United States v. Walker

89 F.4th 173

• Court: Court of Appeals for the First Circuit
• Decided: December 19, 2023
• Docket: 22-1929
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 22-1929

UNITED STATES OF AMERICA,

Appellee,

v.

SHAUN WALKER,

Defendant, Appellant.

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

[Hon. Timothy S. Hillman, U.S. District Judge]

Before

Gelpí, Montecalvo, and Rikelman, Circuit Judges.

Sarah Varney, with whom Darren Griffis and Murphy & Rudolf, LLP were on brief, for appellant.

Alexia R. De Vincentis, Assistant United States Attorney, with whom Joshua S. Levy, Acting United States Attorney, was on brief, for appellee.

December 19, 2023 RIKELMAN, Circuit Judge. Shaun Walker appeals his

thirty-six-month sentence for participating in a thwarted Hobbs

Act conspiracy to rob a home business. Walker raises four

procedural objections to his sentence, including the application

of economic-loss and dangerous-weapon enhancements, and the denial

of incomplete-conspiracy and mitigating-role reductions. Although

the district court's ultimate sentence was one month below the

low-end of the sentencing range recommended under the United States

Sentencing Guidelines, Walker asks us to review the calculation of

the range itself.

After careful consideration, we find no reversible error

in the district court’s treatment of the economic-loss and

dangerous-weapon enhancements or the incomplete-conspiracy

reduction. But because the sentencing court did not compare

Walker’s culpability to that of his co-defendants under the factors

applicable to the mitigating-role reduction, we cannot confirm

whether it erred in denying that reduction. Accordingly, we vacate

and remand for resentencing on Walker's eligibility for a

mitigating-role reduction.

- 2 - I. BACKGROUND

A. Relevant Facts1

On March 18, 2019, Junior Melendez was organizing a

robbery of a home in Rockland, Massachusetts, out of which Joseph

Wilson ran a business selling glass marijuana-smoking

paraphernalia. Melendez was planning the break-in with Grace

Katana, who had scouted the target location, Keith Johnson, who

would lead the break-in, and a fourth person, who would aid Johnson

inside the home. On March 19, Melendez told Johnson that Shaun

Walker would enter the home with Johnson as a substitute for the

original person in that role. Johnson objected at first,

preferring someone physically larger, before relenting to Walker's

participation, telling Melendez, "I’m going in first, it doesn’t

even matter."

With the four participants set, the plan was put into

motion. On March 21, Katana suggested to Melendez that the robbery

could go forward that Sunday. Two days later, on Saturday,

March 23, Melendez called Johnson and confirmed they would proceed

1 Because Walker pleaded guilty, our summary "draw[s] the facts from the change-of-plea colloquies, the unchallenged portions of the Presentence Investigation Report[], and the sentencing hearing transcript." United States v. Vargas-Martinez, 15 F.4th 91, 95 n.1 (1st Cir. 2021). It also draws on phone call transcripts in the Government’s Supplemental Appendix, which contain undisputed statements not included elsewhere in the record but which both parties agree were properly before the district court.

- 3 - "tomorrow." On Sunday, March 24, Melendez informed Johnson they

would commit the robbery "tonight around 2 or 3 in the morning,"

and Johnson said he would be ready.

Around 1:42 a.m. on Monday, March 25, Katana told

Melendez he was ready to proceed "whenever the guys were ready,"

and agreed to meet Melendez near Hamilton Street in Worcester,

Massachusetts. But Melendez changed his mind twenty minutes later,

calling Katana at 2:04 a.m. to delay the break-in until "tomorrow,"

saying the middle of the night was "not really the best time to do

it" and agreeing to meet Katana that night instead.

Apparently unknown to the conspirators, state and

federal law enforcement had been intercepting Melendez's phone

calls and text messages pursuant to a wiretap since March 14, 2019.

Aware of Melendez and Katana’s middle-of-the-night plan, police

watched from a distance in the early hours of March 25 as Melendez

arrived to meet Katana in Worcester. At approximately 3:15 a.m.,

after Melendez had left the area, police observed three men loading

a wheeled dolly into the back of a Honda CR-V registered to

Katana’s sister.2

Before the four men left for Rockland later on Monday,

March 25, Johnson called Melendez to ask, "you got the thing, or

I bringing mine?" Melendez responded that "he might not, he

2 The record does not further identify the men.

- 4 - probably not even be there," apparently referring to Wilson, but

instructed Johnson to "bring [his] just in case," repeating, "just

bring one, bring one." The men were discussing whether Johnson

should carry a firearm, and, following Melendez's instructions,

Johnson brought a .380 caliber pistol to Rockland. Law enforcement

agents were listening to that call and intercepted a separate call

the following month in which Melendez told a third party that

Walker was angry that nobody told him Johnson was instructed to

bring a gun into the home.

The men traveled more than 60 miles from Worcester to

Rockland on Monday afternoon. Upon arriving in Rockland around

2:48 p.m., Melendez and Katana scoped out the Wilson property,

whereas Walker and Johnson waited in a Home Depot parking lot less

than a mile away. At 2:51 p.m., location information from

Melendez’s phone indicated he was close to the target home. At

2:53 p.m., a doorbell camera recorded Katana carrying away two

packages that had been delivered to the doorstep of the property

earlier that day.

By 3:02 p.m., Melendez and Katana had arrived at the

Home Depot. Although Melendez previously had instructed Walker to

purchase from Home Depot "whatever we need" while Melendez and

Katana went to the house, Walker asked Melendez to buy the supplies

instead, saying "we can't be going in and showin' our face," and

suggesting Melendez "grab a crowbar," before adding "what you

- 5 - think? Whatever, whatever you think's going to work." Home Depot

security footage and a purchase receipt show that at 3:07 p.m.,

Melendez and Katana bought a two-foot iron crowbar, an eight-inch

screwdriver, and razor blades, which they loaded into the Honda

occupied by Walker and Johnson.

Melendez also told Walker "[t]here's one whip [car]" in

the driveway of Wilson's house and that Katana did not "think

anybody [was] there" but that they were "not sure." Apparently,

Katana was trying to gather more information from an unspecified

fifth person. Melendez's last statement to Walker was that

"we[']re gonna look . . . and make the decision after that."

Convinced an armed robbery was imminent, Massachusetts

State Police stopped both vehicles in the Home Depot parking lot.

Walker was driving the Honda with Johnson in the front passenger

seat. From that vehicle, officers seized a loaded .380 caliber

pistol from the glove compartment; the crowbar Melendez and Katana

had purchased; and the wheeled dolly loaded the night before. In

Melendez’s vehicle, officers found a ski mask and the two boxes

Katana had taken from the front steps of the home, which contained

$2,500 worth of glass smoking pipes. Wilson later told law

enforcement that the glassware in his home on the day of the

intended robbery was worth approximately $40,000.

- 6 - B. Legal Proceedings

On May 18, 2022, Walker pleaded guilty to violating the

Hobbs Act, 18 U.S.C. § 1951(a). The presentence investigation

report (PSR) recommended a sentencing range of thirty-seven to

forty-six months based on a total offense level of 21, which was

derived from the following calculation. The Guideline applicable

to Hobbs Act conspiracies is that for "Attempt, Solicitation, or

Conspiracy (Not Covered by a Specific Offense Guideline)." U.S.

Sent'g Guidelines Manual ("U.S.S.G.") § 2Xl.l; see id. § 1B1.2

("If the offense involved a conspiracy . . . refer to

§ 2Xl.l . . . ."). Section 2X1.1 borrows the base offense level

for the substantive offense -- here, the robbery Guideline, id.

§ 2B3.1 -- "plus any adjustments from such guideline for any

intended offense conduct that can be established with reasonable

certainty," id. § 2Xl.l(a). The robbery Guideline provides a base

offense level of 20. Id. § 2B3.1(a).

The PSR also recommended two enhancements and two

reductions. It initially recommended a five-level increase for

possession of a firearm, but both Walker and the government

objected because the government was unable to prove Walker could

have reasonably foreseen that Johnson would carry the gun. In

response, the probation officer recommended instead a three-level

enhancement based on possession of "dangerous weapon[s]": the

crowbar, screwdriver, and razor blades. Id. § 2B3.1(b)(2)(E).

- 7 - The PSR also recommended a one-level economic-loss increase

because the intended loss was more than $20,000 but did not exceed

$95,000. See id. § 2B3.1(b)(7)(B). Finally, the PSR recommended

a two-level decrease for acceptance of responsibility and a further

one-level decrease for Walker’s timely notice of his intent to

plead guilty, reaching a total offense level of 21. Because Walker

had a criminal history score of zero, he qualified for criminal

history category I.

Walker asserted four objections to the PSR's guideline

calculation in his sentencing memorandum. First, he requested a

four-point reduction for his role as a minimal participant in the

conspiracy. See id. § 3B1.2(a). Walker argued that he was

"substantially less culpable than the average participant" in the

conspiracy, id. § 3B1.2 cmt. n.3(A), and "plainly among the least

culpable" in the offense under the factors laid out in the

Guideline commentary, id. § 3B1.2 cmt. n.4; see also id. § 3B1.2

cmt. n.3(C) (listing factors "the court should consider" when

determining whether defendant is eligible for a reduction). He

explained that he did not fully understand the scope or structure

of the activity, nor did he participate in its planning; he

intended to perform only a small role in the break-in itself; he

lacked decision-making authority and expressed reticence about

certain steps; and the record did not show that he stood to benefit

- 8 - from his participation. At the sentencing hearing,3 the government

responded that Walker could not be a minimal participant, arguing

that it was "hard to imagine that an individual who ultimately

agreed . . . to go into the house to actually commit the robbery

[would] be a minimal participant in that conspiracy." The

government also argued that Walker hesitated to enter the Home

Depot because he feared a witness might later identify him on

security footage, not because he was having second thoughts about

the robbery.

Second, Walker requested a three-level reduction because

he and his co-conspirators had not taken all the necessary acts to

complete the robbery. See id. § 2X1.1(b)(2). Walker argued that

Melendez had doubts about whether to carry out the robbery as late

as when the group was at Home Depot because Katana could not

determine whether the home was occupied. Walker further argued

that the group had not reached the final staging area because

Melendez had asked Walker whether the group could meet at a

restaurant to decide what to do. The government responded that

the incomplete-conspiracy reduction was "the exception to the

rule" and unwarranted in this case, when the co-conspirators had

planned the robbery for six days, armed themselves with a pistol,

3 The government did not file a sentencing memorandum.

- 9 - driven 60 miles to within half a mile of the target property, and

purchased items to perform the break-in.

Third, Walker argued that a three-level dangerous-weapon

enhancement for possession of the crowbar, screwdriver, and razor

blades was improper because he possessed the items only with the

intent to facilitate the robbery, not to cause injury. The

government argued that the enhancement was available as long as it

could show with reasonable certainty that Walker intended to

"possess[] an item that was capable of inflicting death or serious

bodily injury," and both parties agreed the crowbar, screwdriver,

and razor blades could inflict such harm.

Finally, Walker argued that the one-point economic-loss

enhancement was inappropriate. He contended that the court could

consider only the actual loss caused by the conspirators, not the

intended loss, because the government could not show with

reasonable certainty that the conspirators would have stolen all

of the glassware had the break-in occurred. The actual loss of

$2,500 would not have warranted an enhancement. See id.

§ 2B3.1(b)(7)(A). The government responded that the conspiracy

Guideline indicates that "in an attempted theft, the value of the

items that the defendant attempted to steal would be considered,"

id. § 2X1.1 cmt. n.2, so the intended $40,000 loss was sufficient

to justify the adjustment.

- 10 - The district court allowed the parties to present their

positions without questioning and, at the end of the presentations,

decided to adopt the PSR's offense level calculations. It did not

explain its reasoning on the record. The government asked for a

sentence of forty-six months of imprisonment, at the top of the

sentencing range recommended under the Guidelines, whereas Walker

requested no incarceration, two years of probation, and three years

of supervised release.4 After hearing Walker's allocution, which

the district court remarked "was one of the best [it had] ever

heard," the court sentenced him to thirty-six months'

incarceration and three years' supervised release. Walker timely

appealed.

II. DISCUSSION

A. Standard of Review

On appeal, Walker raises only procedural challenges to

his sentence. Accordingly, our review of the district court's

decision scrutinizes its legal conclusions de novo and its factual

findings for clear error. See United States v. Andino-Rodríguez,

79 F.4th 7, 31 (1st Cir. 2023). We address each of Walker's

challenges below, leaving the most complicated on this record for

last.

4Walker's sentencing memorandum noted that he spent more than three years in court-ordered home confinement after his initial arrest in 2019, during which he left home only for work and to attend to his children.

- 11 - B. Economic-Loss Enhancement

Walker asks us to reverse the district court's

application of a one-point economic-loss enhancement on two

grounds. He argues that the district court committed legal error

by applying the enhancement based on the $40,000 value of the

intended loss, rather than the $2,500 value of the glassware Katana

removed from the property. See U.S.S.G. § 2B3.1(b)(7)(A)-(B)

(applying no enhancement for losses of $20,000 or less and a one-

point enhancement for losses greater than $20,000 but not exceeding

$95,000). Further, Walker contends that the government failed to

prove with "reasonable certainty" that the conspirators

"specifically intended" to cause a loss of more than $20,000. We

reject both arguments.

First, the plain language of the Guidelines and our

precedent both foreclose Walker's claim that the district court

applied the wrong legal standard. The language of the applicable

Guidelines allows district courts to consider intended losses.

The conspiracy Guideline instructs sentencing courts to apply "any

adjustments from [the substantive offense] guideline for any

intended offense conduct that can be established with reasonable

certainty." Id. § 2X1.1(a) (emphasis added). The conspiracy

Guideline commentary defines "intended offense conduct" as conduct

- 12 - that was "specifically intended" or that "actually occurred."5 Id.

§ 2X1.1 cmt. n.2. Under the robbery Guideline commentary, "loss"

is "the value of the property taken, damaged, or destroyed." Id.

§ 2B3.1 cmt. n.3. Applying the commentary of the conspiracy

Guideline to that of the robbery Guideline therefore requires

district courts to consider the value of the property that the

conspirators specifically intended to steal when sentencing for a

robbery conspiracy. Cf. § 2X1.1 cmt. n.2 ("In an attempted theft,

the value of the items that the defendant attempted to steal would

be considered."). And our case law confirms that "'intended' loss

is the test" for determining whether an economic-loss adjustment

applies to a thwarted robbery conspiracy. United States v.

Chapdelaine, 989 F.2d 28, 35 (1st Cir. 1993).6

Walker argues that a case decided by the Third Circuit

after his sentencing nevertheless commands a different result

here. See generally United States v. Banks, 55 F.4th 246 (3d Cir.

5 The commentary in the Guidelines, including the application notes, is binding unless it conflicts with the Guidelines themselves or a statute. Andino-Rodríguez, 79 F.4th at 35 (citing United States v. Carrasco-Mateo, 389 F.3d 239, 244 (1st Cir. 2004)). 6 Walker argues that Chapdelaine is inapplicable because it considered "intended loss" based on a since-amended provision in the robbery Guideline. But as we explained in Chapdelaine, the previous framework, in the end, directed us to "intended loss" based on the language in the conspiracy Guideline. See 989 F.2d at 35 n.8. The same is true today, even though the modern Guidelines take us on a more direct route to get there.

- 13 - 2022). Banks held that the plain meaning of the economic-loss

adjustment under the separate but similar theft Guideline "does

not include intended loss." Id. at 257 (interpreting U.S.S.G.

§ 2B1.1(b)(1)). In so ruling, the Third Circuit withheld deference

to the commentary accompanying the theft Guideline because that

commentary broadened the language of the Guideline beyond its text.

See id. at 256-58 & n.45 (citing United States v. Nasir, 17 F.4th

459, 472 (3rd Cir. 2021) (en banc) (Bibas, J., concurring)).

Walker argues that because the adjustments under the theft and

robbery Guidelines share the word "loss," the logic of Banks should

apply to section 2B3.1(b)(7) and compel us to reverse. But Banks

did not involve a conspiracy charge, so the sentence in that case

rested only on the language of the theft Guideline. See id. at

251, 256-58. Here, by contrast, the conspiracy Guideline governing

Hobbs Act robberies expressly instructs courts to consider

"intended offense conduct." U.S.S.G. § 2X1.1(a). And unlike the

intended loss language in the theft Guideline commentary, the

textual hook for intended conduct in the conspiracy Guideline is

contained in the Guideline itself, quelling any concern that the

commentary could have impermissibly expanded the meaning of the

relevant Guideline here.

Second, there was no error in the district court's

application of the reasonable certainty standard. Our precedent

allows sentencing courts to draw inferences from "the actual plan

- 14 - of the conspirators to determine which specific characteristics of

the offense they intended." United States v. Medeiros, 897 F.2d

13, 19 (1st Cir. 1990); see Chapdelaine, 989 F.2d at 35

("[R]easonable certainty goes to what with reasonable certainty

can be determined to be the conspirator's intent." (internal

quotation marks omitted) (quoting Medeiros, 897 F.2d at 18)).

Walker argues that because the robbery did not take

place, it is "speculative" to assume that the conspirators would

have successfully stolen more than $20,000 worth of property,

thereby warranting the enhancement. Again, our precedent says

otherwise. In Chapdelaine, the defendant received a four-point

increase for a loss between $800,000 and $1,500,000 for his

unsuccessful conspiracy to rob an armored truck containing

$1,000,000. See 989 F.2d at 35. The defendant argued on appeal,

as Walker does here, that "the loss . . . was speculative," rather

than reasonably certain, "because no robbery actually occurred."

Id. But we disagreed, discerning no clear error in the finding

that the co-conspirators intended to steal all the money in the

truck. See id. So too here. Walker argues that the conspirators

might not have "kn[own] how much inventory would [have been]

inside" or "been able to locate all the inventory" or "had the

time and physical ability" to remove it all. But these

possibilities support, at best, a plausible alternative finding;

they do not demonstrate clear error. See United States v. Flete-

- 15 - Garcia, 925 F.3d 17, 26 (1st Cir. 2019) ("If two plausible but

competing inferences may be drawn from particular facts, a

sentencing court's choice between those two competing inferences

cannot be clearly erroneous." (first citing United States v. Nuñez,

852 F.3d 141, 146 (1st Cir. 2017); and then citing United States

v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990))).

C. Dangerous-Weapon Enhancement

Walker next argues that the district court erred by

applying a three-point enhancement under the robbery Guideline for

possession of dangerous weapons because the government failed to

prove that Walker intended to use the crowbar, screwdriver, and

razor blades as weapons. Walker is incorrect as a matter of law

that the Guidelines require such proof.

As explained previously, the conspiracy Guideline

directs courts to adopt the base offense level of the substantive

offense "plus any adjustments from such guideline for any intended

offense conduct that can be established with reasonable

certainty." U.S.S.G. § 2X1.1(a). Among the specific offense

characteristics of the robbery Guideline is a three-level

enhancement if "a dangerous weapon was brandished or possessed."

Id. § 2B3.1(b)(2)(E). A dangerous weapon includes "an instrument

capable of inflicting death or serious bodily injury." Id. cmt.

n.2 (incorporating by reference U.S.S.G. § 1B1.1 cmt. n.1(E)(ii)).

- 16 - Our precedent does not resolve whether the government

must show that a defendant intended to possess a dangerous weapon

with intent to use it as such. The government argues that it needs

to show only that Walker intended to possess the weapons, whereas

Walker argues that the enhancement applies only if he intended to

use the items to "inflict[] death or serious bodily injury."

"Typically, we give the language used in guideline

provisions its plain and ordinary meaning." United States v.

Patch, 9 F.4th 43, 46 (1st Cir. 2021); accord United States v.

Pope, 554 F.3d 240, 246 (2d Cir. 2009) (interpreting weapons

enhancement according to its "plain meaning"). Section 2X1.1(a)

instructs district courts to adjust the Guideline calculation from

the underlying substantive offense based on "intended offense

conduct." U.S.S.G. § 2X1.1(a). "[I]ntended" modifies "conduct,"

which, in the relevant sense, means "the act, manner, or process

of carrying on." See Conduct, Merriam-Webster’s Collegiate

Dictionary (10th ed. 1993). Accordingly, "intended offense

conduct" in the conspiracy Guideline refers to -- and the specific-

intent requirement applies to -- the actions a defendant intended

to take in the course of the substantive offense. The text of the

robbery Guideline clearly states that the relevant offense conduct

is the "possess[ion]" of a dangerous weapon. U.S.S.G.

§ 2B3.1(b)(2)(E); see Pope, 554 F.3d at 246 (holding enhancement

applies under theft Guideline "if the dangerous weapon 'was

- 17 - possessed'" (quoting U.S.S.G. § 2B2.1(b)(4))). Because the action

is contained in the word "possess[ion]," the plain meaning of the

Guidelines supports the government’s view that Walker needed only

to "specifically intend[]" to "possess[]" the items in connection

with the robbery. See U.S.S.G. § 2X1.1(a) cmt. n.2; id.

§ 2B3.1(b)(2)(E).

Our understanding of the dangerous-weapon enhancement is

consistent with the case law of our sister circuits, and we can

identify no out-of-circuit precedent adopting Walker's

interpretation. See United States v. Lavender, 224 F.3d 939, 941

(9th Cir. 2000) (rejecting defendant's argument that "dangerous

weapons should be considered dangerous weapons for sentencing

purposes only when they are carried with the intent to use them as

weapons"); Pope, 554 F.3d at 246 (same regarding the burglary

Guideline). For example, based on the plain meaning of the

dangerous-weapon enhancement under the burglary Guideline, the

Second Circuit held in Pope that the enhancement itself required

the government only to show "possession of a dangerous weapon,

regardless of whether the dangerous weapon was employed as such

during the commission of a crime." 554 F.3d at 246 (citing

Lavender, 224 F.3d at 941). The defendant in Pope, who had carried

a sledgehammer into a bank burglary, maintained that an enhancement

for possessing a dangerous weapon was inappropriate because the

sledgehammer was "not inherently a weapon," and the defendant had

- 18 - used it only to break into the bank, not to cause injury. Id. at

245. But the Second Circuit understood the focus of the

enhancement to require courts to evaluate whether an item "was

possessed," not the manner in which it was used. Id. at 246.

To be sure, Pope did not interpret the enhancement

through the lens of the conspiracy Guideline, which expressly

limits sentencing courts to considering conduct that was

"specifically intended or actually occurred." U.S.S.G. § 2X1.1

cmt. n.2. But Pope's explanation that the dangerous-weapon

enhancement applies when the defendant intended to possess a

dangerous weapon -- regardless of how the item would be used to

facilitate the offense -- confirms our view that the conspiracy

Guideline's intent requirement applies to possession of a

dangerous weapon and nothing more. See 554 F.3d at 245-46; accord

Lavender, 224 F.3d at 941.

Because Walker concedes that he specifically intended to

possess the crowbar, screwdriver, and razor blades during the

robbery, and that such items fit within the Guideline definition

of "dangerous weapon," the district court did not err by applying

the enhancement here.

D. Incomplete-Conspiracy Reduction

denying his request for a three-level incomplete-conspiracy

reduction. The sentencing court’s factual finding that the

- 19 - participants were "about to complete" the conspiracy is subject to

clear error review.7 See Chapdelaine, 989 F.2d at 35. We find no

clear error here.

A conspiracy defendant is entitled to a three-level

reduction from the base offense level of the underlying substantive

offense "unless" the court finds with "reasonable certainty" that

"the conspirators were about to complete" the object of the

conspiracy "but for apprehension or interruption by some similar

event beyond their control." U.S.S.G. § 2X1.1(a), (b)(2). Walker

argues that at the time of the conspirators' initial arrests in

the Home Depot parking lot, Melendez and Katana believed that

someone might be home and planned to undertake additional

reconnaissance before proceeding, so they were not "about to

complete" the robbery. He urges us to reverse, contending that

these facts show the conspiracy here did not proceed as far as the

robbery in Chapdelaine.8

7 A sentencing court may also deny an incomplete-conspiracy reduction if it finds that "the defendant or a co-conspirator completed all the acts the conspirators believed necessary on their part for the successful completion of the substantive offense." U.S.S.G. § 2X1.1(b)(2). In that context, "[t]he question of whether the offense was substantially completed is a judgment call," which we review for abuse of discretion. United States v. Serunjogi, 767 F.3d 132, 143 (1st Cir. 2014). 8 The government, for its part, attempts to distinguish Chapdelaine as a case in which the defendants had completed all the acts necessary to accomplish the robbery, but our holding in that case clearly stated otherwise. See 989 F.2d at 35 ("Under these circumstances, there was no clear error in the district

- 20 - In that case, we found no clear error in the district

court’s finding that Chapdelaine was "'about to complete' a

robbery" when the participants had stolen getaway vehicles in

advance, scouted the arrival and departure times of the target

truck for several days, arrived at the mall on the day of the

intended robbery "prepared and equipped to carry out a robbery,"

and "were thwarted only by the unexpected early departure of the

[target] truck." Chapdelaine, 989 F.2d at 30-31, 35. Walker

contends that the presence of the car in the driveway of the Wilson

residence gave the conspirators here pause, forcing them to

reconsider whether to proceed. Unlike in Chapdelaine, Walker

argues, the conspirators here did not arrive at the final staging

area ready to complete the offense. Rather, there was still an

opportunity to withdraw from or otherwise abandon the conspiracy.

But Chapdelaine makes clear that "[i]t is nearness of

the crime to achievement . . . that defeats the reduction

available for conspiracies . . . that have not progressed very

far." Id. at 36. And Walker fails to explain why the district

court clearly erred in determining that the robbery conspiracy

here had "progressed far enough." Id.

court's conclusion that Chapdelaine was 'about to complete' a robbery 'but for apprehension or interruption by some similar event beyond the defendant's control.'" (emphasis added) (quoting U.S.S.G. § 2X1.1(b)(1))).

- 21 - We reverse for clear error only if the district court's

factual findings are not plausible on the record as a whole and if

we "form[] a strong, unyielding belief that a mistake has been

made." United States v. Montañez-Quiñones, 911 F.3d 59, 66 (1st

Cir. 2018) (quoting United States v. Cintrón-Echautegui, 604 F.3d

1, 6 (1st Cir. 2010)). Here, Walker and his co-conspirators

planned the robbery for nearly a week, drove more than 60 miles in

separate cars from Worcester to Rockland, and, although Melendez

and Katana saw a vehicle in the driveway at the target home, stole

items from the front porch and then purchased items at Home Depot

to facilitate the break-in. A district court could plausibly treat

these facts as demonstrating that the presence of a vehicle at the

home had merely slowed, rather than stopped, the momentum of the

conspiracy. Nor does the record contain any evidence that Walker

took steps to withdraw from the conspiracy at that time. Although

Walker disagrees with the district court's interpretation of the

facts, "the sentencing court's choice among supportable

alternatives cannot be clearly erroneous." Andino-Rodríguez, 79

F.4th at 34 (quoting United States v. De la Cruz-Gutiérrez, 881

F.3d 221, 227 (1st Cir. 2018)).

E. Mitigating-Role Reduction

Walker's final challenge to his sentence is that the

district court erroneously denied him a mitigating-role adjustment

for what he claims is his lesser role in the offense as compared

- 22 - to his co-conspirators. We conclude that we cannot evaluate on

this record whether denying the reduction constituted error and

therefore remand to the district court.

"Role-in-the-offense determinations are notoriously

fact-specific." United States v. Pérez, 819 F.3d 541, 545 (1st

Cir. 2016) (citations omitted). It is not surprising then that

"absent a mistake of law, battles over a defendant's" role are

"almost always . . . won or lost in the district court." Id. at

546 (quoting United States v. Graciani, 61 F.3d 70, 75 (1st Cir.

1995)). Indeed, "[w]e've often warned that, [b]ecause determining

one's role in an offense is a fact-specific inquiry, we rarely

reverse a district court's decision regarding whether to apply a

minor role adjustment." Andino-Rodríguez, 79 F.4th at 31 (second

alteration in original) (internal quotation marks omitted)

(quoting De la Cruz-Gutiérrez, 881 F.3d at 225-26). The defendant

"bears the burden of proving, by a preponderance of the evidence,

that he is entitled to the downward adjustment." United States v.

Arias-Mercedes, 901 F.3d 1, 5 (1st Cir. 2018) (quoting Pérez, 819

F.3d at 545). Absent a showing of legal error subject to de novo

review, "[a] defendant will 'only prevail on appeal by

demonstrating that the district court's determination as to his

role in the offense was clearly erroneous.'" De la Cruz-Gutiérrez,

881 F.3d at 226 (quoting United States v. González-Soberal, 109

F.3d 64, 74 (1st Cir. 1997)).

- 23 - "[A]ll parties engaged in a criminal enterprise can be

'located on a continuum.'" Andino-Rodríguez, 79 F.4th at 34

(quoting Arias-Mercedes, 901 F.3d at 8). "Those who are primarily

responsible stand on one end," while "the least culpable

participants . . . stand at the opposite end." Id. To be eligible

for any mitigating-role reduction, a defendant must, as a threshold

matter, be "substantially less culpable than the average

participant in the criminal activity." United States v. Mendoza-

Maisonet, 962 F.3d 1, 23 (1st Cir. 2020) (quoting U.S.S.G. § 3B1.2

cmt. n.3(A)). If that requirement is met, then a district court

must evaluate the defendant's classification among the "pool of

defendants eligible for an adjustment." Id. A minimal participant

is "plainly among the least culpable of those involved," U.S.S.G.

§ 3B1.2 cmt. n.4 (emphasis added), whereas a minor participant is

"less culpable than most other participants in the criminal

activity, but [his] role could not be described as minimal," id.

cmt. n.5 (emphasis added). A defendant may receive a four-point

reduction if he is a minimal participant; a two-point reduction if

he is a minor participant; and a three-point reduction if his

culpability falls somewhere between minimal and minor. See

U.S.S.G. § 3B1.2.

Accordingly, to be a candidate for a minimal-participant

reduction (worth four points) Walker must show that he is both

"substantially less culpable than the average participant in the

- 24 - criminal activity" and "plainly among the least culpable of those

involved"; and to be a candidate for a minor-participant reduction

(worth two points) he must be both "substantially less culpable

than the average participant in the criminal activity" and "less

culpable than most other participants in the criminal activity."

Mendoza-Maisonet, 962 F.3d at 23 (citations omitted); accord

Andino-Rodríguez, 79 F.4th at 34. Other circuits apply this

conjunctive standard too. See, e.g., United States v. Carpenter,

252 F.3d 230, 234-35 (2d Cir. 2001); United States v. Kearby, 943

F.3d 969, 977 (5th Cir. 2019); United States v. Dominguez-Caicedo,

40 F.4th 938, 960 (9th Cir. 2022).

We recognize that this framework can pose a challenge

for district courts reviewing small criminal enterprises like this

one, and comparing participants in a four-person conspiracy can be

particularly vexing. By our math, only the two least culpable

defendants in a four-person conspiracy could qualify for a two-

point reduction by showing that each is "substantially less

culpable than the average participant" and "less culpable than

most other participants." But we emphasize that the individuals

who could qualify as "substantially less culpable than the average

participant" in a four-person enterprise will vary based on the

facts of a particular case. In some four-person conspiracies, the

average participant could be the second-most culpable individual

if the most culpable individual's role was significantly greater

- 25 - than that of all the others. The third and fourth participant

might then qualify for a reduction if each was "substantially less

culpable" than the second participant. In other four-person

conspiracies, the average participant might be the third-most

culpable individual, so only the fourth participant could receive

a reduction. In all these situations, however, a sentencing court

must consider whether the defendant is also "less culpable than

most other participants" in a four-person conspiracy in order to

grant a minor-role reduction. And there may be instances when

none of the participants qualifies. See, e.g., De la Cruz-

Gutiérrez, 881 F.3d at 226 (citation omitted) (denying reduction

where participants were "equal partners in the criminal

activity").

Here, we do not have enough information about the

district court's rationale for denying the reduction. Based on

the record we can only conclude, as the government conceded at

oral argument, that Walker was less culpable than Melendez, the

mastermind, and Johnson, who planned to enter the home with a gun.

Walker also may be less culpable than Katana, who participated

heavily in planning and was the only person to remove glassware

from the premises but did not intend to enter the home. But the

district court, which is the expert on the facts, particularly

after presiding over Katana's trial, at no time identified the

- 26 - average participant or compared the culpability of Walker and

Katana on the record.

The lack of any explanation for the district court's

decision gives us special pause here because it is not apparent

from the record that the court performed the inquiry required by

the mitigating-role Guideline. U.S.S.G. § 3B1.2 cmt. n.3(C)

("[T]he court should consider the following non-exhaustive list of

factors." (emphasis added)); see also United States v. Wynn, 37

F.4th 63, 69 (2d Cir. 2022) ("The district judge . . . erred in

denying [the defendant] a mitigating role adjustment without first

addressing [four] relevant factors that appear to support such an

adjustment."); United States v. Diaz, 884 F.3d 911, 916 (9th Cir.

2018) ("[T]he assessment of a defendant's eligibility for a minor-

role adjustment must include consideration of the factors

identified by the Amendment . . . ."). Since 2015, the Guidelines

have channeled decision-making about culpability through five non-

exhaustive factors to determine whether a defendant is eligible

for a mitigating-role reduction. U.S.S.G. § 3B1.2 cmt. n.3(C);

id. Supp. to App. C, Amend. 794. The factors are:

(i) the degree to which the defendant understood the scope and structure of the criminal activity;

(ii) the degree to which the defendant participated in planning or organizing the criminal activity;

(iii) the degree to which the defendant exercised decision-making authority or influenced the exercise of decision-making authority;

- 27 - (iv) the nature and extent of the defendant’s participation in the commission of the criminal activity, including the acts the defendant performed and the responsibility and discretion the defendant had in performing those acts;

(v) the degree to which the defendant stood to benefit from the criminal activity.

Id. § 3B1.2 cmt. n.3(C). An evaluation of these factors does not

require extensive analysis, see United States v. Castillo, 995

F.3d 14, 18 (1st Cir. 2021), but it does require both a judgment

about the defendant's own conduct and a comparison to the other

participants, see Andino-Rodríguez, 79 F.4th at 33; United States

v. Nkome, 987 F.3d 1262, 1273 (10th Cir. 2021) ("[T]he crux of

§ 3B1.2 is a defendant's relative culpability." (quoting United

States v. Yurek, 925 F.3d 423, 446 (10th Cir. 2019))).

In some cases when a sentencing court gave no explanation

on the record for denying a reduction, we have discerned the

court's rationale by inferring that the court agreed with the

government's reasoning that the reduction was unwarranted. See,

e.g., Mendoza-Maisonet, 962 F.3d at 24. Nonetheless, sentencing

courts must give sufficient explanation to "allow for meaningful

appellate review." Gall v. United States, 552 U.S. 38, 50 (2007);

see Wynn, 37 F.4th at 68 (remanding for resentencing because "[t]he

district judge's decision lack[ed] any analysis of [four of the]

relevant mitigating role factors that the Guidelines provide");

cf. United States v. Reyes-Correa, 81 F.4th 1, 10 (1st Cir. 2023)

- 28 - (vacating sentence for procedural unreasonableness because

district court provided "boilerplate" explanation for upward

variance). Thus, although some sentences may survive clear error

review based on other information in the record, even without an

explicit comparison, we stress that comparing participants based

on the Guideline factors is critical. See United States v. Muñoz-

Fontanez, 61 F.4th 212, 214 (1st Cir. 2023) ("Inadequate

explanation is a recognized sentencing error." (citing Gall, 552

U.S. at 51)).

Against this backdrop, we conclude that we are unable to

affirm here for three reasons. First, the district court did not

explain its grounds for denying the mitigating-role reduction.

After the parties' presentations, the court stated that it would

accept the Guidelines calculations recommended in the PSR. Often

when we have affirmed the denial of the reduction in previous

cases, we have been able to rely on some explanation by the

district court. See, e.g., Andino-Rodríguez, 79 F.4th at 33, 35

(affirming the denial of a mitigating-role reduction where "the

court went through the five mitigating role adjustment factors and

matched Andino's conduct to each factor"); Castillo, 995 F.3d at

18 ("The district court's comparison to Arias-Mercedes and the

statements that Castillo must have been aware of the quantity of

cocaine on board were sufficient to 'allow for meaningful appellate

review' of the denial of the downward adjustment." (quoting Gall,

- 29 - 552 U.S. at 50)). The district court also did not engage with the

parties during their presentations in a way that would permit us

to understand its reasoning from its comments and questions to

counsel. See, e.g., United States v. Montes-Fosse, 824 F.3d 168,

172 (1st Cir. 2016) (district court's "exchange" with defense

counsel allowed inference about court's justification for denying

reduction).

Second, we cannot rely solely on the government's

arguments at sentencing as a basis for affirming. See Mendoza-

Maisonet, 962 F.3d at 24. The government argued that it was "hard

to imagine that an individual who ultimately agreed . . . to go

into the house to actually commit the robbery [could] be a minimal

participant in that conspiracy to commit a robbery." It also

briefly rejected Walker's suggestion that his reluctance to enter

the Home Depot supported the reduction, claiming that Walker simply

feared being seen on camera. Unlike in other cases where we have

inferred a district court's rationale from the arguments advanced

at sentencing, here, the government's argument made no explicit

comparison of the relative culpability of any of the defendants.

Cf. id. ("At sentencing, the Government argued against the minimal

participant reduction, stating that Mendoza had an 'equal

participation' in the offense, access to the stolen vehicles -- in

one of which an item that belonged to Mendoza was found -- and

that he 'had the most dangerous weapon of the two.'"). Instead,

- 30 - the government addressed "at most one of the Guidelines factors

relevant to the mitigating role determination": the extent of

Walker's participation in the planned criminal activity. Wynn, 37

F.4th at 68 (vacating sentence because district court considered

only a single factor).

Further, although we recognize that Walker focused his

arguments at sentencing on the four-level reduction, the

government never addressed below the possibility that Walker might

qualify as a "minor" participant, even if not a "minimal" one.

Our case law suggests, and the government concedes, that district

courts "faced with a request for a four-level reduction for a

minimal role could reasonably consider, in the course of that

analysis, whether a lesser two-level reduction for a minor role

had been made out." United States v. Olivero, 552 F.3d 34, 40

(1st Cir. 2009); see also De la Cruz-Gutiérrez, 881 F.3d at 225.

So we hesitate to treat the government's arguments as a sufficient

basis for the sentencing court's denial of the lesser reductions

available under section 3B1.2.

In fact, the possibility that the district court relied

on the government's argument heightens the need for clarification

here, given that the government's position below may have suggested

that Walker was ineligible for any reduction based on his integral

role in the conspiracy as "one of the individuals to go into the

house to actually commit the robbery." Integral role, however, is

- 31 - not the correct legal standard. See U.S.S.G. § 3B1.2 cmt. n.3(C)

(whether a defendant played "an essential or indispensable role in

the criminal activity is not determinative"); see, e.g., United

States v. Sanchez-Villarreal, 857 F.3d 714, 722 (5th Cir. 2017)

(vacating and remanding where district court denied reduction

based solely on defendant's "critical" role in the offense); Diaz,

884 F.3d at 917 ("To the extent the district court's reasoning

reflects reliance on [the defendant's] courier conduct as

dispositive of [his] eligibility for a minor-role reduction, it

was error. Amendment 794 clarified that the performance of an

essential role . . . is not dispositive.").

To the extent that the sentencing court relied instead

on the PSR's rationale for denying a mitigating-role reduction, we

are still not in a position to affirm. As Walker explained at

oral argument before us, the PSR declined to recommend any

reduction on the ground that "Walker was aware of the plan, agreed

to it, and was fully prepared to effectuate the crime but for law

enforcement intervention." But the district court's adoption of

that reasoning would still fail to satisfy the multifactor factual

analysis required by the Guideline.

Third, we cannot confidently conclude that any error in

the sentencing court's application of the mitigating-role

reduction was harmless. We "may only deem [a sentencing] error

harmless 'if, after reviewing the entire record, [we are] sure

- 32 - that the error did not affect the sentence imposed.'" United

States v. Graham, 976 F.3d 59, 62 (1st Cir. 2020) (quoting United

States v. Alphas, 785 F.3d 775, 780 (1st Cir. 2015)). Thus,

"resentencing is required if the error either affected or arguably

affected the sentence." Id. (quoting Alphas, 785 F.3d at 780).

In conducting harmless error review of a sentence, we

look not only to whether the error affected the Guidelines

calculation, but also "seek to distinguish between a judge's

reliance on facts in selecting an appropriate sentence and a

judge's reliance on the significance that the Guidelines appear to

assign to those facts." Id. (citing United States v. Goergen, 683

F.3d 1, 4 (1st Cir. 2012)). The district court exercised lenity

here by granting a thirty-six-month sentence -- one month lower

than the bottom of the recommended range of thirty-seven to forty-

six months. Although Walker's thirty-six-month sentence would be

within the Guidelines range of thirty to thirty-seven months if he

received a two-point reduction on remand, we agree with Walker

that this lower Guidelines range could result in a sentence of

less than thirty-six months. Thus, we think any error at least

"arguably affected the sentence," requiring remand. Graham, 976

F.3d at 62 (quoting Alphas, 785 F.3d at 780).

III. CONCLUSION

For these reasons, we VACATE and REMAND for resentencing

consistent with this opinion.

- 33 -