United States v. Ramirez-Negron , 751 F.3d 42 ( 2014 )


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  •           United States Court of Appeals
    For the First Circuit
    Nos. 10-1524, 11-1388
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    GEOVANNY RAMÍREZ-NEGRÓN, a/k/a Lambe; OBED ALVARADO-MERCED,
    Defendants, Appellants.
    APPEALS FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF PUERTO RICO
    [Hon. Daniel R. Domínguez, U.S. District Judge]
    Before
    Lynch, Chief Judge,
    Torruella and Selya, Circuit Judges.
    Rafael F. Castro Lang for appellant Geovanny Ramírez-Negrón.
    José Luis Novas Debien for appellant Obed Alvarado-Merced.
    Myriam Y. Fernández González, Assistant United States
    Attorney, with whom Thomas F. Klumper, Assistant United States
    Attorney, Rosa Emilia Rodriguez-Velez, United States Attorney, and
    Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
    Appellate Division, were on brief, for appellee.
    May 9, 2014
    LYNCH, Chief Judge.         Defendants Geovanny Ramírez-Negrón
    ("Ramírez") and Obed Alvarado-Merced ("Alvarado") were members of
    a large drug trafficking conspiracy.            Ramírez was a wholesaler of
    cocaine, which the drug trafficking organization would process into
    cocaine base (more commonly known as crack).                  Alvarado was a
    street-level seller. Both defendants were indicted, along with 109
    other members of the conspiracy; the two were charged with counts
    of aiding and abetting possession with intent to distribute at
    least one kilogram of heroin, five kilograms of cocaine, fifty
    grams of cocaine base, and one hundred kilograms of marijuana, all
    within 1000 feet of a public school, along with related conspiracy
    charges.   Both defendants pled guilty, agreed that the trial judge
    would   find   the   relevant   drug    quantities     for   sentencing,    and
    reserved the right to contest or appeal any drug quantities found.
    After detailed evidentiary hearings, the district court sentenced
    each to a Guidelines sentence: Ramírez to a term of 162 months'
    imprisonment (a downward departure of 100 months from the bottom of
    the Guidelines range), and Alvarado to a term of 132 months'
    imprisonment (within the Guidelines range).
    On appeal, Ramírez and Alvarado originally challenged the
    sufficiency    of    the   evidence   to     support   the   district   court's
    factfinding with respect to Guidelines considerations -- namely
    drug quantity and, for Ramírez only, leadership role.                   Ramírez
    argued that the factfinding as to drug quantity in his case
    -2-
    depended entirely on unreliable hearsay and thus violated his due
    process rights, and that there was insufficient evidence to support
    a leadership finding.        Alvarado argued that there was insufficient
    evidence to support the drug quantity finding.
    After we heard oral argument, the Supreme Court issued
    its decision in Alleyne v. United States, 
    133 S. Ct. 2151
    (2013).
    The parties submitted supplemental briefing on the impact, if any,
    of Alleyne, and both defendants argued that their sentences must be
    reversed    because       they   were   imposed       by    virtue      of   judicial
    factfinding    by     a   preponderance       of   the     evidence     as   to   drug
    quantities.    The defendants admit they did not raise this issue at
    trial or in their opening briefs on appeal.
    We affirm.       We hold that there was no Alleyne error at
    all because all elements of the defendants' crimes of conviction
    under 21 U.S.C. § 841(a)(1) and (b)(1)(C) were admitted as part of
    the guilty pleas and neither defendant was sentenced based on a
    mandatory   minimum       sentence.     We     also      reject   the    defendants'
    respective evidentiary challenges.
    I.
    For purposes of these sentencing appeals, we consider the
    facts   from    the       change-of-plea      colloquies,         the    presentence
    investigation reports (PSRs), and the transcripts of the sentencing
    hearings.     See United States v. Ihenacho, 
    716 F.3d 266
    , 269 (1st
    Cir. 2013).
    -3-
    The defendants belonged to a large drug trafficking ring
    that operated in Ponce and Juana Díaz, Puerto Rico, from at least
    2003.   The organization sold cocaine base, cocaine, heroin, and
    marijuana at several distribution points, including these: the
    Ernesto Ramos Antonini ("Pámpanos") Public Housing Project, El
    Tuque Ward, Rosaly Public Housing Project, and Salistral Ward in
    Ponce, as well as the Kennedy Public Housing Project in Juana Díaz.
    The Federal Bureau of Investigation (FBI) and other
    federal agencies, working with a division of the Puerto Rico Police
    Department (PRPD), investigated the drug ring between November 2007
    and June 2008.     PRPD Agent Carlos León Acosta ("León") and other
    officers interviewed cooperators, made arrests and drug seizures,
    and conducted surveillance.      The investigation covered all of the
    drug points, but most of the surveillance occurred at Pámpanos.
    While conducting that surveillance, the investigators, including
    Agent   León,    took   videos   of    the     organization's   activities,
    ultimately capturing footage of drug dealing on 78 different days
    at Pámpanos.
    The investigation ultimately produced evidence, including
    both the video footage and testimony from cooperating witnesses,
    that both defendants were participants in the drug ring.          Ramírez,
    also known as "Lambe," was in charge of the distribution of all of
    the narcotics sold at Salistral.            Ramírez was also identified as
    the wholesale supplier of cocaine for the entire organization by a
    -4-
    cooperating    witness   testifying   before   the   grand   jury;   that
    testimony was later admitted during Ramírez's sentencing hearing.
    At the later sentencing hearing, Agent León clarified that the
    cocaine Ramírez supplied was "cooked" into crack.            Agent León
    further explained that he had learned from a cooperating witness
    that Ramírez received all of the profits from the heroin sold at
    the Kennedy drug point.     Ramírez joined the conspiracy no later
    than 2005.
    Alvarado was identified as a street-level seller in the
    organization, dealing in crack, heroin, cocaine, and marijuana. He
    was seen at the distribution point at Pámpanos in surveillance
    videos on fifteen dates, and was filmed selling drugs on nine of
    those days.    Alvarado was involved in the conspiracy for at least
    85 days.
    On May 27, 2008, a grand jury indicted Ramírez and
    Alvarado, along with 109 other members of the conspiracy, on seven
    conspiracy and drug trafficking counts.        The indictment charged
    both with: conspiracy to possess with intent to distribute at least
    one kilogram of heroin, five kilograms of cocaine, fifty grams of
    cocaine base, and one hundred kilograms of marijuana, all within
    1000 feet of a public school (Count 1); aiding and abetting in the
    distribution of each of those drugs and quantities listed within
    1000 feet of a public school (Counts 2-5); and narcotics forfeiture
    (Count 7).     See 18 U.S.C. § 2; 21 U.S.C. §§ 841(a)(1), 846, 860,
    -5-
    853.   Ramírez, but not Alvarado, was also charged with conspiracy
    to possess firearms during a drug trafficking crime (Count 6). See
    18 U.S.C. § 924(o).
    Both defendants pled guilty to all charges but contested
    the drug quantities attributable to them.          Ramírez also contested
    the two-level sentencing enhancement for leadership role that the
    government sought.    The district court held extensive hearings for
    each defendant in the conspiracy to determine the drug quantity
    individually     attributable   to    each   for   sentencing    purposes,
    following United States v. Correy, 
    570 F.3d 373
    , 380, 382-84 (1st
    Cir. 2009), and to determine whether any role enhancements were
    justified.
    The evidentiary hearings for both defendants showed that
    the drug organization sold large quantities of its products.
    Proceedings in both cases focused on Pámpanos as the drug point for
    which the prosecution had the most available evidence.            Pámpanos
    operated 24 hours per day, with sellers working two twelve-hour
    shifts.   At least two sellers would work during each shift.           The
    drugs at Pámpanos and elsewhere were sold in individual baggies; a
    "package" consisted of 25 baggies.           During the course of the
    investigation at Pámpanos, agents seized a collection of 399
    baggies of crack.    From that seizure, the agents learned that each
    baggie contained approximately 0.2 grams of crack.              Thus, each
    package of 25 baggies contained approximately 5 grams of crack.
    -6-
    The drug ring primarily sold crack, but it also sold
    lesser amounts of heroin, cocaine, and marijuana, in that order.
    At the sentencing hearings, Agent León testified that he could not
    always tell during his surveillance whether a baggie contained
    crack or cocaine, but he could distinguish heroin and marijuana by
    their different packaging and appearance.     He further testified
    that, during an uninterrupted half-hour period of surveillance at
    Pámpanos, a seller had been observed making approximately 25 sales
    during a shift for which three sellers were active.   He noted that
    the drug points would sometimes make more sales than that, with
    surveillance videos showing a single seller making seven or eight
    transactions in just a few minutes, while at other times they would
    be less busy, with "short periods" of a few minutes passing between
    transactions.   Agent León explained that he corroborated the level
    of activity shown in this particular sample as relatively typical
    by comparing it to videos from other days and by confirming it with
    cooperators.
    Agent León testified that he then extrapolated in order
    to arrive at an estimate of total drug quantity. He explained that
    this overall level of sales activity corresponded to about 50 sales
    per seller per hour, and that with three sellers active (as there
    were at the time this particular video was filmed) this would give
    approximately 150 sales per hour at Pámpanos.     Within those 150
    transactions, Agent León then estimated that approximately 40
    -7-
    involved crack, and that the remaining 110 transactions involved
    heroin, marijuana, or cocaine.        From there, Agent León multiplied
    the hourly sales of crack by 24, then multiplied by 0.2 grams per
    sale, resulting in a total of approximately 200 grams of crack (40
    packages, or 1000 baggies) sold per day at Pámpanos.
    Agent León's estimate was slightly lower than the PSR's
    overall estimate of 250 grams of crack sold per day at Pámpanos,
    and   was   generally   consistent    with   a   cooperator's    grand   jury
    testimony that he had sold 14 packages during his last day at
    Pámpanos.1
    The   district   court   used   Agent   León's     estimate   to
    determine the quantities of crack foreseeable by each defendant.
    As to Ramírez, the government had asked the court to find that at
    least 4.5 kilograms were foreseeable, explaining that this amount
    is less than a single month's total sales of crack at Pámpanos
    alone and noting that Ramírez had been involved in the conspiracy
    for years, much more than the single month needed to prove 4.5
    kilograms.     The district court agreed that the government proved
    that quantity by a preponderance of the evidence.          It explained:
    I provide full credit to the amount of drugs
    that was determined by [Agent León] who had
    surveillance, who performed surveillance in
    1
    If the cooperator's co-seller sold a similar number, the
    two would have sold about 28 packages during their 12-hour shift.
    If the other shift was similar, the drug point would have sold
    about 56 packages in 24 hours. This is higher than, but still
    comparable to, the estimate that Agent León gave.
    -8-
    Sal[i]stral and at Pampanos and who saw plenty
    of television t.v. videos of the drug
    transactions at Pampanos and at the Salistral
    ward, and who interviewed the cooperators, and
    who had access, as I had access, to the grand
    jury transcripts.
    That quantity triggered a base offense level of 38 for Ramírez.
    The court then found that a two-level leadership enhancement was
    justified, noting that "I could have gone higher [than two levels]
    there.   But the presentence report reflects only two levels.            The
    United States has not objected.     So I go with two."     The court then
    applied another two-level increase for selling drugs in a protected
    location   and    a   three-level       decrease   for     acceptance     of
    responsibility,   leaving   a   total    offense   level   of   39.     This
    corresponded to a 262 to 327 month Guidelines range, from which the
    court departed downward by 100 months to impose a prison term of
    162 months.      The district court described Ramirez's crime of
    conviction as 21 U.S.C. § 841(a)(1) (the baseline drug distribution
    offense not premised on any specific quantity) and made no mention
    of any mandatory minimum that might imply a conviction for an
    aggravated version of the crime.2
    2
    The written judgment does not cite or rely on 21 U.S.C.
    § 841(b)(1)(A). The dissent notes that it does recite a quantity
    of 50 grams of cocaine base. However, the judgment also recites
    quantities of one kilogram of heroin, five kilograms of cocaine,
    and 100 kilograms of marijuana. That is because those were the
    conspiracy-wide quantities charged in the indictment, and Ramírez
    pleaded guilty to that count -- not because the district court
    chose to insert its own quantity findings into the judgment.
    -9-
    As to Alvarado, the court calculated a lesser quantity.
    The court noted that the government's evidence showed that Alvarado
    had participated in the conspiracy for 85 days.                    It then rejected
    the    government's    suggestion    that      it   find     a    quantity   of     4.5
    kilograms.      The court credited the evidence showing an average of
    40 drug transactions per hour at the Pámpanos drug point, below
    Agent León's estimate, and further estimated that crack was sold
    "at a conservative rate of 20 baggies per hour" because it was "the
    best-selling substance."       That estimate was about half of the 40
    baggies of crack per hour that Agent León had estimated were sold
    at Pámpanos.      From there, the court, again favorably to Alvarado,
    assumed    "the   lowest   average       of   cocaine      base    dose"   that     was
    supported by the evidence, 0.075 grams (below Agent León's estimate
    of 0.2 grams), which Alvarado had explicitly asked the court to
    adopt.    The court then found that these numbers gave a total of at
    least 36 grams of crack sold daily, which yielded "a total of not
    less   than    3.06   kilograms"    of    crack     sold    over    the    course    of
    Alvarado's 85-day participation. The court concluded that, because
    Alvarado knew the drug point operated 24 hours per day, the entire
    quantity of 3.06 kilograms was foreseeable by Alvarado.
    That finding corresponded to a base offense level of 36,
    which was triggered by a quantity of at least 2.8 kilograms of
    crack. After including an aggravating adjustment for selling drugs
    in a protected location and mitigating adjustments for minor
    -10-
    participation generally, minor participation in drug trafficking,
    and acceptance of responsibility, the court reached a total offense
    level of 31, corresponding to a Guidelines range of 120 to 135
    months.    The court described Alvarado's crime of conviction as
    § 841(a)(1) and made no mention of any mandatory sentencing range
    implying a conviction for an aggravated version of the crime.                  The
    court sentenced Alvarado to a term of 132 months, within the
    Guidelines range.3
    II.
    We   first   reject    the       defendants'   newfound      Alleyne
    argument, then turn to the original issues on appeal.
    In   supplemental     briefs      filed   after     we   heard   oral
    argument, both defendants argued that their sentences violate the
    Sixth    Amendment   because    they     were   imposed    on    the   basis   of
    factfinding by a judge on a preponderance of the evidence standard
    rather than by a jury on a beyond a reasonable doubt standard.                 See
    
    Alleyne, 133 S. Ct. at 2162-63
    .          These arguments are meritless.
    Alleyne instructs that a defendant's Sixth Amendment
    right to a trial by jury requires that "facts that increase
    3
    Both defendants also received supervised release terms of
    ten years. Neither defendant had the prior convictions necessary
    to trigger an extended supervised release term.       Thus, this
    supervised release term is well above any mandatory minimum that
    could have applied -- five years under § 841(b)(1)(A), four under
    § 841(b)(1)(B), and three under § 841(b)(1)(C) -- and gives no
    indication that the district court sentenced the defendants under
    § 841(b)(1)(A) rather than § 841(b)(1)(C).
    -11-
    mandatory minimum sentences must be submitted to the jury." 
    Id. at 2163
    (emphasis added).    Alleyne is equally clear what the Sixth
    Amendment does not require, explaining: "Our ruling today does not
    mean that any fact that influences judicial discretion must be
    found by a jury.    We have long recognized that broad sentencing
    discretion, informed by judicial factfinding, does not violate the
    Sixth Amendment."   
    Id. In other
    words, factual findings made for
    purposes of applying the Guidelines, which influence the sentencing
    judge's discretion in imposing an advisory Guidelines sentence and
    do not result in imposition of a mandatory minimum sentence, do not
    violate the rule in Alleyne.     The holdings of the seven circuit
    courts to have addressed this issue agree with our view.       See,
    e.g., United States v. Rodriguez, No. 13-30742, 
    2014 WL 968841
    , at
    *1 (5th Cir. Mar. 13, 2014) (per curiam) (holding that sentencing
    judge may find facts that do not change mandatory minimum or
    maximum statutory ranges); United States v. Robinson, No. 13-4384,
    
    2014 WL 406782
    , at *2 (3d Cir. Feb. 4, 2014) (per curiam) (holding
    that district court "retained the ability to make factual findings
    necessary to calculate [defendant's] advisory Sentencing Guidelines
    range" without submitting those questions to a jury); United States
    v. Valdez, 
    739 F.3d 1052
    , 1054 (7th Cir. 2014) (holding that, where
    "[t]here is no indication . . . that the district judge thought her
    sentencing discretion was cabined by a higher statutory minimum"
    than that supported by the drug quantities charged or admitted by
    -12-
    defendant, district court's calculation of "a greater drug quantity
    solely for purposes of determining [defendant's] Guideline range"
    did not violate Alleyne rule); United States v. Holder, 549 F.
    App'x 214, 215 (4th Cir. 2014) (per curiam) ("[A]lthough judicially
    determined facts are no longer relevant after Alleyne to deciding
    the applicable mandatory minimum, the factual findings needed to
    calculate a defendant's advisory Guidelines range are still within
    the district court's province."); United States v. Baum, 542 F.
    App'x 724, 727 (10th Cir. 2013) (holding that district court's
    factfinding for Guidelines purposes, without altering mandatory
    minimum, was permissible under Alleyne); United States v. Johnson,
    
    732 F.3d 577
    , 583-84 (6th Cir. 2013) (holding that judicial
    factfinding of crack cocaine quantity does not violate Alleyne rule
    where it does not alter mandatory minimum sentence); United States
    v. Ibrahim, 
    529 F. App'x 59
    , 64 (2d Cir. 2013) ("Because the
    Sentencing     Guidelines    are   advisory     rather    than   mandatory,
    application of guidelines enhancements that do not increase the
    statutory    maximum   or   minimum   penalty   neither    implicates   nor
    violates a defendant's Sixth Amendment right to a jury trial."
    (citation omitted)).
    We flatly reject the proposition that all drug quantity
    calculations made under the advisory Guidelines must be submitted
    to a jury.    That would be both contrary to Alleyne and an extension
    of Alleyne.    We are not empowered to do so under United States v.
    -13-
    Booker, 
    543 U.S. 220
    , 245 (2005). Accord 
    Valdez, 739 F.3d at 1054
    .
    We also flatly reject the argument that, absent the imposition of
    a mandatory minimum sentence, there is Alleyne error here.          It is
    evident from the statutory scheme that drug quantity is not an
    element of every drug distribution crime, including under Alleyne.
    See 
    Alleyne, 133 S. Ct. at 2162
    (holding that, for Sixth Amendment
    purposes, a fact is an element of the offense only when it alters
    the available sentencing range).      The "default" drug distribution
    crime, with a sentencing range of 0 to 20 years, can be proven
    without   any   allegation   of   quantity   at   all.   See   21   U.S.C.
    § 841(b)(1)(C).    This stands in sharp contrast to the aggravated
    drug distribution crimes, in which some triggering quantity of
    drugs must be proven.    See 
    id. § 841(b)(1)(A),
    (b)(1)(B).4
    Our decisions in prior cases hold that failing to prove
    an individualized drug quantity is an Alleyne error only in cases
    in which the defendant has been convicted and sentenced under the
    4
    Prior First Circuit cases have held that, in a drug
    conspiracy case, the defendant's eligibility for a statutory
    mandatory minimum sentence is controlled by an individualized drug
    quantity attribution, see United States v. Colin-Solis, 
    354 F.3d 101
    , 103 (1st Cir. 2004), whereas his statutory maximum sentence is
    controlled by a conspiracy-wide drug quantity attribution, see
    United States v. Correy, 
    570 F.3d 373
    , 377 (1st Cir. 2009). It is
    unclear whether this asymmetry may remain after Alleyne.        The
    parties here do not raise the issue, and we do not consider it. We
    do note, however, that to the extent the dissent argues that the
    availability of a life sentence as the statutory maximum shows that
    the defendants were sentenced under the aggravated provisions of
    §   841(b)(1)(A)    rather   than   the   default   provisions   of
    § 841(b)(1)(C), that pre-Alleyne asymmetry defeats the conclusion.
    -14-
    aggravated version of the statute -- that is, where an enhanced
    mandatory minimum applies.   See, e.g., United States v. Delgado-
    Marrero, 
    744 F.3d 167
    , 185-86 (1st Cir. 2014); United States v.
    Pena, 
    742 F.3d 508
    , 509 (1st Cir. 2014); United States v. Harakaly,
    
    734 F.3d 88
    , 90, 92-93 (1st Cir. 2013).      Likewise, we have held
    that no Alleyne error occurs where, as here, the defendant is
    convicted of, and sentenced pursuant to the penalty provisions of,
    the default crime.   See United States v. Doe, 
    741 F.3d 217
    , 234
    (1st Cir. 2013).     No Alleyne error occurs when a defendant's
    sentence is based entirely on Guidelines considerations without
    changing the applicable mandatory minimum.
    With these principles in mind, we turn to the facts of
    this case as to each defendant.   If Ramírez had been convicted of
    an aggravated version of the crime, the mandatory minimums to which
    he could have been exposed were 10 years for 50 grams or more of
    cocaine base or 5 years for 5 grams or more; if Alvarado had been
    convicted of an aggravated version, the mandatory minimums to which
    he could have been exposed were 10 years for 280 grams or more of
    cocaine base or 5 years for 28 grams or more.        See 21 U.S.C.
    § 841(b)(1), amended by Pub. L. No. 111-220, 124 Stat. 2372
    (2010).5   As noted, Ramírez was sentenced to 162 months, while
    5
    The mandatory minimums of 10 years and 5 years are now
    triggered by quantities of 280 grams and 28 grams of cocaine base,
    respectively, due to amendments in the Fair Sentencing Act of 2010
    (FSA), Pub. L. No. 111-220, 124 Stat. 2372, 2372 (2010). Whether
    a defendant is subject to pre- or post-FSA penalties depends on the
    -15-
    Alvarado was sentenced to 132 months, and both sentences were
    explicitly based on Guidelines considerations.
    A.        Ramírez
    As stated, no Alleyne error occurs when there is no
    mandatory minimum sentence imposed which is triggered by judicial
    factfinding.   Ramírez's case fits this model.   The record provides
    no evidence that the district court made any findings to trigger a
    10-year mandatory minimum; rather, it shows that the court imposed
    a Guidelines sentence.6    That distinguishes Ramírez's case from
    date of sentencing: defendants sentenced before the FSA's effective
    date of August 3, 2010 are subject to pre-FSA penalties, while
    those sentenced afterward are subject to post-FSA penalties. See
    Dorsey v. United States, 
    132 S. Ct. 2321
    , 2326 (2012). Ramírez was
    sentenced in March 2010 and so is subject to the pre-FSA penalties;
    Alvarado was sentenced in March 2011 and so is subject to the post-
    FSA penalties.
    6
    After calculating the Guidelines range, the court departed
    downward from it, reasoning:
    Based on a total offense level of 39 and a criminal
    history category of I, the guideline imprisonment range
    in this particular offense is from 262 to 327
    [months] . . . .
    The Court notes Mr. Ramirez has no diagnosis of any
    mental disorder or [any] major physical depression.
    However the Court is aware he has had a history of
    marijuana use and Percocet pills. . . . The Court further
    notes that even though the defendant has one criminal
    [history] point the instant offense is his first
    conviction of a felony offense. . . .
    The Court recognizes the following mitigating [§]
    3553 factors: First, he was the first defendant amongst
    the leaders who plead [sic]. . . . The Court further
    recognizes the defendant's stressful, tough, difficult
    childhood . . . .
    Taking into consideration the above-mentioned
    factors and in order also to avoid sentencing
    disparities, a variance in sentence will be imposed that
    -16-
    Alleyne, in which judicial factfinding "alter[ed] the legally
    prescribed punishment so as to aggravate 
    it." 133 S. Ct. at 2162
    .
    Indeed, neither the judge nor either party at sentencing even
    mentioned that a mandatory minimum was under consideration, and
    there is no indication that the sentencing judge considered Ramírez
    to have been convicted of anything other than the default crime.
    Instead, the sentence was based only on Guidelines considerations.
    Given that clear basis for the sentence, we cannot say that any
    judicial     factfinding   altered      Ramírez's   legally    prescribed
    sentencing    range.    Ramírez   has    provided   no   evidence   to   the
    contrary, and we see none in the record.7
    Ramírez argues that Alleyne still governs because his
    sentence, even if imposed under the Guidelines, exceeds the 10-year
    mandatory minimum.     We disagree.     The fact that Ramírez's sentence
    falls above the 10-year mandatory minimum is insufficient to
    establish that the mandatory minimum governed or that an Alleyne
    is sufficient but not greater than necessary.
    Therefore, it is the judgment of this Court that
    this defendant is hereby committed to the custody of the
    Bureau of Prisons to be imprisoned for a term of 162
    months as to counts one through five. This represents a
    variance from the guidelines of over one hundred months.
    The mandatory minimum played no part in this assessment.
    7
    Ramírez argues that a reference to the mandatory minimum at
    his change-of-plea hearing shows that his sentence was based on the
    mandatory minimum. Apart from the fact that this hearing occurred
    more than ten months before his sentencing proceeding, there is no
    evidence in the record that the district court considered that
    earlier remark while imposing sentence.
    -17-
    error occurred. In Alleyne, the Court explained that the fact that
    a sentence was available even without improper judicial factfinding
    does not negate a Sixth Amendment error because the improper
    factfinding would change the elements of the crime.     See 
    Alleyne, 133 S. Ct. at 2162
    .      We think it follows that the fact that a
    sentence is above a potential mandatory minimum does not create a
    Sixth Amendment error where there has been no change in the
    elements of the crime.    Cf. United States v. Caba, 
    241 F.3d 98
    , 101
    (1st Cir. 2001) (holding that no Apprendi error occurred where
    district court sentenced defendant based on Guidelines range, even
    though quantity of crack cocaine that district court found for
    Guidelines purposes was high enough to allow higher statutory
    maximum).     There is no Alleyne error in Ramírez's case.
    B.           Alvarado
    Alvarado likewise was not sentenced based on a mandatory
    minimum, but rather was sentenced under the Guidelines.        While
    pronouncing sentence with respect to Alvarado, the district court
    explained:
    Based on a total offense level of 31,
    and a criminal history category of I, the
    guideline imprisonment range is from 120 to
    135 months with a fine range of 15,000 to
    20,000, plus a supervised release term of 10
    years. . . .
    Now, the Court does not provide any
    downward    departure    as    a    mitigating
    circumstance related to diminished mental
    capacity because of the report which the Court
    received on August 26th, 2010 from the
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    forensic evaluation performed by Dr. Manuel A.
    Guttierrez. . . .
    Therefore, the sentence for this
    defendant is to be imprisoned for a term of
    132 months as to counts one, two, three, four,
    and five to be served concurrently with each
    other.
    This        sentence,        like    Ramírez's,    was    based   on    Guidelines
    considerations.             It did not depend in any way on a mandatory
    minimum, nor is there any indication in the record that the
    sentencing judge considered Alvarado to have been convicted of an
    aggravated version of the crime to which a mandatory minimum would
    have attached.          Thus, as with Ramírez's sentence, no Alleyne error
    occurred with respect to Alvarado's sentence.8
    III.
    We now turn to the defendants' challenges to the adequacy
    of the evidentiary base for the district court's findings of fact
    in support of its Guidelines sentences.
    A.                Ramírez
    1.        Use of Hearsay Evidence
    Ramírez's principal argument is that the district court
    based       its    Guidelines       factfinding,   and   thus   its   sentence,   on
    8
    Given the facts outlined in this opinion, no reasonable
    jury could have found that the defendants were responsible for drug
    quantities below the respective thresholds triggering the mandatory
    minimum sentences. As a result, even if an Alleyne error occurred,
    it was harmless beyond a reasonable doubt. See 
    Harakaly, 734 F.3d at 95-96
    .
    -19-
    unreliable hearsay evidence, in violation of his due process
    rights.
    Reliable    hearsay   is,    of    course,     admissible    during
    sentencing proceedings. See, e.g., United States v. Cash, 
    266 F.3d 42
    , 44 (1st Cir. 2001).      Ramírez cites cases from other circuits
    finding due process violations when the district court "reli[ed] on
    accomplice hearsay without adequate indicia of reliability," United
    States v. Corral, 
    172 F.3d 714
    , 716 (9th Cir. 1999), or when
    allegations that were "false or unreliable . . . made the basis for
    the sentence," United States v. McGowan, 
    668 F.3d 601
    , 606 (9th
    Cir. 2012).   See also United States v. Robinson, 
    164 F.3d 1068
    ,
    1070 (7th Cir. 1999); United States v. Huckins, 
    53 F.3d 276
    , 280
    (9th Cir. 1995).   He also cites to United States v. Tavano, 
    12 F.3d 301
    , 305-07 (1st Cir. 1993), in which this court vacated a sentence
    on due process grounds where the district court had refused to
    consider evidence of drug quantity favorable to the defendant that
    had not been introduced at trial. From these cases, Ramírez argues
    that   sentences   based   entirely    on    unreliable    hearsay   evidence
    violate due process.
    Even    assuming,     without      deciding,     that     Ramírez's
    formulation of the rule is correct, this argument fails.               There is
    no indication that the hearsay testimony used was unreliable.
    Indeed, the district court squarely confronted the question of the
    reliability of the hearsay testimony with respect to foreseeable
    -20-
    drug quantity.       The court found that the hearsay testimony was
    corroborated by Agent León's own surveillance and his review of the
    surveillance videos other officers had taken.                With respect to the
    hearsay evidence pertaining to Ramírez's leadership role, the
    district     court    likewise     addressed     the    reliability       question
    directly, noting that "the information is quite reliable" because
    it was supported by Agent León's personal knowledge and observation
    of the videos, as well as the court's own independent review of
    those videos.
    Because the district court carefully ensured that the
    evidence it relied upon was corroborated, Ramírez's sentence was
    not driven by the admission of unreliable hearsay.                   Thus, the due
    process rule that he cites is not implicated.                  Ramírez does not
    argue that a due process violation may occur even when the hearsay
    is reliable, as the district court permissibly found here.
    2.        Sufficiency of Evidence of Leadership
    Ramírez     further    argues      that    the    evidence    of   his
    leadership role in the conspiracy was insufficient to justify the
    district court's finding that he was a leader, which triggered a
    two-level Guidelines enhancement.              This argument, however, is
    waived     because    Ramírez     explicitly     abandoned      it    during   the
    sentencing hearing.      At the final hearing, the following exchange
    took place:
    THE COURT: . . . You realize that I read a
    transcript that [Ramírez] is also a leader.
    -21-
    Your leader undoubtedly.   I don't think you
    are challenging the two point that is are
    [sic] being provided, right.
    MR. RIVERA: No. No. Those two points no. It
    is gist [sic] if I could argue for just a
    little bit.9
    When asked directly, in other words, counsel for Ramírez explicitly
    abandoned any challenge to the leadership enhancement. This waived
    any argument that the evidence did not show Ramírez's leadership
    role.       See United States v. Rodriguez, 
    311 F.3d 435
    , 437 (1st Cir.
    2002).
    Even if Ramírez had not waived this argument, we would
    still find the two-level enhancement justified.         The Guidelines
    provide that, when contemplating a leadership enhancement, courts
    should consider factors such as:
    the exercise of decision making authority, the
    nature of participation in the commission of
    the offense, the recruitment of accomplices,
    the claimed right to a larger share of the
    fruits   of   the   crime,   the   degree   of
    participation in planning or organizing the
    offense, the nature and scope of the illegal
    activity, and the degree of control and
    authority exercised over others.
    U.S.S.G. § 3B1.1, cmt. (n.4) (2012).         Here, the district court
    heard evidence that Ramírez had been entitled to "all the profits
    for heroin" sold at the Kennedy drug point, and that he was an
    owner of the Salistral drug point.         Together with his role as a
    9
    Ramírez's counsel went on to reiterate the argument that
    the drug quantity calculation was not supported by reliable
    evidence, then turned to mitigating factors.
    -22-
    wholesale supplier across several different drug points, this
    evidence shows, at a minimum, that Ramírez had claimed a right to
    a larger share of the criminal profits, performed a greater degree
    of planning or organizing the offenses, engaged in a wide scope of
    the illegal activity, and exercised a substantial degree of control
    and authority over others.           That is sufficient to justify the
    leadership enhancement.
    B.         Alvarado
    Alvarado argues that the district court's findings on
    drug quantity in his case were not supported by the evidence
    presented at the sentencing hearings.
    We    review      the   district   court's   factual   decisions
    regarding drug quantity for clear error.            See United States v.
    Green, 
    426 F.3d 64
    , 66 (1st Cir. 2005). Drug quantity findings may
    "be based on approximations" as long as those approximations
    "represent reasoned estimates of drug quantity."          United States v.
    Ventura, 
    353 F.3d 84
    , 88 (1st Cir. 2003).          A defendant may be held
    responsible     only   for    drug   quantities   "foreseeable    to   [that]
    individual."    United States v. Correy, 
    570 F.3d 373
    , 380 (1st Cir.
    2009).   Foreseeability encompasses "not only . . . the drugs [the
    defendant] actually handled but also . . . the full amount of drugs
    that he could reasonably have anticipated would be within the ambit
    of the conspiracy."       United States v. Santos, 
    357 F.3d 136
    , 140
    (1st Cir. 2004).
    -23-
    The   district   court    found   that   a   quantity   of   3.06
    kilograms of crack cocaine was reasonably foreseeable to Alvarado.10
    This finding was not clearly erroneous.        It was based on the most
    lenient   assumptions   toward   Alvarado    that   the   record   allowed:
    quantities of just 0.075 grams per baggie, based on Alvarado's
    request that the court use that more favorable estimate; just 20
    baggies of cocaine base per hour, based on a conservative estimate
    from Agent León's testimony about the amount of activity at
    Pámpanos and amply supported by video footage; 24-hour operation of
    Pámpanos, based on Agent León's testimony and grand jury testimony
    from cooperators; and 85 days' worth of participation in the
    conspiracy, based on the favorable assumption that Alvarado did not
    participate before the date of the first recording on which he
    appeared or after the date of the last recording.            Each of these
    conclusions was a "reasoned estimate," 
    Ventura, 353 F.3d at 88
    ,
    directly grounded in the evidence, and none was clearly erroneous.
    Nor was there clear error in the total finding of 3.06 kilograms of
    cocaine base resulting from those factors.
    Alvarado points to these assumptions in his favor as
    evidence that the findings were unreliable.             He argues that the
    district court's unwillingness to adopt the government's evidence
    10
    The offense level in the Guidelines would have been
    triggered by a finding as low as 2.8 kilograms.    We need not
    consider the differences between the two quantities, however,
    because the district court's finding of the larger quantity was
    sufficiently supported by the record.
    -24-
    wholesale reveals that the court found that evidence unconvincing,
    but that "if there was no sufficient basis to conclude legally, and
    reliably that 40 [crack] transactions occurred every hour [as Agent
    León testified], then there is no sufficient basis to conclude
    either that 20 transactions per hour took place."    That argument
    fails.   Determining drug quantity is "likely to require . . . the
    exercise of sound judgment" on the part of the district court, and
    a district court's decision to make "reasonable" estimates in favor
    of the defendant is not itself grounds for concluding that the
    evidence is unreliable.   United States v. Bernier, 
    660 F.3d 543
    ,
    548 (1st Cir. 2011); see also 
    id. at 548-49
    (approving, "without
    serious question," the district court's "measured approach, [which]
    evaluated the testimony carefully, and erred, if at all, on the
    side of caution" by "us[ing] conservative figures and low-end
    estimates").   That principle controls here: the district court's
    use of conservative estimates was part of a measured and scrupulous
    approach to calculating the quantity foreseeable to Alvarado.   It
    does not show that the calculation lacked justification entirely.
    IV.
    We affirm.
    - Dissenting Opinion Follows -
    -25-
    TORRUELLA, Circuit Judge, dissenting.          As this case
    stands, both defendants pleaded guilty to all but the alleged drug
    quantity, and no jury played a part in the district court's finding
    regarding this essential element of the charged offenses.           Their
    sentences cannot rest on an element that was neither pled to nor
    found by a jury beyond a reasonable doubt.              Accordingly, the
    defendants' sentences are required to be vacated, and the case
    remanded for resentencing.       See United States v. Alleyne, 133 S.
    Ct. 2151 (2013).
    In this appeal, defendants originally challenged their
    sentences on evidentiary grounds.      After oral arguments, but while
    our decision here was still pending, the Supreme Court decided in
    Alleyne that any fact that increases the mandatory minimum sentence
    that a defendant stands to receive is an element of the offense
    that must be found by a jury beyond a reasonable doubt.            
    Id. at 2156.
       Understandably, because Alleyne had not been decided, the
    district court did not inform defendants Ramírez and Alvarado of
    this right.    Instead, the district court made determinations of
    drug    quantity   by   a   preponderance   of   the   evidence,   without
    submitting this question to a jury, and sentenced defendants under
    a   mandatory minimum, in violation of Alleyne.           This was clear
    error on the part of the court.      My brethren disagree.
    Although the district court acted within the bounds of
    the law as it stood at the time of sentencing, the law has changed,
    -26-
    and the district court's reliance on what was, at the time, an
    accepted practice, cannot save the sentence from running afoul of
    the Sixth Amendment.      My colleagues rely on assumptions, which I
    will dispel, to reach a result that I find flies in the face of
    what is now a clearly established constitutional right.
    I.    Background
    I take no issue with the majority's recitation of the
    facts and only add, and perhaps reiterate, what I find is relevant
    to respectfully espouse my view that they are mistaken.
    A.   Procedural History
    In   May   2008,   a    grand    jury   returned   a   seven-count
    indictment against Alvarado, Ramírez, and 109 other co-defendants
    for, inter alia, conspiracy to possess with intent to distribute
    narcotics, in violation of 21 U.S.C. §§ 841(a)(1). The defendants,
    who had initially pled not guilty, changed their pleas to guilty,
    refusing however, to concede that they were responsible for any
    specific drug amount. Drug quantity, and thus, the statutory range
    of punishment they would be exposed to, would be determined during
    sentencing.
    In order to uphold its opinion, the majority is of the
    view that mandatory minimums were never at play during sentencing
    proceedings for either defendant.            The district court made no
    mention of the phrase, they contend, hence it must be that the
    court considered only the Guidelines at sentencing, and proceeded
    -27-
    to sentence both defendants, according to the Guidelines, and
    within the zero-to-twenty year statutory range of the subsection of
    § 841 that does not require a finding of drug quantity.
    The record shows otherwise, and contravenes my brethren's
    assumptions    and   no-harm-done   conclusion.   Perusal    of   the
    transcripts of the change of plea and sentencing hearings, the
    sentences imposed, and other parts of the record provide more than
    enough detail to trump any doubt that mandatory minimums were
    definitive, and integral to the sentencing proceedings.     As I will
    elaborate in more detail, the exchanges between the court and
    counsel are particularly relevant to defeating the majority's view.
    They clearly establish that the district court was at all times
    considering a statutory range of ten years to life, which, under §
    841 (b)(1)(A) required a drug quantity determination of 280 grams
    in the case of cocaine base.
    To the extent the drug quantities attributable to each
    defendant -- and the mandatory minimums that go with them -- were
    determined by the district court, rather than a jury, and were
    found by a preponderance of the evidence, the Alleyne error is
    inescapable.
    B.   Change of Plea Hearing
    During the change of plea hearing held for defendants on
    May 8, 2009, both indicated that they intended to contest the drug
    quantity amounts attributed to them, as well as their roles in the
    -28-
    conspiracy, during the sentencing proceedings.           To be sure, both
    defendants refused to admit any drug quantity.         A lengthy exchange
    between the court and counsel ensued regarding, inter alia, the
    applicable statutory minimum as to each defendant.
    Discussions of the mandatory minimum in the change of
    plea hearing began when the government declared that the maximum
    sentence the defendants were exposed to was a "term of life
    imprisonment, [and] at least ten years of supervised release," and
    specifically as to the conspiracy charge, "up to life imprisonment
    . . . . and a minimum of ten years."         Tr. for Chg. of Plea Hr'g. at
    46-47.     Later on, the judge remarked that "[t]he statutory is
    clear. It's ten to life as to all."          
    Id. at 53,
    54.
    But that was not the end of it.            A discussion then
    followed regarding the ability of each defendant to enter a
    straight guilty plea to an indictment where each substantive count
    carries a ten-year mandatory minimum, while not conceding drug
    quantity.    The district court expressed concern that, with such a
    guilty plea, it could not sentence defendants to less than the ten-
    year   minimum,    regardless   of    what   could   later    be   proven   at
    sentencing.       
    Id. at 58-59.
         Counsel for Alvarado maintained,
    however, that each defendant was entitled to an individualized drug
    amount determination, and that if the minimum quantity threshold
    was not proven, the ten year mandatory minimum could not be
    imposed.    
    Id. at 60.
    -29-
    The district court then briefly revisited our decision in
    United States v. Colón-Solís, 
    354 F.3d 101
    (1st Cir. 2004).                     In
    Colón-Solís we held that to apply a mandatory minimum sentence for
    a   drug   conspiracy      coconspirator,     the     court    must    make     an
    individualized       finding,   by   a   preponderance    of   the     evidence,
    ascribing the triggering drug quantity to that coconspirator.                  
    Id. at 103.
       Enlightened by that principle, the district court then
    remarked that "[i]n order to determine the applicable minimum, the
    court, notwithstanding any other statement made, as to each and
    every   one     of   the   counts,   reserves   the    specific       individual
    sentencing amount . . . . which may be below the statutory minimum
    of ten years."       Tr. for Chg. of Plea Hr'g. at 70-71.         The question
    of the applicable statutory minimum was in the mind of all players,
    and was left open for determination at the sentencing proceedings.
    The U.S. Probation Office representative then proceeded
    to compose the PSR. It underwent several changes and amendments as
    a result of court orders and objections from defendants, mostly
    regarding drug quantity attributions. A final PSR was submitted to
    the district court in January 2010, and it reflected a 56 grams-
    per-day amount sold at Pámpanos, and an offense level of 33.                  Once
    again, both Ramírez and Alvarado objected to the drug quantity
    assessment in the sentencing memoranda they filed prior to their
    sentencing hearings.
    -30-
    C.   Sentencing
    1.     Alvarado's Sentencing Hearings
    Sentencing proceedings for Alvarado began on February 1,
    2010, with an offer from the government to stipulate the drug
    quantity for a mandatory minimum sentence of 120 months; the ten
    year minimum under § 841(b)(1)(A).          The court acknowledged the
    government's offer and, upon Alvarado's refusal to stipulate any
    drug quantity, warned that by not accepting the stipulation, he was
    exposed to a penalty that, according to the drug quantity found by
    the court, may or may not reach the threshold for the mandatory
    minimum.   The court then stated that "[t]he burden of proof is on
    the United States by a preponderance of the evidence, not beyond a
    reasonable doubt standard because the amount is not an element of
    the crime", and explained once again that if he were to accept the
    government's offer, he would receive the mandatory minimum sentence
    for 50 grams of crack of ten years.        Tr. for Sent. Hr'g. for Def.
    Alvarado, Feb. 1, 2010 at 7.     Thereafter, there were several other
    references to what amount of crack would trigger which statutory
    minimum.      Alvarado   remained   steadfast   in   his   opposition   to
    accepting any drug quantity, and the government proceeded to
    attempt to make its case.
    Agent León was the main witness for the prosecution at
    sentencing.     His testimony was based on personal surveillance,
    -31-
    video recordings, his presence at a drug seizure, and information
    relayed to him by cooperating witnesses.
    Agent León testified that he conducted surveillance 10 to
    15 times during daytime and approximately 15 times during nighttime
    for 30- to 60-minute periods, and from a distance of 50 to 200
    feet.        He estimated that around 200 grams of crack were sold each
    day, totaling six kilograms per month, based on his calculations
    that each small baggy contained 0.2 grams of crack multiplied by 25
    (the number of small baggies in a single package) and then by 40
    (the number of packages sold per day).           He stated that he made
    these estimates on the basis of averages extrapolated from 30-
    minute periods of video and from personal surveillance.               In
    addition, he stated that he reached that figure through interviews
    he carried out with sellers who had become cooperators. These
    cooperators were not presented as witnesses at sentencing. He also
    interviewed the individual that made the video recordings who
    personally saw transactions that were not in the videos.        Finally,
    he extrapolated from his presence at a drug seizure where 400 bags
    of crack or cocaine were seized, and made a calculation as to how
    much was sold at the drug point per day.11       Agent León nevertheless
    conceded that drug sales were not the same every day.
    11
    On the third day of the sentencing hearing, Agent León
    testified that "400 bags of coke" were seized, but on cross-
    examination, stated that it was "400 bags of crack" that were
    seized.
    -32-
    During    the     course       of    the     investigation,        78    video
    recordings were made by a cooperating witness who was also not
    presented as a witness.              A selection of the video recordings were
    shown in edited form, jumping from one day to the next, skipping
    days,   and     moving       between    different         times    of    the     day.     The
    recordings depicted sales of substances identified by Agent León as
    "either cocaine or crack"; he could not identify which precisely.
    Video recordings were not made when no drug transactions were
    occurring.
    Agent León's testimony regarding Alvarado specifically
    was    based    on    his     personal    surveillance            and    interviews      with
    cooperating witnesses, who were not presented as witnesses at
    sentencing. He stated that he personally witnessed Alvarado at the
    drug    point       during     the    night    in        March    and    in    April    2008.
    Coincidentally,         no video recordings were made on those nights.
    However,      Agent     León    positively         identified       Alvarado       in   video
    recordings on fifteen different days.
    On    March     14,    2011,        the    final    day    of     sentencing
    proceedings began with a discussion of how the Fair Sentencing
    Act's new triggering drug quantities affected the mandatory minimum
    sentence for Alvarado.               Defense counsel stated there was perhaps
    evidence to sustain 28 grams of crack, enough for a mandatory
    minimum of five years, but certainly not enough for the 280 grams
    that would trigger the ten year mandatory minimum.                            The government
    -33-
    retorted that it had proven Alvarado was responsible for 4.5
    kilograms of crack, more than enough for the ten year minimum.
    Throughout the evidentiary hearings, counsel for Alvarado
    pointed to the want of reliability of the evidence presented by the
    government.      Specifically, counsel insisted that a considerable
    part of Agent León's testimony relied on hearsay and double
    hearsay,      that    his     drug    quantity     calculations       were     often
    inconsistent and his averages were exaggerated to the point of
    being implausible, and that the videos were taken at different
    intervals,     with    none   being    taken     when   transactions       were     not
    occurring.
    Nonetheless, the district court found that 3.06 kilograms
    of    crack   were    attributable     to   Alvarado      for   his   role    in    the
    conspiracy.      The court discussed the guidelines, and arrived at a
    sentencing range of 120-135 months.                The court then imposed a
    sentence within that range of 132 months for each count, to be
    served concurrently, and a term of supervised release of ten years.
    The minimum range determined by the court is the statutory minimum
    for    §   841(b)(1)(A).       That    section     also    mandates    a     term    of
    supervised release of no less than five years for those with a
    criminal record, and ten years for those with certain kinds of
    prior convictions.
    -34-
    2.    Ramírez's Sentencing Hearings
    At Ramírez's sentencing, Agent León testified that he
    participated in the investigation of the Pámpanos drug point by
    performing         surveillance,        reviewing        surveillance        videos,
    interviewing       cooperating     witnesses,          confiscating      drugs,    and
    providing support to colleagues who conducted surveillance at
    Salistral.         Specifically,    he    conducted      an    investigation       from
    November 2007 until June 13, 2008, surveilled Pámpanos personally
    25 to 30 times, and viewed 78 video recordings taken by a witness
    at Pámpanos. He also seized 399 baggies of cocaine in an apartment
    which a contracted chemist and lab supervisor, José Mercado,
    estimated to contain 0.2 grams per baggy.                     However, no official
    laboratory results were entered into evidence during the sentencing
    hearings.    Also, during his surveillance, Agent León never spotted
    Ramírez, nor did he appear in any of the Pámpanos videos.
    Ernesto    Vidro,      a    cooperating          witness,    identified
    Ramírez's role in the conspiracy during grand jury proceedings. At
    sentencing, Agent León relayed this information, but Vidro was not
    presented as a witness.
    As to Pámpanos in particular, Agent León calculated
    averages     for     transactions       and     drug    quantities       relying    on
    essentially the same information and dubious methodology as for
    Alvarado.
    -35-
    Finally, Agent León testified that Ramírez's role as
    supplier of cocaine to the Kennedy drug point to be cooked to
    crack, was relayed to him by another cooperating witness, Ramón
    González.    González, who also offered grand jury testimony, was
    also not presented as a witness at sentencing.
    During   the    sentencing    hearing,   the    district     court
    expressed concern about the evidence being presented:
    This is a bench hearing and you don't know
    because I may very well state that the hearsay
    is of such magnitude in this case that it
    borders and it tramples due process, because
    up to now is pure hearsay as to liability and
    ownership -- let me tell you all of the
    hearsay I've heard, because I've put them down
    here.
    As to ownership, purely hearsay.    As to
    supplier, purely hearsay.  As to quantity,
    purely hearsay, up to now.
    Tr. of Sent. Hr'g. for Def. Ramírez, Feb. 17, 2010 at 43.
    The   district   court     reiterated    this   concern    as   the   hearings
    continued and requested that the government file a legal memorandum
    "as to a sentence based purely on hearsay."
    As to Ramírez's sentence, the ten year mandatory minimum
    was again a matter of discussion between the court and counsel.
    Defense counsel alluded to the ten year supervised release term
    Ramírez stood to receive and referenced an earlier statement by the
    court that "a ten or twelve year sentence is not a Mickey Mouse
    sentence," to which the court responded "[b]ut that doesn't mean
    he's going to get a ten year sentence", clearly alluding to the
    -36-
    mandatory minimum.      Tr. of Sent. Hr'g. for Def. Ramírez, Mar. 19,
    2010 at 32.
    Thereafter,    the      court   reviewed        the     Government's
    supplemental brief and the evidence admitted at the evidentiary
    hearings, and found Ramírez responsible for 4.5 kilograms of
    cocaine, resulting in a base offense level of 38.             Notwithstanding
    the court's earlier apprehension and defense counsel's repeated
    objections, the court clarified that the drug quantity amount was
    determined giving:
    full credit to the amount of drugs that was
    determined   by   the   policeman    who   had
    surveillance, who performed surveillance in
    Sal[i]stral and at Pámpanos and who saw plenty
    of . . . videos of the drug transactions at
    Pámpanos and at the Salistral ward, and who
    interviewed the cooperators, and who had
    access, as I had access, to the grand jury
    transcripts.
    
    Id. at 44-45.
    The court discussed the relevant guideline factors for a sentencing
    guideline range of 262-327 months.           
    Id. at 46.
              The court then
    imposed a sentence within that range of 162 months, for five counts
    charged.    Upon release, Ramírez would be placed on supervised
    release    for   ten   years   as   to   three   of   the    counts,     to   run
    concurrently.
    Immediately thereafter, the court addressed Ramírez: "The
    court has sentenced you way below the statutory maximum.                  So the
    sentence is not illegal.       I could have sentenced you to life."           Tr.
    -37-
    of Sent. Hr'g. for Def. Ramírez, Mar. 19, 2010 at 52.             Only § 841
    (b)(1)(A) carries the possibility of a life sentence, and required,
    at pre-FSA quantities which were applicable to Ramírez, a drug
    quantity finding of at least 50 grams of cocaine base.
    If    there   is   any    doubt   that     the   district   court's
    imposition of sentence was guided by its reliance on the threshold
    drug amount that triggers the mandatory minimum of ten years, the
    record provides the proverbial nail in the coffin.              The judgment
    for Ramírez describes his offense as a conspiracy with intent to
    distribute in excess of 50 grams of cocaine base, the triggering
    amount for ten to life prescribed by § 841(b)(1)(A).
    II.    Discussion
    On appeal, defendants challenged the district court's
    findings at sentencing as to drug quantity. They essentially argue
    that the court relied on hearsay, double hearsay, inconsistent
    testimony and faulty calculations of average drug amounts based on
    speculation, and unsupported by scientific data.                  After oral
    argument, we ordered the parties to submit additional briefs on the
    issue of whether the Supreme Court's recent decision in Alleyne v.
    United States, 
    133 S. Ct. 2151
    (2013), impacts this appeal.                   In
    response to our supplemental briefing order, Ramírez and Alvarado
    argue that Alleyne prohibits their sentences, because the district
    court   made    individualized      drug   quantity    determinations    by   a
    -38-
    preponderance of the evidence, without a jury's determination or
    their admission.
    As I believe I have established, the record leaves no
    doubt that the district court was at all times weighing the
    evidence while targeting the mandatory minimum.         And it did so by
    a preponderance of the evidence standard.     That it also considered
    and determined the guideline range does not negate this fact.
    Accordingly, Alleyne squarely applies, and defendants hold the
    upper hand.
    The    relevant   statute   of   conviction    prohibits   the
    "manufactur[ing], distribut[ing], or dispens[ing], or posess[ing]
    with intent to manufacture, distribute, or dispense, a controlled
    substance."     21 U.S.C. § 841(a)(1).     At the time of Ramírez's
    sentencing, § 841 imposed a mandatory minimum sentence of twenty
    years to life for drug offenses involving more than fifty grams of
    crack cocaine.12    21 U.S.C. § 841(b)(1)(A)(iii), (viii) (2006),
    amended by Pub. L. No. 111-220, 124 Stat. 2372, 2372 (2010)
    (increasing this amount to 280 grams or more).          If the defendant
    was responsible for five or more grams of crack cocaine, the law
    12
    The triggering drug amounts were modified via the Fair
    Sentencing Act. Though the parties do not dispute, and assume in
    their briefs, that the old crack cocaine quantities and punishments
    apply, my brethren point out that Ramírez was sentenced in March
    2010, before passage of the FSA, and is thus subject to penalties
    as they stood before the FSA. Alvarado, on the other hand, would
    perhaps reap the benefits of the FSA's more lenient crack cocaine
    amount provisions.
    -39-
    imposed a mandatory minimum sentence of five to forty years.                         21
    U.S.C.        §   841(b)(1)(B)(iii),        (viii)       (2006),    amended    by   Fair
    Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372, 2372
    (2010) (increasing this amount to 28 grams or more).                          Lastly, a
    defendant could be sentenced to between zero and twenty years for
    violating section 841 with any unspecified amount of crack cocaine.
    21   U.S.C.        §    841(b)(1)(C).13          These   factual    differences,     the
    defendants argue, mean that the district court could not impose any
    sentence despite their guilty plea, because it only made individual
    drug quantity determinations by a preponderance of the evidence.
    They therefore urge us to vacate their sentences and remand.
    In Alleyne, the Supreme Court held that "facts that
    increase the mandatory minimum sentence" to which a criminal
    statute exposes a defendant, are "elements [that] must be submitted
    to the jury and found beyond a reasonable 
    doubt." 133 S. Ct. at 2158
    .        This holding was merely an extension of the Supreme Court's
    prior decision in Apprendi v. New Jersey, 
    530 U.S. 466
    , 490 (2000)
    (holding that, besides a prior conviction, "any fact that increases
    the penalty for a crime beyond the prescribed statutory maximum
    must be submitted to a jury, and proved beyond a reasonable
    doubt.").
    13
    The            FSA   did   not   amend    the    relevant   portion    of   this
    provision.
    -40-
    We have already had occasion to grapple with Alleyne and
    its implications. Recently, in United States v. Harakaly, 
    734 F.3d 88
    , 94 (2013) we recognized an Alleyne error in the context of a
    guilty plea involving a drug offense under § 841.            Although
    Harakaly entered a straight plea of guilty, he had not admitted any
    particular amount of drugs involved in the crime charged.      
    Id. at 91
    ("When asked whether Harakaly conceded any drug quantity,
    defense counsel stated that he did not.").      Harakaly's indictment
    was silent on drug quantity.     
    Id. Nonetheless, during
    sentencing,
    the district court found Harakaly responsible for more than fifty
    grams of methamphetamine, triggering a ten-year mandatory minimum
    under § 841. Because we concluded that the district court violated
    Alleyne, we found error, but held that it was harmless beyond a
    reasonable doubt given the overwhelming evidence of drug quantity
    against Harakaly.   
    Id. at 97.
    Like the Harakaly court, the district court here erred
    when it made individualized drug determinations for Alvarado and
    Ramírez by a preponderance of the evidence, and set a statutory
    minimum based on that determination.      If the defendant waives his
    right to a jury trial –- i.e., the right to, inter alia, have the
    element of drug quantity proven beyond a reasonable doubt –- then,
    in order to sustain a conviction, Alleyne logically requires the
    defendant's admission of drug quantity. At the time they submitted
    their guilty pleas, and all throughout sentencing proceedings,
    -41-
    defendants       here   specifically      declined    to    admit      to   any    drug
    quantity.     Therefore, to allow the judgment to stand as is, is to
    sanction two convictions where an element of the offense has not
    been pled to, or found by a jury beyond a reasonable doubt; quite
    a flight in the teeth of Alleyne.
    As defendants' case was pending on appeal at the time the
    Supreme Court handed down Alleyne, there is no question its holding
    applies    here.        See   Griffith   v.     Kentucky,   
    479 U.S. 314
    ,    328
    (1987)("[A] new rule for the conduct of criminal prosecutions is to
    be applied retroactively to all cases . . . pending on direct
    review or not yet final. . . .").                    Unlike Harakaly however,
    defendants here did not preserve their Alleyne claims below, and
    only argued the error on appeal after we ordered supplemental
    briefing    on    the    issue.     Accordingly,      review      of    Ramírez    and
    Alvarado's Alleyne claim, is for plain error.                Cf.       
    Harakaly, 734 F.3d at 94
    ("This court reviews unpreserved Apprendi errors for
    plain error and preserved Apprendi errors for harmless error.");
    see also United States v. Delgado-Marrero, 
    744 F.3d 167
    , 184 (1st
    Cir. 2014).       Plain error review requires a defendant to show that
    an error occurred; that the error was clear or obvious; and, that
    the error affected substantial rights, or the outcome of the case.
    United States v. Rodríguez, 
    675 F.3d 48
    , 64 (1st Cir. 2012). "Even
    if a defendant can show all of this, we have discretion not to
    -42-
    intervene if we conclude that the error does not distort the
    fairness or integrity of the lower court proceedings." 
    Id. On appeal,
    Alvarado exploits several aspects of Agent
    León's testimony regarding drug quantity: that he did not know the
    relative amounts of marijuana, heroin, and cocaine sold at the drug
    point and could not conclude that crack was the substance most
    sold; that he was unable to tell whether cocaine or crack was being
    sold in any given transaction involving a white substance in a
    transparent baggy; that his surveillance at the drug point was
    partial and he made no notes; that he relied on unsupported
    assertions of a cooperating witness that 1,000 baggies were sold
    each day at the drug point; and that his testimony that 150
    transactions occurred per hour was not credible.   Additionally, he
    argues that the video recordings were unreliable and any averages
    derived therefrom lack empirical underpinnings.    Specifically, he
    claims that, since the video only recorded when there was movement
    at the drug point, the footage did not represent an entire day's
    worth of transactions nor did they account for fluctuations because
    of weather or police activity.     Further, it is alleged it was
    impossible to determine from the recordings what substance was
    being sold in those transactions.      In relying on the videos,
    Alvarado insists, Agent León made unsubstantiated and conclusory
    assertions that out of an estimated 150 transactions per hour, 40
    involved crack.
    -43-
    Similarly, as to the specific issue of drug quantity,
    Ramírez also identifies significant flaws with the government's
    evidence.    Ramírez likewise claims that the drug quantity evidence
    introduced by the Government was unreliable and that his due
    process rights at sentencing were violated.           As to the evidence
    introduced     to   determine   the   proper   drug     quantity   amount
    attributable to him from the Pámpanos drug point, Ramírez points
    out that: the videos do not allow for proper differentiation
    between crack and cocaine sold; the only evidence linking Ramírez
    to the drug point is based on double hearsay of what one drug gang
    leader allegedly told Vidro; reliance on information obtained from
    Vidro was unreliable because his grand jury testimony reflects that
    he could not remember how many baggies of cocaine were sold at the
    drug point;14 the 0.2 gram per baggy figure was based on double
    hearsay evidence from a laboratory supervisor without production of
    written laboratory results nor any indication that the laboratory
    supervisor weighed the drugs personally; and the estimates of
    average daily amounts sold of 200 grams per day were based on
    insufficient sampling based only on one day rather than a broader
    set of days.    Further, Ramírez notes the discrepancy between drug
    14
    In his grand jury testimony, Vidro stated that, "what I can
    recall is the last day I worked I sold 14 packages of cocaine and
    each one contained 25 baggies. . . . It was not a very good day,
    not a bad day. It was just mid week, it was a Wednesday." When
    asked on which days more drugs were sold at the drug point, Vidro
    answered, "Fridays and Saturdays."
    -44-
    amounts attributable to various defendants from conduct at the
    Pámpanos drug point, noting that, in Alvarado's case, the weight
    determined per baggy was 0.075 grams while in his case, the weight
    per baggy was 0.2 grams.      As to Salistral, Ramírez argues that
    since no videos were taken at the drug point and no drug quantity
    determination was made as to that drug point, evidence drawing any
    drug quantity amount attributable to him is unreliable.
    In Harakaly, we affirmed the district court's conviction
    under the more lenient harmless error standard, and found that
    notwithstanding the Alleyne error, there was overwhelming evidence
    of drug quantity sufficient to trigger the heightened penalty
    provision.     
    Harakaly, 734 F.3d at 96
    (finding evidence of drug
    quantity overwhelming where defendant, at the change of plea
    hearing, acknowledged the accuracy of an account from a co-
    conspirator that he had delivered to co-conspirator an amount of
    drugs far exceeding the triggering amount).     Here, the government
    has marshaled no such evidentiary effort, and Ramírez and Alvarado
    have accurately and appropriately pointed us to serious flaws in
    the government's case.       Perhaps most telling of all, is the
    district court's own recognition that the evidence presented by the
    government at sentencing, was largely hearsay and deficient to the
    point of trampling due process.
    If the Sixth Amendment still allowed the district court
    to make drug quantity findings for determining mandatory minimums
    -45-
    by a preponderance of the evidence –- without any admission from
    the defendants -– perhaps my conclusion would differ. However, the
    Supreme Court has clarified the significance of mandatory minimum
    sentences under federal law, and, on these facts, I find the
    majority's view unpersuasive, that the application of Alleyne can
    be avoided.   Accordingly, the error here is plain.       Furthermore,
    given the serious evidentiary weaknesses in the government's case,
    it is obvious that the conviction rests on evidence that would
    likely not be admissible had the case, or the element of drug
    quantity   alone,   been    submitted    to   a   jury.   Under   these
    circumstances, the district court's Alleyne error clearly distorted
    the fairness and integrity of the trial court proceedings.
    
    Rodríguez, 675 F.3d at 64
    .
    In Delgado-Marrero, we found reversible error, under
    plain error review, where the court, after trial and on a special
    verdict question, failed to instruct the jury that the element of
    drug quantity was to be determined beyond a reasonable doubt.
    
    Delgado-Marrero, 744 F.3d at 188-89
    . We further noted that, due to
    the shortcomings of the drug quantity evidence presented by the
    government, this was not "a case in which the evidence tying the
    defendant to the charged conspiracy involved drugs that were
    indisputably in excess of the requisite amounts."         
    Id. at 189.
    (citations omitted).       In Delgado-Marrero, the evidence of drug
    quantity presented by the government was merely contestable, yet we
    -46-
    found that contestability enough to warrant reversal.      In this
    case, however, the evidence proffered by the government is clearly
    unreliable and, moreover, likely inadmissible at a jury trial.
    Therefore, Delgado-Marrero's reasoning on this point is all the
    more persuasive, on these facts.
    As to the proper remedy, our recent decision in United
    States v. Pena, 
    742 F.3d 508
    (1st Cir. 2014) suggests the way
    forward.   In Pena we found reversible Alleyne error where the
    defendant pled guilty to an underlying drug offense, and the court
    later found, by a preponderance of the evidence, that death had
    resulted from the defendant's drug dealing, thus exposing the
    defendant to a higher mandatory minimum sentence; an element not
    pled to nor found by a jury beyond a reasonable doubt. 
    Id. at 514.
    We remanded for resentencing for the underlying offense only,
    excluding the "death resulting" charge, and refused to allow the
    government, in part because of Double Jeopardy considerations, to
    re-indict Pena and seek a conviction for "death resulting" by way
    of a special sentencing jury.     
    Id. at 509.
    In Pena we recognized that, though perhaps not warranted
    in every case, a typical solution for an Alleyne error is to remand
    for resentencing.   
    Id. at 515.
      We noted that "Post-Apprendi cases
    are also instructive, because Alleyne is an extension of the
    Apprendi doctrine" and that the remedy for an Apprendi error is
    "usually a simple remand to the district court for resentencing."
    -47-
    
    Id. at 518
    (internal quotations and citations omitted). We further
    noted that "[e]ven on plain error review, several of our sister
    circuits likewise held that a remand for resentencing by the
    district judge on the charge of conviction was required." 
    Id. Indeed, as
    noted in Pena, the Second, Sixth, and Tenth
    Circuits have, on plain error review, remanded for resentencing
    where, as here, the defendant pled guilty to drug crimes, but not
    to drug quantity, and the lower court endeavored to make drug
    quantity findings by a preponderance of the evidence in violation
    of Apprendi.    
    Id. at 518
    n.12; see also United States v. Doe, 
    297 F.3d 76
    , 93 (2d Cir. 2002)(remanding for resentencing, on plain
    error review, where defendant pled guilty to drug crimes without
    specified drug quantity and the district court made quantity
    findings by a preponderance standard); United States v. Campbell,
    
    279 F.3d 392
    , 397, 402 (6th Cir. 2002)(same); United States v.
    Cernobyl, 
    255 F.3d 1215
    , 1221 (10th Cir. 2001)(same). I would find
    this occasion appropriate for following this same path, and would
    order the district court to re-sentence Ramírez and Alvarado to
    crimes that require no drug quantity determination.
    Contrary to what my brethren suggest, my view of this
    matter in no way encroaches on a trial court's fact finding
    function at sentencing.     A trial court's duty, and discretion, to
    find facts in order to determine a proper sentence under the
    guidelines    remains   untouched.   However,   "[e]stablishing   what
    -48-
    punishment is available by law[,] and setting a specific punishment
    within the bounds that the law has prescribed are two [very]
    different things." 
    Alleyne, 133 S. Ct. at 2163
    (citation omitted).
    Courts remain free to determine the appropriate sentence only
    after, in the absence of a plea of guilty to all elements, a jury
    has determined the adequate statutory range. The latter, it can no
    longer do without the factual findings of a jury.
    III.   Conclusion
    That the new sentences the district court might impose
    pursuant to my proposed order -- within the twenty year maximum
    allowed by § 841(b)(1)(C) -- could very well be identical to the
    one the majority allows to stand today, is irrelevant.       Though
    resentencing might ultimately seem formalistic if the same sentence
    results, whereas the facts found by the district court here
    aggravated the legally prescribed range of punishment, the Sixth
    Amendment has been disregarded.        
    Alleyne, 133 S. Ct. at 2162
    .
    Accordingly, I respectfully dissent.
    -49-