Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 15-2441
UNITED STATES OF AMERICA,
Appellee,
v.
ALCINDY JEAN-BAPTISTE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Jon D. Levy, U.S. District Judge]
Before
Lynch, Selya, and Kayatta,
Circuit Judges.
Jeffrey W. Langholtz on brief for appellant.
Margaret D. McGaughey, Assistant United States Attorney, and
Thomas E. Delahanty II, United States Attorney, on brief for
appellee.
January 26, 2017
LYNCH, Circuit Judge. Alcindy Jean-Baptiste pled guilty
to two charges stemming from his participation in a conspiracy to
distribute cocaine, heroin, and oxycodone in Maine. After hearing
evidence, the district court sentenced him to 78 months in prison
on each count, to be served concurrently, and four years of
supervised release. The sentence was at the low end of the
Guidelines Sentencing Range of 78 to 97 months.
Jean-Baptiste appeals from his sentence, making two
arguments. First, he argues that the district court clearly erred
in its factual finding that the applicable drug quantity, under
U.S.S.G. § 2D1.1, was 1614 kilograms of marijuana equivalent.
Second, he asks us to change our circuit law so as to require proof
beyond a reasonable doubt for drug quantity determinations, rather
than proof by a preponderance of the evidence. The second argument
is repeated in his pro se brief. Both arguments fail.
The district court based its drug quantity findings on
the testimony of Officer Joey Brown, a ten-year veteran of the
Lewiston Police Department and the case agent for the Drug
Enforcement Administration's investigation of the conspiracy in
which Jean-Baptiste participated. Officer Brown testified at the
sentencing hearing to explain how wiretapped phone conversations
showed that Jean-Baptiste, a Massachusetts-based supplier, had
provided inventory on multiple occasions to a Maine-based
conspiracy that was retailing illegal drugs. In particular,
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Officer Brown testified, without objection from Jean-Baptiste, as
to the meaning of the drug argot used on the wiretapped calls.
The district court found that Officer Brown was credible and that
Jean-Baptiste's participation in two transactions in March 2014
sufficed to establish the drug quantity specified in the
Presentence Investigation Report.1
Jean-Baptiste made no objection in the district court to
either of the alleged errors he now identifies, so we subject his
arguments to plain error review. Neither argument survives that
demanding test. See United States v. Etienne, 772 F.3d 907, 913
(1st Cir. 2014) ("[U]nder plain error review, we have leeway to
correct only the most egregious of unpreserved errors." (quoting
United States v. Sánchez-Berríos, 424 F.3d 65, 73 (1st Cir.
2005))). Indeed, we find no error at all in the sentence imposed.
Jean-Baptiste's initial argument, made for the first
time on appeal, amounts to a claim that the government failed to
lay a sufficient foundation for Officer Brown's experience and
ability to interpret drug jargon in the recordings. But the
district court was entitled to consider Officer Brown's
1 The district court based its drug quantity findings
exclusively on Officer Brown's testimony and on the wiretap
transcripts interpreted by Officer Brown at sentencing. The court
disclaimed any reliance on testimony by certain co-conspirators
who were cooperating with the government. So we reject Jean-
Baptiste's cursory claim that the court erred by "fail[ing] to
assess the credibility" of those co-conspirators.
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interpretations of the conversations as lay opinion testimony, in
light of Officer Brown's law enforcement experience and extensive
personal involvement with the investigation. See United States v.
Prange, 771 F.3d 17, 26 (1st Cir. 2014); Etienne, 772 F.3d at 917.
Jean-Baptiste's second argument -- that the district
court ought to have used a reasonable doubt standard -- takes him
no further. It is firmly settled that the standard of proof for
judicial factfinding at sentencing is preponderance of the
evidence, so long as the factfinding does not "increase the penalty
for a crime beyond the prescribed statutory maximum." United
States v. Platte, 577 F.3d 387, 391 (1st Cir. 2009); see also
Alleyne v. United States, 133 S. Ct. 2151, 2163 (2013) ("We have
long recognized that broad sentencing discretion, informed by
judicial factfinding, does not violate the Sixth Amendment.").
The district court's drug quantity finding merely increased Jean-
Baptiste's base offense level under the Guidelines, and his
ultimate sentence of 78 months on each count was well below the
applicable statutory maximums. See 21 U.S.C. § 841(b)(1)(B)
(forty-year maximum); id. § 841(b)(1)(C) (twenty-year maximum).
Neither Apprendi v. New Jersey, 530 U.S. 466 (2000), nor Alleyne
is implicated by judicial factfinding that has no effect on the
range of punishment authorized by statute. United States v. Doe,
741 F.3d 217, 234 (1st Cir. 2013).
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Finally, there is no merit to Jean-Baptiste's pro se
contention that "no actual evidence" supported the district
court's drug quantity finding. The court did not err by drawing
reasonable inferences from the transcripts of the wiretapped
conversations in evidence. See United States v. McDonald, 804
F.3d 497, 502–04 (1st Cir. 2015).
We affirm Jean-Baptiste's sentence.
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