Of the Ninth Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 08-1554

UNITED STATES OF AMERICA,

Appellee,

v.

CESAR ZAPATA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

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

appellee.

December 16, 2009
-2-

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.

I.

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

Cir. 2007). 

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
 A series of six fifteen-day wiretaps were placed on Zapata's 1

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.

-3-

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 Domínguez.

At the evidentiary hearing on drug quantity after

Zapata's change-of-plea hearing, DEA Special Agent Jonathan
 For example, in one call, Zapata asked Domínguez: "And for, 2

for those hundred (100) pesos, what's up? So I can let the guy

know." Domínguez 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 Domínguez 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, Domínguez 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

money."

 The information stated: 3

On or about July 4, 2005, in the District of

Massachusetts and elsewhere,

CESAR ZAPATA

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.

-4-

Shankweiler described in particular three sets of calls that took

place in June, July and August 2005. The June calls were between

Zapata and Domínguez, and Shankweiler testified that they related

to Domínguez's unsuccessful attempt to obtain cocaine from Zapata

without paying for it. The July calls were identified as the 2

basis for the information to which Zapata pled guilty. In 3

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
In the first call on July 4, Juan called Zapata and told him 4

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

continued:

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

twice.

SALDANA: So have him give it to you all together already

and that's finished.

JUAN: Alright then. Let me talk to him.

SALDANA: Okay

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

-5-

and Zapata money owed for drugs distributed the previous day and to

get more cocaine from them.4
the seventy (70) something pesos so that, so that you can

cover the rent.

ZAPATA: Uh-huh.

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.

ZAPATA: Uh-huh.

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.

-6-

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
-7-

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

case."

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.
-8-

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,

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
 Under the Sentencing Guidelines, the base offense level for 5

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). 

-9-

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. The Probation Office 5

concluded in the PSR, however, that Zapata was responsible for 3.1
The calculation took into account a reduction in the BOL for 6

acceptance of responsibility.

-10-

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. Because section 843(b) 6

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 crossexamining Shankweiler about his understanding of the intercepted

conversations, defense counsel challenged the agent's drug-related
 In one exchange, for example, defense counsel focused on 7

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 8

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

-11-

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
denote 100 grams of cocaine. 

The "third call" to which the court referred was Zapata's 9

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

-12-

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 sixto-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. That's somebody 9
that nothing bad happens there," he again explained, "[b]ecause

it's hot, hot, you understand?" 

-13-

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.
 Those factors include, inter alia, the history and 10

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).

-14-

§ 3553(a). The government urged that the sentence be set at the 10

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
-15-

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.

II.

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
-16-

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

facts.
 Zapata does not view the guideline range produced in this 11

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 (2005).

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."

-17-

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). He maintains that a higher sentence, in the absence of 11
-18-

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

reasonableness).

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
-19-

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

challenge). 

As the sentence in this case did not exceed the statutory

maximum set by Congress, it fell within constitutional limits.

III.

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,
-20-

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
 Zapata argues that Villarman-Oviedo is inapt precedent 12

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

-21-

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
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

defendant suggests.

-22-

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.
 Section 3553(a) states that "[t]he court shall impose a 13

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

the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the

defendant; and

(D) to provide the defendant with needed educational or

vocational training, medical care, or other correctional

treatment in the most effective manner[.]

-23-

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). 

IV.

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. We review the 13

substantive reasonableness of a sentence for abuse of discretion
-24-

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.

2008).

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
-25-

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
-26-

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. García-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
-27-

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

sentencing.

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
-28-

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. Rodríguez, 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

defensible result.").

Having found no basis for disturbing the sentence imposed

by the district court, we affirm its judgment.
-29-

So ordered.