          United States Court of Appeals
                     For the First Circuit

No. 11-2329

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                   ANGEL MARQUEZ, a/k/a DOOM,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

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


                             Before

                       Lynch, Chief Judge,

              Torruella and Boudin, Circuit Judges.


     Melissa Bayer Tearney, by appointment of the court, Joseph H.
Zwicker, Emily F. Hodge, Eric J. Teasdale, Sophie F. Wang and
Choate Hall & Stewart LLP on brief for appellant.
     Mark T. Quinlivan, Assistant United States Attorney, and
Carmen M. Ortiz, United States Attorney, on brief for appellee.




                        November 6, 2012
            BOUDIN, Circuit Judge.           In August 2011, Angel Marquez

pled guilty in Massachusetts federal district court to five counts

of crack cocaine distribution, 21 U.S.C. § 841(a)(1) (2006); 18

U.S.C. § 2, and one count of conspiracy to distribute, id. § 846.

He was sentenced to 121 months in prison and now appeals to

challenge    the   sentence--importantly,          the   quantity      of   drugs

attributed   to    him.    The   facts       recounted   are   taken   from   the

change-of-plea colloquy and the pre-sentence report. United States

v. Fernández-Cabrera, 625 F.3d 48, 50 (1st Cir. 2010).

            In 2009, the FBI targeted the gun- and drug-trafficking

businesses of street gangs operating in Lawrence, Haverhill and

other cities north of Boston.                The FBI relied, in part, on

cooperating witnesses' controlled buys of guns and drugs from

members of the gangs, which included the Latin Kings, the Latin

Gangsta Disciples and the Immortal Outlaws. The buyers were audio-

or   video-recorded   by   the   FBI    in    their   negotiations     with and

purchases from the gang members.

            In April 2010, one of these cooperating witnesses (whom

we refer to as "the CW") drew the FBI's attention to Marquez.                 The

CW told the Bureau that Marquez was a founder of the Immortal

Outlaws, had bragged about his acquittal for a murder he committed,

and claimed ready access to a supply of both cocaine and crack

cocaine.    The FBI recorded five drug transactions in which Marquez




                                       -2-
supplied crack to the CW over the course of five weeks in the late

spring and early summer of 2010.   Specifically,

           -on May 27, the CW bought 0.77 grams for $150;

           -on June 3, he bought 3.8 grams for $250;

           -on June 16, he bought 11.8 grams for $500;

           -on June 23, he bought 15.1 grams for $800; and

           -on June 30, he bought 22.4 grams for $600.

In total, the CW purchased 53.87 grams of crack from Marquez for

$2,300.

           There followed Marquez' arrest, indictment and guilty

plea which in turn led to preparation of a pre-sentence report

("PSR"). In the PSR, the Probation Officer attributed not only the

53.87 grams that the CW had bought but also additional drugs to

Marquez.   Under the   "relevant conduct" guideline, a defendant is

responsible not only for the wrongdoing to which he pled or of

which he was convicted, but also for "all acts and omissions . . .

that were part of the same course of conduct or common scheme or

plan as the offense of conviction."    U.S.S.G. § 1B1.3(a)(2); see

also id. §§ 3D1.2(d), 2D1.1, 2D1.1 cmt. n. 12.

           Relying on recorded conversations with the CW, the PSR

concluded that Marquez had acquired at least 152 grams of crack for

distribution, including the five sales Marquez made to the CW.

Because the recommended guideline sentence is driven in part by

drug quantity, Marquez' total offense level ("TOL") for the 152


                                 -3-
grams, reduced 3 levels for his guilty plea, was level 25.                              See

U.S.S.G.    §§    2D1.1(c)(6),         3E1.1(a)-(b).          This   TOL,     given      his

criminal    history      (calculated       as      Category    IV    based       on    prior

convictions), established a recommended guideline sentencing range

of 84-105 months.        Id. ch. 5, pt. A.

            Both sides objected to the PSR. Marquez said that he was

responsible for only 53.87 grams, which, when combined with the

reduction for his plea, would have given him a TOL of 23 and a

range of 70-87 months.          U.S.S.G. § 2D1.1(c)(7); id. ch. 5, pt. A.

The government         urged    that    the    PSR    had undercounted           and that

Marquez' recorded statements made during the drug transactions

showed that       he   had     purchased      at   least    two   distinct       152-gram

supplies of crack. Marquez, while arguing that only the five sales

should be counted, said that the transcripts did not establish two

152-gram purchases.

            After briefing and argument at the sentencing hearing,

the district judge credited the government's interpretation of the

transcripts and attributed 304 grams to Marquez.                        That quantity

produced    a     recommended       range        of   121-151       months,      U.S.S.G.

§ 2D1.1(c)(4); id. ch. 5, pt. A, and also triggered a statutory

mandatory        minimum       sentence       of      120     months,       21        U.S.C.

§ 841(b)(1)(A)(iii).           The judge sentenced Marquez to 121 months--

one month above the statutory minimum.




                                           -4-
          Two of the transcript excerpts bear directly on the

amounts of crack handled by Marquez.     First, following the May 27

transaction, the CW asked Marquez about his ability to supply a

large quantity of crack:

          CW: What    happens,   what   if   I   pick   up   big
          though?

          Marquez: I got you.    I got you.

          CW: Yeah?

          Marquez: Yeah, dog. I buy a lot.       I buy like a
          152 grams.

          CW: 152 grams?

          Marquez: Yeah, but I only pay twenty three
          hundred.

          CW: Really?

          Marquez: I make mad money off that shit.
          Killing it.
          . . .
          That shit, that shit ain't like coke.

          CW: I know.   It's mad yellow.

          Marquez: They smoke and they want more.        Don't
          fuck with that. . . .

          CW: I know.

          Marquez: Don't take a hit.

          CW: I got it.

          Marquez: My boy. He just got fired today. I
          just punched Ace in the face today because I
          gave him $2,200 worth and he smoked it all and
          he said I'll pay you on the first. That's how
          good that shit is, bro. That shit ain't from
          Lowell. That shit's from Lawrence.


                                 -5-
           Second, following the June 16 transaction, the CW asked

Marquez for details about the size of his drug operation:

           CW: How much, how much do you sell on average
           a week, kid?

           Marquez: What you mean?       I sell, I sell, I
           break all my shit down.

           CW: What do you sell?    Grams?

           Marquez: No, no.    I sell, I sell .3's for
           twenty, but yo, I, I cop a lot though. I cop
           a 122 grams.

           CW: A hundred and twenty two grams?

           Marquez: No, 152 grams, for fucking uh . . .

           CW: Who the fuck is this dude?

           Marquez: For fucking, um, I cop 152 grams for
           whatchamacallit, uh, 22 hundred.

           CW: 22 hundred for 152 grams?

           Marquez: Yeah, but you guys can't get that.

           On appeal, Marquez first argues that the recordings are

insufficient as a matter of law because they were not independently

corroborated.    Such a claim of legal error is reviewed de novo.

United States v. Aguasvivas-Castillo, 668 F.3d 7, 13 (1st Cir.

2012).    While none of the many cases cited in Marquez' brief

establishes a flat corroboration requirement, courts in some cases

express   doubts,   where   few   details    are   provided,   about   the

reliability of specific boasts as to past sales or promises of

future ones.    For example, in United States v. Ruiz, 932 F.2d 1174,

1184 (7th Cir.), cert. denied, 502 U.S. 849 (1991), the appeals

                                   -6-
court    found    error    where    the   sentencing     judge       attributed    ten

kilograms of cocaine to a defendant based solely on his statement,

in a two kilogram sale, that "[e]ven ten more I can get."

            In varying instances, the law imposes requirements of

corroboration, usually meaning only "[c]onfirmation or support by

additional evidence or authority." Black's Law Dictionary (9th ed.

2009).     Ordinarily, such a rule identifies what is insufficient

standing    alone.1        Occasionally,        some   very    specific     type    of

corroborating evidence is required to make up the deficit; for

instance,    the   Constitution        prescribes      that    two    witnesses    are

required in trials for treason against the United States.                         U.S.

Const. art. III, § 3, cl. 1.

            But    in     federal    sentencing,       there   is     no   such   flat

requirement for proof over and above statements made by a defendant

identifying the quantity of a current or proposed drug transaction

in which he is involved.            On the contrary, recorded statements of

defendants are regularly the basis for determinations of drug

transactions and drug quantities. E.g., United States v. Figueroa,

976 F.2d 1446, 1450-51, 1460-61 (1st Cir. 1992), cert. denied, 507



     1
      For example, under the Federal Rules of Evidence, the hearsay
exception   for assertions     against  penal   interest   requires
corroboration. Fed. R. Evid. 804(b)(3)(B). California generally
prohibits conviction based solely on an accomplice's testimony.
Cal. Penal Code § 1111 (West 2012).        In certain states, the
uncorroborated statement of a co-conspirator is insufficient to
establish the defendant's guilt in a conspiracy case. E.g., N.Y.
Crim. Proc. Law § 60.22 (McKinney 2012).

                                          -7-
U.S. 943 (1993).   The few circuit cases to address the question

squarely--albeit usually in dicta--have said there is no automatic

corroboration requirement in the sentencing context.   E.g., United

States v. Huffman, 461 F.3d 777, 787 (6th Cir. 2006), cert. denied,

549 U.S. 1299 (2007).

          Of course, the circumstances may, as in Ruiz, persuade a

court that a defendant's admission is too thin or too improbable or

too likely to be mere boasting to deem it sufficient without more.

But to say in that situation that corroboration is "required" is

not to invoke a general rule but merely to assess the weakness of

that evidence in that case.   And Marquez does argue that, even in

the absence of a flat rule requiring corroboration, the evidence

was insufficient to exceed 53.87 grams.

          Both in arguing for 53.87 grams as against the 152 grams

recommended by the PSR and in further resisting the 304 figure

adopted by the court, Marquez is disadvantaged by the standard of

review, for he must show "clear error" by the district judge.

Aguasvivas-Castillo, 668 F.3d at 13. Further, the Federal Rules of

Evidence do not restrict sources of evidence at sentencing, United

States v. Marceau, 554 F.3d 24, 31 (1st Cir.), cert. denied, 556

U.S. 1275 (2009), and the sentencing judge is allowed wide latitude

to assess "whether particular evidence is sufficiently reliable,"

United States v. Cintrón-Echautegui, 604 F.3d 1, 6 (1st Cir. 2010).

But neither of Marquez' arguments is frivolous.


                                -8-
           Unlike the five transactions where Marquez provided crack

to the CW and the quantity could be verified by examining the drugs

actually seized, the 152 gram figure (or multiple 152 gram figures

if the evidence is so taken) related to what Marquez claimed to

have acquired for distribution.          The term "cop" in the transcripts

quoted above is common slang for obtaining drugs; and Marquez

himself made clear with some flourishes of detail that what he

acquired he broke down into small quantities and resold.

           Marquez has on his side several considerations: he gave

no detail as to when he acquired the 152 (or 304) grams; he had

ample   reason,    in   addition    to   mere   boasting   of   exploits,   to

exaggerate to a potential customer his access to drugs; and the

amounts he supplied to the CW in the five transactions were a

fraction of what he claimed to have received.               Whether he had

trouble even obtaining the amounts delivered, as claimed by his

brief on appeal and disputed by the government, is less certain.

           On the other hand, Marquez also said quite clearly that

he had copped 152 grams for $2,300 and provided specific details.

First, he described a connection to suppliers in Lawrence, who he

implied were Dominican.        Second, he described the drugs' high

quality; his technique for breaking down his supply into smaller

amounts   for     street   sales;   and,    with   a   possible   but    minor

discrepancy, the amount he supposedly paid for 152 grams.               And, of




                                     -9-
course, he did make five deliveries of increasing amounts to the CW

over the course of more than a month.

          Nor was the district judge required to view Marquez as a

novice making implausible claims.     Marquez' criminal history is a

long one; in addition to his convictions, there was evidence both

from the transcripts and from the CW's report of other statements

indicating that Marquez had used guns and had gang connections.2

It was not clear error to conclude that Marquez' then-current and

ongoing drug operation included at least one 152-gram purchase.

          The finding of two such 152-gram acquisitions is a much

closer call.   As we read the transcript of the second relevant

conversation following the June 16 sale, Marquez was not even

arguably describing a particular second 152-gram transaction but

instead was responding to the question "how much do you sell on

average a week"?    The latter, at least, would be a plausible

reading of the somewhat blurred and oblique exchange in which

Marquez referred on the second occasion to a 152 gram figure.    But

the government seemingly reads the reference as referring to a

second specific 152-gram acquisition and with this we cannot agree.




     2
      One set of admissions in the recordings could be taken as
confirming that Marquez had in fact shot and killed another man
some years before (even though he had subsequently been acquitted);
another set of admissions could be taken as describing Marquez'
founding role in a gang. The CW had earlier told the FBI that
Marquez admitted the murder to him on a prior occasion and also
admitted to his gang affiliation.

                               -10-
           The district judge's own explanation, unlike the argument

of the government, may suggest that he took Marquez to be talking

about his general practice rather than a second transaction:

           .   .  .   I   agree  essentially   with   the
           government's    view  that   on   the   record
           presented, including the summaries of the
           conversations with the cooperating witness, it
           is a conservative inference that there were at
           least two, 152-gram transactions that the
           defendant was involved in.

But at this point there is reason to be concerned about treating

the second conversation as a sound basis for attributing               drugs to

Marquez   on   the   basis   of    an    extrapolation   theory,   even   one

"conservative" in the period of extrapolation.

           Extrapolation      is    a    common   and    permissible   way   of

attributing drugs to a defendant, see U.S.S.G. § 2D1.1 cmt. n. 12

(instructing courts to approximate drug quantity when necessary);

see also United States v. Correa-Alicea, 585 F.3d 484, 489 (1st

Cir. 2009), cert. denied, 130 S. Ct. 1909 (2010); Figueroa, 976

F.2d at 1460-61.     But extrapolation is usually based on a known or

readily   calculable    number      of    transactions    involving    clearly

established     or   conservatively         estimated    quantities.         And

reliability depends heavily on the predicate figures employed.

           In United States v. Webster, 54 F.3d 1, 5 (1st Cir.

1995), for example, we upheld a sentence based on a co-defendant's

"unequivocal[]" testimony that he supplied the defendant "with one

to three ounces of cocaine three times a month for 14 months" and


                                        -11-
made six purchasing trips to New York with the defendant that

"yield[ed]    six    to   twelve   ounces    of   cocaine"   (as   well   as   an

additional    trip   that   yielded    0.5   kilograms).      We   upheld      the

district court in "settl[ing] on two ounces as the per transaction

amount for [the defendant's] regular supply and eight ounces as the

per trip amount" for the six New York trips because the court

adopted "conservative" figures within "relatively tight margins."

Id. at 5-6.

          But this court has also scrutinized such estimates with

care and rejected some as resting too significantly on "unreliable

inferences."    United States v. Rivera-Maldonado, 194 F.3d 224, 233

(1st Cir. 1999).       Similar reversals occurred in United States v.

Sepulveda, 15 F.3d 1161, 1197 (1st Cir. 1993) (witness testified in

"sweeping generalities"), cert. denied, 512 U.S. 1223 (1994), and

its companion case United States v. Welch, 15 F.3d 1202, 1215 (1st

Cir. 1993) ("rote averaging" based on lay estimates), cert. denied,

511 U.S. 1096 (1994).         Here, the problem is different, namely,

whether more than one 152 gram acquisition was ever established.

          It is hard to read the broken and garbled exchange in the

second conversation quoted above as a reliable estimate of weekly

sales or even to be sure that Marquez was admitting that his weekly

sales were 152 grams.        Marquez had earlier admitted to acquiring

152 grams on one occasion; and he may have been boasting but

provided some circumstantial detail.              We do not think, however,


                                      -12-
that any additional 152-gram purchases can be reliably inferred

from any further admission.

          The district court could conclude that Marquez was in the

distribution business and had made sales other than the 152-gram

acquisition; but, absent some way of making a reliable estimate of

typical quantity, the mechanical assignment of another 152 gram

transaction--even   though   only    one   more   was   assigned--has   the

"dramatic leveraging effect" which concerned us in Sepulveda, 15

F.3d at 1198.   Here, it triggered a mandatory minimum sentence in

addition to greatly enlarging the recommended guideline sentence.

          It is the means of calculating the sentence rather than

the result that concerns us.        The district judge was entitled on

this record to treat Marquez as a more serious offender than one

who acquired for distribution only 152 grams even if no precise

amount could be estimated, to select the high end of a range so

computed or vary upward from it, and to calculate the range itself

on the premise that Marquez' criminal history was more extensive

than his convictions dictate.        But this must be an exercise of

judgment rather than drug-quantity formula.

          Accordingly, we agree that re-sentencing is required and

turn to Marquez' argument that, if a remand is ordered, the

district court should be directed to ignore the government's

position that his admission to the murder should be considered and

that his criminal history category understates the future danger


                                    -13-
his long record of criminality establishes. The government opposes

such a direction and we agree that it would be inappropriate.

            Marquez argues that the confession of murder is improper

because it is "acquitted conduct"; a jury refused to convict him

for the crime of which he boasted.            Because the standard of proof

is lower in sentencing, the Supreme Court allows the district court

to consider acquitted conduct.            United States v. Watts, 519 U.S.

148, 156 (1997).      Nor, as Marquez claims, is this permissible only

if   the   district    judge     presided    over    the    trial      in    which    the

acquittal occurred. United States v. Anonymous Defendant, 629 F.3d

68, 76 (1st Cir. 2010).

            Whether or not Marquez committed the more than decade-old

murder,    his   long      career    of     crime    and        his   putative       gang

affiliations, together with his present drug dealing, could well

justify something more than the 84-105 months guideline sentence

calculated by the PSR.           This involves a balancing of the record

against    claims     of   rehabilitation      put    forward         by    Marquez   at

sentencing.      The district judge did not directly discuss these

issues but may find it necessary to do so now.

            Marquez argues that gang membership or other indicia of

future danger are irrelevant because they are not directly linked

to the five drug transactions charged in this case, but this

proposed    limitation      is   mistaken.          See    18    U.S.C.     §   3553(a)

(providing that sentencing courts should consider "the history and


                                      -14-
characteristics of the defendant" and "the need for the sentence

imposed . . . to protect the public from further crimes of the

defendant"); see also United States v. Crawford, 520 F.3d 1072,

1077 (9th Cir.) (considering, inter alia, gang membership), cert.

denied, 555 U.S. 960 (2008).

          The sentence is vacated and the matter remanded for

further proceedings consistent with this decision.

          It is so ordered.




                               -15-
