United States v. Luis Mercado

                                        PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                 ________________

                       No. 22-1947
                    ________________

             UNITED STATES OF AMERICA

                             v.

                   LUIS D. MERCADO,
                                Appellant
                    ________________

      On Appeal from the United States District Court
          for the Middle District of Pennsylvania
               (D. C. No. 1-21-cr-00337-001)
              District Judge: Sylvia H. Rambo
                     ________________

                  Argued on June 29, 2023

  Before: JORDAN, KRAUSE and SMITH, Circuit Judges

              (Opinion filed: August 29, 2023)

Ronald A. Krauss, Esq.
Jason F. Ullman, Esq.                   [ARGUED]
Office of Federal Public Defender
100 Chestnut Street
Suite 306
Harrisburg, PA 17101

             Counsel for Appellant

Christian T. Haugsby, Esq.              [ARGUED]
Paul J. Miovas, Jr., Esq.
Carlo D. Marchioli, Esq.
Office of United States Attorney
Middle District of Pennsylvania
1501 N 6th Street, 2nd Floor
P.O. Box 202
Harrisburg, PA 17102

              Counsel for Appellee

                      ________________

                          OPINION
                      ________________

KRAUSE, Circuit Judge.

       Actions speak louder than words. So when a defendant
continues to engage in criminal activity following a guilty plea,
that post-plea conduct may bear on whether he has genuinely
accepted responsibility for his crime of conviction. In this
case, Appellant Luis Mercado asks us to conclude precisely the
opposite. He asserts that § 3E1.1(a) of the Sentencing
Guidelines, which permits a district court to reduce a
defendant’s sentence if he can “clearly demonstrate[]
acceptance of responsibility for his offense,” U.S.S.G.
§ 3E1.1(a), unambiguously precludes a district court from
considering post-plea conduct “unrelated” to that pled-out
offense. Opening Br. 7.

        Yet the plain text of § 3E1.1(a) contains no such
limiting principle. Instead, the commentary to this provision
sets forth a list of “appropriate considerations,” several of
which expressly sweep in post-plea conduct. U.S.S.G. § 3E1.1
cmt. n.1(A)–(H). And where, as here, commentary helps to
clarify a Guideline’s “genuinely ambiguous” text, that
commentary may serve as an authoritative delimiting
mechanism, provided that it is both “reasonable” and invokes
the Sentencing Commission’s “substantive experience.”
United States v. Nasir, 

 (3d Cir. 2021) (en
banc). For the reasons explained below, the commentary to
§ 3E1.1(a) satisfies these criteria, and the District Court did not
clearly err in relying on Mercado’s post-plea misconduct to
deny his request for a § 3E1.1(a) reduction. We will therefore
affirm.



                                2
I.     Background

       For a full year starting in August 2020, Mercado filed
fraudulent Pandemic Unemployment Assistance claims on a
weekly basis, collecting a total of $37,555 in fraudulent
benefits. When the Government caught on a few months later,
it opened discussions with Mercado, who waived indictment
and entered into an agreement to plead guilty to an Information
the Government filed the same day, charging him with wire
fraud in violation of 

. Among other things,
that plea agreement endorsed the possibility of a downward
adjustment under § 3E1.1(a) if Mercado could “adequately
demonstrate recognition and affirmative acceptance of
responsibility [for his offense].” App. 28–29.

       Mercado entered his guilty plea a few weeks later. At
the plea hearing, Mercado “apologize[d] for what [he had]
done,” id. at 57, and the District Court continued his bail
pending sentencing, including several conditions of bail
relevant to this appeal. Specifically, the District Court
required, in relevant part, that Mercado “refrain from use or
unlawful possession of a narcotic drug or other controlled
substance”; “submit to substance abuse testing”; “complete a
substance abuse evaluation and treatment if deemed
appropriate by pretrial services”; and “get medical and
psychiatric treatment if directed by pretrial services.” Id. at 58.

       Mercado’s compliance proved problematic from the
start. On the same day he pleaded guilty, Mercado tested
positive for cocaine. Probation referred him for intensive
outpatient treatment, but he never reported for his counseling
sessions and was terminated without having completed the
program. In January 2022, Mercado admitted to using cocaine
again, and two months later, he refused to take a follow-up
drug test. When he finally submitted to testing in April, he
again tested positive.

       In its Presentence Investigation Report, the Probation
Office calculated an offense level of 11 and a Criminal History
Category of II, resulting in an applicable Guideline range of 10
to 16 months’ imprisonment.           A two-point downward
adjustment for acceptance of responsibility under § 3E1.1(a)
would have produced a Guideline range of 6 to 12 months’

                                3
imprisonment. But the Probation Office recommended against
it. While the Probation Office recognized that Mercado had
expressed remorse for committing the instant offense, it
concluded that he had not clearly demonstrated acceptance of
responsibility for the offense in view of his post-plea conduct,
including cocaine use and failure to complete substance abuse
treatment.

       In response to Mercado’s objection, the Probation
Office also issued an addendum, adhering to its original
recommendation. Relying largely on the commentary to
§ 3E1.1(a), the addendum explained that a defendant who
enters a guilty plea is not entitled to an adjustment based on
acceptance of responsibility as a matter of right, see U.S.S.G.
§ 3E1.1 cmt. n.3, and that courts can consider a defendant’s
“voluntary termination or withdrawal from criminal conduct or
associations,” id. cmt. n.1(B), and “post-offensive
rehabilitative efforts,” id. cmt. n.1(G), in determining whether
a defendant qualifies for a reduction for acceptance of
responsibility.

      The District Court held a sentencing hearing in May
2022. When given the opportunity to address the Court,
Mercado again expressed remorse for his actions:

       I want to apologize for what I’ve done first.
       Right now I have motive for life to continue
       living . . . . I have a new partner, a new friend,
       and I want to give everything that I can to her. I
       have a good job. . . . And I want to work hard to
       get out of this darkness if I can get a chance to
       do that. Something else, I watch out for my
       mother. My sister and myself are the ones that
       are in charge of taking care of my mother. I
       know I can do it, and I trust in God that I can do
       it if I have the opportunity.

App. 61. The District Court, however, was not persuaded and
declined the two-point adjustment. By way of reasoning, the
Court referred to the “ongoing episode” of Mercado’s drug use
and referenced a memo from Mercado’s Probation Officer
confirming Mercado’s most recent positive drug test. Id. at 60.
Ultimately, the Court sentenced Mercado to the bottom of the

                               4
applicable range, 10 months’ imprisonment, and strongly
recommended that he receive all available drug treatment
while incarcerated. Mercado now brings this timely appeal.

II.    Discussion 1

       Mercado raises only one argument on appeal: that the
District Court erred by denying him a § 3E1.1(a) adjustment
based on the “irrelevant post-plea conduct” of his continued
drug use. Opening Br. 2. According to Mercado, the operative
language of § 3E1.1(a)—requiring a defendant to “clearly
demonstrate[] acceptance of responsibility for his offense”—
unambiguously precludes a district court from considering
such conduct. The Government, on the other hand, contends
this language is genuinely ambiguous, enabling courts to
consult the list of “appropriate considerations” in the
commentary, including “voluntary termination or withdrawal
from criminal conduct or associations,” U.S.S.G. § 3E1.1 cmt.
n.1(B), and “post-offense rehabilitative efforts (e.g.,
counseling or drug treatment),” id. cmt. n.1(G). 2

1
  The District Court had jurisdiction under 

.
We have jurisdiction under 

. We review the
District Court’s interpretation of the Sentencing Guidelines de
novo, United States v. Adair, 

 (3d Cir. 2022),
and we review its “determination of whether the defendant is
entitled to an acceptance of responsibility . . . for clear error,”
United States v. Harris, 

 (3d Cir. 2014).
2
  In full, that non-exhaustive list of considerations covers:
“(A) truthfully admitting the conduct comprising the offense(s)
of conviction, and truthfully admitting or not falsely denying
any additional relevant conduct for which the defendant is
accountable under § 1B1.3 (Relevant Conduct). . . . ;
(B) voluntary termination or withdrawal from criminal conduct
or associations; (C) voluntary payment of restitution prior to
adjudication of guilt; (D) voluntary surrender to authorities
promptly after commission of the offense; (E) voluntary
assistance to authorities in the recovery of the fruits and
instrumentalities of the offense; (F) voluntary resignation from
the office or position held during the commission of the
offense; (G) post-offense rehabilitative efforts (e.g., counseling
or drug treatment); and (H) the timeliness of the defendant's

                                5
        To resolve that question, we apply the three-step
framework set forth in United States v. Nasir, 

 (3d
Cir. 2021) (en banc). First, we ask whether a Guideline
provision is “genuinely ambiguous” by “carefully
consider[ing] the [Guideline’s] text, structure, history, and
purpose.” 

 at 471 (quoting Kisor v. Wilkie, 

 (2019)). If the Guideline itself is unambiguous, our
inquiry is at an end, and we simply disregard the commentary.

 If the Guideline is instead ambiguous, we proceed to step
two and consider whether the corresponding commentary is
“reasonable,” i.e., within “the outer bounds of permissible
interpretation,” 

 but we “accord the commentary no weight”
when it “expands the definition” of a term within the text of the
Guidelines, United States v. Banks, 

, 258 (3d Cir.
2022). At the third step, if the commentary reasonably
interprets an ambiguous provision, we ask “whether the
character and context of the agency interpretation entitles it to
controlling weight.” Nasir, 

. In other words,
we afford that interpretation so-called Auer deference only if it
“implicate[s] [the Commission’s] substantive expertise” and
“reflect[s] fair and considered judgment.” 

 (citations
omitted). We consider § 3E1.1(a) at each step below.

       A.     The Guideline Is Genuinely Ambiguous

        To discern if a Guideline is “genuinely ambiguous,” id.,
we look to contemporary “dictionary definitions while keeping
in mind the whole statutory text, the purpose, and context of
the statute, and relevant precedent,” United States v. Brow, 

 (3d Cir. 2023) (citation omitted); Adair, 

; Banks, 55 F.4th at 257.

              1.     Text and Dictionary Definitions

       Section 3E1.1(a) authorizes a downward adjustment
when a defendant has “clearly demonstrate[d] acceptance of
responsibility for his offense.” U.S.S.G. § 3E1.1(a). The
parties here largely agree on the applicable definition for each
individual word in that text. They agree, in other words, that a
defendant satisfies his burden under § 3E1.1(a) if he can “show
clearly” by “evidence” that he “t[ook] . . . with a consenting

conduct in manifesting the acceptance of responsibility.”
U.S.S.G. § 3E1.1 cmt. n.1(A)–(H).
                               6
mind” “moral, legal, or mental accountability” for his
“infraction of law,” as reflected by his “contrition, remorse,
and ownership of action.” 3 Answering Br. 14–15, 21; Opening
Br. 12, 18–19.

        From there, however, they part ways. Mercado
contends this language “unambiguously delineates the conduct
that the defendant must ‘clearly’ acknowledge and accept
responsibility for: conduct that violated the statute for which
he is being sentenced,” Opening Br. 20, which precludes a
district court from considering “unrelated” post-plea criminal
conduct, id. at 8. The Government, by contrast, homes in on
the term “demonstrates” and the need to show accountability
“clearly” and by “evidence.” Answering Br. 15–16. The
ordinary meaning of “demonstrates,” it contends, does not tell
us how a defendant can make this showing or what evidence is
relevant, and nothing else in the text clarifies that nebulous
burden.

       The Government has it right. Mercado’s reading fails
to grapple with the possibility that demonstrating one’s
acceptance of responsibility for a particular offense might
include refraining from additional criminal activity. More
importantly, Mercado fails to explain why § 3E1.1(a)
unambiguously forecloses such a reading. He would have us
prohibit a district court from considering anything beyond a
defendant’s words of remorse at a plea or sentencing hearing,
yet offers no reason, textual or otherwise, why we should draw
that arbitrary line. The dictionary definitions on which he
relies suggest we should not. As Mercado notes, “to
demonstrate” means “to show clearly,” Opening Br. 18, yet to
“show” means to “to reveal by one’s condition, nature, or

3
  Mercado largely draws his definitions from WEBSTER’S NEW
TWENTIETH CENTURY DICTIONARY (2d ed. 1979) and
WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY (9th ed.
1985). The Government draws nearly all definitions from
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (2002).
Given that the final relevant amendment to § 3E1.1(a) occurred
in 1992, to the extent there is a discrepancy, Mercado’s
contemporaneous definitions control. But again, given the
overall consensus, the meaning of each individual word has
little impact on our analysis.
                              7
behavior,”    WEBSTER’S     NINTH     NEW     COLLEGIATE
DICTIONARY 1091 (1988) (emphasis added). So whether a
person has “demonstrated” acceptance of responsibility turns
on both words and deeds. It is not limited—let alone
“unambiguously” limited—to verbal expressions of remorse.

        As a fallback, Mercado also urges that even if a district
court may consider some post-plea conduct, it cannot consider
post-plea conduct that is “irrelevant,” Opening Br. 2, or
“unrelated” to “the offense of conviction,” id. at 13, because
the demonstration of acceptance must be “for his offense,”
U.S.S.G. § 3E1.1(a). But those words cannot bear the weight
he would place on them. The phrase “for his offense” merely
specifies the crime for which a defendant is accepting
responsibility—not the conduct by which he demonstrates that
acceptance. The text, in other words, references two
temporally distinct sets of conduct. First is the conduct
encapsulated by the term “his offense,” which, we agree with
Mercado, means the conduct underlying the offense of
conviction and for which the district court is sentencing the
defendant. But the district court must also determine—based
on evidence of the defendant’s post-offense words and
conduct—whether the defendant is genuinely remorseful for
having committed that offense. And it is in ascertaining what
conduct constitutes evidence of remorse that textual ambiguity
arises. Put differently, the fact that the defendant is seeking an
acceptance-of-responsibility reduction in the sentence he
receives “for his offense” does not eliminate the ambiguity in
how he evinces acceptance.

              2.      Other Tools of Statutory Interpretation

       Nasir instructs that we deploy all tools of statutory
interpretation to determine ambiguity, including purpose,
history, and precedent. 

. In some cases that
may warrant an exhaustive review. See, e.g., Adair, 

. But here, where the text and context of the Guideline
make ambiguity patent, these other tools are of limited utility.

       As for purpose, Mercado asserts only that a singular
reference to “legitimate societal interests” in § 3E1.1(a)’s
background section makes his reading unambiguously correct.
Opening Br. 20. To be sure, encouraging a guilty plea via a

                                8
sentence reduction furthers certain legitimate societal interests,
see, e.g., Minnick v. Mississippi, 

 (1990)
(Scalia, J., dissenting), but so does withholding a reduction for
continued criminal activity, U.S.S.G. § 3E1.1 cmt.
background. In any event, the background section also states
that “a defendant . . . clearly demonstrates acceptance of
responsibility for his offense by taking, in a timely fashion, the
actions listed above (or some equivalent action),” id., and those
actions include the “voluntary termination or withdrawal from
criminal conduct or associations,” id. cmt. n.1(B), and “post-
offense rehabilitative efforts (e.g., counseling or drug
treatment),” id. cmt. n.1(G).

       The Guideline’s history also does little to move the ball.
Mercado accurately recounts its historical progression from
requiring acceptance of responsibility for “the offense of
conviction” in its initial iteration, U.S.S.G. § 3E1.1 (1987),
then for “his criminal conduct” in 1988, see U.S.S.G. § 3E1.1
amd. 46 (Jan. 15, 1988), and finally, in 1992, “for his offense,”
see U.S.S.G. § 3E1.1 amd. 459 (1992). But those amendments
were to the terminology for the offense conduct for which the
defendant was sentenced and required to show remorse; the
phrase “clearly demonstrates” was left unchanged, providing
no additional insight into how the defendant goes about
showing that remorse.

        The 1992 amendment, moreover, revised § 3E1.1(a)’s
Application Note 3 in two ways that suggest the Commission
considered unrelated post-offense conduct to be relevant. For
one, it specified that evidence of acceptance included not only
“admitting the conduct comprising the offense of conviction,”
but also “additional relevant conduct for which he is
accountable under § 1B1.3.” Id. For another, it recognized
that evidence of acceptance could be “outweighed by conduct
of the defendant that is inconsistent with such acceptance of




                                9
responsibility.” Id. Thus, § 3E1.1(a)’s history also supports a
finding of ambiguity. 4

       So does our precedent. Before Nasir, we tackled this
very issue in United States v. Ceccarani, 

 (3d Cir.
1996), and while Ceccarani no longer controls, its underlying
reasoning remains valid. In holding that § 3E1.1(a) did not
“preclude[] consideration of unrelated criminal conduct in the
acceptance of responsibility determination,” we explained that
“the language of § 3E1.1 . . . is very general,” and given that
ambiguity, we relied heavily on the commentary, which
expressly swept in post-plea criminal conduct and did “not
specify that the appropriate considerations include only
conduct related to the charged offense.” Id. at 130.

       That reasoning is consistent with the pre- and post-
Kisor conclusions of every other circuit—with the lone
exception of the Sixth—that “[e]ven unrelated criminal
conduct may make an acceptance of responsibility reduction
inappropriate,” United States v. Cooper, 

(8th Cir. 2021) (alteration in original) (citation omitted), and
that “post-offense conduct may be highly relevant to whether
a defendant sincerely accepted responsibility for his crime,”
United States v. McCarthy, 

, 64 (1st Cir. 2022), with
our sister circuits often expressly noting that “Guideline
§ 3E1.1 does not preclude the sentencing judge . . . from
considering unlawful conduct unrelated to the offense of
conviction,” Cooper, 

 (citation omitted). See
United States v. Strange, 

 (2d Cir. 2023)
(similar); United States v. Hinojosa-Almance, 

 (5th Cir. 2020) (similar); United States v. Tuttle, 

 In United States v. Murillo, we observed that “[o]rdinarily, all
‘relevant conduct’ [as defined in § 1B1.3(a)] should be
considered,” but we depart from that presumption if a
particular Guideline provides an “explicit instruction which
mandates a departure,” such as the use of “offense of
conviction.” 

, 198–199 (3d Cir. 1991). Here, in
contrast, the commentary tells us to consider (1) “any
additional relevant conduct,” and (2) “conduct . . . that is
inconsistent with such acceptance of responsibility.” U.S.S.G.
§ 3E1.1 cmt. n.3 (emphasis added).
                               10
673, 675–77 (8th Cir. 2023) (similar); United States v. Finnesy,

 (10th Cir. 2020) (similar). 5

       In sum, the text of § 3E1.1(a) is ambiguous, and the
purpose, history, and precedent relating to the Guideline only
confirm that ambiguity.

       B.     Reasonableness of the Commentary

       We need not tarry on the question of whether the
Commission’s interpretation in the commentary is
“reasonable,” Nasir, 

, as Mercado does not
dispute it, and with good reason.

        For commentary to be reasonable, it must not
“improperly expand[] the Guideline,” Banks, 55 F.4th at 253,
and must remain within “the outer bounds of permissible
interpretation,” Nasir, 

 (citation omitted). We
explained in Ceccarani why § 3E1.1(a)’s commentary meets
that test: the enumerated factors “bear on an important aspect
of any criminal sentence—the defendant’s genuine feeling of
remorse and his or her rehabilitation efforts,” and “[c]ontinual
criminal activity, even differing in nature from the convicted
offense, is inconsistent with an acceptance of responsibility
and an interest in rehabilitation.” 

. As the
Government aptly puts it, the commentary merely “provides a
non-exhaustive list of factors that may demonstrate whether a
defendant has demonstrated the level of contrition, remorse,
and ownership of action necessary to clearly demonstrate
acceptance of responsibility for his offense.” Answering Br.
21 (emphasis removed). And if we start from the position that
the text puts no bounds on how to clearly demonstrate

5
  See also United States v. O’Neil, 

, 600–01 (1st
Cir.1991); United States v. Chu, 

, 747–48 (2d Cir.
2013); United States v. Watkins, 

 (5th
Cir.1990); United States v. McDonald, 

, 143–44
(7th Cir.1994); United States v. Arellano, 

(8th Cir. 2002); United States v. Mara, 

(9th Cir. 2008); United States v. Prince, 

, 1023–
24 (10th Cir. 2000); United States v. Pace, 

, 343–
44 (11th Cir. 1994); but see United States v. Morrison, 

, 733–35 (6th Cir. 1993).
                              11
responsibility, a non-exhaustive list that narrows that universe
can hardly be said to expand it.

       C.     The Commentary Invokes the Commission’s
              Substantive Expertise

       At Nasir’s final step, we ask whether an otherwise
reasonable interpretation of an ambiguous Guideline is entitled
to “controlling weight.” 

. To make that
assessment, we consider whether the interpretation is the
Commission’s “official position,” 6 “in some way implicates its
substantive expertise,” and “reflect[s] fair and considered
judgment” such that it is not simply a “convenient litigating
position.” 

 (citations omitted).

        Contrary to Mercado’s suggestion, Adair is not
controlling as to the two comments we consider today. In that
case, we considered whether the commentary for § 3E1.1(b)
was entitled to Auer deference. 38 F.4th at 359–60. Section
3E1.1(b) provides for an additional one-point reduction if a
defendant has, among things, “assisted authorities in the
investigation or prosecution of his own misconduct,” but only
“upon motion of the government” requesting a reduction on
that basis. U.S.S.G § 3E1.1(b). Application Note 6 of the
commentary purports to limit the Government’s discretion
under the Guideline, stating that the Government “should not
withhold such a motion based on interests not identified in
§ 3E1.1, such as whether the defendant agrees to waive his or
her right to appeal.” U.S.S.G § 3E1.1 cmt. n.6. In concluding
that Application Note 6 should “not receive controlling
deference,” we reasoned that the Commission’s attempts to
confine the Government’s prosecutorial discretion—based on
its read of the Guideline’s “upon motion of the government”
language—did “not invoke its data-driven expertise on
criminal sentencing,” but rather engaged in a “legal
interpretation” and an “application of the canons of
construction.” Adair, 

. Put differently, we
found that the Commission’s position on whether particular

6
  Mercado does not argue that the commentary is anything
other than the Sentencing Commission’s official position, and
we have seen nothing to indicate that the Commission has
issued any countervailing statements or positions.
                              12
words or phrases in the Guideline limited the Government’s
discretion to withhold a given motion had little connection to
substantive sentencing concerns.

        The same cannot be said here. At bottom, this case
requires us to determine what evidence a district court may
consider in assessing whether a defendant has genuinely
accepted responsibility for his actions. More precisely, the
question is whether a defendant’s subsequent crimes are in
some way connected to and indicative of his lack of remorse
for previous ones. That sort of determination is squarely within
the Sentencing Commission’s “bailiwick.” Nasir, 

. The Commission has significant “data driven” expertise
regarding how successive crimes relate to one another and
routinely releases in-depth reports related to “Recidivism and
Federal Sentencing Policy” and “Criminal History and
Recidivism of Federal Offenders.” See, e.g., Recidivism,
U.S.S.C., available at https://www.ussc.gov/topic/recidivism
(last visited July 24, 2023). It is therefore optimally positioned
to opine on what factors indicate that a defendant has or has
not accepted responsibility for his past criminal activity, and
whether “voluntary termination or withdrawal from criminal
conduct or associations,” U.S.S.G. § 3E1.1 cmt. n.1(B), should
bear on the “legitimate societal interests,” Opening Br. 20,
underlying a § 3E1.1(a) reduction.

       In light of that expertise, the Commission’s
interpretation of the Guideline is entitled to Auer deference,
and we will accord it controlling weight. Nasir, 

. 7




7
 Even if the Commission’s interpretation were not entitled to
controlling weight, however, we would be free to consider its
persuasive force, see Skidmore v. Swift & Co., 

 (1944) (holding that “the rulings, interpretations and
opinions of the Administrator” of the statute in question,
“while not controlling upon the courts by reason of their
authority,” were nonetheless available for guidance to the
extent they had the “power to persuade”), and we would find it
persuasive enough to follow here.
                               13
       D.     The District Court Did Not Commit Clear Error

       Mercado bore the burden of establishing by a
preponderance of the evidence that he was entitled to a
downward adjustment under § 3E1.1(a), United States v.
Boone, 

 (3d Cir. 2002), and the District Court
concluded that he had not carried it. We review that denial for
clear error, affording the District Court “great deference”
because it was “in a unique position to evaluate a defendant’s
acceptance of responsibility.” 

 (citation omitted); United
States v. Richards, 

, 219 n.2 (3d Cir. 2012) (citing
United States v. Booker, 

, 259–60 (2005)
(Stevens, J., Concurring)).

       Under that deferential standard, we cannot say that the
District Court erred in concluding Mercado’s post-plea
conduct did not demonstrate genuine acceptance of
responsibility for his offense. Following his plea, Mercado
repeatedly used cocaine, failed to attend substance abuse
treatment, and failed to submit to random drug testing, all of
which were conditions of his pre-sentencing release. Courts
have routinely upheld the denial of a § 3E1.1(a) adjustment for
similar or less culpable post-plea conduct, see, e.g., McDonald,

; United States v. Olvera, 

 (2d
Cir. 1992); United States v. Lagasse, 

 (1st Cir.
1996), and we will do so for the disturbing pattern of post-plea
misconduct here.

III.   Conclusion

       For the foregoing reasons, we will affirm the judgment
of the District Court.




                              14