United States v. Mills

United States Court of Appeals
For the First Circuit

No. 11-1249

UNITED STATES,

Appellee,

v.

JAMES MILLS,

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,
Boudin* and Thompson, Circuit Judges.

Richard L. Hartley, with whom Law Office of Richard Hartley
was on brief, for appellant.
Renée M. Bunker, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief, for
appellee.

March 13, 2013

*
Judge Boudin heard oral argument in this matter and
participated in the semble, but he did not participate in the
issuance of the panel's opinion. The remaining two panelists issue
this opinion pursuant to 28 U.S.C. § 46(d).
 THOMPSON, Circuit Judge. Based on tips from three

confidential informants -- we refer to them collectively as CIs,

and individually as CI-1, CI-2, and CI-3 -- federal agents in Maine

suspected that James Mills had been smuggling oxycodone into the

United States from Canada for some time, occasionally hiding the

pills in condoms inserted into his rectum. Armed with this and

other information, agents nabbed a suspiciously-acting Mills at the

border on a return trip from Canada. One thing led to another and

agents ended up handcuffing him to a hospital bed to monitor his

impending bowel movement. Eventually he passed a condom that

contained 104 80-milligram and 5 40-milligram oxycodone pills.

Mills later pled guilty to one count of importing

oxycodone. See 21 U.S.C. § 952(a). At sentencing, the district

court assigned him a drug quantity equivalent to 2,637 80-milligram

oxycodone pills based in part on uncharged conduct described by the

CIs, see U.S.S.G. § 1B1.3(a)(2), after having earlier denied his

motion to force the government to disclose the CIs' names. Relying

on this increased drug quantity rather than simply the 109 pills

found in the condom, the court sentenced Mills to 108 months in

prison, a sentence increase of seven years, Mills complains.

Mills now appeals, arguing that the court erred in

denying his disclosure motion and in calculating the drug quantity.

Having carefully considered his claims, we find no error and

affirm.

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 BACKGROUND

A. The Events Surrounding Mills' Arrest

At approximately 6:45 p.m. on September 11, 2009, Mills

entered the Lubec, Maine Port of Entry to the U.S. from Campobello

Island, Canada. Tipped off by a confidential informant, law

enforcement officers were awaiting Mills' arrival at the border.

Upon his entry, Mills was directed for secondary inspection where

Customs and Border Protection (CBP) and Immigration and Customs

Enforcement (ICE) officers noticed he was acting nervous, avoiding

eye contact, and breathing erratically. The officers asked Mills

where he had been earlier; he responded he was on Campobello Island

all day, but later changed his story after store receipts from St.

John, New Brunswick were found in his vehicle. When the agents

questioned him, Mills denied carrying pills, and a pat down and

partial body search revealed none. After he refused to consent to

an x-ray of his body, the agents took Mills to Calais Regional

Hospital for a monitored bowel movement. Mills was handcuffed to

a hospital bed and told he would stay handcuffed until he had to

use the bathroom. Meanwhile, ICE officers sought a warrant and

court order to conduct an x-ray and body cavity search.

The following morning at approximately 8:06 a.m., Mills

agreed to an x-ray and the results indicated he had a foreign

object in his alimentary canal. The ICE officers told Mills about

the x-ray results and he agreed to pass the object; at

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approximately 8:59 a.m. Mills passed a condom that contained 104

80-milligram pills and 5 40-milligram pills. CBP officers

processed the package as evidence and found the pills in Mills'

possession totaled 8.5 grams of Canadian-manufactured OxyContin, a

brand of the prescription drug oxycodone.1 A federal grand jury

returned a one-count indictment charging Mills with knowingly and

intentionally importing oxycodone into the U.S. on September 11,

2009, in violation of 21 U.S.C. § 952(a), and on January 7, 2010,

he plead guilty as charged without a plea agreement.

B. The Recommended Sentence and Accompanying Evidence

At the sentencing stage, the only real issue concerned

the proper quantity of oxycodone for which Mills was to be held

responsible. Consequently, we relate only what is necessary to

place that issue into proper perspective.

Using the then-current edition of the federal sentencing

guidelines, the probation office prepared a pre-sentence report

(PSR) that attributed to Mills not only the 8.5 grams of oxycodone

he possessed when arrested but also an additional 295.4 grams of

oxycodone under the guidelines' relevant conduct provision. See

United States v. Marquez, 699 F.3d 556, 558 (1st Cir. 2012)

(explaining that "a defendant is responsible not only for the

wrongdoing to which he pled or of which he was convicted, but also

1
The pills were marked with "CDN," indicating the oxycodone
was of Canadian manufacture.

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for 'all acts and omissions . . . that were part of the same course

of conduct or common scheme or plan as the offense of conviction'")

(alteration in original) (quoting U.S.S.G. § 1B1.3(a)(2)). Here is

how probation reached that number:

Documents offered by the government showed that Mills

crossed the border from Canada into Maine 231 times between January

and September 2009. They also showed that Mills converted $369,203

of U.S. currency into Canadian currency between May 2008 and

September 2009. For each transaction Mills had to disclose where

the cash had come from. And he claimed that the funds were payment

for his work as a sea urchin diver and carpenter, for example. But

the amounts he exchanged were significantly greater and

inconsistent with the "legitimate" earnings he reported to

probation. Also, Mills had given the names of two people who had

supposedly provided him with money on the up and up, and both of

them denied ever doing so, probation noted. Critically, once Mills

learned about the currency exchange records, he changed his story,

saying in a recorded jailhouse conversation with his girlfriend

that he had been exchanging the cash for someone else and getting

free drugs for his trouble. Critically too, one CI reported that

Mills routinely smuggled 100 pills at a time into the U.S. in his

rectum, and another said pretty much the thing.

Using the street value of oxycodone, $100 a pill, and the

$369,203 in currency exchanges, probation then calculated Mills had

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smuggled at least 3,692 80-milligram oxycodone pills or 295.4 grams

of actual oxycodone prior to his arrest. See id. at 561 (noting

that "[e]xtrapolation is a common and permissible way of

attributing drugs to a defendant"). The sentencing guidelines

provide a formula for converting drugs into equivalent units of

marijuana for sentencing purposes: 1 gram of oxycodone is

equivalent to 6,700 grams of marijuana. See U.S.S.G. § 2D1.1 cmt.

n.10(E) (since recodified as cmt. n.8(D)). So 295.4 grams of

oxycodone amounted to 1,979 kilograms of marijuana equivalent,

which, when combined with the 8.5 grams of oxycodone Mills smuggled

on September 11, brought his marijuana equivalent to 2,036

kilograms. The base offense level for at least 1,000 kilograms but

less than 3,000 kilograms of marijuana is 32. See U.S.S.G.

§ 2D1.1(c)(4). Probation suggested a 3-level decrease for

acceptance of responsibility, see U.S.S.G. § 3E1.1, and another 2-

level decrease if he satisfied the test for "safety valve" relief,

see U.S.S.G. § 5C1.2 -- to be eligible a defendant, among other

things, must by the time of sentencing truthfully provide "the

[g]overnment all information and evidence [he] has concerning the

offense or offenses that were part of the same course of conduct,"

id. § 5C1.2(a)(5). That would give him a total offense level of

27, which, when paired with his criminal history category of I,

would yield a sentencing range of 70 to 87 months in prison.

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 The government also asked the court to hold Mills

responsible for 295.4 grams of oxycodone under the relevant conduct

rubric, using the same math as probation. To avoid double

counting, the government's drug-quantity estimate did not include

the oxycodone seized from him on September 11. The government

presented six exhibits to back up its argument. Exhibit 1 was a

summary spreadsheet of records obtained from the Royal Canadian

Mounted Police (RCMP) documenting Mills' 108 currency exchanges

involving a total of $369,203, which he made during the 16 months

before his arrest. The last documented transaction in the currency

exchange records was only two days before his capture, and he made

other cash exchanges on September 2, 4, and 7. Exhibit 6 was a

compilation of records that supported Exhibit 1.

Exhibit 2 was the ICE report of CI-1, who reported seeing

Mills with between 50 and 100 oxycodone tablets at least once a

week between spring 2006 and spring 2007. CI-1 stated Mills would

go to St. Andrews, New Brunswick, Canada to purchase the pills and

then smuggle them into the U.S. for sale (other evidence showed) in

Washington County, Maine.

Exhibit 3 was a report from the RCMP summarizing the

statements of CI-2. CI-2 said Mills would first collect money from

prospective U.S. buyers, convert that money from U.S. currency to

Canadian currency, acquire pills from his supplier, and then return

to Maine by crossing at the Lubec Port of Entry. According to

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CI-2, Mills would smuggle about 100 pills at a time into the U.S.

internally, via his rectum.

Exhibit 4 was an ICE report regarding an investigation

that began in September 2008, after an undercover agent of the

Maine Drug Enforcement Agency purchased OxyContin from CI-3. CI-3,

an admitted oxycodone addict, named Mills as his or her supplier.

According to CI-3, Mills would get money from his clients prior to

purchasing the pills in Canada, and would then smuggle the pills by

taping them to his groin area or having his girlfriend smuggle them

internally. CI-3 further stated Mills would bring the pills into

the U.S. by making two trips each week with 100 to 200 pills per

trip. Exhibit 5 was the proffer report of CI-3, which reiterated

many of the statements CI-3 made in Exhibit 4. In this proffer,

CI-3 noted the pills Mills smuggled were Canadian brand OxyContin

because they were labeled "CDN." CI-3 also said 80-milligram

oxycodone pills sold for $80 to $100 a piece.

Wrapping up, the government stressed how consistent the

CIs' accounts were with each other on the modus operandi of Mills'

criminal endeavors and how the currency exchange records

corroborated all this by showing his access to a large pool of

money to fund his drug-buying sprees. Also, the government

emphasized how Mills' employment records showed he had no

legitimate means of obtaining the amounts of cash he was

exchanging, noting in particular the statements of two persons whom

-8-
Mills said had given him money lawfully, who denied any such

transaction.

Mills' sentencing memorandum argued the appropriate drug

quantity was the 8.5 grams of oxycodone he was caught with. And he

blasted the government for relying on the untested assertions of

CIs in coming up with its proposed drug quantity calculation.

C. The Identities of the CIs

At a pre-sentencing conference in July 2010, Mills'

lawyer contested the use of the CIs' statements and the financial

records as evidence of drug smuggling. Specifically, counsel

explained his concern about the veracity of the CIs, since the

government was offering their statements in support of a drug

quantity that increased the amount attributable to him almost 50-

fold. To bolster his argument, counsel cited a recorded jailhouse

telephone conversation between Mills and his girlfriend in which

they discussed how the currency exchanges were part of a money

laundering scheme, and not, as the CIs' statements suggested, part

of his drug trafficking. Counsel maintained this conversation

called into question the reliability of the CIs' statements,

particularly to determine the drug quantity attributable to Mills.

Expressing concern about the court's reliance on the CIs'

unrebutted claims, counsel requested disclosure of their identities

in order to speak with them and potentially bring them into court.

-9-
 The court stated its surprise that Mills could not

determine the CIs' identities based on what had already been

revealed and the presumably limited number of people involved in

dealing OxyContin in Washington County, Maine. In response to

Mills' argument for disclosure, the government noted two troubling

incidents. First, a woman attempting to enter the U.S. from Canada

had a letter from Mills on her that included pages from his PSR.

Mills' letter stated the government was trying to prove additional

drug quantity against him but would have trouble doing so without

someone testifying against him. Second, after the government filed

its sentencing memo, one of the CIs contacted ICE to report that

copies of the redacted CI reports filed with the court had been

published on the Facebook page of Mills and his longtime

girlfriend, Jennifer Smart. The government noted that the lawyer

for another of the CIs made the same complaint and that the CIs

were afraid. Arguing they had an obligation to protect the

informants and their identities, the government asserted that the

potential for Mills to post the CIs' identities on Facebook raised

significant safety concerns.

Even though the government later handed over impeaching

material on the CIs, Mills moved for disclosure of their

identities. Citing to Brady v. Maryland, 373 U.S. 83 (1963), he

asserted he was faced with CIs making statements against him, which

if adopted by the court could be "material to his punishment."

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Brady held, "the suppression by the prosecution of evidence

favorable to an accused upon request violates due process where the

evidence is material either to guilt or to punishment." Id. at 87.

Mills argued the "identity of these informants, then is itself

evidence 'favorable to the accused' where it will allow [him] to

challenge and to test these assertions," which he insisted were

false.

In the conference of counsel the next day, Mills' lawyer

explained disclosure was necessary for the defense to determine the

accuracy of the drug quantity the government attributed to him. He

argued the large amounts of money represented in the currency

exchange records were attributable to his money laundering for

someone in Canada, so to the extent the court was relying on the

CIs' statements to determine the source of that money, the veracity

of the statements would be important for the court. The court

again noted its disbelief that Mills could not determine the

identities of the CIs himself, based on the descriptions of their

statements, and Mills' lawyer countered his client would only know

who the CIs were if the statements they made were true. The

government again discussed how the CIs' statements were consistent

with one another and with the currency exchange records and how

Mills' posting of CI information on Facebook put them at great

risk. And the court warned Mills he was running the risk of not

getting any adjustment for acceptance of responsibility as it

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seemed what he truly wanted was the CIs' identities in order to

declare them snitches to his compatriots, and have retribution

taken against them.

Ultimately, the court denied the motion. The court found

the CIs' statements were corroborated by other reliable evidence.

Comparing Mills' need for access to the CIs with the physical

danger to them, and with the danger of compromising other

government investigations, as required under United States v.

Tzannos, 460 F.3d 128, 139 (1st Cir. 2006), the court stressed

Mills had given "no concrete reason to override the [g]overnment's

interest in keeping [their] identities" under wraps. And as for

Brady, the court found that case distinguishable from Mills': Mills

sought disclosure at sentencing, not during trial, and Mills "made

no showing that disclosure of the CIs' identities would be either

material or favorable."

At the next conference of counsel, Mills' lawyer said his

client would not seek safety valve relief. He also said Mills had

hired a private investigator to determine the CIs' identities.

And, he added, he intended to have the investigator testify at the

upcoming sentencing hearing so that the court could hear what the

investigator learned after talking with some suspected CIs. The

court said that was okay and then ticked off the evidence that it

already had: (a) Mills' admission that September 11, 2009 was not

his first time smuggling OxyContin into the U.S.; (b) documents

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showing "enormous amounts of cash, in excess of $300,000," that

Mills had converted from U.S. to Canadian dollars; and (c) evidence

showing that Mills' legitimate sources of income "don't begin to

generate the kind of money" he had exchanged. Adding everything

together, the court suggested it mattered not what the CIs might

say. "[T]he fact that confidential informants say what I think I

can infer anyway," the court stressed, "is icing on the cake."

D. The Sentencing Hearing

Mills' sentencing hearing went forward with the

identities of the CIs still secret. Conceding September 11, 2009

was not his client's first time smuggling oxycodone into the U.S.,

Mills' lawyer focused on the currency exchange records and argued

the bulk of the money had come from an illegal source, but not from

Mills' drug smuggling. Mills' private investigator explained in

testimony at the hearing how Mills had hooked up with a Canadian

marijuana dealer who sometimes got paid in U.S. currency and how

the dealer would pay Mills in Oxycontin if he (Mills) converted

that cash into Canadian currency -- at least that is what Mills'

investigator claimed Mills had told him. That story squared with

the recorded jailhouse telephone call between Mills and his

girlfriend in which they talked about how the currency exchanges

were part of a money laundering venture, Mills' investigator added.

And he also testified that he questioned possible CIs, all of whom

denied providing any information to law enforcement about Mills'

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drug trafficking, and that he was unable to find anyone who

admitted providing information about Mills to the authorities.

Cross-examined by the government, Mills' investigator

noted that when he asked Mills to reveal the marijuana dealer's

name, Mills said, "I'd rather not disclose that." Ultimately, the

government argued nothing in the investigator's testimony

necessarily undermined the evidence as to drug quantity. "[T]here

is no weed dealer," the government insisted. "This is all

OxyContin money." So the government urged the court to rely on

Mills' admission concerning his prior smuggling and the CIs'

statements describing his drug dealing history. Recognizing some

differences in the CIs' stories, the government explained it was

not asking the court to adopt the specific drug quantities cited in

the CIs' statements, but instead to use the border patrol and

currency exchange records to determine the total drug quantity.

After considering the evidence and hearing counsel's

arguments, the court made a number of critical findings. For

openers, the court found that Mills had crossed the border from

Canada into Maine 231 times in the 8 months before his arrest.

Also, the court found that the CIs' accounts fit together nicely on

a number of fronts: e.g., that Mills had been smuggling OxyContin

for a long time; that he would first get money from U.S. customers

and then head to Canada to buy pills to smuggle back to Maine,

often hiding the pills in his rectum; and that he would sneak in

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about 100 pills or so each time. "All of that," the court found,

was "remarkably consistent with what we know happened on September

11, 2009." On top of that, the court found that the frequency and

amount of Mills' currency exchanges suggest the $369,203 was tied

to his drug dealings.

Taking up Mills' claim that the currency exchange report

reflected other sources of money besides his oxycodone trafficking,

the court rejected his uncorroborated explanations. "I do not

believe the story about the major marijuana dealer using [Mills] to

convert currency," the court said. "I just don't believe it,"

particularly since Mills had refused to give up the dealer's name,

leaving no way to verify his claim. "We don't know the CIs' names,

the court noted, but "we know what [they] have said" and so "we can

compare them." As for Mills' theory that some of the currency was

payment for his work as a sea urchin diver and carpenter, the court

found no proof of that, since Mills had failed to file income taxes

with the federal government and his alleged employers denied paying

him any cash.

Applying the correct version of the guidelines (the

parties do not say otherwise), the court then took the $369,203 and

Mills' preferred $140 per-pill value and arrived at a drug quantity

of 1,374.4 kilograms of marijuana equivalent. The court's math was

off just a bit, though. $369,203 divided by $140 equals 2,637.16

pills, which, at 80-milligrams each, produces 210.97 grams of

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oxycodone. Multiplying 210.97 grams by 6,700 yields a marijuana

equivalent of 1,413.52 kilograms, not 1,374.4 kilograms. But that

mistake makes no difference to Mills, given that both numbers fall

within the 1,000 to 3,000 kilograms range, which put him in base

offense level 32 regardless. See U.S.S.G. § 2D1.1(c)(4). Next,

the court granted Mills a 3-level acceptance of responsibility

reduction. With no safety valve adjustment, Mills' total offense

level was 29. That offense level, combined with his criminal

history category of I, resulted in a sentencing range of 87 to 108

months. And after working its way through the factors listed in 18

U.S.C. § 3553(a), the court imposed a top-of-the-range prison

sentence of 108 months.

DISCUSSION

Training his sights on the CIs, Mills attacks his

sentence on two fronts. First, he faults the court for denying his

motion for disclosure, arguing that he needed to know the CIs'

identities so that he could defend against the government's

sentencing arguments. Second, he criticizes the court for

attributing to him a drug quantity beyond the amount involved in

the charged offense, contending that if the court had required

disclosure of the CIs' names, he could have shown that what they

had said was too unreliable for calculating relevant conduct under

the sentencing guidelines. Neither persuades.

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 A. Disclosure of the CIS' Identities

Police use confidential informants all the time,

particularly in the murky world of drug dealings. See United

States v. Perez, 299 F.3d 1, 2-3 (1st Cir. 2002). But snitching is

dangerous work, and informants literally put their lives on the

line by doing what they do. See id. at 3. With so much at stake,

confidentiality is key. See id. And that is where the "tattler's

privilege" comes in -- that is, the government's privilege to keep

secret the names of persons who give law enforcement information

about crimes. United States v. Robinson, 144 F.3d 104, 106 (1st

Cir. 1998) (discussing Roviaro v. United States, 353 U.S. 53

(1957)).

But important as that privilege is, it is not absolute;

where the disclosure of an informant's identity is "relevant and

helpful to the defense of an accused, or is essential to a fair

determination of a cause, the privilege must give way." Roviaro,

353 U.S. at 60-61. One should not go overboard when reading that

quote, however. The high Court could not have meant "that the

privilege covers only irrelevant and unhelpful" or nonessential

"evidence." See United States v. Gaston, 357 F.3d 77, 84 (D.C.

Cir. 2004) (explaining why that must be so).

A disclosure inquiry is case-specific -- there is no

"mechanical solution[]." Perez, 299 F.3d at 4. Starting with a

presumption in favor of confidentiality, see Robinson, 144 F.3d at

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106, a trial court must "balanc[e] the accused's right to prepare

and present his defense against the public interest in acquiring

needed information and the informant's stake in confidentiality,"

Perez, 299 F.3d at 4. Other factors that typically go into the mix

include "the nature of the crime charged, the contours of the

defenses asserted, the available means of proving the charges and

defenses, and the significance of the informant's role." Robinson,

144 F.3d at 106.

The burden is squarely on the defendant to show that

disclosure is essential for an adequate defense -- and it is a

"heavy" one; it is not met by speculating about how useful an

informant's testimony might be, for example. United States v.

Cartagena, 593 F.3d 104, 113 (1st Cir. 2010) (quoting United States

v. Lewis, 40 F.3d 1325, 1335 (1st Cir. 1994)). But heavy is not

code for impossible. See Robinson, 144 F.3d at 106. Suppose the

informant is the only person other than the defendant who has

firsthand knowledge of the acts underlying the crime charged. Or

suppose the informant is the only one able to amplify or contradict

the testimony of a government witness. Either situation may

justify disclosure, we have said. Id. (relying on Roviaro).

Simplifying things somewhat, Mills has not shown how his case fits

one of these scenarios. Or any other equally compelling scenario,

as we shall see after applying abuse of discretion review. See id.

(stressing how that standard "is quite deferential: the district

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court's resolution of a disclosure request should be upheld as long

as it comports with some reasonable rendition of the record").

A moment ago we noted that Mills says that knowing the

CIs' names was necessary for the court's calculation of his drug

quantity. The problem for him is that he does not tell us why this

is so. Obviously, a defendant must spell out how an informer's

testimony would help whatever defense theory he pins his hopes on.

See United States v. Martinez, 922 F.2d 914, 921 (1st Cir. 1991).

Mills' story seemed to change like the weather. But the one he ran

with at sentencing suggested that the cash reflected in the all-

important currency exchange records came either from a money

laundering conspiracy involving a major-league Canadian marijuana

dealer or from his work as a sea urchin diver and carpenter -- or

perhaps both. Yet, devastating to his position, he whispers not

even a hint that the CIs could have shed any light on this late-

emerging defense. See id. (putting the onus on defendants "to

provide at least some explanation of how the informant's testimony

would have supported their alleged defenses").

The "heart" of the court's drug quantity analysis is the

CIs' statements, Mills protests a little later in his brief. Not

so. Even a quick review of the record shows that what principally

drove the court's decision were (a) the 108 currency exchanges

totaling $369,203 that Mills had made during the 16-month stretch

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before his arrest and (b) his requested $140 per-pill price.2

Other considerations that factored into the court's calculus

included (c) Mills' agreeing that this was not the only time that

he had smuggled oxycodone into the U.S.; (d) his having entered the

U.S. from Canada 231 times in the 9-month period before his

capture; (e) his offering no evidence that he had been legitimately

employed when it mattered; and (f) his marijuana dealer tale

holding no sway with the court. For simplicity we refer to all

this as the "(a)-(f) factors." As for the CIs, true, their

accounts about Mills' drug smuggling differed a bit. But they were

remarkably in sync on the duration, method, and volume of his

misadventures, and their accounts were perfectly consistent both

with what had gone down on September 11 and with the full $369,203

being tied to his drug dealing ways -- as the court supportably

found. Anyway, and as the court also credibly found, one could

reasonably work out the drug quantity numbers using the (a)-(f)

factors, without touching the CIs' narratives -- meaning their

statements were merely "icing on the cake," as the court colorfully

put it. In other words, the CIs' comments played a peripheral

rather than a starring role in the court's drug quantity analysis,

2
Remember how CI-1 said he had seen Mills with 50-100 pills
every week for a year, which, using the higher number, works out to
52,000 pills -- the court did not use that figure, or the figures
offered by the other CIs. Instead the court opted to divide
$369,203 by $140 to get 2,637 pills -- a much smaller number than
if it had used CI-1's figures, for example.

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which also counts against Mills in the disclosure balancing. See

Robinson, 144 F.3d at 107.

Again, on the other side of the scale is the public

interest in encouraging needed information and the informants'

private interest in their safety. See Tzannos, 460 F.3d at 139.

And here the record supports the court's finding that revealing the

CIs' identities posed an obvious risk to their safety. Recall the

prior publication of the CIs' reports on Mills and Smart's Facebook

page. Recall too the veiled threat Mills sent in a letter along

with copies of his PSR. The "feds" wanted to hold him culpable for

additional drug quantity, he wrote, but "[t]hey will have a hard

time" doing that "without someone testifying against me."

The short of it is that the court did its job under the

Roviaro line of cases, weighing the right factors, and it

defensibly found that -- given Mills' weak showing on one side, and

the government's interest in preserving the CIs' anonymity on the

other -- the scale tipped decidedly against disclosure.

Consequently, we see nothing remotely resembling an abuse of

discretion in the court's decision to deny Mills' disclosure

motion.

B. Calculation of the Drug Quantity Attributable to Mills

Mills' second argument is a slight variation on the one

we just rejected. It goes something like this: The court, he says

again, should have compelled the government to disclose the CIs'

names. Because the court did not, he quickly adds, it did not get

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to see for itself how unreliable they were for the relevant-conduct

calculation. Yet, he concludes, the CIs were unreliable, and

taking them out of the equation means that the amount of oxycodone

attributed to him should have been limited to what was in his

possession at his arrest.

The law in this area is straightforward. A sentencing

court can make reasonable estimates of drug quantities, provided

they are supported by a preponderance of the evidence, and we

review those findings deferentially, reversing only for clear

error. See United States v. Bernier, 660 F.3d 543, 545-46 (1st

Cir. 2011). Also, the court can consider all kinds of relevant

information regardless of admissibility at trial (including hearsay

that has never been tested by cross-examination), provided it has

"sufficient indicia of reliability to support its probable

accuracy." U.S.S.G. § 6A1.3(a); United States v. Cintrón-

Echautegui, 604 F.3d 1, 6 (1st Cir. 2010); United States v.

Brewster, 127 F.3d 22, 27-28 (1st Cir. 1997). Last but not least,

the court has considerable leeway in deciding whether particular

evidence is reliable enough for sentencing purposes, and we review

only for abuse of discretion. See Cintrón-Echautegui, 604 F.3d at

6; United States v. Green, 426 F.3d 64, 66 (1st Cir. 2005).

With these background rules in mind, we can make quick

work of Mills' argument. For one thing, the court acted well

within its discretion in denying Mills' disclosure motion, as we

just saw. For another, the CIs' statements regarding Mills' modus

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operandi were detailed, mutually corroborative on key points, and

compatible with the events surrounding his arrest3 -- and were

therefore sufficiently reliable. See Green, 426 F.3d at 67

(concluding that statements of confidential informants that were

sufficiently detailed, internally consistent, mutually

corroborative, and compatible with other information presented were

sufficiently reliable); see also United States v. Ventura, 353 F.3d

84, 88 (1st Cir. 2003) (similar). On top of all this, the (a)-(f)

factors arrayed above gave the court more than enough to make a

reasonable drug quantity estimate.4 See United States v. Hall, 434

F.3d 42, 61-62 (1st Cir. 2006) (holding that the court did not err

in using the defendant's total drug profits as a basis for

3
As a memory refresher for the reader, we again point out the
commonalities the court supportably found among the CIs' accounts:
Mills had been smuggling OxyContin for an extended time, at least
since 2007; and he would collect cash from U.S. customers, exchange
the money in Canada, buy pills there, and smuggle 100 or so pills
back across the border by concealing them on or in his body. And
Mills' acts on or around September 11 -- e.g., his crossing the
border with 109 oxycodone pills in his alimentary canal -- pretty
much mirrored the drug smuggling routine that the CIs had
described.
4
Mills talks a lot about how he could have shown the CIs'
unreliability if only he had had the chance to ask them questions
like these: "How does he [CI-1] arrive at an estimate of 50-100
pills? Does this same estimate apply for each time?"; "How can he
[CI-2] possibly estimate the number of pills that Mills had"; "Upon
what does he [CI-3] base his specific claims of the number of pills
Mills was moving across the border? If it was two trips a week at
up to 200 pills, then how can it have been up to 500 pills? For
how many weeks was it 500 pills?" But contrary to Mills'
intimations, the court did not need answers to any of this: it
suffices to say that the (a)-(f) factors gave the court an adequate
way to calculate drug quantity, regardless of how the CIs
responded.

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estimating drug quantity under the relevant conduct guideline).

Ultimately, then, we see no clear error or abuse of discretion

here.

CONCLUSION

Having found no basis for disturbing the sentence imposed

by the district court, we affirm.

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