          United States Court of Appeals
                     For the First Circuit


No. 12-2458

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                         SEAMUS MAGUIRE,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                    FOR THE DISTRICT OF MAINE

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



                             Before

                   Howard, Selya and Thompson,

                         Circuit Judges.



     Peter J. Cyr on brief for appellant.
     Thomas E. Delahanty II, United States Attorney, and Renée M.
Bunker, Assistant United States Attorney, on brief for appellee.



                          April 7, 2014
             SELYA, Circuit Judge. Defendant-appellant Seamus Maguire

pleaded guilty to a charge of possession of marijuana with intent

to distribute. The district court imposed a 60-month incarcerative

sentence — the maximum allowed under the statute of conviction.

See 21 U.S.C. § 841(b)(1)(D).        Dismayed by the length of his

sentence, the appellant concocts a carefully contrived casserole of

claims of error.     Finding this repast indigestible, we affirm.

I.   BACKGROUND

             "Where, as here, a sentencing appeal follows a guilty

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

the unchallenged portions of the presentence investigation report

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

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

of June 16, 2011, state and local law enforcement officers detained

the appellant and administered Miranda rights, see Miranda v.

Arizona, 384 U.S. 436, 471 (1966), after he was seen selling drugs

in Union, Maine.     The appellant admitted that (in the surveilled

sale) he had sold 20 pounds of marijuana for roughly $29,000.       He

likewise admitted that he recently had acquired around 600 pounds

of marijuana and sold 400 to 450 pounds of it to a customer in New

Hampshire.    Moreover, the appellant acknowledged that he had 80 to

100 pounds of marijuana in a stash house in Portland, Maine, and he

offered to lead the officers to it.




                                  -2-
          The officers accepted the appellant's invitation.            En

route, the appellant rethought his original estimate and told the

officers that the amount of marijuana at the stash house was only

40 to 50 pounds.       The officers retrieved the marijuana, which

weighed 42.2 pounds.

          On September 14, 2011, a federal grand jury sitting in

the District of Maine indicted the appellant for, inter alia,

possession of marijuana with intent to distribute.1      See 21 U.S.C.

§   841(a)(1).     The   indictment    contemplated   that   21    U.S.C.

§ 841(b)(1)(D), which stipulates a maximum sentence of 5 years for

distribution of up to 50 kilograms of marijuana, would apply.

          The appellant moved to suppress the statements that he

had made following his arrest.    At the suppression hearing before

a magistrate judge, the appellant testified that he had twice

requested an attorney during the stop, only to be ignored.             He

further testified that he had cooperated in part because an officer

had threatened to arrest everyone he knew if he did not.          Four law

enforcement officers testified to the contrary.

          The magistrate judge found that the appellant had neither

asked for an attorney nor been subjected to threats.                After

reviewing the credible evidence, the magistrate judge recommended




     1
        Although the indictment originally included additional
counts for distribution of marijuana and for forfeiture, those
counts were voluntarily dismissed and do not figure in this appeal.

                                 -3-
against suppression.           The district judge accepted the magistrate

judge's findings and recommendations.2

              After the denial of his motion to suppress, the appellant

entered       a    guilty     plea.       The     change-of-plea          hearing   was

uncharacteristic: the district court found the appellant's demeanor

disrespectful and admonished him twice before eventually accepting

the change of plea.

              The district court convened the disposition hearing on

November 19, 2012.           The court set the base offense level (BOL) at

26, attributing 462.2 pounds (209.65 kilograms) of marijuana to the

appellant.        The court then found that the appellant had perjured

himself at the suppression hearing and adjusted the BOL upward by

two levels for obstruction of justice. See USSG §3C1.1. The court

then       declined   to     credit     the     appellant     for    acceptance     of

responsibility,        see    id.     §3E1.1,    noting     both    the    appellant's

perjurious testimony and his flippancy during the change-of-plea

colloquy.         Finally, the court placed the appellant in criminal

history category I.

              These calculations yielded a guideline sentencing range

(GSR) of 78 to 97 months.             However, the maximum sentence allowable

under the statute of conviction was only 60 months.                       See 21 U.S.C.

§ 841(b)(1)(D).         When the bottom of a properly calculated GSR


       2
        For ease in exposition, we adopt an institutional
perspective and hereinafter refrain from distinguishing between the
district judge and the magistrate judge.

                                          -4-
exceeds    the     maximum   sentence        allowable      under      the   statute    of

conviction, the latter becomes the guideline sentence.                         See USSG

§5G1.1(a).        Cognizant of this principle, the court imposed a 60-

month incarcerative term.              This timely appeal followed.

II.   ANALYSIS

             The appellant assigns error to the sentencing court's

drug-quantity calculation, its obstruction-of-justice enhancement,

its   refusal      to   reduce        the   offense    level     for    acceptance      of

responsibility, its eschewal of either a downward variance or

departure, and its choice of a 60-month sentence. We address these

assignments of error sequentially.

                                 A.    Drug Quantity.

             In     drug-trafficking          cases,       the   amount       of   drugs

attributable to a defendant is an important datum, which bears

heavily on his likely sentence. Here, the district court found the

appellant    responsible         for    462.2     pounds    (209.65     kilograms)      of

marijuana.        It predicated this finding on the appellant's own

statements to the police, summing the weights that the appellant

admitted to selling on the day of the arrest (20 pounds), the

marijuana seized at the stash house (42.2 pounds), and his low-end

estimate of what he had sold to the New Hampshire customer (400

pounds).

             We    review    a     sentencing         court's    factual      findings,

including its findings as to drug quantity, for clear error.                           See


                                            -5-
United States v. Platte, 577 F.3d 387, 392 (1st Cir. 2009). Absent

an error of law — and none is apparent here — a sentencing court

does not clearly err in making a drug-quantity determination "so

long as the approximation represents a reasoned estimate of the

actual quantity." United States v. Cintrón-Echautegui, 604 F.3d 1,

6-7 (1st Cir. 2010).

            The appellant's challenge to the district court's drug-

quantity determination is a bit of a paradox: he faults the court

for its reliance on the statements that he himself freely made when

he   was   arrested.     Embracing    language   from    one   of   our   prior

decisions, the appellant says his account was "too thin or too

improbable or too likely to be mere boasting" to warrant the

court's imprimatur.      United States v. Marquez, 699 F.3d 556, 560

(1st Cir. 2012). In support, the appellant avers that his original

over-estimation of the amount of marijuana at the stash house,

coupled with his fear of harm to his family, indicate that his

statements were unreliable.

            We   start   with   the   unremarkable      proposition   that    a

defendant's voluntary statements, made after receiving Miranda

warnings, can be used against him and that, in the ordinary course,

such statements can constitute strong evidence of his guilt.              See,

e.g., Miranda, 384 U.S. at 469.             This case falls within that

unremarkable proposition, not within any long-odds exception to it.

The court below, which saw and heard the appellant and the other


                                      -6-
witnesses at first hand, concluded that there were enough badges of

reliability to render the appellant's day-of-arrest estimates

trustworthy.

            This conclusion is entirely supportable.   For one thing,

the appellant made his statements after he had been arrested, thus

minimizing any incentive to exaggerate.      For another thing, the

appellant apparently cooperated willingly with the officers. There

were, the court found, no threats of harm to the appellant's

family.    Finally, the pricing structure of the appellant's avowed

sale to his New Hampshire customer (400 to 450 pounds of marijuana

for around $600,000) corresponded to the pricing structure of his

surveilled sale (20 pounds of marijuana for roughly $29,000).

            To say more on this topic would be pointless.             The

district   court's   drug-quantity   determination   was    not   clearly

erroneous but, rather, echoed the appellant's own statements —

statements that bore the hallmarks of reliability.         Consequently,

the appellant is hoist with his own petard.

                     B.   Obstruction of Justice.

            We turn next to the enhancement for obstruction of

justice. Once again, our review is for clear error. United States

v. Akitoye, 923 F.2d 221, 229 (1st Cir. 1991).

            The sentencing guidelines empower the district court to

enhance a defendant's offense level by two levels if the defendant

"willfully obstructed or impeded, or attempted to obstruct or


                                  -7-
impede, the administration of justice."         USSG §3C1.1.    Such an

enhancement may be based on a finding that the defendant committed

perjury during the course of the case.        See Akitoye, 923 F.2d at

228.   But an enhancement for obstruction of justice based on

perjury requires something more than a simple asymmetry in the

testimony in the case.    See id. at 228-29.    For a sentencing court

to impose such an obstruction-of-justice enhancement, the court

must independently find by a fair preponderance of the evidence

that the defendant deliberately lied about a material matter.          See

United States v. Shinderman, 515 F.3d 5, 19 (1st Cir. 2008).

             The obstruction-of-justice enhancement in this case was

based on the appellant's testimony at the suppression hearing. But

the appellant contends that the district court never found as a

fact that he had willfully lied.        Elevating semantics to an art

form, the appellant suggests instead that the court merely found

the officers' contradictory testimony more credible.

             The record belies this suggestion.    The court carefully

considered the appellant's tale of ominous threats and ignored

entreaties    for   counsel.   The    court   rejected   this   tale    as

apocryphal.    In doing so, the court remarked the contradictory and

implausible nature of the appellant's testimony and found that he

had deliberately perjured himself.

             We need not tarry.      The appellant's testimony about

invoking his right to an attorney and being threatened by the


                                  -8-
officers was flatly contradicted by four other witnesses.                  The

court's finding that the appellant prevaricated, as opposed to

misunderstanding, is hard to fault.             After all, there is very

little room for ambiguity: the requests for counsel and the threats

were either made or they were not.            In these circumstances, the

perjury finding is rock-solid.          See United States v. Gobbi, 471

F.3d   302,    314-15   (1st   Cir.   2006)   (upholding    perjury    finding

"[g]iving due heed to both the trial judge's unique coign of

vantage and the deferential standard of review").

                   C.     Acceptance of Responsibility.

              The appellant's lament with respect to acceptance of

responsibility     is   two-fold.      First,   he   asseverates   that    the

sentencing      court's     obstruction-of-justice         enhancement     was

unwarranted and that, therefore, the court's epibolic refusal to

credit him for acceptance of responsibility was erroneous.                This

asseveration is simply a rehashing of a claim previously rejected,

see supra Part II.B, and falls of its own weight.

              The second branch of the appellant's challenge starts

with the valid premise that even if a defendant's sentence is

enhanced for obstruction of justice, he still may receive a

downward adjustment for acceptance of responsibility.                 Although

practice has proven such largesse to be hen's-teeth rare, the

appellant nonetheless insists that he qualifies for it.




                                      -9-
           The   baseline   rule,     of    course,    is   that   "[c]onduct

resulting in an enhancement [for obstruction of justice] ordinarily

indicates that the defendant has not accepted responsibility."

USSG   §3E1.1,   comment.   (n.4).      Yet   the     sentencing   guidelines

explicitly confirm that there may be "extraordinary cases" in which

adjustments for both obstruction of justice and acceptance of

responsibility can coexist.     Id.    In such instances, the defendant

has the burden of proving that an adjustment for acceptance of

responsibility is warranted.         See United States v. Gonzales, 12

F.3d 298, 300 (1st Cir. 1993).        A district court's denial of such

a claim is reviewed for clear error.          See id.

           The appellant points to a host of factors that, in his

view, make his case extraordinary.          These include his on-the-spot

admission of his role in the surveilled drug sale, his divulgement

of the existence and location of the stash house, his consent to

the search of that structure and to the seizure of contraband from

it, his guilty plea, his compliance with the terms of his pretrial

release, and his avowals of contrition. These factors, he exhorts,

merit a reduction for acceptance of responsibility.

           We doubt that these factors, taken in cumulation, are

sufficient to make the appellant's case extraordinary and, thus, to

overcome the secondary effect of the warrantable finding that he

had obstructed justice.     But we need not go so far.         We are not a

nisi prius court, and the enumerated factors surely do not pack a


                                     -10-
sufficient     punch   to    render    the   sentencing   court's   adverse

assessment of them clearly erroneous.3        Cf. United States v. Royer,

895 F.2d 28, 29 (1st Cir. 1990) ("Whether a defendant clearly

demonstrates a recognition and affirmative acceptance of personal

responsibility is a fact-dominated issue, and . . . will not be

overturned unless clearly erroneous."           (internal quotation marks

omitted)).

                        D.    Variance/Departure.

             Under the advisory guidelines, discretionary refusals to

vary or depart are open to reasonableness review in accordance with

an abuse of discretion standard.             See United States v. Anon.

Defendant, 629 F.3d 68, 74 (1st Cir. 2010); United States v.

Martin, 520 F.3d 87, 92 (1st Cir. 2008).

             In this regard, the appellant reproves the district court

for failing to make an individualized assessment of the case as

required by Gall v. United States, 552 U.S. 38, 49-50 (2007).            In

his view, such an assessment would have prompted the court to vary

or depart downward based on his ill health (including a diagnosis




     3
       The district court's decision not to reduce the appellant's
offense level for acceptance of responsibility did not rest solely
on the secondary effect of its obstruction-of-justice finding.
Given what we already have said, however, we need not catalog the
court's other findings.

                                      -11-
of   Burkitt's     lymphoma    and   past    surgeries).4      See     18   U.S.C.

§ 3553(a); USSG §1B1.1(c).

               While health is a relevant factor in determining whether

either a variance or a departure is indicated, the court below did

not overlook this factor.        To the contrary, the court specifically

acknowledged      both   the    appellant's    medical     condition    and     the

seriousness of that condition. The court determined, however, that

there was no evidence that the federal prison system could not deal

appropriately with the appellant's medical problems.                    In a wry

aside, the court noted (correctly, we think) that the appellant's

large-scale marijuana operation did not seem to have been impaired

by his failing health.

               We discern no hint of unreasonableness. The record makes

manifest that the district court weighed all of the relevant

factors and explained its denial of a downward departure in a

series    of    well-reasoned    statements.       There    was   no    abuse    of

discretion.

               Variances — like departures — are discretionary.                 See

United States v. Caraballo, 552 F.3d 6, 11 (1st Cir. 2008).                       A

district       court's   decision    to   eschew   a   variance   is    reviewed

deferentially, and that deference is especially great where, as

here, the defendant is complaining about a sentence that is below


      4
       In arguing for a downward variance or departure, the
appellant pays scant heed to the fact that, due to a statutory cap,
the sentence that he received was well below the bottom of the GSR.

                                      -12-
the bottom of a properly calculated GSR.                       See United States v.

Floyd, 740 F.3d 22, 39-40 (1st Cir. 2014).

              Refined      to    bare    essence,     the     appellant's   claim      of

entitlement to a variance is nothing more than a plaint that the

sentencing court attached too little weight to factors such as his

medical condition. But deciding how much weight should be given to

particular factors in a specific case is, within broad limits, the

core function of a sentencing court.                 Here, the district court did

not    exceed    those     limits.        It   stated       explicitly   that    it   had

considered all of the relevant factors, including those enumerated

in 18 U.S.C. § 3553(a). The court expressly referenced a number of

specific factors, including the appellant's medical condition.

              In deciding not to vary downward more than was required

by the architecture of the statute of conviction, the court reached

a sensible result and articulated a plausible rationale in support

of that result.       See United States v. Carrasco-de-Jesús, 589 F.3d

22, 30 (1st Cir. 2009).            The court's denial of a further downward

variance was, therefore, comfortably within the scope of its

discretion.

                                 E.     Length of Term.

              In mounting his final argument, the appellant states only

that    the     sentence    he    received      was     "improper."       This    naked

conclusion      is   insufficient         to   put    the    reasonableness      of   his

sentence into play. "It is not enough merely to mention a possible


                                           -13-
argument    in   the   most   skeletal   way,   leaving   the   court   to   do

counsel's work."       United States v. Zannino, 895 F.2d 1, 17 (1st

Cir. 1990).

III.   CONCLUSION

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

we affirm the appellant's sentence.



Affirmed.




                                    -14-
