                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                               Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                       File Name: 16a0163p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


 UNITED STATES OF AMERICA,                                ┐
                                    Plaintiff-Appellee,   │
                                                          │
                                                          │
        v.                                                 >     No. 15-5324
                                                          │
                                                          │
 JIMMY JAMES JONES,                                       │
                                Defendant-Appellant.      │
                                                          ┘
                          Appeal from the United States District Court
                       for the Eastern District of Kentucky at Covington.
                      No. 2:13-cr-00035—Amul R. Thapar, District Judge.

                                Decided and Filed: July 14, 2016

             Before: SUHRHEINRICH, DAUGHTREY, and ROGERS, Circuit Judges.
                                 _________________

                                           COUNSEL

ON BRIEF: Mark A. Wohlander, WOHLANDER LAW OFFICE PSC, Lexington, Kentucky,
for Appellant. Charles P. Wisdom Jr., John Patrick Grant, UNITED STATES ATTORNEY’S
OFFICE, Lexington, Kentucky, for Appellee.

                                      _________________

                                            OPINION
                                      _________________

       PER CURIAM. Jimmy James Jones raises a constitutional challenge to his 78-month
sentence, contending that the district court’s use of the preponderance-of-the-evidence standard
in determining the amount of heroin attributable to him violated his right to due process. Given
our decision in United States v. Brika, 487 F.3d 450, 462 (6th Cir. 2007), rejecting this argument,
the district court’s judgment was without error and must be affirmed.




                                                 1
No. 15-5324                        United States v. Jones                              Page 2


       After a three-day trial, a jury convicted Jones of multiple heroin-distribution offenses:
conspiracy to distribute heroin in violation of 21 U.S.C. § 846, three counts of distribution of
heroin in violation of 21 U.S.C. § 841(a)(1), and three counts of aiding and abetting distribution
of heroin in violation of 21 U.S.C. § 841(a)(1). The probation office initially attributed to Jones
at least 5 grams but less than 10 grams of heroin, which corresponded to a base offense level of
14. The government objected, stating that the presentence report correctly calculated the total
quantity of heroin and crack cocaine involved in controlled buys from Jones and his co-
defendant but that this quantity did “not reflect the scale of the offense.” U.S. Sentencing
Guidelines Manual § 2D1.1 cmt. n.5. Based on a confidential informant’s testimony that he
purchased half a gram of heroin each day from Jones from September 2012 to February 2013,
the government asserted that Jones’s relevant conduct included at least 60 grams but less than
80 grams of heroin, which corresponded to a base offense level of 22. The probation office
recalculated Jones’s guidelines range in accordance with the government’s objections. Jones
objected to this recalculation, asserting in relevant part that “such a dramatic increase to [his]
recommended sentence” should be supported by clear and convincing evidence rather than by a
preponderance of the evidence.

       At sentencing, after testimony from the law enforcement officer who handled the
confidential informant, the district court found by a preponderance of the evidence that Jones’s
conduct involved at least 40.3 grams of heroin but noted:

       I don’t think, just for the record, that there’s clear and convincing evidence that
       it’s 40 grams. I think I would need to hear from [the confidential informant] in
       order to make that conclusion. And what he gave at trial is not, to me, clear and
       convincing, but it is a preponderance.

Using a base offense level of 18, which corresponds to 40 to 60 grams of heroin, the district
court calculated Jones’s guidelines range as 63 to 78 months of imprisonment. The district court
sentenced Jones to 78 months of imprisonment followed by lifetime supervised release.

       On appeal, Jones argues that due process required the district court to make its factual
finding as to drug quantity by clear and convincing evidence, given the extent of the resulting
increase in his guidelines range. Unfortunately for Jones, we previously have considered and
rejected this argument, holding that “due process does not require sentencing courts to employ a
No. 15-5324                        United States v. Jones                               Page 3


standard higher than preponderance-of-the-evidence, even in cases dealing with large
enhancements.” Brika, 487 F.3d at 462 (citation omitted). “[S]uch challenges should be viewed
through the lens of Booker reasonableness rather than that of due process.” Id.

       Jones nevertheless contends that the Supreme Court’s decision in Alleyne v. United
States, 133 S. Ct. 2151 (2013), calls the holding in Brika into question. In Alleyne, the Supreme
Court held that any fact that increases the mandatory minimum sentence must be submitted to
the jury. Id. at 2155. However, the decision in Alleyne did not disturb a district court’s authority
to impose a sentence within the statutory range. Id. at 2163; see United States v. Smith, 749 F.3d
465, 487 (6th Cir. 2014). Alleyne did not address the standard of proof for judicial factfinding at
sentencing. In the absence of an inconsistent decision of the Supreme Court, this panel will not
overrule the court’s precedent upholding the application of the preponderance standard at
sentencing. See Phillip v. United States, 229 F.3d 550, 552 (6th Cir. 2000).

       Accordingly, we AFFIRM Jones’s sentence.
