          United States Court of Appeals
                      For the First Circuit

No. 13-1369

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                           RYAN MORRIS,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Douglas P. Woodlock, U.S. District Judge]


                              Before
                       Lynch, Chief Judge,
                   Souter,* Associate Justice,
                    and Stahl, Circuit Judge.


     Matthew R. Segal, with whom Nashwa Gewaily, Courtney M.
Hostetler, Miriam I. Mack, and American Civil Liberties Union, were
on the brief, for appellant.
     Jennifer Hay Zacks, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.


                           May 7, 2015




     *
          Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
          SOUTER,   Associate   Justice.   Federal   law   mandates    a

minimum ten-year prison sentence for a convicted member of a drug

conspiracy responsible for more than 280 grams of crack.              21

U.S.C. §§ 841(b)(1)(A)(iii); 846.      So far as it matters to this

appeal, the district court made a finding of drug quantity, by a

preponderance of the evidence: that the admitted conspirator Ryan

Morris was personally responsible for 765.5 grams of crack.       The

court consequently imposed the mandatory ten-year sentence.     While

judicial fact-finding of drug quantities sufficient by statute to

trigger mandatory minimum sentences was permissible at the time of

the sentencing hearing, during the pendency of Morris's appeal the

Supreme Court held that the Sixth Amendment guarantees that such

qualifying fact issues are subject to jury findings beyond a

reasonable doubt.   Alleyne v. United States, 133 S. Ct. 2151, 2160

(2013).

          The question here is whether the minimum sentence imposed

under the district court's judgment may nevertheless be affirmed as

resting on harmless constitutional error falling short of affecting

the defendant's substantial rights.    We conclude that the error is

ultimately harmless, in light of concessions made by Morris's

counsel and overwhelming evidence that Morris was responsible for

at least 280 grams of crack, and thus affirm.

                                  I.

          In December 2010, after investigating the activities of


                                 -2-
a drug ring operating in Dorchester, Massachusetts, the government

charged   nineteen   individuals,   including     Ryan   Morris,   with

conspiracy to distribute more than 500 grams of cocaine and more

than 280 grams of crack, as well as offenses stated in fifteen

additional counts.    Shortly before the indictment was returned,

investigators legally searched Morris's apartment, which yielded up

123.5 grams of crack.     In October 2012, Morris pleaded guilty to

the conspiracy count,1 but he did not admit that the conspiracy

collectively or he individually was responsible for a particular

quantity of either form of drug, the questions of quantity being

expressly left for later determination by the sentencing judge.

          In advance of Morris's sentencing hearing, the probation

office prepared a presentence report concluding, based on the

government's investigation, that Morris himself was responsible for

10 kilograms of cocaine, and 123.5 grams of crack.             Because

responsibility for 5 kilograms of cocaine triggers a mandatory

minimum ten-year sentence, see 21 U.S.C. §§ 841(b)(1)(A)(ii), 846,

the report recommended that Morris be sentenced accordingly.        He

objected to the conclusion about the cocaine quantity and the

ensuing recommendation.

          At the hearing, Morris took the stand and disputed that

he had ever dealt in kilograms of cocaine.      He said that he bought


     1
       Morris also pleaded guilty to one count of possession of
more than 28 grams of crack with intent to distribute. But this
count and its sentence are not pertinent to this appeal.

                                 -3-
cocaine in quantities never greater than 62 grams, which he would

cook   into   crack   and   then   sell.   Between   direct   and   cross-

examination, Morris admitted to four specific transactions between

May and July 2010 involving 62 grams of cocaine each, for a total

of 248 grams. When pressed on cross-examination to state the total

number of transactions, he acknowledged more, albeit less exactly:

       Q: About how many times do you think you purchased
       cocaine from Michael Williams [another member of the
       conspiracy]?
       A: Probably twelve times.
       Q: Twelve times?
       A: Tops, probably twelve.
       Q: Starting in 2010 at some point . . . "twelve times"?
       A: Twelve times from when I started dealing with Mike. I
       can't remember when I first started dealing with Mike,
       but I know it was about twelve times total.
       Q: Okay. Well, you said you first started dealing with
       Mike in 2010, so we'll say in 2010 you dealt with Michael
       Williams twelve times; is that your testimony? That's
       what you're telling the Court?
       A: Precisely, I guess, yeah, about twelve.
       Q: And it was always 62 grams?
       A: No. Sometimes it would be smaller than that.
       Q: What was the smallest amount you ever purchased from
       Michael Williams?
       A: Twenty-eight.
       Q: An ounce?
       A: Yes.
       Q: How many times did you purchase an ounce from Michael
       Williams?
       A: I can't remember.
       Q: Well, why don't you give it your best guess?
       A: Probably like three times.
       Q: So, three times you purchased an ounce, and the other
       times was a 62?
       A: Yeah.

The district court found that Morris was not responsible for any

kilogram transactions of cocaine, but because he had disputed being

a cocaine dealer by admitting to being a crack dealer, the judge

                                     -4-
proceeded to consider what crack quantity he should be found

responsible for.

            Morris argued that he should be responsible only for the

amounts    converted   from   four    specifically   identified    cocaine

purchases, that is, a total of 248 grams of crack.          He argued that

the details of the remaining transactions were speculative guesses,

and he suggested that the 123.5 grams of crack found in the search

might be a leftover portion of the 248 grams.

            The district court rejected Morris's position, and found

by a preponderance of the evidence that he was responsible for

crack cooked from the quantities of cocaine procured in at least

twelve transactions, nine of 62 grams and three of 28.            To this,

the court added the stash of 123.5 grams of crack, which the

district    court   found     was    not   derived   from   the   admitted

transactions, given the "time frame between" between the purchases

(May-July 2010) and the seizure (December 2010).            The court thus

calculated that Morris was responsible for 765.5 grams of crack,

calling that conclusion "conservative."        Because this exceeded the

280 gram threshold, the judge imposed a ten-year mandatory minimum

sentence, although he said that he would impose a lower one if that

were open to him.

            While Morris's appeal was pending, the Supreme Court

handed down Alleyne, which held that the Sixth Amendment requires

any fact mandating the imposition (or an increase) of a particular


                                     -5-
minimum sentence to be treated as an element of the crime.           133 S.

Ct. at 2160-63.      Accordingly, under the principle of Apprendi v.

New Jersey, 530 U.S. 466, 484 (2000), "the Sixth Amendment provides

defendants with the right to have a jury find those facts beyond a

reasonable doubt," in the absence of a defendant's admission.

Alleyne, 133 S. Ct. at 2160.

                                    II.

          Because Morris preserved no Sixth Amendment claim in the

trial court, we review for plain error, the burden being on Morris

to show (1) an error (2) that is clear and obvious, (3) affecting

his substantial rights, and (4) seriously impairing the integrity

of judicial proceedings.      United States v. Santiago, 775 F.3d 104,

106 (1st Cir. 2014).     The government concedes the first two prongs

of plain error in imposing the mandatory minimum based on the

judge's finding of crack quantity by a preponderance, rather than

a jury's finding beyond a reasonable doubt or Morris's specific

admission.2

          As   for    the   third   prong   of   plain   error   review,   in

substance it is harmless error analysis, except that the defendant

bears the burden of persuasion.       Ramirez-Burgos v. United States,


     2
       The government equates the requirement of United States v.
Colon-Solis, 354 F.3d 101 (1st Cir. 2004), to limit the sentencing
level to a defendant's specific responsibility rather than that of
a conspiracy collectively, id. at 103, with the Sixth Amendment
requirement recognized in Alleyne, see United States v. Pizarro,
772 F.3d 284, 290-94 (1st Cir. 2014), though in this case neither
fact was found or admitted.

                                    -6-
313 F.3d 23, 29 (1st Cir. 2002).   An Alleyne error is harmless when

"it can fairly be said beyond any reasonable doubt that the

assigned error did not contribute to the result of which the

appellant complains."    United States v. Harakaly, 734 F.3d 88, 95

(1st Cir. 2013) (quoting United States v. Pérez–Ruiz, 353 F.3d 1,

17 (1st Cir. 2003)).    In drug cases, "overwhelming evidence of the

requisite drug types and quantities" generally serves as a proxy

for determining whether the Alleyne error contributed to the

result.   Harakaly, 734 F.3d at 95 (quoting Pérez–Ruiz, 353 F.3d at

18) (preserved Alleyne error); see also United States v. Razo, No.

13-2176, 2015 WL 1455076, at *8 (1st Cir. Apr. 1, 2015) (same);

United States v. Paladin, 748 F.3d 438, 453 (1st Cir. 2014) (third

prong of plain error, substantial rights-harmlessness); United

States v. Delgado-Marrero, 744 F.3d 167, 189 (1st Cir. 2014)

(fourth prong of plain error, integrity of proceedings).         By

"overwhelming evidence," we mean here a corpus of evidence such

that no reasonable jury could find, based on the record, that the

crack quantity was less than that required for the mandatory

minimum to apply.

           Much of Morris's brief is devoted to disputing the

pertinence of the "overwhelming evidence" standard, but he cites no

persuasive authority to support his position.3   To begin with, the


     3
       Indeed, Morris concedes that one of his arguments, that
Alleyne error is structural, is expressly foreclosed by circuit
precedent. Harakaly, 734 F.3d at 74-75.

                                 -7-
cases applying the overwhelming evidence standard to address the

harmlessness of Alleyne and Apprendi errors are legion.                  E.g.,

Razo,   2015   WL   1455076,    at   *8;   Paladin,   748    F.3d   at    453;

Delgado-Marrero, 744 F.3d at 189; United States v. Correy, 570 F.3d

373, 377 (1st Cir. 2009); United States v. Casas, 425 F.3d 23, 65-

66 (1st Cir. 2005); United States v. Morgan, 384 F.3d 1, 8 (1st

Cir. 2004); United States v. Soto-Beníquez, 356 F.3d 1, 46 (1st

Cir. 2003); United States v. Nelson-Rodriguez, 319 F.3d 12, 45-46

(1st Cir. 2003).

           Morris nonetheless contends that this court should apply

a "causal-connection" test, which "asks whether the district court

might have imposed a lower sentence if it had complied with the

Sixth   Amendment's      restrictions      on   judicial      factfinding."

Appellant's Reply Br. 2.       But Morris presents a false choice.         On

the assumption that this issue had been entrusted to a properly

instructed, rational jury, the district court could not have

imposed a lower sentence, given overwhelming evidence that Morris

was responsible for at least 280 grams of crack.            Thus it comes as

no surprise that the principal cases Morris cites in support of his

causal-connection test are fully consistent with the overwhelming

evidence test.      See United States v. Barnes, 769 F.3d 94, 99 n.5

(1st Cir. 2014) (challenge to a sentence above the mandatory

minimum; citing Harakaly); United States v. Pena, 742 F.3d 508, 514

(1st Cir. 2014) (government concedes Alleyne error not harmless;


                                     -8-
same); United States v. Delgado-Marrero, 744 F.3d 167, 189-90 (1st

Cir. 2014) ("scant evidence" of fact mandating minimum sentence;

same).

             At oral argument, Morris sought to invoke a different

standard for harmlessness that this court has applied in the

context of error under United States v. Booker, 543 U.S. 220

(2005).     See, e.g., United States v. Vázquez-Rivera, 407 F.3d 476,

490 (1st Cir. 2005).     But the applicability of such precedents to

Alleyne errors is foreclosed by Harakaly and its progeny, as cited

earlier.

             In a supplemental filing, Morris seeks to benefit from

United States v. Pizarro, 772 F.3d 284, 294-95 (1st Cir. 2014),

which distinguished between two forms of Alleyne error, at "trial"

versus at "sentencing." The former is subject to harmless or plain

error review, whereas the latter requires automatic reversal.         Id.

at   296.      Morris   contends   that   this   case   involves   Alleyne

"sentencing" error.

             But he misreads Pizarro, which calls for reversal as

"sentencing" error when the quantity issue had been submitted to a

jury that rejected a finding in the government's favor.               Id.

"Trial" error in Pizarro, on the other hand, was simply a failure

to instruct the jury on the quantity issue.        Id. at 294-296.     The

Alleyne error in this case, determining a mandatory sentence on the

basis of a fact not admitted in connection with a guilty plea


                                    -9-
(which here was expressly reserved, without objection, for the

judge at sentencing), is akin to that of failing to instruct the

jury on an element of the crime; in each circumstance, a crucial

but unadmitted fact has escaped the required opportunity for a

jury's determination. Thus, plain error review is in order, and we

apply the overwhelming evidence test under the third prong.

                                       III.

                 Under this test, we have no hesitation in concluding that

the evidence is overwhelming that Morris is responsible for at

least 280 grams of crack. Morris made a critical concession in the

district court.          His lawyer said to the judge, "[I]f you are going

to find any grams of cocaine base or attribute to Mr. Morris, I

would ask that you find that the four transactions between May 30th

and July 5th of 2010 . . . ."         Soon thereafter, the attorney added,

"I would just ask the Court to just attribute four transactions of

62 grams each." We think these statements are most reasonably read

as an admission on Morris's part that not only should he be held

responsible for four transactions of 62 grams of cocaine but also

that       the   court   could   attribute    "cocaine   base"   (i.e.,   crack)

quantities to him based on a 1:1 ratio with cocaine.4              Morris thus


       4
      The plausibility of our reading of Morris as having conceded
as unremarkable a 1:1 cocaine/crack conversion ratio is bolstered
by the many (albeit not unanimous) legal authorities citing that
same ratio as a properly found fact. See, e.g., United States v.
Fox, 189 F.3d 1115, 1120 (9th Cir. 1999) ("[Officer] Bryant
testified that in a laboratory there is typically a ten percent
weight loss when cooking cocaine power into crack, but that on the

                                       -10-
conceded responsibility for 248 grams of crack.    See United States

v. Etienne, 772 F.3d 907, 923 (1st Cir. 2014) (where the defendant

agrees to having conducted certain drug transactions, this "clearly

establishe[s]" drug quantity sufficient to trigger a mandatory

minimum sentence).    The only question remaining, then, is whether

the evidence is overwhelming that Morris is responsible for at

least another 32 grams.

          We believe that it is.       The district court found that

Morris was responsible for another 517.5 grams of crack,5 well

above the additional 32 grams necessary to trigger the mandatory

minimum sentence.    While that finding was based on a preponderance

standard, the evidence underlying the district court's calculations

was Morris's own testimony, as quoted earlier, and obviously a

defendant's admissions can support an inference of drug quantity

beyond a reasonable doubt.      See Harakaly, 734 F.3d at 96-97.

Although not all testimony offered by a defendant should be treated


street one gram of powder cocaine typically converts into one gram
of crack cocaine, because street cookers use baking soda and tap
water to increase the weight."); United States v. Taylor, 116 F.3d
269, 272 (7th Cir. 1997) ("Powder cocaine normally converts to
crack cocaine in a one to one ratio . . . ."); United States v.
Lucas, 193 Fed. App'x 844, 846 (11th Cir. 2006) ("Special Agent
Todd Hixson testified that a quantity of powder cocaine converts
approximately to the same amount of crack cocaine."); United States
v. McMurray, 833 F. Supp. 1454, 1473 & n.29 (D. Neb. 1993)
(applying a 1:1 ratio and citing M. Khalsa et al., Smoked Cocaine:
Patterns of Use and Pulmonary Consequences, 24 J. Psychoactive
Drugs 265, 267 (1992)).
     5
       517.5 grams is the district court's finding of 765.5 grams,
less the 248 grams admitted.

                                -11-
as a reliable admission, there is good reason to treat Morris's

testimony that way.   He took the stand to dispute the government's

cocaine quantity recommendations, and so had every incentive to

minimize (and very likely did minimize) the degree to which he was

involved in purchasing drugs. He testified that he was involved in

about eight other drug transactions of at least 28 grams each (the

twelve to which he testified, less the four conceded). Accordingly,

his own testimony, despite its imprecise aspects, establishes

beyond any doubt that he is responsible for far more than another

32 grams of crack.

          Morris   raises   various   questions   about   the   district

court's calculations of the drug quantity, noting that there was no

direct evidence, only circumstantial evidence; suggesting that his

own testimony was potentially unreliable; contending that the

district court made possibly suspect inferences about quantity loss

in the cocaine/crack conversion and the temporal gap between the

cocaine transactions and the residence search; and observing that

the district court acknowledged its own lack of certainty and cited

the preponderance standard in reaching its conclusions.           These

criticisms would have some force and could be persuasive if we were

asked whether the evidence overwhelmingly establishes that Morris

was responsible for another 517.5 grams of crack above the 248

grams admitted.    But, as mentioned earlier, the question is only

whether Morris is responsible for another 32 grams.        As to that,


                                -12-
Morris's criticisms do not raise doubt in our mind.6

          In sum, we conclude there is overwhelming evidence that

Morris is responsible for at least 280 grams of crack, and has thus

failed to meet his burden of persuasion under the third prong of

plain error review.

                               IV.

          The judgment of the district court is affirmed.




     6
       Even using the more conservative cocaine/crack conversion
ratio of 1:0.5, see, e.g., United States v. Booker, 334 F.3d 406,
413–14 & n.3 (5th Cir. 2003), the quantity of crack (321 grams
based on 642 grams of cocaine purchased from the twelve
transactions) surpasses the threshold triggering the mandatory
minimum, without counting the crack seized from Morris's residence.

                               -13-
