United States Court of Appeals

For the First Circuit

No. 99-1053

UNITED STATES OF AMERICA,

Appellee,

v.

ANGEL ORTIZ-SANTIAGO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Héctor M. Laffitte, U.S. District Judge]

Before

 Torruella, Chief Judge,

Selya and Lipez, Circuit Judges,

Carlos Rodriguez Garcia for appellant.

Nelson Pérez-Sosa, Assistant United States Attorney, with

whom Guillermo Gil, United States Attorney, and Jorge E. VegaPacheco, Assistant United States Attorney, were on brief, for

appellee.

May 2, 2000
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SELYA, Circuit Judge. Much to his later chagrin,

defendant-appellant Angel Ortiz-Santiago (Ortiz) joined a

massive conspiracy that imported drugs into Puerto Rico and then

distributed them. Ortiz participated in a successful November

1996 smuggle and an unsuccessful December 1996 smuggle that came

to naught when federal authorities seized the drugs. On the

first occasion he helped to off-load the contraband and on the

second he served as a lookout.

In due course, a federal grand jury returned a twentyone count indictment against more than four dozen defendants.

Three counts targeted the appellant: an omnibus count that

charged the master conspiracy and specific transaction counts

corresponding to the two smuggles in which he had participated.

Attorneys for the appellant and the government proceeded to

negotiate a non-binding plea agreement (the Agreement) under the

aegis of Fed. R. Crim. P. 11(e)(1)(B). The Agreement provided

in substance that the appellant would plead guilty to the

conspiracy count, and that the government would dismiss the

other charges against him. The Agreement further contemplated

that the government would (a) seek to hold the appellant

responsible for only 50-150 kilograms of cocaine, (b) recommend

an optimum three-level credit for acceptance of responsibility,
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see USSG §3E1.1, and (c) recommend a sentence at the nadir of

the applicable guideline sentencing range.

At the disposition hearing, the appellant requested

three other dispensations: a downward departure, a role-in-theoffense adjustment, and recourse to the so-called "safety valve"

provision. The court rebuffed all three requests. It then

premised the appellant's base offense level on the parties' drug

quantity stipulation, reduced the offense level by applying the

three-level adjustment for acceptance of responsibility,

dismissed the "specific transaction" counts, computed the

guideline sentencing range at 135-168 months, and imposed a 135-

month incarcerative sentence. The sentence exceeded the tenyear mandatory minimum sentence applicable to the offense of

conviction. See 21 U.S.C. § 841(b). This appeal ensued.

The appellant launches a multi-pronged attack on his

conviction and sentence. We arrange his contentions in groups

and discuss them sequentially.

I

The appellant asseverates that the district court erred

in failing to grant his request for a downward departure. He

sought that largesse under the Sentencing Guidelines' general

departure provision, which permits a court to sentence outside

the applicable guideline range if it discerns significant
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atypicality due to an aggravating or mitigating circumstance not

adequately taken into account by the Sentencing Commission. See

USSG §5K2.0; see also 18 U.S.C. § 3553(b). The operation of

this provision depends, to a large extent, on the informed

discretion of the sentencing judge. See Koon v. United States,

518 U.S. 81, 98 (1996); United States v. Snyder, 136 F.3d 65, 68

(1st Cir. 1998).

Here, the appellant predicated his departure request

on his responsibility to care for his ailing father. The record

makes manifest that the trial court knew that it could have

departed had it found that the appellant's family situation

warranted such a benefice. The court, however, considered and

rejected the claimed mitigation.

We cannot second-guess this implicit conclusion that

the appellant's familial responsibilities did not sufficiently

distinguish his case from the mine-run. The court of appeals

has no authority to review a district court's discretionary

decision not to depart, whether upward or downward, unless the

putative appellant can show that the district court acted in the

mistaken belief that it lacked the ability to depart. See

United States v. Pierro, 32 F.3d 611, 619 (1st Cir. 1994);

United States v. Hilton, 946 F.2d 955, 957 (1st Cir. 1991). The

appellant has made no such showing. His case thus fits snugly
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within the general rule, not within the long-odds exception to

it. Consequently, we lack jurisdiction to entertain his plaint.

See United States v. Rivera-Maldonado, 194 F.3d 224, 236 (1st

Cir. 1999) (refusing to review a district court's denial of a

section 5K2.0 departure request based on family hardship).

II

The appellant next assails the lower court for refusing

to make a downward role-in-the-offense adjustment. In mounting

this attack, he points out that, whereas the drug-smuggling ring

cut quite a wide swath, his participation was limited to

infrequent, relatively low-level tasks. Because he acted once

as a stevedore and once as a lookout, nothing more, he claims an

entitlement to a reduced offense level. See USSG §3B1.2

(describing possible offense-level adjustments for defendants

who occupy "minor" or "minimal" roles).

Role-in-the-offense determinations are notoriously

fact-sensitive, and this case is no exception. The party

seeking the adjustment bears the burden of persuasion. See

United States v. Ocasio, 914 F.2d 330, 332-33 (1st Cir. 1990).

Moreover, appellate review is deferential: the district court's

resolution of a dispute over a defendant's role is reviewed only

for clear error. See id. at 333. "Thus, absent a mistake of
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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).

These principles control here. As the phrase implies,

a minimal participant is one who "plays a minimal role in

concerted activity." USSG §3B1.2, comment. (n.1). The district

court found that this description did not fit the appellant. In

view of the appellant's on-the-scene involvement in two largescale smuggles, that finding is not open to serious challenge.

See, e.g., United States v. Dimarzo, 80 F.3d 656, 662 (1st Cir.

1996); United States v. Munoz, 36 F.3d 1229, 1238 (1st Cir.

1994); see also United States v. McCarthy, 97 F.3d 1562, 1573

(8th Cir. 1996) (affirming decision not to treat lookout in

large marijuana processing conspiracy as "minimal" participant).

The second wave of the appellant's attack presents a

closer call. Although involved in two smuggles, the appellant

performed only menial tasks and his argument for classification

as a minor participant is not without force. The standard of

review looms large, however, and in the final analysis we uphold

the district court's contrary determination.

A minor participant "means any participant who is less

culpable than most other participants, but whose role could not

be described as minimal." USSG §3B1.2, comment. (n.3). The
1The government had agreed to limit the drug quantity to 50-

150 kilograms of cocaine. To place this into perspective, we

note that the authorities had seized approximately 1,000

kilograms of cocaine at the time of the December 1996 smuggle

alone, not to mention quantities of heroin and marijuana. The

November 1996 affair involved additional (not insubstantial)

amounts of contraband.

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defendant has the burden of proving that he is both less

culpable than most others involved in the offense of conviction

and less culpable than most other miscreants convicted of

comparable crimes. See United States v. Isienyi, ___ F.3d ___,

___ (7th Cir. 2000) [2000 WL 291182, at *2]; Ocasio, 914 F.2d at

333; see also USSG §3B1.2, comment. (n.3 & backg'd.). The

sentencing court supportably found that the appellant had

unloaded a sizable drug shipment and had conducted surveillance

as a member of the conspiracy, and that this participation,

while peripheral in a sense, was enough to warrant categorizing

him as a player rather than as a dabbler.

In the sentencing court's view, this conclusion was

fortified by the fact that the government had not charged the

appellant with anything near the full drug quantity attributable

to the conspiracy.1 A defendant cannot insist on having it both

ways: if he receives a reduced offense level because the

government agrees to understate the quantity of drugs with which

he has been involved, the sentencing court, if it sees fit, may

keep the scales of justice balanced by denying him the added
2Because this claim falters on the facts, we do not need to

consider at any length the possible effect of the Agreement's

"no further adjustments" clause (discussed in section IV,

infra). We note, however, that while the parties' consent to

eschew an adjustment, expressed in a non-binding plea agreement,

does not deprive the sentencing court of power to make the

adjustment, see Fed. R. Crim. P. 11(e)(1)(B), it nonetheless may

be considered by the court for what evidentiary value it may

possess.

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benefit of a mitigating role adjustment. See Isienyi, ___ F.3d

at ___ [2000 WL 291182, at *2]; McCarthy, 97 F.3d at 1574; see

also USSG §3B1.2, comment. (n.4). Given this background, we

cannot say that the district court clearly erred in not finding

that the appellant was entitled to a downward role-in-theoffense adjustment.2 See Isienyi, ___ F.3d at ___ [2000 WL

291182, at *2]; Rivera-Maldonado, 194 F.3d at 234; Graciani, 61

F.3d at 75; Ocasio, 914 F.2d at 333.

III

The appellant's third argument is a variation on the

foregoing themes. Citing United States v. Goodwin, 457 U.S.

368, 380-81 (1982), and United States v. Marrapese, 826 F.2d

145, 147 (1st Cir. 1987), he theorizes that the prosecutors were

disappointed that he could give them no useful information about

the activities of the ring; that this disappointment led them to

become vindictive; and that this vindictiveness prompted them to

misrepresent key facts and oppose any leniency (such as a

downward departure or role-in-the-offense adjustment).
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This suppositious chain of inferences need not detain

us. Absent some evidentiary predicate, direct or circumstantial

— and we discern none in the appellant's wholly conclusory

presentation — merely chanting the mantra of prosecutorial

vindictiveness gets a defendant nowhere. See United States v.

Lanoue, 137 F.3d 656, 665 (1st Cir. 1998); United States v.

Stokes, 124 F.3d 39, 46 (1st Cir. 1997); United States v.

Sutherland, 929 F.2d 765, 772 n.2 (1st Cir. 1991).

To be sure, the appellant points to one hard fact: he

notes that certain other coconspirators pled guilty and then

received somewhat shorter sentences than he did. But this

circumstance does not advance his cause. Disparity in

sentencing amongst coconspirators, without more, is not enough

to justify a downward departure. See United States v. Wogan,

938 F.2d 1446, 1448 (1st Cir. 1991). By like token, such

differentials, in and of themselves, are inadequate to raise a

presumption of prosecutorial vindictiveness. See United States

v. Ellis, 975 F.2d 1061, 1066 & n.2 (4th Cir. 1992); cf. United

States v. Rodriguez, 162 F.3d 135, 151-52 (1st Cir. 1998)

(discussing wide variety of factors that might justify disparate

sentences as between coconspirators), cert. denied, 526 U.S.

1152 (1999).

IV
3Here, for example, the safety valve, if applicable, would

operate to reduce the appellant's base offense level by two

levels, yielding a guideline sentencing range of 108-135 months.

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The most salient issue in this appeal implicates the

district court's conclusion that the appellant did not qualify

for the safety valve. Insofar as such a ruling hinges on

differential factfinding, we review it for clear error. See

United States v. Miranda-Santiago, 96 F.3d 517, 527 (1st Cir.

1996). Here, however, the material facts are not in genuine

dispute and the court's ruling rests on a determination of law.

 Hence, our review is plenary. See United States v. White, 119

F.3d 70, 73 n.6 (1st Cir. 1997).

Congress enacted the safety valve provision, 18 U.S.C.

§ 3553(f), in order to mitigate the harsh effect of mandatory

minimum sentences on certain first offenders who played

supporting roles in drug-trafficking schemes. See MirandaSantiago, 96 F.3d at 527 & n.22 (citing H.R. Rep. No. 103-460,

2d Sess., at 4 (1994)). The Sentencing Commission then

incorporated the statutory text verbatim into the Sentencing

Guidelines. See USSG §5C1.2. When applicable, these provisions

mandate both reduction of the defendant's offense level and

judicial disregard of statutes imposing mandatory minimum

sentences.3 The safety valve applies if
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(1) the defendant does not have more than 1

criminal history point . . . ;

(2) the defendant did not use violence or

credible threats of violence or possess a

firearm or other dangerous weapon (or induce

another participant to do so) in connection

with the offense;

(3) the offense did not result in death or

serious bodily injury to any person;

(4) the defendant was not an organizer,

leader, manager, or supervisor of others in

the offense . . . and was not engaged in a

continuing criminal enterprise . . . ; and

(5) not later than the time of the

sentencing hearing, the defendant has

truthfully provided to the Government all

information and evidence the defendant has

concerning the offense or offenses that were

part of the same course of conduct or of a

common scheme or plan . . . .

18 U.S.C. § 3553(f); USSG §5C1.2.

The record strongly suggests — and at oral argument in

this court the Assistant United States Attorney pretty much

conceded — that the appellant satisfies all these criteria: he

has no prior criminal record; he did not carry a firearm,

threaten violence, engage in activity that was shown to involve

death or serious bodily harm to others, or occupy a leadership

role in the criminal enterprise. Moreover, he seems to have

been forthcoming in his post-arrest discussions with the

authorities. Citing these facts, the appellant's counsel asked

the sentencing court to apply the safety valve. The government

objected, asserting that the request contravened the Agreement.

The court accepted this assertion. We do not.
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The language in the Agreement on which the government

relied declares that, aside from those adjustments that are

expressly delineated in the Agreement, "no further adjustments

to the defendant's total offense level shall be made." We do

not believe the quoted language can support the gloss that the

government places upon it, or that it can be read to bar

judicial recourse to the safety valve. We explain briefly.

In general, courts interpret plea agreements more or

less as contracts. See United States v. Alegria, 192 F.3d 179,

183 (1st Cir. 1999). "That means, of course, that an inquiring

court should construe the written document within its four

corners, 'unfestooned with covenants the parties did not see fit

to mention.'" Id. at 185 (quoting United States v. Anderson,

921 F.2d 335, 338 (1st Cir. 1990)). We have been scrupulous in

holding defendants to the terms of the plea agreements that they

enter knowingly and voluntarily, see, e.g., id.; United States

v. Guzman, 85 F.3d 823, 829 (1st Cir. 1996); Anderson, 921 F.2d

at 337-38; United States v. Hogan, 862 F.2d 386, 388-89 (1st

Cir. 1988), and we must be equally steadfast in dealing with the

government, cf. United States v. Caraballo-Cruz, 52 F.3d 390,

393 (1st Cir. 1995) (explaining that, "in fairness, what is

sauce for the defendant's goose is sauce for the government's

gander").
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The term "adjustments," when used in the federal

sentencing context, simply does not encompass the safety valve

provision. Chapter three of the Guidelines Manual, entitled

"adjustments," describes a variety of potential increases and

decreases that may be made in the course of determining a

defendant's adjusted offense level. That chapter does not

mention the safety valve — a provision that is located in

chapter five, see USSG §5C1.2, along with other provisions that

guide the ultimate sentencing determination. Those provisions

operate dehors the Sentencing Guidelines proper. See United

States v. Joetzki, 952 F.2d 1090, 1097 (9th Cir. 1991). Thus,

the items delineated in chapter five, including the safety

valve, are not "adjustments." In the case of the safety valve,

this distinction is critical: the safety valve is not intended

to affect the calculation of the defendant's offense level per

se, but, rather, to operate as a limitation on the applicability

of mandatory minimum sentences. See United States v. Scharon,

187 F.3d 17, 22 (1st Cir. 1999); H.R. Rep. No. 103-460, supra.

The short of it is that the language in the Agreement to which

the government alludes cannot be stretched to relate to the

safety valve.

If any doubt remains — and we have none — this

conclusion is bolstered by considering the nature of the safety
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valve. Even within chapter five, the safety valve is sui

generis. While it operates somewhat like a downward departure

(i.e., it yields, in the end, a reduced sentence), an important

difference exists. Departures are inherently permissive, see,

e.g., United States v. Dethlefs, 123 F.3d 39, 44-45 (1st Cir.

1997), whereas the safety valve — when it applies — is

mandatory. Congress provided in clear language that, if a

defendant satisfies the statutory criteria (virtually all of

which are objective), the court shall disregard the mandatory

minimum and fashion the sentence accordingly. See 18 U.S.C. §

3553(f); accord USSG §5C1.2; see also Miranda-Santiago, 96 F.3d

at 528 (noting that if "a defendant has met the five

requirements of the [safety valve], the judge is required to set

aside the mandatory minimum").

The obligatory nature of the provision possesses

decretory significance for the purposes of this case. In a nonbinding plea agreement, the government cannot contract around

the safety valve; the most that it can do is attempt to persuade

the sentencing court that the provision does not apply. See Fed

R. Crim. P. 11(e)(1)(B); see also United States v. Bradstreet,

___ F.3d ___, ___ (1st Cir. 2000) [No. 99-1267, slip op. at 10]

("Sentencing, after all, is a matter for the district court and

not for the government."). The court then must pass upon the
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matter, exercising its independent judgment. See United States

v. Thompson, 81 F.3d 877, 880 (9th Cir. 1996). In that

exercise, the court must bear in mind that the safety valve is

a congressional directive. The court cannot reject it on

equitable grounds, but must sift through the statutory criteria

and, if it determines that those criteria have not been met,

must elucidate specific reasons why the provision does not

apply. See Scharon, 187 F.3d at 23 (finding "bare conclusions"

insufficient to disqualify defendant from safety valve);

Miranda-Santiago, 96 F.3d at 529-30 (similar).

In this instance, the court made no such findings. It

simply concluded that the Agreement blocked the application of

the safety valve. In reaching this conclusion, it gave to the

Agreement more force than it deserved and read into it an

understanding that was not conveyed in the text. In these

respects, the court erred as a matter of law. Consequently, the

appellant's sentence must be vacated and the case remanded for

resentencing.

V

We have one more bridge to cross. When the probation

department produced the appellant's presentence investigation

report (PSI Report), difficulties immediately became apparent.

The government had for some unexplained reason created two
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different versions of the facts anent Ortiz's culpability. One

version (which had been used during the change-of-plea colloquy

and in the Agreement) accurately limited his participation to

surveillance and off-loading. The PSI Report, however,

contained a different, more sinister version — one which

included apparently erroneous statements to the effect that the

appellant had distributed cocaine and helped to collect drugtrafficking proceeds. To make a bad situation worse, the PSI

Report characterized both surveillance and unloading in the

plural, making it appear that the appellant had performed each

task more than once.

The appellant objected to these rather blatant

inaccuracies. The district court indicated its awareness of the

true facts and stated that it would ignore the unfounded

allegations and correct the PSI. The appellant complains that

the district court should have followed through on this pledge.

We agree.

Fed. R. Crim. P. 32(c)(1) provides that the district

court, when faced with a timely challenge, must deal with

factual disputes about material contained in a PSI Report in one

of two ways: either resolving the conflict or deeming the

material irrelevant to the sentencing determination. See United

States v. Van, 87 F.3d 1, 3 (1st Cir. 1996) (explicating
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operation of Rule 32(c)). But the court also must correct the

error or otherwise indicate in writing that the challenged

material is either wrong or irrelevant. See United States v.

Levy, 897 F.2d 596, 599 (1st Cir. 1990). Insistence on this

protocol is not mere pettifoggery: corrections to the PSI

Report are important because the Report will follow the

defendant as he passes through the justice system affecting

classification decisions and a wide variety of other

determinations.

On this occasion, the district court stated that it

would see that the necessary corrections were made, but, for

aught that appears, did not follow through. The court should

have appended an appropriate written statement to the PSI Report

or otherwise ensured that the necessary modifications were made.

On remand, the court should attend to this detail. See id.

VI

We need go no further. For the reasons stated, we

vacate the appellant's sentence and remand for resentencing

consistent with this opinion.

Vacated and remanded.