United States Court of Appeals

For the First Circuit

No. 21-1815

UNITED STATES OF AMERICA,

Appellee,

v.

JULIO MEJIA, a/k/a Carlos,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Barron, Chief Judge,

Selya and Gelpí, Circuit Judges.

Thomas J. Gleason and Gleason Law Offices, P.C. on brief for 

appellant.

Kenneth A. Polite, Jr., Assistant Attorney General, Criminal 

Division, United States Department of Justice, Lisa H. Miller, 

Deputy Assistant Attorney General, Criminal Division, W. Connor 

Winn, Criminal Division, Appellate Section, Darcie N. McElwee, 

United States Attorney, Benjamin M. Block, Chief, Appellate 

Division, Johnathan G. Nathans, Assistant United States Attorney, 

on brief for appellee.
November 8, 2022
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SELYA, Circuit Judge. In this case, the district court 

allowed the government to rescind a plea agreement previously 

entered into with defendant-appellant Julio Mejia and proceeded to 

sentence the defendant to a 162-month term of immurement. The 

defendant appeals, arguing that the court should not have allowed 

the rescission of the plea agreement and that, compounding this 

blunder, the court miscalculated drug quantity and incorrectly 

imposed a role-in-the-offense enhancement. Concluding, as we do,

that the defendant is foraging in an empty cupboard, we affirm.

I

We briefly rehearse the relevant facts and travel of the 

case. "Where, as here, a sentencing appeal follows a guilty plea, 

we glean the relevant facts from the change-of-plea colloquy, the 

unchallenged portions of the presentence investigation report (PSI

Report), and the record of the disposition hearing." United States

v. Vargas, 560 F.3d 45, 47 (1st Cir. 2009).

In 2016, the authorities began investigating a sprawling 

drug-trafficking organization that was supplying significant

amounts of cocaine and fentanyl to drug dealers throughout Maine, 

New Hampshire, and Massachusetts. The defendant was involved hipdeep in the activities of the organization: at least until the 

end of 2016, he received orders from customers, set drug prices, 

and arranged the itineraries for drug couriers. 
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In December of 2016, the defendant turned over his list 

of customers to an associate, Inyemar Manuel Suazo, and departed 

for the Dominican Republic. His departure left Suazo in charge. 

But after the defendant returned to the United States on May 7, 

2017, he both resumed contact with Suazo and resumed involvement 

in the original drug-trafficking organization. By September,

though, the two men had gone their separate ways, and the defendant 

began running his own drug-trafficking enterprise.

The defendant's new enterprise involved some persons who 

had been participants in the original drug-trafficking 

organization. This roster of past participants included a courier, 

Rafael Espinal-Calderon. The defendant continued distributing 

cocaine and fentanyl through this new network until his arrest in 

2018.

In due course, a federal grand jury sitting in the 

District of Maine charged the defendant with conspiracy to 

distribute and to possess with intent to distribute 400 grams or 

more of a mixture or substance containing fentanyl. See 21 U.S.C. 

§§ 841(a)(1), 846. The defendant initially maintained his 

innocence, but he later changed his plea, pursuant to a written 

plea agreement. The district court accepted the defendant's guilty 

plea and ordered the preparation of a PSI Report.

When received, the PSI Report recommended a criminal 

history category of I and a total offense level (TOL) of forty-
- 5 -

three. The TOL included a drug quantity attribution, see USSG 

§2D1.1, a role-in-the-offense enhancement based on the defendant's

asserted leadership of "criminal activity that involved five or 

more participants," id. §3B1.1(a), and a reduction for acceptance 

of responsibility, see id. §3E1.1. The guideline recommendations 

limned in the PSI Report yielded a guideline sentencing range of 

life imprisonment. 

In March of 2019, the defendant entered into a 

cooperation agreement with the government, which both merged into 

and supplemented his plea agreement. (For ease in exposition, we 

henceforth refer to the plea agreement and the cooperation 

agreement, collectively, as the "supplemented plea agreement.") 

Pursuant to the supplemented plea agreement, the defendant pledged

to assist the government's ongoing investigation into drugtrafficking activities in various ways (including testifying when 

requested). For its part, the government pledged not to use any 

of the information provided by the defendant against him, to make 

his cooperation known upon his request, and to recommend a threelevel reduction for acceptance of responsibility under USSG 

§3E1.1.

The defendant began cooperating with the government and 

continued his assistance until November 27, 2020. At some time 

prior to that date, Suazo apparently approached the defendant, 

showed him a copy of the cooperation agreement, and threatened to 
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post it online if the defendant testified. Fearing for his and 

his family's safety, the defendant subsequently refused to testify 

against Suazo.

The government responded to this development by 

announcing that it would treat the supplemented plea agreement as 

a nullity. The defendant tried to parry this thrust: he moved 

either to scrap the indictment or to enforce the supplemented plea 

agreement because the government had breached the latter by 

withdrawing it "in bad faith." After determining that the 

defendant's failure to testify against Suazo constituted a 

material breach of the terms of the supplemented plea agreement, 

the court denied the motion.

On September 27, 2021, the district court convened the 

disposition hearing in the defendant's case. The government

reminded the court that the supplemented plea agreement had been 

abrogated by the defendant's refusal to testify and, therefore, 

should be deemed withdrawn. The defendant did not

contemporaneously object to the rescission of the supplemented

plea agreement, but his counsel urged the court to acknowledge the 

defendant's cooperation when weighing the sentencing factors made 

pertinent under 18 U.S.C. § 3553(a). Consequently, the

supplemented plea agreement was rejected by the court.

The disposition hearing devolved principally into an 

exchange of views about the appropriateness vel non of the drug-
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quantity and role-in-the-offense recommendations contained in the 

PSI Report. Amidst the sparring, the government suggested a 240-

month term of immurement, and the defendant suggested half that 

time.

Regarding drug quantity, the district court concluded 

that the PSI Report's figure (114,362.6618 kilograms of converted 

drug weight)1 was "supportable based upon the testimony of runners 

like Espinal-Calderon and others." And with respect to the fourlevel role-in-the-offense enhancement, the court found that the 

evidence "without a doubt [] satisfie[d] the five participant 

level" and made "absolutely clear that this defendant was the 

leader." 

After considering the section 3553(a) factors, the court 

concluded that the defendant "deserve[d] to be penalized far more 

heavily than the other members of the conspiracy." Even so, the 

court noted that the guideline sentencing range was 

"extraordinarily punitive and high" and that the defendant's 

cooperation, though not in full compliance with the supplemented

plea agreement, ought to "have a major impact in terms of the 

sentence" to be imposed. The court settled upon a 162-month term 

1 Where, as here, more than one type of drug is involved in 

an offense, the quantity of each drug is multiplied by a conversion 

factor to yield converted drug weight, so that quantities of 

different drugs may be combined into a single number for purposes 

of establishing the defendant's base offense level. See USSG 

§2D1.1(c), n.(K).
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of immurement — a downwardly variant sentence that amounted to one 

half of the bottom of the adjusted guideline sentencing range. 

This timely appeal followed. 

II

In this venue, the defendant advances three principal

claims of error.2 We address these claims sequentially. 

A

The defendant first challenges the district court's 

refusal to enforce his supplemented plea agreement. He insists 

that the government remained bound to the terms of the supplemented

plea agreement because his failure to testify against Suazo did 

not constitute a breach of his obligations under the agreement.3 

In cases involving an alleged breach of a plea agreement, 

we review disputed factual questions (such as those pertaining to 

the terms of the agreement or a parties' conduct) for clear error. 

2 In addition to these claims of error, the defendant 

separately contends that the government breached the supplemented 

plea agreement when it failed to protect his identity from Suazo 

and when it argued for a sentence exceeding 150 months. These 

contentions are undeveloped, and we deem them waived. See United 

States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). And in all 

events, we note that the supplemented plea agreement contains 

neither a commitment to protect the defendant's identity nor a 

commitment to recommend a 150-month sentence.

3 The defendant is not clear as to how the enforcement of the 

supplemented plea agreement would have worked to his advantage in 

this case. But because we discern no breach of that agreement on 

the government's part, see text infra, we need not probe this point 

more deeply.
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See United States v. Clark, 55 F.3d 9, 11 (1st Cir. 1995). 

Questions of law are reviewed de novo. See United States v. 

Almonte-Nuñez, 771 F.3d 84, 89 (1st Cir. 2014). Once any factual 

disputes are resolved, the question of whether a party "breached 

the terms of a plea agreement is usually a question of law, which 

we review de novo." Id. Inasmuch as cooperation agreements are 

analogous to plea agreements, see United States v. Lilly, 810 F.3d 

1205, 1211 (10th Cir. 2016); United States v. Carrillo, 709 F.2d 

35, 36 (9th Cir. 1983), we similarly afford de novo review to the 

question of whether a party breached the terms of a cooperation 

agreement. 

With respect to the supplemented plea agreement, 

"contract law supplies a useful reference point." United States

v. Alegria, 192 F.3d 179, 183 (1st Cir. 1999). If the language of 

an agreement "unambiguously resolves an issue, that usually ends 

the judicial inquiry." Id. So it is here. The agreement

unambiguously requires that the defendant "testify . . . at any 

and all grand juries, trials or other official proceedings in which 

his testimony is requested." It also warns that the defendant's 

failure to "perform any obligations under this Agreement" will

constitute a breach.

The defendant does not dispute that the supplemented 

plea agreement embodies these straightforward terms. Nor does he 

dispute that he did not comply with the government's request that 
- 10 -

he testify against Suazo. It follows, we think, that his argument

— that he did not breach the agreement by refusing to testify —

necessarily fails.

The defendant attempts to confess and avoid. He argues 

that contract-law principles excused his non-performance. But as 

we explain below, the doctrines that he advances do not apply to 

the circumstances at hand. 

First, the defendant seeks specific performance of the

supplemented plea agreement under the doctrine of substantial 

performance. Cf. United States v. Doe, 233 F.3d 642, 644-47 (1st 

Cir. 2000) (evaluating whether defendant had cooperated with 

government to an extent sufficient to compel specific performance 

of his plea agreement). In essence, he contends that the

supplemented plea agreement should be enforced despite his breach

because his cooperation enabled the government to accomplish its 

main objectives. The district court rejected this claim — and so 

do we.

The district court explained that the doctrine of 

substantial performance does not apply if a party's breach is 

material. See, e.g., Teragram Corp. v. Marketwatch.com, Inc., 444 

F.3d 1, 9-12 (1st Cir. 2006) (upholding release of party from 

further performance after counter-party committed material 

breach); U.S. Steel v. M. DeMatteo Constr. Co., 315 F.3d 43, 49-

50 (1st Cir. 2002) (rejecting argument for enforcement of contract 
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because arguing party had materially breached). A breach is 

material if it involves "an essential and inducing feature of the 

contract." Marketwatch.com, 444 F.3d at 11 (quoting Bucholz v. 

Green Bros. Co., 172 N.E. 101, 102 (Mass. 1930)). Here, the breach 

was material: the defendant's obligation to testify was essential 

to the supplemented plea agreement, was embodied in an express 

term in the agreement, and his refusal to testify broke a promise 

that had been a cornerstone of the government's decision to enter 

into that agreement. Moreover, the defendant's refusal to testify 

forced the government to nol pros its pending case against Suazo. 

See United States v. Suazo, 14 F.4th 70, 72-73 (1st Cir. 2021). 

Given these facts, the district court appropriately regarded the 

defendant's breach as material and, so, appropriately disregarded 

the doctrine of substantial performance.

Second, the defendant points to the doctrine of 

frustration of purpose. He contends that this doctrine applies 

because Suazo discovered his identity as an informant. We do not 

agree: frustration of purpose is a doctrine that comes into play

when "the non-occurrence of [the frustrating event] was a basic 

assumption on which the contract was made." Restatement (Second) 

of Contracts § 265 (Am. L. Inst. 1981).

To amplify, the defendant has failed to show that

ensuring his anonymity was a basic assumption underlying the

supplemented plea agreement. In terms, the agreement extended no 
- 12 -

assurance of anonymity to the defendant. And, furthermore, the 

agreement obligated the defendant to testify at an unlimited number

of unspecified trials, during which his identity as an informant

surely would have been disclosed. Seen in this light, it defies 

common sense to suggest — as the defendant does — that it was a 

"basic assumption" that Suazo would be kept in the dark and would

never learn of the defendant's arrangement with the government.4

This leaves the defendant's contention that the district 

court erred in failing to invoke either 18 U.S.C. § 3553(e) or

USSG §5K1.1, each of which enables a district court to consider a 

more lenient sentence. The former provision permits a district

court to impose a sentence below the statutory minimum "[u]pon 

motion of the Government." 18 U.S.C. § 3553(e). The latter 

provision permits a district court to depart downward from a 

properly calculated guideline sentencing range, "[u]pon motion of 

the government," to reward a defendant's substantial assistance. 

USSG §5K1.1.

The common thread running through these provisions is 

that each provision is triggered only "upon motion of the 

government." The government made no such motion here — nor is 

4 The defendant also makes a conclusory assertion that the 

government acted "in bad faith" in rescinding the supplemented 

plea agreement. But a showing of bad faith requires an evidentiary 

predicate, see Alegria, 192 F.3d at 187, and the defendant does 

not identify such a predicate here.
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there any allegation that the government reneged on a promise to 

make such a motion. Viewed against this backdrop, the defendant's 

contention withers on the vine. 

B

The defendant's next claim of error relates to the 

sentence imposed. A two-step pavane guides our inquiry. See

United States v. Nuñez, 852 F.3d 141, 144 (1st Cir. 2017). "First, 

we resolve any claims of procedural error, including any claims 

that implicate the accuracy of the sentencing court's calibration 

of the [guideline sentencing range]." Id. If the sentence passes 

procedural muster, we then address any claim of substantive 

unreasonableness. See id. 

In this instance, the defendant eschews any challenge to 

the substantive reasonableness of his sentence. Our review, 

therefore, is limited to his two claims of procedural error. Both 

claims were preserved below and, thus, engender review for abuse 

of discretion. See United States v. Rivera-Morales, 961 F.3d 1, 

15 (1st Cir. 2020). That is not a monolithic standard: within 

it, "we assay the district court's factfinding for clear error and 

afford de novo consideration to its interpretation and application 

of the sentencing guidelines." United States v. Flores-Machicote, 

706 F.3d 16, 20 (1st Cir. 2013). In the process, we bear in mind 

that — ordinarily — "facts found by a sentencing court must be 
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supported by a preponderance of the evidence." United States v. 

Ortiz-Carrasco, 863 F.3d 1, 3 (1st Cir. 2017).

1

Drug quantity is an important integer in the sentencing 

calculus, see United States v. Soto-Villar, 40 F.4th 27, 31 (1st 

Cir. 2022), and the defendant's first claim of procedural error 

targets the district court's drug-quantity determination. 

Specifically, the defendant contends that the court erred in 

overestimating the amount of drugs for which he was accountable. 

See USSG §2D1.1. In support, the defendant asserts that the drugquantity calculation derives from historical evidence of

transactions for which he was not responsible.

"[D]rug-quantity determinations are quintessentially 

factual in nature, and we review them for clear error." United 

States v. Dunston, 851 F.3d 91, 101 (1st Cir. 2017). In 

determining drug quantity, a sentencing court's findings "need not 

be precise to the point of pedantry." United States v. Ventura, 

353 F.3d 84, 88 (1st Cir. 2003). Rather, "[s]uch findings may be 

based on approximations drawn from historical evidence as long as 

those approximations represent reasoned estimates of drug 

quantity." Id. 

The district court accepted the PSI Report's estimate 

that the defendant was responsible for 114,362.6618 kilograms of 

converted drug weight, see supra note 1, comprising quantities of 
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cocaine and fentanyl attributable to the conspiracy during the 

defendant's involvement (that is, up until September of 2017). 

See United States v. Santos, 357 F.3d 136, 140 (1st Cir. 2004); 

USSG §1B1.3(a). The evidence supporting this calculation included 

seizures, intercepted telephone communications, information 

supplied by former couriers, and data provided by a close associate 

of the defendant. Notably, the close associate said that the 

defendant purchased half a kilogram of fentanyl and cut it into 

three-and-one-half kilograms of fentanyl every two or three weeks. 

Based on this last description, the PSI Report estimated that the 

defendant distributed three-and-one-half kilograms of a substance 

or mixture containing fentanyl every six weeks (a total of over

forty-five kilograms of fentanyl).

The defendant posits that the district court improperly 

used historical evidence in two ways. First, he submits that much

of the attributed drug weight came from transactions that occurred 

while he was in the Dominican Republic and thereafter. Building 

on this foundation, he argues that he should not be held 

accountable for the drugs that were trafficked after he left the 

United States. This argument, though, gains him no traction: a 

defendant is responsible "not only for the drugs he actually 

handled but also for the full amount of drugs that he could 

reasonably have anticipated would be within the ambit of the 

conspiracy." Santos, 357 F.3d at 140.
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To be sure, the defendant alleges that he separated

entirely from the drug-trafficking organization while he was 

abroad and, thus, should not be held responsible for drugs 

trafficked during and after that interval. This allegation cannot 

withstand scrutiny. Where, as here, "a conspiracy contemplates a 

continuity of purpose and a continued performance of acts, it is 

presumed to exist until there has been an affirmative showing that 

it has terminated." United States v. Piper, 298 F.3d 47, 53 (1st 

Cir. 2002) (quoting United States v. Elwell, 984 F.2d 1289, 1293 

(1st Cir. 1993)). A coconspirator's claim that he has withdrawn 

from the conspiracy thus "requires more than an empty claim of 

disaffection." Dunston, 851 F.3d at 103. To succeed on such a

withdrawal claim, a coconspirator "must act affirmatively either 

to defeat or disavow the purposes of the conspiracy." United 

States v. Juodakis, 834 F.2d 1099, 1102 (1st Cir. 1987) (per 

curiam). Typically, this requires "evidence either of a full 

confession to authorities or a communication . . . to his coconspirators that he has abandoned the enterprise and its goals." 

Id. Nothing of the sort is reflected in the record.

Arguing to the contrary, the defendant insists that he 

cut ties with the drug-trafficking organization and its goals when 

he gave his customer list to Suazo, left the country, and pursued 

other work opportunities. But a "[m]ere cessation of activity in 

furtherance of the conspiracy does not constitute withdrawal." 
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Id. (quoting United States v. Dunn, 758 F.2d 30, 37 (1st Cir. 

1985)); see United States v. David, 940 F.2d 722, 739-40 (1st Cir. 

1991) (concluding that defendants did not withdraw from conspiracy 

because defendants "attempted to resume more active 

participation . . . by reestablishing their supply relationship 

[with a coconspirator]"). Although the record indicates a hiatus 

in the defendant's conspiratorial activities, it lacks sufficient 

evidence to establish that the defendant actually withdrew from 

the conspiracy. After all, the defendant lost no time in resuming 

contact with Suazo shortly after his return to the United States 

— and he continued distributing drugs. In the absence of any 

compelling evidence of withdrawal, we are satisfied that the record 

supports a finding that the defendant remained involved in the 

conspiracy.

In a nutshell, the record supports the district court's 

finding that the challenged quantities fell within the scope of 

the conspiracy and were reasonably foreseeable to the defendant. 

We hold, therefore, that the district court's use of historical 

evidence regarding transactions during the defendant's sojourn in 

the Dominican Republic and thereafter until September of 2017 was 

not clearly erroneous. No more was exigible to attribute those 

drug quantities to the defendant. See Dunston, 851 F.3d at 101; 

Santos, 357 F.3d at 140. 
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The defendant also contests the court's reliance on 

anecdotal evidence, which accounts for the total amount of fentanyl 

and most of the cocaine attributable to him. He declares that 

these transactions are "projected, estimated, [and] unverified." 

And he specifically disputes the court's acceptance of EspinalCalderon's cocaine drug quantity estimate because the estimate was 

"self-serving."

This dog will not hunt. We have stated before, and today 

reaffirm, that "a sentencing court has wide discretion to decide 

whether particular evidence is sufficiently reliable to be used at 

sentencing." United States v. Cintrón-Echautegui, 604 F.3d 1, 6 

(1st Cir. 2010). In the context of drug-trafficking transactions, 

"[d]etermining drug quantities after the fact is . . . likely to 

require a careful sorting of anecdotal information and the exercise 

of sound judgement." United States v. Bernier, 660 F.3d 543, 548 

(1st Cir. 2011). The upshot is that "a sentencing court's 

selection from among plausible alternative scenarios or divergent 

inferences presented by the record cannot be clearly erroneous." 

Id. at 547. 

The court below determined that the calculations were 

"supportable based upon the testimony of runners . . . and 

others." The court explained that "[t]he fact that EspinalCalderon never physically met the defendant or wasn't sure of his 

real name does not matter because the identity of the defendant 
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comes from others and his role in the organization." In addition, 

the court noted that the defendant's close associate had described 

the defendant's handling of drugs in a way that was "consistent 

with the defendant's own proffer." So, too, the court observed

that the probation department had exercised "leni[ency]" when 

estimating the amount of fentanyl derived from the close 

associate's statements by expanding the estimated two-to-threeweek intervals to six weeks. On this scumbled record, the district 

court's drug-quantity determination was a reasoned estimate and, 

thus, not clearly erroneous.5

2

This brings us to the defendant's last claim of error: 

his entreaty that the district court should not have deployed a 

four-level role-in-the-offense enhancement in calculating his 

guideline sentencing range. See USSG §3B1.1(a). In support, he 

argues that Suazo was the clear leader of the drug-trafficking

organization.

We begin with the basics. USSG §3B1.1(a) provides for 

a four-level enhancement if "the defendant was an organizer or 

5 In his briefing, the defendant requests an evidentiary 

hearing on the drug-quantity issue. This request was not made 

below and, thus, we deem it waived. See United States v. Maglio, 

21 F.4th 179, 187 n.4 (1st Cir. 2021); see also United States v. 

Adams, 971 F.3d 22, 37 (1st Cir. 2020) (holding that appellant's 

request for a hearing "falls squarely within the general rule that 

a party cannot ask the court of appeals for relief that he did not 

seek in the district court").
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leader of a criminal activity that involved five or more 

participants or was otherwise extensive." As to this enhancement

— as with all upward adjustments under the sentencing guidelines

— the government must carry the devoir of persuasion by a 

preponderance of the evidence. See United States v. Rivera, 51 

F.4th 47, 51 (1st Cir. 2022). Discussing this enhancement, we 

recently explained that "the government's evidence must satisfy 

both a scope requirement (that is, the evidence must show that the 

enterprise involved five or more participants or was otherwise 

extensive) and a status requirement (that is, that the defendant 

acted as an organizer or leader of the enterprise)." Id.

A criminal enterprise that conducted its operations

under the aegis of a formal organization chart would be a rarity. 

Typically, such enterprises are structured informally and, 

therefore, a defendant's role in the enterprise "is necessarily 

fact-specific." United States v. Graciani, 61 F.3d 70, 75 (1st 

Cir. 1995). As a result — and absent a mistake of law — role-inthe-offense disputes "will almost always be won or lost in the 

district court." Id. 

Here, the scope requirement is plainly satisfied: the 

record paints a picture of a drug-trafficking organization with 

many tentacles, and the defendant does not dispute that the 

organization involved five or more participants. The factual

question, then, is whether the record supports the district court's 
- 21 -

finding that the defendant was a leader of the organization. 

Reviewing for clear error, see Ventura, 353 F.3d at 89, we think 

that it does.

The record shows with conspicuous clarity that the 

defendant was the point man with whom drug dealers regularly placed 

their orders — and he set the prices for the conspiracy's wares. 

In addition, he gave the drug couriers their assignments on 

numerous occasions. Put bluntly, he was a hub of the drugtrafficking organization's wide-ranging activities.

The defendant's only rejoinder to this factual panoply 

is his argument that he could not be deemed a leader because Suazo 

was the leader. This argument, however, rests on a faulty premise. 

The commentary to the sentencing guidelines makes pellucid that 

there can "be more than one person who qualifies as a leader or 

organizer of a criminal association or conspiracy." USSG §3B1.1, 

cmt. 4. We deem this commentary authoritative. See United States

v. Rivera-Berríos, 902 F.3d 20, 24-25 (1st Cir. 2018). 

Accordingly, we hold today — as we have held in past cases, see, 

e.g., United States v. Ilarraza, 963 F.3d 1, 14 (1st Cir. 2020); 

Ventura, 353 F.3d at 90 — that for sentencing purposes, there can 

be more than one leader or organizer of criminal activities. This 

is such a case.
- 22 -

3

To say more would be to paint the lily. Having carefully 

reviewed the defendant's claims of procedural error, we discern 

none.

III

We need go no further. For the reasons elucidated above, 

the judgment of the district court is 

Affirmed.