               Not for Publication in West's Federal Reporter
              Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                       For the First Circuit

No. 03-2283

                     UNITED STATES OF AMERICA,

                                Appellee,

                                     v.

                             JUAN TAVERAS,

                        Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                     FOR THE DISTRICT OF MAINE

          [Hon. George Z. Singal, U.S. District Judge]


                                  Before

                        Selya, Circuit Judge,

          Coffin and Campbell, Senior Circuit Judges.


     Todd A. Bussert on brief for appellant.
     Paula D. Silsby, United States Attorney, and Margaret D.
McGaughey, Assistant United States Attorney (Appellate Chief), on
brief for appellee.


                          December 21, 2004
                Per Curiam.     This is an appeal from a sentence imposed

pursuant to the federal sentencing guidelines. The underlying case

arose out of a two-count superseding indictment that charged

defendant-appellant Juan Taveras with conspiracy to possess with

intent to distribute fifty grams or more of cocaine base and a

detectable amount of heroin (count 1) and distribution of five

grams or more of cocaine base and a detectable amount of heroin

(count 2).          See 21 U.S.C. §§ 841(a)(1), 846.                The appellant

eventually        entered   a   straight    plea   of   guilty     (i.e.,   a   plea

unaccompanied by a plea agreement) to count 2 of the superseding

indictment.1

                The district court convened a sentencing hearing on

September 3, 2003.          It found the appellant responsible for 54.9

grams of cocaine base and 67.365 grams of heroin, aggregating

1,165.4 kilograms of marijuana equivalent.                That finding yielded a

base offense level of 32.          See USSG §2D1.1.        The court subtracted

three levels for acceptance of responsibility, id. §3E1.1; placed

the appellant in criminal history category III; and constructed a

guideline sentencing range of 108-135 months, see id. Ch.5, Pt.A

(sentencing table).         The court proceeded to sentence the appellant

to   a       118-month   incarcerative     term,   four    years   of   supervised

release, and payment of a $100 special assessment.



         1
      The district court dismissed count 1 on the government's
motion.

                                         -2-
            In essence, the appellant assigns error in only two

respects.   First, he contests the sentencing court's drug-quantity

determination.    Second, he advances a constitutional challenge to

his sentence based on the Supreme Court's recent decision in

Blakely v. Washington, 124 S. Ct. 2531 (2004).        As we explain

below, both assignments of error lack merit.

                            Drug Quantity

            Drug quantity often drives the length of a defendant's

sentence in a narcotics trafficking case.      See United States v.

Sepulveda, 15 F.3d 1161, 1196 (1st Cir. 1993).        For sentencing

purposes, a defendant is accountable not only for drugs that were

actually involved in the crime of conviction but also for what was

involved in any "relevant conduct."     See United States v. Laboy,

351 F.3d 578, 582 (1st Cir. 2003); see also USSG §1B1.3.    Relevant

conduct includes all acts "'that were part of the same course of

conduct or common scheme or plan as the offense of conviction,'

whether or not charged in the indictment." United States v. Sklar,

920 F.2d 107, 110 (1st Cir. 1990) (quoting USSG §1B1.3(a)(2)).

            At sentencing, the government bears the burden of proving

drug quantity.   See United States v. Huddleston, 194 F.3d 214, 224

(1st Cir. 1999).     In determining drug quantity, the sentencing

court may accept, and act upon, any reliable evidence.    See Sklar,

920 F.2d at 113.     Typically, the court makes its drug-quantity

determination by reference to a preponderance of the evidence. See


                                 -3-
United States v. Eirby, 262 F.3d 31, 37 (1st Cir. 2001).              Under

that standard, the amount need not be exact; "[a]n approximation of

drug quantity will be upheld 'as long as it represents a reasoned

estimate.'"    Huddleston, 194 F.3d at 224 (quoting United States v.

Webster, 54 F.3d 1, 5 (1st Cir. 1995)).

            The court below credited some of the testimony of Michael

Pushard,    the   appellant's     "middleman,"   who   testified    at   the

disposition    hearing   as   a   government   witness.    The     appellant

concedes that Pushard's testimony, if taken at face value, supports

the disputed drug-quantity finding.            He argues, however, that

Pushard was a turned accomplice, a heroin addict, an inconsistent

and at times self-contradictory witness, and otherwise unreliable.

            A sentencing court has considerable latitude in making

credibility determinations.        See, e.g., United States v. Sanchez,

354 F.3d 70, 83 (1st Cir.), cert. denied, 124 S. Ct. 2187, 2189

(2004); United States v. Olivier-Diaz, 13 F.3d 1, 4 (1st Cir.

1993).     The standard of review is deferential, as an appellate

court will set aside a sentencing court's factual findings only for

clear error.      United States v. Ruiz, 905 F.2d 499, 507 (1st Cir.

1990).     Under that standard, we must affirm the district court's

decision "[s]o long as [it] is based on reasonable inferences drawn

from adequately supported facts."         United States v. Santos, 357

F.3d 136, 142 (1st Cir. 2004).




                                    -4-
            We have reviewed the presentence investigation report,

the sentencing transcript, and other relevant materials.               Having

done so, we are not left with an impression that the sentencing

court's drug-quantity finding is outside the realm of reason.

After all, it is within the sentencing court's purview to credit

some portions of a witness's testimony, but not others. See, e.g.,

Huddleston, 194 F.3d at 223-24 (explaining that a factfinder may

reject a witness's testimony as to one matter, but accept it as to

another).   That is what the court did here with regard to Pushard's

testimony. That testimony, though suspect for the reasons cited by

the appellant, was not so farfetched as to require the court to

ignore it entirely.

            We give credit where credit is due.              Mindful of the

circumstances, the sentencing court took care to limit its reliance

upon Pushard's testimony, making findings only as to transactions

proven by a preponderance of the evidence and excluding from its

calculus    those    deliveries   supported    by   weaker    or   otherwise

uncorroborated testimony.         That cautious approach warrants our

respect.    Cf. United States v. Whiting, 28 F.3d 1296, 1305 (1st

Cir. 1994) (noting that a court must take "special care" in

approximating       drug   quantity   but   assigning   no     error   to    a

"conservative estimate [that] left a fair margin of safety").               We

therefore reject the appellant's attack on the sentencing court's

drug-quantity finding.


                                      -5-
                               Blakely

          The appellant also invites this court to set aside his

sentence on the basis of the Supreme Court's decision in Blakely v.

Washington, 124 S. Ct. 2531 (2004).      We refuse the invitation.

          Blakely examined the constitutionality of a Washington

state sentencing scheme.     After the defendant pleaded guilty to

kidnaping, the trial court imposed a sentence above the statutory

maximum based on a finding of "deliberate cruelty."      Id. at 2534-

35.   The Supreme Court noted that this finding was "neither

admitted by [the defendant] nor found by a jury," id. at 2537, and

declared the augmented sentence to be violative of Blakely's Sixth

Amendment right to trial by jury, id. at 2538.

          While the Court made clear that the federal sentencing

guidelines were not before it and expressed no opinion on their

validity, id. at 2538 n.9, the rationale of Blakely calls their

constitutionality into doubt. Indeed, the Court has recently taken

this question under advisement.     See United States v. Booker, No.

04-104 (argued Oct. 4, 2004); United States v. Fanfan, No. 04-105

(argued Oct. 4, 2004).     That doubt, however, does not redound to

the appellant's benefit.

          In this case, the sentencing court ruled, inter alia,

that the appellant's base offense level should be increased due to

its drug-quantity determination. The increase in the offense level

yielded an elevated guideline sentencing range and, thus, led to a


                                  -6-
more onerous sentence.    The appellant now attempts, for the first

time, to mount a Blakely challenge. He posits, correctly, that the

fact on which the upward adjustment depends — drug quantity — was

neither determined by a jury nor established beyond a reasonable

doubt.

            Leaving to one side the fact that this case involves a

guilty plea, not a jury verdict, the record is crystal clear that

the appellant failed to advance this argument in the lower court.2

Arguably,    this   omission   constitutes   a   waiver;   if   not,   it

constitutes a forfeiture. See United States v. Morgan, 384 F.3d 1,

7-8 (1st Cir. 2004) (discussing this question); see also United

States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002) (explicating

the different consequences of waiver and forfeiture), cert. denied,

538 U.S. 937 (2003).      We need not resolve that question today.

Assuming, favorably to the appellant, that the omission constitutes

a forfeiture, his argument fails.

            Forfeited claims are reviewable only for plain error.

See Rodriguez, 311 F.3d at 437.         Plain error review is not

appellant-friendly. Under that standard, the court of appeals will

reverse the trial court's decision only if a defendant demonstrates

"(1) that an error occurred (2) which was clear or obvious and

which not only (3) affected [his] substantial rights, but also (4)


     2
      The fact that Blakely had not been decided at the time of
sentencing does not excuse this default. See United States v. Del
Rosario, 388 F.3d 1, 13 n.8 (1st Cir. 2004).

                                  -7-
seriously impaired the fairness, integrity, or public reputation of

judicial proceedings."     United States v. Duarte, 246 F.3d 56, 60

(1st Cir. 2001).     We discern no plain error here.

          As said, the district court sentenced the appellant on

September 3, 2003.    That was nine months before the Supreme Court

decided Blakely.      Circuit precedent in force at the time of

sentencing, in line with the Supreme Court's decision in Apprendi

v. New Jersey, 530 U.S. 466 (2000), provided that a drug-quantity

finding did not need to be presented to a jury or proven beyond a

reasonable doubt so long as the resulting sentence did not exceed

the statutory maximum for the offense of conviction.      See, e.g.,

Derman v. United States, 298 F.3d 34, 43 (1st Cir.), cert. denied,

537 U.S. 1048 (2002); Eirby, 262 F.3d at 37; United States v.

Robinson, 241 F.3d 115, 119 (1st Cir. 2001).

          Here, the offense to which the appellant pleaded carries

a maximum sentence of forty years.      See 21 U.S.C. § 841(b)(1)(B).

Whether Blakely has fatally undermined previous circuit authority

is an unsettled question and, whatever the ultimate outcome, the

answer is at this moment neither clear nor obvious.     Accordingly,

we cannot hold that the district court committed plain error when

it sentenced the appellant on the bases, in part, of the disputed

drug-quantity finding and the dates of the relevant conduct.     See

United States v. Del Rosario, 388 F.3d 1, 14-15 (1st Cir. 2004);




                                  -8-
United States v. Cordoza-Estrada, 385 F.3d 56, 60 (1st Cir. 2004)

(per curiam); Morgan, 384 F.3d at 8.

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

the appellant's conviction and sentence are summarily affirmed.

See 1st Cir. R. 27(c).



Affirmed.




                                 -9-
