United States v. Salvador Gutierrez

128 F.4th 299

• Court: Court of Appeals for the First Circuit
• Decided: February 13, 2025
• Docket: 22-1157
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 22-1157

UNITED STATES OF AMERICA,

Appellee,

v.

HENRI SALVADOR-GUTIERREZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

Before

Barron, Chief Judge, Howard, Kayatta, Gelpí, Montecalvo, Rikelman, Circuit Judges.

Stephen Super, with whom George F. Gormley and George F. Gormley, P.C., were on brief, for appellant.

Mark T. Quinlivan, Assistant U.S. Attorney, with whom Joshua S. Levy, Acting U.S. Attorney, was on brief, for appellee.

February 13, 2025

Opinion En Banc BARRON, Chief Judge. Section 3B1.4 of the United States

Sentencing Guidelines ("Guidelines")1 provides that "[i]f the

defendant used or attempted to use a person less than eighteen

years of age to commit the offense or assist in avoiding detection

of, or apprehension for, the offense, increase by 2 levels" the

defendant's offense level. U.S.S.G. § 3B1.4. A panel of this

Court held in United States v. Patrick, 248 F.3d 11 (1st Cir.

2001), that the application of § 3B1.4's two-level upward

adjustment is not limited to when the defendant, by an affirmative

act, personally used or attempted to use a minor to commit the

offense or assist in avoiding detection of, or apprehension for,

the offense. The panel held that, in the case of a conspiracy

offense, the adjustment also applies when it was merely reasonably

foreseeable that other members of the conspiracy would use a minor

within the scope of, and in furtherance of, that conspiracy. Id.

at 27-28.

The panel relied for this ruling on the guideline that

defines the "[r]elevant [c]onduct" for which a defendant, as a

general matter, is accountable in sentencing. See U.S.S.G.

§ 1B1.3; Patrick, 248 F.3d at 28. This guideline provides in

1 All references are to the 2021 edition of the Guidelines, which was the edition in effect when appellant was sentenced. See United States v. Douglas, 644 F.3d 39, 41 (1st Cir. 2011) (citing U.S.S.G. § 1B1.11(a)). No amendments have been made to § 3B1.4 since.

- 1 - pertinent part that "[u]nless otherwise specified"

adjustments -- such as the adjustment set forth in

§ 3B1.4 -- "shall be determined on the basis of the following":

(1)(A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and (B) in the case of a jointly undertaken criminal activity . . . all acts and omissions of others that were -- (i) within the scope of the jointly undertaken criminal activity, (ii) in furtherance of that criminal activity, and (iii) reasonably foreseeable in connection with that criminal activity; that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense.

U.S.S.G. § 1B1.3(a).

Sitting en banc, we agree with the appellant in this

case, Henri Salvador Gutierrez,2 that Patrick must be overruled,

after considering that precedent anew in the wake of developments

in the Guidelines and the case law since that ruling. Thus, we

hold that, contrary to Patrick, even in the case of a conspiracy

or other offense that involves jointly undertaken criminal

activity, § 3B1.4's upward adjustment applies only when the

defendant, by an affirmative act, personally used or attempted to

2We refer to the appellant as "Salvador" consistent with how he refers to himself in his briefing to us. See United States v. Rosa-Borges, 101 F.4th 66, 68 n.1 (1st Cir. 2024).

- 2 - use a minor to commit the offense or assist in avoiding detection

of, or apprehension for, the offense. We therefore conclude that,

although the District Court properly applied existing precedent,

Patrick does not provide a basis for applying § 3B1.4's upward

adjustment to Salvador.

We reach this conclusion because, by its own terms, an

adjustment may be determined based on the conduct described in

§ 1B1.3 only if the Guidelines do not "otherwise specif[y]," and

we agree with Salvador that § 3B1.4 "specifie[s]" that its upward

adjustment may not be determined based on the conduct described in

§ 1B1.3(a)(1)(B). We nonetheless affirm Salvador's life sentence

based on the sentencing judge's alternative determination that

§ 3B1.4's upward adjustment applies to Salvador because, by an

affirmative act, he personally used a minor to commit the offense.

I.

A.

In October 2019, a federal grand jury in the District of

Massachusetts returned a first superseding indictment against

Salvador and five co-defendants. That indictment charged Salvador

and the five other defendants with violating 18 U.S.C. § 1962(d),

by conspiring to violate the Racketeering Influenced Corrupt

Organization Act (RICO).

Section 1962(d) makes it unlawful to "conspire to

violate any of the [substantive RICO] provisions," including by

- 3 - conspiring to "conduct or participate . . . in the conduct" of an

enterprise's affairs "through a pattern of racketeering activity."

18 U.S.C. § 1962(d), (c). The first superseding indictment

identified the relevant "enterprise" as MS-13,3 which the

indictment alleged "is one of the largest criminal organizations

in the United States" and is "organized in Massachusetts and

elsewhere in the form of so-called 'cliques,'" including the Sykos

clique.

On May 20, 2021, the government filed a superseding

information against Salvador. It charged him with one count of

RICO conspiracy in violation of 18 U.S.C. § 1962(d). The

superseding information alleged that Salvador, as "a person

employed by and associated with MS-13," knowingly conspired "to

conduct and participate . . . in the conduct of the affairs of the

MS-13 enterprise through a pattern of racketeering activity."

RICO defines "racketeering activity" to include, among

other things, murder, id. § 1961(1)(A), and also defines a "pattern

of racketeering activity" as "at least two acts of racketeering

activity," id. § 1961(5). The superseding information identified

the "means and methods" of the alleged RICO conspiracy as including

two murders in which Salvador had allegedly participated: the

3La Mara Salvatrucha, also known as MS-13, "is a transnational criminal organization based in El Salvador." United States v. Sandoval, 6 F.4th 63, 73 (1st Cir. 2021).

- 4 - murder of Luis Orellano Ruano on or about December 24, 2016, and

the murder of Herson Rivas on or about July 30, 2018.

B.

On June 24, 2021, Salvador pleaded guilty to the

superseding information's one count of RICO conspiracy. He

admitted in entering his plea that he had participated in the

murders of both Ruano and Rivas.

The United States Probation Office ("Probation")

prepared a presentence investigation report ("PSR"). Because the

Ruano and Rivas murders were predicate racketeering acts for

Salvador's RICO conspiracy conviction, the PSR determined

Salvador's base offense level by relying on the base offense level

for murder. See U.S.S.G. § 2E1.1(a)(2) & cmts. 1-2.

The PSR assigned Salvador an offense level of 43 for

each murder. See id. § 2A1.1. Pursuant to § 3B1.4, the PSR then

adjusted the base offense level assigned to the Rivas murder two

levels upward on the ground that Salvador had used a minor to

commit that murder. Accounting for both murders, the PSR

calculated a combined offense level for Salvador of 47. See id.

§ 3D1.4. The PSR reduced the offense level by three levels,

however, pursuant to § 3E1.1(a), based on Salvador's "acceptance

of responsibility," and § 3E1.1(b), based on Salvador "timely

notifying authorities of his intention to enter a [guilty] plea."

- 5 - This reduction resulted in a total offense level for Salvador of

44.

The PSR went on to treat the total offense level of 44

as a total offense level of 43. See id. ch. 5, pt. A, cmt. 2 ("An

offense level of more than 43 is to be treated as an offense level

of 43."). The PSR explained that this total offense level, when

combined with Salvador's criminal-history category, resulted in a

Guidelines sentencing range for him of life imprisonment.

Salvador objected, among other things, to the PSR's

recommendation that he was subject to § 3B1.4's two-level upward

adjustment. He contended that he did not "use" a minor in the

Rivas murder because he did not direct or lead a minor in

committing the offense.

Probation responded that, under Patrick, in a case

involving a conspiracy offense, § 3B1.4's upward adjustment may be

determined based on a defendant reasonably foreseeing a

co-conspirator's use of a minor in furtherance of the conspiracy.

Probation contended that "it was reasonably foreseeable to

[Salvador] that his co-defendants . . . would recruit juveniles to

further [the] gang['s] activities." Probation thus argued that,

under Patrick, the use-of-a-minor adjustment was applicable to

Salvador. Probation also asserted that § 3B1.4's upward

adjustment applied to Salvador because he was "an older and

higher-ranking member of MS-13" and that he "likely had influence

- 6 - over [] younger, impressionable juveniles, such that he encouraged

and used them in his criminal activities, including the Rivas

murder."

Salvador and the government filed sentencing memoranda

with the District Court. Salvador's memorandum repeated his

argument that § 3B1.4's upward adjustment did not apply to him.

The memorandum contended that his total offense level should

therefore be 42, not 43.

The memorandum noted that, given Salvador's criminal

history, an offense level of 42 would yield a Guidelines sentencing

range of 360 months to life imprisonment rather than life

imprisonment. The memorandum asked the District Court to impose

a sentence of 400 months.

The government argued in its sentencing memorandum that

the "[G]uideline[s] sentencing range for [Salvador's] role in the

MS-13 racketeering conspiracy is life in prison." The memorandum

also argued that a life sentence was appropriate under 18 U.S.C.

§ 3553(a)'s sentencing factors because Salvador "brutally killed

two teenagers," "showed little remorse for his crimes," and

exhibited "deplorable conduct while in pretrial custody."

The government separately filed a response to Salvador's

sentencing memorandum. The response relied on Patrick to argue

that, in the case of a conspiracy offense, "a defendant does not

need to have personally recruited or used minors to help facilitate

- 7 - [the crime of conviction]" in order to be subject to § 3B1.4's

adjustment, if such use of a minor by a co-conspirator was

"reasonably foreseeable." The response further asserted that "an

MS-13 homeboy like Salvador knew that the gang would use a minor

to further the gang's activities" and that Salvador had "personally

associated with multiple minors as part of the charged racketeering

conspiracy," noting that, "[f]or example, the [PSR] discusses how

the gang recruited and attempted to use CW-19, a juvenile (who was

punished by Salvador and other [MS-13] members for his

non-commitment to the gang)."

Salvador thereafter filed a brief with the District

Court. He argued in the brief that Patrick was wrongly decided

and that, even in the case of a conspiracy offense, for § 3B1.4's

upward adjustment to apply to him, he must have, by an affirmative

act, personally used the minor in committing the offense.

At sentencing, the District Court concluded that it was

bound by Patrick. The District Court further concluded that "the

Sykos clique of MS-13, which included [Salvador], had as a regular

part of its mode of operating recruiting and training individuals

under 18 to engage in violent crimes in furtherance of the RICO

conspiracy." Thus, it determined that because Salvador "knew this

- 8 - and foresaw that minors would be used in the ongoing commission of

that crime," § 3B1.4's upward adjustment applied to him.4

In an alternative ruling, the District Court determined

that § 3B1.4's upward adjustment applied to Salvador on the

independent ground that he had "personally" used a minor to commit

the offense. The basis for this determination was, in part, the

finding that Salvador told a minor "to '[m]ove over' during the

Rivas murder," as the District Court determined that this statement

was "a form of directing a minor" in the murder. The District

Court then also found that Salvador had personally used a minor to

commit the offense because he personally participated in the

recruitment and training of a minor by (1) talking to a minor about

"MS-13's mode of operating," (2) showing a minor "a video of MS-13

activity which was essentially a recruitment video," and

(3) beating a minor, along with other MS-13 members, as "part of

[MS-13]'s training, teaching [that minor] the rules."

The District Court stated several times that the

application of § 3B1.4's upward adjustment to Salvador and his co-

defendants would not "make a difference" to the sentences imposed,

4The District Court also concluded, for much the same reasons, that § 3B1.4's upward adjustment applied to Salvador's co-defendants, whose sentences were at issue in the same hearing. See United States v. Salvador-Gutierrez, 79 F.4th 198, 202 (1st Cir. 2023), withdrawn, reh'g granted, 2024 WL 424446 (1st Cir. Feb. 1, 2024). This appeal, however, concerns only the application of § 3B1.4 to Salvador, and so we confine our discussion to those findings that concerned his sentence.

- 9 - which would be driven by an assessment of the § 3553(a) sentencing

factors. But the District Court "reserve[d]" the issue and, before

the final day of sentencing, issued an order that acknowledged the

government's position that the asserted use of a minor "should

make a difference" to the sentences imposed and directed the

parties to be prepared to address "whether the use of a minor as

part of the RICO conspiracy to which each defendant pled guilty is

material to what sentence is sufficient and no more than

necessary . . . in order to serve the statutory purposes of

sentencing" (citing 18 U.S.C. § 3553(a)). Moreover, on the final

day of sentencing, the District Court confirmed that the

application of § 3B1.4's adjustment to Salvador resulted in his

Guidelines sentencing range being life imprisonment. In addition,

when Salvador at that point again objected to the application of

§ 3B1.4's upward adjustment to him, the District Court responded,

"That's fine. I don't know what the First Circuit would say if

you appeal, so that's prudent" (emphasis added).

After hearing argument and Salvador's allocution, the

District Court imposed a sentence of life imprisonment on Salvador.

The District Court expressly considered the § 3553(a) sentencing

factors and recognized the hardships of Salvador's upbringing in

El Salvador. The District Court concluded, however, that Salvador

was an "enthusiastic" member of MS-13, had willingly joined the

Sykos clique, and had participated in two murders. The District

- 10 - Court also explained that it had "searched to see whether there

[was] really anything in view of all the factors that weigh in

favor of a life sentence that weighed sufficiently in favor of a

lower sentence, and [it] couldn't find them."

C.

Salvador appealed his sentence. He did so by arguing

that Patrick was wrongly decided and that, in consequence, the

District Court erred in applying § 3B1.4's upward adjustment to

him based on Patrick.

The government contended in response that Patrick was

right. In addition, the government argued that Salvador's

sentencing challenge "alternatively fails because the district

court found that he directed [a minor] during Rivas's murder when

he told [the minor] to '[m]ove over.'" "Hence," the government

contended, "even if contra Patrick, § 3B1.4 were interpreted to

require that a defendant personally use or attempt to use a minor

in the course of committing the offense of conviction, as Salvador

urges here, that condition was satisfied in this case."

In his reply brief, Salvador again argued that Patrick

was wrong. But he also challenged, for the first time on appeal,

the District Court's alternative conclusion that Salvador

personally used a minor to commit the offense when he told a minor

to "move over" during the commission of the Rivas murder.

- 11 - A panel of this Court affirmed. United States v.

Salvador-Gutierrez, 79 F.4th 198 (1st Cir. 2023), withdrawn, reh'g

granted, 2024 WL 424446 (1st Cir. Feb. 1, 2024). The panel

explained that, under the law-of-the-circuit doctrine, it was

bound by Patrick. The panel went on to explain that, as a result,

§ 3B1.4's upward adjustment could be applied to Salvador based on

the reasonably foreseeable use of a minor by one of Salvador's

co-conspirators that was both within the scope of, and in

furtherance of, the conspiracy. Id. at 204-05 (citing Nevor v.

Moneypenny Holdings, LLC, 842 F.3d 113, 125 (1st Cir. 2016)). The

panel also rejected Salvador's challenge to the application of the

adjustment based on his "move over" statement, because the panel

determined that Salvador waived that ground for challenge by

raising it for the first time in his reply brief.5 Id. at 205;

see Sparkle Hill, Inc. v. Interstate Mat Corp., 788 F.3d 25, 29

(1st Cir. 2015) ("Our precedent is clear: we do not consider

arguments for reversing a decision of a district court when the

argument is not raised in a party's opening brief.").

D.

Following the panel's decision, Salvador filed a

petition for rehearing en banc. The petition requested that we

5 The government did not advance any arguments to the panel regarding Salvador's personal use of a minor beyond the "move over" statement.

- 12 - reconsider Patrick and vacate Salvador's sentence due to what

Salvador contended was the erroneous application of § 3B1.4's

upward adjustment to him. We granted the petition, vacated the

panel's judgment, requested supplemental briefing, and heard oral

argument.

II.

We review a sentencing court's findings of fact for clear

error. United States v. Misla-Aldarondo, 478 F.3d 52, 70 (1st

Cir. 2007); United States v. Dixon, 449 F.3d 194, 200-01 (1st Cir.

2006). We review de novo questions of law involved in sentencing

determinations. United States v. Pho, 433 F.3d 53, 60 (1st Cir.

2006). The proper interpretation of a guideline is a question of

law. United States v. Hercules, 947 F.3d 3, 7 (1st Cir. 2020).

III.

Salvador does not challenge the District Court's factual

finding that it was reasonably foreseeable that one of his

co-conspirators would use a minor within the scope of, and in

furtherance of, the conspiracy. Thus, if Patrick remains good

law, then we would be required to affirm Salvador's sentence based

on the District Court's Patrick-based ground for applying

§ 3B1.4's upward adjustment to Salvador. In that event, moreover,

we would not need to address the various record-based challenges

that Salvador makes to the District Court's alternative, personal-

use-based ground for subjecting him to § 3B1.4's upward

- 13 - adjustment. Accordingly, we begin by addressing Salvador's

contention that Patrick was wrongly decided and so must be

overruled.6

This contention implicates both § 3B1.4 itself and, as

noted above, the additional guideline that Patrick relied on:

§ 1B1.3, titled "Relevant Conduct (Factors that Determine the

Guideline Range)." See 248 F.3d at 28. We therefore need to

describe both guidelines in greater detail before we assess the

parties' arguments about how best to construe those guidelines.

Section 1B1.3 appears in Part B of Chapter One of the

Guidelines, which sets forth "[g]eneral [a]pplication

[p]rinciples." Id. ch. 1, pt. B. The guideline lays out one such

set of principles by providing, in pertinent part:

6 We agree with Salvador that, insofar as there was a miscalculation of his Guidelines sentencing range by the District Court due to its application of § 3B1.4's upward adjustment under Patrick, the miscalculation may not be deemed harmless on the ground that the District Court made clear that the same sentence would have been imposed regardless of the applicable Guidelines sentencing range. After first indicating that the adjustment would not impact Salvador's sentence, the District Court instructed the parties to be prepared to address whether the use of a minor should "make a difference." Then, before imposing the sentence, the District Court stated that it was "prudent" for Salvador to object to the application of § 3B1.4's upward adjustment so that he could preserve a challenge to its application on appeal. As a result, we conclude that the District Court did not "make[] clear that it would have entered the same sentence regardless of the [g]uideline." United States v. Ouellette, 985 F.3d 107, 110 (1st Cir. 2021).

- 14 - (a) . . . Unless otherwise specified, (i) the base offense level where the guideline specifies more than one base offense level, (ii) specific offense characteristics and (iii) cross references in Chapter Two, and (iv) adjustments in Chapter Three, shall be determined on the basis of the following: (1)(A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and (B) in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all acts and omissions of others that were -- (i) within the scope of the jointly undertaken criminal activity, (ii) in furtherance of that criminal activity, and (iii) reasonably foreseeable in connection with that criminal activity; that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense . . . .

Id. § 1B1.3(a).

Section 1B1.3 expressly provides that its instructions

regarding "[r]elevant [c]onduct" do not apply if "otherwise

specified." Id. Consistent with this proviso, the commentary to

§ 1B1.3 explains that this guideline only "establishes a rule of

construction, by specifying, in the absence of more explicit

instructions in the context of a specific guideline, the range of

conduct that is relevant to determining the [defendant's]

- 15 - applicable offense level." Id. § 1B1.3 background cmt. (emphasis

added).

Section 1B1.3 sets forth its default rule of

construction through its subsections. Two of them are key for

present purposes -- § 1B1.3(a)(1)(A) and § 1B1.3(a)(1)(B).

Subsection 1B1.3(a)(1)(A), the first of § 1B1.3(a)(1)'s

relevant subsections, borrows from federal law's approach to

assigning criminal aiding-and-abetting liability. That approach

makes a defendant "punishable as a principal" if the defendant

"aids, abets, counsels, commands, induces, [] procures," or

"willfully causes" the commission of an offense. 18 U.S.C. § 2.

Subsection 1B1.3(a)(1)(A) provides that, in general, the

adjustments7 in Chapters Two and Three of the Guidelines are to be

determined based not only on "all acts and omissions" that the

defendant committed but also on those that the defendant "aided,

abetted, counseled, commanded, induced, procured, or willfully

caused." U.S.S.G. § 1B1.3(a)(1)(A).

7 Section 1B1.3 refers to "specific offense characteristics . . . in Chapter Two" and "adjustments in Chapter Three." Because the "specific offense characteristics" set forth in Chapter Two also "adjust" the defendant's offense level, U.S.S.G. ch. 2, introductory cmt., they are commonly referred to -- both by the Guidelines and by the courts -- as "adjustments," see, e.g., id. § 2A4.1 background cmt.; United States v. Garcia- Torres, 341 F.3d 61, 76 (1st Cir. 2003). We therefore use the term "adjustments" to refer to both "adjustments" like § 3B1.4 and "specific offense characteristics" in Chapter Two.

- 16 - Subsection 1B1.3(a)(1)(B) augments § 1B1.3(a)(1)(A) by

borrowing from the approach for assigning Pinkerton criminal

liability.8 Under Pinkerton, a defendant is "criminally liable

for the substantive offenses committed by his co-conspirators

during the course of and in furtherance of the conspiracy," United

States v. Hansen, 434 F.3d 92, 103 (1st Cir. 2006), so long as the

offenses could be "reasonably foreseen as a necessary or natural

consequence of the unlawful agreement," Pinkerton v. United

States, 328 U.S. 640, 648 (1946). Subsection 1B1.3(a)(1)(B)

provides that, in general, in the case of "jointly undertaken

criminal activity," the adjustments in Chapters Two and Three of

the Guidelines are also to be determined based on "all acts and

omissions of others" that were "within the scope of the jointly

undertaken criminal activity, [] in furtherance of that criminal

activity, and [] reasonably foreseeable in connection with that

criminal activity." U.S.S.G. § 1B1.3(a)(1)(B).

Even though § 1B1.3 in this way draws from concepts

relevant to assigning criminal liability, the commentary to that

guideline expressly states that "[t]he principles and limits of

sentencing accountability under this guideline are not always the

8 Nonetheless, the two are not coextensive, as Pinkerton liability is, "in some cases, broader than relevant conduct" under § 1B1.3(a)(1)(B). United States v. Rodriguez, 731 F.3d 20, 29 (1st Cir. 2013) (citing United States v. Laboy, 351 F.3d 578, 583 (1st Cir. 2003)).

- 17 - same as the principles and limits of criminal liability." Id.

§ 1B1.3 cmt. 1. The commentary explains that, in identifying the

defendant's Guidelines sentencing range, the focus must be on "the

specific acts and omissions" that the Guidelines deem relevant,

not on "whether the defendant is criminally liable for an offense

as a principal, accomplice, or conspirator." Id.; cf. id. ch. 1,

pt. A, 1(4)(a) (explaining that the Guidelines, by taking into

account "real offense elements such as role in the offense,"

diverge from a system of "pure" charge-offense sentencing).

Of course, the Guidelines' instructions include more

than § 1B1.3. They also include the individual guidelines on which

§ 1B1.3 operates. Before we take up the parties' arguments

regarding Patrick, therefore, we also need to say more about the

relevant adjustment-setting guideline here: § 3B1.4.

The guideline appears in Part B of Chapter Three of the

Guidelines -- the chapter that sets forth "adjustments" to the

defendant's offense level applicable to a variety of offenses.

Part B is titled "Role in the Offense." According to the

introductory commentary to Part B, that part specifically sets

forth "adjustments . . . based upon the role the defendant played

in committing the offense." Id. ch. 3, pt. B, introductory cmt.

Also of potential significance, § 3B1.4 uses

"defendant"-specific language in setting forth its upward

adjustment. It does so by providing that "[i]f the defendant used

- 18 - or attempted to use a person less than eighteen years of age to

commit the offense or assist in avoiding detection of, or

apprehension for, the offense, increase [the defendant's offense

level] by 2 levels." Id. § 3B1.4 (emphasis added).9

Salvador contends that § 1B1.3(a)(1)(B)'s Pinkerton-

like default rule for assigning sentencing accountability does not

apply to § 3B1.4 because, in accordance with § 1B1.3, § 3B1.4

"specifie[s]" "otherwise." See id. § 1B1.3(a) ("Unless otherwise

specified . . . adjustments in Chapter Three[] shall be determined

on the basis of the following . . . ."). According to Salvador,

§ 3B1.4 "specifie[s]" that its upward adjustment is only to be

applied based on the defendant's personal conduct, and not based

on the merely reasonably foreseeable conduct of others.10 Thus,

Salvador argues that, even with respect to jointly undertaken

criminal activity, he may not be subject to § 3B1.4's upward

adjustment based solely on the reasonably foreseeable use of a

minor by another participant in that activity that is within the

scope of, and in furtherance of, that activity. Rather, Salvador

9 The guideline does have application notes appended to it. However, they do not refer, even implicitly, to § 1B1.3 either in whole or in part. 10 Salvador does not contend that the reference in § 1B1.3(a)(1)(B) to "others" in and of itself renders that subsection inapplicable to a guideline focused on "the defendant."

- 19 - argues that he may be subject to § 3B1.4's upward adjustment only

if, by an affirmative act, he personally used a minor or attempted

to use a minor to commit the offense, or assist in avoiding

detection of, or apprehension for, the offense.

To make the case that § 3B1.4 "otherwise specifie[s],"

Salvador relies on both the Commission's choice to expressly

designate § 3B1.4 as a "Role in the Offense" guideline and

§ 3B1.4's specific reference to "the defendant" as the person who

must have used or attempted to use a minor. He notes that, based

on these same grounds, other courts have held that § 3B1.4 must be

construed as he contends that it must. See United States v.

Pojilenko, 416 F.3d 243, 248-49 (3d Cir. 2005); United States v.

Acosta, 474 F.3d 999, 1002-03 (7th Cir. 2007).

In assessing Salvador's challenge to his sentence, we

thus must decide whether the Commission "specified" that § 3B1.4's

upward adjustment may be determined based only on a narrower range

of conduct than § 1B1.3 otherwise would require. For the reasons

set forth below, we conclude that the Commission did so

"specif[y]," and thus that Patrick must be overruled, such that

§ 3B1.4's upward adjustment may not be applied to Salvador based

on the reasonably foreseeable use of a minor by another member of

the conspiracy.11

11 In accordance with § 1B1.3(a)(1)(A), we understand

- 20 - 1.

We begin with the meaning of the word "specified" in

§ 1B1.3(a). The Guidelines themselves do not define the word. We

therefore consider its ordinary meaning, while looking for

additional guidance from both our prior cases' assessment of the

word's ordinary meaning and applicable commentary in the

Guidelines, see United States v. Carbajal-Váldez, 874 F.3d 778,

784 (1st Cir. 2017) (explaining that "undefined terms in the

[G]uidelines should customarily be given their plain and ordinary

meaning"); see also United States v. Daniells, 79 F.4th 57, 89

(1st Cir. 2023) ("We interpret the guidelines, as well as the

Sentencing Commission's commentary, including application notes,

'using conventional methods of statutory construction.'" (quoting

United States v. Damon, 595 F.3d 395, 400 n.3 (1st Cir. 2010))),

insofar as that commentary is not inconsistent with the text of

§ 3B1.4's upward adjustment to apply not only when the use of the minor "to commit the offense or assist in avoiding detection of, or apprehension for, the offense," U.S.S.G. § 3B1.4, was "committed" by the defendant, but also when the defendant "aided, abetted, counseled, commanded, induced, procured, or willfully caused" such use, id. § 1B1.3(a)(1)(A). Salvador does not argue otherwise, and we note that this understanding accords with how the application notes to other guidelines use the words "the defendant." See, e.g., id. § 3B1.5 cmt. 2 ("[T]he term 'defendant' . . . limits the accountability of the defendant to the defendant's own conduct and conduct that the defendant aided or abetted, counseled, commanded, induced, procured, or willfully caused.").

- 21 - the guideline itself, see Stinson v. United States, 508 U.S. 36,

42-43 (1993).

As a matter of ordinary meaning, "specify" means "to

state explicitly." Webster's II New Riverside Univ. Dictionary

1116 (1988); see also Kucana v. Holder, 558 U.S. 233, 243 n.10

(2010) ("'[S]pecify' means 'to name or state explicitly or in

detail[.]'" (quoting Webster's New Collegiate Dictionary 1116

(1974))); Bernardo ex rel. M&K Eng'g, Inc. v. Johnson, 814 F.3d

481, 486 (1st Cir. 2016) (citing Kucana, 558 U.S. at 243 n.10).

We have made clear that a provision of law may "specify" -- and

thus "state explicitly" -- without including any express reference

to the thing that must be specified. See Bernardo, 814 F.3d at

486 (concluding, in the context of a statute that requires

authority to have been "specified" to be discretionary, that, to

the extent petitioner's argument "rest[s] on a notion that

'specified' means that Congress must use the word 'discretion' for

a decision to be discretionary," that position has been rejected

by the Supreme Court (citing Kucana, 558 U.S. at 247 n.13)); cf.

Spencer Enters., Inc. v. United States, 345 F.3d 683, 690 (9th

Cir. 2003) (observing, based on the fact that the Attorney General

"may grant asylum," that such is "[a]nother example of the type of

decision[] whose authority is specified by statute to be entirely

discretionary" (citation omitted)).

- 22 - So, as a matter of ordinary meaning, to "specif[y]"

"otherwise" with respect to any or all the conduct described in

§ 1B1.3, an adjustment-setting guideline need not mention § 1B1.3

by name or quote from its text. To the contrary, the Guidelines

may "specif[y]" "otherwise" through language that is best read as

an explicit instruction to adjust the defendant's offense level

based on a different (or narrower) range of conduct than the

conduct specified in § 1B1.3. See U.S.S.G. § 1B1.3 background

cmt. (characterizing § 1B1.3(a) as "establish[ing] a rule of

construction by specifying, in the absence of more explicit

instructions in the context of a specific guideline, the range of

conduct that is relevant to determining the applicable offense

level"); see also, e.g., United States v. Drapeau, 121 F.3d 344,

349 (8th Cir. 1997) (explaining that the use of the term "offense

of conviction" in place of "offense" in U.S.S.G. § 3A1.2(a)

"specifies that only the offense of conviction is to be

considered," rather than the full scope of relevant conduct under

§ 1B1.3).

Against this backdrop, we must determine whether the

Commission made the requisite explicit instruction as to

§ 1B1.3(a)(1)(B)'s application through the designation of § 3B1.4

as a "Role in the Offense" guideline and the express reference in

§ 3B1.4 to "the defendant" as the person who "used" or "attempted

to use" a minor. Because our concern is, in the end, only with

- 23 - § 3B1.4, and not with every adjustment-setting guideline that uses

similarly "defendant"-specific language, we first address the

Commission's decision to designate § 3B1.4 as a "Role in the

Offense" guideline, before we then address the import of that

guideline's reference to "the defendant" as the one who used or

attempted to use a minor.

2.

Part B of Chapter Three is titled, "Role in the Offense."

The Commission thereby expressed its intention, as the

accompanying introductory commentary to Part B confirms, that,

unlike other guidelines, each of the "Role in the Offense"

guidelines adjusts the defendant's offense level based

specifically on the defendant's "[r]ole in the [o]ffense" and not

some characteristic of the offense itself. In this regard, the

introductory commentary states that the guidelines contained in

Part B provide adjustments to the defendant's offense level "based

upon the role the defendant played in committing the offense."

Id. ch. 3, pt. B, introductory cmt. (emphasis added). Thus,

whereas § 1B1.3(a)(1)(B)'s default definition of relevant conduct

aggregates and makes relevant all reasonably foreseeable conduct

in furtherance and within the scope of jointly undertaken criminal

activity, the "Role in the Offense" guidelines distinguish among

participants in jointly undertaken criminal activity by providing

- 24 - for adjustments based on the specific "role" "played" by "the

defendant." Id. ch. 3, pt. B, introductory cmt.

Indeed, consistent with the title and the introductory

commentary, all the "Role in the Offense" guidelines set forth

adjustments using "defendant"-specific language, even though the

Guidelines do not typically use such language in setting forth

adjustments.12 Instead, the Commission generally defines when an

adjustment applies by identifying the conduct that triggers the

adjustment without specifying who must have engaged in that

conduct. For example, adjustment-setting guidelines often provide

that the offense level should be increased so long as "the offense

involved" the adjustment-triggering conduct.13 See, e.g., U.S.S.G.

§ 2A2.1(b)(2) ("If the offense involved the offer or the receipt

of anything of pecuniary value . . . ."); id. § 2G3.1(b)(1)(C)

("If the offense involved distribution to a minor . . . .); id.

§ 3A1.4 ("If the offense . . . involved or was intended to promote,

a federal crime of terrorism . . . ."); cf. Dean v. United States,

12 Even § 3B1.5, which is the final "Role in the Offense" guideline, provides for an upward adjustment when "the defendant" uses body armor above what that adjustment would be if the record showed merely that "the offense involved" the use of body armor. 13 Even in the absence of a reference to "the offense," adjustments still typically leave unspecified who must commit the adjustment-triggering conduct. See, e.g., U.S.S.G. § 2B2.1(b)(4) ("If a dangerous weapon (including a firearm) was possessed . . . ."); id. § 2A3.2(b)(3) ("If a computer or an interactive computer service was used . . . ."); id. § 3A1.3 ("If a victim was physically restrained . . . .").

- 25 - 556 U.S. 568, 572 (2009) (use of the passive voice "focuses on an

event that occurs without respect to a specific actor," and

therefore "reflects 'agnosticism . . . about who does the [act]'"

(quoting Watson v. United States, 552 U.S. 74, 81 (2007))

(alteration in original)).

Thus, in accord with the Commission's own explanation of

the "Role in the Offense" guidelines, § 3B1.4 is not naturally

construed to adjust the defendant's offense level based on the

merely reasonably foreseeable conduct of others rather than the

personal conduct of the defendant. The "role" someone "played" in

committing an offense more naturally refers to what that individual

participant did rather than to what that participant reasonably

foresaw that another participant would do. It thus makes little

sense to say that someone "play[s]" a specified "role" in an

offense involving jointly undertaken criminal activity -- here,

the role of using a minor in committing the offense -- by merely

reasonably foreseeing that others engaged in that joint activity

would play that role. See Acosta, 474 F.3d at 1003 ("Pinkerton

liability makes no sense in the context of the individualized

enhancements set out in [Chapter Three, Part B] of the Guidelines,

which seek to punish the particular behavior of individual members

of a conspiracy.").

This conclusion accords with the text of § 3B1.4 itself,

which instructs us to focus on "the defendant" and that

- 26 - individual's "use[]" -- or attempted use -- of a minor to commit

the offense. U.S.S.G. § 3B1.4. The ordinary meaning of the word

"defendant" refers to "[o]ne against whom an action is brought."

Webster's II New Riverside Univ. Dictionary 356 (1988); see also

Carbajal-Váldez, 874 F.3d at 784 (giving undefined Guidelines

terms their "ordinary meaning"). The definite article "the" to

identify the person so accused in § 3B1.4 thus supports the

conclusion that the guideline explicitly instructs that the

defendant's offense level is to be increased only if "the

defendant" used or attempted to use a minor in the specified way

and not also, in the case of joint criminal activity, merely

because it was reasonably foreseeable that some other person,

acting within the scope of and in furtherance of that activity,

would use a minor in that way. See U.S. Sugar Corp. v. EPA, 113

F.4th 984, 993 (D.C. Cir. 2024) ("Congress's choice between a

definite and indefinite article matters when determining statutory

meaning."); see also, e.g., Corner Post, Inc. v. Bd. of Governors

of Fed. Rsrv. Sys., 603 U.S. 799, 817-18 (2024) (explaining that

"the plaintiff" refers to "this particular plaintiff").

It is noteworthy in this regard that, unlike the term

"defendant," which the Guidelines do not define, the much more

commonly used "[o]ffense" is explicitly defined in the Guidelines

as "the offense of conviction and all relevant conduct under

§ 1B1.3 (Relevant Conduct) unless a different meaning is specified

- 27 - or is otherwise clear from the context." Id. § 1B1.1 cmt. 1(I)

(emphasis added). The Commission's choice to deploy the "defendant

used" language in § 3B1.4 is therefore hard to understand if, as

the government maintains, the Commission intended to pick up the

full scope of § 1B1.3 in that guideline. The use of the

Commission's more typical "offense involved" language would have

made that intention perfectly clear.

We do recognize that the default rule that § 1B1.3 sets

forth is modeled, at least in part, on Pinkerton. We recognize,

too, that, in the context of criminal liability, Pinkerton makes

a person accountable for certain reasonably foreseeable conduct of

others even if, as a textual matter, the statute that sets forth

the offense focuses on the individual offender. See, e.g., United

States v. Flecha-Maldonado, 373 F.3d 170, 179 (1st Cir. 2004) ("We

have repeatedly held that under Pinkerton, the defendant does not

need to have carried the gun himself to be liable under

§ 924(c) . . . [because Pinkerton allows him to be] held liable as

if he himself carried or used the firearm." (citations omitted)).

Pinkerton did not purport to interpret the phrase "the

defendant used," however, let alone to interpret those words in a

provision aimed at identifying "the role played" by the defendant

relative to others. In fact, Pinkerton did not purport even to

have any bearing on issues related to sentencing, as opposed to

criminal liability.

- 28 - Moreover, as we have seen, the commentary to § 1B1.3 is

express in stating that § 1B1.3's function is to assign

accountability in sentencing, not to mimic criminal liability.

U.S.S.G. § 1B1.3 cmt. 1. Nor is anything in § 1B1.3 inconsistent

with that commentary.

We therefore do not see why, in assessing the impact of

the Commission's decision to use the words "the defendant used" in

this expressly designated "Role in the Offense" guideline, we have

any reason to depart from the ordinary meaning of that phrase and

to instead adopt a specialized meaning gleaned inferentially from

Pinkerton. In that regard, we emphasize that § 1B1.3, in adopting

Pinkerton-like accountability at sentencing, establishes what is

only a default rule of construction, precisely because its rule

does not apply if a guideline "otherwise specifie[s]." Id.

§ 1B1.3(a). And nothing in § 1B1.3 instructs us, in assessing

whether such a specification has in fact been made, to depart from

the ordinary meaning of "specif[y]," or, for that matter, from the

ordinary meaning of "the defendant used" or "the role played by

the defendant."

Consistent with this conclusion, we note that the

government concedes that the first two "Role in the Offense"

guidelines -- which provide for adjustments based on whether "the

defendant" played an "aggravating" or "mitigating" role in the

offense, id. §§ 3B1.1, 3B1.2, -- cannot be applied, in

- 29 - Pinkerton-like fashion, based on "the defendant" having reasonably

foreseen that another member of the conspiracy would play such an

aggravating or mitigating role. The government does contend that

those two "Role in the Offense" guidelines are different from

§ 3B1.4 in a relevant respect because their adjustments are

triggered by "status" rather than conduct. On that basis, the

government asserts that no specification at all is necessary to

leave § 1B1.3(a)(1)(B) without effect as to those two guidelines,

even though a specification is necessary for a conduct-based

guideline like § 3B1.4.

We are not persuaded by the government's asserted ground

for distinguishing these two "Role in the Offense" guidelines from

§ 3B1.4. Section 1B1.3 provides that it governs how "all" Chapter

Three adjustments are to be determined, subject only to the

possibility that the guideline in question "otherwise specifie[s]"

(emphasis added). Section 1B1.3 further provides that "all" such

adjustments are to be determined based on "acts or

omissions" -- which is to say, conduct. We thus fail to see how

the government could be right that § 3B1.1 and § 3B1.2 do not make

a defendant accountable for the conduct § 1B1.3(a)(1)(B) describes

even if they in no way "specif[y]" that this is the case.

Of course, those guidelines do trigger their adjustments

based on what "the defendant was," id. §§ 3B1.1, 3B1.2, rather

than on whom "the defendant used," id. § 3B1.4. But we see no

- 30 - basis for concluding that the Commission intended, by using the

phrase "the defendant was," to "specif[y]" that a "Role in the

Offense" guideline may not be applied based on another member of

the conspiracy foreseeably playing that role, but not by using the

equally "defendant"-specific phrase "the defendant used."

Reinforcing this conclusion are other signs in the

Guidelines that indicate that the Commission understands "the

defendant used" formulation in § 3B1.4 to have the import that

Salvador contends that it does. For example, the Commission has

amended the language of certain adjustment-setting guidelines to

substitute references to "the defendant" with references to "the

offense." In doing so, the Commission has explained that it has

made the change out of a concern that the use of the term "the

defendant" rather than "the offense" "could be construed as a

limitation on the scope of conduct for which a defendant is

accountable under § 1B1.3." U.S.S.G. amend. 480 (amending

U.S.S.G. §§ 2A5.2, 2A6.1); see also United States v. Zarate-

Suarez, 970 F.3d 1330, 1333 & n.5 (10th Cir. 2020) (Phillips, J.,

concurring in part and dissenting in part) (stating that "[w]hen

a Guideline enhancement requires a showing that the defendant has

done a specific act, the Guidelines have 'otherwise specified'

that § 1B1.3(a)(1)(B) does not apply," and noting that the

Sentencing Commission has stated the same in its training

materials).

- 31 - In addition, the Commission sometimes refers to conduct

undertaken by "the defendant, or a person for whose conduct the

defendant is accountable under § 1B1.3." Id. § 2D1.1(b)(7)

(emphasis added); see also, e.g., id. §§ 2D1.11(b)(4),

2D1.12(b)(3), 3A1.2(c). If the government were right that the

Commission's use of the term "defendant" in a guideline necessarily

encompasses all the conduct outlined in § 1B1.3, then the phrase

"or a person for whose conduct the defendant is accountable" would

be wholly superfluous.

Finally, the Commission has appended application notes

to various adjustment-setting guidelines that expressly single out

the use of the term "defendant" as a word that "limits" the range

of conduct for which the defendant is accountable.14 See, e.g.,

id. §§ 3B1.5 cmt. 2, 2K2.1 cmt. 13(B), 2K2.6 cmt. 1(A). We

ordinarily do not attribute a different meaning, however, to the

same word when used in different guidelines. See Cochise

Consultancy, Inc. v. United States ex rel. Hunt, 587 U.S. 262, 268

(2019).

All that said, we emphasize that our concern here is

only with § 3B1.4, which is expressly designated a "Role in the

Offense" guideline. Thus, we have no occasion to address the

For the reasons discussed below, we also do not ascribe the 14

significance that the government urges to the absence of a similar application note to § 3B1.4. See infra Section III.B.3.

- 32 - import of similarly "defendant"-specific language in setting forth

an adjustment that is not so designated. Rather, we conclude only

that, given the designation of § 3B1.4 as a "Role in the Offense"

guideline and the "defendant"-specific language that it employs,

that guideline has "specified" "otherwise" in accordance with

§ 1B1.3(a).

Nor, we should add, is this a case in which following

the text, and considering that text in context, yields an absurd

result. Even in the case of joint criminal activity, we cannot

say that there are no rational reasons to distinguish, in assigning

sentencing accountability, between personally doing something

wrong and merely reasonably foreseeing that others, acting within

the scope of and in furtherance of that activity, may do that

thing. Indeed, even apart from what the text of each of the "Role

in the Offense" guidelines indicates, we know that, following

Patrick, the Commission made plain its intent that

§ 1B1.3(a)(1)(B)'s default not apply to a newly added "Role in the

Offense" guideline, despite that guideline being just as

conduct-focused as § 3B1.4. See U.S.S.G. § 3B1.5 cmt. 2

("Consistent with § 1B1.3 (Relevant Conduct), the term

'defendant,' for the purposes of subdivision (2)(B), limits the

accountability of the defendant to [the conduct specified in

§ 1B1.3(a)(1)(A)]."). In addition, as we have noted, the

government itself concedes that § 1Bl.3's default rule does not

- 33 - apply to two other "Role in the Offense" guidelines. See id.

§§ 3B1.1, 3B1.2. Thus, given the Commission's stated purpose of

differentiating between roles within an offense, we cannot say

that it would be absurd for the Commission to have declined to

apply § 3B1.4's conduct-based adjustment to a defendant involved

in joint criminal activity based only on what was reasonably

foreseeable that another participant would do.

Accordingly, contrary to Patrick, we construe § 3B1.4 to

"otherwise" "specif[y]" that § 1B1.3(a)(1)(B) does not apply to

the upward adjustment that it sets forth. We therefore conclude

that § 3B1.4 reaches only those circumstances in which "the

defendant," by some affirmative act, personally used or attempted

to use a minor to commit the offense or assist in avoiding

3.

Our conclusion regarding § 3B1.4 accords with the

conclusion that other circuits have reached, see Pojilenko, 416

F.3d at 248-49; Acosta, 474 F.3d at 1002-03, although we

acknowledge that some circuits have sided with Patrick, see United

States v. Lewis, 386 F.3d 475, 479-80 (2d Cir. 2004); United States

v. McClain, 252 F.3d 1279, 1287-88 (11th Cir. 2001); United States

v. Voegtlin, 437 F.3d 741, 747 (8th Cir. 2006). Nonetheless,

neither Patrick nor any of those circuits addressed whether the

use of "defendant"-specific language in § 3B1.4, given its

- 34 - designation as a "Role in the Offense" guideline, "otherwise

specifie[s]" within the meaning of § 1B1.3. Thus, these precedents

do not persuade us to read § 3B1.4 in the expansive manner that

the government favors.

For its part, the government advances some reasons that

Patrick did not give for why § 3B1.4's designation as a "Role in

the Offense" guideline and its "defendant"-specific language fails

to "specif[y]" with respect to § 1B1.3(a)(1)(B). However, we are

not persuaded by those reasons.

To start, the government is right that the Introductory

Commentary to Part B of Chapter Three provides that "[t]he

determination of a defendant's role in the offense is to be made

on the basis of all conduct within the scope of § 1B1.3 (Relevant

Conduct), i.e., all conduct included under § 1B1.3(a)(1)-(4), and

not solely on the basis of elements and acts cited in the count of

conviction." U.S.S.G. ch. 3, pt. B, introductory cmt. We do not

understand this instruction, however, to bear on how the guidelines

contained in this part may, consistent with § 1B1.3(a),

"specif[y]" "otherwise" regarding the range of conduct relevant to

a particular determination. Nor do we understand this instruction

to preclude a "Role in the Offense" guideline from so

specifying -- a conclusion that would be at odds with not only the

"aggravating"- and "mitigating"-role guidelines contained in that

- 35 - part but also § 1B1.3(a) itself, which plainly allows for such a

specification. See id. §§ 3B1.1, 3B1.2.

Instead, we understand this introductory commentary to

emphasize that, in line with the Guidelines' general approach, the

adjustments contained in the "Role in the Offense" part may take

into account conduct that is not an "element[] [or] act[] cited in

the count of conviction," so long as that conduct is "relevant

conduct" under one of the subsections of § 1B1.3(a)(1)-(4). Id.

ch. 3, pt. B, introductory cmt.; see also id. § 1B1.3 background

cmt. ("Conduct that is not formally charged or is not an element

of the offense of conviction may enter into the determination of

the applicable guideline sentencing range."). Indeed, even when

a defendant is accountable only for their own "role in the

offense," a court may nonetheless need to look more broadly than

the "elements and acts cited in the count of conviction," id.

ch. 3, pt. B, introductory cmt., to identify the "offense" in

question, and thereby the role played by the defendant in that

offense.15 We therefore see no reason to conclude that this

15The Commission announced its intention to amend the introductory commentary to add the sentence in question in May 1990, see 55 Fed. Reg. 19202 (May 8, 1990), following decisions from multiple circuits concluding that the aggravating and mitigating role adjustments could only be applied by looking to the defendant's role in the offense of conviction, and not the role the defendant played in related criminal activity, see United States v. Williams, 891 F.2d 921, 925-26 (D.C. Cir. 1989); United States v. Williams, 879 F.2d 454, 458 (8th Cir. 1989); United

- 36 - sentence of the introductory commentary bears on the precise

question at hand, which concerns whether § 3B1.4 has "otherwise

specified" that its adjustment applies only when "the defendant"

personally used or attempted to use a minor and not merely when it

was reasonably foreseeable that someone else would engage in that

conduct.

In the end, then, the government's position reduces to

the contention that we must infer that nothing in § 3B1.4

"otherwise specifie[s]" because that guideline lacks an

application note stating that the defendant is not accountable for

the merely reasonably foreseeable use of a minor by another. In

arguing that this negative inference must be drawn, the government

points out that other adjustment-setting guidelines use

"defendant"-specific language and have application notes that

expressly define the scope of the defendant's accountability to

include § 1B1.3(a)(1)(A) and exclude § 1B1.3(a)(1)(B). See, e.g.,

id. §§ 3B1.5 cmt. 2, 3C1.1 cmt. 9, 3C1.2 cmt. 5, 2K2.1 cmt. 13(B),

States v. Tezlaff, 896 F.2d 1071, 1074 (7th Cir. 1990) (concluding that § 3B1.1's "role in the offense" adjustment could be applied only if the offense of which the defendant was convicted has as an "element . . . the participation of more than one person"); see also United States v. Nuno-Para, 877 F.2d 1409, 1413 (9th Cir. 1989) (explaining that § 3B1.2 and § 3B1.2 provide adjustments based on "the defendant's role in the offense of which he was convicted"); United States v. Pettit, 903 F.2d 1336, 1340-41 (10th Cir. 1990); Untied States v. Zweber, 913 F.2d 705, 708-09 (9th Cir. 1990).

- 37 - 2K2.6 cmt. 1(A).16 The government contends that we must infer from

the application notes to those guidelines that the use of

"defendant"-specific language in § 3B1.4 -- along with its

designation as a "Role in the Offense" guideline -- cannot have

Salvador's claimed specifying effect. Otherwise, the government

argues, the application notes to those other guidelines would be

superfluous.

There is, however, good reason to conclude that the

application notes that the government invokes are playing a

clarifying function, such that those application notes do not

establish that the use of "defendant"-specific language cannot

itself be specifying. Indeed, when adding the application notes

in question to two of the guidelines that the government

cites -- § 3C1.1 and § 3C1.2 -- the Commission expressly stated

that the purpose of the added application notes was to "clarif[y]

the scope of conduct for which a defendant is accountable" under

those guidelines. U.S.S.G. amend. 457 (1992) (emphasis added);

Each application note cited by the government includes 16

substantially identical language, although some notes purport to be "limit[ing]" the defendant's accountability, while others do not. Compare U.S.S.G. § 2K2.1 cmt. 13(B) ("The term 'defendant,' consistent with § 1B1.3 (Relevant Conduct), limits the accountability of the defendant to the defendant's own conduct and conduct that the defendant aided or abetted, counseled, commanded, induced, procured, or willfully caused."); with id. § 3C1.1 cmt. 9 ("Accountability for §1B1.3(a)(1)(A) Conduct.—Under this section, the defendant is accountable for the defendant's own conduct and for conduct that the defendant aided or abetted, counseled, commanded, induced, procured, or willfully caused.").

- 38 - see also Young v. United Parcel Serv., Inc., 575 U.S. 206, 245-46

(2015) (Scalia, J., dissenting) ("[A] clarifying function easily

overcomes any charge that the reading . . . makes the [relevant]

clause 'superfluous, void, or insignificant.'" (citation

omitted)).

Moreover, unlike § 3B1.4, those two guidelines also

contain specific language tying their adjustments to the defendant

having had a certain mental state. See U.S.S.G. § 3C1.1 ("If the

defendant willfully . . . ."); id. § 3C1.2 ("If the defendant

recklessly . . . ."). Thus, even if we were to assume that the

"defendant"-specific language in those guidelines independently

limits the defendant's accountability, it may be that the

application notes are doing no more than clarifying questions that

§ 3B1.4 does not raise about the scope of conduct relevant to those

guidelines. Thus, we do not see how those application notes

support our drawing the negative inference that the government

contends we must draw from the fact that § 3B1.4 has no similar

application note.

The other guidelines to which the government points that

are also not "Role in the Offense" guidelines are similar. They,

too, contain language that § 3B1.4 does not contain that could

cause confusion about the scope of a defendant's accountability.17

17 For example, § 2D1.1(b)(16)(C) provides for an adjustment

- 39 - So they, too, provide no basis for concluding that a concern about

their application notes being superfluous requires the inference

that § 3B1.4's "defendant"-specific language has no independent

specifying effect.

True, the government does identify one guideline,

§ 3B1.5, that is designated a "Role in the Offense" guideline and

that uses, in one of its two subsections, "defendant"-specific

language like § 3B1.4. The government emphasizes that § 3B1.5,

unlike § 3B1.4, nonetheless includes an application note making

clear that, "for the purposes of [that] subdivision," the defendant

is not accountable for the conduct encompassed by

§ 1B1.3(a)(1)(B). See U.S.S.G. § 3B1.5 cmt. 2. The government

thus argues that the inclusion of such an application note to

§ 3B1.5 requires us to draw the negative inference that the use of

"defendant"-specific language does not itself have any specifying

if "the defendant was directly involved in the importation of a controlled substance" (emphasis added). Its application note appears to clarify that, notwithstanding the requirement of "direct[]" involvement, a defendant is nonetheless accountable under this section for the full scope of conduct under § 1B1.3(a)(1)(A). See id. § 2D1.1 cmt. 20(B). Likewise, when the Commission appended the relevant application note to § 2K2.1, that guideline expressly tied its application to "the defendant" having "engaged in the trafficking of firearms." See U.S.S.G. amend. 691 (2006). That application note thus appears to clarify that, notwithstanding the reference to trafficking (which, by its nature, often involves "joint criminal activity"), "the term 'defendant'" nonetheless "limits" the defendant's accountability to the conduct specified in § 1B1.3(a)(1)(A). See id.

- 40 - effect, and that the absence of a similar application note to

§ 3B1.4 is therefore conclusive.

Unlike § 3B1.4, however, § 3B1.5 provides for two

adjustments: a greater adjustment if "the defendant used" body

armor, see id. § 3B1.5(2)(B), and a lesser adjustment if "the

offense" merely "involved" such use, see id. § 3B1.5(2)(A). Thus,

the application note in question appears simply to clarify the

differing scope of the defendant's accountability under the two

subsections of that guideline. Highlighting this distinction also

would appear to be particularly apt in the context of § 3B1.5, as

it is the only "Role in the Offense" guideline that provides for

separate adjustments depending on whether "the offense involved"

or "the defendant" engaged in the conduct specified.

Indeed, § 3B1.5 also includes a separate application

note that defines the term "offense," id. § 3B1.5 cmt. 1

("'Offense' has the meaning given that term in Application Note 1

of the Commentary to § 1B1.1 (Application Instructions)."), even

though that application note merely restates the

already-applicable definition of "offense" provided in Chapter

One, see id. § 1B1.1 cmt. 1. As a result, that "offense"-defining

application note is clearly doing no more than clarifying the

meaning of that term. We thus see no reason to conclude that the

- 41 - application note concerning the word "defendant" is doing anything

different. See id. § 3B1.5 cmt. 2.18

The government separately may mean to be arguing that we

must glean from the various application notes that it foregrounds

that § 3B1.4 cannot be construed to "specif[y]" "otherwise" with

respect to the scope of relevant conduct because it does not

expressly name § 1B1.3 or quote from its text. After all, the

various application notes that the government invokes all do just

that. This negative-inference-based argument, however, is hardly

strong enough to compel the conclusion that the word "specif[y]"

necessarily demands an instruction that mimics the application

notes on which the government relies.

There remain all the reasons set forth above for

concluding that the word "specif[y]" is best read to encompass an

instruction that is explicit by other means. And the government

does not develop any argument apart from this

The one guideline that the government identifies that 18

presents no language obviously requiring clarification is § 2K2.6, which provides an upward adjustment very similar to § 3B1.5, "[i]f the defendant used . . . body armor in connection with another felony offense." U.S.S.G. § 2K2.6(b)(1). (Indeed, when § 2K2.6's upward adjustment applies, it renders § 3B1.5 "[i]napplicabl[e]." Id. § 2K2.6 cmt. 2.) Notably, though, the Commission added § 2K2.6 to the Guidelines when § 3B1.5, with its application note, was already on the books. Thus, because of the overlap between the two guidelines, and the fact that the adjustment contained in § 2K2.6 renders § 3B1.5 inapplicable, the fact that the Commission adopted an identical application note when adding § 2K2.6 suggests only that the Commission sought consistency between the two nearly identical guidelines -- itself a form of clarification.

- 42 - negative-inference-based argument for concluding that the word

"specif[y]" requires an instruction that mirrors the text of the

application notes that it invokes.

Thus, at the very most, the application notes that the

government cites would give rise to a grievous ambiguity about

whether the word "specif[y]" demands an instruction that is

explicit in the way that those notes are, or whether a differently

worded instruction can be "explicit" through other means.19 Id.

§ 1B1.3 & background cmt. In that event, however, we would have

to apply the rule of lenity, Muscarello v. United States, 524 U.S.

125, 138-39 (1998); United States v. Bowen, 127 F.3d 9, 13 (1st

Cir. 1997), which would counsel against our adopting an

understanding of what "specif[y]" means that would rule out reading

the "defendant"-specific language in § 3B1.4 to constitute such an

explicit instruction, see United States v. Luna-Díaz, 222 F.3d 1,

3 n.2 (1st Cir. 2000) ("The rule of lenity requires that

We emphasize that we do not see how the application notes 19

that the government cites could give rise to any ambiguity about the meaning of the words "the defendant used" separate from the question of whether the meaning of the word "specif[y]" can encompass a specification by the use of such "defendant"-specific language. The application notes themselves suggest -- consistent with the ordinary meaning of "the defendant" -- that the term "defendant" is one of limitation. And so, an inference from those notes that the term "defendant" means something different when used in other guidelines is not compelled by the notes themselves and would require us -- contrary to our normal practice -- to attribute to the Commission an intention to use the word "defendant" to mean different things in different guidelines.

- 43 - ambiguities . . . be resolved in favor of the criminal

defendant."). So, even accounting for the government's arguments

for adhering to Patrick, we agree with Salvador that he may not be

subjected to § 3B1.4's upward adjustment based solely on it having

been reasonably foreseeable that his co-conspirators would use a

minor within the scope of, and in furtherance of, the conspiracy.

IV.

All that said, Salvador recognizes that he must do more

to succeed in his challenge to his sentence than demonstrate that

Patrick provides no basis for subjecting him to § 3B1.4's upward

adjustment. He must also show that the District Court erred in

separately determining that he satisfied § 3B1.4 because he

"personally used a minor" by directing a minor to "[m]ove over"

during the Rivas murder and by both recruiting and training minors

as members of the Sykos MS-13 clique. We therefore must address

Salvador's contentions on that score, which we will do after first

explaining what we understand the word "use" in § 3B1.4 to mean.20

In Bailey v. United States, 516 U.S. 137 (1995), the

Supreme Court of the United States construed a federal statute

20 We consider these arguments even though Salvador did not raise them before the panel. See Chestnut v. City of Lowell, 305 F.3d 18, 21 (1st Cir. 2002) (en banc). The government has elected to "waive reliance on the plain error standard to ease review of the merits."

- 44 - that criminalizes the "use[] [of] a firearm to commit [a felony

offense]." 516 U.S. at 147 (citation omitted). The Court

explained that the term "'[u]se' draws meaning from its context"

and that it would therefore "look not only to the word itself, but

also to the statute and sentencing scheme, to determine the meaning

Congress intended." Id. at 143.

The Court first gave "use" its "'ordinary or natural'

meaning, a meaning variously defined as '[t]o convert to one's

service,' 'to employ,' 'to avail oneself of,' and 'to carry out a

purpose or action by means of.'" Id. at 145 (quoting Smith v.

United States, 508 U.S. 223, 228-29 (1993)) (alteration in

original); see also Smith, 508 U.S. at 229 ("[O]ver 100 years ago,

we gave the word 'use' the same gloss, indicating that it means

'"to employ"' or '"to derive service from."'" (quoting Astor v.

Merritt, 111 U.S. 202, 213 (1884))). The Court then also analyzed

the way "use" appeared in the context of the statutory language,

explaining:

The phrase "uses a firearm to commit" indicates that Congress originally intended to reach the situation where the firearm was actively employed during commission of the crime. This original language would not have stretched so far as to cover a firearm that played no detectable role in the crime's commission. For example, a defendant who stored a gun in a nearby closet for retrieval in case the deal went sour would not have "use[d] a firearm to commit" a crime.

Bailey, 516 U.S. at 147 (alteration in original).

- 45 - Section 3B1.4 contains materially identical language to

the language considered in Bailey: "If the defendant used or

attempted to use [a minor] to commit the offense . . . increase

[the defendant's offense level] by 2 levels." U.S.S.G. § 3B1.4

(emphasis added). As a result, we conclude that § 3B1.4's

requirement of "use[]" of a minor "to commit the offense," id.,

requires some "active[] employ[ment]" of the minor "during

commission of the [offense]," as well as that the minor, so

employed, play some "detectable role in the [offense]'s

commission." See Bailey, 516 U.S. at 147; see also United States

v. Butler, 207 F.3d 839, 847 (6th Cir. 2000) (citing Bailey to

conclude that "use" requires "affirmative action on the part of a

defendant"). Nearly all our sister circuits similarly have

concluded that the word "used" in § 3B1.4 requires some

"affirmative act" to actually involve the minor in the offense.

See United States v. Taber, 497 F.3d 1177, 1180-81 (11th Cir.

2007); United States v. Ramsey, 237 F.3d 853, 860 (7th Cir. 2001);

United States v. Suitor, 253 F.3d 1206, 1210 (10th Cir. 2001);

United States v. Paine, 407 F.3d 958, 965 (8th Cir. 2005); Butler,

207 F.3d at 849; United States v. Parker, 241 F.3d 1114, 1120 (9th

Cir. 2001); United States v. Molina, 469 F.3d 408, 415 (5th Cir.

2006).

It therefore is not enough for the government to show

that a minor was merely present during an offense. Nor is it

- 46 - enough for the government to show that the defendant engaged the

minor to some end that was unrelated to, or merely incidental to,

the commission of the offense. This interpretation finds ample

support in the congressional statute enabling § 3B1.4, which

states:

The [Sentencing] Commission shall provide that the guideline enhancement promulgated . . . shall apply for any offense in relation to which the defendant has . . . used or attempted to use any person less than 18 years of age with the intent that the minor would commit a Federal offense.

Violent Crime Control and Law Enforcement Act of 1994, Pub. L.

No. 103-322, § 140008, 108 Stat. 1796, 2033 (emphasis added); see

also U.S.S.G. amend. 527 (1995) (adding the use-of-a-minor

Guideline).

Against this backdrop, we agree with Salvador that the

District Court's determination that Salvador used CW-24, a minor,

to commit the offense by "directing" CW-24 to "[m]ove over" during

the Rivas murder runs afoul of our ruling today. The commentary

to § 3B1.4 explains that "[u]sed or attempted to use," in the use-

of-a-minor guideline, "includes directing, commanding,

encouraging, intimidating, counseling, training, procuring,

recruiting, or soliciting" a minor. U.S.S.G. § 3B1.4 cmt. 1

(emphasis added). The various ways in which a defendant might

"use" a minor that are listed in § 3B1.4's application note are

- 47 - examples, however, of what might constitute a "use or attempted

use" under that guideline. They do not modify or supersede that

guideline's requirement that the defendant have used the minor "to

commit the offense," id. § 3B1.4 (emphasis added), which, as we

have explained, requires that the minor play some "detectable role

in the [offense]'s commission," Bailey, 516 U.S. at 147; see also,

e.g., Ramsey, 237 F.3d at 861 (emphasizing that the defendant "took

numerous affirmative actions to involve his brother, a minor, in

the distribution of crack cocaine"); Butler, 207 F.3d at 849

(concluding that the district court erred in applying § 3B1.4

absent a finding that the defendant "acted affirmatively to involve

[the minor] in the armed bank robbery"); United States v. Garcia,

497 F.3d 964, 970 (9th Cir. 2007) ("The evidence must show that

'the defendant acted affirmatively to involve the minor' in the

crime." (citations omitted)).

As we have seen, the storing of a firearm in a nearby

closet during a drug deal does not qualify as a "use" of a firearm

under Bailey, because that conduct plays no "detectable role" in

the commission of the offense. By contrast, the brandishing of a

firearm during the commission of a drug deal does so qualify

because that conduct plays a "detectable role" in the offense.

Bailey, 516 U.S. at 146-47. From all the record shows, CW-24, in

merely being told to "move over," was being asked to play a role

no more "detectable" in the commission of the murder than that of

- 48 - the stored firearm in the offense considered in Bailey. We thus

see no basis for concluding that Salvador "used" him to commit the

offense.

There remains to address the District Court's separate

ruling that Salvador "used" a minor to commit the offense because

he "personally recruited and trained" minors who were members of

MS-13. Salvador does not contend that this determination, if

supported by the record, is insufficient to show that he "used" a

minor "to commit the offense" in the manner required by § 3B1.4.

Salvador contends only that the District Court erred in making

this determination because this case presents "no credible

'evidence concerning [his] recruiting and training of minors.'"

Reviewing for clear error, see Misla-Aldarondo, 478 F.3d at 70, we

cannot agree.

The District Court relied for the determination that

Salvador had personally recruited and trained minors in part on

grand-jury testimony from CW-19, a minor, who was a member of the

Sykos clique. In that testimony, CW-19 described speaking with

members of the Sykos clique, including Salvador, about the need

for MS-13 members to attack rivals and the methods for doing so.

Based on this testimony, the District Court concluded that CW-19

had "talked to other members of the Sykos clique about MS-13's

- 49 - mode of operating, particularly killing rivals," and that "those

other members included . . . Salvador Gutierrez."

Salvador asserts that the District Court erred in

relying on this testimony because it was unexamined grand-jury

testimony. However, "we repeatedly have upheld [the court's]

reliance [at sentencing] on prior hearsay testimony never

subjected to cross-examination, so long as there were other

adequate indicia of reliability." United States v. Williams, 10

F.3d 910, 914 (1st Cir. 1993) (citing U.S.S.G. § 6A1.3(a)).

Moreover, in so holding, we have taken account of the fact that

the prior "testimony was given under oath, subject to the penalties

of perjury, [and] in a formal grand jury proceeding" -- as was the

case here. Id. at 914; accord United States v. Zuleta-Alvarez,

922 F.2d 33, 37 (1st Cir. 1990).

Salvador does contend that CW-19's testimony "was not

corroborated by any other source." See United States v. Rojo-

Alvarez, 944 F.2d 959, 971 (1st Cir. 1991) ("The reliability of []

evidence may be established by corroboration."). However, the

District Court expressly found CW-19's testimony credible and, in

so finding, concluded that CW-19's testimony was "similar" to that

of CW-22, another grand-jury witness. Like CW-19, the District

Court stated, CW-22 testified about meetings led by members of the

Sykos clique as part of the recruitment and training process,

during which "the goals of MS-13 and its mission were discussed,"

- 50 - and at which he was told that "killing rivals . . . was a goal and

part of the Sykos clique's mission."

Salvador fails to explain why the District Court's

finding regarding the similarity of the testimony from CW-22 does

not constitute a sufficient finding of corroboration of CW-19's

testimony regarding similar conversations he had with members of

the Sykos clique. We therefore see no merit to this aspect of

Salvador's challenge. See United States v. Cintrón-Echautegui,

604 F.3d 1, 6 (1st Cir. 2010) ("[A] sentencing court has wide

discretion to decide whether particular evidence is sufficiently

reliable to be used at sentencing.").

Salvador further contends that, because CW-19 was a

member of the Sykos clique before Salvador joined, CW-19's

testimony about Salvador having taken part in CW-19's training is

not credible. However, this fact about the timing of CW-19's

joining the Sykos clique does not suffice to demonstrate that the

District Court clearly erred in relying on CW-19's specific

testimony regarding conversations that he had with Salvador and

other MS-13 members about the gang's mode of operation. Thus,

this aspect of Salvador's challenge fails as well.

Finally, Salvador complains that he did not receive

prior notice that the District Court would rely on CW-19's

grand-jury testimony in the way that the District Court did. But

Salvador did not object to the District Court's reliance on the

- 51 - testimony, even though Salvador had ample opportunity to do so

before sentencing concluded the following week. His claim of

unfair surprise is thus undercut by his failure "to meet the

claimed exigency" when it arose. United States v. Diaz-Villafane,

874 F.2d 43, 47 (1st Cir. 1989); see also United States v. Mathur,

624 F.3d 498, 508 (1st Cir. 2010) (observing that "allow[ing] the

case to proceed to sentencing without objection" "severely

undermined" the defendant's claim of unfair surprise (citation

omitted)). For this reason, too, then, we reject Salvador's

challenge to the application of § 3B1.4's adjustment to him based

on a finding that he "personally" used a minor to commit the

The sentence is affirmed.

- 52 -