acevedo-Sueros challenges his sentence, claiming that it is 

procedurally unreasonable on two grounds. We address those grounds 

in turn. 

II. 

Acevedo-Sueros avers that the district court should have 

given him the benefit of an additional one-level reduction in his 

offense level pursuant to § 3E1.1(b). Before addressing the merits 

of his argument, we address a waiver argument raised by the 

government.

A. Waiver 

The government urges that Acevedo-Sueros waived the onelevel reduction issue by failing to raise it below, and hence we 

should not address the issue at all. See generally United States 

v. Olano, 507 U.S. 725, 733-34 (1993) (explaining that "[w]hereas 

forfeiture is the failure to make the timely assertion of a right, 

waiver is the 'intentional relinquishment or abandonment of a known 

right;'" the former may be reviewed for plain error, whereas the 

latter may not be reviewed on appeal (quoting Johnson v. Zerbst, 

304 U.S. 458, 464 (1938))); United States v. Rodriguez, 311 F.3d 

435, 437 (1st Cir. 2002) (finding waiver of an objection to a 

sentencing guidelines calculation where defendant "consciously 

waived the issue").
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The government argues that, in its words, "AcevedoSueros' serial failures to raise this issue at various points 

throughout the proceedings below constitute a waiver, rather than 

a mere forfeiture." As the government points out, he did not 

object to the PSR, which mentioned § 3E1.1(a) but not § 3E1.1(b); 

and he did not raise § 3E1.1(b) in his sentencing memorandum or at 

the sentencing hearing.1 Acevedo-Sueros does not dispute that he 

failed to object to the guidelines calculation as recommended in 

the PSR, or to ask the district court to apply the § 3E1.1(b) 

offense level adjustment at sentencing. In Acevedo-Sueros' view, 

however, this was a mere "lapse in the computation of the offense 

level," and despite his omission the issue may be reviewed for 

plain error under Olano.

Ultimately, we need not decide the waiver issue. Where 

a defendant's claim would fail even if reviewed for plain error, 

we have often declined to decide whether the defendant's failure 

to raise the issue below constituted waiver or mere forfeiture. 

 1 Federal Rule of Criminal Procedure 32(f)(1) requires that 

"[w]ithin 14 days after receiving the presentence report, the 

parties must state in writing any objections, including objections 

to material information, sentencing guideline ranges, and policy 

statements contained in or omitted from the report." The Local 

Rules of the District of Puerto Rico also require that "[w]ithin 

fourteen (14) days from disclosure of the PSR, counsel for the 

government and counsel for the defense shall file . . . written 

objections to the facts or guideline application in the PSR." 

D.P.R. Crim. R. 132(b)(3)(A). The Local Rules add that "[a] party 

waives any objection to the PSR by failing to comply with this 

rule." Id. 
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See, e.g., United States v. Aguasvivas-Castillo, 668 F.3d 7, 13-

14 (1st Cir. 2012). So it is here. Even if Acevedo-Sueros' 

omissions below constitute a mere forfeiture, his argument fails 

on plain error review.

B. Acceptance of Responsibility (U.S.S.G. § 3E1.1(b)) 

Section 3E1.1(b) reads: 

If the defendant qualifies for a decrease under 

subsection (a), the offense level determined prior 

to the operation of subsection (a) is level 16 or 

greater, and upon motion of the government stating 

that the defendant has assisted authorities in the 

investigation or prosecution of his own misconduct 

by timely notifying the authorities of his 

intention to enter a plea of guilty, thereby 

permitting the government to avoid preparing for 

trial and permitting the government and the court 

to allocate their resources efficiently, decrease 

the offense level by 1 additional level. 

U.S.S.G. § 3E1.1(b) (emphases omitted). Acevedo-Sueros argues 

that, because his prompt guilty plea obviated the need for the 

government to prepare for trial, he was entitled to the one-level 

reduction. 

The government responds that, pursuant to § 3E1.1(b), 

the court was not permitted to grant the reduction except "upon 

motion of the government," a motion it never made.2 Its argument 

is bolstered by the relevant application note to § 3E1.1: 

 2 The government acknowledges an exception to the governmentmotion requirement, applicable "when the government's withholding 

of the predicate motion 'was based on an unconstitutional motive' 
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Because the Government is in the best position to 

determine whether the defendant has assisted 

authorities in a manner that avoids preparing for 

trial, an adjustment under subsection (b) may only 

be granted upon a formal motion by the Government 

at the time of sentencing. 

Id. § 3E1.1 cmt. n.6. 

Acevedo-Sueros argues that "the government asked orally 

for the one-level reduction at the sentencing hearing." Though 

his brief provides little explanation, the implication is that 

this oral request satisfied the need for a "motion of the 

government." Id. § 3E1.1(b). 

Acevedo-Sueros evidently relies on the following 

colloquy from the sentencing hearing:

THE COURT: So, [TOL] 34 and [CHC] One is a 

guideline range of 151 to 188 

months, a fine range of $17,500.00 

to 10 million dollars plus a 

supervised release of at least five 

years. 

AUSA: If it is a level 33, it would be 135 

to 168. 

THE COURT: No one said level 33, it is a level 

34. 

AUSA: Yes, okay. 

 

or 'was not rationally related to any legitimate government end.'" 

United States v. Meléndez-Rivera, 782 F.3d 26, 30 (1st Cir. 2015) 

(quoting United States v. Beatty, 538 F.3d 8, 14 (1st Cir. 2008)). 

Acevedo-Sueros does not argue, and there is no evidence to suggest, 

that the Beatty exception applies. See infra. 
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The suggestion that this exchange satisfied the government-motion 

requirement of § 3E1.1(b) is frivolous. This stray comment by the 

prosecutor was not a motion, much less a "formal motion." U.S.S.G. 

§ 3E1.1 cmt. n.6. The district court did not err by not recognizing 

it as such. 

Acevedo-Sueros also makes a second argument, though, 

again, his reasoning is unclear. He suggests that the district 

court made a legal error, believing that "it lacked discretion to 

grant the additional one-level reduction to the offense level under 

§ 3E1.1(b) without a government motion." He points to our holding 

in Meléndez-Rivera that "when the government's withholding of the 

predicate motion 'was based on an unconstitutional motive' or 'was 

not rationally related to any legitimate government end,'" the 

district court may grant the additional one-level reduction even 

absent a government motion. United States v. Meléndez-Rivera, 782 

F.3d 26, 30 (1st Cir. 2015) (quoting United States v. Beatty, 538 

F.3d 8, 14 (1st Cir. 2008)). His argument seems to be that the 

district court declined to consider a downward adjustment under 

§ 3E1.1(b) because it thought it was categorically forbidden from 

doing so absent a government motion. Because there is no such 

categorical prohibition, the argument goes, the district court 

made an error of law that prevented it from granting the reduction. 

The argument has no merit. There is no indication in 

the sentencing hearing transcript that the district court believed 
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it had no authority to grant an additional one-level reduction. 

The court did not opine on § 3E1.1(b) at all, presumably because 

neither the parties nor the PSR brought that guideline to its 

attention. There is no suggestion that the government's sentencing 

recommendations were driven by any improper motive that would have 

allowed the court to substitute its judgment for that of the 

government. 

There was no error -- plain or otherwise -- in the 

court's determination that the proper TOL was 34.

III. 

Acevedo-Sueros also challenges the procedural 

reasonableness of his sentence on the ground that the district 

court did not directly inquire at sentencing whether he had read 

the PSR and reviewed it with his counsel. See Fed. R. Crim. P. 

32(i)(1)(A) (requiring a district court to "verify that the 

defendant and the defendant's attorney have read and discussed the 

presentence report and any addendum to the report"); United States 

v. DeLeon, 704 F.3d 189, 196 (1st Cir. 2013) ("There is no doubt 

'that it is the better practice for trial courts to address the 

defendant directly in order to establish that he or she has had 

the opportunity to read the [PSR] and to discuss it with his/her 

counsel.'" (alteration in original) (quoting United States v. 

Manrique, 959 F.2d 1155, 1157-58 (1st Cir. 1992))). He did not 

raise this issue at sentencing, and thus it was forfeited and may 
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be reviewed only for plain error. See United States v. MangualGarcia, 505 F.3d 1, 15 (1st Cir. 2007).

In asking us to vacate his sentence based on a plain 

error, Acevedo-Sueros bears the burden of showing that "(1) an 

error occurred; (2) the error was clear and obvious; (3) the error 

affected the defendant's substantial rights; and (4) the error 

impaired the fairness, integrity, or public reputation of the 

judicial proceedings." Id. The district court did not ask 

Acevedo-Sueros on the record whether he had read the PSR and 

discussed it with counsel, and on this record it is not "abundantly 

clear . . . that both defendant and his counsel [were] familiar 

with the report." DeLeon, 704 F.3d at 196 (quoting Manrique, 959 

F.2d at 1157). However, we need not decide whether the court's 

omission amounted to clear and obvious error. Because he has not 

shown that his substantial rights were affected, we may not vacate 

his sentence on plain error review. 

The requirement that a defendant show that a plain error 

affected his substantial rights, as relevant here, "means that the 

error must have been prejudicial: It must have affected the 

outcome of the district court proceedings." Olano, 507 U.S. at 

734. A defendant can show prejudice in the context of plain error 

review by pointing to "specific facts," Mangual-Garcia, 505 F.3d 

at 16, that establish "a reasonable probability that, but for the 

error, the district court would have imposed a different, more 
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favorable sentence," id. at 15 (quoting United States v. Gilman, 

478 F.3d 440, 447 (1st Cir. 2007)). 

Acevedo-Sueros argues that this requirement is met 

because the court's alleged failure to verify that he had reviewed 

the PSR with his attorney "was prejudicial since it increased the 

range of his term of imprisonment from 135 to 168 months to 151 to 

188 months." He does not expand on this cursory argument. We 

read his brief to suggest that, if only the court had inquired 

whether he had reviewed the PSR with his counsel, a one-level 

decrease in his offense level would have been granted, resulting 

in a TOL of 33 rather than 34. It is not clear how a question 

from the court would have led to this outcome, and he fails to 

show a reasonable probability that this is so. 

Indeed, even if Acevedo-Sueros had not previously 

reviewed the PSR, and if the court had inquired about his review, 

prompting Acevedo-Sueros and his attorney to discuss the report 

for the first time, we doubt that this review would have drawn 

their attention to § 3E1.1(b), a provision that had not hitherto 

been raised by the parties or the probation office. And even if 

he had asked the government for a motion under § 3E1.1(b), we have 

little basis on which to infer that the government would have 

agreed to his request. Accordingly, we hold that Acevedo-Sueros 

has not carried his burden to show that his substantial rights 
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were affected by the court's alleged failure to satisfy Rule 

32(i)(1)(A).3

Affirmed.4

 3 Acevedo-Sueros also suggests that the district court 

abused its discretion by imposing a substantively unreasonable 

sentence. The argument is only "adverted to in a perfunctory 

manner, unaccompanied by [any] effort at developed argumentation," 

and thus need not be considered. United States v. Zannino, 895 

F.2d 1, 17 (1st Cir. 1990). The argument would fail even if 

considered on its merits, however. Acevedo-Sueros does not come 

close to showing that his sentence -- at the low end of the 

applicable guidelines range -- was unreasonable. See, e.g., United 

States v. Perretta, 804 F.3d 53, 58 (1st Cir. 2015) (finding no 

abuse of discretion where a sentence was within a properly 

calculated guidelines sentencing range); United States v. TorresLandrúa, 783 F.3d 58, 68-69 (1st Cir. 2015) (same). 

4 On January 5, 2016, while we had jurisdiction over this case 

during the pendency of this appeal, the district court entered an 

order purporting to reduce Acevedo-Sueros' sentence to 121 months. 

This was done pursuant to Amendment 782 to the sentencing 

guidelines, which effectively reduced the recommended sentences 

for certain drug crimes. See U.S.S.G. App. C Supp., Amend. 782 

(effective Nov. 1, 2014). This court was not notified. In United 

States v. Maldonado-Rios, 790 F.3d 62 (1st Cir. 2015) (per curiam), 

we made clear that while a sentence is on appeal, the district 

court lacks jurisdiction to reduce that sentence under Amendment 

782. However, nothing in this opinion prevents the district court 

from modifying the sentence once mandate issues. See Boston & 

Maine Corp. v. Town of Hampton, 7 F.3d 281, 282 (1st Cir. 1993) 

("[I]ssuance of the mandate formally marks the end of appellate 

jurisdiction." (quoting Johnson v. Bechtel Assocs. Prof'l Corp., 

801 F.2d 412, 415 (D.C. Cir. 1986))).