          United States Court of Appeals
                       For the First Circuit


No. 08-1089

                           UNITED STATES,

                              Appellee,

                                 v.

                             LUIS ZAYAS,

                        Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Nancy Gertner, U.S. District Judge]


                               Before

                       Boudin, Selya and Lipez,
                           Circuit Judges.



     Cynthia A. Young, Assistant U.S. Attorney, and Michael J.
Sullivan, United States Attorney, on motion for summary
disposition.
     Robert B. Mann and Mann and Mitchell on brief for appellant.



                            June 8, 2009
              Per Curiam.      Luis Zayas appeals from the statutory

mandatory minimum sentence of 120 months that was imposed following

his   guilty    plea   to   possession   with    intent   to    distribute   and

conspiracy to possess with intent to distribute and to distribute

fifty or more grams of cocaine base.            He challenges the sentencing

court's determination that he was an "organizer, leader, manager,

or supervisor," warranting a two-level increase in his offense

level pursuant to U.S.S.G. § 3B1.1(c), and precluding safety-valve

relief pursuant to 18 U.S.C. § 3553(f)(4).                The government has

moved for summary affirmance. Only the sufficiency of the evidence

claim was raised at sentencing; as to all of appellant's other

claims, plain error review applies.         For the following reasons, we

grant   the     government's    motion    and    summarily     affirm    Zayas's

sentence.

              I. Judicial Factfinding Re: Safety-Valve Eligibility

              Zayas relies upon Apprendi v. New Jersey, 530 U.S. 466

(2000), Blakely v. Washington, 542 U.S. 296 (2004), and Cunningham

v. California, 549 U.S. 270 (2007), to argue that the district

court was prohibited by the Sixth Amendment from making factual

findings that rendered him ineligible for safety-valve relief by a

preponderance of the evidence.           Zayas concedes that this court's

decision in United States v. Bermudez, 407 F.3d 536 (1st Cir. 2005)

is on point; that opinion held under similar circumstances that

Blakely   was    not   implicated   when    judge-found        facts    precluded


                                     -2-
application of the safety-valve to authorize a lower sentence. Id.

at 545.

          Zayas's argument is that Bermudez was decided before the

Supreme Court issued its decision in Cunningham, and is no longer

good law after Cunningham.      Specifically, Zayas contends that the

role-in-the-offense factfinding by the sentencing court had the

effect of increasing the "statutory maximum," as that term is

defined in Cunningham, 549 U.S. at 275.

          Zayas's reliance on Cunningham is misplaced.            The Court

held there that California's determinate sentencing law "by placing

sentence-elevating     factfinding     within   the     judge's   province,"

violated the defendant's Sixth Amendment right to jury trial,

following Apprendi, Blakely and United States v. Booker, 543 U.S.

220 (2005).    Cunningham, 549 U.S. at 274 (emphasis added).             The

Cunningham    Court   applied   the   definition   of    statutory   maximum

articulated in Blakely, 542 U.S. at 303-304:

          "[T]he relevant 'statutory maximum,'" this
          Court has clarified, "is not the maximum
          sentence a judge may impose after finding
          additional facts, but the maximum he may
          impose without any additional findings."
          Blakely, 542 U.S., at 303-304 (emphasis in
          original).

Cunningham, 549 U.S. at 275.

          In Zayas's case, the statutory maximum sentence that he

could receive based solely upon his guilty plea to counts 1 and 4,

which specified drug quantities of fifty or more grams of cocaine


                                      -3-
base, was life in prison and the minimum was ten years. See 21

U.S.C. § 841(b)(iii).      Therefore, using the definition employed in

Cunningham, the relevant "statutory maximum" was a life sentence.

Clearly, no judicial factfinding resulted in imposition of a

sentence above that level.      To the contrary, judicial factfinding

regarding Zayas's role in the offense resulted in his receiving the

statutory minimum sentence.

            Before   and   after   Cunningham,   refusal   to   reduce    a

statutory sentence based on judicial factfinding does not violate

the Sixth Amendment. Bermudez, 407 F.3d at 545.        There was no error

in the sentencing court's reliance upon judicial factfinding in

determining that Zayas was ineligible for safety-valve relief.

            II. Mandatory Application of Safety-Valve Criteria after
            Booker

            Zayas argues that the district court erred in concluding

that it did not have the authority to sentence him below the

mandatory minimum sentence because he did not satisfy all the

safety-valve factors.       He contends that because the safety-valve

requirements    reference    the   guidelines    and   Booker   made     the

guidelines advisory, then the safety-valve requirements are also

advisory.    That argument has been rejected by all the courts of

appeals that have considered it.          See, e.g., United States v.

Tanner, 544 F.3d 793, 795 (7th Cir. 2008) (holding that the

sentencing judge "cannot treat as advisory the guideline provisions

that are preconditions for safety-valve relief, namely 18 U.S.C. §§

                                    -4-
3553(f)(1) and (4)"); United States v. McKoy, 452 F.3d 234, 240 (3d

Cir. 2006) (reasoning that "[i]nterpreting § 3553(f) as advisory

would effectively excise that section from the statute," and

therefore would be inconsistent with Booker, which left § 3553(f)

intact).   We agree.        Thus, Zayas has failed to demonstrate that the

sentencing court erred in treating § 3553(f) as mandatory rather

than advisory.

           III. Allocation of Burden re: Safety-Valve Prerequisites

           Appellant argues that because the statutory provision, 18

U.S.C. § 3553(f)4), incorporates the sentencing guidelines, the

government bears the burden of proof.                Under the statute, it is a

prerequisite for safety-valve relief that the defendant was not an

organizer, leader, or supervisor of others in the offense "as

determined   under      the     sentencing      guidelines."        18   U.S.C.      §

3553(f)(4). Guideline § 5C1.2(a)(4) employs the same language, and

in an application note explains that it "means a defendant who

receives an adjustment for an aggravating role under §3B1.1."

U.S.S.G. §5C1.1, cmt. (n.5).

           "The     government      bears      the    burden   of    proving      the

legitimacy   of   an    upward     role-in-the-offense         adjustment      by    a

preponderance of the evidence." United States v. Alicea, 205 F.3d

480, 485 (1st Cir. 2000).        However, "the burden of proof rests with

the   [defendant]      to    establish    the   five     criteria    set   out      in

subsection 3553(f)."          United States v. Rodriguez-Ortiz, 455 F.3d


                                         -5-
18, 25 (1st Cir. 2006). Therefore, the cross-reference to U.S.S.G.

§ 3B1.1 creates uncertainty about where the burden lies with

respect to the fourth criterion for safety-valve relief.

            Zayas concedes that "there was never any objection by the

defense with respect to the issue of who had the burden of proof as

to the role in the offense." Appellant's Brief, 60. Consequently,

plain    error   review   applies.    Given     that   this    court   has   not

addressed the issue, and other circuits faced with the issue have

declined to resolve it, see, e.g., United States v. Holguin, 436

F.3d 111, 119 (2d Cir. 2006), the district court's placement of the

burden upon the defendant for safety-valve purposes was not plain

error.    In all events, the allocation of the burden does not seem

to be a determinative factor in this case.                    For the reasons

discussed below, the record evidence amply supported the sentencing

court's finding that, more likely than not, Zayas was an organizer,

leader, manager or supervisor.

            IV. Sufficient     Evidence    to    Support      Role-in-Offense
            Enhancement

            Zayas's final argument is that the evidence, while it

supports a finding that he was a significant dealer, does not

support a finding that he was an "organizer, leader, manager or

supervisor of others in the offense," as this court's case law has

defined those guideline terms.

            We review a sentencing court's findings of
            fact for clear error.     We afford de novo
            review, however, to questions of law involved

                                     -6-
           in sentencing determinations.      A question
           about whether the evidence is sufficient to
           support a particular guideline determination
           is a question of law and, therefore, engenders
           de novo review.

United States v. Ramos-Paulino, 488 F.3d 459, 463 (1st Cir. 2007).

We have defined the requirements for a two-level role-in-the-

offense enhancement as follows:

           Role-in-the-offense     adjustments    address
           concerns of relative responsibility. [A two-
           level increase] is justified if the sentencing
           court supportably finds that (1) the criminal
           enterprise involved at least two complicit
           participants (of whom the defendant may be
           counted as one), and (2) the defendant, in
           committing the offense, exercised control
           over, organized, or was otherwise responsible
           for superintending the activities of, at least
           one of those other persons.

United States v. Cruz, 120 F.3d 1, 3 (1st Cir. 1997)(en banc).              We

have emphasized that "the management of criminal activities (as

opposed to the management of criminal actors) may ground an upward

departure but not an upward role-in-the-offense adjustment." Ramos-

Paulino, 488 F.3d at 464.

           The   sentencing   court   stated   that   it   "seems   .   .   .

inconceivable on these facts that Mr. Zayas was not an organizer or

leader."   The sentencing court made specific findings that Zayas

was the "source" and "importer" of the drugs involved in the

offense; that he intentionally placed some of the drugs in the home

of his codefendant; that other individuals were involved in the

offense conduct, including someone referred to as "Chino;" and that


                                  -7-
the defendant was delivering drugs to "various people in the

Springfield area."    But the court did not make a specific finding

identifying one or more persons whom Zayas organized or led.

           Zayas argues that the record does not contain sufficient

evidence to support the finding that he was an organizer, leader,

manager   or   supervisor   under    U.S.S.G.   §   3B1.1(c).      Where    the

district court "did not base the enhancement on specific findings

as to whom the defendant may have organized, led, managed, or

supervised," our review includes a "search[] [of] the record

(including the PSI Report) in an endeavor to identify any such

underlings." Id. at 463.

           The presentence investigation report (PSI Report) states

that Zayas "used two or three individuals to sell his crack cocaine

on   Allendale   Street."     That    fact   is     also    included   in   the

government's recitation at the change-of-plea hearing of the facts

it would prove if the case went to trial.              Zayas indicated his

agreement with the government's version of the facts.                  The PSI

Report recounted two separate incidents in which the cooperating

witness (CW) contacted Zayas to arrange a drug sale and Chino

provided the CW with the amount of drugs requested.             Zayas did not

object to that portion of the PSI Report.            The CW gave testimony

consistent with the facts contained in the PSI Report at Zayas's

trial on count 7.      The PSI Report related that the CW saw co-

defendant Eddie Matos handing cash to Zayas.               From the above, it


                                     -8-
easily can be inferred that Chino delivered the drugs to the CW "at

[Zayas's] express or implied direction." United States v. Ofray-

Campos, 534 F.3d 1, 41 (1st Cir.), cert. denied, 129 S.Ct. 588

(2008).     To summarize, the evidence in the record is sufficient to

support    the     sentencing   court's      two-level   role-in-the-offense

enhancement. See United States v. Jones, 523 F.3d 31, 43 (1st Cir.)

(holding    that    evidence    was   sufficient    to   support   §   3B1.1(c)

enhancement where Jones "coordinated the actions of a number of

drug sellers . . . and determined to a considerable extent when and

where they would make deliveries"), cert. denied, 129 S.Ct. 228

(2008); United States v. Soto-Beniquez, 356 F.3d 1, 54(1st Cir.

2003)(upholding two-level enhancement for supervisory role where

defendant controlled a drug point and had people "selling for

him"); Cruz, 120 F.3d at 4 (holding that defendant's supervision of

another    person    in   connection    with   a   single   drug   transaction

provided an adequate basis for § 3B1.1(c) enhancement).

            We need go no further.             The government's motion is

granted and appellant's conviction and sentence are affirmed.




                                       -9-
