United States v. Harakaly

United States Court of Appeals
For the First Circuit

No. 12-2274

UNITED STATES OF AMERICA,

Appellee,

v.

ERIK HARAKALY,

Defendant, Appellant.

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

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Howard, Stahl, and Thompson,
Circuit Judges.

William M. White, Jr., with whom William M. White, Jr. &
Associates was on brief, for appellant.
Jennifer H. Zacks, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.

October 31, 2013
 STAHL, Circuit Judge. Erik Harakaly pleaded guilty to

conspiracy to possess with intent to distribute methamphetamine.

After finding that Harakaly was responsible for a drug quantity

that triggered a ten-year mandatory minimum sentence and that he

was ineligible for safety-valve relief from that minimum, the

district court sentenced him to ten years' imprisonment. Under the

Supreme Court's subsequent decision in Alleyne v. United States,

133 S. Ct. 2151, 2155 (2013), the district court erred in making

the factual finding of drug quantity necessary to impose the

mandatory minimum where the quantity was neither alleged in the

indictment nor admitted by Harakaly at the time of his guilty plea.

Nevertheless, finding the error to be harmless, and finding no

merit in Harakaly's other contentions, we affirm.

I. Facts & Background

During the course of investigating Scott Ramsden for

alleged drug distribution, the Massachusetts State Police and the

Drug Enforcement Agency determined that Harakaly was Ramsden's

primary supplier of methamphetamine. On August 10, 2010, law

enforcement officials intercepted communications between the two

that indicated that Harakaly had recently sent a shipment of drugs

to a courier, Edmund Levine, for delivery to Ramsden. Shortly

thereafter, a Massachusetts state trooper stopped Levine's vehicle

and found a substance in the trunk that was later determined to be

189.9 grams of 99.8% pure methamphetamine. Levine advised

-2-
investigators that Harakaly had sent him the methamphetamine with

directions to deliver it to Ramsden.

A grand jury returned a one-count indictment on September

23, 2010, charging Harakaly, Ramsden, Levine, and two other

individuals with conspiracy to possess with intent to distribute,

and to distribute, methamphetamine and gamma hydroxbutyric acid, in

violation of 21 U.S.C. §§ 841(a)(1) and 846. A superseding

indictment was returned on October 27, 2011, charging the same

individuals, minus Ramsden, with conspiracy to possess with intent

to distribute, and to distribute, methamphetamine, in violation of

21 U.S.C. §§ 841(a)(1) and 846.

Neither indictment specified a drug quantity. At

Harakaly's arraignment on each, the government stated that the

maximum sentence he faced was twenty years' imprisonment.

On January 20, 2012, Harakaly pleaded guilty without a

plea agreement. When reciting the maximum penalties, the

government erroneously stated that he was subject to a maximum of

life imprisonment and a ten-year mandatory minimum "as charged in

Count One of the indictment." However, the government promptly

clarified that, because the indictment did not specify any drug

quantity, the default statutory maximum would be twenty years, see

21 U.S.C. § 841(b)(1)(C), but asserted that sufficient evidence

would be presented for the court to find, by a preponderance of the

evidence, that Harakaly was accountable for more than fifty grams

-3-
of methamphetamine, triggering a ten-year mandatory minimum

sentence, see id. § 841(b)(1)(A). When asked whether Harakaly

conceded any drug quantity, defense counsel stated that he did not.

The government then summarized the evidence that it would

have presented and proved beyond a reasonable doubt at trial,

including: (1) Levine's admissions to investigators that Harakaly

supplied the 189.9 grams of methamphetamine found in his car and

that he had previously made around ten deliveries, each containing

approximately five ounces of methamphetamine, to Ramsden on

Harakaly's behalf, totaling approximately 1,400 grams; and (2)

evidence that Harakaly was Ramsden's sole supplier of

methamphetamine, and that Ramsden would send Harakaly payments,

usually in the amount of $10,000, via FedEx, in exchange for

methamphetamine, usually in the amount of five ounces. The court

then asked Harakaly whether, as alleged by the government, he had

been involved in an agreement to distribute methamphetamine, "as of

yet in an undetermined quantity," through Ramsden and others.

Harakaly disputed the assertion that he was Ramsden's sole

supplier, but said that he otherwise agreed with the government's

assertions. The court accepted his guilty plea.

Following a presentence investigation, the probation

department prepared a presentence report (PSR) that estimated that

Harakaly was responsible for between five and fifteen kilograms of

-4-
methamphetamine,1 corresponding to a base offense level of 36.

After a three-level increase based on the determination that

Harakaly had occupied a managerial or supervisory role in the

conspiracy and a three-level decrease for acceptance of

responsibility, his total offense level was 36. Combined with a

criminal history category of I, Harakaly's sentencing guidelines

range was 188–235 months. The report also indicated that his

responsibility for more than fifty grams of methamphetamine

subjected him to a ten-year mandatory minimum sentence.

Harakaly made multiple objections to the PSR, disputing,

among other things: (1) the accuracy of the drug-quantity

calculation, arguing that he was responsible for only 1.5 to 5

kilograms of methamphetamine; (2) the applicability of the role

enhancement; (3) the constitutionality under Apprendi v. New

Jersey, 530 U.S. 466 (2000), of the imposition of a mandatory

minimum sentence based upon a finding, by a preponderance of the

evidence, of the triggering drug quantity where the quantity was

neither alleged in the indictment, nor submitted to and voted on by

1
This calculation was based upon: (1) forty-four FedEx
receipts for shipments of $10,000 in cash from Ramsden to Harakaly
in exchange for five ounces of methamphetamine (141.7 grams per
shipment x 44 shipments = 6.23 kilograms); (2) Ramsden's proffer
that, between January 2009 and September 2010, he purchased
approximately five ounces of methamphetamine from Harakaly every
two to four weeks (estimated to amount to 3.7 kilograms); and (3)
Levine's statement that he had made approximately ten deliveries,
of approximately five ounces of methamphetamine each, to Ramsden on
Harakaly's behalf (141.7 grams per delivery x 10 deliveries = 1.417
kilograms).

-5-
the grand jury, nor admitted by him during the plea hearing; and

(4) the applicability of the ten-year mandatory minimum,

corresponding to § 841(b)(1)(A), where the government had

continuously represented that his maximum sentence was twenty

years, corresponding to § 841(b)(1)(C). He repeated these

arguments in his sentencing memorandum and in two sentencing

hearings, with the first, on August 6, 2012, focusing on drug

quantity and the second, on October 10, 2012, focusing on the role

enhancement.

At the first sentencing hearing, the district court

rejected Harakaly's Apprendi argument, noting that, under the

then-current state of law, Apprendi and its progeny applied only to

facts that increased the penalty beyond the otherwise-prescribed

statutory maximum. With respect to the notice problem raised by

the government's repeated indication that it was proceeding under

§ 841(b)(1)(C), the court stated that Harakaly could move to

withdraw his guilty plea if he believed it was not made

intelligently -- an offer that he rejected. Finally, the court

suggested the possibility of holding an evidentiary hearing

regarding drug quantity. At that point, after conferring with

counsel, Harakaly conceded responsibility for a quantity

corresponding to a base offense level of 34 -- which would still

-6-
exceed the ten-year mandatory minimum triggering quantity -- with

the intent of arguing for safety-valve relief.2

At the second sentencing hearing, the court noted that

the Supreme Court was then considering whether the Apprendi

doctrine extends to judicial findings of fact that trigger

mandatory minimum sentences. After the government proffered

Ramsden's testimony and various exhibits regarding Harakaly's role

in the conspiracy, the district judge found, with evident

reluctance, that the government had met its burden in demonstrating

the propriety of a role enhancement:

I have looked for authority. I cannot
find it . . . . I do not see authority that
allows me to disregard the safety valve
considerations . . . . Having heard the
testimony this morning and having reviewed the
exhibits, and recognizing that the standard is
a preponderance-of-the-evidence standard, I do
not think there is any basis on which I could
not [sic] conclude that Mr. Harakaly did not
act as a manager . . . . I think the
government's evidence probably would satisfy a
reasonable-doubt standard, although I am not
going to venture that opinion because,
depending on what the Supreme Court does with
the case currently before it, we may be
revisiting this issue in the near future,
again, depending on the outcome of that
decision.

. . . .

2
Under the safety-valve provision, if the sentencing court
makes five specific factual findings, it may impose a sentence
below the mandatory minimum that would otherwise apply. See 18
U.S.C. § 3553(f); U.S.S.G. § 5C1.2.

-7-
 I think the sentence, again, is
significantly greater than warranted under the
circumstances, but, again, this is one of
those cases where Congress has dictated the
sentence, and I am, of course, sworn to obey
the law, and I am going to have to in this
circumstance.

Harakaly was sentenced to a ten-year term of incarceration followed

by a five-year term of supervised release. After announcing the

sentence, the court again made reference to the pending Supreme

Court decision, and "specifically for the record preserve[d]

[Harakaly's] right, should the Supreme Court change the law with

respect to judicial fact finding regarding sentencing matters."

Defense counsel affirmed that the record should so reflect. This

appeal followed.

II. Analysis

Harakaly raises three primary arguments on appeal. He

argues that the district court improperly imposed a ten-year

mandatory minimum sentence under § 841(b)(1)(A) because: (1) the

attributable drug quantity was not stated in the indictment, nor

was it proven to a jury beyond a reasonable doubt or stipulated by

Harakaly in his plea; (2) his role in the conspiracy also was not

stated in the indictment, nor was it proven to the jury beyond a

reasonable doubt or stipulated by Harakaly in his plea; and (3) it

was error to fail to give him proper notice of the applicability of

the mandatory minimum sentence where the government had repeatedly

indicated that it was proceeding under § 841(b)(1)(C).

-8-
A. Alleyne Error

1. The Alleyne Decision

When Harakaly commenced this appeal, his arguments were

squarely foreclosed by Supreme Court and First Circuit precedent.

In Apprendi, the Supreme Court held that, "[o]ther than the fact of

a prior conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to a

jury, and proved beyond a reasonable doubt." 530 U.S. at 490.

However, in Harris v. United States, 536 U.S. 545 (2002), the

Supreme Court distinguished facts that increase a sentence beyond

a statutory maximum from facts that trigger or increase a mandatory

minimum sentence. The Court held that, where a defendant had been

convicted of carrying a firearm in relation to a drug-trafficking

offense, the district court did not err by making a factual finding

that he had brandished the weapon, thus exposing him to a

heightened mandatory minimum sentence. Id. at 568. The Court

stated that "brandishing" was a sentencing factor, rather than an

element of the offense, that "need not be alleged in the

indictment, submitted to the jury, or proved beyond a reasonable

doubt." Id. Under Harris, a district court could make drug-

quantity determinations, by a preponderance of the evidence, that

triggered or increased mandatory minimum sentences. See, e.g.,

United States v. Goodine, 326 F.3d 26, 32 (1st Cir. 2003).

-9-
 However, after Harakaly filed his opening brief on

appeal, but before the government filed its brief, the Supreme

Court handed down its decision in Alleyne. Overruling Harris, the

Court held that the Sixth Amendment right to trial by jury requires

that the Apprendi doctrine apply equally to facts that increase a

mandatory minimum sentence.3 See 133 S. Ct. at 2155. Therefore,

Harakaly's opening argument -- that this court should reconsider

its earlier cases holding that facts that increase the mandatory

minimum are sentencing factors, rather than elements of the crime,

that may be found by the court by a preponderance of the evidence

-- has since been settled in his favor by the Supreme Court.4

2. Standard of Review

Harakaly preserved his Alleyne claims by objecting to the

imposition of a mandatory minimum sentence based upon judicial

findings, by a preponderance of the evidence, of drug quantity and

his managerial role. This court reviews unpreserved Apprendi

errors for plain error and preserved Apprendi errors for harmless

error. See United States v. Pérez-Ruiz, 353 F.3d 1, 14, 17 (1st

Cir. 2003). Since Alleyne is an extension of the Apprendi

3
We note that Alleyne did not reach the question of the
continued vitality of Almendarez-Torres v. United States, 523 U.S.
224 (1998), in which the Court "recognized a narrow exception to
this general rule for the fact of a prior conviction." Alleyne,
133 S. Ct. at 2160 n.1. Likewise, we need not do so today.
4
Because Alleyne was decided before Harakaly's case became
final, it applies to his direct appeal to this court. See Griffith
v. Kentucky, 479 U.S. 314, 328 (1987).

-10-
doctrine, the same standards should apply to Alleyne errors.

Accord United States v. Hall, ___ F. App'x ___, 2013 WL 5226994, at

*1–2 (11th Cir. Sept. 18, 2013) (unpublished per curiam opinion)

(reviewing unpreserved Alleyne error for plain error); United

States v. Hernandez, ___ F.3d ___, 2013 WL 4804323, at *5 (7th Cir.

Sept. 10, 2013) (same); United States v. Mack, ___ F.3d ___, 2013

WL 4767176, at *10–12 (6th Cir. Sept. 6, 2013) (same); United

States v. Baylor, ___ F. App'x ___, 2013 WL 3943145, at *13 (4th

Cir. Aug. 1, 2013) (unpublished per curiam opinion) (applying

harmless-error review to preserved Alleyne/Apprendi error).

In his reply brief, Harakaly suggests that the

harmless-error standard does not apply because Alleyne established

a constitutional error. However, he does not elaborate on this

claim; it is contained entirely in a heading preceding a section

that makes no mention of the standard of review an appellate court

should apply to an Alleyne error, focusing instead on the

reasonable-doubt standard that the district court must apply, in

the first instance, to all elements of the offense. "[I]ssues

adverted to in a perfunctory manner, unaccompanied by some effort

at developed argumentation, are deemed waived." United States v.

Zannino, 895 F.2d 1, 17 (1st Cir. 1990). In any event, the Supreme

Court has made abundantly clear that most constitutional errors are

subject to harmless-error review; only in rare cases will they be

deemed structural errors that would always require reversal. See,

-11-
e.g., Washington v. Recuenco, 548 U.S. 212, 222 (2006) (holding

that preserved Apprendi/Blakely error is not structural and is

subject to harmless-error review); United States v. Cotton, 535

U.S. 625, 631 (2002) (treating unpreserved Apprendi error as

non-structural error subject to plain-error review). In light of

the long line of cases subjecting preserved Apprendi errors to

harmless-error review, there would appear to be no basis for

finding Alleyne error to be one of those rare cases to which

harmless-error review does not apply.5

Under harmless-error review, because an Apprendi (and

therefore Alleyne) error is of constitutional dimension, "the

government must prove that the error was harmless beyond a

reasonable doubt, or, put another way, that it can fairly be said

beyond any reasonable doubt that the assigned error did not

contribute to the result of which the appellant complains."

Pérez-Ruiz, 353 F.3d at 17.

5
We recognize that some courts have summarily vacated
sentences, without any discussion of the appropriate standard of
review, where there was Alleyne error below. See, e.g., United
States v. Donovan, ___ F. App'x ___, 2013 WL 4792866, at *7 (6th
Cir. Sept. 9, 2013) (unpublished) (vacating sentence, with no
discussion of harmlessness or plain error, based on judicial
finding that firearm was discharged where jury convicted only of
using firearm); United States v. Lira, 725 F.3d 1043, 1044–45 (9th
Cir. 2013) (same). With respect, absent any indication that these
courts even considered the appropriate standard of review, the
cases do not persuade us that a different standard should apply to
Alleyne error than to Apprendi error.

-12-
 3. Drug-Quantity Calculation

The parties agree that, because the drug quantity that

triggered the mandatory minimum sentence was not alleged in the

indictment or stipulated by Harakaly at the time of his guilty

plea, the district court's drug-quantity finding constituted

Alleyne error.

The government argues that, in light of overwhelming and

uncontested evidence that Harakaly was responsible for more than

fifty grams of methamphetamine, the Alleyne error was harmless

beyond a reasonable doubt. "In drug-trafficking cases involving

Apprendi errors, we sometimes have treated the presence of

overwhelming evidence of the requisite drug types and quantities as

a proxy for harmlessness." Pérez-Ruiz, 353 F.3d at 18 (internal

quotation marks omitted) (sentencing following jury trial); see

also United States v. Morgan, 384 F.3d 1, 8 (1st Cir. 2004)

(sentencing following guilty plea; noting, in dicta, that, "[i]n

the post-Apprendi world, this court adopted a rule that any such

error in sentencing should be held harmless so long as the evidence

for the trial judge's factual findings is overwhelming and no

reasonable jury could have disagreed with them"). Harakaly does

not seriously contest the finding that he was responsible for more

than fifty grams of methamphetamine;6 his argument is primarily

6
To the extent that he makes this argument at all, it is only
in his reply brief and largely consists of challenges to the
admissibility of Levine's out-of-court statements and to Ramsden's

-13-
directed to the procedure by which it was made. But the latter

argument establishes only that there was Alleyne error; it says

nothing about whether that error was harmless.

The evidence that Harakaly was responsible for more than

fifty grams of methamphetamine was overwhelming. The delivery that

the police intercepted, taken alone, was nearly four times the

triggering amount. Levine told police that he had received the

methamphetamine from Harakaly to deliver to Ramsden, as he had done

around ten times before, estimating the total quantity to be

approximately 1,400 grams. While expressly not conceding total

drug quantity, Harakaly did acknowledge the accuracy of this

account during the change-of-plea hearing. Leaving aside Levine's

statements regarding the ten other deliveries, simply by admitting

that he had provided the single shipment of drugs that police found

in Levine's vehicle, Harakaly has acknowledged responsibility for

a quantity of drugs that far exceeds the triggering amount. In

addition, Ramsden testified under oath that Levine had made about

ten deliveries of approximately five ounces (141.7 grams) each on

Harakaly's behalf. He also testified that Harakaly used other

credibility. While these challenges may call into question the
determination that the weight exceeded five kilograms, they do
little to dislodge the overwhelming evidence that he was
responsible for some amount of methamphetamine in excess of fifty
grams. He also argues that the government may not rely on
information he gave and admissions he made during his safety-valve
proffer because he was granted immunity unless he were to testify.
Because that information is unnecessary to a determination of the
issues herein, it has been omitted from this opinion.

-14-
couriers, besides Levine, to deliver shipments of methamphetamine

to him. Ramsden stated that at least forty-three or "almost all"

of forty-four FedEx receipts presented by the government were for

shipments of $10,000 to Harakaly, each (aside from some smaller

"test" shipments at the outset of their arrangement) representing

payment for approximately five ounces of methamphetamine. Any one

of these shipments far exceeds the triggering quantity.7 Had this

evidence been presented, no reasonable jury could have found that

Harakaly was responsible for under fifty grams of methamphetamine.

See Morgan, 384 F.3d at 8.

Harakaly's additional statements and admissions buttress

this conclusion. He lodged many objections to the PSR's

drug-quantity calculation, but even after accounting for all of his

requested adjustments, he stated that he was responsible for 1,500

to 5,000 grams.8 During the first sentencing hearing, he conceded

7
We recognize that, where there has been Alleyne or Apprendi
error and the relevant fact-finding was based solely upon co-
conspirator testimony, the error may not be harmless. But, in
United States v. Soto-Beníquez, we also rejected the contention
that such an error could never be harmless, at least where that
testimony was given to (and apparently believed by) a jury that
voted to convict the defendant of participation in the conspiracy.
356 F.3d 1, 47 (1st Cir. 2004). Thus, we will consider the co-
conspirator testimony as but one factor in our analysis, giving it
neither dispositive weight nor no weight at all. We note, however,
that, in light of the strength of the other evidence in this case,
we would reach the same result even without Ramsden's testimony.
8
For example, Harakaly admitted making the following
shipments of methamphetamine to Ramsden: five or more two-ounce
shipments, five or more three-ounce shipments, at least five four-
ounce shipments, and an unspecified number of five-ounce shipments.

-15-
responsibility for the quantity of drugs that corresponds to a base

offense level of 34, which is also 1,500 to 5,000 grams. This

court has held that there is no Apprendi violation where the fact

triggering an increased maximum sentence was "anchored in the

appellant's own admission." United States v. Eirby (Eirby II), 515

F.3d 31, 36 (1st Cir. 2008). In Eirby II, the defendant stipulated

to a triggering quantity before the sentence was imposed. Noting

that "[f]actfinding premised on a defendant's admissions is not a

practice invalidated by Apprendi," id., the court held that there

was no error. Here, the government concedes error, so the court

need not determine whether Harakaly's concessions -- when not made

as part of his guilty plea and when not in the form of a formal

stipulation -- are sufficient to shield the sentence from

harmless-error review altogether. But these concessions, at a

minimum, reinforce the determination that any error was harmless.9

Harakaly contends on appeal that his concessions were

made against the backdrop of a preponderance-of-the-evidence

standard and that he never conceded that the government could prove

any of these quantities beyond a reasonable doubt. This claim is

unpersuasive for several reasons. First, it is belied by the

A single two-ounce shipment is equivalent to nearly 56.7 grams,
thus, by itself, triggering the ten-year mandatory minimum.
9
We need not decide whether these concessions would
independently suffice to establish harmlessness; we rely on them
here only to the extent that they corroborate Harakaly's earlier
concessions at his Rule 11 hearing.

-16-
record. At the change-of-plea hearing, the government indicated

that its recitation would summarize what "[t]he government, were it

to proceed to trial, would prove beyond a reasonable doubt with

competent evidence." Although this preface could be construed to

have applied only to the remainder of that sentence (that the

government conducted an investigation into Ramsden's drug

distribution), the far more reasonable construction is that the

reasonable-doubt standard applied to the government's entire

recitation. At the conclusion of this recitation, Harakaly stated

that, aside from the assertion that he was Ramsden's sole

methamphetamine supplier, he agreed with "in essence, everything

[the assistant U.S. attorney] said." This statement was

unqualified; Harakaly did not indicate that he was applying a

different evidentiary standard than the one the government

indicated at the outset. Nor did he make any such qualification at

any other time. Second, even if Harakaly believed that he was

conceding only that the government's evidence satisfied the

preponderance-of-the-evidence standard, as detailed above, the

evidence in this case goes far beyond his own admissions. In

addition, the record would likely have been yet more robust had

Harakaly not, as soon as the district court suggested holding an

evidentiary hearing on drug quantity, conceded responsibility for

an amount corresponding to a base offense level of 34. Of note, he

made this concession with full knowledge that he would be exposed

-17-
to a ten-year mandatory minimum unless he were deemed eligible for

safety-valve relief. In sum, we can find no support in the record

for Harakaly's claim that he did not concede that the government

could prove beyond a reasonable doubt a sufficient quantity to

trigger the ten-year mandatory minimum sentence. Moreover, the

admissions in his objections to the PSR and during the sentencing

hearing account for only a portion of the drug-quantity evidence.

Thus, we do not find his claim persuasive.

Because the evidence of the triggering drug quantity was

overwhelming, we hold that the Alleyne error was harmless beyond a

reasonable doubt.

4. Role Enhancement

Harakaly argues that the district court committed Alleyne

error by making a judicial finding, by a preponderance of the

evidence, that he occupied a managerial role in the conspiracy, and

thus was not eligible for safety-valve relief from the mandatory

minimum sentence.

Alleyne, by its terms, applies to facts that "increase[]

the mandatory minimum." 133 S. Ct. at 2155. Harakaly suggests

that Alleyne applies more broadly to any fact that "mandate[s] a

greater punishment than a court would otherwise have had discretion

to impose." We do not read Alleyne so expansively. A fact that

precludes safety-valve relief does not trigger or increase the

mandatory minimum, but instead prohibits imposition of a sentence

-18-
below a mandatory minimum already imposed as a result of the guilty

plea or jury verdict. See United States v. Morrisette, 429 F.3d

318, 324–25 (1st Cir. 2005) ("Blakely, and by extension Booker,

expressly relate only to the constitutionality of judicial

factfinding which results in sentencing enhancements, not to

sentencing reductions.").

Harakaly's formulation stretches Alleyne well beyond its

actual holding; would invalidate Congress's command that "the court

find[] at sentencing" the relevant safety-valve factors, see 18

U.S.C. § 3553(f); and introduces problematic practical

considerations. Before granting safety-valve relief, the

sentencing judge must make five specific factual findings. See id.

§ 3553(f)(1)–(5). Under Harakaly's formulation, safety-valve

relief could not be denied at sentencing unless the judge had

previously submitted to the jury special verdict questions

corresponding to the safety-valve factors, or, in the plea context,

the guilty plea expressly recited the absence of one or more

factors. This arrangement would put the burden on the government

to prove that the safety valve is inapplicable, but it has long

been held that "[t]he defendant plainly has the burden of proving,

by a preponderance of the evidence, entitlement to relief under

[§] 3553(f)." United States v. Miranda-Santiago, 96 F.3d 517, 529

-19-
n.25 (1st Cir. 1996).10 This allocation of the burden makes perfect

sense; were it otherwise, the government would be required to

disprove the safety-valve factors before the defendant ever

expressed an intent to seek a sentencing reduction via the safety

valve. Where the government seeks imposition of a mandatory

minimum sentence, it is "perfectly able to 'charge facts upon which

a mandatory minimum sentence is based in the indictment and prove

them to a jury.'" Alleyne, 133 S. Ct. at 2164 (Sotomayor, J.,

concurring) (quoting Harris, 536 U.S. at 581 (Thomas, J.,

10
The Second Circuit has articulated this rule effectively:
The operation of the safety-valve provision
does not admit to imposing on the government
the burden to disprove a defendant's
eligibility for relief from a
mandatory-minimum sentence. Once the
government has carried its burden to prove
those facts which trigger imposition of a
mandatory-minimum sentence, the safety valve
operates to impose on the defendant the burden
to prove that he is eligible for relief from
the mandatory-minimum sentence. The safety
valve certainly was not intended to impose on
the government five additional elements that
it must prove before triggering the imposition
of a mandatory-minimum sentence.
United States v. Jimenez, 451 F.3d 97, 102–03 (2d Cir. 2006)
(citations omitted).
Every circuit follows this rule. See, e.g., United States v.
Polk, 715 F.3d 238, 253 (8th Cir. 2013); United States v. Henry,
673 F.3d 285, 292–93 (4th Cir. 2012); United States v. Gales, 603
F.3d 49, 52–53 (D.C. Cir. 2010); United States v. Mejia-Pimental,
477 F.3d 1100, 1104 (9th Cir. 2007); United States v. Haynes, 468
F.3d 422, 427 (6th Cir. 2006); United States v. Stephenson, 452
F.3d 1173, 1179 (10th Cir. 2006); Jimenez, 451 F.3d at 102–03;
United States v. McCrimmon, 443 F.3d 454, 457 (5th Cir. 2006);
United States v. Johnson, 375 F.3d 1300, 1302 (11th Cir. 2004);
United States v. Galbraith, 200 F.3d 1006, 1016 (7th Cir. 2000);
United States v. Sabir, 117 F.3d 750, 754 (3d Cir. 1997).

-20-
dissenting)). The government, however, is not "perfectly able" to

predict, at the time of charging, trial, or plea negotiations, what

forms of relief, if any, the defendant may seek at sentencing.11

We thus hold that the jury verdict or guilty plea sets

the baseline sentencing range based upon the minimum and maximum

sentences, if any, authorized by statute for the offense of

conviction. Judicial fact-finding that precludes safety-valve

relief is permissible because it does not increase that baseline

minimum sentence. Therefore, the district court did not commit

Alleyne error in making a finding, by the preponderance of the

evidence, that Harakaly occupied a managerial role in the

conspiracy.

B. Lack of Notice in the Indictment

Harakaly argues that, where the government repeatedly

indicated that it was proceeding under § 841(b)(1)(C) by stating

that the maximum incarceration penalty he faced was twenty years,

the district court's imposition of the mandatory minimum sentence

found in § 841(b)(1)(A) "defeats rational notice to the accused."

He states that his Fifth Amendment due process and Sixth Amendment

rights were "implicate[d]" when the government induced him to rely

on its twenty-year representation when tendering his guilty plea,

11
Moreover, one of the safety-valve factors -- whether the
defendant, "not later than the time of the sentencing hearing,"
made a truthful and full proffer to the government, § 3553(f)(5) --
cannot, by its terms, be known at the time the jury renders its
verdict or the defendant tenders his plea.

-21-
and only later, at sentencing, did "the switch occur before his

eyes." This claim is flatly contradicted by the record and

foreclosed by our precedent.

Before the district court accepted Harakaly's plea, the

government discussed at length its intent to seek a ten-year

mandatory minimum sentence and the permissibility, under

then-current First Circuit case law, of judicial fact-finding with

respect to drug quantity. The district court carefully explained

the interaction of the sentencing guidelines and statutory

mandatory minimum sentences, particularly with respect to drug

quantity in conspiracy cases, and noted that the issue of drug

quantity "still has to be worked out on an evidentiary basis . . .

[because] it certainly does impact the sentence because of the

mandatory minimum." Harakaly -- who is, incidentally, a lawyer --

subsequently confirmed that he understood what had been discussed

and reaffirmed his intent to offer a guilty plea. Moreover, after

raising this same claim to the district court, Harakaly was given

the opportunity to move to withdraw his plea as made based upon a

mistaken premise, and he did not do so.12 Against this backdrop,

12
This decision also arguably constitutes waiver. "[T]he
contours of the claim were known to [Harakaly] and identified to
the court by him prior to sentencing," United States v. Eisom, 585
F.3d 552, 556 (1st Cir. 2009), and he consciously and intentionally
relinquished the claim by not moving to withdraw his plea at the
court's suggestion, and by instead expressing the intent to seek
relief from the § 841(b)(1)(A) sentence via the safety valve.
"Typically, a waived claim is dead and buried; it cannot thereafter
be resurrected on appeal." Id. Harakaly has presented no reason

-22-
Harakaly's claim -- that his constitutional rights were violated

when he was induced to plead guilty based upon a misrepresentation

as to his potential sentence, and then, only after the government

had secured his guilty plea, did it spring the mandatory minimum on

him -- necessarily fails.

Indeed, this result is mandated by our decision in United

States v. Eirby (Eirby I), 262 F.3d 31 (1st Cir. 2001). There, the

indictment charged the defendant under § 841(b)(1)(B), but the

district court subsequently found him responsible for a drug

quantity sufficient to subject him to § 841(b)(1)(A)'s ten-year

mandatory minimum. Id. at 34–35. The defendant argued that the

court's use of § 841(b)(1)(A) usurped the prerogatives of the grand

jury and deprived him of notice. Id. at 37. We first explained

that the district court's switch to § 841(b)(1)(A) "did not

constitute reversible error unless it deprived the appellant of

notice or otherwise misled him to his detriment." Id. at 38. We

found neither to be the case, as the defendant was given an

opportunity to withdraw his guilty plea after the district court

found a higher drug quantity sufficient to trigger § 841(b)(1)(A).

Id. The same result obtains here.

III. Conclusion

For the foregoing reasons, we affirm Harakaly's sentence.

why his claim, if waived, should nevertheless be resurrected here.
However, in light of our disposition of the claim, we need not
reach the waiver issue.

-23-