United States Court of Appeals
For the First Circuit
UNITED STATES OF AMERICA,
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Torruella, Tashima,* and Lipez, Circuit Judges.
David J. Apfel, with whom Alison V. Douglass, Elianna J.
Marziani and Goodwin Proctor LLP were on brief, for appellant.
Neil J. Gallagher, Jr., Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, and Mark T.
Quinlivan, Assistant United States Attorney, were on brief, for
December 16, 2009
Of the Ninth Circuit, sitting by designation.
LIPEZ, Circuit Judge. In exchange for the dismissal of
a drug conspiracy charge in an indictment, appellant Cesar Zapata
pled guilty to a one-count information charging unlawful use of a
communication facility in connection with a drug trafficking
offense. See 21 U.S.C. § 843(b). He was sentenced to a term of 48
months' imprisonment, the statutory maximum. In this appeal,
Zapata claims that his sentencing was procedurally flawed and that
the sentence imposed is unreasonable, insufficiently supported by
the evidence, and in violation of the Sixth Amendment. Having
carefully considered each of these claims, we find no error and
therefore affirm the district court's judgment.
The following facts are drawn from the change-of-plea
colloquy, the presentence investigation report ("PSR"), and the
transcript of an evidentiary hearing on the drug quantity
attributable to Zapata. See United States v. Stone, 575 F.3d 83
85 (1st Cir. 2009); United States v. Jiminez, 498 F.3d 82
, 84 (1st
A. The Investigation
After several cocaine seizures took place in early 2005
in New York City, Boston, and Springfield, Massachusetts, federal
and state law enforcement authorities initiated a wiretap
investigation targeting the drug distribution activity of Sergio
Saldana-Alcantara ("Saldana"), Zapata's business partner at Pine
[End Page 2]
Point Auto Sales in Springfield. Through phone records related to
the cocaine seizures, investigators were also led to Zapata, a
fifty-seven-year-old father and grandfather with no prior criminal
record. Between May and August 2005, investigators conducted a
series of state wiretaps on Zapata's cellular phone, five cellular
phones used by Saldana, and the cellular phone of one of Saldana's
customers, George Samuels.1
Thousands of calls were intercepted during the three
months of wiretapping, but none of the taped conversations included
explicit reference to cocaine or drug sales. The government,
however, maintains that coded language in the calls showed that
Zapata was actively involved in the drug conspiracy with Saldana,
who was supplying his customers with kilogram quantities of
cocaine. Among the intercepted calls were several conversations
involving Saldana, Zapata and a buyer in New York known as "Juan"
who at times also provided cocaine to Saldana, who then
redistributed it to Samuels. According to the government, the
calls also showed that Zapata had given cocaine he received from
Saldana to a customer of his own, Freddy DomÃnguez.
At the evidentiary hearing on drug quantity after
Zapata's change-of-plea hearing, DEA Special Agent Jonathan
A series of six fifteen-day wiretaps were placed on Zapata's
phone between May 31 and August 27. Wiretaps were placed on
Saldana's phones between July 1 and August 27, and a single wiretap
was in effect on Samuels' phone between August 17 and August 27.
[End Page 3]
Shankweiler described in particular three sets of calls that took
place in June, July and August 2005. The June calls were between
Zapata and DomÃnguez, and Shankweiler testified that they related
to DomÃnguez's unsuccessful attempt to obtain cocaine from Zapata
without paying for it.2 The July calls were identified as the
basis for the information to which Zapata pled guilty.3 In
multiple calls on July 4 and 5, Juan called Zapata's phone or vice
versa, and Zapata twice handed his phone to Saldana to continue
conversations that he had begun with Juan. Shankweiler testified
that this series of calls related to Juan's desire to pay Saldana
For example, in one call, Zapata asked DomÃnguez: "And for,
for those hundred (100) pesos, what's up? So I can let the guy
know." DomÃnguez replied that he didn't "have anything right now"
because he was waiting for "this guy" to call him, and Zapata then
asked: "What are you going to do, are you going to take it up front
or what?" According to the PSR, agents believed the "hundred
pesos" was 100 grams of cocaine. Shankweiler testified that Zapata
was asking if DomÃnguez wanted the drugs "up front," meaning that
he would get the cocaine without paying for it at that time. In
another call the next day, DomÃnguez told Zapata that "I have the
papers now," which the agents understood to mean that he now had
the money to pay for the drugs. Shankweiler testified that, in his
experience with "numerous overheard drug conversations, 'papers' is
The information stated:
On or about July 4, 2005, in the District of
Massachusetts and elsewhere,
defendant herein, did knowingly and intentionally use a
communication facility, to wit: a cellular telephone
assigned telephone number (413) 883-7649, in committing,
causing and facilitating a drug trafficking offense,
specifically Conspiracy to Distribute Cocaine in
violation of Title 21, United States Code, Section 846.
[End Page 4]
and Zapata money owed for drugs distributed the previous day and to
get more cocaine from them.4
In the first call on July 4, Juan called Zapata and told him
that his friend, "the one from last night . . . He wants me to see
him to do the special that there was yesterday? He wants to
continue with the same special, so I don't know what to do."
Zapata told Juan, "hold on, talk to the man," and he put Saldana on
the phone. Juan then told Saldana that his friend, "the last one
I met with last night," called him "to dance at two discotheques so
that then, you know, now, he got used to yesterday's special, so
. . . I told him I have to ask first." The conversation then
SALDANA: No, tell him no . . . only if he just wants
half, another half block up front, and that's the only
way, if it is, it is . . .
JUAN: Okay. Half a block more up front?
SALDANA: If he has given street for it, if he hasn't
given street and he isn't, and he doesn't go right away,
uh . . .
JUAN: Oh, no, he's going right away. He has to give me
four (4) pesos for last night. . . So, he's going to go
SALDANA: So have him give it to you all together already
and that's finished.
JUAN: Alright then. Let me talk to him.
JUAN: Okay, okay.
Shankweiler testified that this conversation was a coded request
for two kilograms of cocaine (two "discotheques") at the same price
as the day before ("the same special").
Later that day, Juan again called Zapata and said: "Ask this guy if
you are going to come over tonight, because there are fifty-five
(55) pesos there." Zapata replied that they were coming the next
day because "we're all drinking." Zapata again put Saldana on the
phone with Juan, who repeated: "I have the fifty-five (55) pesos
here for you to pay the rent there." Saldana replied that he would
"go by there later on."
Zapata spoke with Juan again the next day, July 5, and their
conversation included the following exchange:
JUAN: Yeah, well, I'm just taking it easy here. I have
[End Page 5]
The transaction anticipated in those calls was believed
to have occurred within the following few days. Saldana went to
New York on July 5, without Zapata, and had some kind of
interaction with Juan, perhaps collecting the "seventy (70)
something pesos" that Juan had mentioned on the phone. A series of
phone calls between Saldana and Juan the next day, July 6, led
investigators to set up surveillance in Springfield. Consequently,
on July 7, Zapata was observed entering Saldana's home empty-handed
and exiting with a box measuring approximately sixteen inches by
twelve inches by two inches. Later that day, the two men were
followed to New York, where Zapata was observed carrying the box
into an apartment building where investigators believed Juan lived
with Saldana's mother. Shankweiler testified that he believed the
box contained cocaine.
The third set of calls occurred on August 18 as Saldana
and Zapata were driving back to Springfield from New York.
According to Shankweiler, investigators intercepted calls
the seventy (70) something pesos so that, so that you can
cover the rent.
JUAN: Yes, so you can call me, and tell me if you're
going to come over, so that I can get a money order for
you to pay, because the rent was due on the first.
JUAN: That way you [plural] can make up the difference
with that. . . seventy-something pesos that I have there.
ZAPATA: Okay, that's fine. That's fine. We'll call you
soon. [End Page 6]
suggesting that Saldana had obtained a sample of cocaine from Juan
that he was bringing to Samuels. In one of the calls, Saldana told
Samuels, "I've got a picture for you, the flower," and Shankweiler
testified that he interpreted both "picture" and "flower" to
connote the drug sample. As a result of the calls, DEA agents set
up surveillance at Samuels' residence. They saw Saldana and Zapata
arrive at the house and later saw Saldana emerge from the garage
and drive off with Zapata, who had been waiting in the car.
Saldana then called Juan and told him that he had shown "my friend"
"the photos" and was giving the other half to "the old man" "" a
reference to Zapata "" "for him to show it to his friend, just in
About a week later, DEA agents executed federal search
warrants at Samuels', Saldana's and Zapata's residences. They
found twenty-six kilograms of cocaine in a storage bin in the trunk
of Samuels' car in his garage. One kilogram was in a shoe box that
had been sliced down the middle, with some of the cocaine missing,
and the other twenty-five kilograms were stacked in bricks.
Shankweiler testified that he believed the single kilogram was the
sample that had been given to Samuels by Saldana, explaining that
"it's not uncommon for somebody to provide a sample before making
that type of investment." He estimated that the bin contained
about $500,000 worth of cocaine.
[End Page 7]
The search of Saldana's residence turned up a small
amount of cocaine and $68,980 in cash and, at Zapata's home, a safe
containing $2,200 in cash and an electronic scale were seized.
Zapata, Saldana and Samuels were arrested and a superseding
indictment later charged Zapata and five co-defendants with
participating in a drug trafficking conspiracy that extended from
2001 through August 2005.
B. The Change of Plea
Trial commenced against Zapata and Saldana on November
26, 2007, after the other four defendants had been convicted or
pled guilty. On the day the jury was impaneled, Saldana pled
guilty to a single count charging conspiracy to distribute five
kilograms or more of cocaine. Later the same day, Zapata agreed to
plead guilty to the criminal information charging unlawful use of
a communication facility. See 21 U.S.C. § 843(b). In exchange,
the government dismissed the drug conspiracy count against him in
the superseding indictment.
At the arraignment on the new charge, the government
summarized the evidence against Zapata as follows:
[T]he evidence would prove that on July 4,[End Page 2005, at around 6:10 in the afternoon, the]
defendant engaged in a phone conversation with
a person named Juan. He received a phone call
from Juan in which Juan told Zapata that he
was taking it easy and said, "Ask those guys
if they're going to come over tonight because
there are 55 . . . pesos there," to which
Zapata replied, "No, we're going tomorrow.
Tomorrow," to which Juan said, "Somebody
[End Page 8]
doesn't let you?" Zapata said, "No, because
we're all drinking."
At that time Zapata put Sergio
[Saldana], who is the defendant in this case,
on the phone where they again talked about a
conversation about 55 pesos. The evidence
would show that 55 pesos, along with other
conversations, was about $55,000 in drug
proceeds for the prior transportation and sale
of approximately 3 kilograms of cocaine in New
York City days before.
Zapata acknowledged at the hearing that he knew his cell phone was
being used to facilitate a drug transaction between Juan and
Saldana, but denied knowledge of any quantity of drugs or drug
proceeds discussed during the phone conversation. He stated that
he "didn't know what those 55 pesos were about, that they called
him [Saldana] on my phone and I passed it on to them."
In his sentencing memorandum and at his initial
sentencing hearing, Zapata argued that his appropriate sentencing
range under the guidelines was six to twelve months of
imprisonment. That calculation began with the assumption that no
quantity of drugs had been proven attributable to him, giving him
a base offense level ("BOL") of 12.5 The Probation Office
concluded in the PSR, however, that Zapata was responsible for 3.1
Under the Sentencing Guidelines, the base offense level for
an offense under section 843(a) is the offense level for the crime
that the defendant sought to facilitate. See U.S.S.G. § 2D1.6.
The offense level for the underlying crime here "" a drug conspiracy
"" is tied to the quantity of drugs attributable to the defendant's
conduct. U.S.S.G. § 2D1.1. BOL 12 applies to a cocaine
trafficking conspiracy when no amount of drugs has been proven.
U.S.S.G. § 2D1.1(a), (c)(14).
[End Page 9]
kilograms of cocaine based on a "conservative estimate" of the
drugs discussed in the July 4 phone call and other calls
intercepted at around the same time, plus additional small amounts
discussed in other calls. Relying on that drug weight, the PSR
calculated an offense level of 28, ultimately resulting in a
guideline range of 57 to 71 months.6 Because section 843(b)
provides for a statutory maximum of four years, the PSR noted that
the guidelines sentence was 48 months.
C. The Drug Quantity Hearing and District Court Ruling
The district court conducted an evidentiary hearing on
the issue of drug weight in April 2008. The only witness was Agent
Shankweiler, and the government also introduced into evidence
wiretap recordings and transcripts of English translations of
intercepted conversations that had been conducted in Spanish.
Shankweiler testified to his understanding of numerous phone
conversations involving Zapata, Saldana and others "" including
those described above "" and explained why he construed certain
words to be coded references to drug transactions. In cross-
examining Shankweiler about his understanding of the intercepted
conversations, defense counsel challenged the agent's drug-related
The calculation took into account a reduction in the BOL for
acceptance of responsibility.
[End Page 10]
interpretations of the coded language and sought to show that the
conversations were equally susceptible to lawful connotations.7
At the conclusion of testimony, the government argued
that Zapata should be held responsible for at least one kilogram of
cocaine based on the July phone calls and the evidence that he had
received a portion of the sample given to Samuels on August 18. In
response, defense counsel emphasized the absence of evidence that
Zapata played a role beyond lending his phone to Saldana, and he
further argued that no particular quantity of drugs was foreseeable
to Zapata. Zapata was never seen with any drugs, and he remained
in the car when Saldana dropped off the sample that investigators
linked to the twenty-six kilograms later found in Samuels' garage.
In addition, none of the intercepted conversations showed that
Zapata knew Samuels. Counsel challenged the government's reliance
on the coded language, highlighting, inter alia, that the same
words were interpreted in different ways in different situations.8
In one exchange, for example, defense counsel focused on
Shankweiler's testimony that the box Zapata took from Saldana's
residence and carried into Juan's apartment on July 7 contained
drugs. The conversations on July 6 that preceded the delivery
referred to a "radiator," and defense counsel challenged
Shankweiler's belief that such references were code for drugs.
Counsel sought to show that, given the legitimate car business run
by Zapata, the references to "radiator" were more logically
understood to describe a car part.
Shankweiler interpreted specified numbers of pesos to refer
to different multiples of dollars. For example, he construed "55
pesos" and "70 pesos" in the July 4 and 5 conversations to mean
$55,000 and $70,000, but also testified that "4 pesos" meant
$40,000. The PSR, meanwhile, construed a reference to 100 pesos to
[End Page 11]
Defense counsel argued that, consistent with the Sixth
Amendment, the drug quantity needed to be proven beyond a
reasonable doubt, but asserted that the evidence was insufficient
to support a specific drug weight finding even if evaluated under
a preponderance standard. Relying on the absence of evidence to
show that Zapata should be held responsible for any particular
weight, counsel reiterated the request for a BOL of 12, reduced for
acceptance of responsibility to BOL 10, with the accompanying six-
to-twelve-month sentencing range. Counsel recommended that the
court impose a twelve-month term of probation.
The district court rejected the defense argument on the
applicable standard of proof and found, by a preponderance of the
evidence, that Zapata should be held accountable for between three
and three-and-a-half kilograms of cocaine. Characterizing this
amount as "a conservative estimate," the court focused on the July
4 phone calls that it believed showed Zapata to be "an active
lieutenant to Mr. Saldana." The court observed:
He receives the calls, he fields the calls,
and then he puts Saldana on the line. And
then he takes it upon himself to be protective
of Saldana in the third call.9 That's somebody
denote 100 grams of cocaine.
The "third call" to which the court referred was Zapata's
call to Juan on July 4, following the two calls from Juan in which
he had passed the phone to Saldana. Zapata urged Juan to tell
Saldana not to "go over there" until the next day "because he's
drinking, you understand. . . . [It]'s hot, also." Later in the
call, after asking Juan to "tell him anything, anything at all, so
[End Page 12]
who is clearly operating in concert with
Saldana, in Saldana's interest, whatever they
might be. He acts as sort of a gatekeeper
with respect to Juan.
The court noted that the evidence generally showed that Saldana was
selling kilogram quantities of cocaine and that, notwithstanding
the "opaque" and sometimes inconsistent language in the calls, the
"patterns of discussion" in the July 4 calls showed a pending
transaction aimed at collecting payment for a prior deal and
initiating a new one.
The court relied on the roughly $20,000-per-kilogram
street price for cocaine and the "peso" references in the phone
conversations, as interpreted by Shankweiler, to find the July 4
calls involved drug trafficking "in the range of three to three and
a half kilos." The court concluded that Zapata was responsible for
at least that amount, but noted that "a reasonable estimate could
easily go higher by, for example, including August quantities."
The court thus adopted the PSR calculation of a BOL of 28, which it
reduced by three levels for acceptance of responsibility. The
resulting guidelines range was 57 to 71 months.
The court then invited the parties to address the other
sentencing factors that must be considered under 18 U.S.C.
that nothing bad happens there," he again explained, "[b]ecause
it's hot, hot, you understand?"
[End Page 13]
§ 3553(a).10 The government urged that the sentence be set at the
statutory maximum based, inter alia, on the need for deterrence and
the defendant's failure to fully accept responsibility for his
actions. Defense counsel emphasized that Zapata should not be
punished as if he were a participant in the drug conspiracy given
that the conspiracy charge against him had been dropped, but only
for the crime to which he pled guilty. Although he admitted
facilitating a drug conspiracy involving Saldana and Juan, "he had
no idea of quantities." Moreover, counsel argued, the evidence
showed that the transaction that occurred on July 7 involved car
parts, not drugs. In addition, given Zapata's age and personal
circumstances, lack of criminal history, and the likelihood of
deportation following whatever sentence he received, a twelve-month
term of probation would be a reasonable and appropriate punishment.
The district court imposed the statutory maximum of 48
months. It explained that the distribution of kilogram quantities
of cocaine, even if done in a single episode, is "a serious offense
that the community suffers from and that the community, therefore,
requires an expression of punishment and justice for." The court
concluded that the circumstances did not warrant reducing the
Those factors include, inter alia, the history and
characteristics of the defendant, the seriousness of the offense,
the goals of rehabilitation, and the need for deterrence. See 18
U.S.C. § 3553(a).
[End Page 14]
sentence below the statutory maximum, which was less than the
guidelines range of 57 to 71 months.
On appeal, Zapata asserts four errors: (1) the sentence
violated his Sixth Amendment rights because it was based on facts
that he did not admit and that were not found by a jury beyond a
reasonable doubt; (2) the judge's finding of drug quantity was not
supported by sufficient evidence; (3) the district court committed
procedural error by relying solely on the guidelines in setting the
sentence, disregarding the other factors listed in 18 U.S.C. §
3553(a); and (4) the sentence was unreasonable in light of his
individual characteristics. We consider each contention in turn.
Zapata argues that his sentence violated the Sixth
Amendment because it was based on a drug quantity that the court
determined by a preponderance of the evidence. He contends that,
under Blakely v. Washington, 542 U.S. 296
(2004), as clarified in
Cunningham v. California, 549 U.S. 270
(2007), a sentencing judge
may not exceed the statutory maximum term of imprisonment that
applies "solely on the basis of the facts reflected in the jury
verdict or admitted by the defendant." Blakely, 542 U.S. at 303
(emphasis omitted). Zapata emphasizes language in Cunningham
highlighting the statement in Blakely that "'[t]he relevant
"statutory maximum" . . . is not the maximum sentence a judge may
impose after finding additional facts, but the maximum he may
[End Page 15]
impose without any additional findings.'" 549 U.S. at 275 (quoting
Blakely, 542 U.S. at 303-04).
We have repeatedly held that, "under the advisory
Guidelines, judicial fact-finding on drug quantity is
constitutionally permissible," within the limits set by Apprendi v.
New Jersey, 530 U.S. 466
(2000). United States v. Arango, 508 F.3d 34
, 42 (1st Cir. 2007). Apprendi holds that facts that increase
the penalty for a crime "beyond the prescribed statutory maximum,"
other than the fact of a prior conviction, must be proved beyond a
reasonable doubt to a jury. See 530 U.S. at 490. Consistent with
that directive, we have routinely upheld sentences that relied on
drug quantities found by a preponderance of the evidence where the
term imposed fell within the maximum for the statute of conviction.
See United States v. Platte, 577 F.3d 387
, 392 (1st Cir. 2009).
Zapata argues that the Supreme Court in Cunningham
clarified that Apprendi and its progeny bar the use of judge-found
facts "to increase federal sentences beyond the highest sentence
that would be 'reasonable' absent the judicial fact-finding." He
asserts that the "true statutory maximum" is thus not the term set
by Congress as the upper limit for a type of crime, but the highest
sentence that would survive scrutiny for substantive reasonableness
in the particular case based solely on jury-found or admitted
[End Page 16]
In this case, therefore, Zapata argues that the maximum
sentence set by statute for a violation of 21 U.S.C. § 843(b) "" 48
months "" is not the relevant marker. He contends that, to
determine the maximum applicable to him, we must look first to the
guidelines sentencing range that is authorized based exclusively on
the facts that he admitted, i.e., that he facilitated a friend's
drug conspiracy by allowing him to use his phone. Without a
finding on the amount of drugs involved in the conspiracy, that
range would be six to twelve months. See U.S.S.G. §§ 2D1.6,
2D1.1(c)(14). Zapata argues that a higher range would apply only
if he had admitted, or a jury had found, that he was responsible
for a specific quantity of cocaine. Under Zapata's view of the
law, the sentencing court may find facts to determine his
appropriate sentence within the authorized range, but it may not go
above twelve months because, under Cunningham, that is "'the
maximum [the court] may impose without any additional findings.'"
549 U.S. at 275 (emphasis omitted) (quoting Blakely, 542 U.S. at
303-04).11 He maintains that a higher sentence, in the absence of
Zapata does not view the guideline range produced in this
way as mandatory or conclusive, but, consistent with the Booker
line of cases, merely as a starting point for the sentencing
determination. See United States v. Booker, 543 U.S. 220
The sentencing judge would be obliged to evaluate this "true
reasonable maximum dictated by the Guidelines" in light of "real
world sentences that have been meted out for the same crime." He
asserts that data compiled by the U.S. Sentencing Commission
concerning sentences under section 843(b) for defendants in similar
circumstances confirms that his "true statutory maximum was no more
than twelve months."
[End Page 17]
additional facts, would be unreasonable and, hence, unlawful. See
generally Rita v. United States, 551 U.S. 338
, 354 (2007) (noting
that circuit courts "exist to correct" erroneous sentences that are
unreasonable); United States v. Booker, 543 U.S. 220
, 260-62 (2005)
(noting that sentences are reviewed for substantive
We are unpersuaded that Cunningham gives us reason to
revisit our longstanding approach to judicial fact-finding on drug
quantity. As Zapata acknowledges, Cunningham involved a mandatory,
determinate sentencing scheme unlike the advisory guidelines that
emerged from Booker, and it therefore triggers different
constitutional concerns. See Cunningham, 549 U.S. at 285 & n.10
(noting Booker's holding that use of advisory sentencing provisions
"would not implicate the Sixth Amendment"); id. at 292
("California's [system] does not resemble the advisory system the
Booker Court had in view."). Indeed, we have recently rejected a
contention that Cunningham changed the landscape for determining
drug quantity under the federal guidelines, holding that "our case
law remains clear that judges may find facts to establish the
guideline range within the applicable statutory maximum." United
States v. Correy, 570 F.3d 373
, 377 (1st Cir. 2009). Such an
approach transgresses neither the Sixth Amendment nor the ultimate
objective of a reasonable sentence. We see nothing unreasonable
in a sentence that is based on the scope of a defendant's crime as
[End Page 18]
supportably found by the district court and, so long as the
sentence remains within the bounds set by Congress, no
constitutional violation occurs. Other courts have reached similar
conclusions. See, e.g., United States v. Mayberry, 540 F.3d 506
516-17 (6th Cir. 2008) (holding that Cunningham does not prevent
sentencing judges "from informing their sentencing by finding facts
by a preponderance of the evidence . . . so long as the sentence
does not exceed the statutory maximum"); United States v. Roti, 484 F.3d 934
, 937 (7th Cir. 2007) ("District judges remain free . . .
to make findings of fact that influence sentences, provided that
the sentence is constrained by the maximum set by statute for each
crime."); United States v. Grier, 475 F.3d 556
, 562-66 & n.6 (3d
Cir. 2007) (en banc) (similar, addressing a Fifth Amendment
As the sentence in this case did not exceed the statutory
maximum set by Congress, it fell within constitutional limits.
Zapata argues that, even under a preponderance standard,
the evidence presented at the sentencing hearing was insufficient
to support the district court's finding that he was responsible for
up to 3.5 kilograms of cocaine. As described above, the court
based its calculation primarily on Agent Shankweiler's
interpretation of the references to fifty-five and seventy pesos in
Juan's conversations with Zapata and Saldana on July 4 and 5, 2005,
[End Page 19]
as well as on the undisputed $20,000-per-kilogram street price for
cocaine. At $20,000 per kilogram, "seventy pesos" would reflect
payment for 3.5 kilograms.
The district court's determination of the drug quantity
attributable to Zapata is reviewed for clear error. Platte, 577
F.3d at 392; United States v. Ventura, 353 F.3d 84
, 87 (1st Cir.
2003). The court "possesses broad discretion in determining
whether evidence is sufficiently reliable for sentencing purposes,"
United States v. Green, 426 F.3d 64
, 66 (1st Cir. 2005) (internal
quotation marks omitted), and "drug-quantity estimations need not
be statistically or scientifically precise," United States v.
Scalia, 993 F.2d 984
, 989 (1st Cir. 1993). The sentencing court
"may consider relevant information without regard to its
admissibility under the rules of evidence applicable at trial,
provided that the information has sufficient indicia of reliability
to support its probable accuracy." U.S.S.G. § 6A1.3(a).
In challenging the district court's finding, Zapata
emphasizes that no cocaine was ever found on his person or in his
home, and neither he nor his co-defendants were observed handling
cocaine around the time of the July calls. Zapata points out that
Shankweiler admitted that the box he delivered on July 7 to
Saldana's mother's building in New York "" which Shankweiler
believed contained drugs "" could have held a radiator or clothing.
Zapata faults the district court for relying on Shankweiler's
[End Page 20]
interpretation of code words used in the phone calls, noting that
Shankweiler had no special training or inside information to
support his interpretations of the code and that the
interpretations contained "numerous internal inconsistencies."
Although the evidence was not perfect, it was sufficient
to support the district court's drug quantity finding. Shankweiler
was an experienced narcotics agent who had been the case agent on
six wiretap investigations by the time of the evidentiary hearing
and had reviewed thousands of calls in this investigation, giving
his testimony "sufficient indicia of reliability to support its
probable accuracy." U.S.S.G. § 6A1.3(a); see United States v.
Villarman-Oviedo, 325 F.3d 1
, 12-13 (1st Cir. 2003) (concluding
that agent was "clearly qualified by experience and the
'specialized knowledge' that he had acquired over the years to
opine on the meaning of the code words"); United States v.
Ceballos, 302 F.3d 679
, 688 (7th Cir. 2002) (endorsing use of
narcotics investigators' testimony on ambiguous words in recorded
conversations because they had "vast experience with drug code
language"). Moreover, the district court had before it the
transcripts of numerous phone calls, from which it could evaluate
the plausibility and reliability of Shankweiler's testimony.12
Zapata argues that Villarman-Oviedo is inapt precedent
because a cooperating witness and the defendant in that case
admitted that code words were used in their drug transactions and
that Ceballos is distinguishable because the court permitted agent
testimony on the meaning of ambiguous pronouns rather than on
[End Page 21]
The court acknowledged the inconsistency in Shankweiler's
interpretations of "pesos," but concluded that the specific meaning
at any particular time was not crucial to its assessment of "the
patterns of discussion." In discounting the shifting meanings, the
court reasonably could credit Shankweiler's testimony that he had
heard the word "pesos" used on "numerous intercepts and drug calls
to mean both cocaine or drugs and money," and that it could change
in usage within a single investigation. The court considered it
significant that, in the July conversations, Zapata was "dealing in
code on behalf of somebody who is objectively known to be a drug
dealer" and who was "selling kilo quantities of cocaine."
In addition to evidence on the specific drug quantity
linked to the July phone calls, the district court had ample
evidence that Zapata was actively involved in the conspiracy with
Saldana, reinforcing the likelihood that he was a knowledgeable
participant in the transaction he admitted facilitating. The phone
calls with Juan showed an ongoing interaction among the three men
and a role for Zapata beyond lending his phone on one occasion. unambiguous nouns. Neither distinction undermines the district
court's reliance on Shankweiler's expertise in the context of this
case. As noted, the court was able to evaluate Shankweiler's
conclusions in light of the transcripts and could draw its own
conclusion about whether "" as Shankweiler testified "" the coded
language "sticks out in the context of the call because it doesn't
fit." Moreover, the agents in Ceballos also testified that words such as "tickets" and "cars" were code words for narcotics and that
"one" and "two" referred to certain quantities of methamphetamine, see 302 F.3d at 686, and Ceballos is thus not distinguishable as
[End Page 22]
Zapata was with Saldana multiple times when drug-related events and
conversations took place, including when Saldana spoke with Juan
about giving a sample of cocaine to Samuels and when that sample
apparently was delivered on August 18.
Given Shankweiler's testimony and the transcripts of the
phone calls, the district court's drug quantity estimate represents
a reasonable view of the record. It is therefore not clearly
erroneous. See, e.g., United States v. Ortiz-Torres, 449 F.3d 61
79 (1st Cir. 2006).
Zapata also argues that his sentence was procedurally
flawed because the district court failed to consider all of the
sentencing factors set forth in 18 U.S.C. § 3553(a) and
substantively flawed because it was greater than necessary to
comply with the purposes of that provision.13 We review the
substantive reasonableness of a sentence for abuse of discretion
Section 3553(a) states that "[t]he court shall impose a sentence sufficient, but not greater than necessary, to comply with
the purposes set forth in paragraph (2) of this subsection."
Paragraph (2) lists the following purposes:
(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the
(D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional
treatment in the most effective manner[.]
[End Page 23]
after considering whether the district court committed a
significant procedural error. See Gall v. United States, 552 U.S. 38
, 41, 51 (2007); Stone, 575 F.3d at 88. If the court followed
the correct procedure, the sentence will be upheld unless it "falls
outside the expansive boundaries" of the universe of reasonable
sentences. United States v. Martin, 520 F.3d 87
, 92 (1st Cir.
A. The Procedural Claim
In imposing sentence, a district court is expected first
to calculate the defendant's guidelines range and then to consider
whether a guideline sentence is appropriate in light of the factors
set forth in 18 U.S.C. § 3553(a). United States v. Bunchan, 580 F.3d 66
, 72 (1st Cir. 2009). Those factors include the nature and
circumstances of the offense, the history and characteristics of
the defendant, the need for the sentence to provide deterrence,
respect for the law and just punishment, and the need "to avoid
unwarranted sentence disparities." 18 U.S.C. § 3553(a)(1), (2),
(6). Zapata argues that the district court "disregarded all
sentencing factors other than the Guidelines and thereby abused its
discretion and deprived Mr. Zapata of the individualized sentencing
treatment to which he is entitled."
The record does not support this contention. After
determining the guidelines range, the district court invited the
parties to address the other 3553(a) factors and to make specific
[End Page 24]
sentencing recommendations. The government argued for a term of
imprisonment of 48 months, the statutory maximum, after noting the
large scale of the drug conspiracy, the need for deterrence, and
Zapata's failure to fully accept responsibility for what he did.
Defense counsel urged a sentence of twelve months probation,
pointing out that Zapata's acceptance of responsibility should not
focus on the conspiracy crime that the government had agreed to
dismiss. Counsel emphasized that Zapata had admitted awareness of
Saldana's involvement in drug transactions, but he "had no idea of
amounts." Counsel also cited Zapata's likely deportation, his age,
his health, his role as a devoted father and grandfather, and his
lack of a criminal record in urging the court to find that a prison
term was unnecessary.
The court, in turn, specifically referred to some of the
3553(a) factors in explaining why it believed the guidelines
sentence appropriately took them into account. It noted, inter
alia, that "the distribution of kilogram quantities . . . is a
serious offense that the community suffers from and that the
community, therefore, requires an expression of punishment and
justice from." The court then considered whether, given the
guidelines range of 57 to 70 months and the statutory maximum of 48
months, "a sentence less than 48 [is] called for in the
circumstances of the case." It concluded that it was not:
"[T]aking all of the facts into account, . . . a sentence at the
[End Page 25]
high end of the statutory range is an appropriate sentence for the
criminal conduct admitted to in the information."
Although the court did not explicitly discuss the
personal characteristics of the defendant that were highlighted by
defense counsel, that does not mean it failed to consider them.
The court noted that it needed to evaluate the guideline
calculation and statutory maximum in "the circumstances of the
case," and, given the arguments the court had just heard, it is
apparent that Zapata's personal characteristics and history were
among "the facts" it took into account. To be sure, it would have
been better if the court had given explicit attention to at least
some of the personal factors, eliminating an appellate issue. See
United States v. GarcÃa-Carrasquillo, 483 F.3d 124
, 134 n.15 (1st
Cir. 2007) (noting that "district court judges would do well to
make the sentencing process as transparent as possible, to avoid
the possibility of remand on appeal"); United States v. Scherrer,
444 F.3d 91
, 97 (1st Cir. 2006) (en banc) (Lipez, J., concurring)
("[W]hen the defendant or the government advances specific
arguments for leniency or severity, grounded in the defendant's
history or the circumstances of the offense, it is reasonable to
expect a district court to explain why those specific arguments are
or are not persuasive."). A sentencing court is not obliged,
however, to specifically address all of the section 3553(a) factors
in its explanation, nor to give each of the factors "equal
[End Page 26]
prominence" in its determination. United States v. Dixon, 449 F.3d 194
, 205 (1st Cir. 2006); see also United States v. Pulido, 566 F.3d 52
, 64 (1st Cir. 2009). Here, we are satisfied from the
court's limited explanation that it considered all of the
applicable factors and viewed the reduction in sentence from the
guidelines range to the statutory maximum of 48 months as
sufficient to account for the defendant's individual circumstances.
In sum, the record shows no procedural error in Zapata's
B. Substantive Reasonableness
Zapata also argues that his four-year sentence is
unreasonable because, in his circumstances, it violates the
requirement under section 3553(a) that the sentence be "sufficient,
but not greater than necessary, to comply with the purposes" of
sentencing. 18 U.S.C. § 3553(a). He reiterates the arguments made
to the district court on each of the 3553(a) factors, arguing,
inter alia, that his advanced age, "spotless prior record," family
responsibilities, ignorance of the amount of cocaine, acceptance of
responsibility and likely deportation, along with the relatively
minor nature of the "telephone offense," render probation a just
and adequate punishment and the four-year term unreasonably harsh.
He points to statistics indicating that the mean sentence length
for similarly situated defendants who violated section 843(b) is
substantially less than 48 months, and he further asserts that
[End Page 27]
incarceration is unnecessary to protect the public or achieve
rehabilitation, as proven by his full compliance with his
conditions of release while awaiting trial and sentencing.
To some extent, Zapata's reasonableness argument relies
on a view of his crime at odds with the district court's
supportable finding that, as "an active lieutenant to Mr. Saldana,"
he facilitated a drug transaction involving three or more kilograms
of cocaine. To the extent Zapata emphasizes his otherwise
unblemished record and personal circumstances, his arguments for
sentencing leniency may be well-founded, but they are ultimately
unavailing. The court's decision to emphasize the nature of the
crime over the mitigating factors was a "'choice of emphasis'" that
is "'not a basis for a founded claim of sentencing error.'" United
States v. RodrÃguez, 525 F.3d 85
, 110 (1st Cir. 2008) (quoting
United States v. Deppe, 509 F.3d 54
, 62 (1st Cir. 2007)). District
courts have wide latitude in sentencing, and we cannot say that the
result in these circumstances "" a sentence below the applicable
guidelines range "" was indefensible. See Martin, 520 F.3d at 92
(describing the sentencing inquiry as "broad, open-ended, and
significantly discretionary"); id. at 96 ("[T]he linchpin of a
reasonable sentence is a plausible sentencing rationale and a
Having found no basis for disturbing the sentence imposed
by the district court, we affirm its judgment.
[End Page 28]
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