          United States Court of Appeals
                     For the First Circuit

No. 13–2075

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                      CHRISTOPHER MULLINS,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

        [Hon. John A. Woodcock, Jr., U.S. District Judge]



                             Before

                       Lynch, Chief Judge,
               Stahl and Kayatta, Circuit Judges.




     William S. Smith for appellant.
     Seth R. Aframe, Assistant United States Attorney, with whom
John P. Kacavas, United States Attorney, was on brief, for
appellee.


                        February 4, 2015
            KAYATTA, Circuit Judge.        Christopher Mullins appeals his

conviction and sentence for conspiring to possess and distribute

cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846.              He presses

three primary arguments on appeal: (1) the record lacks sufficient

evidence to convict him of the charged conspiracy; (2) the district

court plainly erred in instructing the jury on the conspiracy

charge; and (3) the district court clearly erred in calculating the

drug quantity attributable to Mullins. Finding all three arguments

unpersuasive, we affirm the conviction and the sentence in all

respects.

                             I.    Background

A.   The Evidence

            Because    Mullins    challenges      the    sufficiency    of   the

evidence after a jury found him guilty, "we view the facts in the

light most favorable to the verdict."             United States v. Adorno-

Molina, No. 13–1065, 2014 WL 7234953, at *1 (1st Cir. Dec. 19,

2014).

            In   September   2011,       Maine    Drug    Enforcement   Agency

("MDEA")    agents    investigated   a     drug   trafficking    organization

operating out of 100 Ohio Street in Bangor, Maine.              The leaders of

this organization shipped crack and powder cocaine from the New

York City area to Maine via Greyhound bus.                   As part of the




                                     -2-
investigation, MDEA agents, using a confidential informant ("CI"),1

conducted a controlled purchase of $350 worth of powder cocaine

from Mullins.    CI wore a "body wire" (an electronic transmitting

device that transmits all audio within earshot).        After CI arrived

at   Mullins's   apartment,   Mullins   called    the   100   Ohio   Street

organization.    During the call, Mullins mentioned someone named

"Bullet,"2 a member of the organization.

            Shortly after Mullins called, a green Lexus pulled up to

his apartment.    "Fish,"3 another member of the organization, came

inside Mullins's apartment.     Mullins and Fish met alone for about

two minutes, and then Fish left. Mullins then handed CI eight bags

of powder cocaine.    CI had purchased ten bags, but only received

eight, because Mullins kept two as a fee.

            Two months later, on November 2, 2011, MDEA agents

arrested Mullins.    On that same day, they searched 100 Ohio Street

and an apartment located on Garland Street also used by the

conspirators to store drugs, seizing approximately 368 grams of

crack from the Garland Street location.          After receiving Miranda



      1
        We refer to the informant as CI only "in light of concerns
about the safety of cooperating witnesses raised by the Committee
on Court Administration and Case Management of the Judicial
Conference of the United States." United States v. Etienne, 772
F.3d 907, 912 n.1 (1st Cir. 2014).
      2
          Bullet's name is Jowenky Nunez.
      3
       Fish's name is Manuel Trinidad-Acosta. See United States v.
Trinidad-Acosta, 773 F.3d 298 (1st Cir. 2014).

                                  -3-
warnings, Mullins provided MDEA agents with a recorded statement,

during which he communicated the following: He started working for

the members of the organization (to whom he referred as "the

Dominicans") in November 2010.        By June 2011, he had four or five

customers to whom he regularly sold crack and powder cocaine.

Mullins reported that he purchased from the Dominicans, on average,

$5,000   worth   of   crack   and   powder   cocaine   per   week,   and,   on

occasion, as much as $5,000 in a single night.4              He would resell

the drugs for his own profit, either by taking some portion of the

sale, as he did in the controlled purchase, or by reselling at a

higher price.     Mullins referred to himself as a "runner" for the

Dominicans.      He also said that there were times when customers

would try to purchase drugs directly from the Dominicans, but the

Dominicans would tell them, "no, go see Chris [Mullins]."

B.   Trial and Sentencing

           A grand jury indicted Mullins for conspiring to possess

with intent to distribute cocaine and more than 28 grams of cocaine

base from September 2010 through November 2011.          At trial, the key

evidence against him was his own statement to the MDEA agents, the

testimony of CI, and the testimony of Pari Proffitt, a roommate of

the Dominicans.       Proffitt testified that 90 percent of the sales

made by the 100 Ohio Street organization were crack, and that



     4
       Mullins claimed that he once spent approximately $50,000 in
two months on drugs for personal use.

                                     -4-
Mullins was a frequent purchaser.              A law enforcement officer

testified that a "runner" is "a middleman," a "go-between the

larger dealer and the typical user."            A jury convicted Mullins

after the two-day trial.

            At sentencing, the district court ultimately held Mullins

responsible for 140 grams of crack.             The court conservatively

calculated that Mullins worked for his suppliers for only ten

weeks, from June 2011 until the end of September 2011 (subtracting

6 weeks when he was out of town).          The court found that he bought

about $4,000 worth of drugs per week, 90 percent of which was

crack.     The court found that crack goes for approximately $200 a

gram, and that Mullins kept 20 percent of the purchases for

himself.     The court did not hold Mullins accountable for the

estimated 10 percent of his sales that were cocaine, because both

parties agreed that it would have no effect on the applicable

sentencing range. Based on a base offense level of 28 and criminal

history    category   VI,   the   district    court    determined   that   the

guideline     sentencing    range   was      140–175   months.      U.S.S.G.

§ 2D1.1(c); id. ch. 5, pt. A. The district court sentenced Mullins

to 140 months in prison.

                              II.    Analysis

A.   Sufficiency of Evidence

            Mullins contends that the evidence was so lacking that it

at best showed he was a frequent purchaser of crack and cocaine--an


                                     -5-
addict who independently resold drugs to sustain his habit.                 We

review the denial of a motion for judgment of acquittal de novo.

United States v. Rosado-Pérez, 605 F.3d 48, 52 (1st Cir. 2010). We

draw all reasonable inferences in the prosecution's favor.               Id.

"If   a   reasonable   jury   could   find    [Mullins]   guilty   beyond    a

reasonable doubt of all elements of the charged offense, we must

affirm the conviction."       Id.

            To establish guilt on a conspiracy charge, the government

must prove that "an agreement existed to commit the underlying

substantive offense, and that the defendant elected to join the

agreement, intending that the underlying offense be committed."

United States v. Gómez-Rosario, 418 F.3d 90, 105 (1st Cir. 2005)

(internal quotation marks omitted).           Mullins's own statement was

more than enough to support a finding that he was, as he put it, a

"runner" for the 100 Ohio Street organization, rather than just a

user who independently resold drugs on his own.             Mullins argues

that his concession that he was a runner is "nebulous."            Perhaps.

But any ambiguity would seem to be irrelevant, since it matters

only that he had a role in the conspiracy, and not that the role be

some particular type of runner.              Moreover, the remainder of

Mullins's    statement   fleshed      out    further   details   that   amply

supported a finding that he was a member of the conspiracy that

operated out of 100 Ohio Street: he obtained on average $5,000

worth of crack per week, and          some of his retail customers were


                                      -6-
referred   to   him    by   the    organization   leaders.     In   short,   he

described himself in substance as a knowing and regular retail

middleman for his suppliers.5         See United States v. Boidi, 568 F.3d

24,   29–30     (1st   Cir.       2009)    (continuing   purchase   and   sale

relationship along with upstream dealer's knowledge of defendant's

redistribution permits a jury to infer agreement that defendant

possess and distribute drugs to advance common conspiratorial

goal); United States v. Moran, 984 F.2d 1299, 1303 (1st Cir. 1993).

The details of the sale to CI, and evidence that Mullins called the

organization's order number 116 times in four months added further

substantial support for the jury's conclusion.                In short, the

evidence was more than sufficient to support the verdict.6




      5
        In his pro se brief, Mullins also complains about the audio
quality of his recorded statement, portions of which were played
for the jury. But the jury was able to evaluate that recording for
itself, along with the interviewing officer's first-hand testimony
about the content of that interview.
      6
        In his pro se brief, Mullins contends that evidence of drug
type--crack or powder cocaine--was insufficient to support a
conviction. But, under the statute, the government need not prove
any specific type of controlled substance. See 21 U.S.C. § 841(a)
("[I]t shall be unlawful for any person knowingly or intentionally
(1) to . . . possess with intent to . . . distribute, or dispense,
a controlled substance[.]"); see also United States v. Andino, 627
F.3d 41, 48 (2nd Cir. 2010) (noting that the government does not
need to prove a "type-specific scienter on the defendant's part, as
a result of alleging a conspiracy involving a specific type of
drug").

                                          -7-
B.   Jury Instructions

          Mullins argues that the district court should have sua

sponte provided additional jury instructions on "the principles of

separate conspiracies."     Mullins failed to object below, so we

review only for plain error. United States v. Colon, 744 F.3d 752,

757 (1st Cir. 2014). Plain error requires Mullins to meet a "heavy

burden of showing (1) that an error occurred; (2) that was clear or

obvious; (3) that the error affected his substantial rights; and

(4) that the error also seriously impaired the fairness, integrity,

or public reputation of judicial proceedings."       Id. (internal

quotation marks omitted).

          Mullins is correct that a defendant charged with a

conspiracy is entitled to an instruction that he must be convicted

of the conspiracy charged, and not another conspiracy that might be

supported by the evidence, whenever the evidence would support a

finding of an illicit conspiracy other than the one charged.

United States v. Díaz, 670 F.3d 332, 350 (1st Cir. 2012).   But the

district court did provide such an instruction. In pertinent part,

the district court instructed that:

                 For you to find Mr. Mullins guilty of
          conspiracy, you must be convinced that the
          government has proved each of the following
          elements beyond a reasonable doubt: First,
          that   the   agreement    specified   in   the
          indictment, and not some other agreement or
          agreements, existed between at least two
          people to distribute and to possess with
          intent to distribute cocaine and cocaine base;


                                -8-
             and, second, that the defendant         willfully
             joined in that agreement.

             . . . .

             [T]he   government   must   prove   beyond   a
             reasonable doubt that those who were involved
             shared a general understanding about the
             crime.    Mere similarity of conduct among
             various people or the fact that they may have
             associated with each other or discussed common
             aims and interests does not necessarily
             establish proof of the existence of a
             conspiracy, but you may consider such factors.


An instruction like this has survived similar challenges.              See

United States v. Niemi, 579 F.3d 123, 126–27 (1st Cir. 2009);

United States v. Balthazard, 360 F.3d 309, 316 (1st Cir. 2004).

The instruction, as given, conveyed the substance of Mullins's

defense.     As such, his claim--especially on plain error review--

fails.   See Niemi, 579 F.3d at 127.

C.   Drug Quantity Calculation

             The specific type of controlled substance does matter for

purposes   of    applying   the   sentencing   guidelines.   See   U.S.S.G.

§2D1.1(c).      In his pro se brief, Mullins argues that there was no

basis for the district court's finding at sentencing that 90

percent of his dealings involved crack.         Mullins points us to the

controlled purchase, which involved only a small amount of powder

cocaine, not crack.

             We review a district court's factual findings regarding

drug quantity for clear error.        United States v. Green, 426 F.3d


                                     -9-
64, 66 (1st Cir. 2005).            Drug quantity findings may "be based on

approximations . . . as long as those approximations represent

reasoned estimates of drug quantity."                United States v. Ventura,

353 F.3d 84, 88 (1st Cir. 2003).                   A defendant may be held

responsible      only     for    drug   quantities    "foreseeable    to   [that]

individual."      United States v. Correy, 570 F.3d 373, 380 (1st Cir.

2009).    Foreseeability encompasses "not only . . . the drugs [the

defendant] actually handled but also . . . the full amount of drugs

that he could reasonably have anticipated would be within the ambit

of the conspiracy."             United States v. Santos, 357 F.3d 136, 140

(1st Cir. 2004).

               The district court's finding here had substantial support

in the record, and was thus not clearly erroneous: Proffitt

testified that crack accounted for 90 percent of the conspirators'

drug sales, and police seized 368 grams of crack when they searched

the Garland Street apartment. Proffitt also testified that Mullins

frequently purchased crack from Fish.                  To be sure, the drug

quantity calculation here was imprecise.               But Mullins could have

been held accountable for "the full amount of drugs that he could

reasonably have anticipated would be within the ambit" of the 100

Ohio Street conspiracy.           Id.   Instead, the court only held Mullins

accountable for a very conservative estimate of the crack that he

himself handled.         Imprecise drug-quantity findings are upheld when

they     are    "based     upon     conservative     estimates   or   favorable


                                         -10-
assumptions."   United States v. Rodriguez, 731 F.3d 20, 32 (1st

Cir. 2013).

                        III.   Conclusion

          For the foregoing reasons, we affirm.




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