United States Court of Appeals
For the First Circuit
No. 25-1178
UNITED STATES OF AMERICA,
Appellee,
v.
JAYSON PASTRANA-ROMÁN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. María Antongiorgi-Jordán, U.S. District Judge]
Before
Rikelman, Kayatta, Aframe,
Circuit Judges.
Robert Fitzgerald, Assistant Federal Public Defender, with
whom Franco L. Pérez-Redondo, Assistant Federal Public Defender,
and Rachel Brill, Federal Public Defender, were on brief, for
Appellant.
Ricardo A. Imbert-Fernández, Assistant United States
Attorney, with whom Juan Carlos Reyes-Ramos, Assistant United
States Attorney, and W. Stephen Muldrow, United States Attorney,
were on brief, for Appellee.
September 30, 2026
KAYATTA, Circuit Judge. Jayson Pastrana-Román
("Pastrana") appeals his sentence of 33 months' imprisonment for
his role in a COVID-19 loan fraud conspiracy scheme. His appeal
raises two questions concerning the application of the United
States Sentencing Guidelines. First, did the district court err
in finding that Pastrana played a managerial role in the
conspiracy, such as to justify a three-level upward adjustment in
calculating his Guidelines range under U.S.S.G. § 3B1.1(b)? As we
will explain, the district court did not so err. Second, did the
district court clearly err in declining to grant Pastrana a
two-level reduction for acceptance of responsibility under
U.S.S.G. § 3E1.1? As we will explain, the district court did err
in not granting Pastrana credit for acceptance of responsibility,
and we cannot find that error harmless.
I.
To help small business owners stay afloat during the
COVID-19 pandemic, the United States Small Business Administration
implemented various relief programs, including the Economy Injury
Disaster Loan program (EIDL) and the Paycheck Protection Program
(PPP). In Puerto Rico, Manfred A. Pentzke-Lemus ("Pentzke")
developed a scheme to enrich himself and his co-conspirators
through the submission of fraudulent loan applications to the
federal government under these programs. Pentzke and his coconspirators submitted small-business loan applications containing
- 2 -fraudulent supporting documents, including falsified payroll
expenses and tax records; meanwhile, one of the co-conspirators,
an employee at a bank, facilitated the approval of these fraudulent
applications. Once individuals received their illegally-obtained
loans, they paid a kickback to Pentzke and other co-conspirators
in the scheme. To make the scheme appear legitimate, the
conspirators concealed the kickbacks as payroll and business
expenditures.
Jayson Pastrana owned a food kiosk outside of his home.
As Pastrana's business began to struggle financially during the
COVID-19 pandemic, Pentzke contacted him via a WhatsApp group chat.
Pentzke floated the opportunity for economic relief through the
federal small-business loans and offered to assist the individuals
in the group chat with filling out the requisite application forms.
In exchange for his assistance, Pentzke would require potential
loan applicants to pay him a percentage of the loans that they
received from the federal government.
Following Pentzke's instructions, Pastrana sent Pentzke
various documents pertaining to his food kiosk and income. Pentzke
passed these forms along to other co-conspirators, who altered
Pastrana's documents and added false information about Pastrana's
small business. Upon receiving the altered EIDL loan application
via email, Pastrana electronically signed his name in approval,
- 3 -despite knowing that he could not understand the forms.1 That
$150,000 EIDL loan application was eventually rejected.
Following the rejection of the EIDL loan, Pentzke
reached out to Pastrana and offered to help him apply for a PPP
loan. Pastrana agreed. Following Pentzke's suggestions, Pastrana
allowed other co-conspirators to open a bank account in his name.
Pastrana then allowed Pentzke to apply for a $20,758 PPP loan on
his behalf, which was approved, and he paid Pentzke a kickback of
$6000 for his assistance. Pastrana later successfully obtained a
second $29,062 PPP loan, for which he again paid Pentzke a
kickback. Pastrana concealed the payments to Pentzke as "payroll
or professional services," all the while "knowing that his current
payroll" did not match the amounts reflected in the payments. And
while he used some of the loan proceeds for his small-business
expenditures, Pastrana also used some of the proceeds for his
personal expenses.
Eventually, Pentzke asked Pastrana if he knew other
individuals with small businesses who could benefit from the
COVID-19 loan relief program. Pastrana shared information about
the opportunity with his brother and two friends, who also owned
small businesses and agreed to apply for the loans as well. From
there, Pastrana relayed Pentzke's WhatsApp instructions to his
1 The altered forms and documents were written in English,
and Pastrana cannot read English.
- 4 -brother and friends, detailing how to apply for the loans.
Pastrana's brother used Pastrana's email on both of his submitted
loan applications; in the first application, he even used
Pastrana's phone number. When Pastrana's brother and friends
received the proceeds of their fraudulent loan applications,
Pastrana then collected their kickback checks and brought them to
another conspirator in the scheme. There is no evidence that
Pastrana kept any of these kickback proceeds for himself.
On August 17, 2023, a grand jury returned an indictment
against Pastrana on ten counts, including one count of conspiracy
to commit wire fraud in violation of 18 U.S.C. § 1349, one count
of conspiracy to commit money laundering in violation of 18 U.S.C.
§ 1956(h), and eight counts of wire fraud, in violation of 18
U.S.C. § 1343.2 Following his arraignment, Pastrana's counsel
indicated he would likely proceed to trial; accordingly, the court
set a trial date of October 15, 2024. However, on September 13,
2024, defense counsel informed the government that Pastrana would
no longer proceed to trial and that he would be pleading guilty.
2Two of these counts pertained to the loans that Pastrana
obtained for himself and under his name. Six of these counts
pertained to the loans obtained by Pastrana's brother and friends,
which he aided and abetted.
Pastrana's brother, Luis E. Pastrana-Román, obtained two
loans for $20,343 and $28,480. Eugene Irizarry obtained two loans
for $20,827 and $29,158. Raymond Bosque del Toro obtained two
loans for $20,833 and $29,166.
- 5 -Shortly thereafter, Pastrana pleaded guilty to all ten counts in
the indictment. He did not adopt the factual basis offered by the
government at his change of plea hearing3 and instead pleaded
guilty to the elements of each count.
At his sentencing in February 2025, Pastrana and the
government disagreed about two applications of the sentencing
Guidelines: whether he should be assigned a three-level increase
in his Guidelines offense level under U.S.S.G § 3B1.1(b) for acting
as a "manager" or "supervisor" in the criminal scheme; and whether
he should receive a two- to three-level reduction in his offense
level for accepting responsibility under § 3E1.1.
The court ultimately concluded that Pastrana's role in
recruiting his brother and friends into the offense qualified him
for an upward adjustment of three levels for his role as a
"manager" in the scheme. And the court declined to grant him a
reduction for acceptance of responsibility under the Guidelines,
finding that he had not "timely" accepted responsibility and had
not accepted his role as a "recruiter" who had collected kickbacks
from his recruits. Calculating a Guidelines range of 51 to 63
months and considering what the court deemed to be Pastrana's
3 As part of this factual basis, the government asserted that
the kickback payments from Pastrana's recruits were "distributed
among [Pastrana] and his coconspirators," a fact that the district
court would later determine at sentencing was unsupported by the
evidence in the case.
- 6 -partial acceptance of responsibility as well as other mitigating
factors, the court varied downward and granted him a sentence of
33 months on all ten counts, to run concurrently with one another.4
Subsequently, the government asked whether the court's sentence
would have been the same had the court granted Pastrana a reduction
for acceptance under the Guidelines, rather than merely
incorporating his level of acceptance as part of the court's
ultimate variance under the 18 U.S.C. § 3553(a) factors. The court
responded that the sentence would have been the same, with no
further elaboration. And when Pastrana's defense counsel
subsequently objected to the court's findings regarding relevant
conduct, the court reaffirmed its position that Pastrana had not
accepted "any responsibility as to the relevant conduct," and thus
his plea was "only a partial plea" for which he would be "denied
points for acceptance of responsibility."
II.
We begin with Pastrana's challenge to the district
court's determination that he acted as a manager in the scheme
under U.S.S.G. § 3B1.1(b).
4 As part of its variance, the court referenced Pastrana's
history of mental health struggles, his successful completion of
the Federal Public Defender's reentry program, and the fact that
his income "is indispensable to [his] family's financial
stability," particularly following the devastation to his
residence by Hurricane Maria. The court also noted that it found
"no evidence [that Pastrana] received any kickbacks."
- 7 -A.
"This circuit has evidenced some inconsistency in the
manner in which it reviews role adjustments under section 3B1.1,
sometimes applying clear error [review] and other times using a
mix of de novo review for legal issues and clear error for factual
ones." United States v. Johnson, 177 F.4th 67, 78 (1st Cir. 2026)
(citing to United States v. Goncalves, 123 F.4th 580, 586 n.8 (1st
Cir. 2024)). As Pastrana's arguments concerning his role fail
under both standards, we do not resolve the inconsistency here.
B.
The Guidelines instruct a district court to increase a
defendant's offense level by four levels if he acted as an
"organizer or leader of a criminal activity that involved five or
more participants"; three levels if he acted as a "manager or
supervisor (but not an organizer or leader) and the criminal
activity involved five or more participants"; or two levels if he
acted as "an organizer, leader, manager, or supervisor in any
criminal activity" that did not qualify under the other criteria.
U.S.S.G. § 3B1.1 (a)–(c).
The application notes to the Guidelines provide that
"[t]o qualify for an adjustment under this section, the defendant
must have been the organizer, leader, manager, or supervisor of
one or more other participants." U.S.S.G. § 3B1.1 cmt. n.2. "The
enhancement is proper only where the defendant exercised some
- 8 -degree of authority or control over another criminal actor."
United States v. García-Sierra, 994 F.3d 17, 37 (1st Cir. 2021).
In its assessment of whether a defendant exercised authority or
control, a court "should consider" factors such as: "the exercise
of decision-making authority, the nature of participation in the
commission of the offense, the recruitment of accomplices, the
claimed right to a larger share of the fruits of the crime, [and]
the degree of participation in planning or organizing the offense."
U.S.S.G. § 3B1.1 cmt. n.4.5 However, the commentary makes clear
that "[the] adjustment does not apply to a defendant who merely
suggests committing the offense." Id.
C.
The court's decision as to the upward adjustment under
U.S.S.G. § 3B1.1(b) was based on its finding that Pastrana
"exercised authority over his co-defendants to recruit them into
the scheme, particularly his brother, who not only he recruited
but to which he had to inform all developments regarding his
fraudulent loan application as they were received in . . .
Pastrana's e-mail." Pastrana had no criminal history points at
the time of his offense. After finding that he had acted as a
5 We recognize that the commentary provides these factors to
help distinguish "a leadership and organizational role from one of
mere management or supervision." U.S.S.G. § 3B1.1 cmt. n.4. But
our cases have also used these factors to differentiate between a
manager or supervisor and a participant. See, e.g., United States
v. Savarese, 686 F2d 1, 19–20 (1st Cir. 2012).
- 9 -manager in the conspiracy, the court calculated his adjusted
offense level as starting at 24 -- putting his Guidelines range at
51 to 63 months. Without the three-point adjustment for his role
in the offense, Pastrana's adjusted offense level would have been
21, with a Guidelines range of 37 to 46 months. The "manager or
supervisor" classification also barred Pastrana from receiving a
two-level reduction under § 4C1.1 for being a zero-point offender,
which would have put him in a Guidelines range of 30 to 37 months.
Pastrana contends that although he served as a "conduit"
of information regarding the loan process to his brother and
friends -- who then joined the conspiracy -- he did not exert any
supervisory authority over them. Objectively, Pastrana did not
have much decision-making authority in the conspiracy. His coconspirators modified his submitted documents, opened a bank
account for him, and gave him instructions for writing the kickback
checks. However, Pastrana reached out to recruit his brother and
friends to join the conspiracy and permitted his brother to use
his email and phone number on his loan applications. He also
"conveyed . . . information" to his recruits from Pentzke. And
although Pastrana received no kickback or payment for these
recruitment efforts, his name was also listed as a point of contact
for his three recruits on a ledger maintained by the organizers of
the scheme.
- 10 -This circuit's case law does not help Pastrana. We have
previously held that recruitment of criminal actors alone
satisfies the "managerial" role requirement in U.S.S.G. § 3B1.1.
See United States v. Prange, 771 F.3d 17, 34 (1st Cir. 2014)
("[S]imply 'recruiting' a co-defendant, 'by itself, constitutes a
managerial function under § 3B1.1.'" (citation modified) (quoting
United States v. Savarese, 686 F.3d 1, 20 (1st Cir. 2012))); see
also United States v. Fontana, 50 F.3d 86, 87 (1st Cir. 1995)
("Neither 'supervisor' nor 'manager' is defined under § 3B1.1, but
it is sufficient that a defendant recruited, instructed or
supervised at least one other person."). True, Pastrana may not
have otherwise had much decision-making authority, but in
qualifying for this enhancement, we have previously held that
"[t]he authority possessed by the defendant may be fairly minimal."
García-Sierra, 994 F.3d at 37; see also Savarese, 686 F.3d at 20
("[W]e have even held that, in some circumstances, the government
need only show by a preponderance of the evidence 'that the
defendant exercised authority or control over another participant
on one occasion.'" (quoting United States v. García–Morales, 382
F.3d 12, 20 (1st Cir. 2004))); United States v. Negrón-Rossy, 628
F. App'x 779, 780 (1st Cir. 2015).6
6Pastrana's collection of the kickback checks from his
recruits does not by itself establish that he served any managerial
function or role. See United States v. Flores-De-Jesús, 569 F.3d
8, 35 (1st Cir. 2009) (finding that, among other things,
- 11 -Pastrana attempts to distinguish his case from our case
law by arguing that he lacked "the express authority to bring
recruits into the scheme and [did not] receive a portion of the
kickback payments." True, recruitment requires "the demonstration
of [some] individual authority necessary to bring a new member
into the fold." Savarese, 686 F.3d at 20. But when Pentzke asked
Pastrana whether he knew anyone interested in applying for the
loans, it was Pastrana who made the unilateral decision to reach
out to his brother and friends and provide them with information
about the loan opportunities. These three recruits would not have
known when or how to submit their loan applications absent some
direction. And on the record here, it was Pastrana -- not Pentzke
or another co-conspirator -- who passed along Pentzke's
directions. We have previously rejected the argument that "merely
transmitting orders" precludes a finding of managerial function.
Id. Indeed, "[s]upervision . . . 'often consists of transmitting
directives from above,'" as "'[l]ow-level supervisors are
themselves closely supervised and thus have little discretion.'"
Id. (quoting United States v. Figueroa, 682 F.3d 694, 697 (7th
Cir. 2012)).
"collecting the proceeds to deliver to the point's owners or
leaders is insufficient to establish the requisite control over
another criminal actor that our case law requires").
- 12 -In light of the foregoing, the district court did not
err in finding that Pastrana was a "manager or supervisor" of the
scheme under U.S.S.G. § 3B1.1(b).
III.
We now turn to Pastrana's challenge to the court's
determination that he had not accepted responsibility under
U.S.S.G. § 3E1.1(a).
A.
This court reviews a district court's "factbound
determination that a defendant has not accepted responsibility"
for clear error, United States v. McCarthy, 32 F.4th 59, 62–63
(1st Cir. 2022) (citation modified), and its "answers to abstract
legal questions, including its interpretation of the federal
sentencing Guidelines, de novo." United States v. Jordan, 549
F.3d 57, 60 (1st Cir. 2008). As "[t]he sentencing judge is in a
unique position to evaluate a defendant’s acceptance of
responsibility," this court affords his or her determination
"great deference on review." U.S.S.G. § 3E1.1 cmt. n.5.
B.
Under the sentencing Guidelines, a defendant who
"clearly demonstrates acceptance of responsibility for his
- 13 -offense" should receive a reduction of two levels. Id.
§ 3E1.1(a).7
The commentary to § 3E1.1 provides that in assessing
whether a defendant qualifies for acceptance under subsection (a),
a court may consider whether the defendant has "truthfully
admitt[ed] the conduct comprising the offense(s) of conviction,
and truthfully admitt[ed] or not falsely den[ied] any additional
relevant conduct for which the defendant is accountable." U.S.S.G.
§ 3E1.1 cmt. n.1(A) (emphasis added). The commentary further
states that "a defendant is not required to volunteer, or
affirmatively admit, relevant conduct beyond the offense of
conviction," and that a defendant who challenges relevant conduct
may do so without being "inconsistent with acceptance of
responsibility" so long as he does not "falsely den[y] or
frivolously contest[]" that conduct. Id. "[T]he fact that a
defendant’s challenge is unsuccessful does not necessarily
establish that it was either a false denial or frivolous." Id.
7 Where a defendant has an offense level of 16 or greater
prior to the application of § 3E1.1(a) (as Pastrana did), the
government may file a motion for an additional one-level reduction
"stating that the defendant has . . . timely notif[ied]
authorities of his intention to enter a plea of guilty, thereby
permitting the government to avoid preparing for trial . . . ."
U.S.S.G § 3E1.1(b). But because the district court found that
Pastrana had not accepted responsibility under U.S.S.G.
§ 3E1.1(a), it never reached the issue of Pastrana's claim for the
third acceptance point under U.S.S.G. § 3E1.1(b).
- 14 -As pertinent to this case, a court may also consider
"the timeliness of the defendant’s conduct in manifesting the
acceptance of responsibility." U.S.S.G. § 3E1.1 cmt. n.1(H).
Where a defendant has pleaded guilty prior to trial and has
"truthfully admitt[ed] or not falsely den[ied] any additional
relevant conduct for which he is accountable," such actions "will
constitute significant evidence of acceptance of responsibility."
U.S.S.G. § 3E1.1 cmt. n.3. A court may still determine that credit
for acceptance is not appropriate where a defendant's actions
"outweigh[]" and are "inconsistent" with his acceptance. Id.
C.
The district court declined to grant Pastrana any credit
for acceptance of responsibility under § 3E1.1(a), finding his
acceptance was not "timely" and that Pastrana did not
admit -- during his change of plea or pre-sentence interview -- to
his role in recruiting his brother and friends and transferring
their kickbacks to other co-conspirators.8
In his challenge to the court's findings, Pastrana makes
two arguments. First, he contends that the district court erred
in deeming his acceptance not "timely" without any further
8 As described above, the court calculated Pastrana's
Guidelines range to be 51 to 63 months. If Pastrana had received
a two-level reduction for acceptance of responsibility, his range
would have been 41 to 51 months; with three levels for acceptance,
it would have been 37 to 46 months.
- 15 -explanation, where Pastrana had notified the government of his
intent to plead guilty one month prior to trial. Second, he
asserts that because he "did not falsely deny" or "raise frivolous
objections" to any relevant conduct -- and indeed had admitted the
same conduct upon which the court relied -- he should have been
granted credit for acceptance.9
1.
We begin with the timeliness inquiry. The parties do
not dispute that Pastrana informed the government of his intent to
plead guilty over one month prior to trial. And Pastrana presents
cases from our circuit wherein the district court afforded a
defendant the two-level reduction for acceptance of responsibility
despite pleading guilty only a few days before trial. See United
States v. Jaca-Nazario, 521 F.3d 50, 59–60 (1st Cir. 2008) (holding
a district court's decision to impose only a two-level, rather
than three-level, reduction for acceptance was not clearly
erroneous); United States v. Fuentes-Echevarría, 856 F.3d 22, 24–
25 (1st Cir. 2017) (same). The government does not dispute the
precedential import of these cases or advance any arguments to the
9Pastrana also contends that the court erroneously relied
on his attorney's statements declining to admit the factual basis
presented by the government at his change of plea hearing; he
argues that the change of plea hearing is not the only time in the
proceedings wherein a defendant can accept the relevant conduct
pertaining to his offense. We subsume these assertions into his
second argument.
- 16 -contrary. Nor can we glean from the district court's reasoning
why Pastrana's notification to government counsel regarding his
intent to plead guilty one month prior to trial would be considered
untimely. Cf. United States v. Colón-Cordero, 91 F.4th 41, 51
(1st Cir. 2024) ("[S]entencing courts must say enough to show an
appellate court they considered the parties' arguments and had a
reasoned basis for exercising their own legal decisionmaking
authority." (citation modified)).
Of course, the court's assessment of the timeliness of
Pastrana's acceptance would not amount to reversible error if the
court found that Pastrana had otherwise not accepted
responsibility. With that, we turn to the court's "relevant
conduct" inquiry.
2.
During his presentence interview, Pastrana "accepted
responsibility for his actions," though he stated he was "not aware
[that] what he was doing was illegal until his arrest." Following
this interview, the probation department recommended that Pastrana
should receive a two-level reduction for his acceptance under
§ 3E1.1(a) and an additional one-level reduction under § 3E1.1(b).
The government objected to this characterization, contending that
Pastrana did not accept responsibility because he "[apparently]
suggest[ed] he did not have the requisite knowledge and intent to
commit the wire fraud" and "[said] nothing about his role in
- 17 -recruiting others or laundering the kickbacks of the scheme."10 In
response, Pastrana stated that he had "accepted his knowledge by
accepting that he overlooked . . . facts that he should not have
disregarded" and "admitted conduct about acts he performed";
moreover, he maintained that he had a "right to litigate the role
enhancement" and that his objections to the enhancement "cannot be
taken as negating his acceptance of responsibility." Ultimately,
in the amended (final) presentence report, the probation office
agreed with the government and determined that Pastrana "did not
admit when asked to his role as a recruiter of any of the other
co-defendants, nor that he collected kickbacks from codefendants." Accordingly, the final report gave Pastrana no credit
for acceptance.
In his formal objections to the finalized report,
Pastrana admitted that "[h]e collected the money for the
kickback[s] from the co-defendants and delivered them to one of
[Pentzke's] agents" and that he "is not denying" such conduct.
Later, at his sentencing, Pastrana's counsel further acknowledged
that Pastrana had transmitted Pentzke's instructions to his
brother and friends and that his brother used his email on his
loan applications. In refusing to grant him any credit for
The government further asserted that it would not move for
10
the third acceptance point under U.S.S.G. § 3E1.1(b) because it
"underwent significant preparations for trial" prior to Pastrana's
notification of his intent to plead guilty.
- 18 -acceptance, however, the district court focused on what Pastrana
did not say at his change of plea hearing or during his presentence
interview. Namely, the court emphasized that 1) during his change
of plea, Pastrana only admitted to the elements of the offense
rather than the government's factual basis, and then, 2) during
his presentence interview, Pastrana "accepted responsibility only
to fraudulently obtaining the loans but did not accept that he
acted as a recruiter, [nor] that he served as an intermediary in
the collection of kickbacks." Based on these factors, the court
determined that Pastrana "did not admit to relevant conduct and
thus did not comply with the requirements of 3E1.1."
The court was twice wrong. First, Pastrana was "not
required to volunteer, or affirmatively admit, relevant conduct
beyond the offense[s] of conviction." U.S.S.G. § 3E1.1 cmt.
n.1(A). Rather, he was obligated not to "falsely den[y], or
frivolously contest[], relevant conduct that the court
determine[d] to be true." Id.; see United States v. Gonzales, 12
F.3d 298, 300 (1st Cir. 1993) ("[A] defendant is not required
affirmatively to admit conduct beyond the offenses of conviction
in order to obtain credit for acceptance of
responsibility . . . ."). And while "a court may properly
consider whether a defendant who mendaciously denies relevant
conduct has acted in a manner inconsistent with accepting
- 19 -responsibility," no one claims Pastrana was "mendacious[]" or
frivolous in his positions taken. Gonzales, 12 F.3d at 300.
Second, Pastrana did in any event admit the relevant
facts underpinning his role in the conspiracy. In his PSR
objections, Pastrana recognized his role in "aid[ing] and
abett[ing]" his brother and friends in their fraudulent
applications. In those objections, he also expressly admitted to
having collected kickbacks from his brother and friends to transfer
them to other individuals. And at his sentencing hearing, Pastrana
further admitted to having transmitted Pentzke's instructions to
his brother and friends and to having provided his email for his
brother to use on his applications. Though he was not required to
do so to be deserving of the reduction under § 3E1.1(a), Pastrana
ultimately volunteered the same set of facts that the court relied
on in declining to grant him credit for acceptance. That Pastrana
characterized these actions as lacking the requisite control over
another to qualify him as a manager under the Guidelines does not
disqualify him from credit for acceptance under the Guidelines.
These objections were non-frivolous legal arguments rather than
"spurious" or "mendacious" denials of any relevant conduct. See
United States v. Coleman, 884 F.3d 67, 73 (1st Cir. 2018);
Gonzales, 12 F.3d at 300.
We need consider one further point. The government
argues on appeal that the facts the court considered to be relevant
- 20 -conduct were actually facts comprising Pastrana's aiding and
abetting offenses, and therefore, under the Guideline commentary
in § 3E1.1 cmt. n.1(A), Pastrana had to admit these facts in order
to obtain the reduction for acceptance of responsibility.11 This
was not an argument that the government developed in the district
court, nor was it an argument that the court adopted itself.
Indeed, the district court looked at those facts solely as facts
pertaining to "relevant conduct," as it reasoned that "being a
recruiter and being the contact point to collect kickbacks are not
elements of the offense that the defendant ple[aded] guilty to."
In any event, as we have stated above, Pastrana admitted that he
introduced his brother and friends to the loan opportunity; that
he transmitted Pentzke's instructions to them; that he collected
kickback checks; and that he permitted his brother to use his email
on his loan applications.12
So, for the foregoing reasons, we conclude that the
district court clearly erred in denying Pastrana a two-level
11 In a footnote, the government additionally contends that
"recruiting others, giving instructions, supplying contact
information, and collecting kickback payments are all overt acts
[Pastrana] undertook in furtherance of the conspiracies" and thus
are "not additional relevant conduct beyond the offenses of
convictions." This argument fails for the same reasons delineated
above.
12 The government does not contend that Pastrana's admission
of the facts was itself untimely. Rather, it questions only the
extent of the admissions.
- 21 -reduction for acceptance of responsibility under § 3E1.1(a).13
That leaves only the question of whether the error in refusing a
two-level reduction for acceptance of responsibility was harmless.
In pronouncing its sentence, the court indicated that it would
grant Pastrana a variance for his partial acceptance,14 and,
considering further mitigation, sentenced him to 33 months in
custody (well below his Guidelines range). After the court had
pronounced its sentence, the government asked whether the sentence
would have remained the same had the court granted Pastrana credit
for acceptance of responsibility. So prompted, the court replied
briefly that the sentence would have been the same.
Under our precedent in United States v. MaldonadoNegroni, where a "district court's unelaborated response [does
not] show that the sentence imposed was detached from the erroneous
Guidelines range," we cannot consider its error harmless. 141
F.4th 333, 345 (1st Cir. 2025). There, the court erroneously
applied the defendant's Guidelines based on a Grade A rather than
a Grade B violation before granting the defendant a "variant"
sentence. Id. at 339. And, as here, when the government asked
13 Whether this re-opens the issue of Pastrana's request for
an additional one-level reduction under § 3E1.1(b) we leave to the
district court to decide in the first instance.
14 Specifically, the court stated that "[a]lthough untimely,
[and despite] the fact that defendant did not accept responsibility
for the relevant conduct, he did accept responsibility for the
elements of the offense that he ple[aded] guilty to."
- 22 -the court whether its sentence would have been the same had it
applied the Guidelines for a Grade B violation, the court responded
affirmatively, without explanation. Id.
The Guidelines are "the sentencing court's 'starting
point and initial benchmark.'" Id. at 341 (citation modified)
(quoting Molina-Martinez v. United States, 578 U.S. 189, 198
(2016)). So, where "the sentencing judge errs in identifying the
applicable Guidelines range" -- as the court did in denying
Pastrana credit for acceptance of responsibility -- "'[t]he
record . . . must make the innocuous nature of the error
unmistakable.'" Id. (quoting United States v. Romero-Galindez,
782 F.3d 63, 70 (1st Cir. 2015)). Here, the court's brief reply,
bereft of apparent preparation or explanation, precludes us from
finding the error unmistakably innocuous. True, the court granted
a variance related to Pastrana's "partial" acceptance. But the
word "partial" itself implies that a full acceptance might
have -- in the court's discretion -- warranted more of a reduction
than what Pastrana ultimately received.
Indeed, following the court's pronouncement of the
sentence and its brief colloquy with the government affirming that
it would have granted the same sentence, defense counsel objected
to the court's findings regarding Pastrana's acceptance of
responsibility. In response, the court once again affirmed that
its sentence was directly tied to Pastrana's partial acceptance
- 23 -under the Guidelines: "[T]hat's the problem with his plea. It's
not a plea based on the totality. And the law is clear that if
it's only a partial plea and the defendant does not accept the
relevant conduct, he can be denied points for acceptance of
responsibility." We therefore find, as in Maldonado-Negroni, that
the court's "brief" reply to the government's inquiry, "given only
upon prompting and without elaboration . . . does not provide
adequate assurance that the district court intended to untether
its sentence from the Guidelines." Id. at 344 (internal quotations
marks omitted).
"In most cases a defendant who has shown that the
district court mistakenly deemed applicable an incorrect, higher
Guidelines range has demonstrated a reasonable probability of a
different outcome." United States v. Taylor, 848 F.3d 476, 497–
98 (1st Cir. 2017) (quoting Molina–Martinez, 578 U.S. at 200).
Such is the case here. Had the court properly focused on the
relevant inquiry under § 3E1.1(a) and granted Pastrana full credit
for acceptance, the court's "starting point" would have been 41-51
months rather than 51–63 months, without yet applying any variance
for Pastrana's sentencing mitigation. And the government fails to
"identify 'a clear statement by the sentencing court that would be
sufficient to diminish the potential of the Guideline Sentencing
Range to influence the sentence actually imposed.'" Maldonado- 24 -Negroni, 141 F.4th at 342 (citation modified) (quoting United
States v. Hudson, 823 F.3d 11, 19 (1st Cir. 2016)).
The court's error was not harmless.
IV.
We vacate the sentence and remand for resentencing
forthwith.15 Nothing in this opinion dictates what that sentence
should be.
Pastrana's motion for release pending appeal is denied
as moot, without prejudicing his ability to file a motion in the
district court for release pending resentencing. See 18 U.S.C.
§ 3143.
15 According to the Bureau of Prisons' website, Pastrana is
scheduled to be released on January 18, 2027.
(https://www.bop.gov/inmateloc/ Last visited September 30, 2036.)
- 25 -