                Not for Publication in West's Federal Reporter
               Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                        For the First Circuit

No. 04-1894

                      UNITED STATES OF AMERICA,

                                 Appellee,

                                      v.

                             GODFREY BROOKS,

                         Defendant, Appellant.


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

       [Hon. George Z. Singal, Chief U.S. District Judge]


                                   Before

              Torruella and Lynch, Circuit Judges,
                  and Lasker,* District Judge.



     Rosemary Curran Scapicchio for appellant.
     F. Mark Terison, Senior Litigation Counsel, with whom Paula D.
Silsby, United States Attorney, was on brief, for appellee.


                              March 31, 2006




* Of the Southern District of New York, sitting by designation.
          LASKER,    District    Judge.        Appellant   Godfrey      Brooks

(“Brooks")   was   convicted    in   January   2004   as   a   member    of   a

conspiracy to distribute cocaine and cocaine base in Maine. He was

found guilty of several counts, including: conspiracy to distribute

and possess with intent to distribute cocaine base under 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(A) and 846 ("Count II"); distribution and

aiding and abetting the distribution of cocaine base under 21

U.S.C. §§ 841(a)(1), 841(b)(1)(C) and 18 U.S.C. § 2 ("Counts VII

and VIII"); and possession with intent to distribute at least five

grams of cocaine base and aiding and abetting under 21 U.S.C. §§

841(a)(1), 841(b)(1)(B) and 18 U.S.C. § 2 ("Count IX").            The jury

found that the quantity of cocaine base involved in Counts II and

IX equaled five or more grams, but that the amount involved in

Count II did not exceed fifty grams.

          Brooks was sentenced to 276 months on Counts II and IX,

and 240 months on Counts VII and VIII, to be served concurrently.

The sentence was based on a finding by the court that Brooks was

responsible for 73.4 grams of cocaine base, that he was the leader

of the conspiracy listed under Count II, and that he had obstructed

justice by persisting with a false identification.             As calculated

in the Pre-Sentence Report ("PSR") and by the court, the sentencing

guideline range for his offense level of 38, and a criminal history

category of II, was 262-327 months.

          Brooks appeals on six grounds: (1) the sentence is in


                                     -2-
excess of what was authorized by the jury and is based on evidence

not presented at trial, necessitating a remand under United States

v. Booker, 543 U.S. 220 (2005) or United States v. Antonokapolous,

399 F.3d 68 (1st Cir. 2005); (2) disproportionate weight was

attributed to drug quantity during the sentencing process and

constituted a violation of Brooks' Sixth and Fourteenth Amendment

rights; (3) the findings upon which sentencing enhancements were

based were clearly erroneous, unsupported by the evidence, as well

as in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000),

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

Washington, 541 U.S. 36 (2004); (4) the court deprived Brooks of

his right to confront witnesses; (5) the trial court failed to give

a   multiple    conspiracy      instruction;         and    (6)     the   prosecutor's

improper    vouching     for   the    cooperating          witnesses      affected    the

outcome of the trial.

            For   the     reasons     stated     below,        we    affirm    Brooks'

conviction and sentence.

                                 I. Background

            Brooks was indicted in May 2003 as a member of one of two

overlapping conspiracies to distribute cocaine base.                          Roderick

Allen     ("Allen")     was    the    common    co-conspirator            between     one

conspiracy run by Easton Wilson ("Wilson"), and another in which

Brooks was involved.          At trial, Allen testified as a cooperating

witness for the Government and provided details about the second


                                        -3-
conspiracy, which included himself, Brooks, Cecile St. Hilaire

("St. Hilaire"), and Linda Williams ("Williams").

          In late 2002, Allen and Brooks traveled together from

North Carolina to Maine.   Upon arriving in Maine, Brooks and Allen

stayed with Williams before driving back to North Carolina.    They

returned to Maine soon thereafter, stopping in Boston to pick up

cocaine for which Brooks paid, and discussing distribution options

to people Allen knew.      Williams and Allen testified that they

received cocaine from Brooks, while Donceia Robinson ("Robinson")

testified that she purchased cocaine from either Brooks or Williams

at least five times.    Brooks was a guest at Williams' home from

December 2002 to March 2003.

          Nancy LeMar ("LeMar"), with whom Allen stayed for a

period, testified that another couple, Josh Arbor ("Arbor") and

Nicole Truman ("Truman"), also bought cocaine from Brooks.    Allen

confirmed that Brooks supplied LeMar and her boyfriend with cocaine

and that Brooks also gave crack to someone who lived downstairs

from LeMar.   According to LeMar, Brooks was at her house up to five

times a week selling crack.

          Due to his own cocaine addiction, Allen became less

dependable in the distribution chain and LeMar sometimes dealt with

customers such as St. Hilaire, who estimated that she bought

cocaine from LeMar several times, as well as directly from Allen

and Brooks.   St. Hilaire also recalled meeting LeMar's suppliers,


                                -4-
identified as Brooks and Allen, as well as driving Allen and Brooks

to Boston in order for them to buy cocaine.

           About a month after Wilson's arrest, Brooks and Allen

broke off relations and Allen returned to North Carolina.   Brooks

continued to live with Williams and to sell crack from LeMar's home

with occasional help from St. Hilaire.

           The Maine Drug Enforcement Agency ("MDEA") arranged for

Tom Foss ("Foss") to make controlled crack purchases from Williams

on April 2 and 9, 2003, which were monitored over a body wire on

Foss.   Foss first purchased 3.1 grams and then 2.8 grams of crack

that Williams claimed she had obtained from Brooks.

           A third deal between Williams and Foss was planned by

MDEA for 5:00 p.m. on April 11, 2003.       According to Williams,

Brooks was to provide Williams with $1,000 worth of crack for her

to sell to Foss.   On the afternoon of April 11, an MDEA agent saw

Brooks leave Williams' house in a car.   The agent requested a stop

by local police in order to identify Brooks.      When stopped for

driving without a front license plate, Brooks identified himself as

Dennis Nembhard and presented a New York driver's license with a

photograph that did not resemble him.    Brooks was let go with a

warning.

           That same day, Williams was arrested upon returning to

her house, where 6.0 grams of crack were found in a kitchen drawer,

and $2,500 in cash was found in a bag.    Williams cooperated with


                                -5-
police and made a phone call to Brooks, which was taped.                     Brooks

was   arrested   upon   his    return    to    Williams'     house,   and,    by   a

subsequent search of his person, was found to possess $1,000 in

small bills inside his shoes.

           Brooks was tried together with Stephen McMann ("McMann"),

a member of the Wilson conspiracy, and found guilty on January 13,

2004.   The PSR reflects Brooks' objections to the drug quantity

attributed to him as being "insufficiently reliable, based on

evidence not presented at trial, and being contrary to the verdict

returned by the jury."        Brooks also objected to the obstruction of

justice and leadership role enhancements.               The court ultimately

found   Brooks   responsible     for    73.4    grams   of   cocaine   base    and

sentenced him to 276 months, stating:

           The Court:          I'm not going to give you the
                               320 months that Mr. Toof thinks
                               you ought to get, and perhaps
                               he is correct.    I'm also not
                               going to give you the minimum
                               because I'm concerned that what
                               happened in Connecticut in
                               terms    of   the   outstanding
                               warrants, I'm concerned with
                               the     international      drug
                               smuggling. I'm going to give
                               you 276 months, which is toward
                               the lower end of the guideline
                               range.

Brooks timely appeals his conviction and sentence on the grounds

specified above.




                                        -6-
                               II. Discussion

A. Drug Quantity, Leadership Role, and Obstruction of Justice
Enhancements

             Brooks contends that remand is required because the

sentence     he   received   was    based   on    judicial     fact-finding    in

violation of Apprendi, Blakely, and Booker.             According to the PSR,

Brooks objected to the drug quantity determination on the grounds

that   it   was   "insufficiently     reliable,       based   on   evidence   not

presented at trial and ... contrary to the verdict returned by the

jury."      Brooks also objected to the court's finding that the

substance was cocaine base, as well as the enhancements premised on

a determination that Brooks played a leadership role and was guilty

of   obstruction    of   justice.     Based      on   his   objections,    Brooks

maintains that he preserved a Booker error sufficient to require a

remand for resentencing.

             The Government argues that Brooks did not in fact present

any Apprendi or Blakely objections. Directing our attention to the

record, the Government states, "Brooks lodged no constitutional

objections based upon Apprendi or Blakely.                    Thus, he did not

preserve Booker error." The Government maintains that the district

court's determination of drug quantity and imposition of further

enhancements for sentencing purposes were not clearly erroneous

because     the   findings   were   based   on    reliable     evidence.      The

Government contends that Brooks cannot show that the sentencing

judge would have imposed a lesser sentence under an advisory

                                      -7-
Guidelines system and thus fails to meet the plain error standard

necessary to remand an unpreserved Booker error.

               This Court has recently defined a Booker error as, "not

that a judge (by a preponderance of the evidence) determined facts

under    the    Guidelines    which   increased     a    sentence   beyond    that

authorized by the jury verdict or an admission by the defendant;

the error is only that the judge did so in a mandatory Guidelines

system."       Antonakopoulos, 399 F.3d at 75.

               A Booker error is only preserved, however, "if the

defendant below argued Apprendi or Blakely error or that the

Guidelines were unconstitutional."             Id. at 76.      At a minimum, an

objection sufficient to preserve a Booker error "must fall at least

arguably within the encincture of the constitutional concerns

raised   in     Apprendi,    Blakely,    and   Booker."       United   States    v.

Martins, 413 F.3d 139, 153 (1st Cir. 2005).

               Prior to sentencing, Brooks lodged an objection to the

PSR, arguing that the drug quantity finding was "insufficiently

reliable, based on evidence not presented at trial and ... contrary

to the verdict returned by the jury."                   At sentencing, Brooks'

objections to the drug quantity determination, as well as the other

sentencing       enhancements,    were    again     premised    solely   on     the

sufficiency and reliability of the evidence.                    These types of

objections do not amount to Apprendi/Blakely or constitutional

arguments      that   preserve   Booker    error.       See   United   States    v.


                                         -8-
Villafane-Jimenez, 410 F.3d 74, 85 n.13 (1st Cir. 2005); United

States v. Bailey, 405 F.3d 102, 114 (1st Cir. 2005).                      To preserve

a Booker error, a defendant must assail, "as a constitutional

violation, the imposition of enhancements that bring his sentence

above the maximum sentence authorized by jury fact-finding or

admitted facts." United States v. Fornia-Castillo, 408 F.3d 52, 73

(1st   Cir.    2005).    By   objecting      to    the    use   of    hearsay      and

questioning the credibility of witnesses, Brooks did not present an

Apprendi/Blakely or constitutional argument which satisfies the

Antonakopoulos standard for preserving Booker error.

              Unpreserved Booker error is evaluated according to the

plain error standard enunciated in United States v. Olano, 507 U.S.

725, 732 (1993), which consists of four factors: (1) an "error,"

(2) that is "plain," and (3) that "affects substantial rights."

Id.    If the first three factors are met, we may exercise our

discretion     to   correct   the   error,   but    (4)    only      if    the   error

"seriously affects the fairness, integrity or public reputation of

judicial proceedings." Id. at 736. Any sentence imposed under the

mandatory Guidelines system satisfies the first two Olano prongs.

Antonakopoulos, 399 F.3d at 77.        As to the third and fourth prongs,

there must be a "reasonable probability that the district court

would impose a different sentence more favorable to the defendant

under the new 'advisory Guidelines' Booker regime."                   Id. at 75.

              The sentencing judge's comments do not support a finding


                                      -9-
that there is a reasonable probability he would have imposed a more

favorable sentence in the absence of the mandatory Guidelines. The

judge specifically sentenced Brooks above the minimum due to

concerns with Brooks' outstanding warrants and the international

nature of the drug smuggling.     Additionally, the judge imposed a

supervised release term significantly longer than was mandatory and

found that the estimates concerning drug quantity were "extremely

conservative."     It is unlikely the judge would have imposed a

lesser sentence under an advisory Guidelines system, and "[i]t is

not enough for a defendant merely to argue that his sentence might

have been different had the guidelines been advisory at the time of

sentencing."     United States v. Sánchez-Berríos, 424 F.3d 65, 80

(1st Cir. 2005).    Brooks does not point to anything "concrete ...

that provides a plausible basis" for a finding that the judge would

have sentenced differently under an advisory Guidelines framework.

United States v. Guzmán, 419 F.3d 27, 32 (1st Cir. 2005).     Olano

prongs three and four therefore are not satisfied and we find that

the sentencing based on the judge's findings as to drug quantity

did not constitute plain error.

          Nor did the judge's findings as to Brooks' leadership

role in the conspiracy and obstruction of justice constitute clear

error.   A leadership role enhancement is appropriate when the

sentencing court finds first, that the defendant has acted as an

organizer or leader of a criminal activity, and second, that the


                                -10-
activity involved five or more participants or was otherwise

extensive.   United States v. Olivier-Diaz, 13 F.3d 1, 4 (1st Cir.

1993).   Based on the evidence presented, the judge found that

Brooks played a leadership role because he

          devised and implemented a plan on how to
          distribute [the drugs] in terms of locations
          and distribution network, either ordered
          others to recruit members of the conspiracy or
          recruited them himself and issued orders with
          regard to how the drugs were obtained, stored
          and distributed.

The judge also found that the conspiracy clearly involved at least

seven members who helped Brooks "deliver cocaine, helped him re-

supply with cocaine and provided him with transportation."     The

record supports the judge's conclusion as to Brooks' leadership

role and because "such 'role in the offense' assessments are fact-

specific, the district court's views must be accorded 'considerable

respect.'"   Id. (citing United States v. Ocasio, 914 F.2d 330, 333

(1st Cir. 1990)).     We therefore find that no clear error was

committed.

          Finally, the obstruction of justice enhancement was not

clearly erroneous. Perjury serves as a trigger for the obstruction

of justice enhancement, United States v. Campbell, 61 F.3d 976, 984

(1st Cir. 1995), and the sentencing judge correctly assessed that

Brooks committed perjury.   In continually denying that he sold any

cocaine or was involved in cocaine trafficking in Maine, Brooks

willfully provided false testimony as to a material fact.      The


                               -11-
judge cited a litany of instances from the record in which Brooks

denied selling or trafficking cocaine despite the significant

evidence indicating otherwise.               We can overturn the district

court's findings as to the obstruction of justice enhancement only

if they are clearly erroneous, United States v. Tracy, 36 F.3d 199,

202 (1st Cir. 1994), and the record negates such a finding.

             In sum, given the lack of plain error under Booker or as

to the weight given to the drug quantity, and the absence of clear

error   as   to    the   leadership   role    and   obstruction    of    justice

enhancements, the sentence is affirmed.

B. Multiple Conspiracy Instruction

             Brooks contends that, because he was tried concurrently

with McMann, the distributor for Wilson's conspiracy, a multiple

conspiracy instruction was required and the judge's failure to give

such an instruction resulted in a violation of Brooks' right to a

fair trial.       The Government argues that, at trial, Brooks' counsel

requested     only    standard    instructions      and,   after   the     judge

instructed the jury, Brooks' counsel failed to object to the

conspiracy     instruction       or   ask     for   a   multiple   conspiracy

instruction.

             Brooks' counsel did not request a multiple conspiracy

instruction, nor did he object to the conspiracy instructions after

they were explained to the jury.              Plain error review therefore

applies.     See Ramirez-Burgos v. United States, 313 F.3d 23, 28-29


                                      -12-
(1st Cir. 2002); United States v. Mitchell, 85 F.3d 800, 807 (1st

Cir. 1996).

            A court "should instruct on the [multiple conspiracy]

issue ‘if, on the evidence adduced at trial, a reasonable jury

could find more than one such illicit agreement, or could find an

agreement different from the one charged.'" United States v.

Balthazard, 360 F.3d 309, 315-16 (1st Cir. 2004) (quoting United

States v. Brandon, 17 F.3d 409, 449 (1st Cir. 1994)).             Plain error

is not evident in the district court's failure to charge multiple

conspiracies,   however,    because   Count   I    charged   a    conspiracy

involving   McMann   and   not   Brooks,   while    Count    II    charged   a

conspiracy including Brooks, but not McMann.         Furthermore, in his

instructions on conspiracy, the judge correctly instructed the jury

that the Government had to prove beyond a reasonable doubt that

"the agreement specified in the indictment, and not some other

agreement or agreements, existed between at least two people." See

United States v. Gómez-Rosario, 418 F.3d 90, 104-105 (1st Cir.

2005).   Counts I and II are largely distinct in time and membership

such that McMann and Brooks cannot be said to have been charged as

members of a single overarching conspiracy and the jury did not

have an opportunity to convict Brooks of the same conspiracy to

which McMann was a party.        Given the separate conspiracies with

which McMann and Brooks were charged, a multiple conspiracy charge

was not warranted.


                                   -13-
           Furthermore, we find that the jury's verdict - which, by

its   differentiation    of    the   drug      quantities   involved     in    each

conspiracy   reflected     the    jury's       understanding      that   the   two

conspiracies were distinct - is dispositive on the question of

whether the proceedings suffered from unfairness or prejudice.                  In

finding McMann guilty on Count I, the jury determined that the

first conspiracy was responsible for more than fifty grams of

cocaine base.      In finding Brooks guilty on Count II, however, the

jury determined that the second conspiracy was responsible for more

than five grams but less than fifty grams of cocaine base.                     The

verdict belies Brooks' claim that the jury found him to be part of

a single overarching conspiracy which included McMann. Contrary to

Brooks' assertion that the jury failed to identify more than one

conspiracy, the verdict reveals the jury's clear cognizance that

multiple conspiracies existed and therefore leaves us incapable of

finding that a multiple conspiracy instruction was necessary to

render Brooks' trial fair.

C. Right to Confront Witnesses

           Brooks     argues     that    the    admission    of     out-of-court

statements by his co-conspirators violated his right to a fair

trial.   Brooks asserts that on several occasions during the trial,

statements made by witnesses who were not available for cross-

examination were permitted in violation of Crawford v. Washington.

The   Government    contends     that,     although    Crawford     applies     to


                                        -14-
testimonial statements, the statements Brooks disputes were made by

co-conspirators "in furtherance of a conspiracy," and therefore

were not testimonial in nature.        Id. at 56.   Brooks did not raise

this issue below and we therefore review for plain error.               See

Mitchell, 85 F.3d at 807.

             Brooks' allegation that the statements at issue were

subject to Crawford fails to recognize that we find statements of

co-conspirators to be nontestimonial and thereby not subject to

Crawford.     See United States v. Felton, 417 F.3d 97, 103 (1st Cir.

2005) ("[T]he statements [of co-conspirators] fall within a firmly

rooted hearsay exception, so their admission does not violate [the

defendant's] Sixth Amendment rights.").          We also fail to see the

relevance of Brooks' objection to the disputed double hearsay

statements - they pertain only to the McMann conspiracy in Count I

and make no mention of Brooks.            We therefore do not find the

admission of these statements to constitute error.

D. Improper Vouching for Cooperating Witnesses

             Brooks contends that, although witness plea agreements

may     be   admitted   into   evidence    for   purposes   of     assessing

credibility, United States v. Doherty, 675 F.Supp. 726, 738 (D.

Mass.    1987),   the   Government's   closing    statement      constituted

improper vouching for each cooperating witness to the extent that

the trial outcome was likely affected.           The Government responds

that the prosecutor's statements during the closing argument did


                                   -15-
not constitute improper vouching because "the prosecutor simply

pointed out a fact in evidence - that [the witnesses'] plea

agreement[s] required [them] to testify candidly," United States v.

Millan, 230 F.3d 431, 438 (1st Cir. 2000), and the statements did

not insinuate any personal belief which took advantage of the

prosecutor's    status   as    "a   representative   of   the   government."

United States v. Figueroa-Encarnacion, 343 F.3d 23, 28 (1st Cir.

2003).

           We have previously held that it is not error for the

prosecutor to "assert reasons why a witness ought to be accepted as

truthful by the jury."        United States v. Rodríguez, 215 F.3d 110,

123 (1st Cir. 2000). The prosecutor may properly "admit a witness'

plea agreement into evidence, discuss the details of the plea

during closing arguments, and comment upon a witness' incentive to

testify truthfully."     United States v. Bey, 188 F.3d 1, 7 (1st Cir.

1999) (citing United States v. Dockray, 943 F.2d 152, 156 (1st Cir.

1991)).   Prosecutorial behavior crosses into the realm of improper

vouching when the prosecutor "places the prestige of the government

behind a witness by making personal assurances about the witness'

credibility."    Id. at 7 (quoting United States v. Neal, 36 F.3d

1190, 1207 (1st Cir. 1994)).

           In the closing arguments, after summarizing the terms of

the plea agreement, the prosecutor made the following remark:

           So you can either take the defense version,
           they clearly suggest that these guys will say

                                     -16-
           anything in order to convict these men in
           order to earn a lower sentence or at least the
           recommendation from the government, or they
           have to comply with the plea agreement. I'll
           leave it at that.

With nothing further, the prosecutor's conduct cannot be found to

constitute an instance of improper vouching.              The prosecutor

discussed the details of the agreement and commented upon the

witnesses' motivations stemming from the plea agreements, actions

which we have deemed acceptable.      See Millan, 230 F.3d at 438.     The

record   contains   no   indication   that   the   prosecutor   personally

endorsed the witnesses and therefore no prejudice resulted from a

sense that the Government backed the witnesses.          Brooks fails to

provide any other evidence indicating improper vouching that might

have affected the outcome of the trial.        United States v. Wihbey,

75 F.3d 761, 771-72 (1st Cir. 1996) ("Improper statements during

closing argument are considered harmful if, given the totality of

the circumstances, they are likely to have affected the trial's

outcome.").    We therefore find that the prosecutor's closing

remarks did not constitute improper vouching.

                            III. Conclusion

           For the reasons stated herein, Brooks' conviction and

sentence are affirmed.




                                  -17-
