United States v. Luis Mercado

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 22-1947

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UNITED STATES OF AMERICA

v.

LUIS D. MERCADO,

Appellant

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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

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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

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OPINION

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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, 17 F.4th 459, 471 (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 18 U.S.C. § 1343. 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

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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 18 U.S.C. § 3231.

We have jurisdiction under 28 U.S.C. § 1291. We review the

District Court’s interpretation of the Sentencing Guidelines de

novo, United States v. Adair, 38 F.4th 341, 347 (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, 751 F.3d 123, 126 (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

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To resolve that question, we apply the three-step

framework set forth in United States v. Nasir, 17 F.4th 459 (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.” Id. at 471 (quoting Kisor v. Wilkie, 139 S. Ct. 2400,

2415 (2019)). If the Guideline itself is unambiguous, our

inquiry is at an end, and we simply disregard the commentary.

Id. 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,” id., 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, 55 F.4th 246, 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, 17 F.4th at 471. 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.” Id. (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, 62

F.4th 114, 120 (3d Cir. 2023) (citation omitted); Adair, 38

F.4th at 348, 350; 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).

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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.

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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. 17 F.4th at 471. In some cases that

may warrant an exhaustive review. See, e.g., Adair, 38 F.4th

at 348. 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

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sentence reduction furthers certain legitimate societal interests,

see, e.g., Minnick v. Mississippi, 498 U.S. 146, 167 (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

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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, 98 F.3d 126 (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, 998 F.3d 806, 811

(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, 32 F.4th 59, 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, 998 F.3d at 811 (citation omitted). See

United States v. Strange, 65 F.4th 86, 92 (2d Cir. 2023)

(similar); United States v. Hinojosa-Almance, 977 F.3d 407,

411 (5th Cir. 2020) (similar); United States v. Tuttle, 63 F.4th

4

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.” 933 F.2d 195, 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,

953 F.3d 675, 702 (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, 17 F.4th at 471, 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, 17 F.4th at 471 (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.” 98 F.3d at 130. 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, 936 F.2d 599, 600–01 (1st

Cir.1991); United States v. Chu, 714 F.3d 742, 747–48 (2d Cir.

2013); United States v. Watkins, 911 F.2d 983, 985 (5th

Cir.1990); United States v. McDonald, 22 F.3d 139, 143–44

(7th Cir.1994); United States v. Arellano, 291 F.3d 1032, 1035

(8th Cir. 2002); United States v. Mara, 523 F.3d 1036, 1038

(9th Cir. 2008); United States v. Prince, 204 F.3d 1021, 1023–

24 (10th Cir. 2000); United States v. Pace, 17 F.3d 341, 343–

44 (11th Cir. 1994); but see United States v. Morrison, 983

F.2d 730, 733–35 (6th Cir. 1993).

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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.” 17 F.4th at 471. 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.” Id. (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, 38 F.4th at 360. 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, 17 F.4th at

471. 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, 17 F.4th at

471. 7

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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., 323 U.S. 134,

140 (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.

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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, 279 F.3d 163, 193 (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.” Id. (citation omitted); United

States v. Richards, 674 F.3d 215, 219 n.2 (3d Cir. 2012) (citing

United States v. Booker, 543 U.S. 220, 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,

22 F.3d at 144; United States v. Olvera, 954 F.2d 788, 793 (2d

Cir. 1992); United States v. Lagasse, 87 F.3d 18, 25 (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.

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