          United States Court of Appeals
                      For the First Circuit


No. 10-2462

                          UNITED STATES,

                            Appellee,

                                v.

                     REYNALDO LANDRÓN-CLASS,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

         [Hon. Francisco A. Besosa, U.S. District Judge]



                              Before

                       Lynch, Chief Judge,
                 Selya and Lipez, Circuit Judges.


     Rafael F. Castro Lang for appellant.
     Scott H. Anderson, Assistant United States Attorney, with whom
Rosa Emilia Rodriguez-Velez, United States Attorney, Nelson Pérez-
Sosa and Thomas F. Klumper, Assistant United States Attorneys, were
on brief, for appellee.



                         August 29, 2012
            LIPEZ, Circuit Judge. Appellant, Reynaldo Landrón-Class,

was tried and convicted in the United States District Court for the

District of Puerto Rico for his role in a scheme to illegally

obtain and distribute prescription drugs. On appeal, Landrón-Class

challenges his conviction on numerous grounds, including: 1) a pre-

trial ruling during the voir dire, 2) evidentiary rulings made by

the district court during his trial, 3) the court's decision not to

order certain documents turned over to him as Jencks Act material,

and 4) the denial of his motion for a judgment of acquittal under

Federal Rule of Criminal Procedure 29.          He also asserts multiple

errors in the determination of his sentence.

            We conclude that the district court did err in allowing

testimony   about   the   guilty   pleas   of   appellant's   former   co-

defendants; however, this error was harmless.          Additionally, in

resolving a claim of sentencing error, we join other circuits in

holding that, in determining the appropriate sentence within the

guidelines, or in varying from the guidelines, a sentencing court

has discretion to consider the defendant's cooperation with the

government as an 18 U.S.C. § 3553(a) factor, even if the government

has not made a United States Sentencing Guidelines ("USSG") § 5K1.1

motion for a downward departure.

            Finding no reversible error in the district court's

decisions, we affirm.




                                   -2-
                                       I.

            We   begin   with   an    abbreviated     version   of   the   facts

underlying this appeal, reserving for our analysis of appellant's

individual arguments a more detailed description of the facts

relevant to each.    We present the facts in the light most favorable

to the verdict.     See United States v. Díaz, 670 F.3d 332, 337 (1st

Cir. 2012).

            Appellant was originally indicted with twenty-one other

defendants for his role in a conspiracy to possess and distribute

approximately 435 kilograms of oxycodone and 278 kilograms of

alprazolam from January 2005 to September 2007.                  He moved to

dismiss the indictment, arguing that there was no single conspiracy

among the various co-defendants.             The district court denied this

motion as moot after appellant was re-indicted, in September 2009,

with just one other co-defendant, Miriam Daisy-Perez.                  This new

indictment charged that the two co-defendants conspired to possess

with intent to distribute approximately forty-four kilograms of

oxycodone   over   the   period      January   2005   to   September   2007.1

Specifically, appellant allegedly obtained, from a single doctor,



     1
        Oxycodone is an opiate analgesic, available only by
prescription. As an opiate, it has an effect on users similar to
that of heroin, and it is often used recreationally. Because of
these facts, it is classified as a Schedule II controlled substance
under the Controlled Substances Act and implementing regulations,
21 C.F.R. § 1308.12(b)(1)(xiii), meaning that it "has a currently
accepted medical use," but also "a high potential for abuse," 21
U.S.C. § 812(b)(2)(A) & (B).

                                       -3-
at least 2,700 medically unnecessary prescriptions for oxycodone in

his name and the names of others, and used these prescriptions to

obtain oxycodone from various pharmacies.

            Appellant was offered a deal by the government, whereby

it would recommend a sentence of seventy months' incarceration if

he pled guilty to the charges.         He rejected this offer because of

the disparity between the deal offered to him and that offered to

other defendants      involved    in   the same      scheme.2         Accordingly,

appellant was tried before a jury in June 2010.              Even though he had

admitted the offense conduct during the government's investigation,

appellant denied at trial his participation in the conspiracy and

argued that he was factually innocent.

            The    primary    government     witness   was     Dr.    Jose     Victor

Vázquez-Senti, from whom appellant obtained the prescriptions used

in   the   scheme.     Dr.     Vázquez-Senti       testified    that       appellant

initially came to him as a patient in late 2004, complaining of

back pain.        However, after the treatment ended, Vázquez-Senti

continued    to   supply     prescriptions    to    appellant        for   a   fee.

Initially, appellant simply dictated the names that Vázquez-Senti

used to write prescriptions.        But, around December 2006, appellant

provided five "patient" lists to Vázquez-Senti, each containing



      2
       For example, Daisy-Perez was the owner of a pharmacy from
which oxycodone was obtained.   She negotiated a non-cooperation
plea agreement calling for a sentence of probation and was
ultimately sentenced to three years' probation.

                                       -4-
between six and fifty-six names and addresses. Appellant regularly

called   Vázquez-Senti         to     instruct     the    doctor           to   write     new

prescriptions      in   the    names    of    individuals        on    the      lists,    and

Vázquez-Senti subsequently delivered the prescriptions to appellant

-- about twenty each week.               Generally, the prescriptions were

filled at one of three pharmacies, and, over the course of the

conspiracy,       Vázquez-Senti        wrote       at    least        2,700        medically

unnecessary prescriptions for appellant's use.

             The Drug Enforcement Administration ("DEA") became aware

of the unusual pattern of Vázquez-Senti's prescriptions and started

an investigation.       The DEA secured a wiretap of the doctor's phone

and recorded calls in which the doctor and appellant discussed

their activities, including the preparation of prescriptions and

how   best   to   obtain      drugs    from    various    pharmacies.               The   DEA

eventually arrested appellant, Vázquez-Senti, and twenty other

individuals, including owners of the pharmacies from which drugs

were obtained and individuals who filled the prescriptions at the

pharmacies.       Excepting appellant, each of the other individuals

indicted pled guilty to at least some of the charges against them.

             At the conclusion of a four-day jury trial, appellant was

found guilty of conspiracy to possess with intent to distribute

676.50 grams of oxycodone. The jury also found that the government

was entitled to a forfeiture of $541,200, the estimated proceeds of

the   conspiracy.          Appellant         was   sentenced          to     240     months'


                                         -5-
incarceration, which was below the guidelines range, but the

maximum sentence permitted by statute.         This appeal followed.

                                     II.

A.    Pre-trial and Trial Rulings

            1.   Voir Dire of Potential Jurors

            Appellant challenges two aspects of the district court's

handling of the voir dire.         He argues that it was error for the

court to decline to ask potential jurors questions that he proposed

concerning their legal use of prescription drugs, prior grand jury

service, and general personality traits.           He also argues that the

court erred in failing to dismiss juror number 26 for cause because

of a purported bias against drug users and the fact that she was

the daughter of two attorneys -- a retired judge and a former

attorney with the Puerto Rico Department of Justice.

            We review challenges to the trial court's voir dire of

the jury under an abuse of discretion standard.          United States v.

Sherman, 551 F.3d 45, 49 (1st Cir. 2008).             We have noted that,

"[b]ecause the trial court observes the demeanor and reactions of

the   prospective   jurors,   we    review   its   determination   of   jury

impartiality with 'special deference.'"        Id. at 51 (quoting United

States v. Moreno Morales, 815 F.2d 725, 733 (1st Cir. 1987)).

Furthermore, a court "need not . . . pose every voir dire question

requested by a litigant.       It is more than enough if the court

covers the substance of the appropriate areas of concern by framing


                                     -6-
its own questions in its own words."                Id. (quoting Real v. Hogan,

828    F.2d    58,    62   (1st    Cir.   1987))    (internal    quotation        marks

omitted).

              Here,     although    the    district    court    declined     to   give

prospective jurors the questionnaire proposed by appellant, it

noted that many questions included in the questionnaire were

similar to the questions that it did ask prospective jurors.                       For

example, it asked about experience with drugs and drug-related

crimes, whether the prospective jurors had connections to law

enforcement,         either   themselves     or    through   friends   and    family

members, and whether the prospective jurors felt that they would be

able    to    presume      appellant      innocent.      These    questions       were

sufficient to probe for potential biases.                It was not an abuse of

discretion for the court to decline to ask the questions proposed

by appellant.

              The court also did not err in declining to strike juror

number 26 for cause.          After individual questioning of this juror,

the court determined that she did not have a bias against drug

users.       Although the court also noted that the juror's father was

a retired judge, it determined that this fact did not render her

unfit for jury service, an unremarkable conclusion.                    As we have

explained, "[t]here are few aspects of a jury trial where we would

be less inclined to disturb a trial judge's exercise of discretion,

absent clear abuse, than in ruling on challenges for cause in the


                                           -7-
empaneling of a jury." United States v. Gonzalez-Soberal, 109 F.3d

64, 69-70 (1st Cir. 1997) (internal quotation marks omitted).

There was no abuse of discretion here.

            2.   Authentication of Prescriptions by Vázquez-Senti

            Appellant's     challenges     to     his   conviction     include

preserved     evidentiary    objections,        reviewable   for     abuse   of

discretion.      United States v. Mare, 668 F.3d 35, 38 (1st Cir.

2012).    Of course, even if such an error occurred, it would not

serve to overturn a conviction if it ultimately proved harmless.

See United States v. Walker, 665 F.3d 212, 231-32 (1st Cir. 2011).

An error is harmless if we can conclude "with fair assurance, after

pondering all that happened without stripping the erroneous action

from the whole, that the judgment was not substantially swayed by

the error."      Id. at 231 (quoting Kotteakos v. United States, 328

U.S. 750, 765 (1946)) (internal quotation marks omitted).

            The district court admitted into evidence approximately

2,700    prescriptions    written   by    Vázquez-Senti      and   seized    by

government agents from computers at the three different pharmacies

from which appellant obtained drugs.              They were admitted into

evidence pursuant to Federal Rule of Evidence 901(b)(1), which

allows authentication through testimony of a witness with knowledge

of the nature of the item.       The government provided a foundation

for the prescriptions through testimony by Vázquez-Senti, who

reported that he wrote them and gave them to appellant and others.


                                    -8-
Vázquez-Senti   testified    that   the   prescriptions     were   medically

unnecessary and that he took the names appearing on them from the

lists that appellant provided to him.         On appeal, appellant argues

that it was error for the court to admit the prescriptions without

authenticating testimony from someone with knowledge of how the

prescriptions were presented and filled at each pharmacy.

           Rule 901(b)(1) permits authentication of evidence on the

basis of   "[t]estimony     of a    witness   with    knowledge"   that the

evidence is what it is claimed to be.         Thus, "[a] document can be

authenticated [under Rule 901(b)(1)] by a witness who wrote it,

signed it, used it, or saw others do so."            Orr v. Bank of Am., NT

& SA, 285 F.3d 764, 774 n.8 (9th Cir. 2002) (second alteration in

original) (quoting 31 Charles Alan Wright & Victor J. Gold, Federal

Practice & Procedure: Evidence § 7106 (2000)) (internal quotation

marks omitted); see also Dugas v. Coplan, 428 F.3d 317, 334 n.25

(1st Cir. 2005) (noting that a letter may be authenticated under

Rule 901(b)(1) by testimony from its author).

           In this case, Vázquez-Senti testified that he wrote all

of the prescriptions offered into evidence by the government.

Having so testified, he could authenticate the prescriptions as

those written at the request of appellant and testify that they

were medically unnecessary.         See Orr, 285 F.3d at 774 n.8.

Vázquez-Senti testified that he had reviewed the prescriptions,




                                    -9-
recognized them as coming from his prescription pad, and identified

his signature.

            Appellant's argument that the prescriptions were used to

show how they were presented at various pharmacies -- a topic on

which   Vázquez-Senti   lacked     knowledge     --     has   no   merit.     The

government did not have to show how the prescriptions were filled

to convict appellant of conspiracy.              It was enough to prove

appellant's role in the conspiracy to show that he obtained the

prescriptions with the intent that they be used for an illegal

purpose.    See United States v. Medina-Martinez, 396 F.3d 1, 5 (1st

Cir. 2005) ("To prove conspiracy in a criminal case, the government

must prove beyond a reasonable doubt 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.").       Moreover, the government offered the

prescriptions to show how appellant obtained the drugs sold through

the   scheme.    Vázquez-Senti     was     the   only    witness    capable    of

testifying to the origin of the prescriptions and to the fact that

they were medically unnecessary. A DEA agent later testified as to

how   the   prescriptions   were   seized    from     various      pharmacies.

Accordingly, the court's decision to admit the prescriptions with

Vázquez-Senti's authentication was not an abuse of its discretion.




                                    -10-
            3.   Vázquez-Senti's Testimony Regarding Other Defendants

            During his cross-examination, appellant asked Vázquez-

Senti about benefits he was receiving from the government in

exchange for his testimony. Vázquez-Senti acknowledged that he was

held responsible for only 745 medically unnecessary prescriptions,

and appellant contrasted this number with the 20,000 that Vázquez-

Senti had    admitted     to    writing.    On   redirect,    the   government

attempted to diffuse this impeachment by eliciting testimony about

Vázquez-Senti's     co-defendants,     showing    that   they     had   received

similar reductions even though they were not testifying.                      Over

appellant's objection, the district court allowed the government to

ask Vázquez-Senti if he knew the status of the charges against his

co-defendants.      After Vázquez-Senti indicated that he did, the

government asked, "[a]re you aware as to whether or not they pled

guilty to 435 kilos of oxycodone, or they pled guilty to a lesser

amount?"    Vázquez-Senti replied, "I believe it were [sic] to a

lower amounts."      The government briefly alluded to these guilty

pleas   again    during   its     closing   argument.        In   response     to

appellant's objection, the court ruled that appellant had opened

the door on cross-examination to this redirect testimony by asking

Vázquez-Senti     about   the    benefits   he   received    because     of   his

cooperation.

            Appellant now repeats his argument that admission of this

testimony was inappropriate and prejudicial.                In defending the


                                     -11-
district court's ruling, the government emphasizes that the cross-

examination justified questions about the guilty pleas of Vázquez-

Senti's co-defendants because it referred to the separate criminal

case in which Vázquez-Senti and his co-defendants were convicted.

The government argues that it was entitled to show that all of the

co-defendants, not just Vázquez-Senti, pled guilty to lesser drug

quantities, and thus Vázquez-Senti did not receive any additional

benefit because of his testimony against appellant.

           We have previously explained that "where a missing co-

defendant does not testify, . . . courts and prosecutors generally

are forbidden from mentioning that a co-defendant has either pled

guilty or been convicted." United States v. Ofray-Campos, 534 F.3d

1, 23 (1st Cir. 2008) (internal quotation marks omitted).   This is

because "[a] defendant is entitled to have the question of his

guilt determined upon the evidence against him, not on whether a

codefendant or government witness has been convicted of the same

charge."   Id. at 22-23 (quoting United States v. Dworken, 855 F.2d

12, 30 (1st Cir. 1988)) (internal quotation marks omitted).

           Regardless of whether an absent co-defendant
           has pleaded guilty or been convicted after
           trial, the admission of such evidence not only
           results in the danger that the jury will
           improperly infer guilt by association, it also
           significantly undercuts the defendant's right
           to have a jury's verdict based only upon
           evidence that is presented in open court and
           is thereby subject to scrutiny by the
           defendant.



                               -12-
Id.   at   23    (internal     quotation     marks    omitted).        Accordingly,

"[t]here is no need to advise the jury or its prospective members

that some one not in court, not on trial, and not to be tried, has

pleaded guilty.       The prejudice to the remaining parties who are

charged with complicity in the acts of the self-confessed guilty

participant is obvious."           Id. (internal quotation marks omitted).

            In this case, the individuals whose guilty pleas were

revealed by the government's questioning were not co-defendants of

appellant, but the co-defendants of Vázquez-Senti.                     However, the

vast majority of the evidence against appellant concerned the

relationship      between    the    two    men.      The   guilty     pleas    of   the

individuals indicted with Vázquez-Senti on charges similar to those

against appellant are plainly inadmissible.                        The government's

attempt to suggest this sort of guilt-by-association is clear in

its reminder to the jury during its closing argument.                   It told the

jury: "The doctor told you he was indicted with 21 other people,

including       pharmacists.        So    [appellant]      talks    about     how   the

prescriptions aren't properly marked.                   You know what?          Those

responsible for marking the prescriptions have already been dealt

with."     In light of the fact that the government had elicited

testimony that Vázquez-Senti's co-defendants had pled guilty, this

argument was likely to appear as an attempt to suggest to the jury

that, just as those individuals were held responsible, now it is

appellant's turn.


                                          -13-
           Furthermore,        contrary    to     the   government's      argument,

appellant's questions on cross-examination concerning the benefits

of Vázquez-Senti's cooperation did not open the door to questions

about these guilty pleas.            The government seems to take the

position that any time a defendant explores the benefits that a

cooperating witness obtained, it is entitled to introduce evidence

about other participants in the conspiracy and deals that they were

offered.   However, the government offers no authority for this

problematic assertion and we find it meritless.                Accordingly, the

court erred in permitting the government to elicit testimony

concerning the guilty pleas of Vázquez-Senti's co-defendants.

           That   error,       however,    was     harmless.    The       government

presented overwhelming evidence of appellant's guilt at trial,

including: 1) extensive testimony from Vázquez-Senti concerning

appellant's   role   in    the    scheme     to    obtain   drugs    by    means   of

medically unnecessary prescriptions, 2) recordings of telephone

conversations between appellant and Vázquez-Senti concerning the

sale of prescriptions and the lists of names to be used in writing

prescriptions, 3) the patient lists provided by appellant to

Vázquez-Senti, 4) thousands of prescriptions written by Vázquez-

Senti that he testified were medically unnecessary, 5) testimony

concerning DEA surveillance of meetings between appellant and

Vázquez-Senti,    and     6)     testimony        concerning   the    seizure      of

prescription drugs from two individuals in the company of appellant


                                      -14-
immediately after a visit to one of the pharmacies at which the

medically unnecessary prescriptions were filled.

           The     inappropriate       testimony,    even     coupled    with     the

government's reference to the guilty pleas in its closing argument,

is insignificant when considered against the totality of the

evidence presented at trial.            Thus, we can conclude "with fair

assurance"    that    the     jury's   decision     was    not    swayed     by   the

improperly admitted testimony.             Walker, 665 F.3d at 231.               The

error, therefore, was harmless. See United States v. Dunbar, 553

F.3d 48, 59 (1st Cir. 2009) ("The essential inquiry in harmless

error review is whether the improperly admitted evidence likely

affected     the    outcome    of    trial."      (internal      quotation    marks

omitted)).

           4.      Cross-Examination of Vázquez-Senti

           Appellant also argues that it was error for the court to

refuse to allow him to cross-examine Vázquez-Senti about charges

that were dismissed as part of the doctor's plea agreement.                       The

indictment against Vázquez-Senti included one conspiracy count,

seven distribution counts, and one forfeiture count. Vázquez-Senti

was permitted to plead guilty to only the conspiracy and forfeiture

counts. Appellant argues that dismissal of the distribution counts

was a benefit that he should have been able to use to impeach

Vázquez-Senti.        He    points   out   that    the    plea   and   cooperation

agreement entered into by Vázquez-Senti states that the doctor will


                                       -15-
not be charged with "any other crimes committed about which the

defendant has informed the United States." However, when appellant

attempted to elicit testimony from Vázquez-Senti concerning the

dismissed charges, the court upheld an objection and blocked this

line of questioning.

            It    is    well   established    that    "the    right    to   cross-

examination is not unbridled."          United States v. Rivera-Rodriguez,

617 F.3d 581, 591 (1st Cir. 2010) (quoting United States v. Molina,

407 F.3d 511, 523 (1st Cir. 2005)).           We have explained that "[s]o

long as the trial court affords the defendant a fair opportunity

for     effective      cross-examination,     it     may     impose    reasonable

restrictions . . . [, and]          [t]he trial court's latitude in shaping

such restrictions is 'wide.'"            Id. (quoting Molina, 407 F.3d at

523).    In particular, information concerning pending or dismissed

charges against a witness may be unfairly prejudicial.                  Where the

defense    is    permitted     to   cross-examine    a     witness    regarding   a

cooperation agreement with the government, the details of the other

charges may not be necessary to establish the potential for bias.

See United States v. Bunchan, 580 F.3d 66, 71 (1st Cir. 2009).                 The

ultimate question is whether "the jury is provided with sufficient

information concerning formative events to make a discriminating

appraisal of a witness's motives and bias."                DiBenedetto v. Hall,

272 F.3d 1, 10 (1st Cir. 2001) (internal quotation marks omitted).




                                       -16-
          Here, the jury was provided sufficient information to

make an informed judgment concerning Vázquez-Senti's motives and

potential bias.   As noted, Vázquez-Senti acknowledged that he was

testifying in connection with a plea and cooperation agreement, and

the agreement was itself admitted into evidence.     It guarantees

that Vázquez-Senti will not be prosecuted for other crimes about

which he informs the government, provides that he will be held

liable for only 745 of the more than 20,000 medically unnecessary

prescriptions that he wrote, and states that the government will

recommend a sentence of 108 months' incarceration, well below the

statutory maximum of twenty years.    In short, there is no doubt

that the jury was aware of both Vázquez-Senti's incentive to

testify against appellant and the potential for bias. Accordingly,

it was not an abuse of discretion for the district court to limit

cross-examination regarding the dismissed charges.

          5.   Failure to Provide Reports of Investigation

          Appellant argues that the district court erred by failing

to order the government to provide him two Reports of Investigation

("ROI") prepared in connection with interviews of Vázquez-Senti and

the rough notes taken by investigators during those interviews.

There were at least three such interviews and three ROIs.       At

trial, appellant asked the district court to review the ROIs in

camera and determine if he was entitled to receive them under the

Jencks Act, 18 U.S.C. § 3500. The district court reviewed the ROIs


                               -17-
and   determined    that    two   of   the    three     did   not      have   the

characteristics of Jencks material, as they were not verbatim

records of the interviews and not even prepared on the same days as

the   interviews   they    documented.       However,    it   did   order      the

government to turn over the third ROI, which was prepared on the

day of the interview.      On appeal, appellant asks that we review the

two ROIs withheld and determine whether they should have been

turned over pursuant to the Jencks Act.

           The Jencks Act generally requires that any "statement" of

a   government   witness   relating    to    the subject      matter    of    that

witness's testimony be turned over to the defendant.                   18 U.S.C.

§ 3500(b).   The Act defines "statement" as:

           (1) a written statement made by said witness
           and signed or otherwise adopted or approved by
           him;

           (2) a stenographic, mechanical, electrical, or
           other recording, or a transcription thereof,
           which is a substantially verbatim recital of
           an oral statement made by said witness and
           recorded contemporaneously with the making of
           such oral statement; or

           (3) a statement, however taken or recorded, or
           a transcription thereof, if any, made by said
           witness to a grand jury.

Id. § 3500(e).     We have explained that this definition does not

require that a witness write the statement himself, but that notes

taken by an investigator during an interview may qualify if read

back to the witness and adopted.              United States v. Gonzalez-

Melendez, 570 F.3d 1, 4 (1st Cir. 2009) (per curiam).                   "Where a

                                   -18-
defendant requests discovery of potential Jencks material, our

precedent requires the district judge to conduct an independent

investigation of any such materials and determine whether these

materials are discoverable under the Jencks Act."   Id. at 3.   This

independent investigation can take the form of an in camera review

of the documents or an evidentiary hearing to take testimony from

the witness who provided the purported "statement." Id. at 3 n.2.

On appeal, a district court's decision on a Jencks Act claim is

reviewed for abuse of discretion, United States v. Gonzalez-

Melendez, 594 F.3d 28, 35 (1st Cir. 2010), though we review

underlying legal conclusions de novo and findings of fact for clear

error, id.

          In this case, the district court conducted the requisite

investigation, as have we, of the ROIs in question.       Like the

district court, we do not find the ROIs to be statements within the

meaning of the Jencks Act. Contrary to appellant's suggestion, the

ROIs are not substantially verbatim accounts of the interviews with

Vázquez-Senti, nor do they qualify as "statements" under any other

provision of the Jencks Act.   18 U.S.C. § 3500(e).   The ROIs are

short bullet-point summaries of the interviews of Vázquez-Senti,

and there is no indication that they were ever shown or read to

Vázquez-Senti, or adopted by him.

          Appellant argues that even if he was not entitled to the

ROIs, the district court should have also reviewed the rough notes


                               -19-
taken during the interviews with Vázquez-Senti, which served as the

basis for the ROIs.          At trial, Vázquez-Senti testified that an

agent took hand-written notes during the interviews, but that this

note-taking was sporadic and only occurred in connection with

"some" of his answers.        He also testified that he never saw what

the agent wrote down and that the agents did not review his answers

or their notes with him.         Given this testimony, there was plainly

no opportunity for Vázquez-Senti to adopt the rough notes as his

own   statements,      nor    could   the     rough    notes   have   been    a

"substantially       verbatim"    recording    or     transcription   of     the

interviews.       See id. § 3500(e)(1) & (2).         Accordingly, it was not

an abuse of discretion for the district court to decline to order

the government to produce these documents to appellant as Jencks

material.3

             6.    Denial of the Rule 29 Motion

             At the conclusion of his trial, appellant made a motion

pursuant to Federal Rule of Criminal Procedure 29 for a judgment of

acquittal.        Although the motion is styled as challenging the

sufficiency of the evidence supporting his conviction, it actually


      3
       Appellant is correct that the district court identified an
incorrect legal standard when it stated that appellant would be
entitled to the ROIs only if "the result of the proceeding would
have been different if the evidence had been disclosed."        As
appellant noted, this is an appellate legal standard unrelated to
the identification of Jencks material. However, for the reasons
stated, appellant is not entitled to the ROIs under the Jencks Act
because they do not constitute "statements" within the meaning of
the Act.

                                      -20-
challenges the drug quantity determination made by the jury.4

According to appellant, this determination was almost entirely

based on the five lists of names that Vázquez-Senti testified were

used       to   write    prescriptions,      and    he    argues    that   there   was

insufficient evidence to link him to the lists.                    In particular, he

argues that:        1)     the   lists   referred    to    in   recorded telephone

conversations were different from those introduced as evidence, 2)

Vázquez-Senti testified that some of the lists appeared to be

written in the handwriting of an ex-wife of appellant, and 3) there

was inconsistent evidence concerning the use of the lists because

Vázquez-Senti           testified   that    the    lists    were    only   used    for

prescriptions filled at one of the three pharmacies, but many of

the prescriptions using names from the lists were filled at the

other two.        Given that these lists were the link tying him to the

2,700 prescriptions for which he was ultimately held liable,

appellant argues that the court erred in denying his motion for a

judgment of acquittal.

                We review a district court's denial of a Rule 29 motion

de novo, "taking the evidence in the light most favorable to the

government and making all reasonable inferences in its favor."



       4
       For the purpose of sentencing after a guilty verdict, the
court will often determine the amount of drugs for which a
defendant will be held liable. However, it is not unprecedented
for the jury to be asked to make a specific drug quantity
determination by means of a special verdict form.      See United
States v. Casas, 356 F.3d 104, 127-28 (1st Cir. 2004).

                                           -21-
United States v. Giambro, 544 F.3d 26, 29 (1st Cir. 2008).               Such an

analysis requires us to "assess whether a reasonable factfinder

could have      concluded    that   the   defendant     was   guilty    beyond a

reasonable doubt."        United States v. Fernández-Hernández, 652 F.3d

56, 67 (1st Cir. 2011).

              We reject appellant's argument.         At best, he identifies

minor inconsistencies in witness testimony which do not outweigh

the strong evidence that he did provide the lists to Vázquez-Senti.

Given that appellant and his ex-wife worked together to obtain

prescription drugs for some time, the fact that the lists may be in

his ex-wife's handwriting is consistent with appellant's alleged

role in the conspiracy and the attribution of drugs obtained using

prescriptions written in names from those lists to him.

              Furthermore, although Vázquez-Senti testified at one

point that the lists were used at only one of the pharmacies, later

that   same    day   he   testified   that   he   did   not   know     where   the

prescriptions were taken to be filled, allowing for the possibility

that some of the prescriptions were taken to other pharmacies.

Additionally, during the course of the investigation, appellant was

observed with several individuals whose names appeared on the

lists.   Most importantly, Vázquez-Senti testified that appellant

provided him the lists and instructed which list to use at a given

time, and that he gave appellant the prescriptions he wrote using

the lists.      This testimony was corroborated by the admission of a


                                      -22-
recorded phone conversation between appellant and Vázquez-Senti

discussing the use of these lists.5                In sum, there was ample

evidence to connect appellant to the patient lists and to support

use of these lists to determine the drug quantity attributable to

him.       Therefore, the court was correct to deny appellant's Rule 29

motion.

B.   Sentencing Issues

               1.    Drug Equivalency Ratios

               The    district   court    sentenced    appellant   based     on   a

quantity       of    drugs   determined    by   use    of   equivalency     tables

established by the sentencing guidelines.                   Appellant argues on

appeal, as he did below, that the equivalency ratio provided for

oxycodone is unfairly high and creates unwarranted disparities

between defendants sentenced for offenses involving oxycodone and

morphine.            The   sentencing     guidelines    instruct    that,     when

determining the base level for an offense, one gram of oxycodone is

equivalent to 6,700 grams of marihuana, and one gram of morphine is

equivalent to 500 grams of marihuana. USSG § 2D1.1 cmt. n.10(D).

In an objection to the Presentence Report, appellant argued that

the court should use the 500-gram equivalency for morphine because


       5
       Appellant points to this conversation as evidence that he
did not prepare the lists because Vázquez-Senti states during the
conversation, "Remember that I did list 2, the one that he is
supposed to get . . . [a]nd the list 3." However, read in context,
this statement may be understood to mean that Vázquez-Senti had
recently written prescriptions using lists two and three, not that
he wrote the lists.

                                         -23-
the 6,700-gram equivalency for oxycodone created an unwarranted

disparity between those convicted of offenses involving the two

drugs.    In    support,   he   notes   that   oxycodone   is   a   morphine

derivative and that morphine is more potent and more addictive than

oxycodone. He further argues that the court committed a procedural

error by failing to recognize that it had discretion, pursuant to

Kimbrough v. United States, 552 U.S. 85 (2007), to impose a variant

sentence based on policy disagreements with the guidelines.             See

United States v. Stone, 575 F.3d 83, 89 (1st Cir. 2009) ("[A]fter

Kimbrough, a district court makes a procedural error when it fails

to recognize its discretion to vary from the guideline range based

on a categorical policy disagreement with a guideline.").

          These arguments are without merit.        The court explicitly

acknowledged its authority to impose a variant sentence based on a

policy disagreement with the guidelines.        At sentencing, appellant

invoked Kimbrough and raised what he described as a "fairness

argument" based on the respective equivalencies for oxycodone and

morphine. The court agreed that it had discretion under Kimbrough,

and asked appellant to "[e]xplain to me why this is a fairness

argument."      In fact, at one point appellant stated, "Let's be

clear.   You have the authority to disagree [with the guidelines

equivalency for oxycodone]," to which the court responded, "Of

course. . . .    But why should I disagree?"     Given this exchange, it




                                   -24-
is clear that the court was aware that it had discretion to vary

from the guidelines range based on a policy disagreement.

             Although our review ends here, it is worth noting that

the exceptionally high equivalency ratio for oxycodone is the

product of a 2003 amendment to the guidelines.             See Amendment 657,

USSG app. C, vol. II at 397 (2003).             As we explained in United

States v. Ekasala, 596 F.3d 74 (1st Cir. 2010) (per curiam):

             Amendment 657 changed the marijuana equivalent
             for oxycodone in two respects.      First, it
             based the equivalent on the amount of actual
             oxycodone involved rather than on the gross
             weight of the pills containing oxycodone.
             Second, it made 1 gram of oxycodone equivalent
             to 6,700 grams of marijuana, rather than 1
             gram of pill weight equivalent to 500 grams of
             marijuana.

Id. at 75 n.1.       Thus, unlike for many prescription drugs, when

determining the guidelines range for an oxycodone-related offense,

only the weight of the active ingredient (oxycodone) is used, not

the   full    pill   weight.       This     change   was    made   because   of

proportionality      issues    arising    when "pills      containing greatly

differing amounts of actual oxycodone had the same marijuana

equivalent and, hence, the same base offense level."               Id. at 76.

             In contrast, in determining the guidelines range for a

morphine-related offense, the full weight of the pill or other

mixture including morphine is used, regardless of potency.                   See

USSG § 2D1.1(c) n.(A) & cmt. n.1, n.10(D).                   Accordingly, the

apparent disparity caused by the multipliers used for oxycodone and


                                     -25-
morphine is largely neutralized by the use of a larger base weight

for morphine.      See United States v. Vigil, 832 F. Supp. 2d 1304,

1319, 1327-30 (D.N.M. 2011) (discussing at length the guidelines

treatment of oxycodone and finding no disparity in treatment of

oxycodone and morphine).

           2.    Acceptance of Responsibility

           Appellant argues that the court erred in failing to grant

him a    two-level   reduction    in   offense    level   pursuant   to    USSG

§ 3E1.1(a), which allows such a reduction if "the defendant clearly

demonstrates acceptance of responsibility for his offense."                Id.

Appellant argues that he fully accepted responsibility for his

offense, pointing out that he detailed his role in the scheme in a

series of interviews with authorities and even offered to cooperate

in the investigation of others.         He asserts that he rejected the

offered plea agreement only because he felt he was being treated

unfairly as compared to others convicted in the same scheme, all of

whom    were    offered   deals   calling   for    a   shorter    period    of

incarceration.      He argues that insisting on going to trial under

these circumstances is not incompatible with the type of acceptance

of responsibility called for by USSG § 3E1.1(a).

           A sentencing court's determination of whether a defendant

accepted responsibility is reviewed for clear error. United States

v. Garrasteguy, 559 F.3d 34, 38 (1st Cir. 2009).                 In order to

qualify for a reduction pursuant to USSG § 3E1.1(a), "a defendant


                                    -26-
must truthfully admit or not falsely deny the conduct comprising

the conviction, as well as any additional relevant conduct for

which he is accountable." Garrasteguy, 559 F.3d at 38. Given this

requirement,     "defendants   who    proceed    to   trial   and    put   the

government to its proof normally do not qualify for any reduction

for acceptance of responsibility . . . [, and] proceeding to trial

creates a rebuttable presumption that no credit is available." Id.

at 38-39 (citations omitted). However, the guidelines provide that

in "rare situations" the reduction may be available to those who go

to trial. USSG § 3E1.1 cmt. n.2.       Such circumstances include, "for

example, where a defendant goes to trial to assert and preserve

issues that do not relate to factual guilt (e.g., to make a

constitutional    challenge to a       statute   or a    challenge    to   the

applicability of a statute to his conduct)."            Id.

          This case does not present one of the "rare situations"

in which going to trial is compatible with a § 3E1.1(a) reduction.

While it is true that appellant initially acknowledged his conduct

to investigators, he did not do so at trial.          His defense at trial

was not based on issues other than his factual guilt; rather, he

disputed every aspect of the government's case and denied his role

in the conspiracy.    Given this conduct, his reasons for rejecting

the government's offered plea agreement are immaterial, and the

court did not err in deciding that his decision to go to trial and

deny his factual guilt disqualified him from receiving a § 3E1.1(a)


                                     -27-
reduction.   See United States v. González-Vélez, 587 F.3d 494, 509

(1st Cir. 2009) (stating that "the failure of plea negotiations is

generally not . . . a circumstance" permitting a § 3E1.1(a)

reduction for a defendant who chooses to go to trial).

          3.   Consideration of § 3553(a) Factors

          Although appellant's final argument occasionally seems to

be a claim that the 240-month sentence imposed was substantively

unreasonable, this claim is not actually raised.         Rather, he

focuses on two claims of procedural error.6   First, he argues that

the court erred in determining that it could not consider the

extent of his cooperation with the government as a basis for a

downward variance in the absence of a USSG § 5K1.1 substantial

assistance motion from the government. Second, he asserts that the

court erred in failing to explain why it rejected an argument for

a lower sentence based on the disparity between the sentences

imposed on him and others convicted as part of the same scheme.

See United States v. Dávila-González, 595 F.3d 42, 47 (1st Cir.

2010) (noting that procedural error includes "failing to consider



     6
       We draw a distinction between claims of procedural error in
sentencing, such as "failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence," United States v. Martin, 520 F.3d 87,
92 (1st Cir. 2008) (quoting Gall v. United States, 552 U.S. 38, 51
(2007)), and claims of substantive unreasonableness, which
challenge the reasonableness of the sentence imposed given "the
totality of the circumstances," id.

                               -28-
the 18 U.S.C. § 3553(a) factors" or "failing to adequately explain

the chosen sentence").

            With regard to appellant's first argument, § 3553(a)(1)

instructs   a     sentencing    court      to   consider   the     "history      and

characteristics of the defendant," without limitation.                     As the

Second Circuit has explained, "[t]his sweeping provision presumably

includes    the     history     of     a     defendant's       cooperation       and

characteristics     evidenced    by     cooperation."          United   States    v.

Fernandez, 443 F.3d 19, 33 (2d Cir. 2006). Furthermore, nothing in

the guidelines suggests that a court's discretion to consider all

of a defendant's relevant conduct under § 3553(a) is constrained by

the   government's    decision       not   to   file   a   §    5K1.1   motion.

Accordingly, we join our sister circuits in sensibly holding that,

in determining the appropriate sentence within the guidelines, or

in varying from the guidelines, a sentencing court has discretion

to consider the defendant's cooperation with the government as a

§ 3553(a) factor, even if the government has not made a USSG

§ 5K1.1 motion for a downward departure.               See United States v.

Massey, 663 F.3d 852, 858 (6th Cir. 2011); United States v.

Leiskunas, 656 F.3d 732, 737 (7th Cir. 2011); Fernandez, 443 F.3d

at 33; United States v. Doe, 398 F.3d 1254, 1260-61 (10th Cir.

2005); Hutchison, et al., Federal Sentencing Law and Practice §

5K1.1, cmt. 2 n.3 (2012) (noting that although a court may not

grant a downward departure for substantial assistance without a


                                      -29-
motion from the government, "[p]ost-Booker . . . sentencing courts

may weigh a defendant's assistance or attempts to assist the

government as part of the § 3553(a) analysis and vary from the

Guidelines if appropriate").       No circuit court has held to the

contrary.

            However, although appellant's legal argument is correct,

we detect no error in the district court's assessment of the

§ 3553(a) factors.     It is true that, during appellant's sentencing

hearing, the court initially expressed doubt that it could grant a

downward variance based on his cooperation absent a motion pursuant

to USSG § 5K1.1.     But the court offered appellant the opportunity

to "convince me otherwise."     After appellant identified cases from

other circuits holding that a sentencing court has such discretion,

the court stated, "I understand your argument.          Thank you."    It

went on to hear extensive argument from appellant concerning his

cooperation with the government, and also asked the government to

address the issue of his cooperation on the merits.        Accordingly,

the record indicates that the court understood that it had the

discretion to consider the extent of appellant's cooperation in

fashioning the appropriate sentence.

            Appellant's argument concerning the alleged failure of

the district court to explain its rejection of his sentencing

disparity   argument    also   fails.    At   the   sentencing   hearing,

appellant had ample opportunity to elaborate on the disparity


                                  -30-
argument, which had already been raised in his objections to the

Presentence Report, and he did so.               The gist of this argument was

that the others who pled guilty as part of the scheme in which he

was involved received far lower sentences.                  While that is so,

appellant ignores important differences between his circumstances

and those of the other individuals he identifies.                 Appellant was

considered a leader in the conspiracy and had a more extensive

criminal history than some of the other participants.                  Given that

"a sentencing court is not required to address frontally every

argument advanced by the parties, nor need it dissect every factor

made relevant by 18 U.S.C. § 3553,"                United States v. Turbides-

Leonardo, 468 F.3d 34, 40-41 (1st Cir. 2006), the court did not err

by   failing    to     explain    why    it   rejected   appellant's    disparity

argument,      especially        where   that    argument   was   so    obviously

meritless.

                                          IV.

            For the foregoing reasons, we find appellant's arguments

without merit.         Although the district court did err in admitting

testimony      about    the   guilty     pleas    of   appellant's     former   co-

defendants, that error was harmless.              Accordingly, the judgment is

affirmed.

            So ordered.




                                         -31-
