author: BARRON, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. James DAWN, Defendant, Appellant.
    No. 15-1136
    United States Court of Appeals, First Circuit.
    November 16, 2016

      Robert F. Hennessy and Thompson & Thompson, PC, Springfield, MA, on brief, for appellant.
    Mark T. Quinlivan, Assistant United States Attorney, and Carmen M. Ortiz, United States Attorney, on brief, for appellee.
    Before KAYATTA, STAHL, and BARRON, Circuit Judges.
   BARRON, Circuit Judge.

James Dawn appeals his convictions for federal firearms offenses on the ground that the District Court, in accepting his guilty pleas, did not conduct a proper inquiry under Rule 11 of the Federal Rules of Criminal Procedure. Dawn also appeals his sentence, arguing that the District Court erred in classifying him as an armed career criminal under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). We affirm both the convictions and the sentence.

I.

Dawn was indicted in March 2014 for dealing in firearms without a license, 18 U.S.C. § 922(a)(1)(A), and for being a felon in possession of a firearm and ammunition, 18 U.S.C. § 922(g)(1). He initially pled not guilty. In July, however, his counsel, Jaime Zambrana, informed the Magistrate Judge assigned to the case that Dawn intended to change his plea to guilty.

At the change of plea hearing in September, the District Court began by stating that “the purpose of this hearing is to satisfy me that what appears to be your intention to plead guilty is a knowing and voluntary act.” The District Court then proceeded to ask Dawn a range of questions concerning his ability to understand the charges against him and to make a decision to plead guilty to them.

At the District Court’s direction, the government informed Dawn that he could face a sentence of up to ten years for the felon-in-possession charge, but if he were determined to be an “armed career criminal,” he would face a maximum sentence of life imprisonment and a mandatory minimum sentence of fifteen years. That statement was a reference to the ACCA, 18 U.S.C. § 924(e), which applies if a defendant has three previous convictions for a “violent felony or a serious drug offense.” The government also informed Dawn that he would face a sentence of up to five years for dealing in firearms without a license.

The District Court next asked Dawn, “So, you understand what the maximum penalties could be in this case, depending on how I resolve the factual matters here?” Dawn replied, “Yes, your Honor.” The District Court then stated, ‘You understand that. So, what you are exposing yourself to is potentially those maximum penalties.” Dawn replied, “Yes, your Honor.” The District Court went on to describe the rights Dawn would be giving up by pleading guilty, discuss the evidence that could be presented at trial, and ask Dawn to enter a plea. The District Court concluded that Dawn’s “decision to plead guilty is a knowing and voluntary act on [Dawn’s] part.”

Dawn then entered a guilty plea. After entering the guilty plea, Dawn’s attorney, Zambrana, moved to continue the sentencing hearing. Zambrana stated that the government intended to seek a sentence under the ACCA. Zambrana alleged, incorrectly, that one of the predicate offenses that the government was relying upon under the ACCA was Dawn’s 2007 conviction for possession with intent to distribute a class D substance, in violation of Massachusetts General Laws Chapter 94C, § 32C. Zambrana requested more time to allow Dawn to seek to have this conviction vacated. That motion was heard at the beginning of the scheduled sentencing hearing.

At that hearing, Zambrana spoke in support of the motion to continue sentencing. Zambrana contended that he was in the process of challenging two of Dawn’s prior state-law convictions that the government was asserting qualified Dawn as a career offender under the ACCA: first,’ the 2007 conviction referenced in the motion to continue sentencing, which was not actually classified as an ACCA predicate offense in the presentence report; and second, a conviction for trafficking cocaine, which was classified as an ACCA predicate offense in the presentence report. The District Court did not grant the requested continuance. The District Court explained that the convictions that Zambrana had identified in requesting the continuance were relatively old and that any success that his counsel had in having them vacated could be addressed in a post-sentencing motion pursuant to Rule 35 of the Federal Rules of Criminal Procedure.

The District Court took a brief recess so that Zambrana could explain to Dawn the process for challenging the sentence by filing a Rule 35 motion in the event that his challenges to any prior state conviction on which the sentence relied were successful. After the recess, the District Court confirmed that Dawn had the opportunity to review the presentence report and did not object to it. The District Court sentenced Dawn to 180 months of imprisonment—the mandatory minimum—and 60 months of supervised release. This appeal followed.

II.

Dawn challenges his convictions on the ground that the District Court failed to inquire at the Rule 11 hearing whether he was induced to plead guilty by way of any force, threats, or promises. See Fed. R. Crim. P. Rule 11(b)(2) (stating that “[b]e-fore accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and determine that the plea is voluntary and did not result from force, threats, or promises”). Because Dawn raises this issue for the first time on appeal, we review only for plain error. United States v. Ortiz-García, 665 F.3d 279, 285 (1st Cir. 2011). We find none.

“In order to establish plain error, a defendant must show that: (1) an error occurred; (2) the error was plain; (3) the error affected the defendant’s substantial rights; and (4) the error ‘seriously affect[ed] the fairness, integrity or .public reputation of judicial proceedings.’” Id. (quoting United States v. Rivera-Maldonado, 560 F.3d 16, 19 (1st Cir. 2009)). To satisfy the “substantial rights” prong of the test in this context, the defendant must show “a reasonable probability that, but for the error, he would not have entered the plea.” Id. at 286 (quoting United States v. Dominguez Benitez, 542 U.S. 74, 76, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004)).

Dawn contends that the purported Rule 11 violation was clear and obvious, and he contends that this error affected his substantial rights in the following way. Dawn argues that if the District Court had inquired into whether Dawn’s decision to plead guilty had been influenced by improper promises, Dawn would have disclosed Zambrana’s “unfilled and unfulfillable promise to at least attempt to seek avoidance of the ACCA by collaterally attacking some of Dawn’s prior convictions in state court.” Dawn contends that, following the disclosure of .that “promise,” the District Court would have clarified for Dawn that Zambrana’s promise to challenge those convictions was an empty one because Zambrana in fact had promised to challenge a conviction that was not actually classified as an ACCA predicate. And, further, Dawn contends, such a clarification by the District Court would have changed Dawn’s expectation as to whether he would be subject to the ACCA enhancement and thus affected his decision to plead guilty. Accordingly, Dawn contends that the District Court’s alleged error in failing to inquire into whether any promises Dawn received affected his substantial rights.

There may be some question, as the government contends, as to 'whether the District Court’s inquiry in this case was clearly insufficient under Rule 11. See United States v. Henry, 113 F.3d 37, 41-42 (5th Cir. 1997). But even if we were to assume that the District Court did plainly err in not directly inquiring about whether Dawn’s counsel made any promises, Dawn has not shown how, but for such an error, it is probable that he would not have pled guilty. Thus, he cannot satisfy the third prong of. the plain error standard. See Dominguez Benitez, 542 U.S. at 76, 124 S.Ct. 2333.

In this regard, we note that, to support his contention that Dawn’s counsel made an unfulfillable promise to him that induced his plea, Dawn points only to his counsel’s statements in the criminal proceedings themselves. And those statements, upon scrutiny, provide weak support for his contention.

The first statement Dawn points to is one that Zambrana made in a pretrial conference prior to the Rule 11 hearing. Zam-brana stated that he was “looking into some of [Dawn’s] prior convictions which have a significant impact on the Guidelines.” But this statement is not itself a promise to Dawn by Zambrana, nor is it persuasive evidence that Zambrana made the unfulfillable promise that Dawn contends Zambrana had made and that Dawn argues is the kind of promise to which Rule 11 refers.

Dawn does point to two other statements Zambrana made, each of which post-dates the Rule 11 hearing itself. The first appears in Zambrana’s motion to continue sentencing. The second was made by Zambrana to the court in the hearing on that motion. But these statements are no more helpful to Dawn than the one just discussed. They, too, show merely that Zambrana was planning to file or had filed motions in state court to challenge certain of Dawn’s prior convictions and thus that Zambrana was looking into Dawn’s prior convictions. These statements do not show that Zambrana,made the kind of promise to Dawn on which his Rule 11 challenge depends. Thus, Dawn has not shown that any inquiry by the District Court into the kind of promise to which Rule 11 refers actually would have uncovered that a promise of the type Dawn alleges was madé in fact had been made.

Moreover, the government’s evidence against Dawn was overwhelming, a point that Dawn does not at any point contest in his briefing to us. This feature of the case thus further undermines Dawn’s contention that there is a reasonable probability that he would not have pled guilty but for the District Court’s failure to conduct the inquiry under Rule 11 that he contends was required. See Dominguez Benitez, 542 U.S. at 85, 124 S.Ct. 2333 (“Other matters that may be relevant ... are the overall strength of the Government’s case and any possible defenses.... [0]ne can fairly ask a defendant seeking to withdraw his plea what he might ever have thought he could gain by going to trial'.”).

III.

Dawn separately argues that the District Court erred in classifying him as a career offender under the ACCA. The ACCA provides a sentence of fifteen years if a defendant commits the offense of illegally possessing a firearm, in violation of 18 U.S.C. §'922(g), and qualifies as a career offender. 18 U.S.C. § 924(e)(1). A defendant qualifies as a career offender if the defendant has three predicate offenses. Id.

The presentence report listed four convictions that were claimed to qualify as ACCA predicate offenses: a conviction for assault and battery with a dangerous weapon, under Massachusetts General Laws Chapter 265, § 15A(b); a conviction for assault with a dangerous weapon, under Massachusetts General Laws Chapter 265, § 15B(b); and two different convictions for trafficking in cocaine, under Massachusetts General Laws Chapter 94C, § 32A. Dawn does not dispute that-two of those convictions—the convictions for trafficking in cocaine—qualify as ACCA predicate offenses because they are serious drug offenses. See 18 U.S.C. § 924(e)(2)(A)(ii). He does, however, contend that neither of the other two—namely, his convictions for assault and battery with a dangerous weapon and assault with a dangerous weapon—qualifies as an ACCA predicate offense because he contends that neither is a violent felony under the ACCA. The ACCA defines a “violent felony” as “any crime punishable by imprisonment for a term exceeding one year ... that has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B).

We review de novo the classification of a prior offense as a violent felony under the ACCA. United States v. Carrigan, 724 F.3d 39, 48 (1st Cir. 2013). We have previously held that a conviction under Massachusetts law for assault with a dangerous weapon does qualify as a violent felony under 18 U.S.C. § 924(e). United States v. Whindleton, 797 F.3d 105, 116 (1st Cir. 2015). Dawn contends that Whindleton was wrongly decided in light of the Supreme Court’s 2015 decision in Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), and our decisions in United States v. Martinez, 762 F.3d 127 (1st Cir. 2014), and United States v. Fish, 758 F.3d 1 (1st Cir. 2014). But we considered and rejected these same arguments in United States v. Fields, 823 F.3d 20, 35 & n.12 (1st Cir. 2016), and United States v. Hudson, 823 F.3d 11, 16-18 (1st Cir. 2016). Because Dawn does not contest that there are two other qualifying predicate convictions, the government has identified three prior convictions that qualify as predicate offenses under the ACCA. Accordingly, Dawn’s challenge to his sentence fails.

IV.

For the reasons given, we affirm.

      . At the Rule 11 hearing, the government discussed the evidence it would put forth if the case wefit to trial. The government stated that it would show that, on three separate occasions, cooperating witnesses purchased firearms from Dawn, with cash, while wear- ' ing recording devices. No possible defenses are apparent from the record, nor does Dawn identify any.


source: Caselaw Access Project

author: SELYA, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Ryan DEMERS, Defendant, Appellant.
    No. 15-2205
    United States Court of Appeals, First Circuit.
    November 16, 2016

      Stanley W. Norkunas, Lowell, MA, on brief for appellant.
    Emily Gray Rice, United States Attorney, and Seth R. Aframe, Assistant United States Attorney, on brief for appellee.
    Before HOWARD, Chief Judge, SELYA and THOMPSON, Circuit Judges.
   SELYA, Circuit Judge.

Defendant-appellant Ryan Demers asserts both that the sentencing court made an erroneous drug-quantity determination and that, in all events, ■ the sentence imposed was substantively unreasonable. After careful consideration, we affirm the appellant’s sentence.

I. BACKGROUND

Because this 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 August 7, 2014, law enforcement officers initiated surveillance of the appellant as part of an ongoing investigation into the illegal distribution of oxycodone pills in and around Manchester, New Hampshire by José Núñez, Jennifer Núñez, and Johanna Núñez (collectively the Núñez consortium), as well as Samuel Garcia. The surveillance led to the appellant’s arrest on September 2, 2014. After waiving his Miranda rights, see Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the appellant confessed to illegally purchasing pills from the Núñez consortium, Garcia, and another vendor named William Alba for roughly two years. The appellant stated that he recently had been purchasing around 100 to 200 pills every other day, though he originally had purchased smaller quantities. He explained in some detail the purchasing process and price points involved. •

Garcia was also apprehended. He' told the authorities that he had supplied the appellant with oxycodone for approximately 12 to 18 months before the appellant’s arrest. He recalled that the appellant had at first bought smaller amounts, but increased his purchases to around 400 or 500 pills per week after he established his own customer base.

Johanna Núñez, also in custody, stated that “Brian” (reasonably believed to be the appellant) was one of her biggest customers. She recalled supplying him with 80 to 100 pills at a crack. In addition, Alba identified the appellant as a person to whom José Núñez regularly sold wholesale batches of pills.

On September 17, 2014, a federal grand jury sitting in the District of New Hampshire returned a two-count indictment, charging the appellant—and only the appellant—with conspiracy to distribute a controlled substance (oxycodone) and distribution of that controlled substance. See 21 U.S.C. §§ 841(a)(1), 846. After some procedural maneuvering (not relevant here), the appellant entered a straight guilty plea to both counts:

The PSI Report set the appellant’s base offense level at 32 premised on a finding that he had distributed approximately 200 30-millígram oxycodone pills per week for a • period of 18 months. See USSG § 2Dl.l(c)(4) (Drug Quantity Table). The appellant objected to this drug-quantity calculation, beseeching the court to shorten the time frame to 12 months and reduce the weekly allotment of pills to reflect pills purchased for personal consumption.

The sentencing court convened the disposition hearing on September 22, 2015. It rejected the appellant’s request to trim the time frame for the drug-quantity calculation from 18 months to 12 months, citing the appellant’s own admission that he had been purchasing oxycodone for roughly two years. The court then stated that it was unpersuaded that the appellant was “only trafficking to feed' his own habit.” Even so, the court took account of the appellant’s personal usé of oxycodone by reducing his base offense level from 32 to 30.

After some further offsets (not relevant here), the court set the appellant’s total offense level at 25, and placed him in Criminal .History Category I. This produced a guideline sentencing range (GSR) of 57 to 71 months. The appellant argued for a downwardly variant sentence of 28 months.

The government objected, ■ pointing to the large volumes of drugs trafficked by the appellant. The government added that New Hampshire’s serious opiate problem warranted particularly strong deterrence (both individual and general) in the circumstances of this case.

The district court concluded that the amount of drugs involved in the offenses of conviction was simply too great to warrant the requested variance. Instead, it imposed a bottom-of-the-range sentence: a 57-month term of immurement for each count, to be served concurrently. This timely appeal ensued.

II. ANALYSIS

As a general matter, we review the imposition of a sentence for abuse of discretion. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008). The process is bifurcated. We first determine whether the sentence imposed is procedurally reasonable (that is, free from reversible error in its procedural aspects) and then determine whether it is substantively reasonable. See Gall, 552 U.S. at 51, 128 S.Ct. 586. Within this structure, we review a sentencing court’s factual findings for clear error and its interpretation and application of the guidelines de novo. See United States v. Walker, 665 F.3d 212, 232 (1st Cir. 2011). The entire process “is characterized by a frank recognition of the substantial discretion vested in a sentencing court.” United States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013).

A. Drug Quantity.

We begin with the appellant’s attack on the procedural reasonableness of his sentence. Our starting point is uncontroversial: in order to achieve procedural reasonableness, a sentencing court must correctly calculate the GSR. See United States v. Gobbi, 471 F.3d 302, 313 n.7 (1st Cir. 2006).

“In drug-trafficking cases under the sentencing guidelines, sentences are largely quantity-driven.” United States v. Sepulveda, 15 F.3d 1161, 1196-97 (1st Cir. 1993). Here, the appellant’s procedural plaint is focused on the sentencing court’s drug-quantity calculation. We review that calculation for clear error and will disturb it only if, based “on the whole of the record, we form a strong, unyielding belief that a mistake has been made.” Cumpiano v. Banco Santander P.R., 902 F.2d 148, 152 (1st Cir. 1990).

When assessing drug quantity, a sentencing court is tasked with making a reasonable approximation of the weight of the controlled substance(s) for which the defendant should be held responsible. See USSG § 2D1.1, cmt. n.5. This approximation must be, based on an individualized determination concerning the quantity of drugs attributable to, or reasonably foreseeable by, the defendant. See United States v. Cintrón-Echautegui, 604 F.3d 1, 5 (1st Cir. 2010). We do not use the word approximation casually: the sentencing court’s drug-quantity determination “need not be precise to the point of pedantry.” United States v. Platte, 577 F.3d 387, 392 (1st Cir. 2009).

For sentencing purposes, quantities of controlled substances not specifically referenced in the Drug Quantity Table—such as oxycodone—must be converted to their marihuana equivalent. See USSG § 2D1.1, cmt. n.8(A)(i). The court below set the appellant’s base offense level at 30. That base offense level holds a defendant responsible for at least 1,000 but less than 3,000 kilograms of marihuana. See id. § 2Dl.l(c)(5). The Drug Equivalency Table dictates that one gram of “actual” oxy-codone equates to 6,700 grams of marijuana, id. § 2D1.1, cmt. n.8(D), so an offense level of 30 corresponds to at least 149 but less than 447 grams of oxycodone. With respect to the appellant’s wares, each oxy-codone pill was 30 milligrams in weight. Extrapolating from these figures, then, the sentencing court held the appellant responsible for at least 4,967 pills (149 grams equals 149,000 milligrams, which—when divided into 30-milligram pills—equals approximately 4,967 pills). Using an 18-month time line, the court held the appellant responsible for at least 70 pills per week for 18 months.

The appellant launches a three-pronged assault on this calculation. First, he suggests that the sentencing court failed to make an individualized determination. Second, he challenges the use of an 18-month time line. Third, he brands the calculation as erroneous because it did not exclude pills that he used personally. We address these remonstrances sequentially.

To begin, we reject the appellant’s suggestion that the sentencing court did not make an individualized determination. He seems to argue that because he was not charged as a participant in the same conspiracy as any of his vendors, see supra note 1, their actions should not be imputed to him. But this argument rests on a false premise: the district court’s calculations all zeroed in on the appellant’s own purchases. The court did not attribute to the appellant any sales made by his vendors (the Núñez consortium, Garcia, or Alba) to third partners but, rather, limited its consideration to sales made to the appellant himself.

The appellant’s challenge to the sentencing court’s use of an 18-month time line is equally groundless. The appellant argues that although he admitted to purchasing oxycodone for a period of about two years, he only engaged in distributing the drugs for a much shorter (but unspecified) period. This argument is plucked out of thin air: nothing other than the appellant’s ipse dixit supports it. When faced with conflicting facts relating to drug quantity, a district court is at liberty to make judgments about credibility and reliability. See Platte, 577 F.3d at 393. So it is here: the court supportably chose to give particular credence to the appellant’s own estimate of the period of his'involvement —an estimate made to law enforcement officers shortly after the appellant was detained and under circumstances that gave him every reason not to exaggerate the length of his involvement in the. distribution of drugs. See United States v. Maguire, 752 F.3d 1, 5 (1st Cir. 2014).

The appellant rejoins'that his addiction could have affected his memory, causing him to give inaccurate statements to the police. On this record, though, that possibility is purely speculative. Within wide limits—not approached here—it is for the sentencing court, not the court of appeals, to sift through the possibilities and develop a reasonable approximation of drug quantity. See id.

The appellant’s last line of attack posits that the sentencing court’s drug-quantity determination does not pass muster because it failed to exclude pills that the appellant himself consumed. This line of attack misfires: when—as in this case— the evidence shows that the defendant was a member of a drug-trafficking conspiracy, his “purchases for personal use are relevant in determining the quantity of drugs that [he] knew were distributed by the conspiracy.” United States v. Innamorati, 996 F.2d 456, 492 (1st Cir. 1993); accord United States v. Marks, 365 F.3d 101, 105-06 (1st Cir. 2004) (holding that sentencing court was not required to deduct amount of drugs defendant personally consumed because each pill “was acquired with the intent that it would or could be distributed”).

In an effort to deflect the force of these precedents, the appellant insists that, in actuality,, he was only part of “a conspiracy of one.” To support this thesis, he notes out that he was the only person charged in this particular indictment. From that fact he reasons that he was the only person involved with this specific conspiracy. Because his suppliers were charged with being members of separate conspiracies, see supra note 1, he submits that he should not be considered to have been in a conspiracy with any of them.

This is smoke and mirrors. The prosecution’s charging decisions vis-a-vis the appellant’s vendors do not in -any way insulate the appellant. The appellant himself was charged with participating, in a conspiracy with others to distribute oxyco-done; he pleaded guilty to that charge; and the record evidence furnishes an unarguable factual basis for his .plea. Under these circumstances, the appellant’s “conspiracy of one” claim .is untenable. See United States v. Padilla-Galarza, 351 F.3d 594, 598 (1st Cir. 2003) (holding that a defendant is normally, bound by the facts admitted at the time of his guilty plea).

It is worth noting that,- at sentencing, the government sought to hold the appellant responsible for 10,400 oxycodone pills. The district court, though, settled upon a drug quantity of less than half that amount. The court proceeded to adjust the appellant’s offense level accordingly. As we read the record, no hint of error—let alone any hint of clear error—mars the district court’s relatively conservative drug-quantity determination.

B. Substantive Reasonableness.

This brings us to the appellant’s challenge to the substantive reasonableness of his sentence. Because this challenge is made for the first time on appeal, it is arguable whether our review is for abuse of discretion or for plain error. See United States v. Pérez, 819 F.3d 541, 547 (1st Cir. 2016); United States v. Ruiz-Huertas, 792 F.3d 223, 228 & n.4 (1st Cir.), cert. denied, — U.S. -, 136 S.Ct. 258, 193 L.Ed.2d 191 (2015). Here, however, all roads lead to Rome: whichever standard of review obtains, the sentence withstands the appellant’s challenge. Thus, instead of struggling to resolve the thorny question surrounding the standard of review, we assume, favorably.to the appellant, that review is for abuse of discretion.

A sentence will survive a challenge to its substantive reasonableness as long as it rests on a “plausible sentencing rationale” and reflects a “defensible result.” Martin, 520 F.3d at 96. In applying this test, we remain mindful that “there is not a single reasonable sentence but, rather, a range of reasonable sentences.” Id. at 92.

Here, the sentencing court articulated a plausible rationale for the sentence. Among other things, the court considered the need for condign punishment, the nature and circumstances of the offenses, specific deterrence, respect for the law, and public protection. See 18 U.S.C, § 3553(a). The court noted that it had adjusted the appellant’s base offense level downward and stated that “[t]he [oxyco-done] quantities involved in this case are simply too great to justify [both], the total offense level adjustment made by the Court and a substantial variance.”

.The result, too, is -easily defensible. A challenge to the substantive reasonableness of a sentence is particularly unpromising when the sentence imposed comes within the confínes of a properly calculated GSR. See United States v. Vega-Salgado, 769 F.3d 100, 105 (1st Cir. 2014). That is particularly true where, as here, the sentence is at the nadir of .the range. See United States v. Rodríguez-Milián, 820 F.3d 26, 35 (1st Cir.), cert. denied, 580 U.S. -, 137 S.Ct. 138, 196 L.Ed.2d 107 (2016).

The appellant’s only substantial counterargument is that the sentence imposed on Johanna Núñez (one of his suppliers) was six months shorter than his. As we explain below, this counter-argument is unconvincing.

We recognize, of course,, that in fashioning a sentence a court must consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). Congress intended this provision, though, primarily to eliminate national, sentencing disparities rather than disparities among coconspirators. See Martin, 520 F.3d at 94. Accordingly, we have held that a defendant is not entitled to a reduced sentence simply because his accomplices or cocoh-spirators received such sentences. See United States v. Marceau, 554 F.3d 24, 33-34 (1st Cir. 2009).

Still, legitimate concerns may arise if similarly situated coconspirators or codefendants receive inexplicably disparate sentences. See id. But such a sentencing disparity claim may easily be repulsed if material differences between the defendant and the proposed comparator suffice to explain the divergence. See Rodríguez-Milián, 820 F.3d at 35; United States v. Reyes-Santiago, 804 F.3d 453, 467 (1st Cir. 2015); United States v. Mateo-Espejo, 426 F.3d 508, 514 (1st Cir. 2005).

In the case at hand, the sentencing court explicitly acknowledged the “need to avoid unwarranted sentence disparities].” It then noted that, “after reading the [PSI Report] and listening to the presentation of the parties,” it “roughly equate[d] the defendant’s conduct with that conduct of ... Johanna [Núñez].” Mindful that the appellant was not only a customer of Johanna Núñez but also had customers of his own, the court calculated identical guideline ranges for the appellant and Johanna Núñez. There is, however, a compelling explanation for the slightly reduced sentence in Nuñez’s case: she received a one-level departure under USSG § 5H1.6 based on her family ties and responsibilities—a departure that the appellant did not seek and for which he was not eligible. Given this material difference, the- two individuals were not similarly situated and, thus, the claim of sentencing disparity founders.

III. CONCLUSION

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

Affirmed.

      . On the same date, the grand jury returned two other indictments against a total of seven individuals for their purported involvement in oxycodone-distribution conspiracies. The appellant was not named as a defendant in either of these indictments.

      . . Following his arrest, the appellant told the authorities that he himself had become addicted to oxycodone. He estimated that, at the time of his arrest, he was using approximately 15 to 25 pills per day and that his girlfriend was using approximately five pills per day.

      . To be sure, the appellant points to Garcia's statement that he only recalls the appellant being a customer for around 12 to 18 months. Garcia’s estimate, however, encompasses the sentencing court's 18-month time line. And in any event, the court did not clearly err in weighing the appellant’s own statements more heavily than Garcia’s. After all, when there are multiple plausible views of the circumstances, a sentencing court’s selection among those alternatives cannot be clearly erroneous. See United States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990).

      . Indeed, the court limited its drug-quantity determination to a period (18 months) that was shorter than the period originally identified by the appellant (2 years). This circumspect approach was consistent with our admonition that, in estimating drug quantities, it is often wise for a sentencing court "to err on the side of caution.” United States v. Sklar, 920 F.2d 107, 113 (1st Cir. 1990) (quoting United States v. Walton, 908 F.2d 1289, 1302 (6th Cir. 1990)).

      . Specifically, the indictment to which the appellant pleaded charged him with "con-spir[ing] ... with persons known and unknown to the Grand Jury ...”

      . The appellant’s brief also attempts to sketch an argument predicated on changing societal and political views concerning mass incarceration and drug addiction. He appears to argue that future legislation, currently under consideration, might yield a gentler sentence in a case like his. Regardless of the desirability of such future legislation—a matter on which we take no view—this argument is without force. We must decide this appeal on the basis of the law as it stands, not on the basis of the law as it might someday be.


author: HOWARD, Chief Judge.

text:
    William CAVALLARO and Patricia Cavallaro, Donors, Petitioners, Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent, Appellee.
    Nos. 15-1368
    15-1376
    United States Court of Appeals, First Circuit.
    November 18, 2016

      Andrew H. Good, with whom Philip G. Cormier, Good Schneider Cormier, Edward DeFranceschi, DeFranceschi & Klemm, P.C., Jack W. Pirozzolo, Boston, MA, Joseph R. Guerra, Matthew Lerner, Washington, DC, and Sidley Austin LLP were on brief, for appellants.
    Caroline D. Ciraolo, Acting Assistant Attorney General, with whom Bruce R. El-lisen, Attorney, Tax Division, U.S. Department of Justice, and Ivan C. Dale, Attorney, Tax Division, U.S. Department of Justice, were on brief, for appellee.
    Before HOWARD, Chief Judge, LYNCH and KAYATTA, Circuit Judges.
   HOWARD, Chief Judge.

William Cavallaro and his wife Patricia Cavallaro (together, “the Cavallaros”) appeal from a Tax Court decision affirming a determination by the Internal Revenue Service (“IRS”) Commissioner that they owed gift taxes on a $29,670,000 gift to their sons. After careful consideration, we affirm in part, reverse in part, and- remand to the Tax Court for further proceedings consistent with this opinion. .

I. BACKGROUND

In 1979, the Cavallaros started Knight Tool Co. (“Knight”), a contract manufacturing company that made custom tools and machine parts. William Cavallaro— whose principal work was making and selling the business’s products—owned 49% of Knight’s stock, while Patricia Cavallaro— who acted as an administrator and bookkeeper—owned 51%. The Cavallaros’three sons Ken, Paul, and James eventually joined the family business.

In 1982, Knight deviated from its traditional business and developed a liquid-dispensing system for adhesives called “CAM/ALOT.” Although Knight invested substantial resources in CAM/ALOT’s development, the product had significant flaws, and profits failed to outpace production costs. As a result, the Cavallaros decided to refocus on their core business.

Ken, however, continued to believe in the CAM/ALOT technology and asked his parents if he and his brothers could organize a new corporation, Camelot Systems, Inc. (“Camelot”), to further develop it. The Cavallaros assented. After Camelot’s incorporation, Ken worked with William Ca-vallaro and other Knight personnel to change CAM/ALOT’s design in order to meet customers’ needs. Knight manufactured the CAM/ALOT. systems, while Camelot sold and distributed them to third parties.

Everyone who worked on CAM/ALOT systems after Camelot’s incorporation, including Ken, remained on the Knight payroll and received all their wages from Knight. Knight’s and Camelot’s financial affairs overlapped in other ways as well. For instance, Camelot did not have its own bank accounts; with minor exceptions, Camelot’s bills were paid using Knight’s funds. And, as a result of how Knight billed Camelot, Knight effectively immunized Camelot' from risk of non-payment for CAM/ALOT systems.

In 1994, the Cavallaros hired both accountants and lawyers to review their estate plan. There was significant friction between these two groups of advisers. Essentially, the lawyers wanted the Cavalla-ros to claim that the value of the CAM/ ALOT technology inhered in Camelot— and so was already owned by Ken, Paul, and James—whereas the accountants objected, to this proposal because it was at odds with the overwhelming evidence that Knight owned the technology and always had. Attorney Louis Hamel argued in a letter to accountant Kevin McGillivray: “History does not formulate itself, the historian has to give it form without being discouraged by having to squeeze a few embarrassing facts into the suitcase by force.” As a result of Hamel’s persuasive efforts, the lawyers’ view prevailed. Both the lawyers and accountants came to endorse Hamel’s suggestion that a 1987 transfer of the CAM/ALOT technology be memorialized in affidavits and a confirmatory bill of sale. Members of the Cavallaro family signed these documents in May 1995.

Knight and Camelot subsequently prepared to merge. As part of their preparations, the Cavallaros hired accountant Timothy Maio to determine the respective values of the two companies. Using a market-based approach, Maio valued the proposed combined entity at $70-$75 million and valued Knight’s portion at just $13-$15 million (or 19%). Notably, Maio assumed that Camelot owned the CAM/ALOT technology and that Knight was a contractor for Camelot.

On December 31, 1995, Knight and Camelot merged in a tax-free merger that left Camelot as the surviving corporation. William Cavallaro received 18 shares of stock in the merged company; Patricia Ca-vallaro received 20 shares; Ken, Paul, and James received 54 shares each. The relative value of each company, as determined by Maio, informed the distribution of shares. Seven months later, Cookson America, Inc. purchased Camelot for $57 million in cash. On the basis of stock ownership, the Cavallaros received a total of $10,830,000, and each son received $15,390,000.

In 1998, the IRS opened an examination of Knight’s and Camelot’s 1994 and 1995 income tax returns. During the income tax examination, the IRS identified a possible gift tax issue in connection with the 1995 merger and opened a gift tax examination as well. That examination resulted in litigation before this court. See Cavallaro v. United States (Cavallaro I), 284 F.3d 236 (1st Cir. 2002) (affirming denial of taxpayers’ motion to quash a third-party record-keeper summons).

Ultimately, the IRS issued notices of deficiency to the Cavallaros for tax year 1995. The IRS determined—without first having obtained an appraisal—that Camelot had a pre-merger value of $0. Thus, when Knight merged with Camelot, William and Patricia Cavallaro each made a taxable gift of $23,085,000 to their sons. As a result, each of the Cavallaros incurred an increase in tax liability in the amount of $12,696,750. The notices of deficiency also imposed additions to tax for failure to file and fraud, pursuant to Internal Revenue Code §§ 6651(a)(1) and 6663(a), respectively.

II. THE TAX COURT PROCEEDINGS

■The Cavallaros filed a petition for review with the Tax Court. During discovery, the Commissioner disclosed that—after the notices of deficiency were issued—he directed accountant Marc Bello to appraise the value of both Knight and Camelot at the time of the merger. Working under the assumption that Knight rather than- Camelot owned the CAM/ALOT technology, Bello valued the combined entities at approximately $64.5 million. Bello concluded that Camelot was worth $22.6 million. The deficiencies would, therefore, be lower than those set forth in the original notices, which assumed that Camelot had no value.

The Cavallaros interpreted the Bello report to mean that the' Commissioner had changed his theory of liability. More specifically, they surmised that the Commissioner was no longer pursuing his original theory—that Camelot -was' a shell corporation formed to disguise a gift transfer from the Cavallaros to their sons—in favor of a new theory that Knight was merely undervalued.’ Prior to trial, the Cavallaros used the Bello report as the basis for their argument that the original notices of deficiency were arbitrary and excessive, or, in the alternative, that the Commissioner’s new theory of liability was a “new matter” within the meaning of Tax Court Rule 142. They moved unsuccessfully to shift the burden of proof to the Commissioner.

During the eight-day bench trial, the Commissioner introduced the Bello valuation into evidence to support his revised deficiency. The Cavallaros introduced both the 1995 Maio valuation and a valuation by John Murphy of Atlantic Management Company, which was consistent with the Maio valuation. Like Maio, Murphy assumed that Camelot owned the CAM/ ALOT technology. Ownership of the CAM/ ALOT-related technology was a central focus of the trial. The Tax Court ultimately concluded that Knight owned all of it.

The Tax Court denied the Cavallaros’ renewed motion to shift the burden of proof to the Commissioner. While noting that it was “evidently true that the Commissioner did not obtain an appraisal before issuing the notices” of deficiency, the Tax Court found that there was a sufficient basis for issuing the notices and, thus, that they were not arbitrary. Further, the court found unpersuasive the Ca-vallaros’ argument that the Commissioner’s litigating position was a “new matter” and stated that the Commissioner’s “partial concessions as to Camelot’s non-zero value” did not require a new theory or change the issues for trial.

The Tax Court ultimately concluded that the Cavallaros were deficient in paying the gift tax due for calendar year 1995: William Cavallaro owed $7,652,980 and Patricia Cavallaro owed $8,009,020. The court also determined—favorably to the Cavalla-ros—that no penalties for underpayment were due under I.R.C. § 6662(a), § 6662(h), or § 6663(a), and there were no additions to tax due under I.R.C. § 6651(a)(1) for failure to file a gift tax return.

This appeal timely followed.

III. STANDARD OF REVIEW

“We review decisions of the [T]ax [C]ourt ‘in the same manner and to the same extent as decisions of the district courts in civil actions tried without a jury.’ ” Interex, Inc. v. Comm’r, 321 F.3d 55, 58 (1st Cir. 2003) (quoting 26 U.S.C. § 7482(a)(1)). Thus, we review the Tax Court’s legal conclusions de novo and its factual findings for clear error. Id. We have the authority “to affirm or, if the decision of the Tax Court is not in accordance with law, to modify or to reverse the decision of the Tax Court, with or without remanding the case for a rehearing, as justice may require.” I.R.C. § 7482(c)(1).

IV. CLAIMS ON APPEAL

On appeal, the Cavallaros renew their claim that the Tax Court erred by failing to shift the burden of proof to the Commissioner for two independent reasons: because (1) the original notices of deficiency were arbitrary and excessive, and (2) the Commissioner relied on a new theory of liability. They make two additional arguments. First, they claim that the Tax Court improperly concluded that Knight owned all of the CAM/ALOT-related technology. Second, they contend that the Tax Court erred by misstating their burden of proof and subsequently failing to consider alleged flaws in Bello’s valuation of the two companies.

We consider these claims in turn.

A. Burden Shifting

A rebuttable presumption of correctness cloaks an IRS notice of deficiency. See, e.g., Bull v. United States, 295 U.S. 247, 259-60, 55 S.Ct. 695, 79 L.Ed. 1421 (1935); Delaney v. Comm’r, 99 F.3d 20, 23 (1st Cir. 1996); Tax Ct. R. 142(a); see also United States v. Rexach, 482 F.2d 10, 16 (1st Cir. 1973) (explaining rationales for this presumption). Thus, the taxpayer typically bears thé burden of proving by a preponderance of the evidence that the Commissioner’s tax assessment is erroneous. Helvering v. Taylor, 293 U.S. 507, 511, 55 S.Ct. 287, 79 L.Ed. 623 (1935); Delaney, 99 F.3d at 23. In some limited circumstances, however, the Commissioner bears the burden of proving a tax deficiency. See, e.g., Tax Ct. R. 142(a)(1) (outlining circumstances that require burden shifting).

The Cavallaros argue that the Tax Court erred by refusing to shift the burden' of proof to the Commissioner. We review their claim de novo. See Estate of Abraham v. Comm’r, 408 F.3d 26, 35 (1st Cir. 2005).

1. For An Excessive and Arbitrary Deficiency Notice

Burden-shifting for an excessive- and-arbitrary deficiency notice is a fairly narrow doctrine. See United States v. Janis, 428 U.S. 433, 441-42, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976). It involves “a challenge to the deficiency assessment itself on the basis that it bears no factual relationship to the taxpayer’s liability, not a challenge to any proof offered by the Commissioner at trial before the Tax Court.” Zuhone v. Comm’r, 883 F.2d 1317, 1325 (7th Cir. 1989). Where an assessment is shown to be “naked” or utterly without foundation, we remand the case for further action to determine the amount that might lawfully be taxed. See Janis, 428 U.S. at 442, 96 S.Ct. 3021 (citing Rexach, 482 F.2d at 16-17 & n,3).In This limited circumstance, the presumption of correctness is overcome, and the burden shifts to the Commissioner. See id.

The threshold question, then, is whether the Cavallaros have carried their burden of producing evidence from which it can be concluded that their deficiency assessments utterly lacked rational foundation. The Cavallaros’ challenge falls short of the mark. Cf. Pittman v. Comm’r, 100 F.3d 1308, 1313 (7th Cir. 1996) (“[CJourts commonly find this showing [that a deficiency assessment lacks a rational foundation] to be made when the Commissioner makes no evidentiary showing at all.”).

The original deficiency notices, assumed that, pre-merger, Camelot had no value. According to the Cavallaros, the Commissioner’s later realignment with the Bello valuation conclusively established that the Commissioner “used no formula at all” and lacked “any support at all” for that initial $0 valuation. Thus, they allege, the Commissioner’s assessment was “without rational foundation and excessive.” Taylor, 293 U.S. at 514, 55 S.Ct. 287.

Without more, however, the fact that the Commissioner later conceded a portion of the original deficiency does not compel a conclusion that the initial assessments lacked a rational foundation. Cf. McMurtry v. Comm’r, 203 F.2d 659, 665-666 (1st Cir. 1953) (declining to shift burden where Commissioner reduced the amount of the claimed deficiency); Silverman v. Comm’r, 538 F.2d 927, 931 (2d Cir. 1976) (“The taxpayer does not carry his burden of showing , the determination invalid simply by pointing to the fact that the Commissioner has-reduced his original deficiency claim prior to trial,”).

Here, the Commissioner had discovered—prior to issuing the original notices of deficiency—that the Cavallaros had followed the advice of an estate-planning lawyer, Hamel, who advocated “squeezing] a few embarrassing facts into the suitcase by force” in order to memorialize technology transfers financially advantageous to the Cavallaro family. See Cavallaro v. Comm’r (Cavallaro II), T.C. Memo 2014-189, 2014 WL 4636519, at *18. This, together with associated documents, was a sufficient basis for concluding that Camelot’s value was de minimis. Cf. Silverman, 538 F.2d at 933 (“Valuation is ... necessarily an approximation.” (alteration in original) (citation omitted)). For us to require more would violate the general rule that courts will not look behind a deficiency notice to question the Commissioner’s motives and procedures. Clapp v. Comm’r, 875 F.2d 1396, 1401 (9th Cir. 1989). We need go no further.

The original deficiency notices were not arbitrary and excessive, and thus, no burden shifting was warranted.

2. For a “New Matter”

Rule 142(a)(1) of the Tax Court’s Rules of Practice and Procedure states: “The burden of proof shall be upon the petitioner ... except that, in respect- of any new matter, ... it shall be upon the respondent.” Under the “new matter” exception, if the Commissioner “seeks to establish the deficiency on a basis not described in the Notice, the burden shifts to the Commissioner on that new basis.” Estate of Abraham, 408 F.3d at 35 (citing Shea v. Comm’r, 112 T.C. 183, 197 (1999)). A new theory presented to support a deficiency is “treated as a new matter when it either alters the original deficiency or requires the presentation of different evidence.” Id. (quoting Wayne Bolt & Nut Co. v. Comm’r, 93 T.C. 500, 507 (1989)). If, however, the theory “merely clarifies or develops the original determination,” it is not a new matter. Id.

The Cavallaros argue that the Commissioner relied on a new theory of liability at trial. Their claim is that the Commissioner abandoned his initial theory that Camelot was a worthless sham and then adopted a wholly new theory—based on Bello’s valuation—that Camelot was overvalued by the Cavallaros. Therefore, the Cavallaros argue, the burden of proof with respect to this “new matter” should have been placed on the Commissioner.

The original deficiency notices do not allege that Camelot was a sham company. Rather, they explain:

[U]nder IRC Section 2511[,] donor’s merger of Knight Tool Co. into Camelot Systems, Inc. in return for 19% of the stock of Camelot Systems, Inc. resulted in a gift of $’23,085,000.00 to the other shareholders of Camelot Systems, Inc. Accordingly, taxable gifts are increased $23,085,000.00.

The clear implication was that, because Knight was undervalued, the Knight-Camelot merger allowed for a disguised gift transfer from the Cavallaros to their three sons. ; ,

The Commissioner’s subsequent adoption of the Bello report was simply a refinement of that original theory (i.e., a clarification of the extent to which Knight was undervalued). We have previously said that “if a deficiency notice is broadly worded and the. Commissioner later advances a theory not inconsistent with that language, the theory does not constitute new matter, and the burden of proof remains with the taxpayer.” Estate of Abraham, 408 F.3d at 36 (citing Abatti v. Comm’r, 644 F.2d 1385, 1390 (9th Cir. 1981)). The original deficiency notices were more than adequate to put the Cavallaros on notice that the Commissioner was challenging the value of Knight as transferred within the merger. Cf. Kikalos v. Comm’r, 434 F.3d 977, 983 (7th Cir. 2006) (holding that the Commissioner’s change in the method of calculation for the income shortage was not a “new matter” and that the deficiency notice- clearly put the taxpayers on notice of the liability theory underlying the new calculation). Indeed, the Cavallaros’ Petition for Re-determination makes it clear that they were aware all along that the value of. Knight, to the extent that it exceeded the value of the stock they received at the time of the merger,-would be integral to determining their tax liability.

As neither of the Cavallaros’ two burden-shifting theories succeed, we affirm the Tax Court’s determination that the Cavallaros had the burden of proof.

B. CAM/ALOT Technology

The Cavallaros also challenge the Tax Court’s finding that Knight owned all of the CAM/ALOT technology. Specifically, they complain that the Tax Court’s treatment of the “different types of technology ... as a single, undivided whole” was overly simplistic. The record, however, amply supports the Tax Court’s determinations. See McMurray v. Comm’r, 985 F.2d 36, 40 (1st Cir. 1993) (“The tax court’s ruling ... is a factual finding that we must affirm unless it is clearly erroneous.”).

As detailed above, Knight created the first CAM/ALOT system, and, even after Camelot’s incorporation, the companies’ financial affairs overlapped significantly. Further, “[t]he few public registrations of intellectual property were all owned by Knight.” Cavallaro II, T.C. Memo 2014-189, at *8. The CAM/ALOT trademark was registered to Knight until December 31,1995, and four patent applications, each filed by William Cavallaro, identified Knight—not Camelot—as his assignee. Id. In 1992, before the instant controversy arose, the Cavallaros’ accountants “determined that a portion of the work ... done in prior years by Knight’s engineers could be characterized as [research and development (“R&D”)] costs eligible for [a Section 41 R&D] tax credit.”-Id. at *9. In light of that study, the accountants prepared amended tax returns for Knight for 1990 to 1993. Id. Only after the involvement of the Cavallaros’ estate-planning attorneys did the accountants prepare another set of amended returns for both Knight and Camelot, this time disclaiming the R&D credits previously taken by Knight and claiming them for Camelot. Id.

The Cavallaros, the Tax Court concluded, “manifestly gave no thought in 1987 to the question of which entity would own what intangibles.” Id. at *19. The Tax Court rejected attorney Hamel’s position that a transfer of CAM/ALOT technology occurred in November 1987. That month, the Cavallaros attended a meeting at which Ken, Paul, and James signed Camelot’s articles of incorporation. During the meeting, the lawyer started to hand Camelot’s corporate minute book to William Ca-vallaro, but William deflected the suggestion that Camelot was his and immediately handed the minute book to Ken, saying, “[t]ake it; it’s yours.” Although Hamel testified at trial that he construed this as a symbolic handoff of the CAM/ALOT technology, the court found no documentation to support such a transfer. Id. at *9 n.13. The court reasonably interpreted the 1995 affidavits and confirmatory bill of sale as evidence of a view—shared by the Cavalla-ro family and them various advisers—that the contemporaneous document trail showed that Knight, not Camelot, owned the CAM/ALOT technology and, therefore, supplemental documents were necessary to counter that impression. Id. at *19.

Analyzing the ownership question through the lens of a hypothetical bona fide purchaser at the time of the merger, see 26 C.F.R. §§ 25.2511-1(g)(1), 25.2512-8, the Tax Court concluded:

If Camelot had offered itself to the market for acquisition claiming ownership of the CAM/ALOT technology, it is inconceivable that a hypothetical acquirer would do anything other than demand to see documentation of Camelot’s .ownership interest—documentation that we have found does not exist.

Id. It further found:

[I]f Knight were dealing with an unrelated party which sold machines that had been manufactured at Knight’s risk by Knight employees on Knight premises using technology developed by Knight personnel, where Knight had owned the only public registrations of [IP] and had claimed ownership of the technology in prior tax filings, it defies belief to suggest that Knight would have simply disclaimed the technology and allowed the unrelated party to take it.

Id.

Against this backdrop, the Cavallaros complain that the Tax Court erroneously treated CAM/ALOT as a “monolithic- property interest,” rather than seeing it for its discrete proprietary components. They contend that the Tax Court should have ruled that Camelot owned two crucial property rights at the time of the merger: the trade secrets embodied in Camelot’s mechanical drawings-and the copyrighted CAM/ALOT operating software. We disagree.

At trial, the Tax Court suggested that assessing potentially discrete proprietary components of CAM/ALOT might be a better approach. It invited the parties to consider such an approach only insofar as it was helpful to framing the case and clearly warned that such an approach might not “survive the expert testimony.” The Cavallaros continued to press their views that (1) Knight fully abandoned the CAM/ALOT enterprise in 1987, (2) Camelot subsequently designed an entirely new machine through Ken’s innovation, and (3) Camelot paid Knight in full for using its resources and original technology. In brief, their position was that ho gift transfer occurred in 1995. Accordingly, their present appeal for a piecemeal approach to the ownership question, as a belated alternative to avoid gift tax liability, is waived. Cf. Ahern v. Shinseki, 629 F.3d 49, 58 (1st Cir. 2010) (“An appellant cannot change horses in mid-stream, arguing one theory below and a quite different theory on appeal.”).

We find the Cavallaros’ remaining claims similarly unavailing and dispense with them briefly. First, the record shows that the Tax Court did not myopically focus on Knight’s original ownership of the CAM/ALOT technology; instead, it focused on ownership at the time of the Knight-Camelot merger. Second, the Tax Court viewed the lack of any document memorializing a technology transfer between Knight and Camelot as material to the overall inquiry, not as dispositive. Third, the Tax Court did not improperly defer to the accountants’ property rights determination; rather, it saw their determination as indicative of the family’s contemporaneous belief that Knight owned the CAM/ALOT technology.

The Cavallaros have advanced no argument that would warrant overturning the Tax Court’s finding that Knight owned all of the CAM/ALOT technology at the time of the merger. Where, as here, “there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985); see also Crowley v. Comm’r, 962 F.2d 1077, 1080 (1st Cir. 1992).

C. The Bello Valuation

In challenging the valuation provided by Bello and relied upon by the Tax Court, the Cavallaros argue that the Tax Court again erred with respect to the burden of proof. The Tax Court stated that the Ca-vallaros had “the burden of proof to show the proper amount of their tax liability,” but the Cavallaros argue that their burden was actually to establish “that the alleged deficiencies were erroneous.” They contend that this “legal error” by the Tax Court led to another: the court refused to consider their evidence that the Bello valuation was “fatally flawed.”

Accordingly, our inquiry proceeds in two steps: first, we determine whether the Tax Court misstated the burden of proof; second, we consider whether the court erred in adopting Bello’s valuation without considering its alleged defects.

1. Burden of Proof

Although the Tax Court did not misallo-cate the burden of proof at trial,- we agree with the Cavallaros that the Tax Court misstated the content of that burden. The Commissioner’s deficiency notices enjoyed a presumption of correctness, and the Ca-vallaros had .the burden of proving by a preponderance of the evidence that they were erroneous. See Rexach, 482 F.2d at 16 n.3; see also Delaney, 99 F.3d at 23 (“[A] tax deficiency assessment is subject to reversal if the taxpayer.establishes by a preponderance of the evidence that it was erroneous.”).

The Tax Court reasoned that “[i]t is the Cavallaros who have the burden of proof to show the proper amount of their tax liability,” but that they could not meet that burden because neither of their valuations (i.e., neither Maio’s nor Murphy’s) .remained standing in light of the Tax Court’s finding that Knight, rather than Camelot, owned all of the CAM/ALOT-related technology. Therefore, the Tax Court adopted the Commissioner’s Bello valuation in full, even while remarking on its “arguably flawed analysis.”

But this statement on the Cavalla-ros’ burden of proof is mistaken as a matter of law. In Taylor, the Supreme Court made it clear that once the taxpayer shows the Commissioner’s determination to be “arbitrary' and excessive,” the taxpayer cannot be made to pay the: amount assessed against him—even if. he fails to prove the correct amount of liability he owes. 293 U.S. at 515, 55 S.Ct. 287; see also Rexach, 482 F.2d at 16 n.3 (“[Ojnce a taxpayer ,.. has borne his burden of proving the Commissioner’s determination invalid, he has no further obligation to show ..-. how much” money is owed.).

2. Criticisms of The Bello Valuation

The Cavallaros attempted to show that the Commissioner’s valuation was “arbitrary and excessive” by challenging Bel-lo’s methodology, but the Tax Court refused to hear those challenges on the grounds that, even if the Cavallaros were right, they could not show the correct amount of their tax liability. This runs squarely against the Supreme Court’s holding in Taylor.

The Cavallaros should have had the opportunity to rebut the Bello report and to show that the Commissioner’s assessment was “arbitrary and excessive.” If they succeeded in doing so, the Tax Court should have then determined for itself the correct amount of tax liability rather than simply adopting the Commissioner’s position. See Taylor, 293 U.S. at 515-16, 55 S.Ct. 287 (stating that upon determining the Commissioner’s valuation to be arbitrary, the Board of Tax Appeals should have conducted a “further hearing” in which it “heard evidence to show whether a fair apportionment might be made and, if so, the correct amount of the tax”); see also Worcester Cty. Tr. Co. v. Comm’r, 134 F.2d 578, 580-81 (1st Cir. 1943) (upon finding the Board’s determination of value of a stock to be “arbitrary and excessive,” remanding for “further action” on the correct value); Taylor v. Comm’r, 445 F.2d 455, 460 (1st Cir. 1971) (“[Under Taylor,] if a taxpayer proves that a deficiency asserted by the Commissioner is wrong but fails to prove there was no deficiency or the correct figure, the Tax Court cannot accept the Commissioner’s admittedly erroneous figure. Instead it must hold a hearing to determine what the correct figure is.”).

In accordance with those cases, we remand so that the Tax Court can evaluate the Cavallaros’ arguments that the Bello valuation had methodological flaws that made it arbitrary and excessive. If the Tax Court determines that the Commissioner’s assessment was arbitrary, then it must determine the proper amount of tax liability for itself. “The court need not, in making this determination, be able to precisely establish the correct figures; reasonable approximations may be employed, provided the findings disclose the method used in calculating the deficiency.” Miller v. United States, 296 F.2d 457, 460 (7th Cir. 1961). The court is free to accept in whole or in part, or reject entirely, the expert opinions presented by the parties on the subject. See Silverman, 538 F.2d at 933; see also Helvering v. Nat’l Grocery Co., 304 U.S. 282, 295, 58 S.Ct. 932, 82 L.Ed. 1346 (1938). Further, the court may take new evidence, including a new expert valuation.

Y. CONCLUSION

For the above-stated reasons, we affirm the Tax Court’s determination that the burden of proof was on the taxpayers and its finding that Knight owned the CAM/ALOT-related technology at the time of the Knight-Camelot merger. However, insofar as the court misstated the nature of the Cavallaros’ burden of proof, we reverse and remand the case for further proceedings in keeping with this opinion. The extent of any further briefing, hearings, or evidence is left to the Tax Court’s sound discretion.

Affirmed in part, reversed in part, and remanded.

      . This letter was cc’d to the Cavallaros and their three sons, as well as to other advisers.

      . The affidavits executed by William and Ken averred that Knight transferred "the original dispensing product” to Camelot when tire latter was formed in 1987, that Knight received no compensation for this gift transfer, and that the' gift had "no áscertainable value.”

      . The Commissioner initially determined equal $23,085,000 gift amounts for both William and Patricia Cavallaro but later revised the amounts to reflect the actual division of ownership in Knight.

      . At trial, the Cavallaros pointed out that the rule applying a presumption of correctness was substantially changed by the Internal Revenue Service Restructuring and Reform Act of 1998. See 26 U.S.C. § 7491. However, those changes are not applicable here because the examination at issue began before the effective date of the statute.

      . This is true even though the Commissioner’s adoption of the Bello report reduced the Ca-vallaros' alleged deficiency by roughly one-third.

      . The two circuit cases cited by the Cavallaros do not persuade us otherwise. In Caracci v. Commissioner, 456 F.3d 444, 447, 456 (5th Cir. 2006), the Commissioner expressly con-cedéd that the excise tax deficiency, which was grounded on a “brief, intermediate internal [valuation] analysis,” was "excessive and erroneous.” No such concession exists here, nor are we convinced on this record that the Bello report, standing alone, compels one. In Estate of Mitchell v. Comm'r, 250 F.3d 696, 702 (9th Cir. 2001), the estate tax deficiency notice rested on a stock valuation that the appraiser had altered according to the Commissioner's instructions, and that the IRS expert disavowed. The circumstances in the instant case are not analogous.

      . Although the Commissioner's Answers— filed in response to the Cavallaros' Petition for Re-determination—do refer to Camelot as a “shell” or "virtual shell” in several instances, these references cannot bear the weight that the Cavallaros place on them. The Answers’ overriding message is that the Cavalla-ros’ share of the merged company was not "an accurate reflection of the value of Knight before the merger.” This is not in tension with the Bello report.

      . This language, quoted from the notice of deficiency issued to Patricia Cavallaro,- does not appear in the notice of deficiency, issued to William Cavallaro. The Tax Court deemed this omission inadvertent and non-prejudicial, and the Cavallaros do not challenge this determination on appeal;

      , Further showing the importance of Knight's value, in Cavallaro I, we stated: "The IRS suspected that the parties might have undervalued the Cavallaros' Knight company and overvalued the sons' Camelot company to disguise a gift to the sons in the form of post-merger stock.” 284 F.3d at 239.

      . The subsequent expert testimony—by both Bello and Murphy—showed that their valuations were premised on CAM/ALOT technology being a single asset;

      . In any event, the Cavallaros’ argument that the Tax Court missed or misevaluated the legal import of the software notices and the legends for the mechanical drawings lacks merit, The record shows that the Tax Court carefully considered the gravitas of the Camelot name stamp and other proprietary claims from the viewpoint of an unrelated purchaser. See C.I.R. v. Culbertson, 337 U.S. 733, 746, 69 S.Ct. 1210, 93 L.Ed. 1659 (1949). While these few pieces of evidence, do not fit neatly with the rest of the evidence suggesting that Knight owned the CAM/ALOT technology and that Camelot merely sold it, they are not enough to leave us "with the definite and firm conviction that a mistake has been committed” by the Tax Court. Schussel v. Werfel, 758 F.3d 82, 87 (1st Cir. 2014) (quoting Interex, 321 F.3d at 58).
      Attempting to secure a foothold in this uphill climb, the Cavallaros contend that the Tax Court’s evaluation of the technology evidence rests on “an inaccurate appraisal of controlling legal principles,” This argument does not convince us that the Tax Court committed a reversible error.

      . Although, for reasons discussed at length above, the Commissioner’s present action is not a "naked” assessment of tax, we grant the possibility that his method of arriving at the $29,670,000 valuation for the gift may nonetheless have been incorrect. Cf. Estate of Todisco v. C.I.R., 757 F.2d 1, 5 (1st Cir.1985) (”[G]ranting for the sake of argument that the Commissioner’s method of arriving at a ten percent gross profit margin was arbitrary ..., it is clear nonetheless that Todisco earned bookmaking income in 1972 and 1973. The Commissioner’s-present action is thus not a naked assessment of tax.”).

      . The Cavallaros' brief explains the bases on which they argue that the Bello valuation was without foundation and excessive. The Commissioner suggests that those arguments are meritless in light of the Tax Court’s factual findings. But it seems unwise for us to attempt to determine ourselves whether the Ca-vallaros have valid criticisms that make the Bello valuation arbitrary. Instead, the Tax Court ought to make that determination in the first instance.

      . Estate of Elkins v. Commissioner, 767 F.3d 443 (5th Cir. 2014), which the Commissioner cites in opposition, is not to the contrary. There, the Fifth Circuit held that the Tax Court had erred in rejecting the taxpayer’s evidence of fractional-ownership discounts for the purpose of artwork valuation, where nothing in the Commissioner’s expert testimony, briefing, or oral argument "detract[ed] from or call[ed] into question” the taxpayer's evidence. Id. at 452. This case is entirely different because the Commissioner’s valuation, although the last one standing, is not ''uncontradicted, unimpeached, and eminently credible.” Id, at 451. Rather, the Cavallaros offered serious criticism of the Commissioner’s evidence.
      Even if Elkins were correct, the Commissioner seems to concede that Elkins spoke too broadly in prohibiting the Tax Court from conducting its own valuation once the party ■ with thei burden of proof is shown, to be erroneous.


text:
    UNITED STATES of America, Appellee, v. Carole SWAN, Defendant, Appellant.
    No. 14-1672
    United States Court of Appeals, First Circuit.
    November 21, 2016

      Darla J. Mondou, with whom Mondou Law Office was on brief, for appellant.
    Margaret D. McGaughey, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee.
    Before HOWARD, Chief Judge, TORRUELLA and BARRON, Circuit Judges.
   HOWARD, Chief Judge.

Defendant-Appellant Carole Swan, former seleetperson for the Town of Chelsea, Maine, appeals her convictions for Hobbs Act extortion, 18 U.S.C. § 1951(a), tax fraud, 26 U.S.C. § 7206(1), and making false statements to obtain federal worker’s compensation, 18 U.S.C. § 1920. The sole issue raised on appeal is the district court’s denial of a motion to suppress incriminating statements made during Swan’s interview with two sheriffs deputies. Swan argues that suppression was required because her statements were obtained through a custodial interrogation without the benefit of a Miranda warning. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Alternatively, she claims that her incriminating statements were not made voluntarily. See Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960). We affirm.

I.

The citizens of Chelsea, Maine (the “Town”), elected Swan to serve as a se-lectperson, and she held that position for nineteen years. During the course of her tenure, however, Swan came under investigation for allegedly using her public office to profit at the Town’s expense. In early 2011, a deputy from the Kennebec County Sheriffs Office (“KCSO”) met with Frank Monroe, a local businessman. Monroe told the deputy that Swan had instructed him to over-bill the Town for sand delivery and pay her a $10,000 kickback. .

After receiving this information, the KCSO set up a sting operation. Under the direction of the sheriffs office, Monroe submitted an inflated bill to the Town for the amount indicated by Swan. The invoice was subsequently approved and a check to Monroe was issued. On February 3, 2011, Swan collected the check from the Town and instructed Monroe to pick it up from the mailbox located at the end of her driveway. Monroe picked up the check, while being watched by two KCSO deputies, Lieutenant Ryan Reardon and Detective David Bucknam. Reardon and Buck-nam then gave Monroe a bag of money, with directions to deliver it to Swan. Monroe met Swan and gave her the kickback. After accepting the funds, Swan drove to the parking lot of a nearby laundromat. The deputies followed Swan and parked behind her.

As Swan made her way towards the laundromat, the deputies stepped out of them vehicle and approached her. Reardon, displaying his badge, called out “Carole,” and told her, “I want my money back.” Swan responded that Monroe owed her money. Reardon reiterated that he wanted the money back. Swan returned to her vehicle, retrieved the bag of money, and handed it to Reardon. She asked whether she was in trouble. The deputies suggested that they discuss the issue at the sheriffs office, rather than in the parking lot. Swan assented and—accompanied by Buck-nam'—drove herself to the station. At some point during the encounter in the parking lot, Bucknam came into possession of Swan’s phone.

At the sheriffs office, Swan met with Reardon and Bucknam in an interview room. The deputies assured Swan that she was “not under arrest,” that she was free to leave “[a]t any point,” and that it was “fine” if she did not “want to have [a] conversation” with them. Despite these assurances, Swan stayed and spoke with the deputies. The deputies initially maintained possession of Swan’s cellphone. When Swan asked whether she could have , the phone back, Bucknam told her that he would return it soon, explaining that he was only keeping the phone so that Swan would not get distracted. Shortly thereafter, Swan’s phone rang and she reached for it, saying that it was her husband. Bucknam told Swan that he was “just gonna to hit the thing” and send the call “to voicemail.” Swan responded, “All right.”

Over the course of her hour-and-a-half conversation with deputies, Swan made numerous incriminating statements, including an admission that she had received approximately $25,000 in kickbacks. Towards the end of the interview, Swan told the deputies that she needed to call her husband. The officers returned her phone, offered to let her step outside to make the call; and, ultimately—when Swan opted to stay put—left the room. After speaking with her husband, Swan told the officers that they could come back in and resume the conversation. She retained her phone for the rest of the inteiwiew and, when it ended, thanked the officers.

A federal grand jury subsequently indicted Swan on multiple counts of Hobbs Act extortion, as well as tax fraud and making false statements to obtain fedei’al worker’s compensation. The district court severed the charges, allowing Swan to receive two separate jury trials: one for extortion and a second for the remaining counts.

Before trial, Swan moved to suppress the statements that she had made at the sheriffs office. Following an evidentiary healing, a magistrate judge recommended denying Swan’s motion, concluding that she had not been subjected to a custodial interrogation and that her confession was voluntary. The district court agreed and denied the motion to suppress.

Ultimately, Swan was convicted of three counts of Hobbs Act extortion, five counts of tax fraud, arid two counts of making false statements to obtain federal worker’s compensation. This timely appeal followed.

II.

When considering the denial of a motion to suppress, “we review the district court’s factual findings for clear error and its legal conclusions de novo.” United States v. Almeida, 434 F.3d 25, 27 (1st Cir. 2006). Factual findings “are clearly erroneous only when ... the reviewing court ,.. is left with the definite and firm conviction that a mistake has been committed.” United States v. McLaughlin, 957 F.2d 12, 17 (1st Cir. 1992) (citation omitted). Additionally, we “may affirm ... suppression rulings on any basis apparent in the record.” United States v. Arnott, 758 F.3d 40, 43 (1st Cir. 2014).

A.

The police are required to provide a Miranda warning before subjecting a suspect to custodial interrogation. United States v. Davis, 773 F.3d 334, 338 (1st Cir. 2014). Accordingly, the need for a Miranda warning “turns on whether a suspect is in custody.” United States v. Hughes, 640 F.3d 428, 435 (1st Cir. 2011). In this context, “ ‘custody’ is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion.” Howes v. Fields, 565 U.S. 499, 132 S.Ct. 1181, 1189, 182 L.Ed.2d 17 (2012). The relevant inquiry is “whether, in light of'the objective circumstances of the interrogation, a reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave.” Id. (citations omitted) (alteration in original). We have previously identified a number of factors relevant to this determination, including “whether the suspect was questioned in familiar or at least neutral surroundings, the number of law enforcement officers present at the scene, the degree of physical restraint placed upon the suspect, and the duration and character of the interrogation.” United States v. Masse, 816 F.2d 805, 809 (1st Cir. 1987) (citation omitted).

Here, Swan contends that she was in custody during her initial encounter with Reardon and Bucknam in the parking lot because, among other things, the deputies effectively trapped her in a relatively tight space, insisted on speaking with her at the sheriffs office, and accompanied her on the drive to that location. The magistrate judge’s factual findings, however, undermine Swan’s argument. The magistrate determined that the deputies merely suggested that Swan speak with them at the sheriffs office. It similarly found that Swan was not ordered to ride with Bucknam. Rather, this too was merely a suggestion to which Swan agreed. Swan’s voluntary decision to meet at the stationhouse strongly suggests that she was not “in custody” for the purposes of Miranda. See McCown v. Callahan, 726 F.2d 1, 6 (1st Cir. 1984) (Breyer, J.) (finding interaction with law enforcement non-custodial because the “defendants had come to the station voluntarily,” “were told that they were not under arrest,” and “left the station undisturbed”).

In any event, although we doubt that the district court’s factual findings were clearly erroneous, it is unnecessary for us to decide whether the encounter in the parking lot was custodial. This is because, in conducting the Miranda analysis, we focus on the time that the relevant statements were made. For. example, in United States v. McCarty, 475 F.3d 39 (1st Cir. 2007), we considered whether to suppress unwarned statements' by a defendant who had been handcuffed only minutes beforehand.. Although we observed that the defendant undoubtedly had been “in custody” while restrained, we held that the situation became non-custodial by the time that the questioning began. Id. at 45-46. This was because the officers had taken off the defendant’s handcuffs and “explained ... that he was not under arrest, that he was free to leave at any time, and that he did not have to answer any questions.” Id. at 46. Accordingly, there was no need to administer a Miranda warning.

So too here. Even assuming that the confrontation in the parking lot was custodial, Swan was not entitled to a Miranda warning unless she remained in custody at the stationhouse when she made the statements now at issue. Based on the totality of the circumstances, we conclude that the interview at the stationhouse was non-custodial.

We begin by emphasizing that, as in McCarty, the deputies prefaced their questioning by telling Swan that she was “not under arrest,” that she was free to leave “[a]t any point,” and that it was “fíne” if she did not “want to have [a] conversation” with them. These unambiguous statements would have led a reasonable person in Swan’s position to understand that she was not “in custody,” notwithstanding what had transpired in the parking lot. See McCarty, 475 F.3d at 45-46; United States v. Infante, 701 F.3d 386, 398 (1st Cir. 2012) (holding that the defendant was not in custody where the interviewing officer “informed [him] during each interview that he was not under arrest or in custody and that he did not have to speak with the officers”); United States v. Ellison, 632 F.3d 727, 728 (1st Cir. 2010) (Souter, J.) (concluding that questioning did not constitute custodial interrogation where an officer informed the suspect that “he was not under arrest ..., did not have to answer any questions, and was free to end the interview at any time”).

Other evidence that the questioning was a custodial interrogation is also lacking. Turning to the relevant factors, we first consider the location of the interview. Swan met with the deputies at the sheriffs office behind closed doors. However, the deputies made it clear to Swan that she was free to leave and that the door was closed only for the sake of privacy. Without more, the mere fact that the questioning took place at the station does not render it custodial. See, e.g., United States v. Quinn, 815 F.2d 153, 160 (1st Cir. 1987) (“Even when questioning occurs in the sta-tionhouse, a suspect need not be given Miranda warnings if he went there voluntarily and there was no such restriction on his freedom as to render him in ‘custody.’”).

Next, “[t]he number of officers present ... was not overwhelming, lending support to a finding that the questioning was non-custodial.” Infante, 701 F.3d at 397. Reardon and Bucknam were the only law enforcement officers involved in the interview. We have previously declined to. find that a defendant was in custody even when confronted by as many as five police officers. See Quinn, 815 F.2d at 157; see also Infante, 701 F.3d at 397-98 (holding that presence of two officers, joined briefly by two others, was' not overwhelming). We also note that the deputies never drew their weapons at any point during their interactions with Swan. See Hughes, 640 F.3d at 436 (finding interrogation non-custodial when officers “carried visible weapons” which “remained in their holsters throughout the visit”).

Similarly, Swan was not handcuffed or otherwise physically restrained at the sheriffs office. See id. (“[W]e think it significant that no meaningful physical restraint was applied to the' defendant... For aught that appears, no officer made physical contact with him.” (citations omitted)). This too suggests that the interaction was non-custodial.

Finally, the duration and character of the interview reinforce the conclusion that Swan was not in custody. Swan spent approximately ninety minutes at the sheriffs office. We have held that encounters of similar length are not necessarily custodial. See, e.g., id. at 437 (“The relatively short duration of the interview, which lasted roughly ninety minutes ... [is] also consistent -with the finding that the interview was not custodial”). Additionally, as the magistrate judge noted, the conversation was characterized by “a generally even-tone back and forth.” See, e.g., United States v. Jones, 187 F.3d 210, 218 (1st Cir. 1999) (holding that interview was noncustodial where the officer “used a normal tone of voice” during questioning).

Swan, however, points out that the officers were in possession of her cellphone throughout much of the interview and claims that this fact renders the interaction custodial. But we do not find this fact to be determinative. Bucknam explained to Swan that the deputies would return her phone, but were holding it during the interview because they did not want her to get distracted. It is true that the deputies sent a call from Swan’s husband to voice-mail, but they did so only with her permission. And when Swan later told the deputies that she needed to call her husband, they not only allowed her to make the call but also left the room. In light of the facts considered as a whole, the officers’ temporary possession of Swan’s cellphone was not sufficient to trigger Miranda. Nor does the precedent suggest otherwise. See United States v. Campbell, 741 F.3d 251, 267 (1st Cir. 2013) (finding questioning to be non-custodial despite the fact that “the defendants may have temporarily been unable to use their cellular phones”); United States v. Salinas, 543 Fed.Appx. 458, 464-65 (5th Cir. 2013) (unpublished) (referring to retention of suspect’s phones as “some evidence that the encounter was custodial” but ultimately affirming finding that the defendant was not in custody).

In sum, after considering the relevant factors, we conclude that a reasonable person in Swan’s position would have felt able to terminate the interview and leave the station. Accordingly, Swan was not subjected to a custodial interrogation, and it was unnecessary to provide her with Miranda warnings.

B.

Swan’s remaining claim that her confession was involuntary lacks merit. The previously discussed facts establish that the government’s conduct did not overbear Swan’s will. In short, “[t]he tone of the interview was cordial, its length was reasonable, and the defendant was not deprived of any essentials,” all of which indicates “a lack of coercion ... [and] supports] the district court’s finding of voluntariness.” Hughes, 640 F.3d at 438.

Swan primarily argues that her statements were involuntary because the deputies promised her leniency in exchange for her cooperation. This contention need not detain us long, as “[i]t is well settled in the First Circuit that an officer does not impermissibly overbear a defendant’s will by promising to bring the defendant’s cooperation to the prosecutor’s attention or by suggesting that cooperation may lead to more favorable treatment.” United States v. Jacques, 744 F.3d 804, 809-10 (1st Cir. 2014).

III.

For the foregoing reasons, we AFFIRM Swan’s convictions.

      . Other circuits have applied a similar analysis. See United States v. Gordon, 294 Fed.Appx. 579, 584 (11th Cir. 2008) (per curiam) (unpublished) (holding that the defendant's telephone conversation with an agent after his arrest and release was not subject to Miranda requirements because the defendant "was not in custody at the time he made the statements at issue”); United States v. Wallace, 323 F.3d 1109, 1113 (8th Cir. 2003) (explaining that interrogation was non-custodial despite the fact that law enforcement "corralled the [defendant] at the onset of the search” because the “main focus must be on the individual’s restraint during the interview” (emphasis in original)).

      . Swan suggests, for the first time on appeal, that the deputies "seized” the bag of money and cellphone within the meaning of the Fourth Amendment. She argues that such a seizure could only be justified as a "search incident to arrest.” Accordingly, she must have been arrested and, thus, in custody for purposes of Miranda. This contention is without merit. Undoubtedly, some seizures are conducted incident to an arrest. But there are also a number of .other situations in which warrantless seizures are permissible. Thus, even if a seizure had taken place (and we expressly decline to reach this issue), it would not necessarily follow that Swan was in custody.