United States Court of Appeals For the First Circuit
No. 24-1583
UNITED STATES OF AMERICA,
Appellee,
v.
ADAM JOHNSON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
[Hon. Lance E. Walker, U.S. District Judge]
Before
Montecalvo, Kayatta, and Rikelman, Circuit Judges.
Ronald W. Bourget for appellant. Brian S. Kleinbord, Assistant U.S. Attorney, with whom Craig M. Wolff, Acting U.S. Attorney, was on brief, for appellee.
May 28, 2026 KAYATTA, Circuit Judge. A jury convicted Adam Johnson
of conspiracy to distribute and to possess with intent to
distribute 400 grams or more of fentanyl in violation of 21 U.S.C.
§§ 846, 841(a)(1), and 841(b)(1)(A). On appeal, Johnson contends
that the proceedings below were tainted by the court's failure to
hold an evidentiary hearing before denying his motions to exclude
his plea and cooperation agreements as well as his grand jury
testimony. Johnson also challenges his sentence, asserting that
the court erred in enhancing his offense level based on testimony
of a deceased witness and in refusing to grant him credit for
acceptance of responsibility despite his prior cooperation.
Finding Johnson's arguments either unpreserved or
lacking merit, we affirm the verdict and sentence. Our reasoning
follows.
I.
This case presents an unusual procedural history
spanning over half a decade, five different defense attorneys, and
two district court dockets.
On February 21, 2018, New Hampshire State Police stopped
Johnson for a defective taillight and found fifty-three grams of
heroin on his person. Johnson confessed to purchasing drugs and
provided information regarding several distributors, after which
he was extradited to Maine on a warrant for a failure to appear in
a separate matter. Upon his return to Maine, Johnson enrolled as
- 2 - a confidential source (CS) for the Drug Enforcement Agency (DEA).
He entered into two agreements with the DEA, beginning on May 31,
2018. 1 The DEA anticipated that, in exchange for his
cooperation -- which included providing real-time information to
agents and disclosing information about his suppliers -- Johnson
would not be charged with possessing heroin at the time of his
February arrest.
But Johnson's work as a CS did not itself entitle him to
immunity from any and all criminal charges. Around January 3,
2019, the government served Johnson with a target letter stating
that they had received "substantial evidence relating to [his]
violation of federal narcotics trafficking laws." Johnson
received his first appointed counsel at that point. Although he
had been terminated as a CS for the DEA, Johnson continued to
cooperate with the government through proffers to government
agents on March 27, 2019, and again on October 29, 2019.2 In the
1 The first agreement pertained to work as a CS from May 31, 2018, through September 1, 2018. The second agreement pertained to work as a CS from September 1, 2018, through December 1, 2018. The DEA deactivated Johnson as a CS on November 29, 2018, due to his incarceration. 2 Johnson signed a "proffer" agreement on March 27, 2019, which provided that "[i]n any prosecution brought" against him, "the Government will not offer in evidence in its case-in- chief . . . any statements made by [Johnson] at the meeting, except in a prosecution for false statements, obstruction of justice or perjury with respect to any acts committed or statements made during or after the meeting or testimony given after the meeting."
- 3 - intervening months, Johnson's first counsel withdrew due to a
conflict of interest. During the October proffer, the government
provided to Johnson and his new appointed counsel an overview of
the proposed plea and cooperation agreements. At some point,
Johnson agreed to testify before a grand jury to assist the
government in its prosecution of other drug distributors.
On December 11, 2019, minutes prior to testifying before
the grand jury, Johnson signed the cooperation and plea agreements.
The plea agreement contained a provision stating that, in the event
of a breach by Johnson, "[t]he United States may use any statement
that [Johnson] made pursuant to this Agreement, including
statements made during plea discussions and plea colloquies, and
the fact that [Johnson] pleaded guilty." Additionally, Johnson
agreed to "waive[] any claim under Rule 410 of the Federal Rules
of Evidence or Rule 11(f) of the Federal Rules of Criminal
Procedure that such statements and guilty plea are inadmissible"
in the event of such breach.
The cooperation agreement also contained a provision
titled "Consequences of Breach," which provided that, if Johnson
"violates or fails to perform any obligations under this Agreement
or under the plea agreement ('a breach'), the United States will
be released from its obligations hereunder and may fully prosecute
[Johnson]." As most relevant to this appeal, under Section A of
the breach provision, Johnson agreed that the government could
- 4 - "use any statement that [he] made pursuant to [the] Agreement,
including statements made during proffers, debriefings, [and]
grand jury sessions" in the event of breach. He further "waive[d]
any claim under Rule 410 of the Federal Rules of Evidence or
Rule 11(f) of the Federal Rules of Criminal Procedure that such
statements and guilty plea are inadmissible."
When Johnson signed the final written agreements just
before testifying to the grand jury, his appointed counsel was not
present. Rather, he was represented by "fill-in" counsel arranged
by his attorney. There is no claim, however, that either written
agreement differed in relevant substance from what was discussed
at the October meeting between Johnson, his appointed counsel, and
the government. In his testimony before the grand jury, Johnson
confirmed both that he had had enough time to discuss the
agreements with the substitute attorney and that he was comfortable
proceeding with the substitute attorney. Johnson further admitted
to distributing fentanyl and heroin to support his addiction, and
he named his supplier and other distributors. When asked if he
hoped to receive a lower sentence for his cooperation, Johnson
responded, "Yes."
The following month, on January 29, 2020, the government
filed an information charging Johnson with conspiracy to
distribute and to possess with intent to distribute 400 grams or
more of fentanyl in violation of 21 U.S.C. §§ 846, 841(a)(1), and
- 5 - 841(b)(1)(A). Johnson was first scheduled to plead guilty to this
information on February 12, 2020 -- the same date of his
arraignment on the information and his waiver of indictment. That
hearing was initially rescheduled for unknown reasons to
February 28 and then to March 25, 2020. On March 19, 2020, the
court again rescheduled Johnson's hearing to May 13, 2020, in
accordance with the COVID-19 pandemic general orders. On
April 20, 2020, Johnson's appointed counsel filed a motion to
withdraw from his case. The court granted that motion and
cancelled the May 13 hearing via minute order, stating it would
reschedule the hearing when "the Court resume[d] in-court
appearances." On October 8, 2020, Johnson's new attorney -- his
third to that point -- filed a motion requesting his plea hearing
be continued. After several more continuances, on August 24,
2021, the plea hearing was cancelled. A few weeks later, Johnson's
attorney filed a motion to withdraw from his case. The district
court made its grant of the motion "contingent upon [Johnson]
submitting a new financial affidavit and it being approved by the
Court." Neither Johnson nor his attorney submitted a new
financial affidavit.
On October 14, 2021, 51 days after the cancellation of
Johnson's most-recently scheduled guilty plea hearing, the
government filed a letter stating it would no longer be pursuing
the information in the original case, No. 20-cr-00015, and would
- 6 - instead be indicting Johnson on the same charges in a new case,
No. 21-cr-00156. In its letter, the government did not allege
that Johnson had breached his plea agreement.
Following entry of the indictment, Johnson was again
scheduled to plead guilty. After a continuance, Johnson cancelled
his hearing. His appointed counsel -- his fourth since the initial
target letter -- then filed a motion on April 28, 2022, requesting
a continuance to allow counsel time to prepare for trial and file
pretrial motions, stating that, "[a]fter further deliberations,"
Johnson "ha[d] elected to proceed forward to trial."
In October 2022, Johnson's attorney filed a motion in
limine to exclude statements Johnson made subsequent to signing
the plea and cooperation agreements, including his testimony
before the grand jury. Johnson's attorney reiterated that Johnson
"ha[d] made the decision to proceed to trial, rather than enter a
plea," and that "[t]he Government has indicated it views this as
a breach of the Agreements . . . and therefore intends to use
[Johnson's] statements made subsequent to the execution of the
Agreements at trial, including statements he made before the grand
jury." In the motion in limine, Johnson's attorney argued
Johnson's entry into the agreements was not knowing, contending
that his then-attorney never reviewed the agreements with him and
was not present when he signed the agreements; that his
then-attorney did not provide him with discovery; that he never
- 7 - entered a guilty plea in compliance with Federal Rule of Criminal
Procedure 11(f); and that he did not understand the consequences
of waiving his rights under the agreements.
In response, the government presented evidence to the
contrary, including Johnson's sworn testimony before the grand
jury, where he affirmed that he wished to proceed with the
substitute attorney; that he had had sufficient time to review the
agreements with that attorney; and that he understood that, if he
provided false testimony, he "could receive extra charges" or "lose
any rights that [he] had during the proffer agreement." In August
2023, the district court denied Johnson's motion in limine and
granted the government permission to introduce Johnson's
statements at trial. Considering Johnson's testimony before the
grand jury and the absence of any "reasonable alternative
explanation" indicating a lack of knowledge, the district court
found Johnson had knowingly entered into the plea agreement and
then subsequently breached it by refusing to enter the agreed-upon
plea.
Months later and just a few days prior to Johnson's jury
trial, Johnson's new -- and fifth -- attorney filed another motion
in limine to exclude the plea agreement and grand jury testimony
on the basis that Johnson believed "the plea agreement was placed
into negotiation" and that "it was the government who breached the
[plea] agreement," not Johnson. The motion also restated that
- 8 - Johnson did not understand the plea agreement. The court orally
denied the motion. Three days later, the court empaneled a jury,
which found Johnson guilty as charged.
After his conviction, the probation office prepared a
Presentence Investigation Report ("PSR") with its sentencing
recommendations pursuant to the United States Sentencing
Guidelines ("Guidelines"). The PSR recommended a sentencing
enhancement for Johnson's role as an "organizer or leader" of
criminal activity pursuant to Guidelines section 3B1.1 and
suggested that Johnson receive no credit for acceptance of
responsibility under section 3E1.1. In his PSR objections and
sentencing memorandum, Johnson both opposed the characterization
of his role as an "organizer or leader" and requested credit for
acceptance of responsibility despite having taken his case to
trial.
The court was not convinced. At the sentencing hearing,
the court overruled Johnson's objection to the "organizer or
leader" enhancement and adjusted his offense level upwards by four
points. The court also declined to grant Johnson credit for
acceptance of responsibility under section 3E1.1 of the
Guidelines. The court reasoned that "[e]ven after originally
agreeing to plead guilty, Mr. Johnson elected to go to trial and
disputed whether he conspired to distribute and possess with the
intent to distribute 400 grams or more of fentanyl," and that
- 9 - "[m]any of Mr. Johnson's objections to the PSR continue to
contradict the jury's verdict." 3 And after hearing Johnson's
allocution, the court found that Johnson had failed to "embrac[e]
with humility [his] role" in the offense. In light of all the
factors before it, the court concluded Johnson had not presented
"extraordinary circumstance[s]" that would warrant granting him
two or three points for acceptance of responsibility. The court
did, however, grant Johnson a variance for "at least gesturing
toward something like acceptance" for his initial willingness to
cooperate with the government.
Ultimately, the district court sentenced Johnson to a
below-Guidelines sentence of 180 months in custody. This appeal
followed.
II.
On appeal, Johnson makes three arguments. First, he
contends that the court erred in denying his motions to exclude
statements made in his grand jury testimony and pursuant to his
plea and cooperation agreements. In support of this argument,
Johnson asserts that he did not knowingly or voluntarily sign the
agreements and that the court should have held an evidentiary
3 The court emphasized that it did not "know what led to [Johnson's] decision to withdraw from the plea and cooperation agreements," but that it had been "concerned" to learn that Johnson "had forfeited whatever benefits would have been realized" through the agreements, had he not gone to trial.
- 10 - hearing before resolving his motions. Second, Johnson asks us to
find error in the court's assessment that he qualified as an
"organizer or leader" of the distribution conspiracy based on
statements in the PSR made by a deceased witness who did not
testify at trial. Third, Johnson posits that the court should
have granted him a two-point variance for acceptance of
responsibility for his pretrial cooperation.
We address each argument in turn.
A.
We begin with Johnson's argument regarding his motions
in limine. As best we can tell from his brief and oral argument,
Johnson actually presents two types of arguments here -- one
procedural and one substantive. Procedurally, Johnson contends
that the court should have held an evidentiary hearing prior to
denying his motions in limine. Substantively, Johnson asks us to
find that the court erred in determining that he knowingly entered
into the plea and cooperation agreements, and he presents a new,
undeveloped argument that he did not enter into the agreements
voluntarily.
1.
We first dispose of Johnson's assertion that the court
erred in failing to hold an evidentiary hearing prior to denying
his motions in limine. The government contends Johnson's argument
is unpreserved, as Johnson failed to request an evidentiary hearing
- 11 - before the district court. We agree. In his briefings on appeal,
Johnson does not point to any part of the record suggesting a
request for an evidentiary hearing. At oral argument, Johnson's
counsel directed this court to three separate places in the record
that he says may have contained such a request, namely one of prior
counsel's motions in limine, a sidebar at a hearing on a separate
motion to suppress, and a motion for acquittal filed after trial.
Upon reviewing the record, however, we find no indication that
Johnson requested any sort of motion hearing. Despite filing two
motions in limine with two separate attorneys, Johnson failed to
request any hearing on the exclusion issues he had raised. In the
transcript of the sidebar at the motion-to-suppress hearing,
Johnson's counsel provided the court with notice that he would
file a "future motion" regarding Johnson's cooperation. But we
do not read a vague reference to a future motion as a request for
a hearing on the matter. And in his motion for acquittal, Johnson
argued that the court should exclude his admissions in the plea
and cooperation agreements. Again, he made no argument regarding
the court's failure to hold an evidentiary hearing on the matter.
"If a litigant believes that an error has occurred . . .
during a federal judicial proceeding, he must object in order to
preserve the issue." Puckett v. United States, 556 U.S. 129, 134
(2009). Johnson "cannot fault the district court for not holding
an evidentiary hearing where he 'did not seasonably request such
- 12 - a hearing.'" United States v. Perez-Segura, 126 F.4th 784, 788
(1st Cir. 2025) (quoting United States v. Gertner, 65 F.3d 963,
970 (1st Cir. 1995)).
We therefore review only for "plain error." Fed. R.
Crim. P. 52. "Plain error is a formidable standard of review,
which requires [Johnson to] demonstrate: (1) that an error
occurred (2) which was clear or obvious and which not only
(3) affected [his] substantial rights, but also (4) seriously
impaired the fairness, integrity, or public reputation of judicial
proceedings." United States v. Papantoniadis, 165 F.4th 65, 93
(1st Cir. 2026) (second alteration in original) (quoting United
States v. Candelario-Ramos, 45 F.4th 521, 525 (1st Cir. 2022)).
There was no clear or obvious error here. "[T]he
decision of whether to conduct an evidentiary hearing is left to
the sound discretion of the district court." United States v.
Brown, 621 F.3d 48, 57 (1st Cir. 2010). We begin our review of
that discretion by asking whether "the movant [has made] an
adequate threshold showing that material facts are in genuine doubt
or dispute." United States v. Lilly, 983 F.2d 300, 310 (1st Cir.
1992) (citing United States v. Panitz, 907 F.2d 1267, 1273–74 (1st
Cir. 1990) (collecting cases applying this standard)).
The only disputed facts we can find in this record
pertinent to the motions in limine are the contradictions created
by Johnson's own conflicting arguments: In his first motion in
- 13 - limine, Johnson's attorney admitted that Johnson "ha[d] made the
decision to proceed to trial, rather than enter a plea"; in his
second motion in limine, Johnson contended that "the plea agreement
was placed into negotiation" and that "it was the government who
breached the [plea] agreement," not him. But Johnson failed to
present even a sworn affidavit, let alone any other evidence, that
would support either assertion. Cf. United States v. Calabrese,
645 F.2d 1379, 1390 n.2 (10th Cir. 1981) (finding that allegations
of harassment by government agents "in an unsworn pleading" did
not suffice to "warrant an evidentiary hearing on the issue of
breach" in the face of sworn statements submitted by the
government).
Without showing any dispute of material fact that could
have clearly required the district court to hold an evidentiary
hearing, Johnson's unpreserved challenge to the court's decision
not to hold a hearing fails.
2.
We now turn to Johnson's substantive challenge to the
denial of his motions in limine to exclude his plea and cooperation
agreements, his statements made pursuant to those agreements, and
his resulting grand jury testimony. To this end, Johnson asserts,
first, that he did not voluntarily enter into the agreements
because he "was rushed and without his counsel when reviewing the
documents," and, second, that he did not knowingly enter into the
- 14 - agreements, either because the government had not provided his
attorney with discovery regarding his cooperation, or his attorney
had not provided him with such discovery.
"Basic contract principles apply to the construction of
plea agreements," and we construe ambiguities in such agreements
against the government. United States v. Newbert, 504 F.3d 180,
185 (1st Cir. 2007). We review "questions of law as to the
construction of the agreement" de novo. Id. at 184. We review
factual findings for clear error. Id. at 185.
First, Johnson contends that because he was "rushed" to
sign the plea and cooperation agreements without appointed counsel
present, "[t]he process was insufficient to constitute any
voluntary waivers regarding the materials in the documents." But
Johnson never presented this voluntariness argument below. In his
two separate motions in limine before the district court, Johnson
chose only to challenge his lack of knowledge regarding the
agreements, not whether he had entered them voluntarily. We
review "forfeited theories" for plain error. United States v.
Rivera-Morales, 961 F.3d 1, 12 (1st Cir. 2020). And where a
"[defendant's] brief fails to even mention plain error, let alone
argue for its application," he "waives [his] forfeited claim."
United States v. Martínez-Mercado, 132 F.4th 61, 68–69 (1st Cir.
- 15 - 2025) (first quoting United States v. Cruz-Ramos, 987 F.3d 27, 40
(1st Cir. 2021)). Such is the case here.
Even if we construe his logic as a preserved argument
that he did not knowingly enter into the agreements, Johnson's
sworn testimony before the grand jury belies his contention that
he did not knowingly sign the plea and cooperation agreements
because he was "rushed" to sign the agreements without his court-
appointed attorney. Johnson testified before the grand jury just
minutes after reviewing the agreements. When asked whether he
"fe[lt] comfortable going forward" with substitute counsel,
Johnson affirmed that he did. He further affirmed that he had
sufficient time to discuss the plea and cooperation agreements
with substitute counsel and that he agreed to plead guilty to a
federal drug offense and to cooperate with the government. When
asked what would happen if he provided false testimony, Johnson
responded that he "could be receiving extra charges" or "lose any
rights that [he] had during the proffer agreement." We therefore
agree with the district court's assessment that Johnson had
"provided testimony to the grand jury" wherein he
"affirm[ed] . . . a clear understanding of his obligations and
benefit of his bargain pursuant to the agreements' terms."
Importantly, this is not a case in which the substance
of either a plea agreement or a cooperation agreement was first
disclosed minutes before signing. We have a record here of
- 16 - Johnson's "participation in the plea negotiation process" as well
as "the length of the period during which plea negotiations
persisted." United States v. Adams, 971 F.3d 22, 39 (1st Cir.
2020). Prior to signing the plea and cooperation agreements,
Johnson had met with the government and his attorney on two
separate occasions -- on March 27, 2019, and October 29, 2019 -- to
proffer regarding his involvement in drug trafficking. On the
latter occasion, the government provided Johnson and his attorney
with an overview of the proposed plea and cooperation agreements.
Indeed, the report of that second proffer session states that the
government "explained the Plea and Cooperation Agreement the
United States Attorney's Office was proposing to [Johnson]" and
that, although he had not yet "been provided a copy" by his
attorney, "[Johnson] indicated that he understood the tenets of
the [proposed] agreement." Nor does Johnson's own behavior
suggest that he was uncomfortable with the agreements. Johnson
signed the plea and cooperation agreements on December 11, 2019.
Despite being repeatedly scheduled to plead guilty over the course
of nearly three years, the first time Johnson ever raised the issue
regarding a lack of knowledge in entering into the plea and
cooperation agreements was on October 7, 2022, after choosing to
proceed to trial rather than plead.
- 17 - ii.
Johnson also urges us to find error in the court's denial
of his motions in limine because he did not have discovery
pertaining to his work as a CS prior to entering into the plea and
cooperation agreements. While the government may not suppress
"evidence favorable to an accused . . . [that] is material either
to guilt or to punishment," Brady v. Maryland, 373 U.S. 83, 87
(1963), "[t]here is no general constitutional right to discovery
in a criminal case," Weatherford v. Bursey, 429 U.S. 545, 559
(1977). Indeed, the Supreme Court has held that "the Constitution
does not require the Government to disclose material impeachment
evidence prior to entering a plea agreement with a criminal
defendant." United States v. Ruiz, 536 U.S. 622, 633 (2002).
Johnson's argument is not that the government withheld exculpatory
evidence in violation of his due process rights. Rather, he asks
us to find that he did not enter the agreements knowingly because
he did not have discovery of evidence chronicling his prior
cooperation. Johnson provides no developed argumentation or case
law to support this contention, nor does he explain how the
inability to review his CS agreements affected his understanding
of the plea and cooperation agreements. The argument is therefore
waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990) ("It is not enough merely to mention a possible argument in
the most skeletal way, leaving the court to do counsel's work,
- 18 - create the ossature for the argument, and put flesh on its
bones.").4
We find the substantive challenges to the court's ruling
on the motions in limine unavailing.
B.
We next turn to Johnson's argument that the court erred
in adjusting his offense level under section 3B1.1 of the
Guidelines because it relied on the statements of an unavailable
witness. The court's reliance on these statements was error, says
Johnson, because he was unable to cross-examine the witness, who
was deceased at the time of sentencing.
This circuit has evidenced some inconsistency in the
manner in which it reviews role adjustments under section 3B1.1,
sometimes applying clear error and other times using a mix of de
novo review for legal issues and clear error for factual ones.
See United States v. Goncalves, 123 F.4th 580, 586 n.8 (1st Cir.
2024). Because we find that Johnson's arguments fail on both de
4 At the end of his argument regarding the lack of discovery, Johnson asserts that "[t]he legal impact of the agreements should have been addressed in the plea and cooperation agreement, or at the time of the plea and cooperation agreement." Whether read as a point in support of his discovery argument or a separate argument altogether, this contention -- confined to a single sentence without a citation to the record or case law -- similarly fails for a lack of development.
- 19 - novo and clear error review, we need not resolve that
inconsistency.
We begin with the text of section 3B1.1, which provides,
in relevant part:
If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase [the offense level] by 4 levels.
U.S.S.G. § 3B1.1(a). The comments to the Guidelines also detail
"[f]actors [a] court should consider" in determining whether an
individual exercised a leadership role, including the extent of
his "decision-making authority," his "recruitment of accomplices,"
and "the degree of control and authority [he] exercise[s] over
others." Id. § 3B1.1 cmt. n.4. The burden is on the government
to prove "the applicability of upward role-in-the-offense
adjustments by a preponderance of the evidence," such that the
evidence presented "satisfies both the scope and status
requirements." United States v. Poliero, 81 F.4th 96, 99 (1st
Cir. 2023) (first quoting United States v. Rivera, 51 F.4th 47, 51
(1st Cir. 2022)). As to the scope requirement, the evidence must
"show[] that the enterprise involved five or more participants or
was otherwise extensive"; as to the status requirement, "the
government must show that the appellant acted as an organizer or
leader of the enterprise." Id. at 99–100 (citation modified).
- 20 - The district court first found the scope requirement
met, as the conspiracy involved "at least five individuals,"
including McKayla Burns, Megan Burns, Nicholas Culver, Destiny
Alton, and an individual by the name of Sara or Sonya Englehart.5
The record supported this finding. In addition to the five listed
individuals, the conspiracy also included Erica Nunez and Wilfred
Pimentel, who were Johnson's primary suppliers according to the
PSR. And at Johnson's trial, McKayla and Megan Burns, Culver, and
Alton all testified to receiving or purchasing heroin and/or
fentanyl from Johnson. Megan Burns testified that Johnson would
"front" or "loan" drugs to individuals until they could pay him
back. Culver affirmed as much when he testified that Johnson
would "front" him drugs and Culver would pay him back "after [he]
sold" the drugs to others. During the trial, a DEA special agent
testified that Johnson would travel to his supplier's house, after
which he would "provide Mr. Culver with a bulk of what he would
come back with so Mr. Culver could deal with the retail customers
because Mr. Johnson no longer wanted to do that." The agent also
testified that McKayla Burns would help Johnson sell drugs and, on
one occasion when Nunez traveled from her base of operations in
5Throughout the record and the parties' briefing, Englehart appears variously as "Sara Englehart," "Sara Engelhart," "Sonya Englehart," and "Sonya Englehardt." We defer to Johnson's spelling and refer to this individual as "Englehart."
- 21 - Massachusetts to Maine, assisted Johnson in coordinating meetings
between Nunez and local buyers.
The PSR recounted much of this testimony and also
included statements from one of the coconspirators who died prior
to trial -- Englehart. These statements included Englehart's
reports of purchasing heroin and fentanyl from Johnson,
accompanying him to Massachusetts to purchase drugs from his
supplier, and lending Johnson her then-boyfriend's truck so he
could make one of his trips to purchase drugs. According to the
PSR, Englehart "took direction" from Johnson on one of their trips
to Massachusetts. Based on Englehart's statements and the
testimony of other witnesses at trial, the PSR determined that
Johnson "had a significant customer base," "recruited individuals,
such as [Englehart]," "hired individuals to transport him to
Massachusetts," "allowed some customers to obtain drugs on
consignment," and "introduced others to [his supplier]." This
evidence convinces us that the district court did not err in
finding the scope requirement satisfied.
Relying on Englehart's statements, the court also found
the status requirement met, as Johnson initially "recruited
Englehart"; he gave her directions; he involved her in a trip to
Massachusetts to purchase drugs; and he "compensated" her with a
small portion of the drugs. Under these circumstances, the court
reasoned that Johnson "exercised some degree of control over
- 22 - others" or was "responsible for organizing others for the purpose
of carrying out the crime," such that he acted as a "leader or
organizer." The court accordingly adjusted his offense level
upwards by four points.
Now on appeal, Johnson argues that the court erred in
relying on Englehart's statements in the PSR as to the scope and
status of his role in the offense. We are not persuaded. "During
a sentencing hearing, neither the Federal Rules of Evidence nor
the Sixth Amendment's confrontation clause applies," though a
court must be mindful to comply with "due process considerations
and the parameters of Federal Rule of Criminal Procedure 32."
United States v. Rondón-García, 886 F.3d 14, 21 (1st Cir. 2018);
see Fed. R. Crim. P. 32 (laying out sentencing procedure). In
assessing out-of-court statements at sentencing, a court must
therefore ensure that the statements bear "sufficient indicia of
reliability to meet the requisite preponderance of the evidence
standard" and that the defendant be given "notice" prior to a
statement's use and "the opportunity to challenge its
reliability." Id. at 23 (citation modified).
We find those requirements met here. We have previously
recognized that a PSR "generally bears sufficient indicia of
reliability," though, of course, "the mere inclusion in the PSR of
factual allegations does not convert facts lacking an adequate
evidentiary basis with sufficient indicia of reliability into
- 23 - facts a district court may rely upon at sentencing." United States
v. Carrión-Meléndez, 26 F.4th 508, 512 (1st Cir. 2022) (citation
modified). Here, Englehart's statements were obtained from
records of her grand jury testimony following an immunity agreement
with the government. The statements were also coextensive with
the testimony of other coconspirators at trial regarding Johnson's
contacts in Massachusetts, his travel to meet with them, and the
types of drugs he purchased and sold. See United States v. Lee,
892 F.3d 488, 492 (1st Cir. 2018) (finding it proper for the court
to rely on out-of-court witness statements from grand jury
testimony or proffer interviews contained in the PSR that are
"internally consistent, and mutually corroborative" as to
associate names and specific locations linked to drug
distribution). We also see no issue with notice, as Johnson
learned of Englehart's statements through the amended PSR, and he
had the opportunity to challenge the reliability of these
statements in his PSR objections and sentencing memorandum prior
to sentencing.
Johnson chose to cabin his challenges to Englehart's
lack of reliability by asserting that she was a "severe opiate
addict." But he offers no evidence that Englehart's addiction
rendered her grand jury testimony so unreliable as to preclude the
court from deeming it credible. As we have previously held,
"[m]erely asserting, without more, that the evidence before a
- 24 - sentencing court was insufficient, does not raise a dispute as to
the validity of a PSR's recommendations." United States v. Cox,
851 F.3d 113, 124 (1st Cir. 2017). We therefore agree with the
district court's conclusion that Johnson's objections were "merely
rhetorical" and "unsupported by any countervailing proof." The
court was thus "entitled to rely on the facts in the PSR." United
States v. Cyr, 337 F.3d 96, 100 (1st Cir. 2003).
We are also not swayed by Johnson's contention that he
lacked a leadership role because he was merely "sharing drugs back
and forth" within a group of friends. We have previously held
that "[a] criminal enterprise that conducted its operations under
the aegis of a formal organization chart would be a rarity.
Typically, such enterprises are structured informally and,
therefore, a defendant's role in the enterprise 'is necessarily
fact-specific.'" United States v. Mejia, 55 F.4th 1, 11 (1st Cir.
2022) (quoting United States v. Graciani, 61 F.3d 70, 75 (1st Cir.
1995)). That Johnson was distributing to and recruiting his
friends does not change the analysis here. So long as Johnson
gave orders and there is "proof by a preponderance that the order
was obeyed by the other participant," it was not error for the
district court to find that he exerted authority and control.
Goncalves, 123 F.4th at 588. We conclude that standard is met
here by Englehart's testimony, as well as by the trial testimony,
evincing that Johnson was the point person for his suppliers in
- 25 - Massachusetts and decided when to introduce other individuals to
them; that Johnson would "loan" drugs to other distributors and
coordinate for them to sell drugs to the customer base; and that
he coordinated meetings between his supplier and local buyers when
his supplier traveled to Maine.
Against this backdrop, we decline to disturb the four–
point upward adjustment for Johnson's role as an "organizer or
leader" of the drug trafficking scheme pursuant to section 3B1.1.
C.
This leaves us with Johnson's final argument that the
court should have granted him credit for acceptance of
responsibility.
This court reviews a district court's factual
determination as to whether a defendant has accepted
responsibility for clear error. United States v. McCarthy, 32
F.4th 59, 62–63 (1st Cir. 2022). We will only reverse if we are
"left with a definite and firm conviction that a mistake has been
committed." Id. at 63 (quoting Brown v. Plata, 563 U.S. 493, 513
(2011)).
The Commentary to the Guidelines for the acceptance-of-
responsibility reduction under section 3E1.1 states, in relevant
part:
- 26 - This adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse. Conviction by trial, however, does not automatically preclude a defendant from consideration for such a reduction. In rare situations a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial. This may occur, for example, where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt (e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct). In each such instance, however, a determination that a defendant has accepted responsibility will be based primarily upon pre-trial statements and conduct.
U.S.S.G. § 3E1.1 cmt. n.2. While "proceeding to trial creates a
rebuttable presumption" against an acceptance-of-responsibility
reduction, we have previously held that a defendant may still
receive credit for acceptance of responsibility "in unusual
circumstances." United States v. Gauthier, 53 F.4th 674, 677 (1st
Cir. 2022) (first quoting United States v. Garrasteguy, 559 F.3d
34, 38–39 (1st Cir. 2009); and then quoting United States v. Hines,
196 F.3d 270, 274 (1st Cir. 1999)); see also United States v.
Deppe, 509 F.3d 54, 60 (1st Cir. 2007) (finding credit for
acceptance of responsibility after trial appropriate in "rare
situations" (quoting U.S.S.G. § 3E1.1 cmt. n.2)).
- 27 - Johnson asserts that his lengthy cooperation should have
afforded him credit for acceptance. We are aware of Johnson's
significant cooperation, having reviewed his grand jury testimony,
cooperation agreement, confession to the New Hampshire state
trooper, and agreements to work as a CS. We note also that during
the trial, the DEA special agent testified that Johnson "definitely
provided [the DEA] with active cooperation" and "real[-]time
information" regarding drug transactions. But cooperation alone
will not necessarily rebut the presumption that Johnson needs to
overcome. As we have previously held, "cooperation does not
guarantee . . . [a] downward adjustment." McCarthy, 32 F.4th at
66 (citing United States v. Nuñez-Rodriguez, 92 F.3d 14, 20 (1st
Cir. 1996) (suggesting that voluntary cooperation may be
considered in determining the "genuineness of the particular
defendant's remorse" but will "not always prove a reliable . . .
indicium of the defendant's remorse")).
At sentencing, the district court was mindful of the
"nuanced" circumstances in Johnson's case, including his testimony
before the grand jury and work as a CS. But, in declining to
grant Johnson credit for acceptance of responsibility, the court
also noted that Johnson disputed his factual guilt at trial and
"continue[d] to contradict the jury's verdict" in his PSR
objections. In detailing the section 3553(a) factors it
considered relevant to the final sentence, the court also
- 28 - emphasized that it found Johnson's allocution lacking in
"humility" for his "role" in the offense. Rather than grant him
a formal adjustment under section 3E1.1, the court considered
Johnson's "episodic willingness and then unwillingness to
cooperate" as a factor warranting a variant sentence below the
Guidelines range. To that end, it framed the ultimate sentence
as one that would give Johnson "some credit for at least gesturing
toward something like acceptance." We consider this determination
appropriate, as the court was in the best position to assess
Johnson's acceptance through the course of the proceedings before
it.
Finding no clear error in the district court's factual
assessment, we affirm its denial of an acceptance-of-
responsibility adjustment under section 3E1.1.
III.
For the foregoing reasons, we affirm the verdict and
sentence.
- 29 -