United States v. Rodriguez

United States Court of Appeals
For the First Circuit

No. 12-1476

UNITED STATES OF AMERICA,

Appellee,

v.

EDDIE M. RODRÍGUEZ,

Defendant, Appellant.

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

[Hon. José A. Fusté, U.S. District Judge]

Before

Lynch, Chief Judge,
Stahl and Thompson, Circuit Judges.

Michael R. Hasse on brief for appellant.
Juan Carlos Reyes-Ramos, Assistant United States Attorney,
Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, on brief for appellee.

September 25, 2013
 STAHL, Circuit Judge. Eddie Rodríguez was convicted by a

jury in the District of Puerto Rico of several drug offenses.

After a partially successful appeal of his conviction and sentence,

he was resentenced by the district court on remand. He now appeals

the resulting sentence, arguing that the district court failed to

follow proper sentencing procedures and erroneously determined the

quantity of drugs for which he was accountable. After careful

consideration, we affirm.

I. Facts & Background

Eddie Rodríguez was found guilty of five drug-related

offenses following a seven-day jury trial. This appeal arises from

his resentencing after this court vacated two of those convictions

and remanded the case to the district court. Because this appeal

follows a conviction, to the extent that it relies upon evidence

submitted to the jury, we view those facts in the light most

favorable to the verdict. See United States v. Mercado, 412 F.3d

243, 245 (1st Cir. 2005). We recounted the factual and procedural

history of this case in some detail in United States v. Díaz, 670

F.3d 332 (1st Cir. 2012), and thus summarize only the relevant

background below, adding subsequent developments as necessary.

Rodríguez was one of forty-seven defendants named in a

seven-count indictment alleging that, among other things, between

2006 and March 27, 2009, they conspired to operate a drug point in

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the San Antonio Public Housing Project (commonly known as

"Carioca"), in the municipality of Guayama, Puerto Rico.

As relevant to Rodríguez, the indictment alleged that the

defendants knowingly conspired to possess with intent to distribute

various amounts of cocaine base ("crack"), heroin, cocaine,

marijuana, and Oxycodone within 1,000 feet of a school and/or

public housing facility and/or playground, in violation of 21

U.S.C. §§ 841(a)(1), 846, and 860 (the "conspiracy count"), and

that, aiding and abetting each other, they knowingly and

intentionally possessed with intent to distribute one kilogram or

more of heroin, fifty grams or more of crack, five kilograms or

more of cocaine, and one thousand kilograms or more of marijuana,

in violation of 21 U.S.C. §§ 841(a)(1) and 860 and 18 U.S.C. § 2

(the "substantive counts").

Following a jury verdict finding Rodríguez guilty of all

five counts, the probation department prepared a presentence report

(PSR) that recommended Rodríguez be held accountable for more than

4.5 kilograms of crack (corresponding to the highest base offense

level, 38, under the then-current sentencing guidelines). The

probation department's calculation was based upon: (1) trial

testimony that, during the life of the conspiracy, the drug point

sold approximately sixty grams of crack each day; and (2) the fact

that Rodríguez was an active participant in the conspiracy for

approximately one year. After a two-level increase because the

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offense occurred within 1,000 feet of a protected location, and

combined with a criminal history category of I, the probation

department calculated the guideline range to be 292 to 365 months.

At the original sentencing hearing, the district court

considered Rodríguez's role in the conspiracy and determined that

he was accountable for 500 grams to 1.5 kilograms of crack,

corresponding to a base offense level of 34. The court stated that

it did not "think we should go all the way to 38," as recommended

in the PSR. It also rejected the probation officer's in-court

suggestion to use a base offense level of 36, corresponding to 1.6

kilograms,1 even though "by preponderance . . . he could easily

have sold 1.6 kilograms of crack cocaine," because 34 resulted in

"a range that [it] can live with." With the two-level protected-

location enhancement, Rodríguez's sentencing guideline range was

188 to 235 months. After noting the disparity between this

calculation and the PSR, the court explained that the lower range

reflected "some sort of balancing act trying to find some sort of

justice" in light of Rodríguez's youth. The district court

sentenced him to 188 months of imprisonment and ten years of

supervised release as to each count, to be served concurrently.

1
This calculation was apparently in error. The probation
officer indicated that sixty grams of crack per day over nine
months of participation would yield a total of 1.6 kilograms. This
calculation is off by a factor of ten; the correct amount is, in
fact, 16.2 kilograms.

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 In his initial appeal, Rodríguez challenged his

conviction and sentence, raising, as relevant here, two issues:

(1) whether the district court erred in calculating the quantity of

drugs attributable to him for purposes of determining his

sentencing guideline range; and (2) whether the district court

lacked jurisdiction under the Federal Juvenile Delinquency Act

(FJDA), 18 U.S.C. § 5032, for insufficient evidence that he

participated in the conspiracy or committed any of the substantive

drug offenses after he reached the age of majority.

Absent certain exceptions not applicable here, the FJDA

prevents district courts from exercising jurisdiction over a

defendant who is under the age of twenty-one when criminal

proceedings are commenced for acts that occurred before he turned

eighteen. Rodríguez entered the conspiracy before his eighteenth

birthday, was absent from the conspiracy from May 2007 to August

2008 because he was incarcerated in a juvenile detention facility,

and attained the age of majority during his incarceration. We

affirmed his conviction of the conspiracy count, finding that there

was sufficient evidence of post-majority participation. We also

affirmed his convictions of the substantive marijuana and crack

counts, but vacated his convictions of the substantive heroin and

cocaine counts for lack of evidence that, after Rodríguez had

reached the age of eighteen, he or his co-conspirators possessed or

distributed either drug. Because the vacated counts may have

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"alter[ed] the dimensions of the sentencing 'package,'" Díaz, 670

F.3d at 344 (quoting United States v. Genao-Sánchez, 525 F.3d 67,

71 (1st Cir. 2008)) (internal quotation marks omitted), we remanded

his case to the district court for resentencing. Finally, in light

of the remand, we did not reach Rodríguez's challenge to the

district court's drug-quantity calculation.

In resentencing on remand, the district court considered

Rodríguez's extensive role in the conspiracy, based upon his

participation both pre- and post-majority, and determined that he

could "conservatively" be held accountable for at least one year's

worth of crack sales at the drug point -- which, at sixty grams per

day, amounted to 21.9 kilograms. The court instead selected a

"very, very conservative number" of between 150 and 500 grams of

crack, which it adjusted to 280 to 840 grams of crack to reflect

the quantity cut-offs in the new crack sentencing guidelines.2

This quantity corresponded to a base offense level of 32, and,

after the two-level protected-location enhancement, the sentencing

guideline range was 151 to 188 months. The district court again

imposed a sentence at the bottom of the range, sentencing Rodríguez

to 151 months of imprisonment and ten years of supervised release

2
On remand, the district court applied the revised crack
sentencing guidelines promulgated pursuant to the Fair Sentencing
Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372. The new
guidelines resulted in guideline range that was more favorable to
Rodríguez.

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as to each count, to be served concurrently. This timely appeal

followed.

II. Analysis

On appeal, Rodríguez claims that the district court

failed to follow proper sentencing procedures and that it erred in

multiple respects when determining the quantity of drugs for which

he would be held accountable for sentencing purposes.

A. Procedural Error Under § 3553

Rodríguez contends that the district court committed

procedural error in arriving at his sentence by failing to consider

the sentencing factors set out in 18 U.S.C. § 3553(a) and by

failing to give a statement of reasons for selecting a particular

sentence as required by § 3553(c). Because he did not raise these

claims before the district court, our review is for plain error.

See United States v. Medina-Villegas, 700 F.3d 580, 583 (1st Cir.

2012). "Review for plain error entails four showings: (1) that an

error occurred (2) which was clear or obvious and which not only

(3) affected the defendant's substantial rights, but also (4)

seriously impaired the fairness, integrity, or public reputation of

judicial proceedings." United States v. Duarte, 246 F.3d 56, 60

(1st Cir. 2001) (citation omitted). A violation of § 3553's

mandates will warrant reversal under plain error review only if the

defendant demonstrates "a reasonable probability that, but for the

error, the district court would have imposed a different, more

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favorable sentence." United States v. Mangual-Garcia, 505 F.3d 1,

15 (1st Cir. 2007) (citation and internal quotation marks omitted).

Pursuant to the Sentencing Reform Act of 1984, 98 Stat.

1987, 18 U.S.C. § 3551 et seq., as modified by United States v.

Booker, 543 U.S. 220 (2005), a sentencing court must "impose a

sentence sufficient, but not greater than necessary," to achieve

the purposes of sentencing, § 3553(a).3 In determining the

appropriate sentence, the court should consider various factors,

including "the nature and circumstances of the offense and the

history and characteristics of the defendant," "the kinds of

sentences available," "the kinds of sentence and the sentencing

range established" by the sentencing guidelines, and "the need to

avoid unwarranted sentence disparities among defendants with

similar records who have been found guilty of similar conduct."

§ 3553(a). Finally, "[t]he court, at the time of sentencing, shall

state in open court the reasons for its imposition of the

particular sentence," § 3553(c), and, if the guideline range

exceeds twenty-four months, "the reason for imposing a sentence at

a particular point within the range," § 3553(c)(1).

3
The relevant purposes are the need for the sentence to
"reflect the seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense"; "afford
adequate deterrence to criminal conduct"; "protect the public from
further crimes of the defendant"; and "provide the defendant with
needed educational or vocational training, medical care, or other
correctional treatment in the most effective manner."
§ 3553(a)(2).

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 This court has endorsed a "sequential determination of

the guideline range, including any proposed departures, followed by

the further determination whether other factors identified by

either side warrant an ultimate sentence above or below the

guideline range." United States v. Jiménez-Beltre, 440 F.3d 514,

518-19 (1st Cir. 2006) (en banc). Thus, the court typically should

first calculate the correct guideline range, and then determine

whether, after consideration of the § 3553(a) factors, a sentence

above, within, or below that range will be sufficient, but not

greater than necessary, in light of the sentencing goals. See

United States v. Kimbrough, 552 U.S. 85, 110-11 (2007) (endorsing

district court's adoption of this approach). Finally, the court

should articulate in open court how consideration of these factors

led it to select a particular sentence. § 3553(c); see also Rita

v. United States, 551 U.S. 338, 356-57 (2007) (noting that this

statement of reasons both assures the public that sentencing

decisions are reasoned decisions and aids in appellate review).

Here, the district court did not explicitly address the

§ 3553(a) factors, nor did it succinctly provide a clear statement

of reasons for imposing a sentence at a particular point in the

guideline range as required by § 3553(c). And, to the extent that

the court implicitly considered the § 3553(a) factors, it appears

to have done so in selecting a guideline range, rather than first

calculating the guideline range supported by the evidence and then

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considering the § 3553(a) factors to determine the appropriate

sentence above, within, or below that range. That is, after

determining that the evidence supported holding Rodríguez

accountable for 21.9 kilograms of crack, the district court

rejected the corresponding guideline range as too high, implicitly

taking into consideration several of the § 3553(a) factors, and

then, with no apparent evidentiary basis, selected a drug quantity

that would yield a guideline range that reflected an appropriate

sentence.

The district court's failure to state explicitly that it

was addressing any § 3553(a) factors or to provide any statement of

reasons for selecting the particular sentence within the guideline

range is somewhat troubling. However, we are somewhat more

concerned about the district court's procedure for determining the

appropriate guideline range. The drug-quantity finding, supported

by a preponderance of the evidence, determines the base offense

level.4 If, as apparently happened here, the court believed, in

light of the § 3553(a) factors, that the corresponding guideline

4
We note that the drug-quantity calculation did not increase
the statutory mandatory minimum or maximum sentence, as the drug
quantity found by the jury on the substantive marijuana count
triggered a ten-year minimum and life maximum sentence under 21
U.S.C. § 841(b)(1)(A). Therefore, judicial fact-finding does not
implicate Apprendi v. New Jersey, 530 U.S. 466 (2000) ("Other than
the fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt."), or
Alleyne v. United States, 133 S. Ct. 2151 (2013).

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range was higher than necessary to achieve the sentencing goals, it

could have imposed a below-guidelines sentence and articulated why

it had done so. Rodríguez did not raise this issue to the district

court -- and, as it turned out, this procedure worked in his

favor.5 If he had, there would have been error that was both clear

and obvious.

Nonetheless, in this particular case, the procedure

followed by the district court did not affect Rodríguez's

substantial rights. "[O]n this record, the likelihood of a

different sentence on remand is an empty hope unsubstantiated by

any plausible rationale. Accordingly, there is no principled way

that we can find plain error arising out of the district court's

failure to effect literal compliance" with § 3553(a) and (c).

Medina-Villegas, 700 F.3d at 584; see also Mangual-Garcia, 505 F.3d

at 15-16 (district court's rote recitation that it had considered

relevant § 3553(a) factors, without any attempt to link them to

defendant's conduct or goals of sentencing, was clear and obvious

error, but reversal unwarranted where defendant did not identify

specific facts showing reasonable probability of different sentence

on remand).

5
Although Rodríguez objects to the district court's drug-
quantity calculation, an issue we address infra, he has not argued
that the district court procedurally erred by reverse-engineering
his guideline range. Nor would he; the district court adopted a
guideline range that shaved nearly twelve years off the low end and
nearly fifteen years off the high end of the range that the court
believed the evidence supported.

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 At various points throughout the sentencing hearings, the

district court appears to have considered the nature and

circumstances of the offense;6 the history and characteristics of

the defendant;7 the need for the sentence to reflect the

seriousness of the offense, provide just punishment, and afford

adequate deterrence;8 and the need to avoid unwarranted sentencing

disparities.9 After considering all of these factors, the district

court determined that the guideline range supported by the evidence

6
"Let's not forget that Eddie Rodríguez was not just an
individual who would be a lookout or facilitator or anything like
that. He was an enforcer. He used -- carried firearms. He sold,
collected rent from a drug point." "He knew that this was a big
time operation. That he knew. He was there. He was an enforcer
for them, all that. He was a seller."
7
"So I think that we are doing some sort of balancing act
trying to find some sort of justice, or justiciable remedy of this
case, which involves a very young guy . . . ." In addition, the
court heard defense counsel's statement addressing various
mitigating factors, including Rodríguez's conduct after release
from juvenile detention, that the court should consider. The court
expressly disbelieved the trial testimony of the defense witnesses
with respect to Rodríguez's post-release conduct, finding it
incredible. This court will not lightly discard the sentencing
court's credibility determinations. See United States v.
Huddleston, 194 F.3d 214, 224 (1st Cir. 1999).
8
"People do horrible things in Guayama and they get away with
it. . . . People get charged left and right with big time crime,
including murder, like in this case, and people get
dismissed. . . . [I]n Guayama crime pays, that's for sure."
9
The court considered and rejected defense counsel's argument
that Rodríguez's sentence should approximate other co-defendants'
sentences, noting that the circumstances were "completely
different."

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was higher than necessary,10 and settled upon a drug quantity that

was between 1.2 and 3.8% of the amount that the court believed

Rodríguez was "easily" responsible for. Even after making these

adjustments, the court imposed a sentence at the very bottom of the

reduced guideline range.

"[A] court's reasoning can often be inferred by comparing

what was argued by the parties or contained in the pre-sentence

report with what the judge did." Jiménez-Beltre, 440 F.3d at 519.

Here, the record demonstrates that the district court did consider

-- albeit in a roundabout and implicit way -- the § 3553(a) factors

that it deemed relevant and came to a reasoned determination of the

appropriate sentence. There is no reasonable probability that, had

the district court followed proper sentencing procedures, it would

have imposed a more favorable sentence. See Mangual-Garcia, 505

F.3d at 15-16; see also Medina-Villegas, 700 F.3d at 584 ("To cinch

the matter, the appellant has not identified any factors that make

it likely that he would receive a different sentence on remand.").

Therefore, the district court's error -- though clear and obvious

-- does not warrant reversal on plain-error review.

10
"I don't think we should go all the way to 38 [as it would
be based on the drug quantity the court found Rodríguez actually
was accountable for]. So I'm going to leave it at 34." Rejecting
the probation officer's suggestion that he increase the base
offense level to 36 (based upon the erroneous 1.6 kilogram rather
than 16 kilogram calculation), the sentencing judge stated, "I am
going to leave it at level 34, because it gives me a range I can
live with. 500 to 1.5, which is almost 1.6."

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B. Drug-Quantity Calculation

Rodríguez raises three interrelated claims with respect

to the district court's drug-quantity calculation. First, he

argues that the district court failed to make an individualized

determination regarding the quantity of drugs that were

attributable to him, instead automatically holding him accountable

for the conspiracy-wide amount. Second, he argues that, to the

extent the court made an individualized determination, that

determination was in error. Finally, he challenges the reliability

of the evidence upon which the conspiracy-wide calculation was

based. We address these claims seriatim.

"[W]hen a district court determines drug quantity for the

purpose of sentencing a defendant convicted of participating in a

drug-trafficking conspiracy, the court is required to make an

individualized finding as to drug amounts attributable to, or

foreseeable by, that defendant." United States v. Colón-Solís, 354

F.3d 101, 103 (1st Cir. 2004). Under the sentencing guidelines,

relevant conduct that may be considered for sentencing purposes

includes "all acts and omissions committed, aided, abetted,

counseled, commanded, induced, procured, or willfully caused by the

defendant; and . . . in the case of a jointly undertaken criminal

activity . . . , all reasonably foreseeable acts and omissions of

others in furtherance of the jointly undertaken criminal activity

. . . ." U.S.S.G. § 1B1.3(a)(1). The question of whether the

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drug-quantity calculation was based upon on individualized

determination of Rodríguez's relevant conduct is a question of law

that we review de novo. United States v. Cintrón-Echautegui, 604

F.3d 1, 5 (1st Cir. 2010). If it was, we review the result for

clear error. Id. We will not "upset findings of fact or

conclusions drawn therefrom unless, on the whole of the record, we

form a strong, unyielding belief that a mistake has been made."

Cumpiano v. Banco Santander Puerto Rico, 902 F.2d 148, 152 (1st

Cir. 1990).

Rodríguez's first argument is a non-starter. The record

plainly reflects that the district court considered Rodríguez's

role in, and conduct in furtherance of, the conspiracy and made an

individualized determination that he could reasonably foresee the

entire amount of crack sold by the conspiracy during the time he

was involved in it.11 While it is error to automatically shift the

conspiracy-wide drug quantity onto a particular defendant absent an

individualized finding that the entire amount was foreseeable to

that defendant, Colón-Solís, 354 F.3d at 103, the district court

here did make such a finding.

Rodríguez's claim that the individualized determination

was erroneous requires more analysis, but is ultimately no more

11
The court discounted the fifteen months that Rodríguez spent
in the juvenile detention facility, relying only on the seven and
one-half months between his release and the indictment and
conservatively assuming only five and one-half months of
involvement before his detention.

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successful. Rodríguez argues that the district court clearly erred

in finding that all of the conspiracy's crack sales during the time

of his participation in the conspiracy were foreseeable to him and

within the scope of his conspiratorial agreement. The record

suggests that Rodríguez was significantly less involved with crack

after he reached the age of eighteen than he had been before his

detention. We previously affirmed his conviction of the

substantive crack offense on the basis of a single seizure of 150

vials of crack from a co-conspirator after Rodríguez's eighteenth

birthday. See Díaz, 670 F.3d at 343. We assumed that the jury

followed the district court's Pinkerton instruction and found that

the co-conspirator's possession of crack was reasonably foreseeable

to Rodríguez and was committed in furtherance of the conspiracy.

See Pinkerton v. United States, 328 U.S. 640 (1946) (conspirator

may be liable for all foreseeable acts of co-conspirators in

furtherance of conspiracy). But that does not mean that all crack

sold by the conspiracy can automatically be attributed to Rodríguez

as relevant conduct for sentencing purposes. Pinkerton liability

is, in some cases, broader than relevant conduct. See United

States v. Laboy, 351 F.3d 578, 583 (1st Cir. 2003) ("While a

conspiracy charge may encompass all acts by co-conspirators in

furtherance of the conspiracy, 'relevant conduct' is limited to the

foreseeable acts resulting from the defendant's particular

agreement. Thus, the scope of relevant conduct is not necessarily

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the same as the scope of the entire conspiracy." (citations and

internal quotation marks omitted)); see also U.S.S.G. § 1B1.3 cmt.

n.2. Whether the record would support a finding that all of the

crack sales, pre- and post-majority, were reasonably foreseeable to

Rodríguez and were within the scope of his agreement is a close

question, but one that, for two reasons, we need not resolve.

First, the parties agreed below, and Rodríguez does not

dispute here, that a defendant who joined a conspiracy before the

age of majority can be held accountable, for sentencing purposes,

for his own and his co-conspirators' acts that occurred before he

reached the age of majority once it has been shown that he ratified

his participation in the conspiracy after attaining the age of

majority.12 This court has never specifically so held. In United

States v. Welch, 15 F.3d 1202, 1215 (1st Cir. 1993), we considered

a drug-quantity calculation that included the defendant’s pre- and

post-majority conduct. We vacated the sentence not because it

included pre-majority conduct, but because it was based upon

insufficiently reliable evidence. By implication, inclusion of the

12
In pre-sentencing briefing on this issue, Rodríguez stated
that "the Court may certainly consider conduct which occurred prior
to the defendant's eighteenth birthday in determining the
defendant's base offense level. . . . [A] defendant who may not be
properly chargeable with certain conduct because of his youth at
the time the conduct occurred . . . may nonetheless retain
sentencing exposure for that conduct which is deemed to be
reasonably foreseeable criminal acts in furtherance of the
conspiracy." Defense counsel reiterated this view at the
resentencing hearing.

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defendant’s pre-majority conduct was permissible. Several of our

sister circuits have expressly held that, once post-majority

ratification has been shown, relevant conduct for sentencing

purposes includes pre-majority acts of the defendant, see United

States v. Flores, 572 F.3d 1254, 1269-70 (11th Cir. 2009); United

States v. Gibbs, 182 F.3d 408, 442 (6th Cir. 1999), and his co-

conspirators, see United States v. Sparks, 309 F. App'x 713, 717

(4th Cir. 2009) (unpublished); United States v. Thomas, 114 F.3d

228, 267 (D.C. Cir. 1997). However, in light of Rodríguez's

explicit waiver, and in the absence of briefing by the parties, we

need not reach the question and assume, without deciding, that the

district court properly considered these acts.

When considering Rodríguez's pre-majority conduct, the

record supports the finding that all crack sales during that period

were within the scope of his agreement and reasonably foreseeable

to him. The trial testimony indicated that, before his

incarceration, he occupied many roles in the drug point: He served

as a runner "in charge of" the crack, bringing packages of crack to

the sellers, replenishing their supplies when they ran out, and

collecting the proceeds from the sales. He served as a seller of

crack on occasion. He served as a triggerman, and would go "on a

mission" to shoot members of rival organizations. On these facts,

the district court did not clearly err in finding that, pre-

majority, the scope of Rodríguez's conspiratorial agreement

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encompassed all crack sales at the drug point and that all such

sales were reasonably foreseeable to him. Even if the evidence

does not support the same conclusion with respect to his post-

majority participation, his pre-majority participation alone

results in the same base offense level (38) that would result from

combining the pre- and post-majority amounts.13

Second, as noted above, the district court did not

ultimately hold him accountable for the entire conspiratorial

amount. After finding that he could "easily" be held accountable

for 21.9 kilograms of crack, the court held him accountable for

only 280 to 840 grams -- less than nine percent of the pre-majority

conspiracy-wide amount. There is simply no way to read the record

in this case and conclude that this smaller quantity was not within

the scope of Rodríguez's agreement and reasonably foreseeable to

him. Moreover, at the first sentencing hearing, Rodríguez, through

counsel, conceded that a quantity of between 500 grams and 1.5

kilograms was fair. The district court's individualized drug-

quantity finding was not affected by clear error.

We turn now to Rodríguez's final argument. He contends

that the district court's drug-quantity calculation was not

13
Assuming that the drug point sold sixty grams of crack per
day (an assumption that Rodríguez disputes, and an argument that we
address infra), the district court's conservative estimate of five
and one-half months of pre-detention involvement yields
accountability for more than ten kilograms of crack, well above
the 4.5-kilogram trigger for the highest base offense level.

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supported by reliable evidence in the record. "Where . . . the

amount [of drugs] seized does not reflect the scale of the offense,

the court shall approximate the quantity of the controlled

substance." U.S.S.G. § 2D1.1 cmt. n.5. "When it is impossible or

impractical to obtain an exact drug quantity for sentencing

purposes, a reasoned estimate will suffice." Laboy, 351 F.3d at

584 (citation and internal quotation marks omitted). The drug-

quantity finding need only be based upon a preponderance of the

evidence. Cintrón-Echautegui, 604 F.3d at 6. We review the

district court's drug-quantity determination for clear error.

United States v. Rivera-Maldonado, 194 F3.d 224, 228 n.2 (1st Cir.

1999).

In making the drug-quantity determination, the district

court "may consider relevant information without regard to its

admissibility under the rules of evidence applicable at trial,

provided that the information has sufficient indicia of reliability

to support its probable accuracy." U.S.S.G. § 6A1.3(a); see also

Cintrón-Echautegui, 604 F.3d at 6 ("[Sentencing court] may rely

upon virtually any dependable information . . . , [including]

information that has never been subjected to cross-examination

. . . [and] information contained in a presentence report."

(citations and internal quotation marks omitted)). We have

frequently recognized that the district court enjoys broad

discretion in determining whether given evidence is sufficiently

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reliable for sentencing purposes, and we review these decisions

only for abuse of discretion. United States v. Mills, 710 F.3d 5,

16 (1st Cir. 2013).

The district court determined the conspiracy-wide drug

quantity during the time of Rodríguez’s participation based upon

estimated daily sales. "Extrapolation is a common and permissible

way of attributing drugs to a defendant." United States v.

Marquez, 699 F.3d 556, 561 (1st Cir. 2012). We have upheld this

method where the extrapolation is "based on a known or readily

calculable number of transactions involving clearly established or

conservatively estimated quantities." Id. If, however, the

estimates "rest[] too significantly on unreliable inferences," id.

at 562 (citation and internal quotation marks omitted)(citing

cases), reversal may be warranted.

Here, based upon trial testimony, the district court

estimated that the conspiracy sold sixty grams of crack each day at

the Carioca drug point. A cooperating co-defendant testified that

the drug point operated in three daily shifts: a morning shift from

6:00 a.m. to 3:00 p.m., an afternoon shift from 3:00 p.m. to

midnight, and a night shift from midnight to 6:00 a.m. He stated

that the drug point generally sold over 200 vials of crack during

the morning shift, a similar amount during the afternoon shift, and

between 150 and 200 vials during the night shift. He also stated

that, during the first several days of the month, it could sell

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over 300 or 400 vials per shift. A cooperating witness stated that

the drug point sold eight to nine packages of twenty-five capsules

of crack (200 to 225 capsules) during an average weekday shift and

sixteen to eighteen packages of twenty-five capsules (400 to 450

capsules) during an average weekend shift. An expert witness

testified that each vial or capsule weighed approximately 0.1

grams. The court adopted a conservative estimate of 200 0.1-gram

vials or capsules per shift and multiplied by three daily shifts to

arrive at an estimate of sixty grams per day. The court then,

using a conservative estimate of the duration of Rodríguez's

participation in the conspiracy, multiplied the daily amount by 365

days to determine his total attributable amount, 21.9 kilograms.

Finally, notwithstanding the determination that at least 21.9

kilograms of crack sales were within the scope of his

conspiratorial agreement and were foreseeable to him, the court

held him accountable for less than five percent of that amount.

The court did not abuse its discretion in relying on the

unrebutted trial testimony, nor did it clearly err in making its

quantity determination. The court used conservative figures in

every step of the calculation, and easily could have arrived at a

far larger quantity. We have often upheld drug-quantity findings,

even if imprecise, if they were based upon conservative estimates

or favorable assumptions. See Cintrón-Echautegui, 604 F.3d at 7

(upholding drug-quantity determination derived from plausible

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extrapolations and favorable assumptions); United States v. Correa-

Alicea, 585 F.3d 484, 491 and n.4 (1st Cir. 2009) (upholding

inexact determination of drug quantity where it was based on

reasonable, conservative estimate with sufficiently reliable record

support); Laboy, 351 F.3d at 584 (same). We do so again today.

III. Conclusion

For the foregoing reasons, we affirm Rodríguez's

sentence.

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