United States v. Ramírez-Negrón

751 F.3d 42

Opinions

LYNCH, Chief Judge.

Defendants Geovanny Ramírez-Negrón (“Ramírez”) and Obed Alvarado-Mereed (“Alvarado”) were members of a large drug trafficking conspiracy. Ramirez 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: Ramirez 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 182 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 Ramirez only, leadership role. Ramirez argued that the factfinding as to drug quantity in his case 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, — U.S. —, 133 S.Ct. 2151, 186 L.Ed.2d 314 (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).

The defendants belonged to a large drug trafficking ring that operated in Ponce and Juana Diaz, 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 Diaz.

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. Ramirez, also known as “Lambe,” was in charge of the distribution of all of the narcotics sold at Salistral. Ramirez was also, identified as the wholesale supplier of cocaine for the entire organization by a cooperating witness testifying before the grand jury; that testimony was later admitted during Ramirez’s sentencing hearing. At the later sentencing hearing, Agent León clarified that the cocaine Ramirez supplied was “cooked” into crack. Agent León further explained that he- had learned from a cooperating witness that Ramirez received all of the profits from the heroin sold at the Kennedy drug point. Ramirez 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, 853. Ramirez, 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. Ramirez 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.

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 hé 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 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 Leon’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 Leon’s estimate to determine the quantities of crack foreseeable by each defendant. As to Ramirez, 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 Ramirez 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 Sal[i]stral and at Pámpanos and who saw plenty of television t.v. 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.

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

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 Leon’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 Leon’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 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 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, 559 Fed.Appx. 332, 332-33, 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, 556 Fed.Appx. 68, 70, 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 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 Fed.Appx. 214, 215 (4th Cir.2014) (per curiam) (“[Although 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 FecLAppx. 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 Fed.Appx. 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. Booker, 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (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 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 Ramirez had been convicted of an aggravated version of the crime, the mandatory mínimums 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 mínimums 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, Ramirez was sentenced to 162 months, while Alvarado was sentenced to 132 months, and both sentences were explicitly based on Guidelines considerations.

A. Ramirez

As stated, no Alleyne error occurs when there is no mandatory minimum sentence imposed which is triggered by judicial factfinding. Ramirez’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 Ramirez’s case from 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 Ramirez 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 Ramirez’s legally prescribed sentencing range. Ramírez has provided no evidence to the contrary, and we see none in the record.⁷

Ramirez 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 Ramirez’s sentence falls above the 10-year mandatory minimum is insufficient to establish that the mandatory minimum governed or that an Alleyne 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 Ramirez’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 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 Ramirez’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 Ramirez’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.

1. Use of Hearsay Evidence

Ramirez’s principal argument is that the district court based its Guidelines factfinding, and thus its sentence, on 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). Ramirez 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, Ramirez argues that sentences based entirely on unreliable hearsay evidence violate due process.

Even assuming, without deciding, that Ramirez’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 drug quantity. The court found that the hearsay testimony was corroborated by Agent Leon’s own surveillance and his review of the surveillance videos other officers had taken. With respect to the hearsay evidence pertaining to Ramirez’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 Leon’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, Ramirez’s sentence was not driven by the admission of unreliable hearsay. Thus, the due process rule that he cites is not implicated. Ramirez 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

Ramirez 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 Ramirez 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 [Ramirez] is also a leader. 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 Ramirez explicitly abandoned any challenge to the leadership enhancement. This waived any argument that the evidence did not show Ramirez’s leadership role. See United States v. Rodriguez, 311 F.3d 435, 437 (1st Cir.2002).

Even if Ramirez 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 Ramirez 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 wholesale supplier across several different drug points, this evidence shows, at a minimum, that Ramirez 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).

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 Leon’s testimony about the amount of activity at Pámpanos and amply supported by video footage; 24-hour operation of Pámpanos, based on Agent Leon’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 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.

1 . If the cooperator’s co-seller sold a similar number, the two would have sold about 28 packages during their 12-hour shift. Tf 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.

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 Ramirez pleaded guilty to that count — not because the district court chose to insert its own quantity findings into the judgment.

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).

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. Colon-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.

5 . The mandatory mínimums 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 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, - U.S. -, 132 S.Ct. 2321, 2326, 183 L.Ed.2d 250 (2012). Ramirez 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 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 .Ramirez 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.

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.

9 . Ramirez’s counsel went on to reiterate the argument that the drug quantity calculation was not supported by reliable evidence, then turned to mitigating factors.

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.