author: KAYATTA, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. James STILE, Defendant, Appellant.
    No. 15-1720
    United States Court of Appeals, First Circuit.
    January 3, 2017

      Alexandra H. Deal, Boston, MA, for appellant.
    Renée M. Bunker, Assistant United States Attorney, with whom Thomas E, Delahanty II, United States Attorney, was on brief, for appellee.
    Before HOWARD, Chief Judge, SELYA and KAYATTA, Circuit Judges.
   KAYATTA, Circuit Judge.

The defendant, James Stile, pled guilty to robbery of a controlled substance from a pharmacy by use of a dangerous weapon, in violation of 18 U.S.C. § 2118(a) and (c)(1). The district court sentenced him to 120 months in prison. He now appeals that sentence on both substantive and procedural grounds. For the following reasons, we affirm.

I. Background

We summarize the facts briefly, drawing on the presentence report (PSR) and the transcript of the sentencing hearing. See United States v. Jiminez, 498 F.3d 82, 84 (1st Cir. 2007). We reserve further discussion of the facts for where they become relevant to - each issue raised by Stile’s appeal.

In the early evening of September 12, 2011, Stile entered the E.W. Moore & Son Pharmacy in Bingham, Maine. He wore a baseball cap, sunglasses, a dust mask, and purple rubber gloves. As he entered the store, he pulled a sawed-off shotgun from his pants. He walked to the pharmacy counter at the back of the store and ordered three employees to lie on their stomachs. When a customer walked in, Stile forced him behind the pharmacy counter with the employees. Stile handed the owner of the pharmacy a black duffel bag and ordered him to fill it with drugs. Stile tied the hands and feet of the owner, the customer, and the employees with zip ties. He then departed the store, taking $12,890 worth of drugs and $417 in cash.

After initially pleading not guilty and going through several preliminary proceedings including a suppression hearing, Stile pled guilty to robbery of a controlled substance from a pharmacy by use of a dangerous weapon, in violation of 18 U.S.C. § 2118(a) and (c)(1). After conducting a sentencing hearing, the district court calculated Stile’s advisory sentencing range under the United States Sentencing Guidelines, U.S.S.G. §§ 2B3.1 and 3C1.1, to be 108 to 135 months’, imprisonment based on a total offense level of 31 and a criminal history category of I. The district court sentenced Stile to 120 months of imprisonment.

At sentencing, the district court did three things that Stile now claims were procedural error. First, the district court applied a two-level enhancement to what would have otherwise been a total offense level of 29. The basis for the enhancement was a finding of obstruction of justice under U.S.S.G. § 3C1.1. Second, the district court denied Stile’s requested two-level reduction for acceptance of responsibility under U.S.S.G. § 3El.l(a). Third, the district court did not give the evidence of Stile’s drug addiction the weight and effect that Stile claims it warrants. We discuss in turn each of these asserted errors, plus Stile’s catchall argument that his sentence was substantively unreasonable.

II. Discussion

A. Obstruction of Justice

The district court may apply a two-level enhancement to a defendant’s offense level

[i]f (1) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstructive conduct related to ... the defendant’s offense of conviction and any relevant conduct.

U.S.S.G. § 3C1.1. Covered conduct includes “threatening, intimidating, or otherwise unlawfully influencing a ... witness ... or attempting to do so.” Id. cmt. n.4(A).

In calculating Stile’s guidelines sentencing range, the district court applied this enhancement for two independent reasons. First, the court found that Stile had assaulted another inmate in an attempt to intimidate that inmate from testifying against Stile. Second, the court found that Stile had committed perjury during a suppression hearing in December 2012. Stile challenges both findings, either of which is independently sufficient to sustain the enhancement. We begin — and end — by explaining why we see no cause to reverse the witness intimidation finding.

That finding arose out of Stile’s incarceration prior to sentencing. A fellow inmate informed authorities that Stile had confessed to having committed .the robbery, relating many specific details that the inmate could not have made up. The government thereafter gave to Stile’s then-counsel a report of the informant’s allegations, excluding the informant’s name. Just over a month later, a prison video camera captured Stile assaulting the informant. Authorities found in Stile’s cell a copy of the report given to his counsel chronicling the information received from the inmate. For obvious reasons, the PSR flagged this incident as warranting an obstruction of justice enhancement.

In Stile’s sentencing memorandum, Stile’s counsel previewed the prospect of an alternative motive for Stile’s attack on the informant: the inmate had supposedly made sexual advances toward Stile. The memorandum acknowledged that there was an informant and that Stile had learned as much. It also made no claim that anyone other than the inmate Stile assaulted was the informant or that Stile had related facts of the robbery to anyone other than the inmate he assaulted. Rather, it challenged the adequacy of the government’s proof that Stile knew that the inmate he assaulted was the informant (because the report did not contain the informant’s name), and that the fight occurred because the inmate was a potential witness.

The district court commenced the sentencing hearing by explaining to Stile that the court would hear from counsel and “from you if you wish to speak to me.” After receiving into evidence the PSR and assorted exhibits (including a video of the assault), the district court asked Stile’s counsel, “Is there anything that you wish to present?” Replied counsel: “No, sir. No evidence, only argument.” Defense counsel, consulting in the process with Stile, then argued that the government’s evidence was insufficient to show obstruction. Immediately after hearing this argument, the district court issued its findings, ruling that Stile had assaulted the inmate to punish him for informing and to deter him from testifying and noting the absence of any actual evidence of a contrary motive.

After the court announced its ruling, Stile’s lawyer stated that Stile wished to “reopen the evidence” on the assault and give his own testimony. The court explained that Stile’s request was “a little late in the day,” and that, typically, “people put their evidence in front of the judge before he makes the decision, not after the judge makes the decision.” Stile’s attorney nevertheless asked that the court consider the request to be a motion to reconsider and to reopen the evidence. Such a motion is directed to the court’s discretion. Cf. United States v. Peterson, 233 F.3d 101, 106 (1st Cir. 2000) (“Generally, if [the defendant] wishes to testify [at trial], he must do so before he rests his case; otherwise, he can move the trial court to reopen the evidence, but the choice whether to reopen is left to the court’s sound discretion.”).

Before ruling on that motion, the district court warned Stile that if the court reopened the evidence to allow Stile to testify belatedly and found that Stile was not telling the truth, then Stile “[would] receive a harsher sentence.” The court explained that it had already gone through the evidence, given Stile’s counsel an opportunity to argue in his favor, and found the evidence against Stile so strong that it would have made that same finding “beyond a reasonable doubt” had it needed to do so. The court indicated that Stile would “have a very, very difficult time” convincing the court that he had not assaulted the inmate because the inmate had informed on him. After hearing of this potential downside to testifying, Stile ultimately declined to testify. The court, in turn, relied on the finding of witness intimidation to support the two-level enhancement for obstruction of justice.

Stile does not argue that the foregoing record lacks sufficient support for the district court’s finding of witness intimidation. He argues, though, that the finding must be vacated because the district court “prevented” him from offering exculpatory evidence that would have cast his behavior in a different light and led an open-minded factfinder to a different conclusion. In this respect, Stile says, the district court violated his due process rights and Federal Rule of Criminal Procedure 32 by “threatening” him with a harsher sentence if he testified untruthfully during the sentencing hearing. Stile did not raise this argument below, so we review the court’s actions for plain error. United States v. Rodríguez-Reyes, 714 F.3d 1, 10 (1st Cir. 2013). To establish plain error, Stile must show (1) that the court below committed an error; (2) that the error was plain; (3) that the error affected the substantial rights of the defendant; and (4) that “the error ‘seriously affects the fairness, integrity or public reputation of judicial proceedings.’ ” United States v. Colon-Nales, 464 F.3d 21, 25 (1st Cir. 2006) (quoting United States v. Olano, 507 U.S. 725, 735-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)).

To advance his argument, Stile relies by analogy on Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972) (per curiam). There, a defendant in a criminal jury trial called only one witness to testify on his behalf. W. at 95, 93 S.Ct. 351. Before the witness testified, and out of the presence of the jury, the trial judge singled out the witness for a direct admonition to the effect that the witness need not testify, and if he did and lied, the trial judge would personally see to it that he was indicted for perjury, followed by a likely conviction and sentence. Id. at 95-96, 93 S.Ct. 351. The Supreme Court held that this admonition, delivered in strong terms by the judge to the defendant’s only witness, “effectively drove that witness off the stand.” Id. at 98, 93 S.Ct. 351. Here, Stile reasons, the district court’s admonition to Stile drove him to surrender his right to testify at his sentencing hearing.

On plain error review, this argument stumbles at the outset because it is unclear to what extent the principles of Webb apply to sentencing proceedings. Certainly a defendant has a right to due process at sentencing. See Betterman v. Montana, — U.S. -, 136 S.Ct. 1609, 1617, 194 L.Ed.2d 723 (2016) (“After conviction ... [a defendant] retains an interest in a sentencing proceeding that is fundamentally fair.”); United States v. Abreu, 202 F.3d 386, 391 (1st Cir. 2000). This light is protected both by the Fifth Amendment and by Federal Rule of Criminal Procedure 32. See United States v. Kenney, 756 F.3d 36, 49 (1st Cir. 2014); United States v. Curran, 926 F.2d 59, 61 (1st Cir. 1991). As most relevant here, “a criminal defendant enjoys a due process right not to be sentenced on false information, and due process therefore requires that the defendant be given an adequate opportunity to refute information relied on at sentencing.” United States v. Wilfred Am. Educ. Corp., 953 F.2d 717, 722 (1st Cir. 1992) (citation omitted); see also United States v. Rivera-Rodríguez, 489 F.3d 48, 53-54 (1st Cir. 2007). Similarly, Rule 32 gives a defendant the right “to speak or present any information to mitigate the sentence.” Fed. R. Crim. P. 32(i)(4)(A)(ii); see also Irizarry v. United States, 553 U.S. 708, 715, 128 S.Ct. 2198, 171 L.Ed.2d 28 (2008) (“Rule 32(i)(1)(C) requires the district court to allow the parties to comment on ‘matters relating to an appropriate sentence’ _”).

Nevertheless, the due process right at sentencing is not as robust as the due process right at trial. See Betterman, 136 S.Ct. at 1617 (“After conviction, a defendant’s due process right to liberty, while diminished, is still present.”); see also United States v. Jackson, 453 F.3d 302, 305 (5th Cir. 2006) (“It is well-established ... that a defendant’s rights at sentencing differ considerably from his pre-conviction lights.”). For example, a defendant has no right to insist on calling other witnesses on his behalf, see United States v. Cruzado-Laureano, 527 F.3d 231, 238 (1st Cir. 2008), and no due process right to disclosure of all information relied upon by the sentencing court if such disclosure is not mandated by Rule 32, see Curran, 926 F.2d at 61-62.

Even putting to one side these caveats qualifying the scope of due process rights at sentencing, and assuming (without deciding) that Webb fully applies to sentencing proceedings, for at least two reasons it would require quite a stretch to conclude that any error, much less plain error, occurred in this case.

First, the intimidation of the witness in Webb occurred during the defendant’s presentation of his defense. The witness, who was prepared to testify on the defendant’s behalf, constituted the criminal defendant’s entire offered defense. Webb, 409 U.S. at 97-98, 98 S.Ct. 351. Calling the witness to testify represented a “fundamental element of due process of law.” Id. at 98, 93 S.Ct. 351 (quoting Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967)). Explicitly refusing to allow the witness to testify would have been a plain and fundamental error. It therefore made sense to police the trial court’s admonition to the extent that it served as a de facto refusal to allow the testimony.

Here, by contrast, at the time the court issued its warning to Stile, the court in normal course had already allowed him— indeed, invited him — to present whatever evidence he wished to present without any form of dissuasion. He declined to do so until after the record was closed and the court had decided the matter. At that point, Stile had no right to reopen the proceeding to provide evidence he had possessed during the proceeding. Cf. Peterson, 233 F.3d at 106 (holding that, at trial, the decision whether to reopen the evidence is generally left to the court’s sound discretion). Rather, reopening the proceeding for more evidence was within the court’s wide discretion, the exercise of which can easily result in a refusal to reopen when no adequate excuse is offered. Cf. id. at 107 (“Without such a requirement of excuse, the rule generally limiting testimony to the evidence-taking stage of a trial would hardly be a rule at all, and it would be too easy for a defendant to postpone testifying for strategic reasons until after the close of evidence.”) On appeal, Stile still offers no excuse for having failed to testify when given the opportunity. Nevertheless, when Stile moved to reopen, the court discouraged but allowed the testimony, giving Stile more, not less, than that to which he was entitled.

Second, in Webb the admonitions were the product of an opinion preemptively formed before the defendant even began his defense. Here, the district court had already properly made up its mind on a properly closed record. Its pronouncements therefore posed no appearance of preemptive fact-finding on a partial record, and made a perjury finding more likely. See United States v. Vavages, 151 F.3d 1185, 1190 (9th Cir. 1998) (“Among the factors courts consider in determining the coercive impact of perjury warnings are the manner in which the ... judge raises the issue ... [and the] judge’s basis in the record for believing the witness might lie....”).

In this context, we read the court’s admonition as a disclosure that educated Stile concerning the risks of his gambit, rather than as a threat designed to scare off a proposed witness in his defense. We therefore easily find no plain error.

B. Acceptance of Responsibility

The district court may decrease the offense level by two levels “[i]f the defendant clearly demonstrates acceptance of responsibility for his offense.” U.S.S.G. § 3El.l(a). Pleading guilty does not automatically entitle a defendant to a reduced offense level for acceptance of responsibility. United States v. D’Angelo, 802 F.3d 205, 210 (1st Cir. 2015). This is particularly true where the defendant has received the enhancement for obstruction of justice under § 3C1.1. It is only an “extraordinary case[] in which adjustments under both §§ 3C1.1 and 3E1.1 may apply.” U.S.S.G. § 3E1.1 cmt. n.4; see also United States v. Maguire, 752 F.3d 1, 6 (1st Cir. 2014) (stating that downward adjustment under § 3E1.1 when a sentence is enhanced for obstruction of justice is “hen’s-teeth rare”). “The sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review.” U.S.S.G. § 3E1.1 cmt. n.5.

Stile argues that: (1) because the court erred in applying the obstruction of justice enhancement, it also erred in not applying the reduction for acceptance of responsibility; and, (2) even if the court did not err in applying the obstruction of justice enhancement, this was an “extraordinary case” in which he should still receive the reduction. Because we have already rejected Stile’s challenge to the obstruction of justice enhancement, we consider only the latter argument.

The district court did not clearly err in concluding that Stile had “failed to show that his case [was] an extraordinary one.” The district court rested its determination on the fact that Stile both obstructed justice by assaulting the informant and then refused to accept relevant responsibility for the misconduct when caught. However one might label such behavior, we have no trouble concluding that it provided ample support for finding that Stile failed to establish that this is one of those rare cases in which an acceptance of responsibility reduction should be granted to a defendant who has obstructed the government’s efforts to prosecute him. See U.S.S.G. § 3E1.1 cmt. n.3 (although pleading guilty before trial is “significant evidence of acceptance of responsibility,” that evidence “may be outweighed by conduct of the defendant that is inconsistent with such acceptance”); United States v. Meada, 408 F.3d 14, 25 (1st Cir. 2005) (upholding refusal to grant a reduction for acceptance of responsibility where the district court found that defendant was “continuing the misconduct that caused” the court to previously find that he had committed perjury).

C. Section 3553(a) Factors

Stile argues that the district court erred by failing to consider adequately the effect of his drug addiction on his conduct, as required by 18 U.S.C. § 3553(a)(1). In his view, the court should have treated drug addiction as a disease that “diminishes the addict’s capacity to evaluate and control his or her behaviors.” United States v. Hendrickson, 25 F.Supp.3d 1166, 1174 (N.D. Iowa 2014). In so arguing, Stile must acknowledge that the court considered and rejected requests for downward departures on the basis of his drug addiction pursuant to various specific sections of the guidelines, and he does not challenge those decisions. He also must concede that the district court allowed him to present extensive evidence on his addiction and history. Nevertheless, he argues that the court abused its discretion by choosing not to vary downward from the sentencing guidelines range under § 3553(a)(1). See Maguire, 752 F.3d at 7 (“Under the advisory guidelines, discretionary refusals to vary or depart are open to reasonableness review in accordance with an abuse of discretion standard.”).

Under § 3553(a)(1), a court determining a sentence is required to consider “the nature and circumstances of the offense and the history and characteristics of the defendant.” Drug addiction may be one relevant characteristic. See United States v. Innarelli, 524 F.3d 286, 292 (1st Cir. 2008). The district court explicitly considered it. The court acknowledged the nearly thirty-year gap since Stile’s last criminal conduct, his pain management issues, and his recent relapse. It then weighed those facts against the nature and circumstances of the crime, which appeared to be preplanned and involved threatening the victims with a firearm and tying them up with zip ties. The district court also considered the impact on the victims and the need to deter future crime, which was particularly important given the recent “rash of pharmacy robberies” in central Maine. When considering Stile’s request for a departure under U.S.S.G. § 5H1.3, the court specifically noted that if it departed downward because of Stile’s addiction, then “there would be few [defendants] who would not be entitled to a similar downward departure who commit similar crimes.” It observed that in pharmacy robberies, in particular, defendants frequently suffer from mental conditions and addictions.

We conclude that the sentencing court did not abuse its discretion in considering Stile’s drug addiction. The record reflects an attentive and deliberative sentencing judge who permitted the defendant to offer relevant evidence and explained quite carefully and clearly how he weighed the factors involved in the exercise of his judgment. We require no more. See United States v. Denson, 689 F.3d 21, 27-28 (1st Cir. 2012).

To the extent that Stile complains not about process, but rather about the substance of the court’s weighing of the various § 3553(a) factors, his argument does not take into account the degree of deference we afford the district court. Although “a sentencing court may commit procedural error by failing to consider the § 3553(a) factors, ... the weighing of relevant factors is largely within the court’s informed discretion.” United States v. Santiago-Rivera, 744 F.3d 229, 232 (1st Cir. 2014) (citations omitted); see also United States v. Rivera-González, 776 F.3d 45, 50 (1st Cir. 2015) (“The defendant’s real complaint is not that the court overlooked [the defendant’s personal history and characteristics] but that it weighed those factors less heavily than he would have liked. But that type of balancing is, within wide limits, a matter for the sentencing court.”).

The court chose to focus on the features of the crime that made it particularly terrifying to the victims and that demonstrated Stile’s degree of forethought and preparation. On this record, the court did not abuse its discretion in giving less weight to Stile’s drug addiction and more weight to the possibility of general deterrence. See United States v. Vélez-Soto, 804 F.3d 75, 79-80 (1st Cir. 2015) (“A sentencing court need not ‘specifically address all of the § 3553(a) factors in its explanation, nor ... give each of the factors equal prominence in its determination.’ ” (quoting United States v. Zapata, 589 F.3d 475, 487 (1st Cir. 2009))); United States v. Gibbons, 553 F.3d 40, 47 (1st Cir. 2009) (“We will not disturb a well-reasoned decision to give greater weight to particular sentencing factors over others — ”).

D. Substantive Reasonableness

Stile’s argument that his sentence is substantively unreasonable essentially duplicates his argument that the district court improperly weighed the § 3553(a) factors. “Ultimately, ‘the linchpin of a reasonable sentence is a plausible sentencing rationale and a defensible result.’ ” United States v. Rivera-Gonzalez, 626 F.3d 639, 647 (1st Cir. 2010) (citation omitted). For the reasons given above, the duration of Stile’s sentence was not substantively unreasonable.

III. Conclusion

For the foregoing reasons, we affirm Stile’s sentence.

      . The district court noted, specifically, that there was no evidence that the assault was a response to sexual advances. That contention appeared only in the text of the sentencing memorandum. The district court also noted that although the sentencing memorandum stated that Stile was planning to provide the affidavit of another inmate who had witnessed the informant’s sexual advances, he never did so.

      . Stile objected to the characterization of the assault as an obstruction of justice and requested that the district court reconsider its ruling at the sentencing hearing, but did not object to the court’s "threat[ ]" about the consequences of providing false testimony. The defendant’s statement in court that the judge appeared "predetermined on this” was not an objection to the fact that the judge gave a perjury warning.

      . Jackson, which considered a perjury warning at a sentencing hearing concerning a witness other than the defendant, suggests that Webb may not apply in that context. 453 F.3d at 305-06. There is a stronger argument that Webb applies here because the potential witness who received the warning was the defendant himself. See Fed. R. Crim. P. 32(i)(4)(A)(ii); United States v. Cruzado-Laureano, 527 F.3d 231, 238 (1st Cir. 2008). We need not decide this issue, though, as we hold that Webb was not violated even if it does apply.

      . In Curran, this court used its supervisory powers to compel disclosure of this information, but did not hold that due process required it. 926 F.2d at 63.


source: Caselaw Access Project

author: LIPEZ, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Ángel L. COTTO-NEGRÓN, a/k/a Quija, Defendant, Appellant.
    No. 14-1670
    United States Court of Appeals, First Circuit.
    January 9, 2017

      Tina Schneider on brief for appellant.
    Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Juan Carlos Reyes-Ramos, Assistant United States Attorney, on brief for appellee.
    Before HOWARD, Chief Judge, SELYA and LIPEZ, Circuit Judges.
   LIPEZ, Circuit Judge.

Appellant Ángel Cotto-Negrón pled guilty to one count of committing a Hobbs Act robbery in violation of 18 U.S.C. § 1951(a) and was sentenced to a prison term of 120 months. On appeal, he challenges his sentence as both procedurally and substantively unreasonable. We agree that the sentence was procedurally unreasonable because it was premised on factual findings that are not supported by any evidence in the record. Accordingly, we vacate the sentence and remand the case for resentencing.

I.

In setting forth the facts of this case, we draw upon the stipulated facts in the plea agreements of Cotto-Negrón and his co-defendants and their respective presen-tence investigation reports (“PSRs”).

In December 2010, Cotto-Negrón and a number of co-defendants met several times to plan a robbery of a Kmart store located at San Patricio Plaza in Guaynabo, Puerto Rico. On December 31, Cotto-Negrón, along with William Zambrana-Sierra, Anal-di Tanco-Moreno, and one other co-defendant, drove with accomplice Edgar Velazquez-Fontanez to the Kmart, dropping Velazquez-Fontanez off to execute the robbery. There is no evidence in the record indicating which of the co-defendants was the driver of the car. Velazquez-Fontanez entered the store and hid in the sporting goods section until the store closed. He announced to two night crew employees that the store was being robbed and then struck one of the employees with the butt of a firearm, causing bleeding and a laceration to the victim’s head. Velazquez-Fonta-nez next tied up the employees and began stealing merchandise. After more employees arrived at the Kmart in the morning, Velazquez-Fontanez forced the manager to open the store safe, and he took the money inside. He exited the store with the merchandise and cash, exceeding $50,000 in total value. At that point the same group of accomplices arrived back at the Kmart, picked up Velazquez-Fontanez, and drove off.

In September 2013, a grand jury issued a five-count indictment related to the robbery of two Kmart stores, including the Kmart at San Patricio Plaza. Cotto-Neg-rón, Zambrana-Sierra, and Tanco-Moreno were charged under count one, conspiracy to commit robbery, and count three, robbing the Kmart at San Patricio Plaza, both in violation of the Hobbs Act, 18 U.S.C. § 1951(a). They were not charged under any other counts in the indictment.

All three agreed to plead guilty to count three in exchange for dismissal of the conspiracy count. Each of their plea agreements incorporated identical stipulated facts regarding their illegal activity, and the PSRs of Cotto-Negrón and Zambrana-Sierra likewise contained an identical recitation of facts describing the San Patricio robbery and their respective roles in the crime.

As part of their respective plea agreements, Cotto-Negrón, Zambrana-Sierra, and Tanco-Moreno each agreed with the government to a recommended Sentencing Guidelines calculation at a total offense level of 26. Zambrana-Sierra and Tanco-Moreno were both sentenced in accordance with their agreements at the low end of the Guidelines range consistent with their respective criminal histories.

Cotto-Negrón was sentenced one day after Zambrana-Sierra. As with the other two defendants, the court accepted the calculation recommended in his plea agreement — but with one addition. Citing a recommendation by the probation office in Cotto-Negrón’s PSR, the court announced at the sentencing hearing that it was including a two-level Guidelines enhancement because a victim had sustained a bodily injury. The resulting total offense level for Cotto-Negrón was thus 28.

Cotto-Negrón’s lawyer objected to the application of the bodily injury enhancement because the court had not imposed it on the two other co-defendants. The following colloquy then ensued:

COURT: Don’t talk about yesterday’s sentence, because the individual in that case did not drive anybody to the Kmart, nor picked up any victims in the Kmart. It’s completely different. It’s not the same.
DEFENSE COUNSEL: As I understand it, Your Honor, they’re in the same situation.
COURT: No. No. They are not in the same situation.
DEFENSE COUNSEL: Your Honor, the statement of facts is the same.
COURT: No, they are not the same. They are not the same by any means. * * #
COURT: Have you read the PS[R] from yesterday’s defendant?
DEFENSE COUNSEL: No, Your Hon- or.
COURT: So how do you know it’s the same?
DEFENSE COUNSEL: Because, Your Honor, the level of participation, during the process of gathering information from the case, they were in the same exact position as to level of participation. COURT: They are not in the same level of participation.
DEFENSE COUNSEL: I’m just saying, Your Honor, here in the PSR, definitely going to the argument of what we understand is the disparity between one defendant and the other, it says that they dropped him off, and they will return to Kmart the next day. So if we have a defendant that did not receive the enhancement that Mr. Cotto is getting, and the participation is the same, there is an issue.
COURT: Your client took the robbers that were going to stay inside the store to the store, and picked them up the next day.
DEFENSE COUNSEL: I understand that.
COURT: The other gentleman did not do that.
DEFENSE COUNSEL: But, Your Honor, his name is right there in the facts.
COURT: He may be there, but that’s not what happened.
DEFENSE COUNSEL: Well, the information that we have is they’re in the same position, Your Honor.
COURT: That’s not what happened. DEFENSE COUNSEL: And that’s our argument.
COURT: Completely different case.....

The court then sentenced Cotto-Negrón to a prison term of 120 months, near the high end of the Guidelines range for his applicable criminal history category and total offense level.

Cotto-Negrón timely appealed, arguing that his sentence was procedurally unreasonable because the court relied on clearly erroneous facts, and substantively unreasonable because the court applied the two-level enhancement to him when it declined to apply it to his two identically culpable co-defendants.

II.

When examining a district court s discretionary sentencing decisions, our review is “limited to determining whether they are ‘reasonable.’” United States v. Ayala-Vazquez, 751 F.3d 1, 29 (1st Cir. 2014) (quoting Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). This review is a bifurcated process in which we first determine whether the sentence imposed is procedurally reasonable before turning to its substantive reasonableness. Id

When examining the procedural reasonableness of a sentence, “we review factual findings for clear error; arguments that the sentencing court erred in interpreting or applying the guidelines de novo; and judgment calls for abuse of discretion simpliciter.” United States v. Leahy, 668 F.3d 18, 21 (1st Cir. 2012) (citations omitted). Significant procedural errors include “failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, select ing a sentence based on clearly erroneous facts,- or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.” Ayala-Vazquez, 751 F.3d at 29 (alterations in original) (quoting Gall, 552 U.S. at 51,128 S.Ct. 586).

III.

Cotto-Negrón’s procedural unreasonableness argument focuses on the district court’s decision to impose a two-level enhancement to his offense level under U.S.S.G. § 2B3.1(b)(3)(A). That guideline provides for a two-level increase “[i]f any victim sustained bodily injury” during the course of a robbery. Cotto-Negrón does not contest that a victim of the crime suffered a bodily injury. To the contrary, the injury is acknowledged both in his plea agreement and in his PSR. Instead, he focuses on the facts cited by the district court to justify application of the enhancement in his sentencing but not in the sentencing of co-defendants Zambrana-Sierra and Tanco-Moreno. ..

Cotto-Negrón’s attorney argued at the sentencing hearing that the enhancement should not be imposed on his client because the district court did not apply it the previous day when sentencing Zambrana-Sierra. The district court admonished him, stating that Zambrana-Sierra was less culpable because, unlike Cotto-Negrón, he “did not drive anybody to the Kmart, nor picked up any victims in the Kmart” and that “[1]⅛ completely different. It’s not the same.” When Cotto-Negrón’s attorney attempted to point out to the district court that the co-defendants’ plea agreements described identical factual circumstances, the court responded “No. No. They are not in the same situation.” The judge asserted on the record no fewer than eight times that Cotto-Negrón’s role in the crime was factually distinct from Zambrana-Sierra’s.

We find no basis in the record for the court’s conclusion that Cotto-Negrón played a role in the Kmart robbery different from that of Zambrana-Sierra and Tanco-Moreno. All three plea agreements and at least two of the PSRs (i.e., Cotto-Negrón’s and Zambrana-Sierra’s), see sm pra note 1, reported the exact same facts about the robbery and depicted identical roles for each defendant. The district court cited no evidence in the record showing, for example, that Cotto-Negrón was the driver of the vehicle that dropped Velazquez-Fontanez at the Kmart. We find no such evidence in the record, either. The court thus clearly erred in ascribing a different level of culpability to Cotto-Neg-rón on the basis of his role in the offense.

Cotto-Negrón argues before us that because his sentence hinged upon clearly erroneous facts, it was procedurally unreasonable and cannot stand. In response, the government insists that even if there are no factual differences between Cotto-Neg-rón’s culpability and that of his two co-defendants, his claimed entitlement to re-sentencing is foreclosed by our decision in United States v. Kneeland, 148 F.3d 6 (1st Cir. 1998). In Kneeland, the defendant challenged the application of a Guidelines enhancement for his role as an organizer in a mail fraud and money laundering scheme, arguing that he was no more culpable than a co-defendant who did not receive the role enhancement. Id. at 16. Although we noted circumstantial differences between Kneeland, who received the enhancement, and the co-defendant who did not, we also offered the following observation: “Even if we were to assume that [the co-defendant’s] role in the [crime] was commensurate with Kneeland’s, this argument, without more, would not provide a basis for overturning the enhancement.” Id. The government argues that because it is undisputed that the victim at the San Patricio Kmart sustained a bodily injury and that Cotto-Negrón’s guideline sentencing range was calculated accurately, he is no different from the defendant in Knee-land, and that case requires us to affirm his sentence.

The government, however, has misapplied the holding of Kneeland to the facts of this case. There, the defendant asserted that a role enhancement was inapplicable based on the facts of the crime. Here, the question is not whether the enhancement is factually supportable, but whether it was procedurally reasonable to apply the enhancement — and hence impose a sentence — based on the district court’s clearly erroneous assumption that Cotto-Negrón was more culpable than his co-defendants. Well established precedent instructs that it was not. Even if the district court could have applied the enhancement to Cotto-Negrón despite its decision not to apply it to his co-defendants, a matter on which we take no view, it may not justify that difference based upon clearly erroneous facts. See Ayala-Vazquez, 751 F.3d at 29 (holding that “selecting a sentence based on clearly erroneous facts” constitutes a “significant procedural error” (quoting Gall, 552 U.S. at 51, 128 S.Ct. 586)); see also United States v. Rodriguez-Melendez, 828 F.3d 35, 40 (1st Cir. 2006) (“To protect the fairness and integrity of the sentencing process, the district court should impose a sentence ... based on a correct view of the facts.”).

In sum, the district court committed a clear error when it insisted without factual support that Cotto-Negrón was more culpable in the commission of the San Patricio Kmart robbery than co-defendants Zam-brana-Sierra and Tanco-Moreno. Hence, we vacate Cotto-Negrón’s procedurally unreasonable sentence and remand the case for resentencing. We express no view as to the appropriate sentence or Guidelines calculation on remand.

. So ordered.

      . Tanco-Moreno's PSR is not a part of the record in this case, but we have no reason to believe that the facts concerning the San Pa-tricio robbery in Tanco-Moreno’s PSR are any different from those described in Cotto-Neg-rón’s or Zambrana-Sierra's PSRs.

      . Each defendant agreed to the same recommended Guidelines calculation: A base offense level of twenty, see U.S.S.G. § 2B3.1(a); five additional levels for the brandishing or possession of a firearm, see U.S.S.G. § 2B3.1(b)(2)(C); two additional levels for the physical restraint of a victim, see U.S.S.G. § 2B3.1(b)(4)(B); two additional levels because the value of the loss was greater than $50,000, see U.S.S.G. § 2B3.1(b)(7)(C); and the subtraction of three levels for acceptance of responsibility, see U.S.S.G. § 3E1.1.

      . Guidelines § 2B3.1(b)(3) provides: “If any victim sustained bodily injury, increase the offense level according to the seriousness of the injury!.]’’ A bodily injury that does not amount to serious, permanent, or life-threatening bodily injury is assigned an increase of two levels. Id § 2B3.1(b)(3)(C).

      . Cotto-Negrón was in Criminal History Category III. Combined with a total offense level of 28, that category results in a sentencing range of 97-121 months of imprisonment.

      . The district court also implied that Cotto-Negrón’s attorney was wrong to compare his client’s criminal culpability to Zambra-na-Sierra's culpability because Cotto-Neg-rón’s attorney was not privy to Zambrana-Sierra’s PSR and could not know if the factual circumstances were the same for both defendants. For purposes of this appeal, we granted Cotto-Negrón’s attorney access to the relevant portions of Zambrana-Sierra's PSR and note that both defendants’ PSRs indeed contain identical language regarding their respective roles in the San Patricio robbery.

      . In light of this disposition, we do not address and intimate no view on appellant’s argument concerning substantive unreasonableness.


author: SELYA, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Rafael FONTANEZ, Defendant, Appellant.
    No. 15-1360
    United States Court of Appeals, First Circuit.
    January 9, 2017

      Robert Herrick and Nicholson Herrick LLP on brief for appellant.
    Carmen M. Ortiz, United States Attorney, and Kelly Begg Lawrence, Assistant United States Attorney, on brief for appel-lee.
    Before LYNCH, SELYA and LIPEZ, Circuit Judges.
   SELYA, Circuit Judge.

Defendant-appellant Rafael Fontanez challenges evidentiary rulings made in the course of the revocation of his supervised release and the ensuing revocation sentence. After careful consideration, we reject his asseverational array and affirm the judgment below.

I. BACKGROUND

We start with an overview of the relevant facts and the travel of the case. On October 15, 1998, the appellant was charged with one count of conspiracy to possess with intent to distribute cocaine base (crack cocaine) and three specific-offense counts of distribution of that controlled substance. See 21 U.S.C. §§ 841(a)(1), 846. The indictment alleged the applicability of 21 U.S.C. § 841(b)(l)(A)(iii), which provides for a sentence up to life imprisonment.

The appellant maintained his innocence and went to trial. The jury found him guilty on all counts. The appellant had stipulated to the quantity of drugs for which he should be held accountable — a series of transactions involving specified amounts, totaling more than one kilogram — and the jury was not asked to make (and did not make) a separate drug-quantity determination.

At the disposition hearing, the sentencing court noted that the jury “had to have found [the appellant] guilty of more than 50 grams.” This drug quantity exposed the appellant to a maximum penalty of life imprisonment instead of the default maximum penalty of twenty years in prison. Compare 21 U.S.C. § 841(b)(l)(A)(iii) with id. § 841(b)(1)(C). The court proceeded to sentence the appellant to an eighteen-year term of immurement, to be followed by a five-year term of supervised release.

The appellant served his incarcerative term and, on June 11, 2014, began serving his supervised release term. On November 29, 2014, a man was stabbed at a bar in Springfield, Massachusetts. An anonymous telephone call named the appellant as the perpetrator. Three days later, a Springfield police officer, Eric Podgurski, interviewed the victim in the hospital. He showed the victim an eight-person photo array, which included a picture of the appellant. The victim identified the appellant as the malefactor and wrote on his picture: “I am 100 percent this is the guy that stabbed me.”

In due course, the appellant was charged in a Massachusetts state court with attempted murder and assault with a dangerous weapon. He was later brought before the federal district court in a revocation proceeding aimed at determining whether he had violated the conditions of his supervised release (which included a condition forbidding him from committing “another federal, state, or local crime” during the currency of his supervised release).

The revocation hearing was continued at the appellant’s request. When the rescheduled date arrived, the government explained that the victim was out of state due to a pre-planned vacation. In lieu of the victim’s testimony, it sought to introduce, through Podgurski, hearsay evidence anent both the photo array identification and the anonymous telephone call. The district court allowed this evidence over the appellant’s objection. The government also introduced other evidence, including the bar’s video surveillance footage capturing the commission of the crime.

The district court found, by a preponderance of the evidence, that the appellant had committed the stabbing and, thus, had violated the conditions of his supervised release. The court based this determination primarily on the surveillance video, the victim’s identification of the appellant in the photo array, and evidence of the victim’s wounds. The court then determined that the offense undergirding the appellant’s supervised release term was an offense that fell within the purview of 21 U.S.C. § 841(b)(1)(A)(iii) and, accordingly, was a Class A felony. See 18 U.S.C. § 3559(a)(1). Having made this determination, the court sentenced the appellant to a four-year incarcerative term for violating the conditions of his supervised release. This timely appeal followed.

II. ANALYSIS

The appellant challenges both the finding that he violated the conditions of his supervised release and the sentence imposed. We discuss these challenges sequentially.

A. The Supervised Release Violation.

The appellant’s merits challenge is premised on his view that the court improperly allowed the admission of hearsay evidence. He submits that the district court should not have permitted Podgurski to testify either to the victim’s identification of the appellant in the photo array or to the anonymous telephone call. Inasmuch as these objections were preserved below, we review the court’s decision to admit the challenged evidence for abuse of discretion. See United States v. Rondeau, 430 F.3d 44,48 (1st Cir. 2005).

In revocation proceedings, a re-leasee does not have a Sixth Amendment right to confront adverse witnesses. See id. He has only a more circumscribed right, delineated in the Federal Rules of Criminal Procedure. Hearsay evidence is allowable but, under Rule 32.1(b)(2)(C), a re-leasee is entitled to “question any adverse witness unless the court determines that the interest of justice does not require the witness to appear.” In making such a determination, the court must balance the releasee’s right to confront the witnesses against him with what good cause may exist for denying confrontation in a particular instance. See Rondeau, 430 F.3d at 48. In practice, this need for balancing requires the court to weigh both the apparent reliability of the hearsay evidence and the government’s proffered reason for not producing the declarant. See id.

Here, the district court concluded that the interests of justice did not require the victim’s live testimony. In assailing this conclusion, the appellant trains his fire principally on the district court’s decision to admit Podgurski’s testimony regarding the photo array. He argues that, as a practical matter, the court failed to carry out the balancing test at all because it admitted the testimony despite finding that the government’s reason for not producing the victim was “very weak.” He further argues that the district court’s crediting of that “very weak” reason and its admission of the hearsay evidence was an abuse of discretion. We do not agree.

To begin, Podgurski’s photo array testimony was characterized by several in-dicia of reliability. As an initial matter, the government introduced a surveillance video of the stabbing, which corroborated the victim’s account of the incident (as related to Podgurski). So, too, it confirmed the vietim’s identification of the appellant. Objective evidence that corroborates a witness’s testimony may provide persuasive proof of that testimony’s reliability. See id.

Here, moreover, the officer’s interaction with the victim bolstered the testimony’s reliability. Cf. United States v. Taveras, 380 F.3d 532, 538 (1st Cir. 2004) (finding hearsay testimony unreliable where probation officer had only spoken to victim briefly). Podgurski met with the victim face-to-face in the hospital and interviewed him at length. The victim was cooperative, and his account of the stabbing was both internally consistent and consistent with the video. The consistency of a declarant’s account of events may lend support to a finding of reliability. See United States v. Marino, 833 F.3d 1, 6 (1st Cir. 2016); Rondeau, 430 F.3d at 48. And according to the district court (which had the advantage of observing Podgurski’s demeanor at first hand), Podgurski “testified in a way that [indicated] that he was getting reliable information from the victim.”

Relatedly, the victim identified the appellant confidently. He expressed no doubt, and memorialized the identification in writing on the photograph that he selected (a photograph that was, in fact, a photograph of the appellant). The victim’s confidence in his account was a factor to which the court could give weight in gauging the reliability of that account. See United States v. DeCologero, 530 F.3d 36, 62 (1st Cir. 2008).

Last — but far from least — the manner in which Podgurski handled the photo array bolstered the finding of reliability. The array was presented to the victim while the central events were fresh in his mind (his identification was made a scant three days after the stabbing). Furthermore, Podgurski took care in composing and presenting the photo array: before showing it to the victim, he read aloud a comprehensive explanation of the photo array process. Among other things, this explanation warned the victim that the perpetrator might or might not be included in the array. Importantly, the photographs used in the array were of men whose looks were generally similar to the appellant’s. And, all of the photographs had the same background (thus mitigating the risk of drawing attention to a particular photograph).

The short of it is that the photo array testimony bore the hallmarks of reliability. The close proximity between the crime and the identification, the time that Pod-gurski spent with the victim, the victim’s level of certainty, and the lack of any suggestiveness in the photo array all support the identification’s reliability, see id. and thus support a finding that the Podgurski testimony should be regarded as reliable. The fact that the victim memorialized the identification in writing (on the back of a correctly selected photograph of the appellant) also signals the testimony’s trustworthiness. See Rondeau, 430 F.3d at 48 (finding hearsay testimony reliable where declarants “reduced their verbal statements to writing”).

In the Rule 32.1(b)(2)(C) context, strong evidence of reliability can counterbalance a weak reason for not producing the declarant. See, e.g., Marino, 833 F.3d at 6-7; United States v. Boyd, 792 F.3d 916, 920 (8th Cir. 2015). Given this principle, we think that the government in this case furnished “a sufficient reason” for not producing the victim. Rondeau, 430 F.3d at 49. The revocation hearing was not held when originally scheduled and, on the continued date, it is undisputed that the victim was out of state for a legitimate reason (totally unrelated to the case). The district court found that to be an adequate reason for not producing him as a witness. On the facts of this case, that finding was plausible.

In an effort to blunt the force of this reasoning, the appellant suggests that the government never intended to call the victim as a witness. Therefore, he says, the court’s assumption that only “a scheduling issue” prevented the government from calling the victim was clearly erroneous,

This is magical thinking. The record reflects that the government had planned to have the victim in attendance; but after the hearing was continued at the appellant’s request, the victim left on vacation. On the new hearing date, the prosecutor expressly stated that he had been expecting the victim to be present.

To be sure, the prosecutor did tell the court that he “was going to attempt to try the case without putting [the victim] on the stand and further victimize the victim who has to testify in state court. He already testified in the grand jury and has to testify at trial there.” But these remarks indicate, at most, a vague, noncommittal desire to avoid putting the victim on the stand, not a decision to refrain from doing so.

We add, moreover, that although the government’s reason for not producing the victim may have been weak, the appellant contributed to the victim’s absence. After all, it was the appellant who requested and received the original continuance, thus creating the conflict between the new hearing date and the victim’s planned vacation. In striking the requisite balance, the district court was entitled to take into account the fact that the appellant contributed to the government’s inability to produce the witness. See United States v. Williams, 443 F.3d 35, 45 (2d Cir. 2006) (holding that releasee’s “interest in confronting the declarant is entitled to little, if any, weight” when releasee’s actions caused declarant’s absence).

By the same token, the appellant — after being advised of the victim’s unavailability — neither suggested nor expressed a willingness to agree to a further continuance. This fact, too, was pertinent to the striking of the balance. See generally United States v. Sepulveda, 15 F.3d 1161, 1178 (1st Cir. 1993) (discussing general rule that “a defendant who does not request a continuance will not be heard to complain on appeal that he suffered prejudice as a result”).

In constructing the balance between the reliability of proffered hearsay evidence and the need for confrontation, the district court’s discretion is broad. See Marino, 833 F.3d at 5-7; Rondeau, 430 F.3d at 48-49. In this instance, the district court did not abuse its broad discretion in admitting the photo array testimony.

We need not tarry over the anonymous telephone call. The district court took pains to note that it gave Podgurski’s testimony about the anonymous call only the weight that it “might deserve,” which the court described as “not considerable but some weight.” Given the substantial other evidence of the appellant’s involvement in the stabbing (including Podgur-ski’s photo array testimony) and the infinitesimal role that the call played in the court’s analysis, any error in admitting Podgurski’s testimony about the anonymous call was manifestly harmless. See United States v. Mosley, 759 F.3d 664, 669 (7th Cir. 2014) (holding that erroneous admission of hearsay evidence in revocation proceeding was harmless error when “the result would have been the same without admitting the hearsay”).

B. The Sentence.

The maximum sentence for a person who violates the conditions of his supervised release varies based on the severity of “the offense that resulted in the term of supervised release.” 18 U.S.C. § 3583(e)(3). For that purpose, offenses are grouped in various categories. Those groupings have real-world consequences: a Class C or D felony bears a maximum sentence upon revocation of supervised release of two years; a Class B felony bears a maximum sentence upon revocation of supervised release of three years; a Class A felony bears a maximum sentence upon revocation of supervised release of five years; and all other offenses bear a maximum sentence upon revocation of supervised release of one year. See id. These categories correspond to the maximum penalties that can be imposed for the underlying offenses: a Class D felony is an offense that carries a term of imprisonment of at least five but less than ten years; a Class C felony is an offense that carries a term of imprisonment of at least ten but less than twenty-five years; a Class B felony is an offense that carries a term of imprisonment of at least twenty-five years but less than life imprisonment; and a Class A felony is an offense that carries a maximum penalty of either death or life imprisonment. See iff § 3559(a).

The appellant argues that the district court lacked the authority to sentence him to more than two years of imprisonment for violating his supervised release. In support, he argues that the court misclassified his underlying offense as a Class A felony when it should have been considered a Class C felony. The appellant preserved this argument at the revocation hearing, and we review his classification challenge de novo. See United States v. Eirby, 515 F.3d 81, 35 (1st Cir. 2008).

The basic facts are clear. The jury convicted the appellant of violating sections 841(a)(1) and 846. Neither of these offenses requires a specific drug quantity in order to convict, and the jury made no explicit drug-quantity determination. Without such a determination, the “default” statutory maximum of twenty years ordinarily would apply. See 21 U.S.C. § 841(b)(1)(C); United States v. Portes, 505 F.3d 21, 25 (1st Cir. 2007).

Here, however, the sentencing court found the appellant responsible for over a kilogram of cocaine base and sentenced him under 21 U.S.C. § 841(b)(l)(A)(iii). At the time, that statute required a drag quantity of more than fifty grams of cocaine base and carried a maximum sentence of up to life imprisonment. The appellant, in effect, is seeking to challenge, albeit quite belatedly, the sentencing court’s resort to section 841(b)(1) (A) (iii).

In Apprendi v. New Jersey, the Supreme Court held that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The appellant argues that the district court’s classification of his earlier conviction as a Class A felony rested upon a fact not found by the jury (drug quantity) and, thus, offended Apprendi.

The government counters that the appellant cannot collaterally attack his sentence in this proceeding. It adds that, in any event, the indictment in the original case charged a drug quantity sufficient for a Class A felony, the appellant stipulated to such a quantity, and the district court appropriately sentenced him based on that quantity.

It is entirely likely that the appellant’s challenge to his sentence is not properly before us. See Eirby, 515 F.3d at 36 (describing appellant’s Apprendi claim in similar circumstances as an impermissible “collateral attack”); see also Trenkler v. United States, 536 F.3d 85, 96 (1st Cir. 2008) (describing 28 U.S.C. § 2255 as the “exclusive means of challenging the validity of [a federal prisoner’s] conviction or sentence,” with limited exceptions). But because his challenge fails on the merits regardless, we bypass the “collateral attack” issue.

To be blunt, the appellant’s argument collides head-on with binding precedent. At trial, the appellant stipulated to a drug quantity that was well in excess of the threshold needed for a Class A felony. At sentencing for the underlying offense, the sentencing court’s drug-quantity determination was based on the stipulation. We have stated in no uncertain terms that “[fjaetfinding premised on a defendant’s admissions is not a practice invalidated by Apprendi.” Eirby, 515 F.3d at 36. In this case, the stipulation obviated the need for a jury determination of drug quantity because the appellant “had agreed to the drug quantities, thereby leaving nothing for the jury to do on that issue.” United States v. Etienne, 772 F.3d 907, 923 n.9 (1st Cir. 2014). And in the absence of any Apprendi error at the original sentencing, the court below cannot plausibly be said to have committed an Apprendi error at the revocation hearing by treating the appellant’s prior conviction as a Class A felony. See id. at 923; Eirby, 515 F.3d at 36.

It is true, as the appellant suggests, that the Eirby defendant — unlike the appellant — had entered a guilty plea. See 515 F.3d at 32. For present purposes, though, this is a distinction without a difference: what matters is that here, as in Eirby, the sentencing court’s drug-quantity determination was based on the defendant’s stipulation.

It is also true, as the appellant suggests, that the stipulation in Etienne was relevant to an element of the offense, see 772 F.3d at 923, and not — as here — merely to a sentencing factor, see United States v. Delgado-Marrero, 744 F.3d 167, 185 (1st Cir. 2014) (“Prior to [Apprendi], ... ‘drug quantity* was considered ... a ‘sentencing factor’ that the sentencing judge could determine by a preponderance of the evidence.”). Once again, the distinction that the appellant draws has no significance: in both Etienne and this case, the defendant stipulated to a fact, not a fact only to be used for a certain purpose. See United States v. Teeter, 257 F.3d 14, 28 (1st Cir. 2001) (“Should the court decide to accept and act upon factual stipulations for sentencing purposes, the parties usually will be firmly bound.”).

That ends this aspect of the matter. The appellant’s original supervised release term was imposed as part of his sentence for a crime to which the penalty provisions of 21 U.S.C. § 841(b)(1)(A)(iii) applied (by virtue of his drug-quantity stipulation). See Etienne, 772 F.3d at 923; Eirby, 515 F.3d at 36; cfi United States v. McIvery, 806 F.3d 645, 651 (1st Cir. 2015) (holding that any error in imposition of mandatory minimum sentence based on drug quantity neither charged in indictment nor proven to a jury was harmless because evidence of quantity was “uncontested”). Consequently, that underlying offense was a Class A felony, see 18 U.S.C. § 3559(a)(1), and the court below was authorized to sentence him to a term of imprisonment of up to five years for violating his supervised release conditions, see id. § 3583(e)(3). It follows inexorably that the appellant’s claim of sentencing error is baseless.

III. CONCLUSION

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

Affirmed.

      . At the time, section 841(b)(l)(A)(iii) applied to offenses involving more than fifty grams of cocaine base. The triggering amount has since been increased to 280 grams. See Fair Sentencing Act of 2010, Pub. L. No. 111-220, § 2(a)(1), 124 Stat. 2372, 2372.

      . The appellant insists that this judgment does not "establish[] a conviction for a violation of 21 U.S.C. § 841(b)(l)(A)(iii)” because the written judgment states only that the appellant was found guilty of violating 21 U.S.C. §§ 841(a)(1) and 846. By its terms, though, that written judgment "adopts the factual findings and guideline application in the pre-sentence report” — a report that stated unambiguously that "21 U.S.C. § 841(b)(l)(A)(iii) applies” to the appellant’s sentence. In all events, the court made it luminously clear at the sentencing hearing that the sentence was premised on section 841(b)(l)(A)(iii). If there were a material conflict between the written judgment and the oral sentence (and we see none), the latter would control. See United States v. Riccio, 567 F.3d 39, 40 (1st Cir. 2009).

      . In this regard, the court stated: "I think the government offered evidence [that] it really was just a scheduling issue. It was a vacation-type issue and trying to serve a subpoena on this particular witness” would have been futile.

      . We add that, in appropriate circumstances, the desire not to further victimize the victim may provide an additional reason for not requiring a victim to testify. Cf. Rondeau, 430 F,3d at 49 (permitting hearsay testimony rather than forcing declarants to testify in front of releasee who caused them to fear for their safety). We have no occasion to explore this point today.


text:
    Edmond GANEM, Plaintiff, Appellant, Battle Construction Co., Inc., individually and on behalf of all others similarly situated; Steve Adams, Plaintiffs, v. INVIVO THERAPEUTICS HOLDINGS CORP.; Frank Reynolds, Defendants, Appellees.
    No. 15-1544
    United States Court of Appeals, First Circuit.
    January 9, 2017

      Thomas G. Shapiro, with whom Patrick J. Vallely and Shapiro Haber & Urmy LLP, Boston, MA, were on brief, for appellant.

      Michael G. Bongiorno, New York, NY, with whom James W. Prendergast, Andrew S. Dulberg, Wiimer Cutler Pickering Hale and Dorr LLP, Richard J. Rosen-sweig, Paul F. Beckwith, Derek B. Domi-an, and Goulston & Storrs PC, Boston, MA, were on brief, for appellee InVivo Therapeutics Holdings Corp.
    Richard J. Rosensweig, Boston, MA, for appellee Frank Reynolds.
    Before HOWARD, Chief Judge, SELYA and LIPEZ, Circuit Judges.

      . InVivo also argues that its forward-looking statements are protected by the bespeaks caution doctrine, which "embodies the principle that when statements of ‘soft' information such as forecasts, estimates, opinions, or projections are accompanied by cautionary disclosures that adequately warn of the possibility that actual results or events may turn out differently, the 'soft' statements may not be materially misleading under the securities laws.” Shaw v. Digital Equip. Corp,, 82 F.3d 1194, 1213 (1st Cir. 1996); see also id. at 1213 n.23. InVivo does not, however, invoke the statutory safe harbor codifying the bespeaks caution doctrine, 15 U.S.C. § 78u-5(c)(l), because, it explains, "arguably, the [statutory] safe harbor does not apply to the challenged statements because, while InVivo is now listed on the NASDAQ, the Company could have been, at the time, considered an issuer of 'penny stock.’ ” See hi § 77z-2(b)(I)(C) (excluding issuers of "penny stock” from the statutory safe harbor). Because the absence of a material misrepresentation or omission is determinative, we need not decide the applicability of either the bespeaks caution doctrine or the statutory safe harbor to InVivo’s statements.

   LIPEZ, Circuit Judge.

Following a drop in the share price of InVivo Therapeutics Holdings Corporation’s (“InVivo”) common stock, investors filed suit against the company and its former chief executive officer (“CEO”), Frank Reynolds, alleging securities fraud in violation of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (“Exchange Act”), 15 U.S.C. §§ 78j(b) and 78t(a), as well as the Securities and Exchange Commission’s (“SEC”) Rule 10b-5, 17 C.F.R. § 240.10b-5. On behalf of himself and a putative class of shareholders, lead plaintiff Edmond Ganem (“Ganem”) alleges that InVivo and Reynolds inflated the value of InVivo’s common stock for about five months in 2013 by issuing false or materially misleading press releases concerning the approval of human clinical trials for a new medical device the company was developing, by, inter alia, failing to identify the caveats and conditions imposed by the Food and Drug Administration (“FDA”) for the clinical trials. The district court, in a well-reasoned opinion, granted defendants’ motion to dismiss the complaint. We affirm, agreeing with the district court that Ganem has failed to allege false or misleading statements sufficient to state a claim under Section 10(b) and Rule 10b-5, and, having failed to plead a viable claim of a primary violation, Gan-em’s control person claim against Reynolds under Section 20(a) was also properly dismissed.

I.

A. Factual Background

According to InVivo’s 2012 annual report to the SEC (“Form 10-K”), which was filed in early March 2013, the company focuses on “developing] and commercializing] new technologies for the treatment of spinal cord injuries.” The report identified InVivo’s “Lead Product Under Development” as “biopolymer scaffolding,” a device that would attach to a patient’s body at the point of a spinal injury to prevent additional damage to the spinal cord. The report outlined the company’s strategy for marketing the device, including the steps for securing the required approval from the FDA.

The report explained that InVivo would first need to obtain an Investigational Device Exception (“IDE”) to permit it to conduct human clinical trials. Such a clinical study was a prerequisite for obtaining either Pre-Market Approval (“PMA”) or a Humanitarian Device Exemption (“HDE”), either of which would permit the company to sell the product in the United States. InVivo stated that it “plan[ned] to conduct an initial clinical study to evaluate the device in five spinal cord injury patients with acute thoracic injuries. We are also planning a larger follow-on human study in acute spinal cord injury patients after the initial study is completed.”

In the report, InVivo qualified the above statements, noting that “forward-looking statements” — such as “statements about our plan to conduct an initial clinical study to evaluate our product” — are necessarily contingent because they “involve substantial known and unknown risks.” InVivo stated that “[t]he start of clinical trials can be delayed or take longer than anticipated for many and varied reasons, many of which would be outside of our control.”

On March 29, 2013, the Acting Director of the FDA’s Office of Device Evaluation sent an eleven-page letter to InVivo. Because Ganem’s claims rely on the proposition that InVivo later misrepresented the content of the letter, we quote from it at some length:

The [FDA] has reviewed your amendment to your [IDE] application to conduct an early feasibility study.... Your application to begin your study is approved with conditions.... You may begin your investigation, using a revised informed consent document which corrects deficiency number. 1 and 3, at an institution in accordance with the inves-tigational site waiver granted below. Your investigation is limited to 3 institutions and 1 subject.
Your IDE application has been approved with conditions as a staged study; you may enroll one subject at this time. You should follow this subject for 3 months before requesting approval for an additional subject, who should also be followed for three months before requesting another subject. This will result in a total of 5 subjects] enrolled over a minimum 15 month period....
A feasibility study is a preliminary study which is not expected to provide the primary support for the safety and effectiveness evaluation of a medical device for the purposes of a marketing application.... FDA believes that additional modifications, as outlined in “Study Design Considerations” below, are needed for your study design to support a future study.
This approval is being granted on the condition that, within 45 days from the date of this letter, you submit information correcting the following issues[.]

The FDA listed thirteen issues for which it required further' information before the initial study could begin. Then, under “Study Design Considerations,” the FDA stated that “[w]e recommend, but do not require, that you modify your study to address the following issues” so that it could support a future study, listing eight specific issues.

The following week, on April 5, 2013, InVivo issued the three-page press release at the heart of Ganem’s complaint:

InVivo Therapeutics Receives Approval from FDA for First Human Trial Using Biomaterials for Traumatic Spinal Cord Injury
... InVivo Therapeutics Holdings Corp. ... today announced that the U.S. Food and Drug Administration (FDA) has approved the Company’s Investigational Device Exemption (IDE) to begin human studies to test its biopolymer scaffold product, a technology developed to treat patients with acute, traumatic SCI. With this approval, InVivo intends to commence a first-in-man clinical study in the next few months that will test safety and performance of its biopolymer scaffold in five patients. The Company expects the study to occur over approximately 15 months. There are currently no treatment options approved by the FDA, or in clinical trials, to intervene directly in the spinal cord following SCI. The trial will be conducted at multiple U.S. hospitals, and work to gain Institutional Review Board (IRB) approval at Massachusetts General Hospital in Boston is already underway.
“... [W]hen conducting a first-in-man study, it is imperative to take the time to get it right, because any mistakes can lead to years of lost time for the scientists and patients that follow,” said Frank Reynolds, InVivo Chief Executive Officer.
Continued Reynolds, “Over the next month or so, we plan to finalize the details of our study, and we expect to have all data to the FDA by the end of 2014. We will be conducting an open label study, and so we look forward to keeping the public aware of its progress .... ”

The press release did not reveal that FDA approval was conditional, or list any of the conditions, or explain that the FDA had recommended changes to the study protocol in order to allow the staged study to support future studies, The release did, however, contain a “Safe Harbor Statement” indicating that certain statements in the press release were covered by the Exchange Act’s statutory safe harbor for “forward-looking statements.” The safe harbor statement explained that the covered statements included “those related to the expected approval of the FDA to conduct human clinical trials for the Company’s products, the expected commencement date of any approved human clinical trials, the expected size of the pilot study, the expectation that the scaffold product will be regulated under an HDE pathway, and the expected acceleration of commercialization of the Company’s products resulting therefrom[,]” which were “subject to a number of risks and uncertainties^]” including “risks and uncertainties relating to the Company’s ability to obtain FDA approval to conduct human clinical trials!.]” The release also referred to InVivo’s Form 10-K, which described the potential risks in more detail.

Ganem alleges that the price of InVivo stock increased as a result of the apparent good news contained in the press release. Historical stock prices cited by both parties indicate that there was a relatively high volume of trading on Monday, April 8, 2013, after the press release the previous Friday. That day, the stock price rose from $2.85 per share to $3.19 per share.

Ganem also points to alleged misrepresentations in another press release from May 9, 2013. In that release, Reynolds was quoted as saying “[w]e are off to a great start for 2013 and continue to successfully accelerate our plans[.]” It also reiterated some of the statements made a month earlier: “In April 2013, the FDA approved InVivo’s Investigational Device Exemption (IDE) application to begin human studies to evaluate its biopolymer scaffold product for acute traumatic SCI.... [T]he product will be evaluated in five patients. The Company expects to commence the study in mid-2013 and submit data to the FDA by the end of 2014.” The May 9 release contained a safe harbor statement similar to the one in the April 5 release. Ganem does not allege any change in InVivo’s stock price resulting from the May 9 release.

Finally, on August 27, 2013, before regular trading hours, InVivo issued a press release titled “InVivo Therapeutics Updates Clinical Plan.” That release said:

The Company now expects that, based on the judgment of new management, it will enroll the first patient during the first quarter of 2014.
Under the conditions of the FDA’s approval of the Investigational Device Exemption, the five-person pilot trial will be staggered such that each patient will be followed for three months prior to requesting approval to enroll the next patient. Because the Company must obtain FDA approval to enroll each subsequent patient, the Company anticipates that from the date of the first enrolled patient, it will take at least 21 months to complete enrollment. Consistent with FDA guidance, the Company then expects to conduct a pivotal study with a control group to obtain FDA approval to commence commercialization under a Humanitarian Device Exemption.

Interim CEO Michael Astrue was quoted as saying: “While the study will take additional time, we look forward to bringing this important therapy into the clinic.”

Ganem alleges that InVivo’s stock price dropped in reaction to the revised 2014 start date and estimated 21-month time for completion of the clinical trial revealed in this press release. Historical stock prices show that an unusually high volume of trading started on Friday, August 23, 2013, and continued from Monday, August 26 through the end of the class period on August 28. The stock price fluctuated during those four trading days, ultimately dropping from $4.00 per share at the opening of trading on August 23 to $2.07 at the close of trading on August 28.

B. Procedural Background

Ganem brought this action against InVi-vo and its former CEO, Reynolds, on behalf of a putative class “consisting of all persons and entities who purchased the common stock of [InVivo] from April 5, 2013, through August 26, 2013, inclusive” — i.e., all purchasers of stock between the dates of the initial announcement of the clinical trial and the press release nearly five months later that revealed problems with the timeline for the trial. The operative amended complaint asserted two claims: first, that InVivo and Reynolds deceived investors into buying common stock at high prices, artificially boosted by the false or misleading press releases, in violation of § 10(b) of the Exchange Act, 15 U.S.C. § 78j(b), and Rule 10b-5 promulgated thereunder, 17 C.F.R. § 240.10b-5; and, second, that Reynolds is liable as a “controlling person” under § 20(a) of the Exchange Act, 15 U.S.C. § 78t(a).

The district court rejected both claims, concluding that Ganem had failed adequately to plead material misrepresentations or scienter supporting a claim under § 10(b) and Rule 10b-5, and that, absent a primary violation under § 10(b), Ganem’s derivative control person claim against Reynolds must be dismissed. Battle Constr. Co., Inc, v. InVivo Therapeutics Holdings Corp., 101 F.Supp.3d 135, 141-42 & n.6 (D. Mass. 2015). We focus on the claim under § 10(b) and Rule 10-b5 (the “10(b) claim”). We review a dismissal for failure to state a claim de novo. SEC v. Tambone, 597 F.3d 436, 441 (1st Cir. 2010) (en banc). We accept as true all well-pleaded allegations in the complaint and make all reasonable inferences in favor of the pleader. Id.

II.

A. The Exchange Act and Rule 10-b5.

Section 10(b) of the Exchange Act “forbids the ‘use or employ, in connection with the purchase or sale of any security ... , [of] any manipulative or deceptive device_’ ” Tellabs Inc, v. Makor Issues & Rights, Ltd., 551 U.S. 308, 318,127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) (alteration in original) (quoting 15 U.S.C. § 78j(b)). The SEC has implemented this provision via Rule 10b-5, which proscribes, among other things, “any untrue statement of a material fact” or omission of any “material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading.” 17 C.F.R. § 240.10b-5. To state a claim under Section 10(b) and Rule 10b-5, a plaintiff must plead the following elements: (1) a material misrepresentation or omission; (2) scienter; (3) a connection with the purchase or sale of a security; (4) reliance; (5) economic loss; and (6) loss causation. In re Ariad Pharm., Inc. Sec. Litig., 842 F.3d 744, 750 (1st Cir. 2016) (citing ACA Fin. Guar. Corp, v. Advest, Inc., 512 F.3d 46, 58 (1st Cir. 2008)).

Only the first two elements — a material misrepresentation or omission and scienter — are implicated by this appeal. Though Ganem contests the district court’s conclusions as to both, we begin and end with the first. To establish a material misrepresentation or omission, Ganem must show “that defendants made a materially false or misleading statement or omitted to state a material fact necessary to make a statement not misleading.” Geffon v. Micrion Corp., 249 F.3d 29, 34 (1st Cir. 2001). “[M]ere possession of material, nonpublic information does not create a duty to disclose it,” Hill, 638 F.3d at 57 (internal punctuation omitted), but “when a company speaks, it cannot omit any facts ‘necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading.’ ” Id. (quoting 17 C.F.R. § 240.10b-5); see also Matrixx Initiatives, Inc, v. Siracusano, 563 U.S. 27, 37, 131 S.Ct. 1309, 179 L.Ed.2d 398 (2011)

Finally, “[a]s with all allegations of fraud, a plaintiff must plead the circumstances of the fraud with particularity, pursuant to Rule 9(b).” Hill, 638 F.3d at 55. Moreover, under the additional pleading requirements imposed by the Private Securities Litigation Reform Act (“PSLRA”), in order to survive a motion to dismiss, the plaintiff must “specify each statement alleged to have been misleading [and] the reason or reasons why the statement is misleading.” ACA Fin. Guar. Corp., 512 F.3d at 58 (modification in original) (quoting 15 U.S.C. § 78u-4(b)(l)); see also Hill, 638 F.3d at 54-56 (discussing the history and purpose of the PSLRA). As we have previously noted, although “the PSLRA does not require plaintiffs to plead evidence ... a significant amount of ‘meat’ is needed on the ‘bones’ of the complaint.” Id. at 56 (citation omitted).

B. Analysis of the Claims.

Ganem claims that the statements in InVivo’s April 5 and May 9 press releases about the projected timeline for the preliminary study were materially false or misleading. Specifically, with regard to the start date of the study, the April 5 release expressed the intention that the study begin “in the next few months,” and the May 9 release predicted it would start “in mid-2013.” Regarding the duration of the study, the April 5 release said that InVivo “expects the study to occur over approximately 15 months.” As for the end date of the study, the April 5 release said “we expect to have all data to the FDA by the end of 2014,” and the May 9 release predicted that InVivo would “submit data to the FDA by the end of 2014.”

Ganem claims that InVivo’s failure to mention the details of the FDA approval letter rendered these statements materially false or misleading. He cites three allegedly material omissions: (1) the FDA’s requirement that InVivo satisfy a number of conditions within 45 days (including correcting the informed consent form before testing could begin on the first human subject); (2) the FDA’s recommendation that InVivo modify its study design so that the preliminary study could serve as the basis for approval of a larger follow-on study; and (3) the FDA requirement of a staged study, in which separate FDA approval was required for each of five stages.

According to Ganem, the FDA’s conditions, recommendations, and requirement of a staged study inevitably prevented In-Vivo from following through on its stated timeline. He alleges that “Defendants failed to disclose in the April 5 and May 9 press releases that the FDA’s approval of the clinical study included conditions that made it impossible to complete the study in 15 months or to submit data to the FDA by the end of 2014, as represented.” Am. Compl. ¶ 34. In short, Ganem’s theory of material misrepresentation is that InVivo’s omissions about the content of the FDA approval letter rendered the company’s temporal predictions materially misleading.

Like the district court, however, we readily conclude that none of the challenged statements is false or misleading. We discuss each of the allegedly false or misleading statements in turn.

1. Commencement of the Clinical Trial.

Ganem contends that InVivo misrepresented the imminence of the commencement of the study when the company reported in April that it would begin “in the next few months” and in May that it was expected to begin “in mid-2013.” According to Ganem, the “mid-2013” start date provided by InVivo would be impossible to achieve given the conditions imposed by the FDA, thus making InVivo’s optimistic statements materially misleading. However, as the district court found, “any objective reading of the [approval] letter makes clear that the FDA erected no material barriers to an immediate enrollment of the first patient for the exploratory study.” Although the FDA required particular changes to the informed consent form before the first human was tested, Ganem understandably does not argue that simply changing a form could have delayed the beginning of the study. Also, as the district court found, “[w]hile the FDA did require additional information of a corrective nature from InVivo, it did not condition the first enrollment on the prior receipt of this information.” In fact, the FDA’s letter explicitly permits a start date in the near future: “[InVivo] may enroll one subject at this time.” Further, although the FDA required additional information within 45 days, Ganem alleges no facts suggesting that InVivo would fail to meet that deadline. And, though InVivo needed to obtain Institutional Review Board approval to use each testing site, Ganem alleges no facts suggesting that this would delay the beginning of the study beyond the “few months” InVivo projected. Indeed, InVivo represented in the April 5 press release that it was already “working] to gain Institutional Review Board (IRB) approval at Massachusetts General Hospital,” making clear that the approval had not yet been obtained.

Ganem also alleges that InVivo’s statements regarding commencement of the study were misleading because the FDA letter required InVivo to make eight specific modifications to its initial feasibility study for that study to support a future, separate study, and implementing such modifications would make InVivo’s proposed timeline impossible to meet. As an initial matter, this argument fails for the simple reason that Ganem alleges no facts suggesting that InVivo could not make these eight changes within the proposed timeline, a necessary showing for the statements to have been misleading when made. See 15 U.S.C. § 78u-4(b)(l); ACA Fin. Guar. Corp., 512 F.3d at 62 (“The PSLRA requires plaintiffs’ complaint to ‘specify each statement alleged to have been misleading [and] the reason or reasons why the statement is misleading.’”) (alteration in original). Moreover, the FDA did not require InVivo to make these eight changes before commencing its initial feasibility study. The FDA, in fact, stated that “[w]e recommend, but do not require, that you modify your study to address the following issues.” Although Ganem alleges that going forward without the recommended changes would have made “no sense” and would serve “no purpose,” Gan-em’s own speculation and conjecture about InVivo’s business decisions cannot substitute for well-pleaded facts.

2. Duration of the Clinical Trial

In alleging that InVivo’s statements regarding the estimated duration of the study were false or misleading, Ganem relies on the proposition that a fifteen-month duration was impossible, particularly in light of the sequential patient enrollment process that the FDA required, which InVivo did not disclose in its April 5 and May 9 press releases. Ganem acknowledges, however, that the FDA itself wrote that the staged study “will result in a total of 5 subject[s] enrolled over a minimum of [a] 15 month period.” Ganem also acknowledges, as he must, that if each subject was observed for the required three months and then the next subject was enrolled almost immediately, observing five subjects would take approximately fifteen months.

Ganem insists, however, that it would be impossible to do this study in these fifteen months because of the steps necessary after each patient was observed for the requisite three months — at a minimum, reviewing the data, preparing a report for the FDA, and waiting for FDA approval to proceed with the next patient. As with Ganem’s other claims, however, this timing allegation is not supported by any well-pleaded facts. We have no basis on which to conclude that it would take a significant length of time to complete the steps for each patient, and the only available evidence — the FDA’s own letter suggesting a fifteen-month minimum testing period— suggests the opposite.

3. Submitting data to the FDA

As for the timing of InVivo’s submission of data to the FDA at the end of the study, Ganem relies on the assumption that analyzing the data from the study would take a significant amount of time after all five patients had been observed for three months each. Again, Ganem provides no facts supporting this assertion. Ganem does not explain why he believes that the analysis and preparation of the data could only begin after all the data is collected, nor does he point to any FDA requirement that InVivo actually analyze the data at all before submitting it. Gan-em’s allegations amount to nothing more than unsupported speculation.

Thus, to support a claim that InVivo’s statements were false or misleading, Ganem is left only with the inference that because, in retrospect, the test lagged significantly behind the proposed timeline, the timeline must have always been impossible to achieve. Yet, as the district court properly recognized, “fraud by hindsight” does not satisfy the pleading requirements in a securities fraud case. See ACA Fin. Guar. Corp. 512 F.3d at 62 (“A plaintiff may not plead ‘fraud by hindsight’; i.e., a complaint ‘may not simply contrast a defendant’s past optimism with less favorable actual results’ in support of a claim of securities fraud.” (quoting Shaw 82 F.3d at 1223)); Gross v. Summa Four, Inc., 93 F.3d 987, 991 (1st Cir. 1996). The securities laws do not make it unlawful for a company to publicize an aggressive timeline or estimate for a proposed action without disclosing every conceivable stumbling block to realizing those plans. Hence, while “greater clairvoyance” might have led InVivo to propose a more conservative timeline, “failure to make such perceptions does not constitute fraud.” Denny v. Barber, 576 F.2d 465, 470 (2d Cir. 1978) (Friendly, J.).

III.

In sum, Ganem has failed to allege any material misrepresentation or omission sufficient to state a claim under § 10(b) and Rule 10b-5. Hence, the district court properly dismissed the complaint.

Affirmed.

      . These thirteen issues required InVivo to, among other things: make revisions to its draft informed consent document, provide results from preclinical animal testing, provide certain test protocols and reports for FDA review, and remove' specified language from product labeling. •

      . These modifications included, for, example: a recommendation to include a randomized control group; a recommendation that InVivo "pre-specify ... effectiveness and safety endpoints”; a recommendation that InVivo “include the age range of the study population” in the “Indications for Use”; and a recommendation that InVivo accompany all symbols on its "carton labeling” (such as "Rx”) with descriptive text.

      . The Exchange Act's safe harbor provision is found in 15 U.S.C. § 78u-5. Under this provision, a person "shall not be liable” with respect to any "forward-looking statements when not made with knowledge of falsity or when the statement itself is identified as forward-looking and is accompanied by ‘meaningful cautionary statements identifying important factors that could cause actual results to differ materially from those in the forward-looking statement.’ ” Hill v. Gozani, 638 F.3d 40, 54 (1st Cir. 2011) (quoting 15 U.S.C. § 78u-5(c)(1)(A)(i)).

      . Because, as we explain, the district court properly dismissed the § 10(b) claim, the derivative control person claim under § 20(a) was also properly dismissed. Automotive Indus. Pension Tr. Fund v. Textron Inc., 682 F.3d 34, 36 n.2 (1st Cir. 2012).

      . Ganem similarly argues that "[InVivo’s] statement that the FDA 'has approved’ a study to evaluate ‘five patients' was false.” This claim is without merit. InVivo’s April 5 release says that the FDA approved InVivo’s plan "to begin human studies,” and that "In-Vivo intends to commence a ... study ... in five patients,” and its May 9 release repeats that the approval was "to begin human studies,” adding that "the product will be evaluated in five patients.” These statements are not "literally false” as Ganem claims. InVivo correctly stated that the FDA had approved a clinical trial expected to ultimately include five patients. InVivo did not say that the FDA had already approved the enrollment of all five patients.