United States v. Isler

United States Court of Appeals
For the First Circuit

No. 04-1565

UNITED STATES OF AMERICA,

Appellee,

v.

CHARLES H. ISLER,

Defendant, Appellant.

No. 04-1566

UNITED STATES OF AMERICA,

Appellee,

v.

BILAL ABDUL RASHID,

Defendant, Appellant.

No. 04-1673

UNITED STATES OF AMERICA,

Appellee,

v.

CHARLES C. BROWN,

Defendant, Appellant.
 APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

Torruella, Circuit Judge,
Hill, Senior Circuit Judge,*
and Howard, Circuit Judge.

James E. Methe for appellant Charles H. Isler.
William J. Murphy, with whom Murphy & Fay, LLP was on brief,
for appellant Bilal Abdul Rashid.
Tamara A. Barney, with whom MacFadyen, Gescheidt & O'Brien
was on brief, for appellant Charles C. Brown.
Donald C. Lockhart, Assistant United States Attorney, with
whom Robert Clark Corrente, United States Attorney, and Adi
Goldstein, Assistant United States Attorney, were on brief, for
appellee.

November 16, 2005

*
Of the U.S. Court of Appeals for the Eleventh Circuit, sitting by
designation.
 HOWARD, Circuit Judge. In these consolidated criminal

appeals, defendants Charles Brown, Charles Isler, and Bilal Abdul

Rashid challenge their convictions and sentences for participating

in a cocaine base distribution conspiracy. We affirm the

convictions and Brown's sentence, but vacate Isler and Rashid's

sentences.

I.

We present the facts in the light most favorable to the

verdicts. See United States v. Boulerice, 325 F.3d 75, 79 (1st

Cir. 2003).

On the afternoon of June 3, 2003, Detective Scott

Partridge of the Providence Police Department was surveilling the

rear of Brown's multi-family house from an adjacent yard. The

house had previously been the subject of extensive surveillance,

and the Providence police had executed a number of controlled buys

of cocaine base from the first floor apartment. As Partridge

watched, Brown pulled his car into his house's yard, which was

empty except for an old junk car. Brown exited the car carrying a

cheese puff container and a brown paper bag. Partridge saw Brown

remove a plastic bag containing a white substance from the paper

bag and place it in the false bottom of the container. Brown then

returned the container to his car and entered the first floor

apartment with the bag and its remaining contents. No one else

entered or left the house.

-3-
 Approximately half an hour later, Partridge and several

other officers executed a search warrant for the apartment. Two of

the officers covered the front door, and the rest entered through

the back. All were clad in black windbreakers bearing the legend

"Providence Police" in large, yellow letters. Partridge's team

proceeded to the rear door of the first floor apartment, announced

its presence, received no response, and then forcibly entered. The

entry took considerable effort: the rear door was heavily fortified

with steel bars, had no handle, and could be opened (from either

side) only with a key for the heavy deadbolt lock. Also, a second

interior door was wedged in tightly inside the fortified exterior

door. Notably, the exterior door contained a four by six inch "cut

out" and a large kitchen knife was hidden in the door's interior

panel.

Brown, Isler, and Rashid were standing near the kitchen

table when the officers entered through the back entrance, and

attempted to flee through the front door. But upon hearing the

other officers outside, they reversed field and attempted to force

their way past the original entry team. A violent struggle ensued,

and the defendants were subdued. Brown had $65 upon his person,

Rashid had $1078, and Isler had $515.

The apartment was small and sparsely furnished, except

for the kitchen. On the kitchen table, surrounded by three chairs,

the officers found monitors for a sophisticated surveillance system

-4-
comprised of several cameras, a motion sensor, an intercom, and a

pair of exterior lights -- one red and the other green. On the

same table was the paper bag that Brown had carried into the

apartment. Inside the paper bag were two plastic bags containing

142.45 grams of cocaine base. Also on the table were a digital

scale, plastic bags, plastic bags with their corners snipped off,

scissors, baking soda, a razor, a cooking plate with cocaine base

residue, $250 in cash, two cell phones, a pager, and Isler's wallet

and keys. The only key for the deadbolt lock on the fortified rear

door hung on a hook near the table.

The officers also collected 26 small packages containing

6.328 grams of cocaine base from an overflowing toilet in a nearby

bathroom. A search of Brown's car yielded the cheese puff

container, which contained an additional 16.73 grams of cocaine

base.

All three defendants were charged with conspiracy to

possess with intent to distribute 50 or more grams of cocaine base

(Count I), see 21 U.S.C. § 846, and possession with intent to

distribute 50 or more grams of cocaine base (Count II), see 21

U.S.C. §§ 841(a)(1) & (b)(1)(A). In addition, based on the

narcotics found in his car, Brown was charged with possession with

intent to distribute 5 or more grams of cocaine base (Count III),

see 21 U.S.C. §§ 841(a)(1) & (b)(1)(B).

-5-
 At trial, the government called several officers and

forensic specialists, and the government's case included expert

testimony that the surveillance equipment, barricaded doors, and

cut out1 on the exterior door were indicative of a drug house.

Only Brown testified for the defense. He testified that he had

been let in by three unidentified men who left moments before the

raid; that he was present only to collect rent from his tenant;

that there were no drugs in the house or his car; that he had never

seen Rashid or Isler before the raid; that Rashid was there to

purchase his tenant's minivan; that Isler was sitting in a bedroom

(possibly listening to music); that there were at least four cars

in the yard at the time of the raid; that he tried to let the

police in when they knocked but they ordered him away from the

door; that the defendants did not try to flee or resist; and that

the security and surveillance equipment had been installed by the

previous owner and/or was typical for homes in the area.

The jury convicted Brown on all counts. The jury also

convicted both Isler and Rashid, but held them responsible for less

than 5 grams of cocaine base on both counts (and not for the 50 or

more grams originally charged in the indictment). Isler and Rashid

were sentenced to 262 and 210 months' imprisonment, respectively.

1
The cut out was large enough to pass drugs and money through, but
small enough that a drug purchaser could not get a clear look at
the seller on the other side of the door.

-6-
Brown received a mandatory life sentence because he had two prior

felony narcotics convictions. See 21 U.S.C. § 841(b)(1)(A).

II.

The defendants challenge their convictions and sentences

on several grounds. The primary appellate issues are (1) whether

there was sufficient evidence to sustain Isler and Rashid's

convictions; (2) whether the district court erroneously permitted

detailed cross-examination concerning Brown's prior convictions;

(3) whether the court abused its discretion when it admitted

testimony from one of the government's experts; (4) whether the

government's closing argument was inappropriate and prejudicial;

(5) whether the court should have applied the rule of lenity to

sentence Brown to a shorter prison term because the relevant

provisions of 21 U.S.C. § 841 are ambiguous; and (6) whether the

defendants are entitled to resentencing under United States v.

Booker, 125 S. Ct. 738 (2005).2

A. Sufficiency of the Evidence

Rashid and Isler claim that the district court

erroneously denied their motions for acquittal because the

government demonstrated only that they were "merely present" at the

2
The government maintains that certain of the defendants'
arguments were not preserved for plenary appellate consideration.
We shall assume, without deciding, that the issues were properly
preserved unless we state otherwise.

-7-
drug raid.3 See United States v. Llinas, 373 F.3d 26, 32 (1st Cir.

2004)(government must prove more than mere presence to obtain drug

conspiracy conviction). Isler and Rashid maintain that they did

not own the house, that the three defendants had never met before

the raid, that neither Rashid nor Isler was ever in the house

before the raid, and that there was no evidence that they possessed

or agreed to possess the narcotics.

We review the denial of a motion for acquittal de novo.

See Boulerice, 325 F.3d at 79. We will affirm if, after reviewing

all the evidence in the light most favorable to the government and

drawing all reasonable inferences in its favor, we conclude that a

rational jury could find the essential elements of the crime proved

beyond a reasonable doubt. Id.

Isler and Rashid argue as though only direct evidence can

support their convictions. But of course, this is not so; indeed

the government may rely entirely on circumstantial evidence to

prove the charged offense. See United States v. Soler, 275 F.3d

146, 150 (1st Cir. 2002); see also United States v. Batista-

Polanco, 927 F.2d 14, 19 (1st Cir. 1991)(a conspiracy can be

demonstrated by "a development and a collocation of

3
Rashid also makes a passing attempt to assign error to the
district court's failure to provide a limiting instruction that he
had requested. But Rashid's argument is undeveloped and therefore
forfeited. See United States v. Vasquez-Guadalupe, 407 F.3d 492,
499-500 (1st Cir. 2005). In any event, there was no abuse of
discretion, as the district court ultimately instructed the jury
that Brown's prior convictions could only be considered in
evaluating Brown's credibility.

-8-
circumstances")(internal citation and quotation omitted). As we

have explained:

The defendant's presence at a place where
contraband is found may or may not be purely
coincidental. The attendant circumstances
tell the tale – and the culpability of a
defendant's presence hinges upon whether the
circumstances fairly imply participatory
involvement. In other words, a defendant's
"mere presence" argument will fail in
situations where the "mere" is lacking.

United States v. Echeverri, 982 F.2d 675, 678 (1st Cir. 1993).

The facts surrounding Isler and Rashid's arrest permitted

the jury to find that they were more than merely present.

Detective Partridge saw Brown bring a substance that proved to be

cocaine base into the house. When the officers burst through the

heavily fortified back door, Isler, Rashid, and Brown were the only

persons in the apartment and were standing near the kitchen table

with three chairs. On the kitchen table were the monitors for an

elaborate surveillance system, a quantity of cocaine base

suggestive of narcotics distribution (and not personal use), cash,

Isler's wallet and keys, and various drug packaging paraphernalia.

In the bathroom, a few feet away, was evidence of a hasty and

unsuccessful attempt to flush more cocaine base down the toilet.

Compare Soler, 275 F.3d at 151; Echeverri, 982 F.2d at 678-79;

Batista-Polanco, 927 F.2d at 17-19.

Further, the house was a fortress, with heavily

reinforced doors and an extensive surveillance system. From this

-9-
evidence, the jury could have inferred that the dealers wished to

conduct their business in absolute secrecy and security, and that

only the conspiracy's participants would be permitted into the

apartment. See generally Llinas, 373 F.3d at 32 ("criminal

conspirators do not involve innocent persons at critical stages of

a drug deal"); United States v. Montilla-Rivera, 115 F.3d 1060,

1064 (1st Cir. 1997) (criminals do not welcome innocent bystanders

as witnesses to their crimes); United States v. Ortiz, 966 F.2d

707, 712 (1st Cir. 1992)(criminals "rarely seek to perpetrate

felonies before larger-than-necessary audiences").

Finally, the defendants fled from the police, and, when

cornered, engaged a violent struggle with the officers. In

appropriate circumstances, flight can be probative of guilt. See

United States v. Carpenter, 403 F.3d 9, 12 (1st Cir. 2005); United

States v. Otero-Mendez, 273 F.3d 46, 53 (1st Cir. 2001).

In sum, the district court properly concluded that there

was sufficient evidence to support the convictions.4

B. Prior Convictions

Brown contends that the district court abused its

discretion and prejudiced his defense by permitting the government

to cross-examine him in detail about his prior convictions before

later ruling that the evidence was inadmissible.

4
For these same reasons, it was not an abuse of discretion for the
district court to deny Isler and Rashid's motions for a new trial.
See Montilla-Rivera, 115 F.3d at 1064.

-10-
 Brown had three prior felony narcotics convictions, all

involving marijuana. Before trial, the government filed a notice

of intent to introduce the prior convictions for impeachment, see

Fed. R. Evid. 609, and as admissible other bad act evidence, see

Fed. R. Evid. 404(b), in anticipation of a mere presence defense.

Brown never objected to the notice or filed a motion in limine to

exclude the evidence. On direct examination, Brown testified about

the basic facts of his prior convictions.5 On cross-examination,

the government re-elicited these basic facts and then inquired,

under Rule 404(b), about the historical facts underlying his

record. During the government's rebuttal argument, the prosecutor

made reference to Brown's testimony about his prior convictions and

Brown objected. After a bench conference, the court ruled that the

404(b) evidence of prior convictions was not allowed and instructed

the prosecutor to refrain from making additional reference to it.

The court did not, however, strike the prior testimony concerning

the details of the prior convictions. Brown argues that he was

prejudiced by the court's failure to exclude the 404(b) evidence.

The government contends that there was no abuse of discretion and,

in any event, the challenged testimony was harmless.

5
Brown admitted the following convictions and sentences: (1) a
1992 conviction for possession of marijuana for which he served six
months of a four-year sentence; (2) a 1995 conviction for
possession of 1-5 kilos of marijuana for which he served three
years of a fifteen-year sentence; and (3) a 1995 conviction for
possession of marijuana with intent to deliver and conspiracy to
traffic in marijuana for which he served three years of a ten-year
sentence.

-11-
 We choose to proceed directly to the harmless error

inquiry. "[T]he admission of improper testimony is harmless if it

is highly probable that the error did not influence the verdict."

United States v. Garcia-Morales, 382 F.3d 12, 17 (1st Cir. 2004).

A harmless error analysis is case specific, and requires

consideration of such factors as the "centrality of the tainted

evidence, its uniqueness, its prejudicial impact, the use to which

the evidence was put, and the relative strengths of the parties'

cases." Id.

Brown focuses on the admission of three facts: (1) that

he did not remember the weight of the marijuana involved in one

offense (but the prosecutor suggested ten pounds); (2) his

exculpatory account of his involvement in one offense (essentially

that Brown threw the marijuana in the trash at someone's behest);

and (3) that he was arrested for one offense with $16,000 on his

person. In the circumstances of this case, we conclude that these

facts did not sway the jury.

The challenged facts added little to the basic facts of

convictions, which had been recounted twice on direct and cross-

examination. Moreover, they were not highlighted in the

prosecution's argument, and were inconsequential when evaluated

-12-
against the balance of the prosecution's considerable evidence.6

Any error in the admission of this evidence was harmless.

C. A'Vant's Testimony

Brown argues that the district court abused its

discretion by admitting certain testimony from Officer Angelo

A'Vant, one of the government's expert witnesses, concerning the

features of a drug house. Brown does not challenge A'Vant's

qualifications as an expert. Rather, he challenges the relevance

of his testimony to Brown's house. Specifically, Brown complains

that A'Vant was permitted to testify that the security and

surveillance set-up at Brown's house was something that he had

never previously seen.7 According to Brown, this testimony was

irrelevant and highly prejudicial because it permitted the

prosecutor to argue that the defendants were unusually

"sophisticated" criminals. Brown concedes that our review is for

6
Brown also argues that the prosecutor committed misconduct by
referring to Brown's prior convictions during cross-examination and
closing argument. But as we have explained, it was not apparent
until the government's rebuttal argument that the prior conviction
evidence was off-limits. After the district court's ruling, the
prosecutor made no further mention of the convictions. There was
no misconduct.
7
Brown complains only about two snippets in A'Vant's direct
testimony. In the first, A'Vant responded to the question whether
he had ever encountered barricaded doors on "routine" police calls
(as distinguished from drug raids) as follows: "On routine calls,
I have never seen a similar set-up like this is my career." In the
second, in response to the question how many times he had seen a
green light bulb in the hallway of a residence during his years as
a patrol officer, A'Vant stated: "I don't ever recall seeing a
green light bulb."

-13-
plain error only. A plain error must be "clear or obvious, affect

substantial rights, and seriously affect the fairness, integrity,

or public reputation of judicial proceedings." Garcia-Morales, 382

F.3d at 18.

Brown's argument fails for many reasons, the most basic

of which is that he misstates the essence of A'Vant's testimony.

Prior to the challenged testimony, A'Vant had testified at length

that the barricades and surveillance features on Brown's house were

consistent with those at other drug houses that he had raided. The

routine patrol questions were intended to show that "normal" houses

in the area did not have such features. This testimony was

responsive to Brown's defense that he was merely present at the

crime scene, which Brown supported with his testimony that his

house was just like any other house in that part of Providence. In

short, A'Vant simply did not testify that he was unfamiliar with

the equipment at Brown's house. There was no error in the

admission of A'Vant's testimony, plain or otherwise.8

D. Prosecutorial Misconduct

Isler claims that the prosecutor, during her closing

argument, twice improperly shifted the burden of proof to the

defendants and improperly vouched for the government witnesses.

8
Having dispatched each of Brown's individual assignments of
prejudicial error, we summarily reject his claim that the alleged
errors combined to deprive him of a fair trial.

-14-
 In the first challenged remark, the prosecutor was

discussing Brown's testimony regarding the house's security

features:

Charles Brown would have you believe that this
is to protect people from burglary, that this
set-up is all over the place. In fact, it's
in the other apartment that he owns. Well,
where is the documentary proof of that, ladies
and gentlemen? None. You just have Charles
Brown's word.

Brown's counsel objected, and the district judge sustained the

objection and instructed the jury to disregard the remark.

The second challenged remark concerned Brown's claim that

he was merely present at the crime scene to collect rent from his

tenant:

And he tells you that he went in to collect
the rent. Well, if he went to collect the
rent, why didn't he take his rent receipt book
with him? You know why, ladies and gentlemen.
Because there is no rent receipt book, because
he wasn't there to collect the rent, because
there was no tenant, because again, ladies and
gentlemen, other than Charles Brown's word,
there is no proof of Anthony Wilson as a
tenant. His name is not on the utility bills.

The district court again sustained defense counsel's objection and

instructed the jury to disregard the statement. The prosecutor

then stated:

So you have to choose in whom you're going to
place your trust, ladies and gentlemen, and
you know in whom the defense placed their
trust. They embraced the testimony . . . .

-15-
Defense counsel interrupted the prosecutor with an objection, which

the court sustained.

None of these lines of argument was improper. Isler's

"burden shifting" claim disregards the fact that Brown testified at

length and that all the defendants endorsed Brown's testimony in

their closings. "[W]hen a defendant puts [his] credibility at

issue by testifying, the prosecution can comment on the

implausibility of [his] testimony or its lack of evidentiary

foundation." Boulerice, 325 F.3d at 86. Here, the prosecutor

merely called attention to the lack of supporting evidence for

Brown's implausible assertions and attempted to highlight the fact

that rival accounts had been presented to the jury.

In addition to burden shifting claims, Isler also argues

that the prosecutor improperly placed her prestige as a government

officer behind the testimony of the police officers. The

challenged comment came on the heels of suggestions by defense

counsel that the officers' testimony (in particular Partridge's)

contained gaping inconsistencies which were indicative of

fabrication.

The prosecutor began by recounting that the officers all

remembered the significant matters the same way, that the

differences in recollection were trivial, and that the jury should

be more concerned if there were not small variations in their

testimony. She continued:

-16-
 If Detective Partridge was so
frustrated, if they were all so intent on
securing a conviction against these
Defendants, wouldn't they have come up with a
better story, ladies and gentlemen? Why not
put the keys to the doors of the apartment on
the key chain of one of the Defendants? Why
not put the drugs in the Defendants' pockets?
Why not tell you that they observed one of the
Defendants run out of the bathroom? Why not
tell you that they saw the three Defendants
together numerous times prior to June 3rd?

Ladies and gentlemen, that is how you
evaluate the credibility of that testimony.
It has the ring of truth. Conspiracies are
secret. They happen behind locked doors.

Defense counsel objected and moved for a mistrial. The district

court sustained the objections, instructed the jury to disregard

the "ring of truth" comment, and took the motions for mistrial

under advisement.9

"A prosecutor improperly vouches for a witness when she

places the prestige of her office behind the government's case by

. . . imparting her personal belief in a witness's veracity or

implying that the jury should credit the prosecution's evidence

simply because the government can be trusted." United States v.

Perez-Ruiz, 353 F.3d 1, 9 (1st Cir. 2003).

The challenged remarks do not constitute improper

vouching. First, arguing why a witness should be believed or

asking jurors to use their common sense in assessing witness

testimony is not vouching. See Id. at 10; Rodriguez, 215 F.3d at

9
These motions were later denied.

-17-
123. Second, the prosecutor did not express her personal views

regarding the officers' accounts or imply that they should be

believed because they were government officials. See Perez-Ruiz,

353 F.3d at 10. Third, the comments were a logical counter to the

defense claim of witness fabrication, and we have upheld such

rejoinders. See United States v. Wilkerson, 411 F.3d 1, 8 (1st

Cir. 2005); United States v. Vazquez-Rivera, 407 F.3d 476, 483-84

(1st. Cir. 2005); Perez-Ruiz, 353 F.3d at 10.

E. Ambiguity in Cocaine/Cocaine Base Provisions

Brown argues that he should have received a lower

sentence under 21 U.S.C. § 841 under the rule of lenity. Brown

begins with the fact that a certain quantity of "cocaine base" will

trigger a far harsher sentence than the same quantity of "cocaine,

its salts, optical and geometric isomers, and salts of isomers."

Compare 21 U.S.C. § 841(b)(1)(A)(ii)(II) & (B)(ii)(II) with 21

U.S.C. § 841(b)(1)(A)(iii) & (B)(iii). From there he reasons that

because "cocaine base" and "cocaine" are chemically identical and

the substance "cocaine base" falls within the extended definition

of "cocaine" ("cocaine, its salts, optical and geometric isomers,

and salts of isomers"), the penalty provision in 21 U.S.C. § 841 is

fatally ambiguous because a conviction for possessing "cocaine

base" would appear to be eligible for punishment under both the

"cocaine" and "cocaine base" penalty provisions. Therefore, Brown

posits, because the jury found only that he possessed "cocaine

-18-
base," he is entitled to receive the statutory sentence provided

for distributing more than 50 grams of "cocaine," relying upon

United States v. Brisbane, 367 F.3d 910 (D.C. Cir. 2004).10 Brown

again concedes that our review is for plain error only.

We readily conclude that there was no plain error.

First, Brown's claim that "cocaine" and "cocaine base" are

chemically identical is inaccurate. See United States v. Robinson,

144 F.3d 104, 108-9 (1st Cir. 1998)(noting differing chemical

formulas); United States v. Barnes, 890 F.2d 545, 552 (1st Cir.

1989)("the term 'cocaine base' clearly defines a substance

differing from other forms of cocaine"). Second, this court has

concluded that the term "cocaine base" in Section 841(b) includes

all forms of cocaine base (not simply crack). See United States v.

Medina, __ F.3d __, 2005 WL 2740828, at *3 (1st Cir. 2005); United

States v. Richardson, 225 F.3d 46, 49 (1st Cir. 2000); United

States v. Lopez-Gil, 965 F.2d 1124, 1134 (1st Cir. 1992)(opinion on

rehearing). See also Barnes, 890 F.2d at 553 (cocaine base

provision not unconstitutionally vague). In this case, the

government presented undisputed evidence that the substance seized

10
Holding that, in the absence of proof the "cocaine base" that
defendant possessed was crack or another smokable form of cocaine
base(which Congress intended to punish more severely than
"cocaine"), defendant was entitled to be sentenced under "cocaine"
penalty provision. See Brisbane, 367 F.3d at 913-15.

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was cocaine base, and the jury so found. There was no error in

Brown's sentence.11

F. Booker

All three defendants argue that they are entitled to a

remand for resentencing under Booker. They all maintain that the

district judge's comments at sentencing clearly indicate that she

would have imposed a lower sentence if the guidelines were not

mandatory. In addition, they contend that drug quantity and the

existence of their prior convictions are facts that must be found

by a jury. All three concede that our review is for plain error

only.

To establish a plain error under Booker, a defendant must

demonstrate (1) an error, (2) that is plain, (3) that affects

substantial rights, and (4) that seriously impairs the fairness,

integrity, or public reputation of judicial proceedings. See

United States v. Antonakopoulos, 399 F.3d 68, 77 (1st Cir. 2005).

The first two prongs are met if the district court treated the

Sentencing Guidelines as mandatory. Id. Thus, we must determine

if the defendants satisfy the third and fourth prongs of the test.

In the sui generis circumstances of assessing the

11
As to Brown's reliance on Brisbane, the clear or obvious error
prong is not satisfied where the district court declined to follow
a case from another circuit that concedes it is expressing a
minority view and is explicitly at odds with this circuit's
precedent. Cf. United States v. D'Amario, 412 F.3d 253, 256-57
(1st Cir. 2005)(no plain error if circuit courts are split on
issue).

-20-
appropriateness of a Booker remand under the plain error standard,

our cases have consistently held that a remand is appropriate if

the district judge has made comments in the sentencing record

indicating a reasonable probability that she would have imposed a

lower sentence if unshackled by the mandatory guidelines. See

Antonakopoulos, 399 F.3d at 81; United States v. Heldeman, 402 F.3d

220, 224 (1st Cir. 2005); Wilkerson, 411 F.3d at 10. As to prongs

three and four, "our principal concern in these Booker 'pipeline'

cases is with the likelihood that the defendant would have received

a lesser sentence in a post-Booker regime of advisory guidelines."

Heldeman, 402 F.3d at 224; see also Wilkerson, 411 F.3d at 10.

We begin with Isler and Rashid, both of whom were

sentenced at the bottom of their respective guideline ranges. In

both their sentencing proceedings, the district judge made a host

of comments about her lack of discretion under the guidelines and

the "waste" brought about by the length and extreme harshness of

the sentences. Moreover, the district judge stated that the

sentence was "tragic" because she was "not sure that a sentence of

this length is absolutely necessary" and that she was not sure

that, in the absence of the guidelines, she "would have imposed

that harsh a penalty." In light of these remarks, which indicate

a reasonable probability of lower sentences under advisory

guidelines, Isler and Rashid are entitled to resentencing.

-21-
 Brown is less fortunate for two reasons. First, Brown

received a mandatory statutory (rather than guidelines) life

sentence based upon the instant convictions and his two prior

narcotics convictions (the existence of which he admitted). Booker

does not apply in such circumstances. See Antonakopoulos, 399 F.3d

at 75 ("A mandatory minimum sentence imposed as required by statute

based on facts found by a jury or admitted by a defendant is not a

candidate for Booker error"); United States v. Bermudez, 407 F.3d

536, 545 (1st Cir. 2005)(same). Second, Brown's contention that

his criminal history must be proved to a jury beyond a reasonable

doubt is foreclosed by our recent precedent. See United States v.

Work, 409 F.3d 484, 491 n.1 (1st Cir. 2005)("In the roiled wake of

Booker, it remains the law that previous criminal convictions are

not 'facts' that must be found by a jury and proved beyond a

reasonable doubt."); United States v. Lewis, 406 F.3d 11, 21 n.11

(1st Cir. 2005)(same).12

12
Brown also argued in his initial brief that the district court
erred in determining that his prior convictions were unrelated
under the guidelines. However, Brown later conceded that this is
a statutory rather than a guidelines determination. See United
States v. De Jesus Mateo, 373 F.3d 70, 74 (1st Cir. 2004). In his
reply brief and at oral argument, Brown made a related argument
that the district court erroneously applied the guidelines standard
rather than the statutory standard in determining whether his prior
convictions involved distinct criminal episodes for purposes of 21
U.S.C. § 841(b)(1)(A). This claim is forfeited. See United States
v. Evans-Garcia, 322 F.3d 110, 114 (1st Cir. 2003) (arguments not
raised until reply brief are waived); Gosselin v. Commonwealth of
Massachusetts, 276 F.3d 70, 72 (1st Cir. 2002) (arguments not
raised until oral argument are waived). Moreover, the facts
regarding the circumstances of the two prior offenses, notably the
significant gap between the offenses and the intervening arrest

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 III.

For the reasons stated above, Isler and Rashid's

convictions are affirmed, their sentences are vacated, and their

cases are remanded for resentencing in accordance with this

opinion. Brown's conviction and sentence are affirmed.

So ordered.

(which Brown conceded below and on appeal), make it clear that the
offenses were distinct criminal episodes. See generally De Jesus
Mateo, 373 F.3d at 74; Martinez-Medina, 279 F.3d at 123.
Brown also argues that Almendarez-Torres v. United States,
523 U.S. 224 (1998) should be overruled. However, he concedes that
this is beyond this court's power, and states that he merely
intends to preserve the issue for possible review before the U.S.
Supreme Court.

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