1 The HONORABLE LAURIE SMITH CAMP, Un ited States District Judge for the District of Nebraska. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 08-1312

___________ United States of America, *
* Plaintiff - Appellee, * * Appeal from the United States v. * District Court for the * District of Nebraska. Mariano Sicaros-Quintero, *
* Defendant - Appellant. *

___________ Submitted: October 13, 2008 Filed: March 2, 2009

___________ Before LOKEN, Chief Judge, JOHN R. GIBSON and MURPHY, Circuit Judges.

___________ LOKEN, Chief Judge. Mariano Sicaros-Quintero pleaded guilty to possession with intent to distribute fifty grams or more of methamphetamine , a violation of 21 U.S.C. §§ 841(a)(1) and (b)(1). He appeals his 108-month prison se ntence, arguing that the district court 1 clearly erred in determining drug quantity, applied an erroneous sentencing standard, and imposed a substantively unreasonable sentence. We affirm.-2- Sicaros-Quintero was arrested on January 3, 2007, after selling six ounces of methamphetamine to Jose Florez-Villegas in a controlled buy that resulted from a series of drug trafficking arrests. The day before, police found eighteen grams of methamphetamine during a traffic stop of Mario Ramirez-Garcia. Ramirez-Garcia agreed to cooperate. He identified Steven Palmateer as his principal customer and Florez-Villegas as his supplier. Ramirez-Garcia arranged a controlled sale of six ounces to Palmateer, who was arrested and admitted substantial purchases from Ramirez-Garcia beginning in March or April 2006. Ramirez-Garcia next arranged a controlled buy of six ounces from Florez-Vi llegas, who agreed to cooperate and identified Sicaros-Quintero as his supplier. During a post arrest interview, FlorezVillegas told Nebraska State Patrol Inves tigator Keith Bignell that Florez-Villegas had received “3-6 ounces of methamphetamine at a time from Quintero for 5-6 months, 2 times a week.” Florez-Villegas then arranged the six-ounce controlled buy that led to Sicaros-Quintero’s arrest.

After describing these transactions, the Presentence Investigation Report (“PSR”) recommended that Sicaros-Quinter o be held accountable for 3,572.1 grams of methamphetamine -- 170.1 grams for th e six-ounce controlled buy and 3,402 grams based upon the transactions described by Flor ez-Villegas in his pos t-arrest interview. Sicaros-Quintero objected to this drug quantity recommendation. At the contested sentencing hearing, the government in troduced, without objection, a lengthy “Synopsis” of the series of arrests and post- arrest cooperating statements prepared by Investigator Bignell on January 9, 2007, pl us Bignell’s detailed reports of proffer interviews he conducted in February and March with Fl orez-Villegas, Palmateer, and Francisco Hernandez, another methampheta mine customer of Ramirez-Garcia. The government also introduced a DEA report st ating that a confidential informant had purchased one-half pound of methamphetamine from Sicaros-Quintero at Momo’s Car Wash in November 2006. Sicaros-Quintero te stified that he first met Florez-Villegas on January 3; that the six-ounce c ontrolled buy was the only time he sold methamphetamine to Florez-Villegas; that he did not sell drugs to anyone else during2 The DEA reported that the confidential informant and two county deputies who observed the transaction at Momo’s Car Wash identified Sicaros-Quintero in a postarrest line-up.

3 When the total quantity of methamphetami ne is more than 1,500 grams but less than 5,000 grams, the base offense level unde r the now-advisory Guidelines is 34. See U.S.S.G. § 2D1.1(a)(3), (c)(3).
-3- this period; and that he’d never seen Ramirez-Garcia, Palmateer, or Hernandez. Sicaros-Quintero admitted that a Momo’s Car Wash card was found in his wallet when he was arrested on January 3, 2007, but denied he had ever been there. 2

After hearing argument, the district court found that Sicaros-Quintero’s testimony was not credible, and that the post- arrest statements and proffers recorded by Investigator Bignell were credible becau se “[t]hey tend to corroborate each other, and they are further corroborated by the nontestimonial evidence.” The court adopted the drug quantity facts in the PSR as its findi ngs and determined that the base offense level was 34 3 and the guidelines sentencing rangewas 108 to 135 months in prison. The court stated that the Guidelines are now advisory, and that it had considered all the sentencing factors in 18 U.S.C. § 3553(a) but did not find any that “weighs in favor of sentencing below the guideline ra nge.” Accordingly, the court sentenced Sicaros-Quintero to 108 months in prison, “the lowest end of the guideline range.”

On appeal, Sicaros-Quintero first argues that the district court’s drug quantity finding was clearly erroneous because most of the 3,572.1 grams recommended by the PSR were based solely on the statement of an uncorroborated witness, FlorezVillegas, who did not testify and who had a motive to exa ggerate. We reverse a drug quantity determination “only if the entire r ecord definitely and firmly convinces us that a mistake has been made .” United States v. Minnis , 489 F.3d 325, 329 (8th Cir. 2007) (quotation omitted), cert. denied , 128 S. Ct. 1097 (2008).4 Five-to-six months is at least 20 weeks; 2 buys per week equal 40 buys; 40 buys of 3 ounces each equal 120 ounces; 120 ounces convert to 3,402 grams.
-4- When the amount of drug seized by the government does not reflect the scale of the drug trafficking offense, as in th is case, “the court shall approximate the quantity of the controlled substance” fo r sentencing purposes. U.S.S.G. § 2D1.1, comment. (n.12). “The court may make a specific numeric determination of quantity based on imprecise evidence.” United States v. Roach , 164 F.3d 403, 413 (8th Cir. 1998). It “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 pr obable accuracy.” U.S.S.G. § 6A1.3(a).

The district court first discredited Sicaros-Quintero’s implausible testimony that he sold drugs only on the one occasion he was caught. Witness credibility is “quintessentially a judgment call and virtua lly unassailable on appeal.” United States v. Hart , 544 F.3d 911, 916 (8th Cir. 2008) (quotati on omitted). In estimating the total quantity properly attributable to this offense, the court then found that the post-arrest statements and proffer interviews of the other participants in a series of related transactions tended to corroborate each othe r as to the scale of Sicaros-Quintero’s distribution offense. The court adopted as its drug quantity finding the PSR’s conservative estimate of the quantity Fl orez-Villegas reported buying from SicarosQuintero in the six months prior to their arrests. 4 The court’s method of approximating drug quantity was consistent with the guidelines commentary and our prior cases. Its ultimate base offense le vel finding was not clearly erroneous. See United States v. Burnette , 518 F.3d 942, 945-46 (8th Cir.) (standard of review), cert. denied , 129 S. Ct. 138 (2008).

Sicaros-Quintero next argues that the di strict court committed procedural error under Gall v. United States , 128 S. Ct. 586, 596-97 (2007), and Rita v. United States , 127 S. Ct. 2456 (2007), when it “used the guide line range as the default sentence” and-5- paid only “lip service” to the other statut ory sentencing factors in 18 U.S.C. § 3553(a). This contention is without merit. A districtcourt at sentencing need not “categorically rehearse each of the section 3553(a) factors on the record . . . as l ong as it is clear that they were considered.” United States v. Austad , 519 F.3d 431, 436 (8th Cir. 2008) (quotation omitted). The court did not err oneously invoke “a legal presumption that the Guidelines sentence should apply.” Rita , 124 S. Ct. at 2465. It “simply found [Sicaros-Quintero’s] case to be typical a nd his arguments insufficient to warrant a sentence lower than that recommended by the Guidelines.” United States v. Robinson , 516 F.3d 716, 718 (8th Cir. 2008). As Ritaand Gall make clear, there was no procedural error.

Finally, Sicaros-Quintero argues that hi s sentence is substantively unreasonable because it is “greater than necessary to promote the goals of 18 U.S.C. § 3553(a)” given that he is a non-violent “low-level offender” who “provided methamphetamine to two people at the most.” Gall made clear that the determination of a reasonable sentence is committed to the district court’s discretion in all but the most unusual cases. We accord Sicaros-Quintero’s 108- month sentence at the bottom of the advisory guidelines range a presumpti on of reasonableness on appeal. See United States v. Toothman , 543 F.3d 967, 970 (8th Cir. 20 08). There was no abuse of discretion.

The judgment of the district court is affirmed.

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