author: LYNCH, Circuit Judge.

text:
    IN RE: BIOGEN INC. SECURITIES LITIGATION GBR Group, Ltd., Plaintiff, Appellant, Nicole Tehrani, Plaintiff, v. Biogen Inc.; George A. Scangos; Paul J. Clancy; Stuart A. Kingsley, Defendants, Appellees.
    No. 16-1976
    United States Court of Appeals, First Circuit.
    May 12, 2017

      Michael P. Canty, with whom Jonathan Gardner, Guillaume Buell, Labaton Sucha-row LLP, New York, NY, Andrea M. Landry, Thornton Law Firm LLP, Boston, MA, Peretz Bronstein, New York, NY, Yitzchak E. Soloveichik, and Bronstein Gewirtz & Grossman LLC were on brief, for appellants.
    James R. Carroll, with whom Michael S. Hines, Sara J. van Vliet, and Skadden, Arps, Slate, Meagher & Flom LLP, Boston, MA, were on brief, for appellees.
    Before LYNCH, LIPEZ, and KAYATTA, Circuit Judges.
   LYNCH, Circuit Judge.

This securities case involves allegations that corporate officials misled the public about the effect of one patient’s death on sales of Tecfidera, a drug for multiple sclerosis (“MS”) and the company’s leading source of revenue.

GBR Group, Ltd. (“GBR”) is the lead plaintiff in a putative class action against Biogen Inc. (“Biogen”) and three Biogen executives (together, “the defendants”) alleging violations under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the “Exchange Act”). See 15 U.S.C. §§ 78j(b), 78t(a). The plaintiffs’ initial amended complaint alleged that, from December 2, 2014 to July 23, 2015 (the “Class Period”), the defendants knowingly misled the investing public regarding the impact that the death of a patient taking Tecfid-era had on sales of Tecfidera.

The district court dismissed the initial amended complaint with prejudice, for failure to meet the heightened pleading requirements of the Private Securities Litigation Reform Act (“PSLRA”). In re: Biogen Inc. Sec. Litig. (Biogen), 193 F.Supp.3d 5, 12-13 (D. Mass. 2016); see 15 U.S.C. §§ 78u-4, 78u-5. The court then denied the plaintiffs’ subsequent motion under Federal Rules of Civil Procedure 59(e) and 60(b)(2) to vacate the judgment and for leave to file a second amended complaint to include purportedly new evidence. GBR appeals the dismissal of the initial amended complaint and particularly emphasizes its appeal from the denial of the motion to vacate the judgment and for leave to amend the complaint.

We reject these claims and affirm on both issues. We agree, on de novo review, that the initial amended complaint fails to plead particularized facts giving rise to a strong inference of scienter, as required by the PSLRA. And there was no error or abuse of discretion in the denial of the motion to vacate the judgment and for leave to file a second amended complaint.

I.

Biogen, whose stock trades on the NASDAQ, is a biopharmaceutical company that develops, manufactures, and markets medication for the treatment of neurological disorders. During the relevant period, defendant George Scangos was Biogen’s Chief Executive Officer, defendant Paul Clancy was its Chief Financial Officer and Executive Vice President of Finance, and defendant Stuart Kingsley was its Executive Vice President of Global Commercial Operations. The Class Period is from December 2, 2014 to July 23, 2015.

One of the four principal drugs Biogen markets for MS treatment is Tecfidera, which the FDA approved for use in March 2013 and which Biogen began selling during the second fiscal quarter of 2013. Tecfidera has been a significant source of revenue for Biogen, and it was regularly-accounting for a third of Biogen’s total quarterly revenues by the start of the Class Period. Tecfidera’s revenue growth depended on three factors: (1) the number of patients recently diagnosed with MS who started their treatment on Tecfidera (“new starts”); (2) the number of patients who switched over to Tecfidera from other drugs; and (3) the growth of the MS drug market.

Biogen released its third-quarter 2014 financial results on October 22, 2014. The company reported total revenues of $2.51 billion, an increase of 3.7% from the previous quarter, as well as third-quarter revenue from Tecfidera alone of $787.1 million: a 12.4% increase from the previous quarter, but a lower growth rate than those of the previous four quarters (growth rates of 49.1%, 39.0%, 27.1%, and 38.5%, respectively). On the same date, Biogen held an earnings call to discuss the third-quarter report and announced, for the first time, that an MS patient had died of progressive multifocal leukoencephalopathy (the “PML death” or “PML incident”). The patient had taken Tecfidera for more than four years in a clinical study. At the time this information was released, Kingsley stated publicly that Tecfidera growth was “moderating].”

The FDA issued a warning to the public about the PML death on November 25, 2014, and Tecfidera’s label in the United States was updated to describe the risk of PML death on December 3, 2014, one day after the beginning of the Class Period. On December 2, 2014, the first day of the Class Period, Clancy told analysts that investors should be “mindful” of the fact that Tecfidera discontinuation rates (the rates at which patients discontinued use of Tecfidera) were higher than the company had hoped.

On January 29, 2015, Biogen issued full-year revenue guidance for 2015, in which it stated that it expected overall revenue growth of 14% to 16%. The initial amended complaint alleges that the “[defendants reiterated that Tecfidera performance remained strong and stated that they had not seen any meaningful change in discontinuation rates,” and that stock analysts accepted this characterization. At the time of this announcement, Kingsley also stated that there was a moderation in new Tecfid-era starts and cited, among other things, the updated label describing the PML incident. He then made similar remarks during a conference on February 25, 2015— that is, about halfway through the first quarter of 2015.

On April 24, 2015, Biogen released its first-quarter results for 2015, announcing Tecfidera revenue of $825 million, “below the market’s consensus estimates.” Scan-gos stated at that time that “Tecfidera had a more challenging quarter, due to a number of issues, including an overall slowing of the MS market, the recent launch of Plegridy, the single PML case reported last year, and some first-quarter financial dynamics.... ” He emphasized that “our long-term outlook for Tecfidera, and for our entire MS portfolio, remains strong.” From April to July, the defendants continued to express optimism about Tecfidera, stating that its performance had “stabilized” since the announcement of the PML incident and that data suggested positive “momentum.” At four analyst conferences in May 2015, Biogen executives noted that Tecfidera’s growth was slowing and. named the PML incident as one factor in that slowed growth.

On July 24, 2015, the day after the end of the Class Period, Biogen released its second-quarter earnings report. Biogen announced revenue of $883 million from Tecfidera, which was a 7.1% increase from the first quarter but less than the $916 million of Tecfidera revenue from the last quarter of 2014. Also that day, the company revised its 2015 revenue guidance, lowering its estimate of overall revenue growth from 14-16% to 6-8%. The decrease in the guidance was “based largely on revised expectations for the growth of Tecfidera.” Biogen’s stock fell over 20% in one day in response to the announcement.

Nearly two months after the end of the Class Period,, on September 18, 2015, Kingsley stated at a health care conference that “some kind of a downtick in the safety profile that would have some kind of an impact on physician behavior” had been expected in the wake of the PML incident, but that “we couldn’t tell,” and that the PML incident was “a pretty big change statement for a broad base of physicians.” [The plaintiffs characterize these as “evi-dentiary admissions.”] On October 9, 2015, Biogen announced that Kingsley was leaving the company. On October 21, 2015, Biogen announced cuts that would eliminate about 11% of its workforce.

II.

Nicole Tehrani filed the initial “bare-bones” complaint alleging securities fraud on August 18, 2015. After a status conference on November 17, 2015, the district court appointed GBR as the lead plaintiff and granted the plaintiffs an additional sixty days, as they requested, to file an amended complaint.

The plaintiffs filed their amended complaint on January 19, 2016. The amended complaint alleges claims under Section 10(b) of the Exchange Act and Rule 10b-5 thereunder (Counts I & II), and under Section 20(a) of the Exchange Act (Count III).

The amended complaint alleges that throughout the Class Period, the defendants knowingly misled the investing public by never “providing] any indication that the PML death had materially impacted Tecfidera sales, or caused physicians to stop prescribing Tecfidera or [to] switch patients onto other therapies out of safety concerns.” The complaint specifies over twenty allegedly misleading statements that the defendants made across ten dates during the Class Period.

As proof that the statements were misleading and made with scienter, the complaint makes several other allegations, many of which are based on statements from ten confidential witnesses (“CWs”). The confidential witness statements purportedly establish that Biogen experienced a significant decline in Tecfidera sales following the announcement of the PML incident and throughout the Class Period. The confidential witness statements also describe corporate events and policy changes that purportedly establish the defendants’ private acknowledgment of this decline in Tecfidera sales and its connection to the PML death.

The complaint farther alleges that Tecfidera was Biogen’s core product and that the defendants had access to sales data and physician feedback following the PML death. It alleges that Kingsley, due to his proximity to the sales team, would have been aware of the significant impact the PML death had on Tecfidera sales. Finally, it alleges that Scangos and Clancy had motive and opportunity to make false statements concerning Tecfidera sales because they had personal bonus targets based on revenue growth, which in turn depended on Tecfidera sales.

The defendants moved to dismiss the complaint with prejudice. The plaintiffs conceded in their opposition to the motion to dismiss that Count II should be dismissed.

The district court granted the motion to dismiss in a careful and thoughtful opinion filed on June 23, 2016. Biogen, 193 F.Supp.3d at 12-13. Drawing all reasonable inferences in favor of the plaintiffs, the court determined that, of the more than twenty statements alleged to be material misstatements or omissions, three were plausibly misleading or false. Id. at 42-43. But the court found that, although the complaint’s allegations, including the statements from the confidential witnesses, gave rise to a plausible inference of scien-ter, they did not give rise to the strong one required by the PSLRA. Id. at 45. Moreover, the court found that the record gave rise to compelling inferences in the defendants’ favor. Id. at 51-54.

The district court dismissed Count I’s allegations under Section 10(b) with prejudice on June 23, 2016. Id. at 54. Given that the plaintiffs had not adequately pled an underlying violation of the Exchange Act, the district court also dismissed Count Ill’s allegations under Section 20(a) with prejudice. Id. at 54-55.

On July 21, 2016, the plaintiffs filed a proposed second amended complaint and moved under Federal Rules of Civil Procedure 59(e) and 60(b)(2) to vacate the dismissal based on newly discovered scienter evidence. The court found that the new evidence could have been discovered earlier with the exercise of reasonable diligence and denied the plaintiffs the “extraordinary” relief requested under Rules 59(e) and 60(b)(2). GBR’s timely appeal followed.

III.

A. Allowance of Motion to Dismiss the Initial Amended Complaint

GBR argues that the district court erred by dismissing its claims under Sections 10(b) and 20(a) of the Exchange Act. In particular, GBR contends that the district court wrongly held that two statements specified in the complaint were inadequately pled as misleading and that the complaint failed to give rise to a strong inference of scienter. We disagree. Our review is de novo. See ACA Fin. Guar. Corp. v. Advest, Inc., 512 F.3d 46, 58 (1st Cir. 2008).

Plaintiffs alleging violations of Section 10(b) must plead (1) a material misrepresentation or omission; (2) scien-ter; (3) a connection with the purchase or sale of a security; (4) reliance; (5) economic loss; and (6) loss causation. Fire & Police Pension Ass’n of Colo. v. Abiomed, Inc. (Fire & Police Pension), 778 F.3d 228, 240 (1st Cir. 2015). A complaint alleging a violation of Section 10(b) must also meet the heightened pleading standards of the PSLRA, which requires that the complaint “specify each statement alleged to have been misleading” as well as “the reason or reasons why the statement is misleading.” 15 U.S.C. § 78u-4(b)(1).

As to scienter, the PSLRA requires that a complaint allege specific facts giving rise to a “strong inference,” id. § 78u-4(b)(2)(A), either of “intentional or willful conduct designed to deceive or defraud investors by controlling or artificially affecting the price of securities,” City of Dearborn Heights Act 345 Police & Fire Ret. Sys. v. Waters Corp., 632 F.3d 751, 757 (1st Cir. 2011) (quoting Ernst & Ernst v. Hochfelder, 425 U.S. 185, 199, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976)), or of “a high degree of recklessness,” id. (quoting Aldridge v. A.T. Cross Corp., 284 F.3d 72, 82 (1st Cir. 2002)). “Recklessness, as used in this context, ‘does not include ordinary negligence, but is closer to being a lesser form of intent.’” Fire & Police Pension, 778 F.3d at 240 (quoting Greebel v. FTP Software, Inc., 194 F.3d 185, 188 (1st Cir. 1999)). For an inference of scienter to be strong, “a reasonable person would [have to] deem [it] cogent and at least as compelling as any opposing inference one could draw from the facts alleged.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 324, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007).

The complaint fails to meet this rigorous standard. The confidential witness statements are insufficiently particular, do not make misleading the defendants’ public disclosures, and do not speak with specificity as to why the defendants’ alleged misstatements were untrue or misleading. Likewise, the complaint’s “core operations” allegations are consistent with the defendants’ statements to investors. And the most cogent inferences from the record favor the defendants.

1. Confidential Witness Statements and “Evidentiary Admissions”

The complaint’s allegations as to scienter rest substantially on the confidential witness statements and on the core operations allegations. The statements, very often made about events occurring after the defendants’ statements at issue, are so lacking in connecting detail that they cannot give rise to a strong inference of scienter. At bottom, the majority of the confidential witness statements say merely that Biogen sales regions experienced a serious decline in Tecfidera sales after the PML incident and after the purportedly misleading statements were made, that corporate changes were discussed at company events in relation to the PML incident, and that the company changed the sales goals of at least some employees.

The statements do not even begin to quantify the magnitude of the sales decline at the company level. They do not explain with any precision whether the sales decline resulted from higher discontinuations, fewer new starts, changes in the market, or some combination of these factors. Nor do they purport to contradict any of the financial information released by Biogen in its quarterly and yearly reports during the Class Period.

Indeed, the confidential witness statements are consistent with the defendants’ public disclosures. See In re Genzyme Corp. Sec. Litig., 754 F.3d 31, 42-43 (1st Cir. 2014) (noting that prompt disclosures by corporate defendants “undercut any inference of fraudulent intent”); Auto. Indus. Pension Tr. Fund v. Textron Inc., 682 F.3d 34, 40 (1st Cir. 2012) (declining to find a strong inference of scienter where confidential witness allegations and defendants’ public statements were “not in conflict”). As the district court observed, the “defendants were cautious in projecting Tecfid-era’s growth, and they repeatedly warned investors about the downside risks, including moderating growth and the PML label change.” Biogen, 193 F.Supp.3d at 51-52. The defendants made such warnings on the first day of the Class Period and continued to make them throughout. See Fire & Police Pension, 778 F.3d at 243 (“The argument is undercut by the fact that [defendant] explicitly warned investors.... ”).

We emphasize that there is a significant timing problem. The later confidential witness statements do not go to how the defendants’ statements, which were earlier, were knowingly or recklessly misleading at the time they were made. The three statements found plausibly misleading by the district court concerned Tecfidera discontinuation rates and were made in January and February 2015. The confidential witness statements concerning drops in Tecfidera sales after these months do not address what the defendants knew about discontinuation rates at the time they spoke to the public. And none of the earlier confidential witness statements go specifically to what the defendants knew at the time they made those three statements.

One example suffices. Two of the statements that the district court found to be plausibly misleading were Kingsley’s remark at a January 29, 2015 health care conference that the company had not seen a “meaningful change in [Tecfidera] discontinuation rates,” and his remark at a February 25, 2015 health care conference that discontinuation rates were “consistent with historical averages.” Clancy had told investors on December 2, 2014, the first day of the Class Period, that investors should be “mindful” of the fact that Tecfid-era’s discontinuation rates were “tracking in the teens,” higher than the company had hoped. So scienter allegations would have to suggest strongly that between Clancy’s statement on December 2, 2014 and Kingsley’s statements in January and February, Kingsley came into possession of information that the Tecfidera discontinuation rates had risen above the teens and were clearly inconsistent with historical averages. The confidential witness statements provide no such particularized allegations.

As in Fire & Police Pension, confidential witness statements are “not described with sufficient particularity,” 778 F.3d at 245, to give rise to a strong inference of scienter as to’ senior management if none of the witnesses were senior managers and they had little contact with such managers. The statements here fail to give rise to a strong inference of scienter because they lack “specific descriptions of the precise means through which [the defendants’ alleged fraud] occurred.” In re: Cabletron Sys., Inc., 311 F.3d 11, 30 (1st Cir. 2002); see also Brennan v. Zafgen, Inc., 853 F.3d 606, 614-615 (1st Cir. 2017) (news articles insufficient for scienter because they did not “support ... the complaint’s allegation that the defendants knew, or were reckless in not knowing, that they risked misleading investors” and they had no particularized connection to the defendants).

Likewise, the various “evidentiary admissions” GBR points to as indicative of scienter all involve statements made by the defendants, well after the end of the Class Period, that do not provide particularized insight into the defendants’ knowledge at the time of the alleged misstatements. See In re: Ariad Pharm., Inc. Sec. Litig., 842 F.3d 744, 751 (1st Cir. 2016) (finding no strong inference of scienter where complaint failed to plead “any specific facts about when the defendants learned of the[] adverse events or even when the adverse events occurred”). The use of these statements amounts to little more than pleading fraud by hindsight. See Miss. Pub. Emps.’ Ret. Sys. v. Bos. Sri. Corp., 523 F.3d 75, 90 (1st Cir. 2008) (“Fraud by hindsight refers to allegations that assert no more than that because something eventually went wrong, defendants must have known about the problem earlier.”); M. Gulati et al., Fraud by Hindsight, 98 Nw. U. L. Rev. 773, 787 (2004) (discussing hindsight bias).

2. “Core Operations” Allegations

GBR claims that the district court wrongly discounted the amended complaint’s “core operations” allegations because there was no “smoking gun” or “plus factor,” and argues that to impose such a requirement runs afoul of the Supreme Court’s guidance in Tellabs.

We need not resolve the standard by which “core operations” allegations may give rise to a strong inference of scienter, because the allegations here clearly fall short. The allegations are inapt because the evidence does not establish that, at the time the challenged statements were made, there existed reasonably accessible data within the company materially contradicting those statements.

The defendants’ compensation structure and stock holdings also weaken any inference of scienter. As the complaint says, Scangos’s and Clancy’s compensation was keyed in part to revenue growth. But the complaint never alleges that there was any misreporting of revenue. Further, the individual defendants increased their stock holdings in Biogen during the Class Period, and the defendants in fact suffered losses as a result of Biogen’s decline in stock price. This too cuts against scienter. See Fire & Police Pension, 778 F.3d at 246 (finding that an increase in stock holdings during the Class Period on the part of a defendant “negate[d] any inference that he had a motive to artificially inflate [the company’s] stock during that period”); Maldonado v. Dominguez, 137 F.3d 1, 12 n.9 (1st Cir. 1998) (defendants’ personal losses cut against inference of scienter); cfi Brennan, 853 F.3d at 615 (finding insider trading allegations of only “marginal” benefit because the corporate “insiders [had] kept the vast majority of their [stock] holdings”).

Ultimately, the scienter analysis involves evaluating the complaint as a whole, including “plausible opposing inferences.” Tellabs, 551 U.S. at 323, 127 S.Ct. 2499. Here, we agree with the district court that the strongest inferences are in favor of the defendants. See Brennan, 853 F.3d at 618 (“[T]he facts alleged in the complaint at the very least support a strong competing inference that the defendants disclosed what they considered to be, at the time, the most relevant information .... ”).

3. Section 20(a) Claim

Given that the Section 10(b) claim fails, GBR’s Section 20(a) claim necessarily fails as well, because GBR has not stated an underlying violation of the Exchange Act. See ACA Fin. Guar. Corp., 512 F.3d at 67-68.

B. Denial of Motion to Vacate and for Leave to File Second Amended Complaint

GBR argues that the district court erred by not granting its motion to vacate the judgment and for leave to file a second amended complaint. It insists it was put in an impossible situation. GBR claims that it diligently secured new evidence and that it could not have done so earlier. [The district court found to the contrary]. GBR argues that the obligations of Federal Rule of Civil Procedure 11—which requires parties to “certif[y] that to the best of [their] knowledge, information, and belief, formed after an inquiry reasonable under the circumstances ... the factual contentions [in the motion] have evidentiary support,” Fed. R. Civ. P. 11(b)—precluded the plaintiffs from raising this new information until they had completed an ethics review of the new materials and completely vetted the allegations. GBR argues that the district court did not properly evaluate the timeline in which the plaintiffs could reasonably secure and vet this new evidence in compliance with Rule 11 before moving for leave to amend the complaint. The argument fails.

“We review a district court’s decision to grant or deny a motion for reconsideration under Rules 59(e) and 60(b) of the Federal Rules of Civil Procedure for manifest abuse of discretion.” Ruiz Rivera v. Pfizer Pharm., LLC, 521 F.3d 76, 81 (1st Cir. 2008). There was no abuse of discretion at all in denying the motion. GBR has not shown either that the purportedly new evidence would have made a difference to the district court’s decision whether to grant the motion to dismiss or that the plaintiffs could not have gotten the evidence earlier. GBR’s argument that the district court abused its discretion by failing to account for the time needed for the plaintiffs to comply with Rule 11 is misplaced.

The new evidence consisted of allegations from two additional confidential witnesses, CW 11 and CW 12, and a sworn declaration by Dr. Ben Thrower, Medical Director of the Shepherd Center Multiple Sclerosis Institute in Atlanta.

Dr. Thrower’s declaration states that the Shepherd Center determined “in approximately August 2014 that Tecfidera compromised patients’ immune systems (as was reinforced by the PML death announced on October 22, 2014),” and that the Center immediately “completely stopped prescribing Tecfidera for MS patients” and “discontinued at least half of the 400 patients taking Tecfidera.” As counsel for GBR conceded at oral argument, Dr. Thrower does not say that the Shepherd Center took its actions in response to the PML incident. His statement merely alleges that the Shepherd Center stopped prescribing Tecfidera and took many patients off the drug around August 2014, which was well before the PML incident and the start of the Class Period. There can be no abuse of discretion in denying the motion, and GBR’s Rule 11 argument does nothing to address this.

The district court also acted well within its discretion by denying the motion because the plaintiffs could have presented the evidence earlier. It is undisputed that the plaintiffs were aware of all three of the new sources they now identify before the district court entered its order of dismissal. And GBR does not offer a “cogent reason” for why it could not have obtained information about Tecfidera discontinuations from medical institutions sooner. Fisher v. Kadant, Inc., 589 F.3d 505, 513 (1st Cir. 2009). Without showing that the plaintiffs could not in the exercise of reasonable diligence have obtained this new evidence earlier, GBR’s argument that the district court abused its discretion by failing to account for the time the plaintiffs needed to vet the evidence to meet their Rule 11 obligations has no force.

The district court did not err in denying the second motion to amend, which was filed post-dismissal. It commented that the plaintiffs could have alerted the court to their intentions earlier, but did not. Here, the district court gave the plaintiffs the full time they requested in order to file the initial amendment and allowed that amended complaint, and the plaintiffs had the motion to dismiss in hand for nearly four months before the district court ruled. As we have said before, under circumstances like these, we wish to discourage any expectation that there will be “leisurely repeated bites at the apple.” ACA Fin. Guar. Corp., 512 F.3d at 57.

IV.

Affirmed. Costs are awarded to the defendants.

      . For example, CW 2 alleges that during a November 2014 Biogen town hall meeting, Scangos gave a presentation stating that “the overall sense of the trajectory [at Biogen] was changing," and that another speaker talked of “potential organizational changes,” which CW 2 understood to come from "executive management's expectation that the PML death would have ‘an impact on performance.’ ” CW 1 and CW 3 reported attending a March 2015 national sales meeting at which the PML incident was described as a "market event.” "[S]peakers at the meeting stated that sales would need to pick up again if [Biogen] was going to meet expected 14-16% revenue growth [forecast publically in January]” and unidentified "senior Biogen leaders at the meeting acknowledged that the PML death definitely was impacting Tecfidera sales.”

      . These three statements, all made in the first quarter of 2015, were:
      «Kingsley on the January 29, 2015 earnings call: "Importantly, we have not noticed a meaningful change in [Tecfidera] discontinuation rates.”
      • Kingsley on the same earnings call: “[T]he lack of any meaningful change that we see—or we believe we’re seeing—in the discontinuation] rate is encouraging, because it doesn't suggest there’s such a change in the profile that people are anxious to pull patients out, but on the contrary.”
      • Kingsley at the February 25, 2015 health care conference: "We have not seen any change in the discontinuation rate. There is a natural discontinuation rate for a product like Tecfidera in terms of tolerability and other things. You’d obviously get very concerned if you saw a spike in the discontinuation rate. No evidence of that.... [The discontinuation rate has] been consistent with—I mean, we look at it relative to the growth of the product. There’s nothing that’s a signal that says it's not consistent with historical averages.”
      Id. at 42-43.

      . The district court noted that the plaintiffs had requested, on the final page of their opposition to the motion to dismiss, that they be given leave to amend their complaint if the motion to dismiss were granted. IA at 55. The court refused, noting that the plaintiffs had had over five more months after the filing of the initial complaint to investigate and that the plaintiffs had not moved for leave to amend either after the filing of the motion to dismiss or after the motion hearing, during which the court had expressed skepticism about the complaint’s viability. LI

      . GBR argues that the district court improperly rejected the following two statements by defendants specified in the complaint: Kings-ley’s statement on April 24, 2015, that “internal market research” suggested that physician intent to prescribe Tecfidera was improving; and a May 13, 2015 statement by Doug Williams (Biogen's Executive Vice President of Research & Development) that "survey work” showed that "physicians have kind of digested” the PML death and that physician "perspective about the safety profile of the drug” was "back to where it was before the PML event.” We agree with the district court that there were no allegations supporting any inference that these statements were misleading. But even assuming GBR were correct, the complaint would still fail to meet the PSLRA’s requirements as to scienter.

      . GBR's own briefing only confirms this point. In its argument that the confidential witness statements are sufficiently particularized to give rise to a strong inference of scienter, GBR writes “the seven former [Area Business Managers] indicate that sales 'dropped steeply and immediately,’ [that] there was a 'large drop in new prescription sales,’ that 'sales dropped dramatically’ and 'appreciably,' [and] that there was a 'big slowdown’ in market expansion and a 'serious downturn’ in new prescriptions.”

      . Similarly, the internal meetings and policy changes described by the confidential witness statements do not make up for the complaint’s deficiencies. Scangos's statement at the November 2014 town hall meeting that the “trajectory” of the company was changing has no content about that change or its connection to the PML incident. Likewise, the presentation at the November 2014 meeting that suggested there may be "organizational changes” and that the PML death had an "impact” on sales does nothing to show that the defendants’ public statements were made with any knowledge of falsity.
      The statements by unidentified "senior Biogen leaders” at the March 2015 national sales meeting that the PML event "definitely was impacting sales” and that the PML death was a "market event” are no more concrete, and, coming as they do in the middle of the Class Period, they shed no light on the alleged misrepresentations that occurred before March 2015. The confidential witness statements about lowered sales goals are not connected to the defendants.

      . It is true that CW 10 served as an executive assistant in Biogen's "program leadership and management team,” and had responsibilities including supporting Uthra Sundaram, the Tecfidera program director. Sundaram was a "dotted line” report to Scangos. According to CW 10, "Biogen’s sales and commercial teams monitored sales numbers through various reports” after the PML incident and the company “reached out to the top prescribing doctors as well as big pharmaceutical companies such as CVS Caremark and Walgreens.” CW 10 further asserted that the company’s commercial team performed "deep drill downs” into sales data, and that Sundaram accompanied Biogen medical-science liaisons on "ride-alongs” to meet doctors and "discuss the PML death.” CW 10 said that the Tecfidera team met weekly to discuss sales data and the effect of the PML death on sales, and that Sundaram regularly communicated with Scangos and senior management following that meeting.
      But although CW 10’s information has a tighter connection to the defendants, it still lacks the necessary particularity. And nothing about CW 10’s statements contradicts the company’s public position or gives further context to the alleged misstatements. The fact that the company’s Tecfidera team was actively monitoring sales in the wake of the PML incident and reported findings to senior management is unremarkable. It comports with the defendants' public statements, which repeatedly returned to the PML incident as one factor impacting Tecfidera’s performance.

      . CW 12, a former Biogen Area Business Manager in Atlanta, alleges that Biogen was aware of the Center’s decision.

      . The information from CW 11, a former Biogen Senior Territory Business Manager in Pennsylvania, is also inadequate. CW ll's information does not quantify the impact of the PML incident on Tecfidera sales nationally, it has no particularized connection to the defendants, and it does not contradict the defendants’ public positions.

      . See Fed. R. Civ. P. 60(b)(2) (court may relieve party from final judgment if party presents “newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b)”); Emmanuel v. Int'l Bhd. of Teamsters, Local Union No. 25, 426 F.3d 416, 422 (1st Cir. 2005) (Rule 59(e) motions on the basis of new evidence succeed only when evidence could not "have been presented earlier” “in the exercise of due diligence”).


source: Caselaw Access Project

author: THOMPSON, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Samuel Lasalle GONZÁLEZ, Defendant, Appellant.
    No. 15-1619
    United States Court of Appeals, First Circuit.
    May 15, 2017

      Alejandra Bird López for appellant.
    Julia M. Meconiates, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.
    Before HOWARD, Chief Judge, THOMPSON, and DYK, Circuit Judges.

       Of the Federal Circuit, sitting By designation.

   THOMPSON, Circuit Judge.

Samuel Lasalle González (“Lasalle”) pled guilty to being a felon in possession of a firearm with an agreed sentencing range of thirty to thirty-seven months. But after the district court tallied all the points for what Lasalle did with that firearm—burgling a house then shooting a police officer as he tried to flee the scene—the court landed on a sentence of ten years, the statutory maximum. Lasalle calls foul, claiming the offense-level increases are invalid, his sentence is unreasonable, and his lawyer should have told him to back out of the deal. Finding only smoke but no fire to his claims, we affirm.

BACKGROUND

On October 15, 2014, a grand jury charged Lasalle, a convicted felon, with knowingly and illegally possessing a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and he pled guilty to the charge shortly thereafter. So, we draw these facts from his plea agreement, the undisputed sections of the presentehce investigation report (“PSR”), and the transcripts of his change-of-plea and sentencing hearings. United States v. Rivera-González, 776 F.3d 45, 47 (1st Cir. 2015). Here’s what happened.

According to the plea agreement’s Stipulation of Facts —these are facts that La-salle agrees the government could prove beyond a reasonable doubt at trial—on October 8, 2014, two police officers responded to a call that a “suspicious unknown male” (who turned out to be La-salle) was walking through the caller’s backyard. When Lasalle saw the officers, he ran and the officers gave chase in different directions. One of the officers yelled, “Police, do not move.” The second officer heard four or five gunshots, then found his patrol partner lying on the ground wounded. When he saw Lasalle approaching from the woods, the second officer commanded Lasalle to stop; when Lasalle ignored the command and continued to approach, the second officer shot Lasalle in the leg. Both the wounded officer and Lasalle were hospitalized.

The PSR tells a more colorful tale. “Based on the Reports of Investigation and all other available information,” some of the gunshots the second officer heard came from Lasalle’s illegally-possessed firearm: he stopped when the first officer told him to, but rather than surrender his gun, Lasalle shot the officer in the jaw and again in the torso. Hours later, in an interview with a police officer at the hospital, Lasalle said that he found the gun (a revolver that police later discovered was stolen back in January 2014) on the side of the road; admitted that he broke into a house that night and stole some jewelry and frozen chicken because he was hungry and had no money; and admitted that he exchanged fire with the officers. (We note here that at the change-of-plea hearing, the government confirmed that the wounded officer would testify that it was Lasalle who shot him.) Although the only charge before the federal grand jury was illegally possessing the gun, Lasalle was charged in a Puerto Rico state court with attempted murder and aggravated burglary, among other crimes stemming from the events of that night. Lasalle’s lawyer reports that sometime after the change of plea hearing but before his federal-court sentencing, Lasalle pled guilty to aggravated assault in the state court. The specifics of the resolution of the Puerto Rico charges are unknown, but Lasalle received a ten-year sentence.

Now, in the plea agreement, the parties calculated that Lasalle’s total offense level was seventeen, and recommended the court sentence Lasalle to thirty months in prison—a figure at the bottom of the proposed Guidelines sentencing range of thirty to thirty-seven months. The PSR calculated a significantly higher sentencing range after bumping up his offense level by twelve: (1) two more levels because the firearm was stolen, (2) four more levels because Lasalle possessed the gun in connection with another felony, and (3) six more levels because Lasalle injured a law enforcement officer in connection with the offense. All told, Lasalle’s range was 108 to 135 months, though the PSR reduced the upper boundary of that range to 120 months because that is the statutory maximum sentence for the offense. See 18 U.S.C. § 924(a)(2); U.S. Sentencing Guidelines Manual § 5Gl.l(c)(l) (U.S. Sentencing Comm’n 2014) [hereinafter “U.S.S.G.”].

Lasalle objected to the PSR’s Guidelines calculations on essentially the same grounds he raises before us today (with a couple of notable exceptions that we will get to below), claiming the offense-level increases are invalid and their application violated his Sixth Amendment and due process rights. The judge reached the opposite conclusion. He then sentenced La-salle to ten years’ imprisonment, to be served concurrently with his ten-year state court sentence. This appeal followed.

ANALYSIS

Lasalle seeks safe harbor for an armada of arguments. He claims: (1) the offense-level increase for using a stolen firearm is invalid because it does not include an element of mens rea, (2) all of the offense-. level increases are invalid and violate his Sixth Amendment and due process rights because they are based on uncharged conduct not found by a jury or proven beyond a reasonable doubt, (3) the sentence is procedurally and substantively unreasonable, and (4) his attorney was ineffective for failing to advise him to back out of his plea agreement when it became clear that his sentence would far exceed the recommended range. Finding we cannot give Lasalle safe harbor, we torpedo each of his arguments in turn.

Mens Rea

On to Lasalle’s first claim. He argues that the Sentencing Guidelines’ § 2K2.1(b)(4) two-level increase for using a stolen firearm (what Lasalle calls the stolen-firearm enhancement) is invalid because it does not include an element of mens rea, meaning the court applied the offense-level increase even though the government never had to prove Lasalle knew his gun was stolen. (He claimed he found it on the side of the road.) Lasalle says this flaw invalidates the enhancement for three reasons: (1) it violates his due process ■rights, (2) it is contrary to the congressional intent expressed in the Gun Control Act of 1968, and (3) it is contrary to the purposes of the Sentencing Reform Act of 1984. These are legal arguments that we address de novo. See United States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013). We break down and knock down each argument in turn.

1) Due Process

We turn first to his lead argument—that without an element of mens rea, the application of the offense-level increase violated his Fifth Amendment due process rights. Lasalle couches this argument in more abstract language: “[T]hat an injury can amount to a crime only when inflicted by intention,” he points out, “is [a principle] as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.” Morissette v. United States, 342 U.S. 246, 250, 72 S.Ct. 240, 96 L.Ed. 288 (1952). But in the end it boils down to this: Due process protects the right to fair notice, meaning notice to an individual that his conduct does not conform to the law. See Staples v. United States, 511 U.S. 600, 615-16, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994); United States v. Ford, 821 F.3d 63, 70 (1st Cir. 2016). Generally, criminal statutes provide that notice by including an element of mens rea, and so a mens-rea-less statute can violate a defendant’s due process rights. Staples, 511 U.S. at 605-06, 114 S.Ct. 1793; Ford, 821 F.3d at 70. Lasalle says the same mens-rea reasoning applies to his Guidelines enhancement, so the mens-rea-less enhancement violates his due process rights, too.

The government does not address La-salle’s due process notice argument on his terms. Instead, it reasons that the offense-level increase is valid by process of elimination: the increase does not violate La-salle’s constitutional rights because it does not alter the minimum or maximum penalty for Lasalle’s crime, create a separate offense with a separate penalty, alter the burden of proof, or negate Lasalle’s presumption of innocence. See Alleyne v. United States, — U.S. -, 133 S.Ct. 2151, 2158, 186 L.Ed.2d 314 (2013); McMillan v. Pennsylvania, 477 U.S. 79, 87, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). So, the offense-level increase neither creates a separate crime, nor functions as an element of a crime. We take the government’s argument to mean that because the stolen-gun offense-level increase is “fundamentally distinct” from a crime, it is no different from any other factor a court may constitutionally consider in formulating a defendant’s sentence—mens-rea requirement or not. United States v. Murphy, 96 F.3d 846, 849 (6th Cir. 1996) (distinguishing Staples, finding mens-rea-less offense-level increase did not violate due process). Besides, says the government, every other circuit that has considered Lasalle’s due process notice argument has rejected it, and so it urges us to reject the argument, too. See United States v. Thomas, 628 F.3d 64, 69 (2d Cir. 2010); United States v. Mobley, 956 F.2d 450, 454 (3d Cir. 1992) (defendant’s due process argument is “constitutional wishful thinking”); United States v. Singleton, 946 F.2d 23, 26 (5th Cir. 1991); Murphy, 96 F.3d at 849; United States v. Schnell, 982 F.2d 216, 220 (7th Cir. 1992); United States v. Goodell, 990 F.2d 497, 499 (9th Cir. 1993); United States v. Richardson, 8 F.3d 769, 770 (11th Cir. 1993); see also United States v. Taylor, 659 F.3d 339, 343-44 (4th Cir. 2011) (stolen firearm offense-level increase not “inconsistent with federal law”).

Here’s our take. Lasalle argues that the same due process notice principles that apply to criminal statutes should apply to the Sentencing Guidelines’ enhancements, but he gives us no reason to believe the two are analogous. The closest thing to guiding authority he cites is Staples, 511 U.S. at 605, 114 S.Ct. 1793—a case about a criminal statute—where the Court read an element of mens rea into a statute to avoid a notice-based due process violation like the one Lasalle says he suffered here. The statute at issue in Staples prohibited the ownership of unregistered machineguns, but did not require the government to prove the defendant knew his gun was a machinegun to convict. Congress can omit an element of mens rea when it makes clear that’s what it intended to do, the Court reasoned, but the Staples statute was ambiguous on this point. And without an element of mens rea, the statute “would impose criminal sanctions on a class of persons whose mental state—ignorance of the characteristics of weapons in their possession[, that they were machineguns]— makes their actions entirely innocent.” Id. at 614-15, 114 S.Ct. 1793. So, without a mens-rea element, the defendant would not have notice that his actions would break the law, and importantly, would have no opportunity to conform his conduct to the law.

The problem for Lasalle is that the Staples rationale does not apply to the Sentencing Guidelines because the Guidelines are advisory. That means that no matter the defendant’s Guidelines range, “the sentencing court retains discretion to impose [an] enhanced [or reduced] sentence” within the statutory range set by the defendant’s crime of conviction. Beckles v. United States, — U.S. -, 137 S.Ct. 886, 894, 197 L.Ed.2d 145 (2017); see Singleton, 946 F.2d at 26. This Guidelines provision has no effect on that statutory sentencing range; it only guides the “sentencing court’s quest to formulate a proper sentence.” Murphy, 96 F.3d at 849 (quoting Singleton, 946 F.2d at 26):.The statute defining the crime limits the sentencing court’s discretion and provides “[a]ll of the notice required” by the due process clause. Beckles, 137 S.Ct. at 894.

That makes sense—after all, by the time the Guidelines appear on the horizon, the defendant has already been convicted of (or like Lasalle, pled guilty to) a crime that itself includes an element of mens rea. Indeed, “[c]riminal intent is an element of the crime of possession of a gun by a convicted felon, and this element was established by [Lasalle’s] guilty plea of knowing possession of the gun.” Singleton, 946 F.2d at 26 (emphasis omitted). So unlike a mens-rea-less criminal statute, “the Guidelines ‘may compound the punishment for the offense, but [they] fall far short of criminalizing apparently innocent conduct.’ ” United States v. Ray, 704 F.3d 1307, 1312 (10th Cir. 2013) (quoting United States v. Saavedra, 523 F.3d 1287, 1289 (10th Cir. 2008)); accord Murphy, 96 F.3d at 848-49. This is no novel conclusion: as the government correctly notes, every other circuit to consider this Guidelines sentencing enhancement agrees that the mens-rea-less increase applies without running afoul of a defendant’s constitutional rights.

One more thing. Even if we assumed that the Staples rationale applied to the Guideline, it would not help Lasalle because whereas the statute in Staples was ambiguous on its mens-rea requirement, the mens-rea requirement in the offense-level increase here was intentionally omitted. See Staples, 511 U.S. at 605, 114 S.Ct. 1793 (considering plain language of the statute first). According to its Application Note, the increase “applies regardless of whether the defendant knew or had reason to believe that the firearm was stolen.” U.S.S.G. § 2K2.1, cmt. 8(B). This commentary is “authoritative unless it violates the Constitution or a federal statute”—and as we explained above it does not violate the former, and as we explain below it does not violate the latter. United States v. LaBonte, 520 U.S. 751, 757, 117 S.Ct. 1673, 137 L.Ed.2d 1001 (1997) (citation omitted). The history of the Guideline itself confirms that the omission was intentional: it once applied only when the defendant “knew or had reason to believe” the firearm was stolen, but the requirement was eliminated in subsequent amendments. Goodell, 990 F.2d at 499 n.2 (noting that 1989 amendments eliminated scienter requirement from the Guideline’s text); accord Mobley, 956 F.2d at 452.

The stolen-firearm offense-level increase does not violate Lasalle’s due process rights.

2) The Gun Control Act

Undeterred, Lasalle floats his next argument about the stolen-firearm offense-level increase: without a mens-rea requirement, it is arbitrary and capricious because it is contrary to the congressional intent demonstrated in the Gun Control Act. Lasalle points out that the Act criminalized a slew of gun-related acts, and these crimes almost always include an element of mens rea. So, he says, the Act evidences a congressional policy requiring an element of mens rea in gun-related crimes. Indeed, even the Act’s stolen-firearm provisions, 18 U.S.C. § 922(i) and § 922(j), require the government to prove mens rea to convict. Because the Guidelines’ stolen-gun enhancement does not include an element of mens rea, Lasalle says it is contrary to Congress’ intent, and so it is invalid. The government, on the other hand, says that the mens-rea-less offense-level increase is “not inconsistent” with the intent behind the Gun Control Act because it advances Congress’ objective of controlling firearms. Schnell, 982 F.2d at 221. We think so, too.

The purpose of the Gun Control Act is to keep “firearms out of the hands of categories of potentially irresponsible persons, including convicted felons.” Barrett v. United States, 423 U.S. 212, 220, 96 S.Ct. 498, 46 L.Ed.2d 450 (1976); Mobley, 956 F.2d at 453. The Act imposes additional penalties to halt the trade of stolen guns, which, as the government points out, are more likely to be used to commit crimes and harder for police to trace. See 18 U.S.C. § 922(i), (j); Mobley, 956 F.2d at 454. Thus a defendant who has just been convicted of (or pled guilty to) a crime he committed using a stolen gun poses a “heightened danger,” and the stolen-firearm offense-level increase advances the Act’s purpose by imposing an additional penalty consistent with that danger. Mob-ley, 956 F.2d at 454; accord Schnell, 982 F.2d at 220. The offense-level increase is not contrary to the purpose of the Gun Control Act.

3) The Sentencing Reform Act

In his last argument about the stolen-gun offense-level increase, Lasalle reprises his arbitrary-and-capricious tune, but this time he says the enhancement is contrary to the purposes of a second federal statute—the Sentencing Reform Act. Under the Act, the Sentencing Commission must establish Guidelines that provide “fairness” in meeting the basic aims of sentencing: “(a) ‘just punishment’ (retribution), (b) deterrence, (c) incapacitation, [and] (d) rehabilitation.” Rita v. United States, 551 U.S. 338, 348, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) (citing 18 U.S.C. § 3553(a)); 28 U.S.C. § 991(b)(1)(B). La-salle claims the stolen-gun enhancement is not fair because it treats defendants who knew their guns were stolen the same as defendants like Lasalle who did not. And, he claims the enhancement does not meet any of the aims of the Act. Specifically, he says it does not meet the goal of deterrence because a defendant who does not know his gun was stolen cannot be deterred from using a stolen gun. (As to the^ other aims of sentencing, he doesn’t bother to develop his argument, so we don’t bother to address it. United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.”).) The government counters that there are good reasons for the offense-level increase—stolen guns are especially dangerous in the hands of criminals—so the increase is not arbitrary and capricious. Once again, we think the government has the better argument.

The offense-level increase is not arbitrary or contrary to the Act’s purpose of fairness in sentencing because it is related to the defendant’s culpability. See Mobley, 956 F.2d at 456. As we explained above, stolen firearms present special dangers, especially in the hands of convicted felons (like Lasalle) who cannot legally own any gun. “One, especially a convicted felon, is thus expected to exercise caution in the purchase of firearms and to inquire as to the gun’s origin. One can check easily whether or not a gun has been stolen, and the failure to do so reasonably may add to the purchaser’s punishment.” Id. The Sentencing Commission could reasonably conclude that a defendant in possession of a stolen gun is more culpable than a defendant in possession of a legitimate one.

And, contrary to Lasalle’s claims, we think the mens-rea-less application of the stolen-gun offense-level increase advances the deterrence component of the sentencing calculus. “[A]s criminals ... learn that [they may face a higher Guidelines range, and likely] additional punishment for possessing a stolen gun, regardless of whether they knew the gun was stolen, they will be further deterred from possessing any gun.” Thomas, 628 F.3d at 70 (emphasis omitted). The Guidelines provision is not contrary to the purposes of the Sentencing Reform Act.

To sum up, the application of the mens-rea-less stolen-gun offense-level increase did not violate Lasalle’s due process rights. And, the increase is not contrary to the purposes of the Gun Control Act or the Sentencing Reform Act, so it is not arbitrary or capricious. These arguments down, we move on to Lasalle’s next claim.

Relevant Conduct

Lasalle next takes aim at the application of all three of his Guidelines offense-level increases. (As a reminder, they are the stolen-firearm increase we just described, plus one for the use of a firearm in connection with another felony under U.S.S.G. § 2K2.1(b)(6), and another for injuring a police officer under U.S.S.G. § 3A1.2(c)(1).) He gives three reasons why the offensedevel increases are invalid, all stemming from the fact that the increases were based on conduct not charged in his indictment or included in the plea agreement: they (1) violate the purposes of the Sentencing Reform Act, (2) must be proven beyond a reasonable doubt, and (3) accounted for such a disproportionate part of his sentence that they violated his Sixth Amendment and due process rights. We consider all three legal arguments de novo, United States v. Doe, 741 F.3d 217, 235 (1st Cir. 2013), and reject each in turn.

1) The Sentencing Reform Act

Lasalle’s first argument—that the enhancements are contrary to the language and purpose of the Sentencing Reform Act—is another variation on a theme we just discussed above. According to La-salle, the Act requires the Guidelines to provide just punishment for “the offense,” meaning the offense of conviction (La-salle’s offense was being a felon in possession of a firearm). 18 U.S.C. § 3553(a)(1), (a)(2)(A). But, the so-called “relevant conduct” offense-level increases allow punishment for uncharged crimes that are different than the offense of conviction (in Lasalle’s case, using a stolen gun, using a gun in the commission of another felony, and injuring a police officer). So, he concludes, the relevant conduct enhancements are inconsistent with the plain language and the purpose of the Act: to appropriately punish only the substantive offense. For its part, the government argues that the relevant conduct offense-level increases punish a defendant “only for the fact that the present offense[, the offense of conviction,] was carried out in a manner that warrants increased punishment, not for a different offense (which that related conduct may or may not constitute).” Witte v. United States, 515 U.S. 389, 403, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995) (emphasis omitted).

Once again, we believe the government has the better argument. Indeed, we have previously rejected Lasalle’s claim that the relevant conduct provisions are contrary to the Guidelines’ history and purpose. United States v. Lombard, 72 F.3d 170, 176 (1st Cir. 1995). As we have explained, and reaffirm now, “[t]he Guidelines were not intended to discontinue the courts’ historical practice of considering the relevant circumstances of the defendant’s real conduct, whether those circumstances were specifically charged or not.” Id. Indeed, a sentencing court may consider relevant conduct that constitutes another offense, even if the defendant has been acquitted of that offense, so long as it can be proven by a preponderance of the evidence. Id.; United States v. Watts, 519 U.S. 148, 154, 167, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997) (Guidelines permit consideration of acquitted conduct consistent with the Sentencing Reform Act). The plain language of the Act likewise provides that a defendant’s sentence should reflect “the circumstances under which the offense was committed which mitigate or aggravate the seriousness of the offense.” 28 U.S.C. § 994(c)(2). That is what La-salle’s relevant conduct increases do. La-salle’s offense-level increases are not contrary to the plain language or the purpose of the Sentencing Reform Act.

2) Beyond a Reasonable Doubt Standard

As for his second argument about the relevant conduct offense-level increases—that they must be proven beyond a reasonable doubt—-we have already rejected this argument, too. Facts underlying Guidelines offense-level increases need only be proven by a preponderance of the evidence. United States v. Malouf, 466 F.3d 21, 26 (1st Cir. 2006). Lasalle says we must reconsider our position in light of Peugh v. United States, — U.S.-, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013). Peugh, 133 S.Ct. at 2088, holds that the retroactive application of revised Guidelines that results in a higher sentencing range violates the Ex Post Facto Clause and a defendant’s due process rights because it creates a “significant risk” of a higher sentence. Lasalle seizes onto the fact that, like the retroactive application of a higher Guidelines range, the application of Guidelines enhancements based on uncharged conduct also creates a “significant risk” of a higher sentence. So reasoning by analogy, Lasalle claims that Peugh means his due process rights were violated, too. The government disagrees, and so do we.

In Malouf, we found that due process and the Sixth Amendment are satisfied where sentencing facts are found by a preponderance of the evidence because “sentencing courts have always operated without constitutionally imposed burdens of proof’; only facts that change the statutory sentencing range or create a separate offense with a separate penalty must be proven beyond a reasonable doubt. 466 F.3d at 26-27 (quoting McMillan, 477 U.S. at 92 n.8, 106 S.Ct. 2411). Peugh does not undermine this holding. In fact, Peugh rejected the argument that its Ex Post Facto analysis had any bearing on “when a given finding of fact is required to make a defendant legally eligible for a more severe penalty,” the question at issue in Malouf. 133 S.Ct. at 2088. And post-Peugh developments in sentencing law show that the preponderance standard is still afloat. See, e.g., Alleyne, 133 S.Ct. at 2163 (holding, one week after Peugh, that facts that do not increase minimum or maximum punishment need not be found beyond a reasonable doubt). Peugh provides no reason at all for us to believe the Malouf panel would “change its collective mind,” so LaSalle’s ship is sunk. Malouf, 466 F.3d at 27 (quoting United States v. Guzmán, 419 F.3d 27, 31 (1st Cir. 2005)).

3) The Tail Which Wags the Dog

In his third argument, Lasalle claims the relevant conduct offense-level increases accounted for such a disproportionate part of his sentence that they overshadow the punishment for his crime and have become the “tail which wags the dog of the substantive offense.” McMillan, 477 U.S. at 88, 106 S.Ct. 2411. He urges us to reject what he calls the “narrow and formulaic” reading of Alleyne and Apprendi, under which only facts that change the statutory sentencing range are elements that must be proven beyond a reasonable doubt. Instead, he believes we should read these cases to mean that any enhancement for an uncharged or unconvicted crime that dramatically increases a defendant’s Guidelines range should be proven beyond a reasonable doubt. The facts underlying Lasalle’s offense-level increases were not so proven: the preponderance-found facts resulted in a significant increase in his sentence over what was recommended in the plea bargain, therefore Lasalle claims the offense-level increases violate his Sixth Amendment and due process rights. The government, for its part, emphasizes that Alleyne itself rejected the very argument Lasalle floats here: “broad sentencing discretion, informed by judicial factfinding,” the Court stressed, “does not violate the Sixth Amendment.” Alleyne, 133 S.Ct. at 2163.

Here’s what we think. At the outer limits, Guidelines offense-level increases based on uncharged crimes might violate a defendant’s Sixth Amendment and due process rights if the additional increases are responsible for such a disproportionate share of the sentence that they become the “tail which wags the dog of the substantive offense.” Lombard, 72 F.3d at 176 (quoting McMillan, 477 U.S. at 88, 106 S.Ct. 2411). But as far as we can tell, we have recognized this concern only once before, in Lombard, 72 F.8d at 175, and Lasalle has absolutely nothing in common with that defendant. The Lombard defendant was convicted of a firearms offense with no statutory maximum, and his relevant conduct was a murder. Although most relevant conduct provisions increase the base offense level, the Lombard Guideline required the court to calculate the base offense level “as if his offense of conviction had been murder.” Id. at 177 (emphasis in original). The result: instead of 262 to 327 months, the Guidelines dictated life in prison. What’s more, the district court thought it lacked the authority to impose anything less than a life sentence (remember, Lombard was decided before United States v. Booker, 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), made clear that the Guidelines are advisory). We found. U.S.S.G. § 5K2.0 permitted the district court to consider a downward departure in an “extraordinary case,” and the due process implications of the defendant’s life sentence under the circumstances made Lombard extraordinary, so we vacated the sentence and remanded the case so the district court could reconsider the defendant’s sentence. Lombard, 72 F.3d at 183-87. But we made clear that Lombard was “at the boundaries of constitutional sentencing law.” Id. at 187. Lombard warranted resentencing only because of the extraordinary confluence of factors that ratcheted up his Guidelines range, plus the district court’s failure to recognize that it could consider a downward departure from the constitutionally suspect range. “Absent [these] special circumstances ... no comparable concerns would be raised by cases involving even sizeable sentence increases based on ... uncharged or acquitted conduct.” Id. at 186-87.

Lasalle’s sentencing range was not determined by an extraordinary confluence of factors like we Saw in Lombard. La-salle’s base offense level was set by the crime he pled guilty to, being a felon in possession of a firearm. His offense-level increases only upped his base offense level; they did not displace his pled-to crime in the ■ calculations. U.S.S.G. §§ 2K2.1(b)(4)(A), 2K2.1(b)(6), 3A1.2(c)(1). Most critically, his crime came with a ten-year statutory maximum, and that is the sentence he received. Furthermore, unlike Lombard, Lasalle was sentenced long after Booker, and the district court recognized its discretion to sentence Lasalle outside of the Guidelines range. Lasalle’s situation does not compare—indeed he makes no effort to explain how he might be similarly-situated to Lombard—so Lombard helps Lasalle not one jot.

That leaves Lasalle’s now much-rehashed argument that we should expand our understanding of Alleyne and Appren-di to require a beyond-a-reasonable-doubt finding of facts that enhance the Guidelines range. Yet we have repeatedly considered and rejected this argument. United States v. Cox, 851 F.3d 113, 120 (1st Cir. 2017) (preponderance standard does not violate Fifth Amendment due process or Sixth Amendment rights); United States v. Ramírez-Negrón, 751 F.3d 42, 48 (1st Cir. 2014) (Alleyne-based argument that sentencing facts must be found beyond a reasonable doubt is “meritless”); Doe, 741 F.3d at 234 n.12 (defendant’s “tail which wags the dog” argument was foreclosed by Alleyne and Apprendi because judicial factfinding did not change statutory sentencing range). Alleyne and Appren-di do not require sentencing facts that do not change the statutory sentencing range to be found beyond a reasonable doubt.

To recap, the relevant conduct offense-level increases are not arbitrary or contrary to the purposes of the Sentencing Reform Act. And, neither Peugh nor La-salle’s take on Alleyne and Apprendi require the facts supporting relevant conduct offense-level increases to be found beyond a reasonable doubt. Lasalle’s relevant conduct offense-level increases did not violate his Sixth Amendment or due process rights. With that, we turn to his next argument.

Reasonableness of the Sentence

Lasalle takes his next pitch at the procedural and substantive reasonableness of his sentence. The district court committed procedural error, he says, because (1) the court erred in relying on the unreliable PSR to support the offense-level increases, and (2) the court inadequately explained its reasons for the sentence. He continues, his sentence is substantively unreasonable because it violates the parsimony principle, meaning it is greater than necessary to achieve the goals of sentencing. The government, for its part, takes the opposite position on each point. To do our job in assessing the reasonableness of a sentence, we check for procedural error first, and if none is found, we move on to substantive reasonableness. United States v. Politano, 522 F.3d 69, 72 (1st Cir. 2008).

1) Procedural Reasonableness

Lasalle first complains that the PSR was unreliable because its author did not identify the specific sources (the who-said-what) of the information relied on, opting instead to describe the sources as “Reports of Investigation and all other available information.” And if this allegedly unreliable PSR gets jettisoned, he says the enhancements—for using a stolen firearm, in .connection with another felony, and injuring a police officer—are not supported by a preponderance of the evidence. The government contends that the PSR— that is, the unobjected-to. PSR—was reliable enough to support the application of the offense-level increases. We agree. Keeping in mind that we generally review factual findings at sentencing for clear error, we espy none here. See Cox, 851 F.3d at 124; United States v. Occhiuto, 784 F.3d 862, 868 (1st Cir. 2015).

At sentencing, traditional rules of evidence do not apply and the court has broad discretion to consider any information that has “sufficient indicia of reliability to support its probable accuracy.” United States v. Brewster, 127 F.3d 22, 27 (1st Cir. 1997) (quoting U.S.S.G. § 6A1.3); accord United States v. Cintrón-Echautegui, 604 F.3d 1, 6 (1st Cir. 2010). “Generally, a PSR bears sufficient indicia of reliability to permit the district court to rely on it at sentencing.” United States v. Cyr, 337 F.3d 96, 100 (1st Cir. 2003) (citation omitted). The defendant bears the burden of disputing the PSR’s factual findings, and absent an objection “[ Supported by countervailing proof,” the district court usually may accept the findings in the PSR without further inquiry. Occhiuto, 784 F.3d at 868 (quoting Cyr, 337 F.3d at 100); see Fed. R. Crim. P. 32(i)(3)(A) (sentencing court “may accept any undisputed portion of the [PSR] as a finding of fact”); United States v. Morillo, 8 F.3d 864, 872-73 (1st Cir. 1993) (“A defendant who accepts the probation department’s configuration of the sentencing record without contesting the facts set forth in the [PSR] can scarcely be heard to complain when the sentencing court uses those facts in making its findings.”), superseded in part by rule, Fed. R. App. P. 4(b)(5), as recognized in United States v. Gonzalez-Rodriguez, 777 F.3d 37, 38 (1st Cir. 2015).

Against this backdrop, Lasalle’s claim founders. As we already noted, he did not lodge an objection “[]supported by countervailing proof’ (or otherwise object to the PSR’s reliability below), Occhiuto, 784 F.3d at 868, and we think Lasalle’s PSR bears sufficient indicia of reliability that the sentencing court was on solid ground in relying on it. Contrary to La-salle’s position, the use of the phrase “Reports of Investigation and all other available information” does not undercut the presumptive reliability of the PSR’s findings because the sources of most of the information in the report are obvious. Specifically, the PSR relies heavily on Lasalle’s morning-after confession to police at the hospital, where Lasalle admitted the following: he broke into a house after dusk, stole some jewelry and chicken, encountered police and “exchanged fire” with them, and was wounded in the right leg.

Moreover, although the PSR does not explicitly identify the injured officer as the source of the information that Lasalle was the shooter, it is apparent from that section of the PSR that the story was related by the injured officer, and when the sentencing court inquired, the government confirmed that the injured officer would testify to these facts. Plus, the PSR’s account is corroborated in large part by the statement of facts from the plea agreement, also summarized in the PSR, which explains that the police announced their presence and ordered Lasalle to stop, he did not, one of the police officers was shot, and the other shot Lasalle. The PSR also found that the same revolver Lasalle used that day, described in the police reports and the plea agreement, was stolen. We reiterate here that Lasalle did not object to the factual basis of any of these findings. Under these circumstances, the sentencing court was entitled to rely on the PSR. That means the court’s factual findings in support of Lasalle’s offense-level increases were not clearly erroneous.

In his second procedural reasonableness claim, Lasalle argues that the court inadequately explained its sentencing reasoning. The government urges us to draw the opposite conclusion. We review Lasalle’s unpreserved argument for plain error, meaning he must show “(1) that an error occurred (2) which was clear or obvious and which not only (3) affected the defendant’s substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings.” United States v. Vargas-García, 794 F.3d 162, 166 (1st Cir. 2015) (quoting United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)).

Upon review of the sentencing proceedings, we find no error, and certainly not one that was clear or obvious. A sentencing court must “state in open court the reasons for its imposition of the particular sentence.” 18 U.S.C. § 3553(c). But, “[i]t is clear beyond peradventure that the ... court need only identify the main factors behind its decision.” Vargas-García, 794 F.3d at 166 (citing United States v. Turbides-Leonardo, 468 F.3d 34, 40-41 (1st Cir. 2006)). It need not be “precise to the point of pedantry”—indeed, even a “skimpy” explanation will do—so long as “the record permits a reviewing court to identify both a discrete aspect of an offender’s conduct and a connection between that behavior and the aims of sentencing.” Id. (quoting United States v. Fernández-Cabrera, 625 F.3d 48, 54 (1st Cir. 2010)). That is what happened here. The sentencing court focused on “discrete aspect[s]” of Lasalle’s conduct—how the offense was committed, including the fact that he shot a police officer with the gun in his possession—as well as his extensive criminal history. The court touched on the importance of respect for the law, one of the aims of sentencing, in its explanation of reasons. See 18 U.S.C. § 3553(a)(2)(A). And in light of the court’s focus on how the offense was committed, it is also apparent to us from the transcript as a whole that it acted with a second aim of sentencing in mind: the need for the sentence to reflect the seriousness of Lasalle’s offense. See id. We see no error here-that claim also capsizes.

The sentencing court did not clearly err in relying on the PSR, and it did not commit an error (let alone a “clear or obvious” one) in explaining its sentencing rationale. So, we turn to Lasalle’s substantive reasonableness claim.

2) Substantive Reasonableness

Lasalle contends that his sentence was substantively unreasonable because it violates the parsimony principle, meaning it is longer than necessary to achieve the aims of sentencing. The government replies that the sentence is long enough, but not too much. We review La-salle’s substantive reasonableness claim for abuse of discretion, but find none. United States v. Ruiz-Huertas, 792 F.3d 223, 228 (1st Cir.), cert. denied, — U.S.-, 136 S.Ct. 258, 193 L.Ed.2d 191 (2015).

A sentence is substantively reasonable if the court gives a “plausible rationale” and reaches a “defensible result,” United States v. Diaz-Arroyo, 797 F.3d 125, 129 (1st Cir. 2015), cert. denied, — U.S. -, 136 S.Ct. 272, 193 L.Ed.2d 199 (2015), and here we find both. As to the sentencing court’s rationale, La-salle received a sentence within a properly calculated Guidelines range, so to prevail he “must adduce fairly powerful mitigating reasons and persuade us that the district court was unreasonable in balancing pros and cons.” United States v. Cortés-Medina, 819 F.3d 566, 572 (1st Cir.), cert. denied, — U.S. -, 137 S.Ct. 410, 196 L.Ed.2d 319 (2016) (quoting United States v. Clogston, 662 F.3d 588, 593 (1st Cir. 2011)). Lasalle has not. As we just explained, the sentencing court’s rationale was plausible. What’s more, the result reached here is defensible. A sentencing court must “impose a sentence sufficient, but. not greater than necessary” to achieve the goals of sentencing. 18 U.S.C. § 3553(a). But, “[i]n most cases, there is not a single appropriate sentence but, rather, a universe of reasonable sentences.” Rivera-González, 776 F.3d at 52. Under the totality of the circumstances, including the fact that Lasalle’s Guidelines range initially exceeded ten years but was reduced to the crime’s statutory maximum, we cannot say Lasalle’s sentence falls outside of that universe. The district court did not abuse its discretion. See, e.g., United States v. Vega-Salgado, 769 F.3d 100, 105 (1st Cir. 2014) (eight-and-a-half-year sentence for 18 U.S.C. § 922(g)(1) violation not unreasonable); United States v. Stebbins, 523 Fed.Appx. 1, 6 (1st Cir. 2013) (ten-year § 922(g) sentence not substantively unreasonable in light of higher Guidelines range, circumstances of offense, and recidivism); United States v. Taylor, 540 Fed.Appx. 16, 18 (1st Cir. 2013) (ten-year § 922(g) sentence not substantively unreasonable, despite being almost twice defendant’s Guidelines range, given criminal history and nature of offense).

Ineffective Assistance of Counsel

In his final plunge, Lasalle claims his counsel was ineffective because he failed to advise Lasalle to withdraw his guilty plea “while there was still an opportunity to do so” under Federal Rule of Criminal Procedure 11(d)(2), which allows for a plea to be withdrawn before the district court imposes its sentence. The argument goes like this: (1) Lasalle’s plea bargain recommended a sentencing range of thirty to thirty-seven months, but (2) he •■got the statutory maximum because the sentencing judge applied offense-level increases that were not included in the plea, so (3) he might have been better off at trial because he might have been acquitted, ergo (4) his attorney was ineffective for failing to tell him to ditch the plea and roll the dice.

We cannot resolve his ineffective-assistance-of-counsel claim now, however, because he did not press this fact-specific claim to the district court. “We have held with a regularity bordering on the monotonous that fact-specific claims of ineffective assistance cannot make their debut on direct review of criminal convictions, but, rather, must originally be presented to, and acted upon by, the trial court.” United States v. Ofray-Campos, 534 F.3d 1, 34 (1st Cir. 2008) (quoting United States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993)). That is so because “a trial judge is in the best position to evaluate the quality of legal representation in the first instance. Such an evaluation typically requires the resolution of factual issues as well as inquiries into other evidentiary matters that cannot effectively be handled for the first time by a court of appeals.” United States v. Costa, 890 F.2d 480, 483 (1st Cir. 1989). Here, for instance, the government points out that the district court advised Lasalle that the plea bargain range was not binding, so Lasalle could be sentenced to the statutory maximum. But Lasalle points to nothing in the record to show what his attorney said about that fact. He only says that, at the very least, his attorney should have taken a break during the sentencing proceedings to ask if Lasalle wanted to withdraw his plea, but his attorney did not. The absence of a break is not enough for us to tell whether his attorney’s performance fell below an objective standard of reasonableness. So, we dismiss his claim without prejudice to his right to raise it again later under 28 U.S.C. § 2255. See United States v. Jones, 778 F.3d 375, 390 (1st Cir. 2015).

CONCLUSION

Lasalle’s arguments do not persuade us to break from our precedents, nor do they persuade us that the law was incorrectly applied by the district court. So, we affirm Lasalle’s sentence, without prejudice to his right to raise his ineffective-assistanee-of-counsel claim in a collateral proceeding.

      . One more thing: Lasalle argues that by defending the district court's sentence here on appeal, the government is in breach of the plea agreement. But the plea agreement does not bar the government from defending an appeal, "[s]o this argument is a nonstarter.” United States v. Figueroa-Rivera, 665 Fed. Appx. 1, 3 n.3 (1st Cir. 2016).

      . Although we have not previously addressed the question at issue here, we have applied mens-rea-less offense-level increases in the past over similar arguments that we should not. See United States v. Evano, 553 F.3d 109, 112 (1st Cir. 2009) (rule of lenity does not require addition of mens-rea requirement to identity theft enhancement); United States v. Figuereo, 404 F.3d 537, 541 (1st Cir. 2005) (no plain error in applying mens-rea-less Guidelines offense-level increase for being found in the United States because it was not an element of the offense, and other circuits had found the increase constitutional).

      . Indeed, in the case of so-called “public welfare” or "regulatory” offenses, even "congressional silence concerning the mental element of the offense [may] be interpreted as dispensing with conventional mens rea requirements.” Staples, 511 U.S. at 607, 114 S.Ct. 1793. Where a statute regulates inherently dangerous objects—like hand grenades, narcotic drugs, or toxic waste—congressional silence on the element of mens rea is often understood to mean that the defendant should be on notice that his conduct is subject to regulation, and that Congress intended to put the burden on the defendant to figure out the nature and extent of that regulation. Id. In its kitchen-sink response to Lasalle's appeal, the government argues that the stolen-firearm Guidelines provision is also a "public welfare” regulatory measure. Of course, Staples itself was about a firearm (a machinegun, at that). And the Staples court expressly rejected the argument that a firearm is the type of inherently dangerous object that should put a defendant on notice that his possession of it would be subject to regulation. Id. at 609-612, 114 S.Ct. 1793 ("[G]uns generally can be owned in perfect innocence.”). So, even if the Staples reasoning applied to the Guidelines, we think this argument would be doomed.

      . Lasalle did object to the PSR below, but his challenges largely echo the constitutional challenges he presents before us, and indeed his counsel conceded at sentencing that his objections were "legal arguments about the application” of the offense-level increases, not the PSR’s factual recitation. The parties now dispute whether Lasalle’s objections below encompassed the point he raises on appeal. If they did not, we would review for plain error. See United States v. Dunbar, 553 F.3d 48, 64 (1st Cir. 2009). But despite their dispute, both parties assume the less-stringent clear error standard of review applies. So, we give La-salle the benefit of the doubt and review this claim for clear error.

      . The parties dispute whether Lasalle's objections below were adequate to preserve his substantive reasonableness claim. We review preserved substantive reasonableness claims for abuse of discretion. Ruiz-Huertas, 792 F.3d at 228. But if unpreserved, it is unclear whether abuse of discretion or the more stringent plain error standard applies. Id.; Diaz-Arroyo, 797 F.3d at 128. We need not decide that question today because Lasalle cannot prevail under either standard.

      . Lasalle also argues the sentence is substantively unreasonable for all of the reasons described above—in short, because it accounts for uncharged relevant conduct that was not described in the plea agreement. But as we have already explained, it was not error for the district court to apply the offense-level increases, which means they could be factored into the Guidelines range calculation. Discerning no other reason to further address these claims, we leave it at that. So, too, his claim that the parsimony principle is violated by the imposition of offense-level increases for conduct for which a sentence was imposed in state court. As we have repeatedly explained, it is not error for the district court to consider the circumstances of the offense. E.g., Cox, 851 F.3d at 121.


author: PER CURIAM.

text:
    UNITED STATES of America, Appellee, v. Eduardo BUENO-BELTRÁN, Defendant, Appellant.
    No. 15-2105
    United States Court of Appeals, First Circuit.
    May 15, 2017

      George F. Gormley, Boston, MA, Stephen Super, Orlando, FL, and George F. Gormley, P.C., on brief for appellant.
    Thomas F. Klumper, Assistant United States Attorney, Senior Appellate Counsel, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Rosa Emilia Rodríguez-Vé-lez, United States Attorney, on brief for appellee.
    Before HOWARD, Chief Judge, TORRUELLA and THOMPSON, Circuit Judges.
   PER CURIAM.

Defendant-Appellant Eduardo Bueno-Beltrán appeals from the district court’s revocation of his supervised release and imposition of a 24-month term of imprisonment. Because the district court did not abuse its discretion when it admitted hearsay evidence or err in finding that Bueno violated his supervised release terms, we affirm.

In 2014, Bueno, a citizen of the Dominican Republic, pled guilty to conspiracy to bring unauthorized aliens into the United States without going through an authorized port of entry, in violation of 8 U.S.C. § 1324(a)(1)(A)(i) and (v). He was sentenced to one year of imprisonment and three years of supervised release. Bueno was deported shortly thereafter. During Bueno’s period of supervised release, U.S. Coast Guard personnel interdicted his boat off the coast of the Dominican Republic. Bueno and two other Dominican citizens were aboard the vessel, which was allegedly en route to Puerto Rico. The officers attested that as they approached the boat, the three men began throwing bales overboard, and that when the officers boarded the boat, Bueno identified himself as its captain. Nine bales recovered from the water surrounding the boat field-tested positive for cocaine. Bueno was subsequently arrested and indicted for importing and conspiracy to import and possess, with intent to distribute, controlled substances on board a vessel subject to United States jurisdiction. See United States v. Bueno-Beltrán, No. 15-cr-00189-GAG (D.P.R. filed Mar. 18, 2015).

After being notified of the new charges against Bueno and holding a hearing, the district court revoked Bueno’s supervised release, finding four separate violations: 1) committing another federal, state, or local crime; 2) possessing, using, distributing or administering any controlled substance; 3) associating with any person engaged in criminal activity; and 4) returning to the United States after removal. The court imposed a 24-month term of imprisonment, to be served consecutively with any sentence that he would receive in the then-pending drug-importation case.

On appeal, Bueno challenges the district court’s admission of hearsay evidence in the form of two Coast Guard officers’ statements detailing what transpired when they approached and boarded Bueno’s vessel. Bueno contends that admitting these statements violated his Sixth Amendment right to confront the witnesses against him. See Crawford v. Washington, 541 U.S. 36, 68-69, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

We note at the outset that although “the Sixth Amendment forbids the introduction of an out-of-court testimonial statement unless the witness is unavailable and the defendant has previously had an opportunity to cross-examine her ... [this prohibition] does not apply to supervised release revocation proceedings.” United States v. Rondeau, 430 F.3d 44, 47 (1st Cir. 2005) (internal citation omitted). We also note that the Federal Rules of Evidence do not apply to revocation proceedings, see Fed. R. Evid. 1101(d)(3), and revocation proceedings “should be flexible enough to consider evidence including letter affidavits, and other material that would not be admissible in an adversary criminal trial.” See Rondeau, 430 F.3d at 47 (quoting Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)). Nonetheless, criminal defendants still have limited confrontation rights under Fed. R. Crim. P. 32.1 (b)(2)(C), which confers the right to “question any adverse witness unless the court determines that the interest of justice does not require the witness to appear.” Rondeau, 430 F.3d .at 48 (quoting Fed. R. Crim. P. 32.1(b)(2)(C)). This requires the court to balance the defendant’s right to confront the witnesses with the government’s good cause for denying confrontation. Id. A court should consider “the reliability of the hearsay testimony and the government’s reason for declining to produce the declarant.” Id. We review a district court’s decision to admit hearsay evidence under this rule for abuse of discretion. Id.

We conclude that the court did conduct this balancing test and acted within its discretion in finding that the hearsay testimony was reliable. First, the court noted that the details elucidated in the officers’ statements were “clearly, clearly, well defined.” See United States v. Marino, 833 F.3d 1, 6 (1st Cir. 2016) (finding hearsay evidence reliable when it was “packed with details”). Second, the statements were corroborated by photographs depicting Bueno at the stern of the boat, the bales recovered in the water around the boat, and images of the field-test results. See Rondeau, 430 F.3d at 48 (identifying corroboration as another indicator of reliability). As for cause, the fact that the officers were based in Miami, Florida, while the revocation, hearing was held in San Juan, Puerto Rico, provided sufficient reason for the court to excuse their absence. See Marino, 833 F.3d at 5 (“ ‘[Cjoncern ... with the difficulty and expense of procuring witnesses from perhaps thousands of miles away’ is a paradigmatic example of the type of situation that might call for the admission of hearsay evidence at a revocation proceeding.” (quoting Gagnon v. Scarpelli, 411 U.S. 778, 782 n.5, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973))). Thus, the district court did not abuse its discretion in admitting this hearsay testimony.

Bueno also challenges the court’s reliance on the field tests conducted on the bales, on the grounds that the tests were not “sufficiently reliable” to indicate that the substance was cocaine. In the main, the substance of his argument is that the field tests “cannot be used as prima facie evidence that [he] violated the terms of his supervised release.” We review this challenge—-which was not raised below—for plain error. See United States v. Millan-Isaac, 749 F.3d 57, 66 (1st Cir. 2014).

We spy no error, plain or otherwise, in the district court’s consideration of the field test results to support the finding that Bueno violated the terms of his supervised release. Such violations need only be proven by a preponderance of the evidence. See 18 U.S.C. § 3583(e)(3); United States v. Oquendo-Rivera, 586 F.3d 63, 66 (1st Cir. 2009). We review the evidence in the light most favorable to the government, remembering again that the Rules of Evidence do not apply, and that the hearing is in front of a judge, not a jury, while also noting that credibility is largely a matter for the finder of fact. Oquendo-Rivera, 586 F.3d at 67. Here, the government presented evidence of two separate field tests conducted on the bales, both indicating that the substance was cocaine. The experienced judge observed that, while such tests are not inherently admissible in a full-blown criminal trial, they are “very, very reliable.” Indeed, several Courts of Appeals have held that positive field test results, coupled with other evidence, have been sufficient to prove that a substance is a narcotic. See, e.g., United States v. Thompson, 633 Fed.Appx. 534, 537 (2d Cir. 2015); United States v. Crane, 599 Fed.Appx. 383, 384 (11th Cir. 2015); United States v. Ching Tang Lo, 447 F.3d 1212, 1222-23 (9th Cir. 2006). We see no reason to chart a different course in this type of proceeding. When considered with the statements indicating that the boat’s occupants threw the bales overboard upon the Coast Guard’s approach, the district court’s reliance, in part, on these field tests was not an error.

For the foregoing reasons, the district court’s revocation of Bueno’s supervised release and imposition of a 24-month sentence are affirmed.

      . Bueno also challenges his initial three-year term of supervised release, which was imposed in 2014. However, this claim is not properly before this Court, as it is untimely. See Fed. R. App. P. 4(b)(1)(A); Perez-Perez v. Popular Leasing Rental, Inc., 993 F.2d 281, 282 (1st Cir. 1993).

      . During the revocation hearing, Bueno also made a Confrontation Clause challenge to the admissibility of the field-test results, offered in the form of photos showing two separate tests conducted on the bales. However, he makes only a cursory reference to this argument on appeal and it is thus waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).