               Not for Publication in West's Federal Reporter

          United States Court of Appeals
                      For the First Circuit


No. 10-1110

                            UNITED STATES,

                               Appellee,

                                    v.

                              JEAN COLON,

                       Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. F. Dennis Saylor, U.S. District Judge]


                                 Before

                  Boudin, Howard and Thompson,
                         Circuit Judges.


     Victoria M. Bonilla and Bourbeau & Bonilla, LLP on brief for
appellant.
     Kelly Begg Lawrence, Assistant U.S. Attorney, Dina Michael
Chaitowitz, Assistant U.S. Attorney, Chief of Appeals, and Carmen
M. Ortiz, U.S. Attorney, on Motion for Summary Disposition for
appellee.



                          September 2, 2010
            Per Curiam.            Defendant-appellant Jean Colon appeals from

his 120-month prison sentence, the statutory mandatory minimum

sentence imposed on the basis of the district court's determination

by a preponderance of the evidence that he was accountable for five

kilograms of cocaine in connection with the conspiracy charge to

which he pled guilty.                The government has filed a motion for

summary disposition.              We affirm.

            I. Apprendi Challenge

            Colon asks this court to overrule its precedents holding

that judicially-found facts may be used to increase a mandatory

minimum sentence without running afoul of the Sixth Amendment. See

United   States        v.    Malouf,     466    F.3d    21,   27   (1st   Cir.   2006).

Appellant    relies         upon    recent     concurring     opinions    by   Justices

Stevens and Thomas in United States v. O'Brien, 130 S.Ct. 2169

(2010), urging that "McMillan and Harris should be overruled, at

least to the extent that they authorize judicial factfinding on a

preponderance of the evidence standard of facts that 'expos[e] a

defendant to [a] greater punishment than what is otherwise legally

prescribed    .    .    .    '"    Id.   at    2183    (Stevens,   J.,    concurring).

However, "[t]he Supreme Court has repeatedly instructed lower

courts that only it has the prerogative to overrule its own

decisions." United States v. Siciliano, 578 F.3d 61, 69 n. 5 (1st

Cir. 2009).       Until the Supreme Court overrules them, McMillan v.

Pennsylvania, 477 U.S. 79 (1986) and Harris v. United States, 536


                                              -2-
U.S. 545 (2002) remain good law. See United States v. Vilches-

Navarrete, 523 F.3d 1, 20 n. 14 (1st Cir. 2008).      The district

court correctly concluded that it was required to abide by the

statutory mandatory minimum sentence that corresponded to its drug

quantity finding.

          II. Individualized Drug Quantity Finding

          "When sentencing a participant in a drug-trafficking

conspiracy, the district court must make an individualized finding

concerning the quantity of drugs attributable to, or reasonably

foreseeable by, the offender." United States v. Cintron-Echautegui,

604 F.3d 1, 5 (1st Cir. 2010).   Similarly, "to apply the mandatory

minimum to a particular coconspirator, the sentencing court must

make a specific finding, supportable by a preponderance of the

evidence, ascribing the triggering amount to that coconspirator."

United States v. Colon-Solis, 354 F.3d 101, 103 (1st Cir. 2004).

Here the triggering amount that established the 120-month mandatory

minimum sentence was 5 kilograms of cocaine. Appellant argues that

the sentencing court failed to make such an individualized drug

quantity determination.    "Because the question of whether the

district court's drug quantity determination was based on an

individualized determination or not presents a question of law, our

review is de novo." Cintron-Echautegui, 604 F.3d at 5.1


     1
       The government maintains that plain error review should
apply because appellant failed to raise this argument before the
district court.    It is unnecessary to decide that question,

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             The transcript of the sentencing disposition clearly

demonstrates      that    the       district      court       made       the        requisite

individualized finding with respect to the drug quantity for which

Colon was responsible.             It specifically found that there was an

intention and an agreement between Colon and his co-defendant

Alexander Sanchez to supply five kilograms of cocaine, that Colon

"was capable of acquiring additional kilograms of cocaine," beyond

the three kilograms that were recovered, and that both Colon and

Sanchez were members of the conspiracy.                           That constitutes an

individualized finding that five kilograms of cocaine was a drug

quantity that was attributable to, or foreseeable by, Colon as a

member of the conspiracy.

             III. Evidentiary Support for Drug Quantity Finding

             "The sentencing court must determine drug quantity only

by    a   preponderance       of   the    evidence.           A    sentencing        court's

determination of drug quantity is a finding of fact and, as such,

will be upheld on appeal unless it is clearly erroneous.                                Clear

error     will   be   found    only      when,   upon    whole-record-review,              an

inquiring court 'form[s] a strong, unyielding belief that a mistake

has   been   made.'"     Cintron-Echautegui,            604       F.3d   at    6.      Having

carefully reviewed the entire record, we are not persuaded that




however, because appellant's claim cannot survive even de novo
review.

                                           -4-
such a mistake was made with respect to the court's drug quantity

determination.

              Appellant relies upon note 12 of U.S.S.G. §2D1.1, which

provides that the "agreed-upon quantity" shall be reduced to

exclude "the amount of controlled substance that the defendant

establishes that the defendant . . . was not reasonably capable of

providing or purchasing." Id.            However, it is the defendant's

burden   to    "prove[]   that   the   transaction   could   not   have   been

accomplished." United States v. Campusano, 556 F.3d 36, 40 (1st

Cir. 2009).       Appellant relies largely upon the fact that co-

defendant Matthew Leonard was sentenced for his participation in

the same conspiracy on the basis of a drug quantity of only four

kilograms.

              The discrepancy between the drug quantities for which

Colon and Leonard were held responsible does not establish that the

court's drug quantity finding with respect to Colon was clearly

erroneous.     The record does not indicate that Leonard participated

in the recorded negotiations between Sanchez and Colon and the

cooperating witness and undercover officer for the delivery of five

kilograms. Therefore, the Probation Office may have concluded that

there was not sufficient evidence to find that Leonard could have

foreseen that five kilograms would be distributed as part of the

conspiracy. Although the record indicates that the three kilograms

that were delivered were supplied by Leonard, the record does not


                                       -5-
establish who would supply the additional two kilograms that were

promised by Colon and Sanchez.        The sentencing court referenced

Leonard as one potential source of supply, but the government's

evidence     that   co-conspirators    Sanchez   and   Eric   Gonzalez

participated in other multi-kilogram cocaine transactions in the

fall of 2007 did not specify who the supplier was.     On this record,

the court was not required to find that Leonard was the only

possible supplier of the additional two kilograms.     Therefore, the

fact that Leonard was held responsible for only four kilograms of

cocaine as a participant in the conspiracy does not amount to proof

that Colon and Sanchez did not have the capacity to obtain the

additional two kilograms that they had negotiated to supply to the

undercover    officer.     The   district    court's   drug   quantity

determination was not clearly erroneous.

           Affirmed. See 1st Cir. R. 27.0(c).




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