United States v. Jones

United States Court of Appeals
For the First Circuit

No. 06-2472

UNITED STATES OF AMERICA,

Appellee,

v.

RASHAUN JONES,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.

Susan E. Taylor, for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief for appellee.

April 11, 2008
 TORRUELLA, Circuit Judge. On June 23, 2006, a jury found

Rashaun "Smoke" Jones guilty of conspiracy to distribute and

possess with intent to distribute heroin and cocaine base. Before

trial the district court, on recommendation of the magistrate

judge, denied Jones's motion to suppress certain evidence seized

from his hotel suite. Jones claims error in this denial. On

October 6, 2006, the sentencing court sentenced Jones to 188

months' imprisonment. Jones argues that the sentencing court erred

in calculating the drug quantity that went into his Guidelines

sentence calculation, and in finding him eligible for a two-level

upward adjustment to his base offense level for his role as an

organizer or manager of other criminal actors. Upon thorough

examination of the record and the parties' arguments, we affirm

Jones's conviction and sentence.

I. Background1

On December 29, 2005, Sgt. John O'Malley of the

Scarborough, Maine, Police Department learned from the manager of

the TownePlace Suites hotel that an individual named Rashaun Jones

had checked into Room 318; Room 318 was a suite with two bedrooms,

a living room, a kitchenette, and a bathroom. After running a

1
"We recite the facts relating to [Jones's] motion to suppress as
found by the district court, consistent with record support."
United States v. Brown, 510 F.3d 57, 61 n.1 (1st Cir. 2007); see
also United States v. Jones, No. 05-84-P-S, 2006 WL 763124 (D. Me.
Mar. 24, 2006) (magistrate judge's recommended factual findings);
United States v. Jones, No. 05-84-P-S, 2006 WL 1071893 (D. Me.
Apr. 21, 2006) (adopting magistrate judge's recommendation).

-2-
database check on Jones, Sgt. O'Malley discovered that there was a

warrant out for his arrest on drug charges, and that the U.S.

Marshals Service ("USMS") was responsible for the warrant. The

database indicated that Jones should be considered armed and

dangerous.

Sgt. O'Malley contacted the USMS, which informed him that

an arrest team would be assembled. O'Malley also contacted Drug

Enforcement Administration ("DEA") task-force agents Steven

Thibodeau and Paul Wolf. Agent Wolf had been part of the

investigation that led to Jones's arrest warrant, and he asked Sgt.

O'Malley to meet him at the hotel. Wolf and O'Malley obtained

passkeys to Rooms 317 and 318. Sgt. O'Malley positioned himself in

Room 317, while Wolf waited in his car in a nearby parking lot for

the team of U.S. Marshals and DEA agents to arrive. Sgt. O'Malley

had a view of Room 318's door through the peephole in the door of

Room 317.

At a certain point, Sgt. O'Malley observed a man and a

woman leave Room 318 and drive away in a car. Sgt. O'Malley

radioed Agent Wolf, who followed the car and observed it circle

around a parking lot, without stopping, before returning to the

hotel. Sgt. O'Malley saw the man emerge from the car and reenter

Room 318; shortly thereafter, he heard an exuberant male voice

through the wall, counting from one to eight. Agent Wolf and Sgt.

-3-
O'Malley concluded that a drug transaction had likely taken place

during the short car ride.

Agent Wolf then joined Sgt. O'Malley in Room 317. Sgt.

O'Malley again observed a man and woman exit the room and drive

away in a car. Officers stopped the car in a nearby parking lot

and questioned its occupants. The man said he had been sent on a

short trip to the supermarket to buy cigarettes; he admitted that

Jones was indeed one of the persons in Room 318, and that Jones and

the other occupants were waiting for him to return. The man's cell

phone began to ring and rang every few minutes thereafter; the

officers did not allow the man to answer the cell phone.

In the meantime, several officers had assembled in a

parking lot adjacent to the hotel. This group of officers

included, among others, task-force agents Gregory Boucher, Stephen

Welsh, and Greg Bunch, and Chief Deputy U.S. Marshal John Cooper.

Concerned that the man's failure to answer his cell phone or return

to the hotel promptly would raise Jones's suspicions, Agent Wolf

and Marshal Cooper decided to enter Room 318. Using the passkey

provided by the hotel manager, a six-member team opened Room 318's

door without knocking, entered with weapons drawn, and shouted,

"Police!" A number of additional officers followed closely behind.

The officers found four men inside and handcuffed them.

Several of the officers also saw marijuana in plain view on a

living room table, and smelled marijuana smoke in the air. Agent

-4-
Welsh detained and handcuffed a man sitting on the living room

couch who identified himself as Jones. Jones was then placed into

one of the bedrooms with Agents Boucher and Bunch. Boucher read

Jones his Miranda rights from a standard DEA "rights card," pausing

periodically to ask Jones if he understood. Jones responded in the

affirmative. Jones did not appear nervous or intoxicated. Agent

Boucher asked Jones if the officers could search the suite, but did

not tell him he had the right to refuse consent; Jones responded

that they could perform the search.

During this period, Marshal Cooper took one of the other

individuals from the bathroom, where he had been temporarily

detained on the floor, to the kitchenette. Marshal Cooper

testified that, before placing the detainee in the kitchenette, he

conducted what he termed a "security sweep" to make sure there were

no weapons within the detainee's reach. While looking inside a

kitchen cabinet, Marshal Cooper discovered a rice box without a

lid. He looked inside and saw what appeared to be packages

containing drugs of some kind. Marshal Cooper also saw pills in a

baggie on a shelf in the cabinet, but did not seize these or the

drugs in the rice box. Marshal Cooper then decided it would not be

a good idea to leave the detainee there, and instead seated him on

the closed toilet lid in the bathroom. Sometime later, Agent

Welsh, who had left Room 318 briefly and taken one of the other

detainees into Room 317 for questioning, returned to Room 318 and

-5-
conducted a search of the kitchenette. Agent Welsh found and

seized the rice box and the baggie; the baggie contained ecstacy

and the rice box contained heroin.

A grand jury indicted Jones on one count of conspiracy to

distribute and possess with intent to distribute one kilogram or

more of a mixture or substance containing heroin, and a mixture or

substance containing cocaine base, in violation of 21 U.S.C.

§§ 841(a)(1) and 846. Jones moved to suppress the fruits of the

search of Room 318, claiming it was illegal because the officers

entered the room without knocking and announcing their presence,

because any consent to search given by him was not knowing and

voluntary, and because Marshal Cooper's search of the kitchen

cabinet was not incident to a lawful arrest or part of a protective

sweep. After a hearing at which several of the officers testified,

the magistrate judge issued a recommendation that the motion to

suppress be denied. He reasoned that (1) exigent circumstances

justified the no-knock entry into Room 318; (2) Jones freely and

voluntarily consented to the search of Room 318; and (3) Marshal

Cooper's discovery of the heroin and ecstacy occurred after Jones

had given his consent, and was lawful in any event as part of a

protective sweep. Over Jones's objection, the district court

adopted the recommendation. Jones again objected at trial when the

items seized from Room 318 were introduced into evidence.

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 At trial, the Government called a number of witnesses.

According to the testimony presented, Jones would acquire heroin,

cocaine, and cocaine base (a.k.a. "crack") from a supplier in New

York. Evidence was also presented showing that Jones coordinated

the distribution of these drugs to consumers in southern Maine

through a number of sellers, including most importantly Nick Foster

and John Thomas. On June 23, 2006, the jury convicted Jones as

charged in the indictment.

In the Presentence Report ("PSR"), the probation officer

calculated Jones's Guidelines Sentencing Range ("GSR") to be 188 to

235 months. The PSR took into account the quantum of different

drugs seized during the search of Room 318 and from Jones's

coconspirators and customers, and that which coconspirators

admitted to having distributed on behalf of the conspiracy.

Ultimately, the PSR attributed to Jones 3,658 grams of heroin, 25.8

grams of crack cocaine, and 0.8 grams of powder cocaine, for a

total of 4,174.16 kilograms of marijuana equivalent. This put

Jones's base offense level at thirty-four. See U.S.S.G. § 2D1.1

(c)(3). The PSR also determined that Jones had supervised two of

the coconspirators -- Foster and Thomas -- and accordingly

recommended a two-level upward adjustment. See id. § 3B1.1(c).

Over Jones's objection, the sentencing court adopted the PSR's

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recommendations.2 After explaining its reasoning, the court

sentenced Jones at the bottom of the applicable Guidelines range to

188 months' imprisonment. Jones appealed.

II. Discussion

A. The Motion to Suppress

Jones argues that the district court should have

suppressed the fruits of the search of Room 318, raising the same

three challenges he raised before the magistrate judge. After

noting the standard of review, we address these challenges in turn.

1. Standard of Review

When considering challenges to a district court's denial

of a motion to suppress, we ordinarily review findings of fact for

clear error and conclusions of law de novo. United States v.

Meada, 408 F.3d 14, 20 (1st Cir. 2005). Under clear error review,

"we may reverse only if the record, read as a whole, gives rise to

a 'strong, unyielding belief that a mistake has been made.'" C.G.

ex rel. A.S. v. Five Town Cmty. Sch. Dist., 513 F.3d 279, 285 (1st

Cir. 2008) (quoting Lenn v. Portland Sch. Comm., 998 F.2d 1083,

1087 (1st Cir. 1993)).

2. The No-Knock Entry

Renters of hotel rooms generally benefit from the same

Fourth Amendment right to be free from unreasonable searches and

2
The sentencing judge was not the same as the judge presiding
over pretrial and trial proceedings.

-8-
seizures as they would if they were at home. See United States v.

Rengifo, 858 F.2d 800, 805 (1st Cir. 1988) (citing Stoner v.

California, 376 U.S. 483, 486-87 (1964)).3 While police acting

pursuant to a warrant must ordinarily knock and announce their

presence before entering a dwelling to which Fourth Amendment

protections apply, see United States v. Hawkins, 139 F.3d 29, 32

(1st Cir. 1998), a "no-knock" entry will be deemed reasonable if

the police "have a reasonable suspicion that knocking and

announcing their presence, under the particular circumstances,

would be dangerous or futile, or that it would inhibit the

effective investigation of the crime by, for example, allowing the

destruction of evidence." United States v. Boulanger, 444 F.3d 76,

81 (1st Cir. 2006) (quoting Richards v. Wisconsin, 520 U.S. 385,

394 (1997)).

Importantly, however, the Supreme Court has recently

clarified that even if the police violate the Fourth Amendment by

failing to knock and announce their presence in circumstances in

which a no-knock entry is unwarranted, such violation, standing

alone, will not compel the exclusion of evidence seized as a result

of their entry into the dwelling. See Hudson v. Michigan, 547 U.S.

3
We assume, as did the district court, that Jones was entitled to
the protections of the Fourth Amendment while in Room 318. He had
rented the suite, in his name, for a three-week stay. Moreover,
the mere fact that the hotel manager gave the officers a keycard to
enter Room 318, thereby manifesting her consent for officers to
enter the suite, did not divest Jones of his reasonable expectation
of privacy. See Stoner, 376 U.S. at 490.

-9-
586, 594 (2006). In the wake of Hudson, we have recognized the

absence of an exclusionary rule for knock-and-announce violations,

provided the police have a valid arrest warrant or some other valid

grant of authority to enter the target's residence, and reason to

believe the target is inside. See United States v. Pelletier, 469

F.3d 194, 199 (1st Cir. 2006) (also noting that, "[g]enerally

speaking, this principle extends to the target's hotel or motel

room").

The district court's decision denying Jones's motion to

suppress, which predates both Hudson and Pelletier, addresses the

merits of Jones's challenge to the no-knock entry, ultimately

finding the entry justified because of the risk to the officers'

safety and that drug evidence might be destroyed. In light of

Hudson and Pelletier, we need not go so far. The remedy Jones

seeks is the suppression of the fruits of the search of Room 318.

He does not challenge the validity of the arrest warrant against

him, nor the officers' professed belief that he was in Room 318 at

the time. In any event, we find that such belief was objectively

reasonable based on the following evidence credited by the district

court: the hotel manager told officers that Jones had rented Room

318 for a three-week period, and the man detained in the parking

lot told officers that Jones was then inside the suite. The arrest

warrant and the reasonable belief Jones was inside Room 318 gave

the officers the authority to enter. See id. (citing Payton v. New

-10-
York, 445 U.S. 573, 603 (1980)). Even if they violated the Fourth

Amendment by failing to knock and announce their presence before

going in, the motion to suppress was not the appropriate vehicle

for Jones to obtain the remedy he seeks. See Hudson, 547 U.S. at

597-99 (suggesting other avenues of relief). We thus proceed to

Jones's next assignment of error.

3. The Validity and Scope of Jones's Consent

It is axiomatic that officers must ordinarily procure a

warrant before searching a locale to which Fourth Amendment

protections apply. See Groh v. Ramírez, 540 U.S. 551, 558-59

(2004). Several exceptions to this requirement exist, however, one

of which is valid consent to search by someone having authority to

give consent. See United States v. Pérez-Montañez, 202 F.3d 434,

438 (1st Cir. 2000). In order for consent to be valid, the

Government must prove by a preponderance of the evidence that the

consenting party gave it freely and voluntarily. United States v.

Marshall, 348 F.3d 281, 285-86 (1st Cir. 2003). The assessment of

whether consent is free and voluntary is a question of fact that

requires an examination of the totality of the circumstances

surrounding the relevant transaction between law-enforcement

authorities and the consenting party. Pérez-Montañez, 202 F.3d at

438. The district court's factual findings relating to the

validity of the consent are reviewed for clear error. See

Marshall, 348 F.3d at 284.

-11-
 Although the officers in this case had a valid warrant to

arrest Jones, they did not have a warrant to search Room 318 when

they decided to enter the suite. The district court found the

search of Room 318 constitutionally permissible nonetheless,

because Jones had given his consent freely and voluntarily. Agent

Boucher testified that he advised Jones of his Miranda rights, and

that Jones acknowledged that he understood them. See United States

v. Kimball, 741 F.2d 471, 474 (1st Cir. 1984) (giving of Miranda

rights a factor to consider in totality of circumstances). Agent

Boucher also testified that Jones did not appear to be intoxicated,

that he seemed to understand what was going on, and that neither

Agent Boucher nor any other officer extracted Jones's consent

through threats or promises.4 See Pérez-Montañez, 202 F.3d at 438

(threats, intimidation, and coercion are factors to consider in an

analysis of the totality of the circumstances). The district court

found this testimony to be a credible account of what actually

happened. We see no reason to disagree.

Jones argues, however, that three additional factors

should lead us to overturn the district court's finding that his

4
Agent Wolf, who took over the questioning after Agent Boucher,
also testified that Jones was calm and did not seem to be under the
influence of alcohol or drugs.

We give no weight to Jones's halfhearted intimation that he may
have been under the influence of marijuana since the officers, upon
entering Room 318, discovered evidence of marijuana having recently
been smoked by at least one of the suite's several occupants. See
United States v. Luciano, 329 F.3d 1, 8 (1st Cir. 2003).

-12-
consent was free and voluntary. First, he claims his consent could

not have been free or voluntary because neither Agent Boucher nor

any other officer advised him of his right not to cooperate. This

argument is unavailing. We have repeatedly held that the failure

to advise a defendant of his right to refuse consent does not

automatically render such consent invalid. See id. at 438 (citing

Schneckloth v. Bustamonte, 412 U.S. 218, 234 (1973)); United States

v. Barnett, 989 F.2d 546, 555 (1st Cir. 1993); see also United

States v. Drayton, 536 U.S. 194, 206-07 (2002) (no presumption of

invalidity where person consents without explicit notification of

right to refuse). In the relatively calm environment of the

bedroom in which Jones had been placed, Agent Boucher read Jones

his Miranda rights, and Jones acknowledged that he understood each

of them, agreed to cooperate, and was not apparently under the

influence. The district court did not clearly err in finding that

Jones appreciated the significance of giving consent despite the

officers' failure to advise him of his right to withhold such

consent.

Second, Jones contends that, while none of the officers

applied overt coercion on him to induce his consent, the

circumstances should be regarded as inherently coercive: some ten

to fifteen government agents, guns drawn, entered his hotel suite

without knocking, handcuffed him, placed him in a separate room,

and proceeded to interrogate him. See Barnett, 989 F.2d at 555

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(one factor to be considered in totality of circumstances is

"whether permission to search was obtained by coercive means or

under inherently coercive circumstances"). This argument also

fails. As we have observed, "[a]lthough sensitivity to the

heightened possibility of coercion is appropriate when a

defendant's consent is obtained during custody, 'custody alone has

never been enough in itself to demonstrate . . . coerced . . .

consent to search.'" Id. (citation omitted) (second and third

alterations in original) (quoting United States v. Watson, 423 U.S.

411, 424 (1976)). Upon the officers' entry, Jones and his

associates surrendered to them without a struggle and no shots were

fired. Jones was then handcuffed and made to sit on the edge of a

bed. There is no indication in the record that Jones was

mistreated or placed in an uncomfortable position, or that Agent

Boucher, Agent Bunch, or anyone else brandished a weapon, made

threatening gestures, or spoke threatening words during the

interrogation. Considering the several countervailing factors

outlined above, we find that the circumstances here were not so

inherently coercive as to render Jones's consent unknowing or

involuntary, even when considered together with the officers'

failure to advise Jones of his right to refuse consent.

Third, Jones claims that any valid consent he may have

given was confined to the bedroom in which he had been placed, and

did not extend to the kitchenette or the other rooms of the hotel

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suite. A search justified by consent will be deemed reasonable as

long as it does not exceed the scope of the consent given. See

United States v. Turner, 169 F.3d 84, 87 (1st Cir. 1999). When

determining the scope of consent, we apply a test of objective

reasonableness: "'[W]hat would the typical reasonable person have

understood by the exchange between the officer and the subject?'"

United States v. Meléndez, 301 F.3d 27, 32 (1st Cir. 2002) (quoting

Florida v. Jimeno, 500 U.S. 248, 251 (1991)). This inquiry

requires an examination of the "overall context," including

"contemporaneous police statements and actions." Turner, 169 F.3d

at 87. As in past cases, we state no view on whether the scope of

a given instance of consent is reviewed de novo or merely for clear

error, as in the circumstances of the present case we would affirm

under either standard. See Marshall, 348 F.3d at 286 (citing

Meléndez, 301 F.3d at 32 (noting the split in our sister circuits

on this question)); Turner, 169 F.3d at 87 n.4 (same).

Agent Boucher testified that he asked Jones for consent

to search the "motel room." Jones responded with a simple "yes."

As noted above, Room 318 was actually a suite with two bedrooms, a

kitchenette, a living room, and a bathroom. Although Agent Boucher

did not specify which of these rooms he was seeking consent to

search, Jones did not expressly confine his consent to the bedroom.

The district court found that Agent Boucher had "made it reasonably

clear that he sought consent to search the entire suite, not just

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the bedroom." Jones, 2006 WL 763124, at *11 n.11. We agree. An

objective observer of the transaction between Agent Boucher and

Jones would have understood the term "motel room" to encompass the

whole of Room 318, and not just the bedroom. This is especially

true considering that the officers had already viewed marijuana on

the living room table, in close proximity to the couch on which

Jones was sitting when they entered, and smelled marijuana smoke in

the air; it is reasonable to expect that Jones was aware that the

officers noticed this evidence of recent drug use. In this

context, a reasonable person in Jones's position would have

regarded Agent Boucher as requesting consent to search the whole

suite for additional drugs.

As such, the district court did not err in concluding

that Jones's consent extended to the entire suite, and it was not

unreasonable for Agent Boucher and the other officers to conduct a

search of the other rooms for drugs, including the kitchen cabinet.

Cf. Meléndez, 301 F.3d at 33 (dismantling and looking inside a

speaker did not exceed the scope of consent to search a room, as

"[t]he speaker was located in the area that [the consenting party]

had allowed the officers to search, and was a place in which the

officers could have reasonably suspected drugs to be hidden").

Having dismissed Jones's challenge to his consent to search, we

turn to his third and final assignment of error with respect to the

denial of his suppression motion.

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 4. Marshal Cooper's Search of the Kitchen Cabinet

Jones argues that Marshal Cooper's search of the kitchen

cabinet, and consequent discovery of drugs therein, was not

justified as a protective sweep or under any other exception to the

warrant requirement. The district court examined the timeline as

established through the testimony of the various officers at the

suppression hearing, and found that the Government had established

by a preponderance of the evidence that Marshal Cooper actually

discovered the drugs in the kitchen cabinet after Jones had given

his consent to Agent Boucher. We have reviewed the officers'

testimony and conclude that this finding was not clearly

erroneous.5 We briefly explain.

Agent Welsh and Marshal Cooper each testified that when

they entered Room 318, they saw marijuana in plain view on the

living room table. Agent Welsh testified that he immediately

detained and handcuffed Jones, who was sitting on the living room

couch. Jones was promptly taken into the bedroom, where Agent

Boucher began the process of questioning him; according to Agent

Boucher, the point at which Jones gave his consent was some ten to

fifteen minutes after the officers' initial entry into Room 318.

Agent Boucher then left the room and "advised a couple of the

5
With respect to the district court's analysis of the timing of
the consent, we apply the usual standard of review for factual
findings in a decision denying a motion to suppress -- that is,
clear error review. See Marshall, 348 F.3d at 284.

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agents that we in fact had consent from Mr. Jones to search the

motel room." Agent Wolf testified that he was one of those whom

Agent Boucher informed.

According to Marshal Cooper, during this period the other

officers detained Jones's associates and performed a quick scan of

the suite to make sure there were no hidden persons. Marshal

Cooper took responsibility for one of the detainees and initially

had him handcuffed and lying on the bathroom floor. Marshal Cooper

testified that, at this point, it occurred to him to announce to

the other officers that he had seen marijuana on the living room

table, in case they wanted to seek a search warrant. Marshal

Cooper continued: "One of the officers told me at that point that

it's okay, they already had consent." Sometime soon thereafter,

when Marshal Cooper was satisfied that the suite had been secured,

he attempted to relocate the detainee to the kitchenette, where he

searched the cabinet and found what he believed to be drugs. The

district court credited Marshal Cooper's testimony and found that

the search occurred after Jones gave his consent.6

We see nothing in the record that would lead us to

quarrel with this finding, much less to reach a "strong, unyielding

6
At a later point in Marshal Cooper's testimony, the Government
asked again whether Marshal Cooper had learned of Jones's consent
before attempting to relocate the detainee to the kitchenette.
Marshal Cooper responded, "I'm not sure," but immediately clarified
that "I would think it was after." The district court obviously
credited this clarification. It did not clearly err in doing so.

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belief that a mistake has been made," as is required under the

applicable standard of review. C.G. ex rel. A.S., 513 F.3d at 284

(citation and internal quotation marks omitted). Because Marshal

Cooper's search of the kitchen cabinet occurred after Jones gave

consent and -- as affirmed above -- the scope of the consent

extended to the kitchen cabinet, it was constitutionally valid.

Given this conclusion, we need not state a view on the district

court's alternative ruling that the search was lawful in any event

by virtue of the "independent source" doctrine.

Finding no infirmity in the denial of Jones's suppression

motion, we proceed to examine the challenges relating to his

sentence.

B. Sentencing

Jones raises two challenges to his sentence. First, he

contends that the sentencing court erred in its calculation of the

quantity of drugs attributable to him, which accounted for a base

offense level of thirty-four. See U.S.S.G. § 2D1.1(c)(3). Second,

he argues that the sentencing court erred in applying a further

two-level upward adjustment to his base offense level for his role

as an organizer, leader, manager, or supervisor of other

participants in the drug-selling enterprise. See id. § 3B1.1(c).

We again note the applicable standard of review, and then consider

these two challenges seriatim.

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 1. Standard of Review

A sentencing court's findings of fact -- including its

calculation of drug quantity -- are reviewed for clear error;

questions of law involved in sentencing determinations are reviewed

de novo. United States v. Ramos-Paulino, 488 F.3d 459, 463 (1st

Cir. 2007); United States v. Laboy, 351 F.3d 578, 582, 585 (1st

Cir. 2003). "A question about whether the evidence is sufficient

to support a particular guideline determination is a question of

law and, therefore, engenders de novo review." Ramos-Paulino, 488

F.3d at 463.

2. The Drug-Quantity Calculation

In determining drug quantity for purposes of calculating

a defendant's base offense level under the Guidelines, the

sentencing court may attribute to the defendant "all reasonably

foreseeable quantities of contraband that were within the scope of

the criminal activity that he jointly undertook." U.S.S.G. § 1B1.3

cmt. n.2(ii). "Thus, a drug dealer who engages in criminal

activity with others to further their collective interests may be

held liable for the quantities of drugs sold by his partners, if

those sales were a reasonably foreseeable consequence of the

jointly undertaken actions." Laboy, 351 F.3d at 582. If the

quantity of drugs actually seized does not reflect the full scale

of the offense, the sentencing court may make a reasonable estimate

of the total quantity involved. See id. at 584 (citing U.S.S.G.

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§ 2D1.1 cmt. n.12). The Government must prove drug quantity by a

preponderance of the evidence. Id. at 582. We will uphold the

sentencing court's estimate as long as it is reasoned and finds

support in the record. See id. at 583-84.

In adopting the PSR's recommendation, the sentencing

court found Jones responsible for 4,174.16 kilograms of marijuana

equivalent.7 This figure included 0.8 grams of powder cocaine

(0.16 kilograms of marijuana equivalent) seized from Room 318, and

25.8 grams of crack cocaine (516 kilograms of marijuana equivalent)

estimated from what coconspirator Thomas told federal agents he had

introduced into the southern Maine market as part of the

conspiracy.8

The PSR estimated the remaining amount as 3,658 grams of

heroin (3,658 kilograms of marijuana equivalent). This quantity

7
As there are different controlled substances involved, the
probation office converted each of the drugs into its "marijuana
equivalent," added the quantities, and looked up the total in the
drug quantity table in U.S.S.G. § 2D1.1(c). See U.S.S.G. § 2D1.1
cmt. n.10(B).
8
Thomas told agents that, on at least three occasions, he went to
New Jersey and brought back "hundreds" of vials of crack cocaine to
Maine. The PSR estimated conservatively that Thomas had made three
trips and brought back 100 vials per trip, at an average of 0.086
grams of crack cocaine per vial, for a total of 25.8 grams.

For unknown reasons, the PSR did not recommend that Jones's
sentence reflect other drugs it determined had been seized from
Foster, Thomas, customers including a confidential informant, and
from Room 318, as well as a quantity of heroin a customer named
William Zinn admitted to having purchased from Jones. These
amounted to 2.909 additional grams of crack cocaine and 15.512
grams of heroin.

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was based mainly on the trial testimony of Foster that he received

heroin from Jones and Thomas and distributed twenty bricks of

heroin per week for twelve weeks from April to June 2005, and sixty

bricks per week for twelve additional weeks from July to September

2005, until Foster was arrested. A brick of heroin consists of

fifty bags at 0.059 grams each, for a total of 2,832 grams

distributed by Foster. The PSR then determined that Jones

continued in the conspiracy after the arrests of Foster and Thomas

on September 19, 2005, until Jones's own arrest at the TownePlace

Suites fourteen weeks later on December 29, 2005. The PSR

continued:

However, as there is no evidence of the
quantities distributed during this time frame
and the impact . . . the arrest of [Jones's]
co-defendant's [sic] had on his ability to
continue to distribute large amounts (60
bricks a week), the Probation Office has used
the conservative amount of 20 bricks a week.

Twenty bricks per week for the fourteen weeks from September 19,

2005, to December 29, 2005, produced a total of 826 grams. Added

to the estimate of the amount Foster distributed for the

conspiracy, the total came to 3,658 grams of heroin, or 3,658

kilograms of marijuana equivalent.

This amount added to the 516.16 kilograms of marijuana

equivalent in crack and powder cocaine produced a grand total of

4,174.16 kilograms of marijuana equivalent. The sentencing court

found the facts presented in the PSR to be credible, and opined

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that "in all likelihood the amounts were probably greater than that

set forth in the [PSR] and I find those quantities." In other

words, the sentencing court found Jones responsible for 4,174.16

kilograms.

In challenging this finding, Jones argues that the real

weight attributable to him should be 2,176.20 kilograms of

marijuana equivalent; he explained how he reached this figure in

his brief and again at oral argument. Jones also alleges that the

826 grams the PSR attributed to him for September to December 2005

is "pure speculation." Jones's estimated quantity -- 2,176.20

kilograms -- would result in a base offense level of thirty-two.

U.S.S.G. § 2D1.1(c)(4).

Yet even if we assume that Jones has provided us and the

sentencing court with a plausible estimate of the drug quantity

attributable to him, he cannot prevail. This is because we find

the PSR's estimate also to be generally plausible and that it

enjoys a preponderance of record support primarily in the trial

testimony of Foster. The sentencing court was therefore within its

discretion when it chose the PSR's estimate over Jones's estimate.

See United States v. Marks, 365 F.3d 101, 105 (1st Cir. 2004).

We say "generally" plausible because we do agree with

Jones in one respect. We are dissatisfied with the PSR's poorly

reasoned conclusion that Jones was responsible for 826 grams of

heroin (826 kilograms of marijuana equivalent) distributed between

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September and December 2005, a finding for which the PSR conceded

"there is no evidence" but that the sentencing court nonetheless

adopted. Yet we need not decide whether such adoption was clearly

erroneous, because any error that may have occurred was harmless.

The threshold quantity that triggers a base offense level of

thirty-four -- that which Jones received -- is 3,000 kilograms of

marijuana equivalent. U.S.S.G. § 2D1.1(c)(3). Even if we

subtracted 826 from 4,174.16, the total found by the sentencing

court, we would still be left with 3,321.16 kilograms, and Jones

would receive the same base offense level. Cf. United States v.

Hernández, 218 F.3d 58, 71 (1st Cir. 2000) (finding determination

of drug quantity harmless, even if erroneous, as it did not affect

defendant's sentence). We move on to Jones's final assignment of

error.

3. The § 3B1.1(c) Two-Level Increase

The Guidelines provide for an upward adjustment to a

defendant's base offense level due to the relative importance of

his role in the offense. United States v. Cruz, 120 F.3d 1, 3 (1st

Cir. 1997) (en banc) (citing U.S.S.G. § 3B1.1(c)). To qualify for

a § 3B1.1(c) upward adjustment, the evidence must show that the

defendant "exercised control over, organized, or was otherwise

responsible for superintending the activities of" at least one

other participant in a criminal activity on at least one occasion.

United States v. García-Morales, 382 F.3d 12, 19 (1st Cir. 2004)

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(quoting Cruz, 120 F.3d at 3); accord United States v. Voccola, 99

F.3d 37, 44 (1st Cir. 1996) (single directed transaction is

enough). While this showing is not a particularly onerous one to

make, it is not enough that the defendant merely controlled,

organized, or managed criminal activities, but must instead

control, organize, or manage criminal actors. Ramos-Paulino, 488

F.3d at 464.

After hearing the parties' arguments, the sentencing

court found that the Government had satisfied the requirements of

§ 3B1.1(c) by a preponderance of the evidence:

I've taken into account the evidence in this
case including the nature of this offense, the
fact that [Jones] was directing his runners,
the fact that I believe he was given a greater
share of the monies involved in this
conspiracy, the fact that he was the key
planner and organizer of the conspiracy, the
others were basically runners for him, and his
degree of control and authority and I think
the two level enhancement is modest in this
case based on my understanding of the evidence
. . . .

Jones takes issue with this determination. He argues that, while

he supplied his alleged accomplices with drugs to sell, there was

no evidence presented at trial to show that he recruited any of

them, that he collected a disproportionate share of the proceeds of

the drug-selling venture, or that he exercised any control or

authority over the accomplices' activities. Instead, a drug

supplier in New York oversaw the venture.

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 This argument is unavailing. There is an abundance of

evidence in the record -- including in the trial testimony of

Foster and several federal agents -- to support the sentencing

court's finding that Jones coordinated the actions of a number of

drug sellers including, most importantly, Thomas and Foster. Jones

essentially controlled the supply of the drugs to these persons,

and determined to a considerable extent when and where they would

make deliveries. This is more than sufficient to satisfy the

Government's modest burden under § 3B1.1(c). In spite of Jones's

assertions to the contrary, § 3B1.1(c) does not require a showing

that he recruited accomplices or received a disproportionate share

of the proceeds. The sentencing court therefore committed no error

in finding Jones to be an organizer, leader, manager, or supervisor

of at least one other criminal actor, and the two-level enhancement

was justified. Jones's sentence stands.

III. Conclusion

For these reasons, we affirm Jones's conviction and

sentence.

Affirmed.

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