United States v. Razo

United States Court of Appeals
For the First Circuit

No. 13-2176

UNITED STATES OF AMERICA,

Appellee,

v.

MARK RAZO,

Defendant, Appellant.

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

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

Lynch, Chief Judge,
Howard and Barron, Circuit Judges.

Jeffrey M. Silverstein, with whom Law Office of Jeffrey M.
Silverstein, P.A., was on brief, for appellant Mark Razo.
Margaret D. McGaughey, Assistant United States Attorney,
with whom Thomas E. Delahanty, II, United States Attorney, was on
brief, for appellee.

April 1, 2015
 BARRON, Circuit Judge. At his trial in the federal

District of Maine, Mark Razo faced a number of charges relating to

drug trafficking. After his conviction on all counts, he received

a sentence of 300 months in prison. Razo now asserts various

alleged errors both at trial and at sentencing. Finding none that

require reversal, we affirm both the conviction and the sentence.

I.

Razo was charged with one count of conspiracy to commit

a drug trafficking offense under 21 U.S.C. §§ 841(a)(1) and 846 and

three counts of criminal use of a communications facility to

facilitate a trafficking offense under 21 U.S.C. §§ 843(b) and (d).

The jury convicted Razo on all counts. The District Court then

sentenced Razo to 300 months of imprisonment on the conspiracy

count. The judge also sentenced Razo to 48 months of imprisonment

on the three counts of criminal use of a communications facility.

That sentence was to be served concurrently with Razo's sentence

for the conspiracy count.

This appeal followed. Razo challenges his conspiracy

conviction and sentence under the Confrontation Clause. He also

brings challenges under the Sentencing Guidelines and Alleyne v.

United States, 133 S. Ct. 2151 (2013). Finally, he challenges as

improper both the use at trial of certain recorded phone calls and

venue in the District of Maine. We discuss the facts relevant to

each of the these challenges in the course of our analysis.

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 II.

Razo's primary challenge arises under the Confrontation

Clause, which provides that "[i]n all criminal prosecutions, the

accused shall enjoy the right . . . to be confronted with the

witnesses against him." U.S. Const. amend. VI. Razo contends to

us, as he did below, that the Clause bars the admission of a

portion of the testimony of a state chemist, Amy Johnson.

At trial, Johnson testified about the laboratory analysis

she performed on a substance seized from one of Razo's co-

conspirators, Blanca Ortiz. Johnson testified that her analysis

confirmed the substance was pure methamphetamine. And her

testimony about the methamphetamine's purity was key to the jury's

finding that the conspiracy involved 50 grams of pure

methamphetamine. Moreover, the District Court relied on this jury

finding at sentencing in finding Razo guilty of an aggravated drug

trafficking offense under 21 U.S.C. § 841(b)(1)(A), which carries

a statutory maximum of life.

Razo's Confrontation Clause challenge focuses solely on

the portion of Johnson's testimony that concerned a "known

standard" methamphetamine sample that the state crime lab used to

create a reference point for comparison with seized evidence. The

state crime lab annually received that sample from a private

manufacturer, the Sigma Chemical Company. Members of the crime lab

then analyzed the sample to confirm that the lab's "reference

-3-
library" accurately reflected the properties of the known standard

sample.

Specifically, Razo points to the part of Johnson's

testimony in which she states that the state crime lab relied on

the manufacturer's assurance that the known standard sample was

100-percent pure. And Razo also points to the part of Johnson's

testimony acknowledging that, after testing the seized substance,

she compared the results of that testing to results generated

through analysis by others at the state crime lab of the known

standard sample Sigma had supplied.

Razo thus argues that, contrary to the Confrontation

Clause, Johnson's testimony relied on hearsay statements arising

out of the analysis and production of that known standard sample,

even though the source (or sources) for those statements were not

made available for cross-examination. And to support that

challenge, Razo relies on the line of authority that begins with

Crawford v. Washington, 541 U.S. 36 (2004).

In Crawford, the Supreme Court held that the

Confrontation Clause applies to "testimonial" statements, whether

made in or out of court. That category, Crawford explains,

includes "ex parte in-court testimony or its functional equivalent

-- that is, material such as affidavits, custodial examinations,

prior testimony that the defendant was unable to cross-examine, or

similar pretrial statements that declarants would reasonably expect

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to be used prosecutorially." Id. at 51. As further support for

his argument, Razo also relies on two recent Supreme Court cases

that followed Crawford. There, the Court held that the admission

of government testimony about forensic tests performed by non-

testifying analysts violated the Confrontation Clause. See

Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009); Bullcoming v.

New Mexico, 131 S. Ct. 2705 (2011).

But, as the government points out, unlike in either

Melendez-Diaz or Bullcoming, the analyst who testified in this case

-- Johnson -- did personally perform the forensic testing on the

seized evidence and personally compared the results with the

analysis of the known standard sample. And while a portion of her

testimony did address lab work relating to the known standard

sample that she did not perform herself, we conclude that portion

presents no Confrontation Clause problem under Crawford or the

precedents that followed in its wake.1

In demarcating the bounds of the Confrontation Clause,

the Supreme Court has only confronted cases where the challenged,

out-of-court statements were made in the context of a particular

investigation. In this case, by contrast, as Johnson's testimony

1
In addressing that portion of Johnson's testimony, the
parties dispute whether Johnson was explaining the assumptions for
her own forensic work or testifying about the accuracy of the other
lab work on which she relied. But, as we explain, even if Johnson
went beyond merely describing the assumptions on which her own work
rested, there was still no Confrontation Clause violation.

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makes clear, the production of the known standard sample, like the

analysis of it, occurred prior to and without regard to any

particular investigation, let alone any particular prosecution.

The analysis and production instead merely established a general

reference point that could assist other analysts (like Johnson

herself) in determining the nature of evidence seized in connection

with a later investigation or prosecution. And while Johnson's

testimony recounted her reliance on this reference point, she did

not recount any express, formalized statements that arose from its

development.

We conclude that these distinctions, in this case, are

determinative. To be sure, at a general level, Johnson used the

reference point for "the purpose of establishing or proving some

fact at trial." Melendez-Diaz, 557 U.S. at 324. Her testimony

conveyed reliance on the lab's baseline purity standard and assumed

its reliability.

But the record does not show that Johnson described any

particular out-of-court statements. And, on this record, we

struggle to see how any out-of-court statements that Johnson

implicitly relied upon regarding the sample's purity can be

described as having been made with "a 'primary purpose' of

'establishing or proving past events potentially relevant to later

criminal prosecution.'" United States v. Cameron, 699 F.3d 621,

640 (1st Cir. 2012) (quoting Bullcoming, 131 S. Ct. at 2714 n.6).

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Any such statements would have been made when Sigma provided the

sample or when the state crime lab's analysts updated the

"reference library." Nothing in the Supreme Court's precedents

indicates that the term "testimonial" stretches to cover this

analyst's implicit reliance on such background, empirically-

verifiable statements or representations that were incorporated by

the crime lab for use, prospectively, in all future analyses the

lab would undertake. Cf. Melendez-Diaz, 557 U.S. at 311 n.1

(suggesting that "documents prepared in the regular course of

equipment maintenance may well qualify as nontestimonial records").

In consequence, in referencing work related to the known

standard sample, Johnson was not testifying about statements made

to establish or prove past "events," as has been true in each case

Razo invokes to support his challenge. She was instead testifying,

at most, about statements (if statements they can be called) that

had been used to establish a background reference point for future

testing of materials that then would be used to establish or prove

such events. And, of course, with respect to that testing, Johnson

herself performed it, testified about what she did, and was subject

to cross-examination. Thus, to the extent Johnson could be said to

have testified to the truth of any such statements by other

analysts, those statements were not testimonial under the Crawford

line of authority. See People v. Pealer, 985 N.E.2d 903, 907 (N.Y.

2013) ("The fact that the scientific test results and the

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observations of the technicians might be relevant to future

prosecutions of unknown defendants was, at most, an ancillary

consideration when they inspected and calibrated the machine.");

Commonwealth v. Dyarman, 73 A.3d 565, 574 (Pa. 2013)

("[C]alibration and accuracy certificates [for breathalyzer

machines] were not prepared for the primary purpose of providing

evidence in a criminal case, let alone for the primary purpose of

accusing appellant.").

The government adds that the Supreme Court's recent

fractured decision in Williams v. Illinois, 132 S. Ct. 2221 (2012),

supports this conclusion. And, without addressing how Williams may

or may not have changed the primary purpose test under the Crawford

line of authority, see, e.g., United States v. James, 712 F.3d 79,

95-96 (2d Cir. 2013), we agree.

Consistent with the test used by the plurality opinion in

Williams, statements arising from the analysis and production of

the known standard sample were "not prepared for the primary

purpose of accusing a targeted individual," Williams, 132 S. Ct. at

2243 (plurality opinion). And, to the extent that a testimonial

statement must be a "formalized statement[] bearing indicia of

solemnity," as Justice Thomas indicated in his concurrence in

Williams, id. at 2261 (Thomas, J., concurring), Razo also has not

alleged that any out-of-court statement arising from the analysis

or production of the sample so qualified.

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 For these reasons, we conclude the Confrontation Clause

did not require more than Johnson's presence. And so Razo's

challenge on this score fails.

III.

Razo also raises a number of objections to his sentence.

We review challenges to a district court's legal interpretations of

the Sentencing Guidelines de novo. United States v. Gonzalez, 609

F.3d 13, 20 (1st Cir. 2010). We review a district court's factual

determinations for clear error. Id. Challenges to the

reasonableness of a sentence are reviewed for abuse of discretion,

with respect to both procedural error and substantive

reasonableness. United States v. King, 741 F.3d 305, 307-08 (1st

Cir. 2014). Applying these standards of review as applicable, we

find that none of the challenges to Razo's sentence have merit.

A.

Razo first argues that the District Court erred by giving

one of his co-conspirators disparate -- and more favorable --

treatment. Razo rests this argument on the disparity in what is

known under the guidelines as the base offense level, as Razo was

assigned a higher one than his co-conspirator.

The base offense level is a key ingredient in the

calculation that a district court must make to determine the

recommended guidelines sentencing range for a defendant. Here, the

District Court determined that Razo's base offense level was 38

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while the base offense level of the co-conspirator in question,

Blanca Ortiz, was 34.

The District Court concluded Razo warranted the higher

base offense level. The District Court found that Razo, on the

basis of facts set forth in the pre-sentence report that the

probation office prepared, was responsible for an offense that

involved 1,789 grams of pure methamphetamine. By contrast, the

District Court found the other defendant, Ortiz, on the basis of

facts stipulated in her plea agreement, to be responsible for an

offense involving a drug quantity of 1,789 grams of impure

methamphetamine. See U.S.S.G. §§ 2D1.1(c)(1), (3) (2010). And the

District Court correctly concluded that the base offense level is

higher for an offense involving that amount of pure methamphetamine

than for an offense involving that amount of the drug when it is

not pure.

In treating Razo and Ortiz differently in this respect,

the District Court committed no error, even though Ortiz was

involved in the same conspiracy involving the same drugs. The

District Court explained that Ortiz entered into a plea agreement

two days before the prosecutor received the lab report detailing

the purity of the methamphetamine. Razo, by contrast, was

convicted after a trial in which that evidence of purity had been

introduced. The defendant's disparity argument therefore fails,

both because it was fully considered by the District Court and

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because the District Court reasonably attributed the basis for the

difference at issue to the fact that, due to Ortiz having pled, she

was sentenced on the basis of a different record than Razo. See,

e.g., United States v. Dávila-González, 595 F.3d 42, 50 (1st Cir.

2010) ("While avoidance of disparities among codefendants may be

considered, a party is not entitled to a lighter sentence merely

because his co-defendants received lighter sentences." (internal

quotation marks omitted)); United States v. Rodríguez-Lozada, 558

F.3d 29, 45 (1st Cir. 2009) (describing "material difference"

between defendants who pled guilty pursuant to plea agreements and

those who did not); United States v. Brandao, 539 F.3d 44, 65 (1st

Cir. 2008) (same).

B.

Razo next challenges the District Court's four-point

upward increase in his total offense level under the guidelines.

See U.S.S.G. § 3B1.1(a). The total offense level is calculated by

adding points for enhancements to the base offense level. To

justify the increase under U.S.S.G. § 3B1.1(a), the District Court

found that Razo was a leader in the conspiracy and that the

conspiracy involved five or more participants. See United States

v. Lucena-Rivera, 750 F.3d 43, 50 (1st Cir. 2014).

The District Court identified five conspirators who were

involved with an intercepted shipment of drugs to Iowa as well as

additional unnamed suppliers and retailers who had to be involved

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in this planned distribution. The record reveals evidence

sufficient to show the District Court did not clearly err in so

finding. See United States v. Carrero-Hernández, 643 F.3d 344, 352

(1st Cir. 2011).

Similarly, the record refutes Razo's contention that the

District Court erred in finding Razo had a leadership role in the

conspiracy. The District Court stated that it was "convinced

beyond any shadow of a doubt" of Razo's leadership role. The

District Court pointed specifically to Razo's role in organizing

the activities of the conspiracy and his role in the conspiracy's

hierarchy above Barry Diaz, a co-conspirator the District Court

described as having "stood over the actual distributors." We see

no basis for concluding that these factual findings are so lacking

in record support as to be clearly wrong. See United States v.

Tejada-Beltran, 50 F.3d 105, 111 (1st Cir. 1995).

C.

Razo also challenges his designation as a career offender

pursuant to U.S.S.G. § 4B1.1. To qualify as a career offender

under that guideline, a defendant must have at least two prior

felony convictions for a "crime of violence" or a controlled

substance offense. See U.S.S.G. § 4B1.1(a). The District Court

determined that Razo's prior convictions so qualified him. Razo

contends that one of his prior offenses, however, does not

constitute a "crime of violence" within the meaning of that

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guideline. And for that reason, he contends that the career

offender designation was erroneously applied.

The conviction in question is for violating section

2800.4 of California’s Vehicle Code.2 Section 2800.4 requires, as

a predicate, a violation of section 2800.1 of California’s Vehicle

Code. That statute criminalizes flight from a police officer.

Section 2800.4 then also requires -- as a necessary element -- that

"the person operating the pursued vehicle willfully drives that

vehicle on a highway in a direction opposite to that in which the

traffic lawfully moves upon that highway." Cal. Veh. Code

§ 2800.4.

Given the elements of section 2800.4, Razo's argument is

foreclosed by Sykes v. United States, 131 S. Ct. 2267 (2011). In

Sykes, the Supreme Court interpreted the Armed Career Criminal

Act's definition of a "violent felony." That definition is

consonant with the career offender guideline's definition of a

"crime of violence." United States v. Hart, 674 F.3d 33, 41 n.5

(1st Cir. 2012) ("The Sentencing Guidelines' term 'crime of

violence' and ACCA's term 'violent felony' are defined almost

identically. Accordingly, 'decisions construing one term inform

the construction of the other.'" (citations omitted)). Thus, if

2
Though the specific statute for the crime of conviction does
not appear in the record, Razo and the government point to section
2800.4 of California’s Vehicle Code in their briefs, which aligns
with the prior offense as described in the pre-sentence report.

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Razo was convicted of an offense that qualified as a "violent

felony" under Sykes, he was convicted of an offense that qualifies

as a "crime of violence" under the career offender guideline. And

Sykes shows that Razo was.

Sykes held that an Indiana statute that criminalized

vehicular flight from a police officer was a "violent felony." 131

S. Ct. at 2273, 2277. The California offense at issue here

criminalizes a particular type of vehicular flight that is even

more dangerous than the type criminalized by the Indiana statute

that Sykes concluded was a violent felony. Razo's conviction under

the California statute, therefore, necessarily qualifies as a crime

of violence under the career offender guideline. See United States

v. Davis, 773 F.3d 334, 343 (1st Cir. 2014) ("[T]he risk of

violence is inherent to vehicle flight." (quotation marks and

alteration omitted)).

As a fallback position, Razo argues that, even accepting

that his conviction under Section 2800.4 qualifies as a crime of

violence under the career offender guideline, the District Court

still imposed an unreasonably harsh sentence. But this claim, too,

fails.

At sentencing, a district court is instructed to consider

a variety of factors. See 18 U.S.C. § 3553(a). The District Court

acknowledged the sentence was stiff, but carefully applied the

factors that section 3553 requires the judge to consider. See

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Brandao, 539 F.3d at 65. And, after making the individualized

assessment of the circumstances of this particular defendant in

connection with those factors, the District Court varied downwards

from the recommended guidelines sentence. The District Court did

so based in part on the fact that Razo had only two prior

convictions for crimes of violence. There is thus no basis for

concluding that Razo's sentence was substantively or procedurally

unreasonable. See United States v. Martin, 520 F.3d 87, 96 (1st

Cir. 2008).

D.

Razo raises one other challenge to his sentence on the

conspiracy count. He contends the District Court subjected him to

a penalty range unauthorized by statute because the District Court

impermissibly used the statutory maximum from one part of a statute

and the mandatory minimum from another. Razo contends the District

Court was obliged to use the minimum and maximum set forth in the

same part of the statute and not to mix and match. And further,

Razo contends, had the District Court done as required, the

District Court would have had to have used a much lower statutory

maximum than it did.

Although we conclude there is no merit to Razo's

argument, given the facts of this case, it takes a bit of work to

explain why. And that is because the challenge rests on some

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shifts in the law of sentencing that occurred between the time of

trial and the time of sentencing in this case.

We begin with the basics. Razo was charged with

conspiracy to commit a trafficking offense under 21 U.S.C. §§ 846

and 841(a)(1). The penalties for a violation of 21 U.S.C.

§ 841(a)(1) are defined in the subsections of § 841(b)(1). Those

subsections provide for a default penalty range, § 841(b)(1)(C),

and then higher ranges for aggravated offenses when a certain

triggering quantity of drugs is involved, § 841(b)(1)(A), (B).

Against this statutory backdrop, the District Court took

the maximum of life from § 841(b)(1)(A) and used a minimum of zero

years rather than the much higher minimum from § 841(b)(1)(A). The

District Court resorted to this approach -- which Razo calls

"mix[ing] and match[ing]" -- because of a change in the state of

the law between trial and sentencing.

At the time of trial, First Circuit law based the

statutory minimum under 21 U.S.C. § 841 on the quantity of drugs

specifically attributable to the defendant, and the statutory

maximum on the quantity attributable to the conspiracy as a whole.

United States v. Colón-Solís, 354 F.3d 101, 103 (1st Cir. 2004).

At trial, the government had sought to trigger the higher penalty

range that § 841(b)(1)(A) established. To do so, the government

asked the jury to return a finding that the whole conspiracy

involved over 50 grams of pure methamphetamine, or 500 grams of a

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substance containing methamphetamine. The government sought that

jury finding because it was established at that time that the

lifetime maximum under § 841(b)(1)(A) could be triggered only when

the jury returned a finding -- as it did here -- as to what

quantity of drugs was encompassed within the entire conspiracy.

See Apprendi v. New Jersey, 530 U.S. 466, 491-92 (2000); United

States v. Correy, 570 F.3d 373, 377 (1st Cir. 2009).

At that time, however, there was no similar precedent

requiring a jury finding in order to apply the aggravated minimum

from § 841(b)(1)(A), which is 20 years with a qualifying prior

conviction. Instead, a judge could make a finding at the time of

sentencing about the quantity of drugs involved in the conspiracy

attributable to the individual defendant. See Colón-Solís, 354

F.3d at 103. And so long as the judge found that amount was large

enough, the minimum of 20 years (at least for a defendant with

Razo's criminal history) would apply. Thus, consistent with the

law at the time of trial, the government did not seek, and thus did

not receive, a jury finding on that issue.

But, by the time of sentencing, the state of the law had

changed as a result of Alleyne v. United States, 133 S. Ct. 2151

(2013). There, the Court held that a jury finding was required to

trigger a mandatory minimum. Id. at 2155. And while here, the

District Court concluded that Razo was subject to the maximum

sentence of life established under § 841(b)(1)(A) because of the

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jury's finding that the conspiracy involved 50 grams of pure

methamphetamine, the mandatory minimum for that provision could not

be similarly applied. That was because there was no jury finding

on the quantity of drugs individually attributable to Razo and

Alleyne had just held a jury finding was necessary for an element

that triggered a mandatory minimum. And so the judge applied no

minimum at all, which in this case was also the result that would

have obtained under the default penalty range in § 841(b)(1)(C).

Thus, even assuming Razo is correct to characterize the

District Court as having taken the minimum from § 841(b)(1)(C) and

the maximum from § 841(b)(1)(A), and even assuming doing so is not

permissible, see United States v. Ramírez-Negrón, 751 F.3d 42, 49

n.4 (1st Cir. 2014) (leaving open "whether this asymmetry [in

defining the applicable sentencing range] may remain after

Alleyne"), we agree with the government that there was no harm to

Razo. Here, the use of the maximum of life was supported by a jury

finding that the whole conspiracy involved at least 50 grams of

pure methamphetamine. And, Razo was not subjected to a minimum

that could possibly have caused him any harm, as the minimum

applied -- zero years -- was no minimum at all. And while the

district judge purportedly applied a statutory maximum of life,

that did not harm Razo either. The judge in fact imposed a

sentence below the statutory maximum that would have applied to a

defendant with Razo's criminal history under the default penalty

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range in § 841(b)(1)(C), and nothing indicates that the

"theoretical" maximum informed the sentencing determination. See

United States v. Robinson, 241 F.3d 115, 119 (1st Cir. 2001)

("[T]heoretical exposure to a higher sentence, unaccompanied by the

imposition of a sentence that in fact exceeds the

otherwise-applicable statutory maximum, is of no consequence.").

In any event, there also was overwhelming and

uncontradicted evidence to support the finding necessary to trigger

the higher minimum that was not used but that would apply under

§ 841(b)(1)(A) -- that the individual was responsible for at least

50 grams of pure methamphetamine. That evidence consists of Amy

Johnson's testimony that the drugs seized from Blanca Ortiz were of

that quantity and purity and Ortiz's testimony that those drugs

originated with one of Razo's suppliers and were transported by a

courier arranged and supervised by Razo. And, further, the

government presented phone records that revealed that Razo was

personally involved in planning the distribution of that shipment

of drugs through his co-conspirator Diaz. In fact, Razo points to

no evidence contradicting the drug quantities testified to at

trial, nor does he assert that he was responsible for a lower

quantity. Cf. United States v. Casas, 425 F.3d 23, 66 (1st Cir.

2005). Thus, a "reasonable jury necessarily would have found the

aggravating element beyond a reasonable doubt" even though it was

not asked to do so here. United States v. Pizarro, 772 F.3d 284,

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296 (1st Cir. 2014); see also United States v. Harakaly, 734 F.3d

88, 97 (1st Cir. 2013) ("Because the evidence of the triggering

drug quantity was overwhelming, we hold that the Alleyne error was

harmless beyond a reasonable doubt.").

For all of these reasons, we thus agree with the

government that if there was any error here, it was harmless beyond

a reasonable doubt.3

IV.

Razo presents two remaining challenges. He first

contests the admission of certain recorded phone calls during

trial. He then contends that Maine was not a proper venue for the

trial. Neither challenge is persuasive.

A.

Razo objects to the use at trial of unspecified recorded

calls the government obtained through wiretaps during the

3
We need not confront Razo's claim that the District Court
erroneously used the statutory maximum of life imprisonment under
21 U.S.C. § 841(b)(1)(A) in applying the career offender guideline.
See U.S.S.G. § 4B1.1(b) (providing for an alternate base offense
level calculation for career offenders, determined from the
relevant statutory maximum, but applied only when higher than the
ordinary guidelines calculation). As we have already explained,
the District Court did not err in calculating Razo's ordinary base
offense level at 42, after including the four-point leadership
enhancement. This base offense level was determined based on the
quantity and type of drug involved in the offense, see U.S.S.G.
§ 2D1.1(c)(1) (2010), and Razo's role in the offense, see U.S.S.G.
§ 3B1.1(a), without reference to any statutory maximum. And
because this base offense level was higher than the alternate base
offense level available under the career offender guideline, the
statutory maximum was not, in fact, used.

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investigation. Razo argues some of these calls were wrongly

admitted under Federal Rule of Evidence 801(d)(2)(E), which states

that the out-of-court statements of co-conspirators, made during

and in furtherance of the conspiracy, are not hearsay. See United

States v. Mitchell, 596 F.3d 18, 22 (1st Cir. 2010). Razo contends

that some of the recorded calls were admitted as co-conspirator

statements even though they were not made in furtherance of the

conspiracy in which he is charged with participating. He argues

these out-of-court statements were thus inadmissible under the

hearsay rule.

Razo does not specify, however, the non-qualifying calls

he has in mind, nor any that were in fact erroneously admitted.

And the government contends that in fact no such non-qualifying

calls were admitted. Absent Razo identifying the calls he believes

should have been excluded for falling outside the co-conspirator

exception, we must reject his challenge. United States v. Zannino,

895 F.2d 1, 17 (1st Cir. 1990) (holding that claims that are not

developed on appeal are waived).

B.

Razo's final challenge concerns venue. Razo was

incarcerated in California for the duration of the conspiracy and

was not physically present in Maine for any of these offenses. He

thus argues the government cannot establish venue in Maine.

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 Absent certain exceptions not relevant here, the

government must prosecute an offense in a district where the

offense was committed. Fed. R. Crim. P. 18. But when a crime

consists of distinct parts, taking place in different localities,

venue is proper wherever any part of that crime can be proved to

have taken place. United States v. Scott, 270 F.3d 30, 35 (1st

Cir. 2001).

When challenged, the government must prove the required

connection between the crime and the venue by a preponderance of

the evidence. United States v. Hall, 691 F.2d 48, 50 (1st Cir.

1982). If a defendant appeals a finding that venue was proper, we

review legal conclusions de novo and factual findings for clear

error. United States v. Salinas, 373 F.3d 161, 164 (1st Cir.

2004). And, "[f]or purposes of that review, we align the evidence

of record in the light most flattering to the venue determination."

Id.

The record shows that while Razo was incarcerated in

California, he used a contraband cell phone to coordinate a

trafficking operation with his co-conspirator Barry Diaz. The

record provides support for the fact that Diaz and Razo spoke on

the phone while Diaz was in Maine. The evidence further shows that

these calls addressed drug distribution in Maine, and that money

orders were sent from Diaz in Maine to Razo's contacts in

California. Thus, the evidence of Razo's co-conspirator's actions

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in Maine suffice to support the jury's venue determination. See

United States v. Cordero, 668 F.2d 32, 44 (1st Cir. 1981); see also

United States v. Uribe, 890 F.2d 554, 558 (1st Cir. 1989) ("As to

the conspiracy charge (count one), it is clear beyond peradventure

that venue was proper so long as any act in furtherance of the

conspiracy was committed in the district (even if a particular

conspirator was not himself physically present there).").

The record also provides sufficient support for finding

venue proper as to the three counts for criminal use of a

communications facility to facilitate a trafficking offense under

21 U.S.C. §§ 843(b), (d). Venue has to be proper for each count,

as "[t]he criminal law does not recognize the concept of

supplemental venue." Salinas, 373 F.3d at 164. But Razo concedes

Diaz used a communication facility in Maine for the calls

underlying all three counts. See Andrews v. United States, 817

F.2d 1277, 1279 (7th Cir. 1987) (finding a section 843(b) offense

"is committed both where the call originates and where it is

received"). And, further, the calls between Razo and Diaz

facilitated a drug conspiracy that involved the distribution of

drugs in Maine, for which venue in Maine was proper. See United

States v. Acosta-Gallardo, 656 F.3d 1109, 1122 (10th Cir. 2011)

(finding venue for a section 843 offense proper where venue is

established for the underlying trafficking offense). Thus, Razo's

venue challenge cannot succeed.

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 V.

Because we find no reversible error among Razo's many

challenges, the judgment of the District Court is affirmed.

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