author: SELYA, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. James DUNSTON, Defendant, Appellant. United States of America, Appellee, v. Sergio Hernandez, Defendant, Appellant. United States of America, Appellee, v. Anthony Wooldridge, Defendant, Appellant.
    No. 15-1812, No. 15-1999, No. 15-2000
    United States Court of Appeals, First Circuit.
    March 15, 2017

      Peter J. Cyr, with whom Law Offices of Peter J. Cyr, Portland, ME, were on brief, for appellant Wooldridge.
    Michael D. Day, with whom The Day Law Firm, LLC, Farmington, CT, was on brief, for appellant Hernandez.
    Xiomara M.- Hernández, Miami, FL, on brief for appellant Dunston.
    Mark T. Quinlivan, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.
    Before BARRON, Circuit Judge, SOUTER, Associate Justice, and SELYA, Circuit Judge.

       Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation.

   SELYA, Circuit Judge.

In cases in which defendants are accused of trafficking in narcotics, drug quantity is often both an-element of the offense and a critical integer in the sentencing calculus. These appeals illustrate that duality and, at the same time, serve to explicate the shifting standards of proof that pertain. Because the court below applied these standards appropriately, we affirm both of the challenged convictions and two of the three challenged sentences. With respect to the third sentence, though, the government concedes that the district court relied on too weak a foundation in classifying the defendant as a career offender and we are not persuaded by the government’s attempt to brand the error harmless. We therefore remand that sentence for further proceedings consistent with this opinion.

I. BACKGROUND

We start with an overview of the case, drawing relevant facts from the trial transcripts, line sheets of recorded telephone calls introduced into evidence, and (where appropriate) undisputed portions of the defendants’ presentence investigation reports.

This case has its roots in an investigation into drug dealing in and around Worcester, Massachusetts, commenced by-the Drug Enforcement Administration (DEA) and local police officers. The probe initially focused on defendants James Dun-ston and Sergio Hernandez. Its scope later expanded to include defendant Anthony Wooldridge.

The investigation was launched with a number of controlled buys: between January and June — all dates are in 2012 unless otherwise indicated — an undercover DEA agent bought nearly forty-four grams of crack cocaine from Dunston and Hernandez in sixteen separate transactions. Intelligence gained during these sorties furnished the basis for properly authorized wiretaps on both Hernandez’s telephone and the telephone of yet another cocon-spirator (Richard Cruz). Between June and September, the agents intercepted close to 30,000 calls and text messages. The wiretapped intercepts indicated that Dunston, Hernandez, and Wooldridge were regularly dealing crack cocaine in Worcester and its environs.

■ The wiretaps revealed, inter alia, that the defendants acquired powder cocaine on no fewer than seven occasions in the summer months and attempted at least one further acquisition. Shortly after receiving the powder, the defendants promptly converted it to crack. They frequently discussed crack conversion techniques, described the results of particular conversions, and boasted about them ability to convert powder to crack without losing any appreciable drug weight.

It is said that all good things come to an end and, in July, Wooldridge was arrested during a traffic stop after police officers conducted a pat-frisk and found ninety-three grams of crack cocaine on his person. Dunston and Hernandez were arrested in September. All three were charged with conspiring to possess with intent to distribute both crack cocaine and powder cocaine. See 21 U.S.C. §§ 841(a)(1), 846. Additionally, Wooldridge was charged with possession of crack cocaine with intent to distribute, see M § 841(a)(1), and Hernandez was charged with being a felon in possession of a firearm and ammunition, see 18 U.S.C. § 922(g)(1).

After some preliminary skirmishing, all three defendants waived indictment and pleaded guilty to superseding informations charging them with, as relevant here, conspiring to possess with intent to distribute crack cocaine. The informations specified that the charged conspiracy “involved 280 grams or more of a mixture and substance containing a detectable amount of cocaine base” — a quantity sufficient to trigger a ten-year mandatory minimum sentence. See 21 U.S.C. § 841(b)(l)(A)(in).

Each defendant pleaded guilty to the underlying conspiracy offense, reserving, however, the right to contest at a bench trial whether the amount of crack cocaine reasonably foreseeable or attributable to him was 280 grams or more (thus exposing him to the mandatory minimum sentence). The district court thereafter held an eight-day bench trial, at which it heard, inter alia, recordings of intercepted calls as well as testimony from á DEA agent (Timothy Boyle), who interpreted the slang and jargon that permeated in the recordings. At the conclusion of all the evidence, the court found “beyond a reasonable doubt that over 280 grams of cocaine base [wa]s attributable and reasonably foreseeable to all defendants.”

The district court ordered the probation department to prepare individual presen-tence investigation reports. At the disposition hearings, the court adopted the reports without change and classified all three defendants as career offenders under the sentencing guidelines. It found Wooldridge responsible for at least 840 grams of crack cocaine and sentenced him to a 182-month term of immurement. With respect to Dunston and Hernandez, the court found each of them responsible for at least 2.8 kilograms (2,800 grams) of crack cocaine; sentenced Dunston to 144 months’ imprisonment; and sentenced Hernandez to 162 months’ imprisonment. These timely appeals followed.

II. ANALYSIS

The defendants’ appeals have been consolidated, and we turn first to the claims of error that implicate their convictions. From that point, we proceed to their claims of sentencing error.

A. Lay Opinion Testimony.

Dunston contends that the district court should not have allowed Agent Boyle to testify about the meaning of slang terms and jargon used in the course of the wiretapped conversations. He submits that although Boyle may have been qualified to give some lay opinion testimony, the government failed to erect an adequate foundation for his interpretations of particular slang terms. To illustrate his point, Dun-ston notes that Boyle was allowed to testify that the word “tweezy” referred to crack cocaine and that the phrase “step up a yard” referred to turning powder into crack. In Dunston’s view, Boyle’s familiarity with the defendants’ conversations did not qualify him to give an informed opinion about the meaning of these and other specific phrases used within those conversations. We do not agree.

All three defendants raised this issue below, but only Dunston pursues it on appeal. Objections to the admission of evidence are reviewed for abuse of discretion. See United States v. Valdivia, 680 F.3d 33, 50 (1st Cir. 2012). The parties agree that Agent Boyle’s testimony should be considered lay'opinion testimony. Hence, Federal Rule of Evidence 701 controls. See id. Rule 701 permits the admission of lay opinion testimony “rationally based on the witness’s perception” that would help the fact-finder “determinfe] a fact in issue.”

Application of Rule 701 in the drug-trafficking context is not novel: “we have long held that government witnesses with experience in drug investigations may explain the drug trade and translate coded language” for factfinders through lay opinion testimony. United States v. Rosado-Pérez, 605 F.3d 48, 56 (1st Cir. 2010); accord United States v. Hoffman, 832 F.2d 1299, 1310 (1st Cir. 1987) (holding that “interpretation of codes and jargon used in the drug trade can be supplied through one experienced in the field”). Such testimony is especially useful where, as here, it can afford the factfinder the benefit of specialized knowledge. See United States v. Albertelli, 687 F.3d 439, 446 (1st Cir. 2012).

Of course, such interpretive testimony must be anchored in the witness’s personal experience in the field, see Hoffman, 832 F.2d at 1310, and his experience-based understanding of the meaning of the terms used, United States v. Prange, 771 F.3d 17, 28 & n.3 (1st Cir. 2014). Put another way, “an interpretation of a phrase or reference ought to be explicable”' — a standard that typically requires the witness to point to similar statements surrounding similar events. Albertelli, 687 F.3d at 450.

In the case at hand, the government erected a sturdy foundation for Boyle’s testimony. The record reflects that Boyle had a twenty-four-year career in law enforcement, with significant experience in undercover drug investigations. He had received specialized training in narcotics enforcement, had participated in over fifteen wiretap investigations, and had supervised more than twenty other such investigations. As part of his duties, he had reviewed audio and videotape from undercover crack cocaine purchases “hundreds” of times and had taken part at least once in an undercover operation in which he observed powder being converted to crack.

In this particular probe, Boyle reviewed nearly all of the 30,000 calls and texts collected during the wiretaps. He not only drew on his extensive experience to inform his understanding of specific slang terms but also took into account the context in which those terms were used. Boyle explained that he often listened to “several calls leading up to” the use of a given bit of slang as well as “conversations that would take place after that” to ensure his understanding.

Confronted with objections, the district court prudently allowed defense counsel to conduct a voir dire and question Boyle about his credentials, his experience, and his knowledge. This additional safeguard, coupled with Boyle’s cross-examination by all three defense attorneys, mitigated any risk of unfair prejudice from his testimony. See United States v. Henry, 848 F.3d 1, 13-14 (1st Cir. 2017); Albertelli, 687 F.3d at 447.

Where malefactors try to mask their criminal activities by using codes, a law enforcement officer who is equipped by knowledge, experience, and training to break those codes can help to inform the factfinder’s understanding. So it is here: the government provided the district court with ample reason to conclude that Boyle was knowledgeable about the idiom of the drug trade and, in particular, the vernacular of this group of miscreants. On this record, we hold, without serious question, that the admission of Boyle’s lay opinion testimony was comfortably within the ambit of the district court’s discretion.

B. Sufficiency of the Evidence.

The next leg of our journey takes us to Dunston’s and Wooldridge’s claims that the district court lacked sufficient evidence to find them guilty of the charged offense. These claims share a common focus: they are aimed at the district court’s finding, at trial, that at least 280 grams of crack cocaine was “attributable and reasonably foreseeable” by the defendant making the claim. Such a defendant-specific finding is an element of the offense of conviction: it means that a defendant cannot, simply by reason of his membership in a conspiracy that traffics in large amounts of drugs, automatically be “saddled with the full weight of the conspiracy’s wrongdoing.” United States v. Sepulveda, 15 F.3d 1161, 1197 (1st Cir. 1993). He can only be held responsible for drugs that he “personally handled or anticipated handling,” as well as “drugs involved in additional acts that were reasonably foreseeable by him and were committed in furtherance of the conspiracy.” Id.

Here, the district court held a bench trial on the drug-weight issue — a trial that was necessary because any fact that increases the mandatory minimum sentence for an offense must, absent a plea or a stipulation, be submitted to a factfin-der to be determined beyond a reasonable doubt. See Alleyne v. United States, — U.S. -, 133 S.Ct. 2151, 2155, 186 L.Ed.2d 314 (2013) (citing Apprendi v. New Jersey, 530 U.S. 466, 483 n.10, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)); United States v. Pizarro, 772 F.3d 284, 292-93 (1st Cir. 2014). At the end of the trial, the court found that each of the defendants was responsible for at least 280 grams of crack cocaine.

Hernandez does not appeal the drug-quantity determination as it relates to him. Dunston and Wooldridge do appeal and, as to each of them, we must “exam-in[e] the facts and inferences in the light most favorable to the verdict.” United States v. O’Donnell, 840 F.3d 15, 18 (1st Cir. 2016) (citation omitted); cf. United States v. Colon-Solis, 354 F.3d 101, 103 (1st Cir. 2004) (requiring “defendant-specific determination of drug quantity” for this purpose). The ultimate question is whether, after viewing the evidence in the light most hospitable to the government, a rational trier of fact could have found the drug-weight elements beyond a reasonable doubt. See United States v. Grace, 367 F.3d 29, 34 (1st Cir. 2004). We must answer this question separately as to each of the two appealing defendants, see Colon-Solis, 354 F.3d at 103, exercising de novo review. See O’Donnell, 840 F.3d at 18.

With this preface, we turn to the substance of the sufficiency claims. We begin with Dunston and then move to Wool-dridge.

1. Dunston. Dunston contends that the court’s finding that he was responsible for at least 280 grams of crack cocaine was plucked out of thin air. Pointing out that the authorities never seized any of the drugs to which he alluded in the wiretapped conversations, he insists that it remains unclear how much powder was converted to crack.

Dunston is whistling past the graveyard. The government presented evidence linking Dunston to at least eight separate transactions. We need examine only two of these occurrences to defuse Dunston’s attack.

On June 26, the government intercepted a telephone call in which Dunston and Hernandez discussed their plans to cook 200 grams of powder cocaine recently purchased from Wooldridge. The two men split the contraband, and Dunston told Hernandez that he was going to “step up a yard right now and see what it is.” This meant, Agent Boyle testified, that Dunston intended to convert 100 grams of powder into crack. Later that day, Dunston and Hernandez spoke again. When Hernandez asked, “how did that come out,” Dunston replied that the result was “[a]ll yellow” and that he “[g]ot back, like, 2 extra grams. It was, like, 102 when it dried all the way out, bone dry.” Boyle testified that the yellow tinge of Dunston’s product was emblematic of crack cocaine and that, since converting powder to crack requires water, Dunston’s reference to drying the product was also consistent with making crack.

When judges sit as factfinders, they are not obliged to put their common sense into cold storage. Given the wiretaps and Boyle’s testimony, the district court surely had a rational basis for finding, beyond any reasonable doubt, that Dunston was responsible for at least 200 grams of crack stemming from the June 26 events. For one thing, the court supportably could have found Dunston responsible for the 100 grams that he himself cooked. For another thing, the court supportably could have found that the remaining 100 grams, retained by Hernandez, was to be converted from powder to crack as part of the conspiracy and that the conversion was reasonably foreseeable to Dunston.

Dunston protests. He says that there is no evidence that this latter 100 grams of powder was actually converted to crack and that this part of the district court’s drug-quantity calculation was faulty because it implicitly assumed that 100 grams of powder cocaine, when converted, would yield 100 grams of crack cocaine. He insists that, even in optimal conditions, 100 grams of powder cannot be converted into more than 89.2 grams of crack.

This attack misfires. The court had before it evidence that, on both June 26 and June 29 (discussed infra) Dunston himself had performed conversion operations and had gotten better than a one-to-one yield. Given that evidence, the court was entitled to apply a one-to-one conversion ratio in its appraisal of the conspiracy’s output.

The court also heard the particulars of a transaction that occurred on June 29. On that date, the government intercepted a call between Hernandez and a third party, during which Hernandez bought 200 grams of powder cocaine. Just over two hours later, Dunston called Hernandez to inform him that he planned to “do the whole thing together.” He subsequently reported that the result was “206 wet,” and yellow in color, but quickly turning white. Given this evidence and Boyle’s explanatory testimony, the district court could have attributed, beyond any reasonable doubt, an additional 200 grams of crack to Dunston. After all, proof beyond a reasonable doubt does not require proof to an absolute certainty. See United States v. Lasseque, 806 F.3d 618, 623 (1st Cir. 2015), cert. denied, — U.S. -, 136 S.Ct. 1472, 194 L.Ed.2d 567 (2016).

Dunston counters that the government offered no direct or tangible evidence that this -batch of cocaine ever existed. But it is old hat that proof of a defendant’s guilt can be based, in whole or in part, on circumstantial evidence. See United States v. George, 841 F.3d 55, 63 (1st Cir. 2016); United States v. Williams, 717 F.3d 35, 39-40 (1st Cir. 2013). In this instance, the district court, qua factfinder, drew a series of reasonable inferences from the evidence, and its conclusion that Dunston was responsible for this additional 200 grams of crack is unimpugnable.

For these reasons, Dunston’s conviction must stand.

2. Wooldridge. The record also provides ample support for the district court’s decision to attribute at least 280 grams of crack cocaine to Wooldridge. Wooldridge was arrested with ninety-three grams of crack on his person. In addition, there was cogent evidence that Wooldridge sold his codefendants the 200 grams of powder cocaine mentioned in the June 26 conversation. As explained above, 200 grams of powder could be found, beyond a reasonable doubt, to equal 200 grams of crack. Because the production of crack was a reasonably foreseeable act in furtherance of the conspiracy, the district court did not err either in finding that Dunston and Hernandez converted their shares of the powder sold by Wooldridge into crack or in holding Wooldridge responsible for a corresponding amount of crack. See Se-pulveda, 15 F.3d at 1197.

In an effort to stave off this conclusion, Wooldridge insists that he was not yet part of the charged conspiracy when he sold drugs to his codefendants at the end of June. Building on that foundation; he posits that any crack cocaine resulting from that sale cannot be attributed to him. This is revisionist history, and we reject it. Wooldridge pleaded guilty to being a member of the conspiracy beginning in August of 2011 — -long before the sale occurred. He is bound by his plea. See United States v. Laracuent, 778 F.3d 347, 351 (1st Cir.), cert. denied, — U.S. -, 135 S.Ct. 2875, 192 L.Ed.2d 908 (2015).

That ends this aspect of the matter. We conclude that the evidence was sufficient to allow the district court to find beyond a ■reasonable doubt that at least 280 grams of crack were attributable to Wooldridge. Consequently, his conviction must stand.

C. Dunston’s Sentence.

Dunston’s claim of sentencing error is easily dispatched. He does not challenge the district court’s guideline calculations but, rather, maintains that his 144-month sentence offends the parsimony principle, see United States v. Sepúlveda-Hernández, 817 F.3d 30, 34 (1st Cir. 2016) (citing 18 U.S.C. § 3553(a)), because it is greater than necessary to achieve the purposes of sentencing. Under our case law, we treat such a claim as one of substantive unreasonableness. See id.

Dunston did not raise this claim in the district court, and the standard of review is unsettled. See United States v. Ruiz-Huertas, 792 F.3d 223, 228 (1st Cir.) (noting uncertainty with respect to standard of review regarding unpreserved claims of substantive unreasonableness), cert. denied, — U.S. -, 136 S.Ct. 258, 193 L.Ed.2d 191 (2015). For simplicity’s sake, we assume — favorably to Dunston — that review is for abuse of discretion.

Dunston was subject to the career offender guideline. See USSG § 4B1.1(a). The court below set his guideline sentencing range (GSR) at 262-327 months and sentenced him appreciably below the bottom of that range. A defendant who challenges a below-the-range sentence as substantively unreasonable must carry a heavy burden. See United States v. Montero-Montero, 817 F.3d 35, 37 (1st Cir. 2016). The greater the drop from the bottom of the range, the heavier the lift. See id.

There is more than one reasonable sentence in any given case, and the relevant inquiry is whether the sentence imposed “resides within the expansive universe of reasonable sentences.” United States v. King, 741 F.3d 305, 308 (1st Cir. 2014). In mounting this inquiry, we concentrate on whether the sentence reflects “a plausible ... rationale and a defensible result.” United States v. Martin, 520 F.3d 87, 96 (1st Cir. 2008).

The court below supplied a plausible rationale for Dunston’s sentence. It explained that a significant period of incarceration was warranted to protect the public from future crimes, provide deterrence, and punish the defendant. Given the scope and duration of the conspiracy, the force of this explanation cannot be gainsaid. The court added, though, that “incarceration at or near the advisory guideline range seems to be more than what is necessary to meet the goals of sentencing.” For that reason, it executed a sharp downward variance.

Despite the court’s seeming leniency, Dunston assails the result, arguing that his ultimate sentence was skewed by a “mechanical application” of the career offender guideline. This argument is constructed out of whole cloth: it overlooks the undeniable fact that the sentencing court’s downward variance was anything but mechanical, yielding a sentence almost ten years below the nadir of the guideline range. The challenged sentence, which took into account the nature of Dunston’s crime, his history, and his personal characteristics, was wholly defensible and well within the court’s discretion. See King, 741 F.3d at 309.

D. Wooldridge’s Sentence.

Wooldridge challenges the amount of crack cocaine attributed to him for sentencing purposes. This drug quantity (at least 840 grams) is separate from the lesser drug quantity (280 grams) needed to establish Wooldridge’s guilt. See supra Part IIB. We explain briefly why two distinct findings are necessary.

At trial, the government had the burden of proving the drug quantity charged as an element of the offense (280 grams or more) beyond a reasonable doubt. See Alleyne, 133 S.Ct. at 2155. At sentencing, however, “a defendant-specific determination of drug quantity [i]s a benchmark for individualized sentencing under the guidelines.” Colon-Solis, 354 F.3d at 103. The sentencing court is charged with making such a defendant-specific determination. See United States v. Correy, 773 F.3d 276, 279-80, 280 n.4 (1st Cir. 2014). All drugs “attributable to[ ] or reasonably foreseeable by” a defendant may be included in that defendant’s individualized total. United States v. Cintrón-Echautegui, 604 F.3d 1, 5 (1st Cir. 2010). The government bears the burden of proving drug quantity at sentencing by a preponderance of the evidence. See id. at 6.

The sentencing guidelines direct a sentencing court to consider relevant conduct, see USSG § lB1.3(a), when assessing the drug quantity for which a defendant is to be held accountable at sentencing. Where, as here, a defendant has been convicted as a coconspirator, his relevant conduct includes not only his own acts and omissions but also the reasonably foreseeable acts and omissions of other coconspirators in furtherance of the conspiracy. See id. § lB1.3(a)(l)(B).

A sentencing determination of defendant-specific drug quantity does not require mathematical precision: it need only be a “reasonable approximation of the weight of the controlled substance(s) for which the defendant should be held responsible.” United States v. Demers, 842 F.3d 8, 12 (1st Cir. 2016). As we have said, calculating drug quantities “is not an exact science,” and the sentencing court “need not be precise to the point of pedantry.” United States v. Platte, 577 F.3d 387, 392 (1st Cir. 2009).

Such drug-quantity determinations are quintessentially factual in nature, and we review them for clear error. See Cintrón-Echautegui, 604 F.3d at 6. That standard dictates that a finding will stand unless a reviewing court, after assessing the whole of the record, is firmly convinced that a mistake has been made. See id. “[W]here there is more than one plausible view of the circumstances, the sentencing court’s choice among supportable alternatives cannot be clearly erroneous.” United States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990).

Against this backdrop, Wool-dridge argues that the district court committed clear error in finding him accountable for at least 840 grams of crack cocaine. That finding, combined with other uncontroversial guideline calculations and Wool-dridge’s designation as a career offender, see USSG § 4Bl.l(a), resulted in a GSR of 262-327 months. The district court proceeded to impose a below-the-range sentence of 132 months.

Although the district court varied downward from the guideline range, any error in calculating that range would likely be material on appeal. See Molina-Martinez v. United States, — U.S. -, 136 S.Ct. 1338, 1346, 194 L.Ed.2d 444 (2016) (“In most cases a defendant who has shown that the district court mistakenly deemed applicable an incorrect, higher Guidelines range has demonstrated a reasonable probability of a different outcome.”). Here, however, the district court’s drug-quantity determination (and, thus, its configuration of the GSR) is not clearly erroneous.

The district court identified three transactions that linked Wooldridge to well over 840 grams of crack cocaine. First, Wool-dridge sold powder cocaine to Hernandez and Dunston at the end of June and, as discussed above, see supra Part IIB, that sale formed a solid basis for a finding attributing approximately 200 grams of crack cocaine to ■ him. Second, the court supportably tied Wooldridge to a purchase of 300 grams of powder cocaine that occurred on July 31. The record includes discussions among all three defendants about the purchase and about their plans to convert the powder into crack. That evidence, coupled with the court’s permissible use of a one-to-one conversion ratio, was sufficient to ground attribution of 300 grams of crack cocaine to Wooldridge.

Third, and finally, the court reasonably attributed an additional 497 grams of crack cocaine to Wooldridge with respect to events occurring on August 31. At that time, federal agents seized a package sent by Cruz (in Puerto Rico) to an acquaintance of Hernandez (in Massachusetts). The package was found to contain 497 grams of powder cocaine. Although the evidence indicated that Hernandez was the prime mover in arranging for the shipment, both Wooldridge and Dunston encouraged his efforts. Thus, the 497 grams of powder cocaine, destined for conversion into crack cocaine, could fairly be attributed to Wooldridge for sentencing purposes. See Cintrón-Echautegui, 604 F.3d at 5; USSG § 1B1.3(a)(1)(B).

The fact that the package was intercepted before its contents reached the defendants is of no moment. The record makes manifest that the defendants, in furtherance of the conspiracy, sought the shipment of powder cocaine as a prelude to conversion and would in all probability have converted it to crack cocaine if given the chance. Indeed, the government introduced evidence showing that, on no fewer than seven separate occasions between June and August, the defendants procured powder cocaine and converted it into crack cocaine within a matter of days. When drug traffickers have forged a well-defined pattern and practice for their operations, a sentencing court need not turn a blind eye to that pattern and practice.

Wooldridge tries to distance himself from this drug weight, asseverating that no part of the August 31 shipment should be attributed to him because his coconspirators had “cut[ ] [him] out of the picture” by then. But the evidence of exclusion is meager, and the district court was not obliged to resolve this issue in Wooldridge’s favor. Just as withdrawal from a conspiracy requires more than an empty claim of disaffection, see United States v. Piper, 298 F.3d 47, 53 (1st Cir. 2002) (explaining that, in order to withdraw, a conspirator must take affirmative action to disavow or defeat the conspiracy), so too does a claim of exclusion. There is simply no credible evidence that either Wooldridge or his partners in crime took any such action here. To the contrary, the record reflects that Wooldridge contacted Hernandez at the end of July in search of cocaine and exhibited an abiding intent to remain involved in the conspiracy. Given the absence of any competent evidence of withdrawal, the sentencing court did not clearly err in finding the coconspirators’ acts at the end of August to be a part of Wooldridge’s relevant conduct.

E. Hernandez’s Sentence.

Hernandez’s claim of sentencing error similarly embodies a challenge to the district court’s drug-quantity determination. The court found him responsible for at least 2.8 kilograms of crack cocaine. Combined with other uncontroversial guideline calculations and a career offender enhancement, this drug quantity resulted in a GSR of 292-365 months. The district court imposed a below-the-range sentence of 162 months.

The record is replete with circumstantial evidence that Hernandez headed up the conspiracy. He was involved in every transaction that we have discussed: the events of June 26 (200 grams), the events of June 29 (200 grams), the events of July 31 (300 grams), and the events of August 31 (497 grams). In consequence of this involvement, 1,197 grams of crack cocaine were fairly attributable to him.

Furthermore, the record contains proof sufficient to support the attribution to Hernandez, using a one-to-one conversion ratio, of an additional 1,000 grams of crack cocaine:

• 200 grams of powder cocaine purchased and converted on July 7;
• 100 grams of powder cocaine converted on July 15;
• 500 grams of powder cocaine purchased on August 5 and converted the following day; and
• 200 grams of powder cocaine purchased on August 28 and at least partially converted the next day.

When these quantities are combined with the nearly forty-four grams of crack sold by Hernandez to undercover officers at the start of the probe, Hernandez can properly be held responsible for a minimum of 2.2 kilograms of crack cocaine.

To boost that total to 2.8 kilograms, the district court reasonably relied on two additional events. First, the evidence showed that, on July 29, Hernandez arranged the payment of $19,000 to Cruz for powder cocaine previously supplied. The court sup-portably concluded that this payment represented the purchase of roughly 500 grams of powder cocaine. See Sepulveda, 15 F.3d at 1201 (holding that when cash- is likely dedicated to the purchase of contraband, “a sentencing court may convert the cash into equivalent amounts of narcotics” for sentencing purposes). After applying a one-to-one conversion ratio, this transaction yielded 500 grams of crack cocaine attributable to Hernandez.

The court reasonably added another 100 grams, based on evidence that Hernandez was actively dealing crack cocaine between January and June (when the wiretaps were instituted). While this finding represented an estimate, it was by all odds a conservative estimate — especially since Hernandez, pleaded guilty to conspiring to deal crack as early as August of 2011. We have consistently upheld a sentencing court’s use of reasonable estimates in assessing drug quantity, see, e.g., United States v. Bernier, 660 F.3d 543, 546 (1st Cir. 2011); Platte, 577 F.3d at 392; United States v. Ventura, 353 F.3d 84, 88 (1st Cir. 2003), and that praxis has particular appeal when — as in this case — the sentencing court, in fashioning its estimate, has taken a conservative approach, cf. United States v. Sklar, 920 F.2d 107, 113 (1st Cir. 1990) (admonishing sentencing courts, in this context, to “err on the side of caution” (citation omitted)).

This gets the grease from the goose. While we could analyze these multiple transactions in more granular detail, doing so would serve no useful purpose. It suffices to say that the record discloses ample evidence to ground a finding that Hernandez was responsible for at least 2.8 kilograms of crack cocaine. As a result, we discern no clear error in the district court’s drug-quantity determination.

Hernandez has one last string to his bow. He takes issue with the district court’s designation of him as a career offender under the sentencing guidelines. Specifically, he asserts that the court improperly relied, over objection, on a portion of his presentence investigation report, which cited only criminal offender record information (CORI) to lay out his criminal history.

The government bears the burden of establishing the existence of at least two predicate offenses to trigger a career offender enhancement under the sentencing guidelines. See United States v. Bryant, 571 F.3d 147, 153 (1st Cir. 2009) (citing USSG § 4B1.1(a)). The government may carry this burden in divers ways, such as by furnishing “a certified copy of the conviction or an equivalent proffer” or by pointing to official court documents of the type that engender a presumption of reliability. Id at 153, 155 (quoting United States v. McKenzie, 539 F.3d 15, 19 (1st Cir. 2008)). But anecdotal CORI descriptions, if objected to, are not enough. See id. at 154-55; cf. United States v. Brown, 510 F.3d 57, 74 (1st Cir. 2007) (observing that “when a defendant challenges a conviction laid out in the [presentence investigation report], more is required”).

At Hernandez’s sentencing, the government argued for a career offender enhancement noting that the CORI material described in the presentence investigation report identified three potential predicate offenses. Hernandez objected. The district court stayed the proceedings to give the government the opportunity to make a more persuasive evidentiary proffer; but when the government produced nothing more, the court overruled Hernandez’s objection and sentenced him as a career offender.

On appeal, Hernandez insists that the record before the district court was insufficient to show the required predicate offenses. The government concedes this point and instead proffers a series of docket sheets, never made available to the district court, inviting us to take judicial notice of them. These docket sheets, it says, will confirm the existence of the required predicate offenses (albeit belatedly) and render any error harmless.

We decline the government’s invitation. As a general matter, we do hot consider evidentiary materials that were not proffered in the district court. See United States v. Farrell, 672 F.3d 27, 30-31 (1st Cir. 2012); United States v. Kobrosky, 711 F.2d 449, 457 (1st Cir. 1983). Although we have occasionally taken judicial notice of state court documents identified for the first time on appeal, see, e.g., Farrell, 672 F.3d at 31; United States v. Mercado, 412 F.3d 243, 247-48 (1st Cir. 2005), we cannot do so here. The proffered documents bear no hallmarks of authenticity and, in all events, are subject to interpretation. A career offender designation can expose a defendant to a significantly higher sentence, and it remains the district court’s duty to ensure that documents offered to prove the existence of predicate offenses are “sufficiently reliable.” Bryant, 571 F.3d at 154.

Although we conclude that the district court erred, we think it would be premature to vacate Hernandez’s sentence. Instead, we remand so that the district court may hold a hearing and afford the parties an opportunity to present evidence anent Hernandez’s prior convictions. Should the district court find that the evidence presented is sufficiently reliable and establishes the existence of the requisite number of predicate offenses, it should, within sixty days from the date hereof, report its findings and conclusions to this court. If, however, the court finds to the contrary, it should, within sixty days from the date hereof, report its findings and conclusions to this court and proceed to vacate Hernandez’s sentence and resen-tence him without reference to the career offender guideline.

III. CONCLUSION

We need go no further. For the reasons elucidated above, we affirm the judgment in appeal number 15-1812, thus affirming Dunston’s conviction and sentence. We likewise affirm the judgment in appeal number 15-2000, thus affirming Wool-dridge’s conviction and sentence. With respect to appeal number 15-1999 (Hernandez), we remand for further proceedings consistent with this opinion and for the time being retain appellate jurisdiction over this appeal.

So ordered.

      . For example, the court heard evidence that once Dunston told Hernandez that he "got back 2 ... extra grams” after cooking the powder, Hernandez responded, “You should have done mine.” Dunston replied, “You’re the only one that didn't want me to do yours!” and indicated that Hernandez had mentioned planning to cook his powder in a particular type of pot. Several hours later, Hernandez called a third party and asked to use his kitchen.

      . We note, moreover, that the statute of conviction criminalizes conspiracies involving the possession and intended distribution of "280 grams or more of a mixture or substance ... which contains cocaine base.” 21 U.S.C. § 841(b)(l)(A)(iii) (emphasis supplied). Whether the weight of the defendants’ products came from pure crack cocaine or crack combined with water or some other adulterant is beside the point: the record reflects that the defendants conspired to possess and distribute a “mixture or substance” that contained cocaine base. Id.

      . Indeed, Wooldridge admits that the ninety-three grams of crack cocaine found on his person when he was arrested was his share of this purchase.


source: Caselaw Access Project

author: KAYATTA, Circuit Judge.

license: Public Domain

text:
    BERKSHIRE ENVIRONMENTAL ACTION TEAM, INC.; Jean Atwater-Williams; Ronald M. Bernard; Cathy Kristofferson; Cheryl D. Rose; Irvine Sobelman; Paula L. Terrasi; Susan K. Theberge; Rosemary Wessel; Kathryn R. Eiseman; Ariel S. Elan; Elliot Fratkin; Martha A. Nathan; Kenneth Hartlage; Ronald R. Coler; Jane Winn; Heather Morrical, Petitioners, v. TENNESSEE GAS PIPELINE COMPANY, LLC; Massachusetts Department of Environmental Protection, Respondents.
    No. 16-2100
    United States Court of Appeals, First Circuit.
    March 15, 2017

      Richard A. Kanoff, with whom Susan E. Stenger, Saqib Hossain, and Burns & Lev-inson LLP, Boston, MA, were on brief, for petitioners.

      Matthew Ireland, Assistant' Attorney-General, Environmental Protection Division, with whom Seth Schofield, Assistant Attorney General and Senior Appellate Counsel, Energy and Environment Bureau, Office of the Attorney General of Massachusetts, Maura Healey, Attorney General of Massachusetts, and Turner Smith, Assistant Attorney General, Environmental Protection Division, were on brief, for Massachusetts Department of Environmental Protection.
    James L. Messenger, with whom Brian J. Wall, Gordon Rees Scully Mansukhani, LLP, Boston, MA, J. Curtis Moffatt, and Mosby G. Perrow were on brief, for Tennessee Gas Pipeline Company, LLC.
    Before Kayatta, Circuit Judge, Souter, Associate Justice, and Selya, Circuit Judge.

       Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation.

   KAYATTA, Circuit Judge.

In this unusual petition for review arising out of a state administrative proceeding, the petitioners themselves argue that we lack jurisdiction to hear their complaints about what has transpired to date before the state agency. Because the agency itself has not yet finally acted on the matter that is before it as is required to invoke our jurisdiction under 15 U.S.C. § 717r(d)(l), we agree and dismiss the petition.

I. Background

The Natural Gas Act (“NGA”) requires a natural gas company to obtain from the Federal Energy Regulatory Commission (“FERC”) a certificate of public convenience and necessity before it may construct new natural gas transportation facilities or expand existing ones. 15 U.S.C. § 717f(c)(l)(A). FERC is responsible for coordinating all federal authorizations applicable to the process. Id. § 717n(b)(l). The NGA also expressly preserves the rights of states under the Coastal Zone Management Act of ' 1972, 16 U.S.C. §§ 1451-1466; the Clean Air Act, 42 U.S.C. §§ 7401-7671q; and the Clean Water Act (“CWA”), 33 U.S.C. §§ 1251-1388. See 15 U.S.C. § 717b(d). Under the CWA, any applicant for a federal license to construct or operate facilities that may result in discharge into navigable waters must “provide the licensing or permitting agency”— here, FERC — “a certification from the State in which the discharge originates or will originate.” 33 U.S.C. § 1341(a)(1). The state, in turn, must evaluate the proposed project’s compliance with certain provisions of the CWA and set forth limitations and monitoring requirements “necessary to assure that any applicant for a Federal license or permit will comply” with the CWA “and with any other appropriate requirement of State law set forth in such certification.” Id. § 1341(d). A condition imposed under the state’s certification “shall become a condition on any Federal license or permit subject to the provisions of this section.” Id.

On July 31, 2014, Tennessee Gas Pipeline Company, LLC (“Tennessee Gas”) applied to FERC for a certificate of public convenience and necessity, which FERC eventually issued in March 2016 subject to, among other things, filing of proof that Tennessee Gas has received “all applicable authorizations required under federal law (or evidence of waiver thereof).” In pursuit of one such authorization (or waiver thereof), Tennessee Gas submitted an application to the Massachusetts Department of Environmental Protection (“MassDEP”) for water quality certification on June 30, 2015. On June 29, 2016, after almost a full year during which interested citizens and environmental organizations (including Petitioners) participated in a nontestimonial notice-and-comment process, Tennessee Gas received conditional certification for its proposed project in a letter from the Western Regional Office of MassDEP signed by Wetlands Program Chief David Cameron.

The letter contained over forty conditions to the project’s approval, including a condition — “Condition 15” — forbidding Tennessee Gas from conducting any “work subject to this Certification, including the cutting of trees,” until “the expiration of the Appeal Period set forth below and any appeal proceedings that may result from an appeal.” The conditional certification also described the appeal process, explaining that “[cjertain persons shall have a right to request an adjudicatory hearing concerning certifications by the Department,” including “[a]ny person aggrieved by this certification who has submitted written comments during the public comment period.” In accordance with Massachusetts regulations on the subject, the conditional certification provided that any person who wished to appeal was required to submit a Notice of Claim for Adjudicatory Hearing within twenty-one days of the certification’s issuance.

Petitioners took advantage of this provision, filing a Notice of Claim for Adjudicatory Hearing on July 20, 2016. In response, Tennessee Gas opposed Petitioners’ request for a hearing and sought a stay of further administrative proceedings, claiming that once the agency had issued a conditional water quality certification, the state’s involvement in the process was at an end, with any further review to be pursued through a petition to this court. Petitioners disagreed, as did MassDEP, which denied Tennessee Gas’s request for a stay and moved forward, scheduling a final decision to be issued by April 3, 2017. In early August 2016, Tennessee Gas filed suit in the District of Massachusetts seeking to bar MassDEP from engaging in further review. Petitioners, in turn, hedged their bets. They filed the petition now before us in order to preserve some review of the June 29 conditional water quality certification in the event that Tennessee Gas was correct. At the same time, they asked us to reject their petition on the grounds that Tennessee Gas is not correct; that is to say, they claim that our review is premature until MassDEP completes its adjudicatory process.

II. Discussion

A.

We begin with the language of the statute that grants us the jurisdiction putatively invoked by this petition. We have exclusive jurisdiction “over any civil action for the review of an order or action of a ... State administrative agency acting pursuant to Federal law [in ruling on an application, as pertinent here, for a water quality certification under 33 U.S.C. § 1341(a)(1) ].” 15 U.S.C. § 717r(d)(1). In a literal sense, state agencies repeatedly take “action” in connection with applications for water quality certifications. They docket applications, review them, and express opinions about them. We see no reason, though, to think that Congress wanted us to exercise immediate review over such preliminary and numerous steps that state agencies may take in processing an application before they actually act in the more relevant and consequential sense of granting or denying it.

Pushing back on this common sense conclusion, Tennessee Gas points to the fact that § 717r(d)(l) employs the term “aetion,” bereft of the modifier “final.” This contrasts with, for example, the text employed in the Administrative Procedure Act (“APA”), 5 U.S.C. § 704 (“Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.”), and with the text of 15 U.S.C. § 717r(b), which permits judicial review of FERC orders only after FERC’s denial of an application for rehearing. Therefore, reasons Tennessee Gas, we should infer that, by authorizing our review of state agency action, Congress did not limit such review to final agency action.

Such a negative inference might have interpretative force in dealing with some other subject matter. See generally, e.g., Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002) (articulating the rule of statutory construction that courts should typically infer that Congress intends differences in statutory language to effect differences in statutory application). Here, though, the subject matter is judicial review of agency action, which review Congress creates in the context of a long-standing and well-settled “strong presumption ... that judicial review will be available only when agency action becomes final.” Bell v. New Jersey, 461 U.S. 773, 778, 103 S.Ct. 2187, 76 L.Ed.2d 312 (1983) (citing FPC v. Metro. Edison Co., 304 U.S. 375, 383-85, 58 S.Ct. 963, 82 L.Ed. 1408 (1938)). To say that silence on the subject implies no requirement of finality would be to recognize this “strong presumption” only when it is of little benefit.

It is also unclear that Congress’s reference to FERC’s internal review process in § 717r(b), coupled with the lack of a similar reference in § 717r(d)(l) to the internal review processes of state agencies, even raises the inference that Tennessee Gas claims. Rather, there is a more plausible explanation for Congress’s decision to write the statute this way: unlike the FERC procedures described in § 717r(b), which are the same for any applicant proposing a project in any state or states, the state procedures giving rise to orders reviewable under § 717r(d)(l) may (and undoubtedly do) vary widely from jurisdiction to jurisdiction. Thus, whereas it is reasonable to interpret a reference to FERC’s rehearing process as a signal that final agency action is required under § 717r(b), it does not make sense to draw the negative inference that the lack of a reference in § 717r(d)(l) to the variegated internal review mechanisms deployed by state agencies sends the opposite signal. Simply put, the text of § 717r(d)(l), on its own or read alongside § 717r(b), does not rebut the strong presumption that judicial review is available only following final agency action.

Further reinforcement for the strong presumption restricting review until an agency has taken final action resides in Congress’s numerous efforts to prevent states from unreasonably delaying the performance of their reserved roles in connection with natural gas projects. In connection with any permit required by federal law, § 717r(d)(2) authorizes the United States Court of Appeals for the District of Columbia to issue injunctive relief when a state agency “fail[s] to act” on such a permit in accordance with a schedule established by FERC. Where the permit is a water quality certification required by 33 U.S.C. § 1341(a)(1), a state waives its right in connection with a FERC application if it “fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request.” Id. The very fact that Congress has granted us the unusual ability to review directly (and on an expedited basis, 15 U.S.C. § 712r(d)(5)) action by a state agency can itself be seen as further evidence that Congress sought to reduce the potential for the use of delay to block natural gas projects. Certainly nothing in the legislative history of § 717r(d)(1) belies that perception. See Islander E. Pipeline Co. v. Conn. Dep’t of Envtl. Prot., 482 F.3d 79, 85 (2d Cir. 2006) (“[AJpplicants ... were encountering difficulty proceeding with- natural gas projects that depended on obtaining state agency permits.” (citing Regional Energy Reliability and Security: DOE Authorization to Energize the Cross Sound Cable: Hearing Before the H. Subcomm. on Energy & Air Quality, 108th Cong. 8 (2004) (statement of Rep. Barton), and Natural Gas Symposium: Symposium Before the S. Comm, on Energy & Nat. Res., 109th Cong. 41 (2005) (statement of Mark Robinson, Director, Office of Energy Projects, FERC))). A Congress that placed so much emphasis upon avoiding delay in the adjudication of requests for certification of this type would not likely have intended to authorize the delay that interlocutory reviews of every state agency action, final or not, would inevitably engender.

Tennessee Gas contends that finding a final agency action requirement in § 717r(d)(1) nevertheless puts us at odds with the Second Circuit’s decision in Islander East. In that decision, the court did not dismiss the case sua sponte for lack of subject matter jurisdiction even though, Tennessee Gas says, the state agency had not taken final action. Therefore, Tennessee Gas reasons, the Second Circuit must have construed § 717r(d)(1) to confer subject matter jurisdiction to review non-final agency action. See Tenn. Gas Pipeline Co. v. Del. Riverkeeper Network, 921 F.Supp.2d 381, 392-93 (M.D. Pa. 2013) (articulating this argument). We think it a stretch, however, to draw so sweeping an inference from a court’s rendering of a decision on the merits where the question of subject matter jurisdiction was not squarely before or even addressed by the court. The Second Circuit in Islander East evidenced no awareness that it might be reviewing an incomplete state agency action, as opposed to a completed state agency action for which state court review was not yet' exhausted. See Islander East, 482 F.3d at 88 n.7. We therefore find little if any persuasive force in Tennessee Gas’s reliance on that decision.

Tennessee Gas also appears to argue that reading § 717r(d)(l) to permit judicial review of only a state agency’s “final action” would be tantamount to imposing an exhaustion of administrative remedies requirement where one is not provided by the statute. In that vein, the company urges us to adopt the reasoning of other courts that have found exhaustion of administrative remedies unnecessary to trigger the exclusive and original jurisdiction of a United States Circuit Court of Appeals under § 717r(d)(1). See, e.g., AES Sparrows Point LNG, LLC v. Wilson, 589 F.3d 721, 727 (4th Cir. 2009); Islander East, 482 F.3d at 88 n.7; Del. Riverkeeper, 921 F.Supp.2d at 391-92.

We disagree with Tennessee Gas’s premise. Finding that a statute requires final agency action is different from finding that it requires exhaustion. “[TJhe judicial. doctrine of exhaustion of administrative remedies is conceptually distinct from the doctrine of finality”: whereas exhaustion “refers to administrative and judicial procedures by which an injured party may seek review of an adverse decision and obtain a remedy if the decision is found to be unlawful or otherwise inappropriate,” finality “is concerned with whether the initial decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury.” Darby v. Cisneros, 509 U.S. 137, 144, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993) (second and third quotations quoting Williamson Cty. Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 193, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985)). Each of the courts Tennessee Gas asks us to join was tasked with determining whether § 717r(d)(1) barred either a second, separate state agency or a state court from reviewing a state agency’s final decision granting, conditioning, or denying a water quality certification. We, by contrast, are faced with the question whether a single agency must render a final decision before a United States Circuit Court of Appeals may take jurisdiction to analyze whether the decision was sound.

We therefore conclude that there is ample reason to stick to the strong presumption restricting our review to final agency action of a type that is customarily subject to judicial review.

B.

The foregoing brings us to Tennessee Gas’s alternative, and principal, argument: that the June 29, 2016, letter from MassDEP constituted final agency action granting its application, albeit with conditions. Under this view, the continuing proceeding at MassDEP is in the nature of the type of appellate review that falls within the exclusive province of this court.

An agency action is “final” only where it “represents the culmination of the agency’s decisionmaking process and conclusively determines the rights and obligations of the parties with respect to the matters at issue.” Rhode Island v. EPA, 378 F.3d 19, 23 (1st Cir. 2004); cf. Bennett v. Spear, 520 U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (holding that “final agency action” under the APA, 5 U.S.C. § 704, must be “the ‘consummation’ of the agency’s decisionmaking process,” “must not be of a merely tentative or interlocutory nature,” and “must be one by which ‘rights or obligations have been determined,’ or from which ‘legal consequences will flow’ ” (first quoting Chi. & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113, 68 S.Ct. 431, 92 L.Ed. 568 (1948); and then quoting Port of Bos. Marine Terminal Ass’n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S.Ct. 203, 27 L.Ed.2d 203 (1970))).

In form, there is something to Tennessee Gas’s argument that the June 29 letter constituted final agency action. The Mass-DEP officials did issue a formal document that states “the Department grants a Water Quality Certification ... subject to the following conditions ... necessary to maintain water quality, to minimize impact ... and to ensure compliance with appropriate state law.” The regulations (and the certification itself) refer to the adjudicatory hearing following an application for water quality certification as an “appeal.” See, e.g., 310 Mass. Code Regs. § 1.01(l)(c) (“Adjudicatory Appeal or Appeal means the portion of an adjudicatory proceeding initiated by filing a notice of claim with the Department and concluded by a final decision.”); 314 Mass. Code Regs. § 9.09(l)(e) (referring to “the appeal period” and final decisions following “an appeal”); id. § 9.10 (describing, in a provision entitled “Appeals,” the process of filing a notice of claim and engaging in an adjudicatory hearing). Where no adjudicatory hearing is sought and the certification is not further challenged in court, a water quality certification has the force and effect of law. See id. § 9.11 (“Failure to comply with ... a 401 Water Quality Certification ... shall be enforced [under regulatory provisions concerning administrative penalties].”). And the regulations neither refer to water quality certifications as “preliminary” or “proposed” nor require certifications or denials to include those words.

The substance of the Massachusetts regulatory regime, however, shows the contrary: an initial letter granting a water quality certification subject to Condition 15, either before the twenty-one day window to request a hearing has lapsed or after a timely notice of claim is filed, is not a final agency action. Three aspects of the water quality certification that MassDEP issued in this case and the regulatory regime that gave rise to it lead us to this conclusion.

First, Massachusetts law makes clear that Tennessee Gas’s application seeking a determination of its rights in the form of a water quality certification initiated a single, unitary proceeding, an essential part of which is the opportunity (of which petitioners have availed themselves) to have an adjudicatory hearing. Under Massachusetts law, “a proceeding before an agency in which the legal rights, duties or privileges of specifically named persons are required by constitutional right or by any provision of the General Laws to be determined after opportunity for an agency hearing” is an “[ajdjudicatory proceeding.” Mass. Gen. Laws eh. 30A, § 1(1). Mass-DEP regulations, in turn, provide that an adjudicatory proceeding “means a proceeding under [chapter 30A] that may culminate in an adjudicatory hearing and the Commissioner’s issuance of a final decision.” 310 Mass. Code Regs. § 1.01(c). Those same regulations also define such a hearing as one in which “parties may present evidence on issues of fact, and argument on issues of law and fact prior to the Commissioner’s issuance of a final decision.” Id. No party disputes that, in the present context, such a presentation of evidence and arguments occurs after the issuance of a conditional certification, not before.

Second, the review to be provided in the adjudicatory hearing is a review of Tennessee Gas’s application, rather than a review of a prior agency decision. MassDEP accords no deference to the preliminary findings included in the certification, see Conservation Comm’n of Falmouth v. Pacheco, 49 Mass.App.Ct. 737, 733 N.E.2d 127, 130 (2000), and the regulations expressly provide that the agency may even consider “new substantive issues arising from material changes to the scope or impact of the activity and not apparent at the time of public notice” from persons who did not participate in the notice-and-comment process, 314 Mass. Code Regs. § 9.10(1). When a notice of claim is timely filed following the issuance of a water quality certification, the agency’s review of the proposed project continues more or less as though no decision has been rendered at all.

Third, the manner in which Massachusetts has chosen to structure its internal agency decision-making strikes us as hardly unusual or contrived. It allows for unopposed actions to proceed to finality without the time and expense of full-blown adjudicatory proceedings, while preserving the parties’ rights to such proceedings when sought. With the taking of evidence and de novo consideration, it bears the hallmarks of decision-making by expert administrative agencies rather than those of judicial review. Its chief drawback, as demonstrated here, is its duration. Congress, though, has addressed the matter of delay directly, see 15 U.S.C. § 717r(d)(2); 33 U.S.C. § 1341(a)(1), and by divesting states of their customary review of state agency orders and opinions in this field, see 15 U.S.C. § 717r(d)(l). We see no indication that Congress otherwise intended to dictate how (as opposed to how quickly) MassDEP conducts its internal decision-making before finally acting. See 33 U.S.C. § 1251(b) (“It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, [and] to plan the development and use (including restoration, preservation, and enhancement) of land and water resources .... ”); United States v. Cooper, 482 F.3d 658, 667 (4th Cir. 2007) (“In the CWA, Congress expressed its respect for states’ role through a scheme of cooperative federalism that enables states to ‘implement ... permit programs’ like [the one at issue here.]”); S. Ohio Coal Co. v. Office of Surface Mining, Reclamation & Enf't, Dep’t of Interior, 20 F.3d 1418, 1427 (6th Cir. 1994) (“[T]he CWA sets up a system of ‘cooperative federalism,’ in which states may choose to be primarily responsible for running federally-approved programs.”); cf. Dominion Transmission, Inc. v. Summers, 723 F.3d 238, 240 (D.C. Cir. 2013) (noting that the NGA “expressly does not preempt” certain environmental protection laws like the Clean Air Act that contemplate a robust role for states).

III. Conclusion

There is, as yet, no order or action of MassDEP in connection with Tennessee Gas’s application for a water quality certification that we may review under 15 U.S.C. § 717r(d)(l). We therefore dismiss the petition for review for lack of subject matter jurisdiction. Each party shall bear its own costs.

      . Our consideration jof the jurisdictional issue posed by this case leaves us with no occasion to consider whether, because MassDEP did not finally act on Tennessee Gas’s application within one year, the requirement that Tennessee Gas obtain a water quality certification from the Commonwealth of Massachusetts has been waived. See 33 U.S.C. § 1341(a)(1). Nor have we considered the potential relevance of 15 U.S.C. § 717r(d)(2) (granting the D.C. Circuit "original and exclusive jurisdiction over any civil action for the review” of a state agency’s “alleged failure to act ... to issue, condition, or deny any permit required under Federal law” for a facility subject to NGA § 717f).