3 P.3d 392 (2000)
197 Ariz. 10
The STATE of Arizona, Appellee,
v.
Steven Alan WYMAN, Jr., Appellant.
Nos. 2 CA-CR 99-0283, 2 CA-CR 99-0284, 2 CA-CR 99-0286.
Court of Appeals of Arizona, Division 2, Department B.
May 31, 2000.
As Corrected June 2, 2000.
*393 *394 Janet Napolitano, Arizona Attorney General By Paul J. McMurdie and Diane M. Acosta, Tucson, for Appellee.
Emily Danies, Tucson, for Appellant.
ESPINOSA, Chief Judge.
¶ 1 A jury found appellant guilty of possession of a firearm by a prohibited possessor, a class four felony. He admitted that he had two prior felony convictions and that he was on probation at the time of the offense. The trial court sentenced appellant to the presumptive term of ten years' imprisonment.[1] He raises two issues on appeal, challenging the court's denial of his motion to suppress physical evidence based on an illegal search and seizure, and complaining that his sentence is excessive. Because we find that a police officer's repeated requests that appellant stop and talk to him, absent any reasonable suspicion of criminal conduct, constituted a violation of appellant's Fourth Amendment rights which led to the evidence on which he was convicted, we reverse his conviction.

Background
¶ 2 In reviewing the denial of a motion to suppress evidence, we view the facts in the light most favorable to upholding the trial court's ruling. State v. Sheko, 146 Ariz. 140, 704 P.2d 270 (App.1985). We review only the evidence presented at the suppression hearing. State v. Blackmore, 186 Ariz. 630, 925 P.2d 1347 (1996).
¶ 3 A Payson police officer was in uniform at a Wal-Mart store when a clerk pointed out two men outside whom she described as "acting nervous" when they had seen the officer's patrol car. The two men walked away from the store, looking over their shoulders at the officer. The officer drove his patrol car to within earshot of the two men, stepped out of the car, and yelled out, "Hey, can I talk to you?" The two men ignored the officer and continued walking. The officer yelled again, asking if he could talk to the men, but they continued to ignore him and kept walking. Undaunted, the officer yelled his request at least one more time. It was only at this point, after the officer "had yelled several times at them," that the men, appellant and Lorenzo Jackson, stopped and walked back to the patrol car. The officer requested identification and asked the pair what they were doing. They told him that "they were doing a little drinking and they were going to go shooting." The officer asked appellant if he had any contraband or weapons. Appellant admitted he had a handgun in his pants pocket. The officer then searched appellant and found a pistol. The gun was the basis for the prohibited possessor charge.
¶ 4 Appellant moved to suppress the gun and all statements he had made, arguing that the officer violated his right to be free from unreasonable searches and seizures guaranteed by the Fourth Amendment to the United States Constitution. The trial court denied the motion to suppress the handgun, finding that the officer's contact with appellant had been neither oppressive nor unreasonable, *395 that the officer had not compelled appellant to do anything until he had said he was carrying a firearm, and that, at that point, the officer had had cause to believe that appellant was committing the crime of carrying a concealed weapon. Thus, the court concluded the officer's search for the weapon was not unreasonable.

Discussion
¶ 5 In reviewing the denial of a motion to suppress evidence based on an alleged Fourth Amendment violation, we defer to the trial court's factual findings, but we review de novo mixed questions of law and fact and the trial court's ultimate legal conclusion. State v. Gonzalez-Gutierrez, 187 Ariz. 116, 927 P.2d 776 (1996); State v. Rogers, 186 Ariz. 508, 924 P.2d 1027 (1996). We agree with the trial court that, once appellant admitted he was carrying a pistol in his pants pocket, the officer had probable cause to believe appellant was committing the crime of carrying a concealed weapon. See A.R.S. § 13-3102. As a result, the officer was entitled to arrest and search appellant. See State v. Randall, 94 Ariz. 417, 385 P.2d 709 (1963). The question remains whether appellant's admission was the fruit of an earlier constitutional violation.
¶ 6 The Fourth Amendment's protection against unreasonable searches and seizures does not restrict police who have reasonable, articulable suspicion that criminal activity is afoot from stopping a suspect for questioning. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Richcreek, 187 Ariz. 501, 930 P.2d 1304 (1997). Here, the officer testified that neither he nor the Wal-Mart clerk had observed appellant or Jackson engage in any possibly criminal activity. Nor does the record suggest the officer had any other information the two had done anything illegal. The mere act of looking at and walking away from a police officer does not give rise to reasonable suspicion to stop and detain a person. See Rogers; see also State v. Stricklin, 191 Ariz. 245, 955 P.2d 1 (App.1996). Thus, the officer did not have a basis for a valid Terry stop. See Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979).
¶ 7 Police may, however, approach and question people without implicating the Fourth Amendment, provided that the interaction is consensual. Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). "[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, [and] asking him if he is willing to answer some questions." Id. at 497, 103 S.Ct. at 1324, 75 L.Ed.2d at 236. The state argues, as the trial court implicitly ruled below, that the encounter in this case was consensual and that, as a result, there was no seizure triggering Fourth Amendment scrutiny. The test is whether, in light of all the circumstances, the police conduct would "have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business." Michigan v. Chesternut, 486 U.S. 567, 569, 108 S.Ct. 1975, 1977, 100 L.Ed.2d 565, 569 (1988). Whether a person has been seized by police is a mixed question of law and fact. In re Maricopa County Juvenile Action No. JT30243, 186 Ariz. 213, 920 P.2d 779 (App. 1996).
¶ 8 The officer's original request to talk to appellant and Jackson was itself well within the bounds of a consensual encounter. The officer did not draw his gun or otherwise physically compel a response. Cf. In re Steven O., 188 Ariz. 28, 932 P.2d 293 (App.1997) (investigatory stop became seizure for Fourth Amendment purposes when suspect attempted to walk away but was physically restrained by officer). The officer did not demand that appellant and Jackson speak with him; instead, he asked, albeit in a loud, forceful manner. See United States v. Sealey, 30 F.3d 7, 8 (1st Cir.1994) (no seizure when undercover officer yelled, "Hey Steven, what's up?" from car). Initially, appellant and Jackson did feel free to ignore the officer and walk away; in fact, this is exactly what they did. However, when the officer incessantly repeated his request after the men refused to respond, he clearly demonstrated that they were not free to ignore him and go about their business.
*396 ¶ 9 We find Maricopa County No. JT30243 instructive. There the police, without articulable suspicion to justify a Terry stop, conducted a "round-up" of a group of young people at a parking lot. One juvenile tried to leave, but the officers called out for her to return, saying they "need[ed] to talk to [her]." 186 Ariz. at 215, 920 P.2d at 781. Subsequent questioning led to the discovery that the juvenile possessed tobacco, an offense for which she was ultimately cited. In affirming the granting of the juvenile's motion to suppress the evidence, Division One of this court noted:
Appellee's response to the officers' arrival was to walk away, which demonstrated to the officers that Appellee wanted to leave. The officers' response to Appellee's expressed intention was to overrule it by calling her back, politely but authoritatively, which demonstrated to the juvenile that the officers did not consent to her departure.
Id. at 217, 920 P.2d at 783. Other jurisdictions have reached the same conclusion on similar facts.
¶ 10 In United States v. Palmer, 603 F.2d 1286 (8th Cir.1979), an officer who lacked articulable suspicion for a Terry stop saw Palmer and a companion walking and called for them to come to his car. Although Palmer complied, his companion did not until the officer repeated himself. The officer then frisked both men, found concealed weapons, and arrested them. The court concluded that, when the officer had "called a second time" to the companion, it "indicate[d] that the pair were not free to continue down the street" and "constituted a sufficient show of authority to restrain appellant's freedom of movement, therefore appellant was seized." Id. at 1289.
¶ 11 In People v. Padgett, 932 P.2d 810 (Colo.1997), two officers observed Padgett and a companion cross a street. When they got out of their vehicle and asked Padgett if they could speak with him, "Padgett continued walking" away from them. Id. at 812. An officer then "called out a second time," and Padgett "reluctantly" walked back to where the officers were, an encounter that led to the discovery of contraband on his person. Id. In upholding the suppression of that contraband, the Colorado Supreme Court relied in part on the officer's second request, finding this encounter to have been an investigative stop unsupported by reasonable suspicion, not a consensual interview. See also In re D.T.B., 726 A.2d 1233, 1234 (D.C.1999) (seizure of juvenile who did not comply with officer's request to "come here" until second request, leading to discovery of contraband, unsupported by reasonable suspicion).
¶ 12 As the foregoing cases demonstrate, a consensual encounter with an uncooperative subject can become a Fourth Amendment seizure when the subject's participation is ultimately gained through more than one request for "voluntary" cooperation. Here, appellant chose to ignore a consensual, Royer-type request and was then subjected to two or more renewed requests before he capitulated to the officer's insistence. Cf. United States v. Wilson, 953 F.2d 116, 123 (4th Cir.1991) ("The officer's prolonged and persistent questioning after the suspect had conveyed an unequivocal unwillingness to engage in further conversation with the officer is the type of conduct that is proscribed by the Fourth Amendment."). This is the rare case in which a person did choose to ignore and walk away from an officer's request for a voluntary interview, perhaps the only course of action under the law remaining to a pedestrian who does not care to talk to the police. Cf. Illinois v. Wardlow, 528 U.S. ___, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (reasonable suspicion for Terry stop arose when subject ran from police). If the Royer paradigm is to have any practical meaning, police must allow a person to go about his or her business when it is clear that the person does not wish to voluntarily cooperate.[2]
¶ 13 At least three times, appellant walked away from the officer. In each instance, the *397 officer's response was to yell at him. A reasonable person in this situation would not have felt free to leave in the face of the officer's repeated summons. Thus, when appellant finally complied with the officer's shouting and went to talk to him at the patrol car, he had been seized for Fourth Amendment purposes. The officer had no reasonable suspicion for an investigatory stop; the seizure was therefore unreasonable. Because the officer obtained appellant's confession and pistol as a direct result of his unreasonable seizure, that evidence should have been suppressed. See Maricopa County No. JT30243.

Disposition
¶ 14 We find the trial court erred in denying appellant's motion to suppress. And, because the weapon seized was the basis of the prohibited possessor charge, we reverse appellant's prohibited possessor conviction in CR 99-020. Accordingly, we need not address his sentencing issue. Furthermore, because the record shows that appellant's probation in CR 98-078 and CR 98-162 was revoked solely on the conviction in CR 99-020, we vacate the revocation orders and appellant's resulting prison sentences in those matters as well.[3] All three cases are remanded for further proceedings consistent with this decision.
CONCURRING: J. WILLIAM BRAMMER, JR., Presiding Judge, and JOSEPH W. HOWARD, Judge.
NOTES
[1]  By virtue of the conviction on the instant weapons charge, appellant's probation was revoked. Sentencing on the two prior convictions underlying his revoked probation, Gila County Nos. CR 98-078 and CR 98-162, was consolidated with sentencing on the weapons conviction, No. CR 99-020. The trial court sentenced appellant to concurrent, mitigated prison terms of nine months and four years for the prior convictions, to be served consecutively to the sentence for the weapons conviction. We have consolidated the appeals in all three cases, but appellant has raised issues pertaining only to the weapons conviction.
[2]  Of course, officers may renew Royer-type requests when a subject does not hear or understand them. Nothing in this record suggests appellant and Jackson did not comprehend the officer's requests; the state agrees they "ignored [the officer's] initial requests to speak to him and continued walking away."
[3]  We note that this decision does not bar the probation department from pursuing independent revocation proceedings based on evidence we have found should have been suppressed in CR 99-020. See State v. Alfaro, 127 Ariz. 578, 623 P.2d 8 (1980) (exclusionary rule does not apply to probation revocation proceedings).


97 F.3d 1464
NOTICE:  Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties.  See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Charles D. KINKADE, Plaintiff,andDavid NELSON, Plaintiff-Appellant,v.Barry SHARER, Sergeant Nobis, Officer Jones, OfficerThompson, Officer Reeves, James L. Welsch, Bill Goodman,officially and individually;  Art Kettell, officially;Officer Turner, Officer Whitaker, Officer Goodwin,officially and individually;  City of Bloomfield, purportedand pretended and is being sued as a person;  BloomfieldMunicipal Court, being sued as a person;  Billy F.Hillgartner, Ervin Chavez, Gordon N. Crane, Sherry L.Galloway, John A. Dean, Jr., Paul Onuska, officially andindividually;  Curtis Gurley, officially and individually,and John Does 1 through 100, Defendants-Appellees.
No. 95-1438.
D.C. No. 95-WY-2135-CB.
United States Court of Appeals, Tenth Circuit.
Sept. 25, 1996.

Before TACHA, BALDOCK, and BRISCOE, Circuit Judges.
ORDER AND JUDGMENT*
BRISCOE, Circuit Judge.

1
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal.  See Fed.  R.App. P. 34(a);  10th Cir.  R. 34.1.9.  Therefore, the case is ordered submitted without oral argument.

2
Plaintiff David Nelson, appearing pro se, appeals the dismissal of a civil action for damages brought by Nelson and Charles Kinkade.  Plaintiffs brought their action pursuant to 42 U.S.C. § 1983, 28 U.S.C. §§ 1331 and 1332, and 28 U.S.C. § 2201.  The numerous claims alleged arise out of a drunk driving arrest of Kinkade and the related arrest of Nelson in San Juan County, New Mexico.  We affirm the district court's dismissal of this action for lack of personal jurisdiction.

3
Defendants moved to dismiss the action for lack of personal jurisdiction and improper venue.  The district court found plaintiffs had failed to allege any facts demonstrating jurisdiction over defendants, all of whom were residents of New Mexico, and that none of the alleged acts took place in Colorado.  The only relationship between any aspect of the case and Colorado was that plaintiffs were Colorado residents at the time the action was filed.

4
When contested, the plaintiff bears the burden of establishing that the court has personal jurisdiction over the defendant.   See Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir.1995).  In the absence of an evidentiary hearing, a plaintiff need make only a prima facie showing of jurisdiction, and the well-pleaded facts of the complaint must be taken as true insofar as defendant's affidavits, if any, do not controvert them.  On appeal, we review the district court's decision de novo and consider only those written submissions before the court when it rendered its decision.   Id. Thus, we must determine whether the written submissions before the district court make a prima facie showing of personal jurisdiction.

5
Nelson asserts no cognizable theory of personal jurisdiction.  He alleges no actions on the part of defendants which involved the state of Colorado, and he alleges no facts under which the Colorado long-arm statute could confer jurisdiction.  See Colo.Rev.Stat. § 13-1-124 (West Supp.1995).  Nelson presents no minimum contacts required by constitutional due process before defendants can be made to answer in a court situated in Colorado.   See International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945);   American Land Program v. Bonaventura Uitgevers Maatschappij, 710 F.2d 1449, 1452 (10th Cir.1983).  Nelson has made no prima facie showing of personal jurisdiction.

6
In light of our determination that Nelson has failed to invoke the jurisdiction of the court, we need not consider the remaining issues raised on appeal.

7
AFFIRMED. The mandate shall issue forthwith.

*
 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.  The court generally disfavors the citation of orders and judgments;  nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir.  R. 36.3


                          Fourth Court of Appeals
                                San Antonio, Texas

                                     JUDGMENT
                                   No. 04-16-00286-CV

                        Margaret Landen SAKS and Philip M. Ross,
                                       Appellants

                                            v.

 Marcus P. ROGERS, A. Chris Heinrichs, J. Barrett Shipp, and Heinrichs & De Gennaro, P.C.,
                                       Appellees

                     From the Probate Court No. 1, Bexar County, Texas
                              Trial Court No. 2011-PC-3466B
                          Honorable Kelly Cross, Judge Presiding

      BEFORE JUSTICE MARTINEZ, JUSTICE ALVAREZ, AND JUSTICE CHAPA

      In accordance with this court’s opinion of this date, the trial court’s judgment is
AFFIRMED. Costs of this appeal are taxed against Appellants Margaret Landen Saks and Philip
M. Ross.

      SIGNED July 26, 2017.

                                             _____________________________
                                             Patricia O. Alvarez, Justice


778 F.2d 96
12 Media L. Rep. 1497
DIRECT MARKETING ASSOCIATION, INC., American NewspaperPublishers Association, Coalition of Non-PostalMedia, and American Postal WorkersUnion, Alliance of NonprofitMailers, Petitioners,v.UNITED STATES POSTAL SERVICE, Respondent,Direct Marketing Association, Inc., Mail Order Associationof America, Parcel Shippers Association, Council of PublicUtility Mailers, McGraw Hill, Inc., Association of AmericanPublishers, Inc., Recording Industry Association of America,Inc., the Reader's Digest Association, Inc., Time Inc.,Newsweek, Inc., Magazine Publishers Association, Third ClassMail Association, American Business Press, Advo-System,Inc., United Parcel Service of America, Inc., AmericanNewspaper Publishers Association, Dow Jones & Co., Allianceof Non- Profit Mailers, Reuben H. Donnelley Corp., Intervenors.
Nos. 1219 to 1223, Dockets 84-4176, 85-4002, 85-4004,85-4006 and 85-4032.
United States Court of Appeals,Second Circuit.
Argued May 21, 1985.Decided Dec. 3, 1985.

Dana T. Ackerly, Washington, D.C.  (James R. Stirn, Covington & Burling, Washington, D.C., Robert L. Sherman, New York City, of counsel) for petitioner and intervenor Direct Marketing Ass'n, Inc.
Toni K. Allen, Washington, D.C.  (Joseph J. Simons, Wald, Harkrader & Ross, Washington, D.C., W. Terry Maguire, Tonda F. Rush, Rene P. Brown, American Newspaper Publishers Ass'n, Washington, D.C., of counsel) for petitioner American Newspaper Publishers Ass'n.
David R. Straus, Washington, D.C.  (Scott H. Hempling, Spiegel & McDiarmid, Washington, D.C., of counsel) for petitioner Coalition of Non-Postal Media.
Susan L. Catler, Washington, D.C.  (Anton G. Hajjar, O'Donnell, Schwartz & Anderson, Washington, D.C., of counsel) for petitioner American Postal Workers Union, AFL-CIO.
David M. Levy, Washington, D.C.  (R. Eden Martin, Sidley & Austin, Washington, D.C., Marc J. Gottridge, Sidley & Austin, New York City, of counsel) for petitioner Alliance of Nonprofit Mailers.
Danial J. Foucheaux, Jr., Washington, D.C.  (Louis A. Cox, Gen. Counsel, Frances G. Beck, Associate Gen. Counsel, Norma J. Brown, Leslie A. Clark, Richard T. Cooper, Eric P. Koetting, Robert C. Lowry, Scott L. Reiter, Michael T. Tidwell, United States Postal Service, Washington, D.C., of counsel) for respondent U.S. Postal Service.
David C. Todd, Patton, Boggs & Blow, Washington, D.C. for intervenor Mail Order Ass'n of America.
Eugene E. Threadgill, Washington, D.C.  (R. Brian Corcoran, Connole and O'Connell, Washington, D.C., of counsel) for intervenor Council of Public Utility Mailers (Ian D. Volner, N. Frank Wiggins, Mark L. Pelesh, Cohn and Marks, Washington, D.C., of counsel) for intervenors Ass'n of American Publishers and Recording Industry Ass'n of America, Inc.
Timothy J. May, Patton, Boggs & Blow, Washington, D.C. for intervenor The Reader's Digest Ass'n, Inc.
John M. Burzio, Hydeman, Mason, Burzio & Lloyd, Washington, D.C., for intervenor Time Inc.
John M. Burzio, Hydeman, Mason, Burzio & Lloyd, Washington, D.C.  (Edward Berlin, Robert S. Taylor, Swidler, Berlin & Strelow, Washington, D.C., of counsel), for intervenor Newsweek, Inc.
John M. Burzio, Hydeman, Mason, Burzio & Lloyd, Washington, D.C.  (David Minton, Washington, D.C., of counsel), for intervenor Magazine Publishers Ass'n.
Keith R. McCrea, Ann J. LaFrance, Squire, Sanders & Dempsey, Washington, D.C., Howard H. Bachrach, Squire, Sanders & Dempsey, New York City, of counsel for intervenor Third Class Mail Ass'n.
Thomas W. McLaughlin, Washington, D.C.  (John M. Burzio, Hydeman, Mason, Burzio & Lloyd, Washington, D.C., of counsel), for intervenor Advo-System, Inc.
Robert L. Kendall, Jr., Philadelphia, Pa. and New York City (John E. McKeever, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., and New York City, of counsel), for intervenor United Parcel Service of America, Inc.
M. Reamy Ancarrow, Washington, D.C., (W. Gilibert Faulk, Jr., Paula A. Jameson, George L. Mahoney, Le Boluf, Lamb, Leiby & Mc Rae, Washington, D.C., of counsel), for intervenor Dow Jones & Co.
Before LUMBARD, VAN GRAAFEILAND and PIERCE, Circuit Judges.
PIERCE, Circuit Judge.

1
Petition to review an order of the Governors of the United States Postal Service (Governors) which ordered new postal rates and fees to take effect on February 17, 1985 pursuant to the Postal Reorganization Act of 1970, 39 U.S.C. Secs. 101 et seq.  (1976) (the Act).  Petitioners and intervenors present numerous challenges to the Governors' decision.  These challenges include whether certain of the rates implemented are supported by substantial record evidence.  The structure of the Postal Service and the procedure by which the Governors approve postal rates have been examined extensively elsewhere, see National Ass'n of Greeting Card Publishers v. United States Postal Service, 462 U.S. 810, 103 S.Ct. 2717, 77 L.Ed.2d 195 (1983);  Time, Inc. v. United States Postal Service, 685 F.2d 760 (2d Cir.1982) [hereinafter cited as Time I ];  Newsweek, Inc. v. United States Postal Service, 663 F.2d 1186 (2d Cir.1981), aff'd, National Ass'n of Greeting Card Publishers, 462 U.S. 810, 103 S.Ct. 2717, 77 L.Ed.2d 195 and we will provide only a brief review.

2
The United States Postal Service was established by the Act as an independent agency under the management of an eleven member Board of Governors (Governors).  The Act also established a five member Postal Rate Commission (PRC) which is independent of the Board.  See 39 U.S.C. Secs. 201, 202, 3601.  When the Board deems it to be in the public interest, it may request the PRC to recommend a new postal rate schedule.  Id. Sec. 3622(a).  Upon receiving such a request, the PRC holds hearings, id. Sec. 3624(a), and formulates a schedule of rates, id. Sec. 3624(d), in accordance with nine factors listed in Sec. 3622(b).  Upon receipt of the PRC's recommended rates, the Governors have several options:  they may approve, allow under protest, reject or modify the rates.  Id. Sec. 3625(a).  Once the Governors order new rates into effect, that decision may be appealed to any Court of Appeals which may affirm the decision or order the entire matter returned for further consideration, but may not modify the decision.  Id. Sec. 3628.

BACKGROUND

3
On November 10, 1983, the Postal Service filed a request for changes in postal rates with the PRC.  The PRC then established Docket No. R84-1, the sixth major postal rate proceeding since the Act was enacted in 1970, and held hearings in which some 71 parties intervened.  The record of these hearings comprises over 35,000 pages and includes the testimony of over one hundred witnesses.  The PRC issued its Opinion and Recommended Decision on September 7, 1984 in accordance with a ten month statutory deadline.  The Governors then approved the recommended rates and fees as "consistent with the policies of the Postal Reorganization Act and supported by adequate record evidence."    Joint Appendix at 2.  The new rates were placed into effect on February 17, 1985.

4
Petitions for review were filed by five parties.  Nine parties intervened in this court in support of the Postal Service's approval of the recommended rates.  We now turn to the arguments presented by petitioners in support of their respective contentions.

DISCUSSION
I. The Governors' Decision

5
The American Newspaper Publishers Association (ANPA) contends that the decision of the Governors cannot be reviewed by this court because the Governors did not make detailed findings and failed to provide a sufficient explanation of the basis for adopting the PRC recommendation.  Furthermore, ANPA claims that the Governors did not expressly adopt the PRC recommendation and in fact expressed reservations about aspects of the PRC's conclusions.

6
The Act divides the responsibility for ratemaking between the Governors and the PRC and specifies the procedures by which the Governors approve postal rates.   Time, Inc. v. United States Postal Service, 710 F.2d 34, 36 (2d Cir.1983) [hereinafter cited as Time II ];  see 39 U.S.C. Secs. 201-02, 3601.  "While the [Governors are] is entrusted with the power 'to establish ... reasonable and equitable rates of postage and fees for postal services,' see 39 U.S.C. Sec. 3621, its actual rate-making authority, with a few exceptions, is limited to approving, rejecting, modifying, or allowing under protest recommendations of the PRC, see 39 U.S.C. Sec. 3625(a)."   Newsweek, 663 F.2d at 1190.  The Governors decision must include an estimate of anticipated revenue and a statement of explanation and justification, 39 U.S.C. Sec. 3625(e).  In addition, postal rates must provide sufficient revenue so that total revenues equal as nearly as practicable total costs of the Postal Service.  Id. Sec. 3621;  see Time II, 710 F.2d at 36-37.  The Governors decision may be set aside only if it is found by a reviewing court to be arbitrary and capricious, an abuse of discretion, not in accordance with law, or unsupported by substantial evidence.  39 U.S.C. Sec. 3628;  5 U.S.C. Sec. 706.

7
We hold that the Governors decision meets the statutory criteria for approval of the PRC's recommendations.  We note that the scope of our review has been limited to determining whether a " 'reasonable mind' [would] find the evidence on which the agency relied to be 'adequate' to support its conclusion."   Newsweek, 663 F.2d at 1210.  As long as the path by which the agency reached its decision is discernible, see Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974), its decision should be upheld.

8
In their decision, the Governors stated that:

9
Pursuant to our authority under 39 U.S.C. Sec. 3625 and recognizing the Commission's expertise and statutory responsibility, we approve the recommended rates and fees because we believe that they are consistent with the policies of the Postal Reorganization Act and supported by adequate record evidence.  We believe that they will enable the Postal Service to break even during the test year, in accordance with the mandate of the Act.

10
Governors' Decision at 2.  The Governors' decision also estimated anticipated revenues and discussed the rates for each of the classes of mail pursuant to Sec. 3625(e).  Id. at 2-15.  The PRC evidentiary record on which the Governors relied was voluminous;  the PRC opinion itself was 609 pages and was supplemented by lengthy appendices.  Our decisions in Time I and Time II are inapposite to the issues raised before us.  In those decisions, the Governors sought to modify the PRC recommendation.  We held that the Governors must provide this court with a justification of the modifications for each class of mail so that we could determine whether the Governors' modifications were supported by substantial evidence.   See Time I, 685 F.2d at 772.  Here, the Governors are not modifying the PRC's recommendation.

11
There is no merit to the contention that the September 7, 1984 PRC decision was not adopted because the Governors expressed reservations about some aspects of that decision.  In National Ass'n of Greeting Card Publishers v. United States Postal Service, 607 F.2d 392 (D.C.Cir.1979), cert. denied, 444 U.S. 1025, 100 S.Ct. 688, 62 L.Ed.2d 659 (1980), the court held that "[t]he mere fact that the [Governors] found the PRC decision to be not 'totally acceptable' or 'less than wholly persuasive' does not vitiate the [Governors'] approval....  We decline to add the judicial veneer of a non-statutory requirement that the [Governors] find a PRC decision 'wholly acceptable' in order to approve it."    Id. at 420-21.  In our view, the Governors' approval and adoption of the PRC decision meet the statutory requirements of the Act.

II. Third Class Bulk Rate Regular

12
We begin our analysis of the PRC's recommended rates with a discussion of the rates implemented for third-class bulk rate regular mail (hereinafter BRR).  We emphasize that in tracing the path followed by the PRC in recommending, and the Governors in adopting, the rates in question, we may not substitute our judgment for that of the agencies designated by law to carry out the ratemaking function.  We reaffirm that "the rate-setting power is committed to agency discretion, subject to broad guidelines rather than specific, rigid formulae."   Newsweek, 663 F.2d at 1198 (emphasis in original).

13
Before beginning our detailed analysis, it is necessary to provide an explanation of some of the terms and concepts used by the PRC in this ratemaking docket.  The final BRR rates, as with the other rates set in this docket, were determined primarily upon the basis of "cost coverage."    That is, in compliance with the statutory requirement embodied in 39 U.S.C. Sec. 3622(b)(3), each class or type of mail must "bear the direct and indirect postal costs attributable to that class or type plus that portion of all other costs of the Postal Service reasonably assignable to such class or type."    This means "[f]irst, [that] all costs that in the judgment of the Rate Commission are the consequence of providing a particular class of service must be borne by that class."   National Ass'n of Greeting Card Publishers, 462 U.S. at 833, 103 S.Ct. at 2732.  These costs are hereinafter termed "attributable costs."    Next, "[t]he Rate Commission is to assign remaining costs reasonably on the basis of the other eight factors set forth by Sec. 3622(b)."   Id. at 834.  These costs are termed "institutional costs," since they are not the direct consequence of providing any one type of mail service.  Cost coverage, then "reflects the contribution to institutional costs provided by a class as a percentage [of] the amount of attributable costs incurred by that class.  Thus a class with [attributable] costs of 10, which pays rates designed to cover [attributable] costs and provide a contribution [to institutional costs] of 5, is said to have a cost coverage of 150 per cent."    PRC Opinion at 261.  Postal rates reflect both attributable costs and the contribution to institutional costs.

14
Three parties join in the attack on the BRR rates set by the PRC.  Petitioner Direct Marketing Association (DMA) is an organization of mailers and takes the position that the cost coverage assigned to BRR mail is too high and that therefore the BRR rates are too high.  Petitioner ANPA is an association representing more than 90 percent of the daily newspapers published throughout the United States.  They are heavy users of the Postal Service, but also compete with the Postal Service for the business of advertisers who may utilize either newspapers or BRR mail for the saturation distribution of advertising circulars.  The thrust of ANPA's arguments regarding BRR is that the BRR rates are too low;  higher rates would discourage advertisers from using the mail and, presumably, would encourage them to use the distribution services of ANPA's members instead.  Finally, the Coalition of Non-Postal Media (CNPM) is an association of private delivery companies and weekly newspapers that compete with the Postal Service and with ANPA's members for the carriage of hard-copy advertising and which, like ANPA's members, believe themselves competitively disadvantaged by BRR rates that are too low.  In sum, DMA seeks to lower the BRR rates, while ANPA and CNPM, being competitors of the Postal Service (as well as of each other), seek to raise postal rates in an effort to gain some of the Postal Service's business.

A. The Common Attack on BRR Rates

15
All three parties described above attack the BRR rates on the ground that the PRC's determination of the appropriate cost coverage for BRR mail was inappropriate.  Each of them argues that the PRC's sole explanation for the BRR cost coverage was contained in the following paragraph:

16
As to cost coverage, we recommend 146 percent, which is lower than our recommended First-Class cost coverage of 159 percent.  We thus return to the relative relationship that existed between First- and Third-Class before Docket No. R80-1, when our use of the Service-Related Costs concept (SRC) was an acknowledged influence on our departure from the traditional relationship.

17
PRC Opinion at 464 (quoted in DMA Brief at 29;  ANPA Brief at 26;  CNPM Brief at 47).  ANPA and CNPM also claim that even if such a one-paragraph explanation could be sufficient, this one was not, because there exist no means by which the "traditional relationship" adverted to can be ascertained.

18
Regarding the "traditional relationship" referred to by the PRC, we consider it clear that what was meant was a cost coverage for BRR that was lower than that for First-Class and the systemwide average;  the PRC had, as it noted, departed from this "traditional" relationship in Docket No. R80-1, when it de-emphasized cost coverage as a means of setting appropriate rates in favor of "service-related costs."    See PRC Opinion in Docket No. R80-1 at 223, 226-27, 449.  After the decision of the Supreme Court in National Ass'n of Greeting Card Publishers, 462 U.S. 810, 103 S.Ct. 2717, 77 L.Ed.2d 195, affirming this Court's decision in Newsweek, 663 F.2d 1186, it is clear that the PRC is not bound to apply "service-related costs" principles and was accordingly free to return to the "traditional" relationship between cost coverage for BRR and the systemwide average cost coverage.

19
In our view, the PRC offered an adequate explanation for the BRR cost coverage, and hence for the resulting rates, that adequately addressed each of the necessary statutory factors.  Although the PRC explanation is at times less than a model of clarity, we emphasize that all we "may properly do is to consider whether the [PRC] did take into account all the relevant factors and no others."   Association of Am. Publishers, Inc. v. Governors of the United States Postal Service, 485 F.2d 768, 774-75 (D.C.Cir.1973) (quoted in Newsweek, 663 F.2d at 1200).  We reiterate that courts should "uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned."   Bowman, 419 U.S. at 286, 95 S.Ct. at 442.  We believe the PRC's path to be reasonably discernible and therefore within the ambit of Bowman.    Accordingly, we turn to a discussion of the relevant factors which the PRC was bound to consider, and describe the path taken by the agency in applying them.

B. The Statutory Factors

20
Title 39, U.S.Code, section 3622(b), sets out nine factors, in addition to "the policies of this title," that must be considered in setting postal rates.  In this docket, the procedure followed by the PRC was to assign BRR a cost coverage of 146 percent, and then to examine the testimony and evidence presented, to determine whether any change in the assigned cost coverage was warranted.  DMA criticizes this procedure as pulling a cost coverage figure "out of thin air";  we do not, however, perceive any statutory ban on using a judgmental approach to assigning institutional costs.  Indeed, as the Postal Service points out, ratemaking is an iterative process.  When appropriate relative rate levels have been established, rates must be designed, and their revenue and cost implications must be considered.  Because the rates affect mail volume, and total revenue must equal total cost, each change in proposed rates requires a recalculation of volume, revenue and cost.  Whether this approach be judgmental, or DMA's econometric concept, the dynamic nature of the ratemaking process would make it difficult, at the very least, to explain why a given cost coverage is 146 percent and not, for example, 148 percent.

21
In any event, the PRC's task in assigning institutional costs is to assign them "reasonably on the basis of the ... eight factors [in addition to subsection (b)(3) ] set forth by Sec. 3622(b)."   National Ass'n of Greeting Card Publishers, 462 U.S. at 834, 103 S.Ct. at 2732.  Our task is only to ascertain that all of these factors were taken into account.  Thus, if the PRC justified its cost coverage on the record, with reference to the factors contained in Sec. 3622, this court may not disturb the rates adopted by the agency.  It is our view that the PRC did so, and we turn now to an examination of the means by which it did.

1. Sec. 3622(b)(1)

22
The first consideration embodied in the statute is that the rates must be "fair and equitable."    As noted, the PRC first assigned BRR a cost coverage of 146 percent, which fell between the cost coverage assigned to First-Class mail, 159 percent, and that assigned to parcel post, 116 percent.  Then, in order to determine whether this cost coverage and the rates that would result from it were "fair and equitable" so as to comply with subsection (b)(1), the PRC applied the remaining factors of the Act, and also considered the testimony of the witnesses.  Some of the factors that the Act requires the PRC to consider in setting recommended rates--such as this one--are not susceptible of exact quantification.  Still, postal ratemaking is a function delegated to the expertise of the PRC, and we will not find an approach by it in performing its function to be unacceptable, as long as the PRC adequately justifies its decision on the basis of the Act's requirements.

2. Sec. 3622(b)(2)

23
This element of the Act requires the PRC to consider, in assigning institutional costs, "the value of the mail service actually provided ... to both the sender and the recipient, including but not limited to the collection, mode of transportation, and priority of delivery."    The participants before the PRC focused on the quality of the service provided;  thus, for example, ANPA's witness Chown emphasized improvements in the quality of delivery that had allegedly taken place since the last rate case in 1980, while the testimony of witnesses sponsored by the mailers, e.g. DMA, emphasized lengthy delivery periods, inconsistent delivery, nondelivery, and general failure of the Postal Service to meet published delivery standards.  See PRC Opinion at 516.  The PRC concluded that the arguments of ANPA witness Chown did not warrant an increased cost coverage for BRR, in light of the countervailing testimony of the mailers.  Id.

24
The PRC also examined whether a lower cost coverage for BRR was warranted.  It concluded that a decreased cost coverage was not warranted on the present record, adopting Postal Service witness Allen's view that the value of service for the BRR subclass was "somewhat mixed," Joint Appendix at 270-71.  This view is based upon the observation that despite the seemingly low quality of service in BRR mail, and the resulting high price elasticity of demand, BRR remains attractive to mailers, as evidenced by the rapid increase in volume of BRR mail.  Id.  That the PRC shared this view is evidenced by its statement that "[w]itness Allen correctly pointed out that [BRR] has features which make it attractive to mailers, despite the low value associated with its speed of delivery."    PRC Opinion at 297-98.  Accordingly, the PRC did not deviate from its recommended cost coverage of 146 percent on the basis of value of service considerations.

25
DMA devotes much of its argument to an attack on the PRC's assessment of subsection (b)(2).  The thrust of its argument is that the PRC is required by the Act to use "value-of-service pricing," one variant of which is known as the "inverse elasticity rule," in assigning institutional costs.  The argument is based on the Report of the President's Commission on Postal Organization (Kappel Commission Report), the relevant portions of which relied heavily upon a report prepared by Foster Associates (Foster Associates Study).  The Foster Associates Study, according to DMA, recommended that value of service pricing play a central role in postal ratemaking, and, again according to DMA, Congress adopted this approach in the Act.  Value of service pricing involves assigning institutional costs "to the classes [of mail] in accordance with mark-ups inversely proportional to their elasticities of demand."    DMA Brief at 19.  This, it is asserted, will promote economic efficiency.

26
We disagree with the argument that Congress intended relative demand to be the benchmark for the assignment of institutional costs.  Rather, it is clear that no single factor was intended by Congress to be the "primary" factor in making the assignments.   Newsweek, 663 F.2d at 1200.  All of the factors must be considered, id., and as we shall show, they were.  Indeed, "that the Senate Report refers to all of the specific factors of section 3622(b) as 'requirements' is a strong indication that no one factor was intended to carry more weight than any other."   Id. at 1199.  Even within subsection (b)(2), we cannot agree that Congress intended value of service pricing, as defined by DMA, to be the paramount consideration.  Rather, value of service as embraced by subsection (b)(2) "embodies two concepts:  what the customer gets and what he will pay."    Kappel Commission Report at 132, reprinted in DMA Brief app. A at 12a.  DMA's approach focuses on what the customer will pay, and largely ignores what the customer gets.  The latter consideration, referred to by the Postal Service as "intrinsic value," involves the criteria actually set forth in subsection (b)(2):  collection, mode of transportation, and priority of delivery.  These, as discussed above, the PRC did consider.  Moreover, the PRC did apply quantitative factors, although not in the manner DMA wished it to:  as the PRC noted, the service-related cost (SRC) method

27
led us to believe that many quality factors had been attributed or assigned to the classes and subclasses because of their cost effects and consequently, that value of service should receive less emphasis.  Since we are not using SRC in this case, the same reasoning does not apply....  [T]he Commission's current method for applying all factors judgmentally, reaches the result [that the value-of-service advocates] acknowledg[e] is both predictable and permissible;  that is, prices that are not strictly in accord with Ramsey principles.

28
PRC Opinion at 292-93, 313.

29
Moreover, we agree with the Postal Service that DMA's approach places unwarranted emphasis on relative demand for postal services.  While there may be merit to the use of a relatively more quantitative approach to the assignment of institutional costs than was applied by the PRC in this docket, this judgment is committed to the discretion of the PRC.  As the PRC noted, "[w]hile the Commission may be free to use quantitative methods, it is not required to do so."    Id. at 297.  The judgment as to what combination of methods to use, and the weight to be accorded each, is a function of agency discretion that we are not inclined to disturb herein.

3. Sec. 3622(b)(3)

30
Subsection (b)(3) requires "that each class of mail or type of mail bear the direct and indirect postal costs attributable to that class or type."    The PRC concluded with respect to this requirement that the 146 percent cost coverage would enable BRR mail to recover all its attributable costs.  PRC Opinion at 524.  We see no reason to disturb the PRC's conclusion.

4. Sec. 3622(b)(4) and (b)(5)

31
The PRC considered these two statutory factors together, an approach that makes sense because subsection (b)(4) requires the PRC to consider the effect of rate increases upon the public, business mailers, and competitors of the Postal Service, while subsection (b)(5) requires consideration of available alternatives to the Postal Service for sending non-letter mail.

32
Without specifically mentioning impact on mailers, the PRC determined that the 146 percent cost coverage was appropriate, because although the 146 percent figure represents a lower than average cost coverage (the systemwide average is 152 percent), the rate increase for BRR, 13 percent, was higher than the average (the average rate increase was 9 percent).  See PRC Opinion at 1, 4, 315.  Although impact on mailers was not specifically mentioned, it seems clear to us that this is what the PRC had in mind.  It is mailers, including the general public and businesses, who directly benefit from a mitigation of rate increases;  the PRC's statement that cost coverage would not be raised further because the rate increase was already higher than the average clearly was made in view of the impact of an even higher rate increase upon mailers.

33
ANPA, a competitor, assails the PRC's recommended rate on the additional ground that the PRC inadequately considered unit contribution as a measure of a reasonable rate.  The PRC, however, made it clear in its Opinion that it would primarily rely upon cost coverage as the measure of appropriate rates, using unit contribution only as an adjunct to review cost coverage relationships.  Id. at 261.  The unit contribution for BRR mail was calculated, see id.    Appendix G, Schedule 1, at 1;  thus it seems clear that the PRC was aware of the unit contribution for BRR mail, although unit contribution was not expressly mentioned elsewhere.  That it did not expressly advert to unit contribution is understandable, given its limited role as a measure of an appropriate postal rate;  moreover, given the wide range of unit contributions between different classes of mail, ranging from 2.9cents for Second-Class regular rate to almost $8.00 for Express Mail, id., the supplementary role of unit contribution does not seem unreasonable.  ANPA's proposal to the PRC, that the BRR contribution equal 60 percent of that for First-Class mail, which was the relationship that obtained in Docket No. R80-1, would have resulted in a rate increase of 48.7 percent for BRR.  Joint Appendix at 606.  The PRC declined to adopt this proposal, and in doing so, we conclude that the PRC properly exercised its discretion in evaluating unit contribution and ANPA's proposal.

34
CNPM devotes most of its argument to an attack on the PRC's consideration of issues relating to competition.  Its position is that the PRC set BRR cost coverage too low, because it inadequately addressed the impact of BRR rates upon private-sector competitors of the Postal Service.

35
At the hearings before the PRC, CNPM's witnesses and discovery responses solicited from its members tended to show that they had suffered financial harm because of low BRR rates that were put into effect in 1981.  CNPM sought relief from what it termed "anticompetitive postal rates."    PRC Opinion at 519.

36
In the present appeal, CNPM claims that the PRC failed "to give meaningful consideration to the effect of the approved BRR rates upon competitors engaged in the private, non-postal delivery of advertising material."    CNPM Brief at 11.  This alleged failure is asserted to violate subsection (b)(4).  We do not agree.

37
First, it is clear that the PRC considered CNPM's evidence, but rejected CNPM's conclusions.  See PRC Opinion at 519.  In addressing the effect of rates upon competitors, the PRC engaged in a three-phase analysis.  First, the PRC examined the question whether the BRR rates were, of themselves, anticompetitatively low.  Id. at 521-22.  In making this determination, the PRC examined the relationship of price to attributable costs, a variation of the Areeda-Turner predatory pricing test.  Id.  Because the BRR rates would recover attributable costs, pursuant to subsection (b)(3), the PRC concluded that no presumption of predatory pricing applied to the BRR rates.  CNPM asserts that the PRC erred in considering the Areeda-Turner test, since this case is not an antitrust matter.  It is, however, clear that ratemaking agencies may consider antitrust principles in assessing impact upon competition.   See Northern Natural Gas Co. v. FPC, 399 F.2d 953, 959 (D.C.Cir.1968).  Even if, as CNPM asserts, the test was not applied with the greatest possible degree of precision, we note that there is no requirement that the test be applied at all.  We conclude that the PRC did not err by examining whether the BRR rates were, on their face, anticompetitive.

38
Next, the PRC examined the evidence proffered by CNPM of harm to its members.  It concluded that while some firms were apparently able to compete, others were not.  PRC Opinion at 522.  Some firms were able to compete on a piece-by-piece basis, but not with so-called "shared mail," a product marketed by entities which utilize BRR mail to send assembled sets of advertising pieces to customers.  Thus, those members were successful in competing in terms of prices, but unsuccessful in competing with a shared mail product.  These members, however, clearly have the ability to assemble advertising sets, and as CNPM itself noted, to do so would seem to be a practical necessity.  These firms, then, are at least theoretically able to compete in this new product submarket, because the ability to create the new product is independent of postal rates.  Id.  The PRC thus concluded that the BRR cost coverage need not be adjusted upward to account for the impact on private delivery companies.  Id.

39
The PRC went on, however, to consider whether any weight increments within the BRR subclass presented a particular competition problem, because CNPM had indicated a particular interest in pricing at the three to four ounce level and above.  The PRC found no basis in the record to conclude that the BRR rates were improperly skewed with respect to those weight levels.  Id. at 523.

40
In addition to examining CNPM's arguments, as outlined above, the PRC also examined the impact upon other competitors.  For example, ANPA's members, while also claiming that BRR rates were too low, emphasized competitive issues far less than CNPM.  ANPA's members in fact are the strongest competitors of the Postal Service.  See Joint Appendix at 937.  Apparently, "preprint volume in U.S. daily newspapers overall continues to grow."    Id. at 935.  Consequently, the PRC concluded that ANPA's competition-related arguments, like CNPM's, did not warrant raising the BRR rates.  PRC Opinion at 523.

41
In short, the PRC adequately considered the arguments of Postal Service competitors, and addressed subsections (b)(4) and (b)(5).  In evaluating competition-related arguments under subsection (b)(4), it must be remembered that the PRC's task is to protect competition, not particular competitors.   Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488, 97 S.Ct. 690, 697, 50 L.Ed.2d 701 (1977).  The PRC adequately did so.  See also PRC Opinion at 295-96.

5. Sec. 3622(b)(6), (b)(7) and (b)(8)

42
These subsections may be dealt with briefly;  no challenges to the PRC's handling of them with respect to BRR mail are mounted in this appeal.  Subsection (b)(6) requires the PRC to consider the degree of mailer preparation of the material;  this it did by passing through some 80 percent of the costs avoided by handling presorted mail as compared with mail requiring sorting by the Postal Service.  PRC Opinion at 524.  Subsection (b)(7) concerns simplicity of rate structure;  the PRC concluded that the BRR rate structure was sufficiently clear that the relatively more sophisticated BRR mailers could understand and use it.  Id.  Finally, it is generally agreed, and not in dispute on this appeal, that subsection (b)(8), concerning the educational, cultural, scientific and informational value of the mailed matter, is not implicated in ratemaking for BRR mail.

C. Miscellaneous Challenges

43
Finally, we address two challenges by ANPA to the BRR cost coverage and resulting rates.  The first involves a possible error in the computer program used by the PRC to calculate BRR mail volume, which may have resulted in an overestimation of volume during the test year of some 5 percent.  If such an error in fact occurred, revenue estimates for the test year would have been overstated by some $68 million.  See Governors Decision at 4 n. 2.

44
] In the first place, it is by no means clear that there was any error.  Assuming, however, that there was an error in computation, we hold that the Governors properly exercised their discretion in dealing with the error.  As the Postal Service points out, such an error would mean that there were fewer pieces of mail over which to spread the institutional cost burden.  Had the Governors determined that the resulting revenue deficiency would be too large for the Postal Service to absorb, it is likely that the entire case would have been remanded for a redetermination of the assignment of institutional costs, which might or might not have resulted in higher BRR rates.  Instead, the Board determined that a revenue deficiency of $68 million was absorbable by the Postal Service.  Even if all of the revenue shortfall were recouped from BRR, the Postal Service's analysis shows that the impact upon BRR rates would be de minimis.  That is, if one divides the $68 million shortfall by the number of pieces of BRR mail that would result in the absence of the alleged error, namely 41.026104 billion pieces, see ANPA Brief at Exhibit 1, this would result in a required per-piece adjustment of 0.166 cents.  The average revenue per piece for BRR is 10.583 cents.  PRC Opinion app. G.  Thus, the potential adjustment to reflect the error would amount to only 1.57 percent of the average revenue per piece.  In view of the numerous uncertainties in the ratemaking process, it was not an abuse of discretion for the Governors to rule that a potential adjustment of less than 2 percent in the BRR rates did not warrant a remand and recalculation of BRR rates.

45
Finally, ANPA argues that the PRC abused its discretion by striking the proposal of ANPA witness Chown regarding separate rates for detached labels and their impact in general upon existing BRR rates.  We reject this view.  The PRC declined to consider the ANPA proposal, and the related Advo-Systems counter-proposal, chiefly because of concern over the delay that might result from the consideration of a proposal for a separate rate in this omnibus rate proceeding, which had to be completed within ten months.  ANPA in its reply brief attempts to convince us that no significant additional time would have been consumed by consideration of its proposal;  nevertheless, it seems to us that the PRC properly exercised its discretion when it ruled that it lacked the time to do so.  "No principle of administrative law is more firmly established than that of agency control of its own calendar."   City of San Antonio v. Civil Aeronautics Board, 374 F.2d 326, 329 (D.C.Cir.1967).  ANPA's argument that the PRC failed to comply with subsection (b)(3), because its costing systems failed to attribute the costs incurred by detached labels to BRR mail, is flatly contradicted by the testimony of ANPA's own witness Chown, who stated that "[t]he USPS costing systems 'pick up' the costs of the label and assign these costs to third-class bulk mail."    Joint Appendix at 616.  To the extent that ANPA's arguments were directed at treatment of detached labels as separate pieces of mail, they were excluded from the omnibus rate case, as noted above, and to the extent that they were directed at consideration of the impact of detached labels upon BRR rates in general, they were without merit, as indicated by the testimony of ANPA's own witness Chown.  We are not persuaded that Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983), and National Ass'n of Regulatory Util. Comm'rs v. FCC, 737 F.2d 1095 (D.C.Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 1225, 84 L.Ed.2d 364 (1985), are to the contrary.  ANPA's arguments were made for the first time in a brief to the PRC, and were not based upon record evidence.  ANPA's claim that there was no other way for it to proceed is without merit;  the PRC Chairman ruled early in the proceedings that the portions of Chown's testimony pertaining to the consideration of detached labels and their impact on BRR rates in general would remain in the record, while the portions relating to a separate mail class were stricken.  See Joint Appendix at 652-53.  Moreover, the Chairman noted that "[i]f you have any difficulty with that, ... a motion for relief is always accepted by [this] bench."    Id.  In our view, ANPA's arguments relating to detached labels are without merit.

46
In sum, we conclude that the PRC adequately considered the record evidence and the statutory factors with respect to BRR mail, and did not abuse its discretion in determining the appropriate cost coverages or rates for that class.

III. Third Class Non-profit Presort Discount

47
The Alliance of Nonprofit Mailers (ANM) challenges the discount set for presorted third class nonprofit mail.  Nonprofit organizations rely on third class nonprofit mail as the most economical way to mail brochures and circulars as well as to solicit funds.  All third class mail receives some presorting, however, nonprofit mailers can presort beyond this basic level and receive a third class nonprofit discount.

48
The PRC set the discount for third class nonprofit mail at 80 percent of the cost savings attributable to nonprofit mailer's presorting;  ANM contends that this pass through rate is arbitrary and capricious because it should be equal to 100 percent of the Postal Service's savings from handling this presorted mail.  To support this contention, ANM introduced the testimony of witness Haldi, an economist, who testified at the PRC hearings that a discount of less than 100 percent violated fundamental economic principles, and, by setting the discount at less than 100 percent of attributable costs, the Postal Service in effect would be providing a subsidy to those who do not presort their mail.  According to Dr. Haldi:

49
Third class nonprofit rates must, on average, equal attributable costs.  If some nonprofit rates are set above attributable cost, other nonprofit rates must be set below attributable cost.  This is precisely what happens when presort discounts are set below 100 percent of cost savings:  less presorted mail pays rates below attributable costs and more heavily presorted mail pays rates above attributable costs.  As a result, third class mailers are encouraged to demand too much "less presorted" mail service and too little "more presorted" mail service.

50
PRC Opinion at 528-29.  ANM contends that the Postal Service's explanation of the discount rate represents post hoc rationalization because the reasons for the PRC decision are not stated in the PRC Opinion recommending the discount.

51
The Postal Service responds to ANM's challenge by pointing out that, while the PRC opinion considered ANM's position, it found that the Postal Service recommendation of an 80 percent discount rate was more appropriate than a 100  percent rate.  The argument in favor of the 80 percent as opposed to a 100 percent rate was examined in the PRC's discussion of third class bulk regular rates as well as second class mail and this discussion need not be summarized again when applied to third class nonprofit discount rates.  Furthermore, the Postal Service argues, the PRC must consider more than just economic factors when setting rates.  We agree with the Postal Service that the discount rate for third class nonprofit presorted mail is supported by substantial evidence and we affirm the Postal Service order with respect to this discount rate.

52
In examining the nonprofit presort discount, "[a] reviewing court may not overturn an agency finding simply because evidence existed supporting an alternative finding.  Rather, in applying the substantial evidence standard set forth in 5 U.S.C. Sec. 706(2)(E) we must first determine that a 'reasonable mind' could not find the evidence on which the agency relied to be 'adequate' to support its conclusion."   Newsweek, 663 F.2d at 1210.  We find that the PRC's reason in maintaining a conservative 80 percent passthrough rate is a reasonable one which can be "clearly discerned," from the record hearings, see Bowman, 419 U.S. at 286, 95 S.Ct. at 442.

53
The PRC considered the issue of setting presort discount levels at 100 percent of avoided costs in its opinion.  When discussing the presort discount for second class mail the PRC concluded that:

54
We will continue to follow our conservative approach, with which the Governors agree, to set presort discounts at a level lower than the cost differentials found in Postal Service special studies.  In taking this conservative approach, we do not reject the testimonies of witnesses Dalton and Baumol concerning economic inefficiency. In a perfect world where the Commission was certain that the cost differentials derived from special Postal Service studies were completely accurate, a 100 percent reflection of those differentials in proposed discounts would be acceptable.  We do not live in a perfect world, and the Commission's conservative approach by not applying a 100 percent passthrough is justified on this record.

55
PRC Opinion at 432.  Similarly, the presort differentials for third class mail were set at 80 percent of avoided costs, to " 'continue the conservative relationship between presort cost saving and presort rate discounts that prevailed in the past.' "    Id. at 511 (quoting Postal Service witness Allen).  The purpose of maintaining this conservative relationship is spelled out by the PRC Opinion:

56
[I]f the cost differential is overstated and a discount is equal to 100 percent of the differential, economic inefficiency would occur.  Moreover, in that case the Postal Service as a whole would receive too little revenue.  Therefore, all mail users would be harmed by those overstated rate discounts.  On the other hand, with a conservative approach postal revenues are protected, and all mailers are not harmed by the presort discount.

57
Id. at 432.

58
We agree with the Postal Service that each portion of the PRC opinion should not be considered in isolation.  An argument clearly applicable to several issues need not be repeated each time it applies.  Were repetition required, the PRC's task of completing its complex ratemaking process within ten months, see 39 U.S.C. Sec. 3624(c), may well be insurmountable.  Here, the presort discount level was discussed twice;  extensive testimony was taken on the issue, and the PRC Opinion reiterated the argument in favor of a 100 percent rate in its discussion of the third class nonprofit presort discount, see PRC Opinion at 527-29.  Furthermore, ANM's witness sought to refute the approach of Postal Service witness Allen when advocating a 100 percent passthrough rate.  In adopting witness Allen's approach for an 80 percent passthrough rate for third class bulk regular rates, the PRC Opinion quoted from witness Allen's testimony.  Clearly, the PRC should not have had to repeat its analysis of the issue in the context of nonprofit presort discount rates.

IV. First Class Presort Discount

59
The American Postal Workers Union, AFL-CIO (APWU) challenges the PRC's recommendation of a four cent discount for five-digit presort first class mail.  APWU contends that the amount of the discount is not supported by substantial record evidence and that the explanation of this discount cannot be accepted by this court because the Postal Service is engaging in post hoc rationalization.

60
APWU asserts that the PRC employed a new cost avoidance method in determining the presort rate.  It contends that this method was not revealed until the PRC's decision was released thereby violating 39 U.S.C. Sec. 3624(a), which requires that the PRC recommend a rate decision based on record evidence.   See Newsweek, 663 F.2d at 1205.

61
The Postal Service, however, contends that Sec. 3624(a) was not violated because the discount was not based on a new methodology, but rather was distilled from several methods presented by witnesses during the PRC's hearings.  We agree with the Postal Service that the discount for first class presorted mail is not arbitrary and capricious and is based on substantial record evidence.

62
Pursuant to 39 U.S.C. Sec. 3624(a) of the Postal Reorganization Act, the PRC must "base its decisions upon materials presented at record hearings."   Newsweek, 663 F.2d at 1205.  Post hoc rationalizations of agency decisions are not acceptable, Motor Vehicle, 463 U.S. at 50, 103 S.Ct. at 2870, however, we repeat that "we will uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned."   Bowman, 419 U.S. at 286, 95 S.Ct. at 442.

63
In Newsweek, this court found that the PRC had not based its decision on record evidence when productivity adjustments made by the PRC were based on two methodologies never presented at hearings.  Although the PRC had permitted briefs and comments on the new methodologies, the evidentiary record had closed and no discovery or cross examination was allowed.  663 F.2d at 1205.  We remanded so that the PRC could "subject its productivity adjustment rationale to the same hearing process as all other materials upon which it bases its recommended decisions."    Id.  In contrast is Association of Am. Publishers, 485 F.2d 768, where the PRC based its adjustment of attributable costs between parcel post and special rate fourth class mail on an average of the figures provided by two witnesses.   Id. at 772-73.  As the D.C. Circuit pointed out in upholding the PRC's approach:

64
It would, of course, be the summum bonum if we had accurate figures as to recent costs of carrying special fourth class mail.  The only available figures were inaccurate, but were susceptible of rough adjustment.  The Postal Service proposed one method of adjustment;  the Chief Examiner, another.  The Commission regarded each as helpful, but not wholly reliable.  So the Commission more or less split the difference.  No doubt it would have been possible to straighten out some of the errors or supposed errors of adjustment in either the Postal Service's or the Chief Examiner's calculations.  And if rate-making were an exact science such a counsel of perfection would be mandatory ....  In any case the rough splitting of a difference between two fairly but not wholly satisfactory rate calculations is a familiar permissible technique.

65
Id. at 773.

66
The facts presented here are more closely analogous to Association of Am. Publishers than they are to Newsweek.    The PRC did not develop a new methodology to determine the presort discount, but rather modified the approaches taken by two witnesses.  Postal Service witness Cowell employed a reversion approach that focused on the costs which would be incurred if mail currently presorted were to revert to nonpresorted.  PRC Opinion at 356.  The PRC characterized this approach as novel, id., and concluded that the result reached by this methodology resulted in a conservative recommendation to retain the presort discount at 3cents.  Id. at 356, 369-72.  Several reasons were cited to support the PRC's decision to depart from the conservative approach taken by the Postal Service's witness.  First, although savings from associated worksharing are not limited to presorted mail, these savings nevertheless have reduced overall postal costs.  Id. at 365-66.  Second, the rise in presort volume has contributed to the financial stability of the Postal Service, and this should be reflected in the presort discount.  Id. at 366.  The Postal Service's three cents discount was thus considered to be a floor below which the discount should not fall.

67
The PRC determined, however, that the 4.5cents discount advocated by the CPUM witness Bentley was a ceiling beyond which the "cost saving due to presorting can not be expected to exceed."    Id. at 362.  The CPUM approach was based on the Postal Services' Revenue and Cost Analysis (RCA) Report which included costs unrelated to presort savings.  Thus the PRC reviewed both the approach of the Postal Service's witness as well as that of CPUM's and reached a mid-ground between them:

68
We accept witness Cowell's analysis as an absolute floor, below which the savings cannot be expected to fall.  As stated previously, witness Cowell's reversion approach is novel in postal costing....  Witness Cowell is also very conservative in the manner in which he implements his approach....  As an estimate of the relevant cost differences which does not suffer from the deficiencies just described, we have taken the RCA report and isolated the unit difference in mail processing costs between presort and single-piece First Class.  The calculations can be found in Appendix F to this decision.  The method shown gives a rough approximation of the difference which can be expected in the test year.  The record does not contain sufficient information to develop a more precise estimate.  The difference is 4.9cents....  This figure corresponds to the one identified by witness Bentley, but does not include analysis of the operations, unconnected with sortation and hence inappropriate in deriving a presort differential.

69
Id. at 368-69.  Far from developing a new methodology and reaching a rate not based on record evidence in violation of Sec. 3624(a), see Newsweek, 663 F.2d at 1205, the PRC has determined its presort discount rate based on the evidence presented during the hearings.  It is permissible "where the regulatory administrative agency did not entirely disregard two experts, but found each somewhat in error, [to take] as its own solution a point somewhere between the two expert figures.  When neither of two suggested adjustments applied to inaccurate data is completely satisfactory a rate-making body may fashion its own adjustments within reasonable limits."   Association of Am. Publishers, 485 F.2d at 773;  see also United States v. FCC, 707 F.2d 610, 615 (D.C.Cir.1983) (agency has "authority to adopt ... those portions of each witness' testimony that it found credible").  We find that the PRC's recommendation of a first class presort discount of 4cents to be discernable from the evidentiary record upon which the recommendation is based.    See Bowman, 418 U.S. at 286, 95 S.Ct. at 442.

70
In addition, the APWU challenges the PRC's policy decision to encourage presorting as an usurpation of the Postal Service's authority to manage the agency.  However, it can be argued that it was the Postal Service's own policy to increase presortation because the Service's recommendation of 80 percent set the discount at a higher level than the cost avoided by presorting, and the Postal Service could have rejected the discount had it been in disagreement with the PRC's approach.  It is also contended that the presort discount provides a "backdoor" way to provide a lower cost business mail.  The discount for presorted mail takes into account the degree of preparation by the mailer, a factor required to be considered under subsection (b)(6);  it is irrelevant whether the user is a business or others who presort.  We therefore deny the petition to review the Postal Service's approval of the first class presort discount.

V. Segment 3 Processing Costs

71
Finally we find Petitioner DMA's argument that the Governors' failure to adjust Segment 3 Processing Costs to reflect peak load costs to be without merit.  Peak load costs are additional costs allegedly created by larger volumes of mail tendered to the Postal Service at certain peak times.  These costs are then attributed as part of Segment 3 costs to all classes of mail.  DMA asserts that these costs should be considered institutional costs to be attributed to responsible classes of mail.

72
DMA contends that the Postal Service's principal costing system, the In Office Cost System (IOCS), does not distinguish between cost behavior on-peak as opposed to off-peak.  As a result, DMA alleges that classes of mail which have no responsibility for peak load costs, such as BRR, are thereby prejudiced and, therefore, peak load costs should be treated as institutional costs to be attributed to responsible classes of mail.  DMA concludes that the Governors' approval of the PRC recommendation of Segment 3 Processing Costs is based on inadequate data and is therefore arbitrary and capricious.

73
The PRC considered the issue of peak load costs extensively in its decision.  Testimony was given to support DMA's contention that peak load costs should be shifted to preferential mail classes.  PRC Opinion at 172-75 (testimony of ANPA witness Haldi).  The PRC rejected this proposal finding that there was insufficient evidence to conclude when peak times occurred, id. at 184, and how labor patterns would be affected, id. at 185-91.  DMA asserts that a Postal Service system which distinguishes between peak and non-peak costs, the Mail Processing Cost Model (MPCM), was improperly stricken from the record because the Postal Service refused to supply sufficient information to support the use of MPCM.  The exclusion of this evidence, however, did not affect the consideration of peak load costs because the PRC concluded that independent reasons existed for not adopting the peak load cost proposals.  See id. at 200.  DMA's contention that the Board's treatment of Segment Three Processing Costs was arbitrary and capricious is thus without merit.

CONCLUSION

74
We hold that the Governors' approval of the schedule of postal rates and fees recommended by the PRC in Docket No. 84-1 is supported by substantial evidence and consistent with the policies underlying the Act.  Accordingly, we deny the petition to review.


          United States Court of Appeals
                     For the First Circuit

No. 16-1287

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                     HÉCTOR MULERO-ALGARÍN,

                      Defendant, Appellant.

          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

       [Hon. Carmen Consuelo Cerezo, U.S. District Judge]

                             Before

                  Torruella, Lynch, and Barron,
                         Circuit Judges.

     Mauricio Hernández Arroyo and Law Offices of Mauricio
Hernández Arroyo, Esq. on brief for appellant.
     Julia M. Meconiates, Assistant U.S. Attorney, Mariana E.
Bauzá-Almonte, Assistant U.S. Attorney, Chief, Appellate Division,
and Rosa Emilia Rodríguez-Vélez, United States Attorney, on brief
for appellee.

                          July 31, 2017
             LYNCH,       Circuit   Judge.       While    on   supervised   release

following his serving a 135-month term of imprisonment for a 2002

conviction    for     a    federal    drug   felony,      Héctor    Mulero-Algarín

committed a second federal drug felony in 2014.                    In doing so, he

committed    two    offenses:        violation    of     the   conditions   of   his

supervised release and the new drug offense.                   Mulero-Algarín pled

guilty and was sentenced for the new drug offense by a different

district court judge than presided over his previous conviction

and sentence.       He was newly sentenced to 120 months' imprisonment

for that drug offense.

             In a separate proceeding, held before the district court

judge who had presided over the original 2002 drug case, Mulero-

Algarín's term of supervised release was revoked and replaced with

a 36-month prison sentence, to be served consecutively to the 120-

month sentence imposed on him for the new drug offense.                     See 18

U.S.C. §§ 3583(e)(3), 3584(a). The court also stated that it would

not impose a further term of supervised release upon Mulero-

Algarín's release from that confinement.                   This appeal concerns

only the revocation sentence.

             Mulero-Algarín does not dispute that he violated the

conditions of his supervised release by committing the second drug

crime or that revocation of his supervised release was warranted.

He appeals only the district court's decision to impose his

revocation sentence consecutively to, rather than concurrently
                                        - 2 -
with, his sentence for the second crime.                   He makes the factually

incorrect          argument    that   the     court   failed   to    consider     his

cooperation with the government as to his second drug crime as

part of this claim.

               We hold that the district court committed no error.                 We

affirm Mulero-Algarín's revocation sentence.

                                             I.

               On     May     15,   2002,     Mulero-Algarín    pled   guilty      to

possession of cocaine with intent to distribute, in violation of

21 U.S.C. § 841(a)(1), after he was caught piloting a speedboat

with 1,576 kilograms of cocaine on board.                    U.S. District Judge

Carmen C. Cerezo sentenced him to 135 months' imprisonment, plus

five       years    of   supervised    release.       He    served   his   term   of

imprisonment.

               Mulero-Algarín's supervised release term commenced on

September 2, 2011, with an expiration date of September 1, 2016.

On January 22, 2014, claiming he had "faithfully complied" with

the conditions of his supervised release,1 Mulero-Algarín moved

for its early termination.              The government opposed that motion,

and Judge Cerezo denied it.

       1  As conditions of his original supervised release,
Mulero-Algarín was required to not, inter alia, "commit another
federal, state or local crime," "purchase, possess, use,
distribute, or administer any controlled substance," or "associate
with any person(s) engaged in criminal activity."
                                            - 3 -
               On December 10, 2014, less than a year after requesting

early termination of his supervised release, Mulero-Algarín was

detained on board a speedboat, along with one other passenger,

after fleeing from a U.S. Coast Guard vessel and throwing multiple

packages overboard, one of which was found to contain approximately

30    kilograms     of    cocaine.     Mulero-Algarín        was    charged     with

conspiring to possess cocaine with intent to distribute on board

a    vessel    of   the   United   States,    see   46     U.S.C.    §§   70502(b),

70503(a)(1), 70504(b)(1), 70506(b), and knowingly failing to obey

an order of a federal law enforcement officer to heave to a vessel

of the United States, see 18 U.S.C. § 2237(a)(1).                         This new

criminal case was assigned to U.S. District Judge Pedro A. Delgado-

Hernández.

               On October 16, 2015, Mulero-Algarín pled guilty in the

new drug case, and Judge Delgado-Hernández sentenced him to 120

months' imprisonment -- the applicable mandatory minimum -- plus

five years of supervised release.            Mulero-Algarín's plea agreement

stipulated that, in the event that he was to be sentenced for

violating the conditions of his original supervised release in a

revocation proceeding before Judge Cerezo, he could request that

his revocation sentence run concurrently with his new sentence,

while    the    government    could   request       that    the     sentences   run

consecutively.

                                      - 4 -
          The U.S. Probation Office had initiated a revocation

proceeding before Judge Cerezo on December 16, 2014, after learning

of Mulero-Algarín's December 10 detention.       On January 27, 2015,

"consistent with the [c]ourt's usual practice . . . when the

ground[] for revocation of supervised release is new criminal

conduct," Judge Cerezo ordered the revocation proceeding continued

until Mulero-Algarín's new criminal case concluded.         On October

26, 2015, with the revocation proceeding resumed, Mulero-Algarín

filed in that proceeding a sentencing memorandum in which he

conceded his supervised release violation based on his commission

of a new crime, and requested that his revocation sentence run

concurrently with his new sentence.

          At    his   February   17,   2016   sentencing   hearing     for

violating the conditions of his supervised release, Mulero-Algarín

renewed his request for a concurrent revocation sentence.              The

government requested that the sentences run consecutively.           After

determining    that   Mulero-Algarín's   Guidelines   Sentencing     Range

("GSR") was 24 to 30 months, Judge Cerezo noted that Mulero-Algarín

had violated his supervised release2 by engaging in "the same [type

of] activity and conduct" for which he had been sentenced to 135

     2    Judge Cerezo found that Mulero-Algarín had violated the
conditions of his supervised release by "committing and being
convicted of another federal crime," "possessing [a] controlled
substance[,] and associating with a person engaged in criminal
activity." Mulero-Algarín did not contest that finding.
                                 - 5 -
months' imprisonment in 2002.          In light of "the seriousness of the

offense, and . . . the need to provide adequate deterrence to

[Mulero-Algarín's] future conduct," Judge Cerezo concluded that a

sentence of 36 months' imprisonment, to be served consecutively to

the 120-month sentence imposed on Mulero-Algarín in his new drug

case, would be "sufficient but not greater than necessary in this

case."     See 18 U.S.C. §§ 3553(a), 3583(e)(3), 3584.           This appeal

followed.

                                       II.

            On appeal, Mulero-Algarín raises both procedural and

substantive challenges to Judge Cerezo's decision to impose the

36-month    revocation      sentence    consecutively    to,    rather     than

concurrently with, the 120-month sentence for the second drug

crime.3     Assuming   in    Mulero-Algarín's    favor   that   all   of    his

challenges were preserved, we review his revocation sentence for

abuse of discretion.        See United States v. Butler-Acevedo, 656

F.3d 97, 99 (1st Cir. 2011).       We hold that there was no error.

     3    Mulero-Algarín does not challenge Judge Cerezo's
decision to vary his revocation sentence upward to 36 months from
the GSR of 24 to 30 months.
                                   - 6 -
A.   Mulero-Algarín's Claims of Procedural Error

           Mulero-Algarín advances two related claims of procedural

error regarding the consecutive nature of his revocation sentence,

both of which rely on a misunderstanding of applicable law.4

           First, Mulero-Algarín argues that Judge Cerezo failed to

credit him for the time that he had already served in prison as a

result of his 2002 conviction.            Mulero-Algarín notes that the

maximum term of reimprisonment for which he was eligible upon

revocation was capped by statute at five years.                See 18 U.S.C.

§ 3583(e)(3). He also notes that under the version of § 3583(e)(3)

applicable here, see United States v. Tapia-Escalera, 356 F.3d

181, 187-88 (1st Cir. 2004) (2003 amendment to § 3583(e)(3) does

not apply when the offense of conviction predates that amendment),

the five-year cap applies to the aggregate of all periods of

reimprisonment that he could be required to serve for violations

of his supervised release.          From those premises, Mulero-Algarín

argues that Judge Cerezo should have counted the 135-month prison

sentence   he   received     in   2002   toward    the   five-year     aggregate

reimprisonment cap and concludes that -- because the cap had been

exceeded   --   he   could   be    required   to    serve   only   a    nominal,

concurrent revocation sentence.

      4   To the extent that Mulero-Algarín's argument relies at
all on our decision in United States v. Rodríguez-Meléndez, 828
F.3d 35 (1st Cir. 2016), that case is inapposite.
                                     - 7 -
           Mulero-Algarín's argument mistakenly characterizes his

original term of imprisonment for the underlying drug offense as

a term of reimprisonment for a supervised release violation.              The

cap in § 3583(e)(3) -- both before and after that section was

amended in 2003 -- applies only to terms of reimprisonment imposed

upon revocation.5   Mulero-Algarín has received no prior revocation

sentence   to   credit   toward   the   cap.       Judge   Cerezo   correctly

recognized this and did not credit Mulero-Algarín for any time

that he had already served in prison.          Mulero-Algarín's resulting

36-month   revocation    sentence    fell   well    within   the    five-year

reimprisonment cap.6

     5    Tapia-Escalera makes this clear.     See 356 F.3d 181.
There, the defendant had previously violated his supervised
release and been sentenced upon revocation to ten months of
reimprisonment, plus four additional years of supervised release.
Id. at 182. At issue was the district court's imposition of a 30-
month term of reimprisonment upon the defendant's violation of his
additional supervised release.     Id.   Applying the version of
§ 3583(e)(3) applicable here, we held that the district court had
erred by failing to count the prior ten-month sentence toward the
aggregate cap, which -- based on that defendant's offense of
conviction -- was 36 months. Id. at 188. We then remanded so
that the district court could reduce the 30-month sentence by four
months to comport with the cap. Id. The five years in prison
that the defendant had served for the original offense did not
bear on the assessment of whether the cap had been exceeded. See
id. at 182.
     6    Mulero-Algarín's citation to 18 U.S.C. § 3583(h) takes
him no further.    Section 3583(h) outlines the cap that applies
when a district court revokes a defendant's supervised release and
replaces it with a term of reimprisonment plus an additional term
of supervised release. Judge Cerezo did not impose an additional
term of supervised release on Mulero-Algarín, so § 3583(h) is
inapposite.
                                    - 8 -
               Mulero-Algarín also argues that Judge Cerezo failed to

credit him for the time that he had already served under supervised

release as a result of his 2002 conviction -- specifically, the 39

months between the commencement of his supervised release in

September 2011 and his arrest for the second crime in December

2014.       He argues that Judge Cerezo should have deducted these 39

months from his 36-month revocation sentence and concludes that -

- because his credit exceeded his sentence -- he could be required

to serve only a nominal, concurrent revocation sentence.

              This claim is easily dispatched, as it is explicitly

foreclosed by statute.        Defendants sentenced to reimprisonment

upon revocation do not receive "credit for time previously served

on postrelease supervision."      18 U.S.C. § 3583(e)(3).

              Mulero-Algarín's procedural claims both fail.7    There

was no error.

B.   Mulero-Algarín's Claim of Substantive Unreasonableness

              Mulero-Algarín claims that Judge Cerezo's decision to

impose his revocation sentence consecutively to his sentence for

his second crime was substantively unreasonable, in light of

certain factors that he argues militated in favor of concurrent

        7 To the extent that -- as an alternative to his claim
that his time served in prison or under supervised release entitled
him to a concurrent revocation sentence -- Mulero-Algarín claims
that his time served entitled him to an incremental reduction of
his revocation sentence, that claim fails for the same reasons.
                                  - 9 -
sentences.     Specifically, he argues that (1) he cooperated with

the government following his arrest for the second drug crime,

(2) he was already penalized for his supervised release violation

through his sentence for the second crime, and (3) due to his 120-

month sentence for the second crime, he will be incarcerated until

he   is   nearly   60   years   old,   even   without   the   addition   of   a

revocation sentence.

             Defense counsel vigorously pressed these factors at

sentencing, and there is no reason to think that Judge Cerezo did

not consider them, so we construe Mulero-Algarín's challenge as

directed at the weight that the factors were afforded.            See United

States v. Cortés-Medina, 819 F.3d 566, 571 (1st Cir.), cert.

denied, 137 S. Ct. 410 (2016).         How much weight to afford various

factors at sentencing is a judgment committed to the informed

discretion of the sentencing court. See United States v. Clogston,

662 F.3d 588, 593 (1st Cir. 2011).

             Judge Cerezo considered the cooperation that Mulero-

Algarín provided in his second drug case -- in the form of the

names of his criminal associates -- along with the fact that he

had already been credited for such assistance in that case.

Indeed, Mulero-Algarín's cooperation factored prominently into

Judge Delgado-Hernández's decision in that case to impose only the

mandatory minimum sentence.        And while Mulero-Algarín asserted in

his revocation proceeding that he had offered to assist the
                                   - 10 -
government further by wearing a wire around other known drug

traffickers, Judge Cerezo was also aware that he had provided no

such service, as he had not been released on bail.

          Similarly, Judge Cerezo considered the fact that the GSR

in Mulero-Algarín's second drug case was increased because he had

committed the offense while on supervised release along with the

fact that Mulero-Algarín was not actually penalized for that

increase, given that he received the mandatory minimum sentence

for his offense.

          Finally, Judge Cerezo considered the fact that Mulero-

Algarín will be 60 years old after serving a decade in prison for

his new drug crime along with the fact that he committed that crime

at age 49, after having served a decade in prison for a similar

crime.

          After considering these factors, Judge Cerezo reasonably

afforded overriding weight to the need to deter Mulero-Algarín

from further recidivism and justifiably concluded that additional

time in prison following his 120-month term for his new crime would

be an appropriate sentence for his supervised release violation.

See 18 U.S.C. § 3584(b).        In assessing the totality of the

circumstances as she did, and in sentencing Mulero-Algarín to a

consecutive term of imprisonment, Judge Cerezo certainly did not

exceed her "broad discretion" to fashion a revocation sentence

under 18 U.S.C. § 3583(e)(3).    United States v. Hernández–Ferrer,
                                - 11 -
599 F.3d 63, 66 (1st Cir. 2010).    The fact that Judge Cerezo "chose

not   to   sentence   [Mulero-Algarín]   according    to   his   counsel's

recommendation" does not establish error.            Butler-Acevedo, 656

F.3d at 101.

                                 III.

            Mulero-Algarín's revocation sentence is affirmed.

                                - 12 -


487 F.2d 1399
U. S.v.Whitty
73-1949
UNITED STATES COURT OF APPEALS Fourth Circuit
12/6/73

1
M.D.N.C.

AFFIRMED