United States Court of Appeals
                     For the First Circuit


No. 12-2098

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                        PATRICIO PALADIN,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF NEW HAMPSHIRE

          [Hon. Paul J. Barbadoro, U.S. District Judge]



                             Before

                       Lynch, Chief Judge,
                    Thompson, Circuit Judge,
                   and Smith,* District Judge.


     Judith H. Mizner, Assistant Federal Public Defender, for
appellant.
     Seth R. Aframe, Assistant United States Attorney, with whom
John P. Kacavas, United States Attorney, was on brief, for
appellee.


                          May 12, 2014




     *
      Of the District of Rhode Island, sitting by designation.
             SMITH, Chief District Judge.   Appellant Patricio Paladin

is serving a life sentence following his conviction on a series of

drug charges.     Subsequent to Paladin’s conviction, but before his

sentencing, Paladin learned of the existence of certain evidence

that the government had failed to disclose to him, and that he

suggests may have been used to impeach the credibility of the key

government witness against him at trial.          Relying on Brady v.

Maryland, 

(1963), Paladin moved to set aside the

verdict and for a new trial.     The district court denied the motion

in a thorough bench decision, and this timely appeal followed.

             Because we agree with the district court’s determination

that the evidence in question was immaterial, we AFFIRM the

district court’s denial of Paladin’s motion.           And, as Paladin

concedes that we are precedent-bound to do, we reject a series of

separate constitutional challenges to Paladin’s life sentence, the

imposition of which was made mandatory by the quantities of cocaine

at issue and by virtue of this being Paladin’s third felony drug

conviction.

                                 I. Facts

             A second superseding indictment charged Paladin with one

count   of   conspiracy   to   distribute   cocaine,   three   counts   of

distribution of cocaine and one count of possession of cocaine with

intent to distribute.      Following a jury trial in December 2010,

Paladin was convicted on all counts.


                                   -2-
                 The testimony of FBI Agent Mark Alford and a confidential

informant by the name of Kevin Vega was of central importance to

the government’s case.             We briefly overview that testimony here,

but will return to it in greater detail later.                          Alford was the

first government witness and testified regarding his oversight of

the investigation into Paladin’s narcotics activities and about his

supervision of Vega in the initiation and completion of a series of

meetings and controlled purchases with Paladin.

                 Vega testified later in the trial and told jurors that he

had met Paladin in 2004 and thereafter routinely purchased cocaine

from him until late 2008, in a total aggregate amount that Vega

estimated was in excess of 100 kilograms. Of central importance to

this appeal, Vega testified that during the summer of 2009, he made

the decision to cease his participation in the drug trade and to

inform law enforcement of his prior activities.                        Vega told jurors

that,       in   July    2009,    he    walked    into    FBI   headquarters      in   New

Hampshire,        confessed,      and     agreed   to     serve   as    a    confidential

informant.1             This   somewhat    unusual       decision,     Vega    testified,

resulted         from    Vega’s   guilty     conscience,        fear    of    arrest   and

incarceration, and the fact that he had a newborn son. Vega stated

unequivocally that, aside from controlled buys that he performed at




        1
          Although the FBI did not immediately grant Vega immunity,
Vega was later assured by the United States Attorney’s Office that
he would not face prosecution so long as he continued to cooperate.

                                            -3-
the direction of the government, the last time that he dealt drugs

was during the summer of 2009.

             Because this was Paladin’s third felony drug conviction

and because the quantities of cocaine at issue were sufficient to

trigger      a     mandatory   life      sentence,       see    21   U.S.C.

§ 841(b)(1)(A)(ii), a significant delay preceded sentencing as

Paladin sought to overturn at least one of his prior convictions.2

It was during this period of time, in March 2012, that the attorney

who had represented Paladin at trial received a letter from one

Jordan Manning, an inmate at a state correctional facility in New

Hampshire.       Manning’s letter suggested that Vega had “got[ten]

busted for a drug charge” and had “received something in exchange

for testimony.”

             Defense counsel contacted the Assistant United States

Attorney who had led the prosecution and asked that the matter be

investigated.      In the course of the ensuing investigation, it was

discovered that, on November 12, 2010, prior to the start of

Paladin’s    trial,    representatives    of   various    law   enforcement

agencies and the New Hampshire United States Attorney’s Office had

interviewed an individual named Angel Andino in relation to a

separate narcotics investigation.



     2
          The imposition of a life sentence was made mandatory
based on the government having previously filed an information
pursuant to 21 U.S.C. § 851(a)(1), setting forth Paladin’s two
prior felony drug convictions.

                                   -4-
            Notes from this proffer session, disclosed in redacted

form to defense counsel in April 2012, contain the following

passage:

              “Andino said that he supplied Vega with 200
              [O]xycontin tablets every 2 weeks for an
              unspecified amount of time. Andino said that
              he stopped supplying Vega with cocaine and
              [O]xycontin tablets approximately 1-2 months
              before his (Andino’s) arrest.”

The United States Attorney’s Office also informed defense counsel

that Andino had been arrested in February 2010. If the contents of

the Andino proffer were true, then it would suggest that Vega had

lied   to   the   jury   when    he   testified   that   he   had   ended   his

involvement in the drug trade on his own accord during the summer

of 2009, because a transaction with Andino one to two months prior

to Andino’s arrest would have necessarily taken place during the

winter of 2009 to 2010.

            With this information in hand, Paladin filed a motion to

set aside the verdict and for a new trial, contending that the

government had failed to disclose exculpatory evidence that would

have   allowed    Paladin   to    undermine   Vega’s     credibility.       The

government did not dispute that the Andino proffer should have been

disclosed, but maintained that Paladin was not entitled to a new

trial because the contents of the Andino proffer were immaterial.

After a lengthy hearing in August 2012, the district court denied

Paladin’s motion in an oral decision.



                                       -5-
           At    a   separate   hearing    shortly    after   the    denial    of

Paladin’s motion, the district court imposed a life sentence on the

conspiracy count, noting that such a sentence was “excessive,” but

“legally required” under the circumstances.3 This appeal followed.

                       II. Evidentiary Suppression

           A. Standard of Review

           The district court’s denial of a motion for a new trial

is properly reviewed for abuse of discretion.              United States v.

Hall, 

, 19 (1st Cir. 2009).                We conduct our review

mindful   that   “[t]he   trial     judge,   having    seen   and    heard    the

witnesses at first hand, has a special sense ‘of the ebb and flow

of the recently concluded trial.’ Thus, his views about the likely

impact of newly disclosed evidence deserve considerable deference.”

United States v. Mathur, 

, 504 (1st Cir. 2010) (quoting

United States v. Natanel, 

, 313 (1st Cir. 1991)).

           B. An Introduction

           “[T]he     suppression    by    the   prosecution    of    evidence

favorable to an accused . . . violates due process where the

evidence is material either to guilt or to punishment, irrespective

of the good faith or bad faith of the prosecution.”                 

.      A “Brady” claim, then, has three elements: (1) the

evidence at issue must be favorable to the accused, either because


     3
          Paladin was sentenced to 300 months on each of the
remaining distribution and possession with intent to distribute
counts, with all sentences ordered to run concurrently.

                                     -6-
it is exculpatory, or because it is impeaching; (2) that evidence

must have been suppressed by the government either willfully or

inadvertently; and (3) prejudice must have resulted.       Strickler v.

Greene, 

, 281-82 (1999); see also United States v.

Avilés-Colón, 

, 19 (1st Cir. 2008).         The government

concedes that the Andino proffer was potentially impeaching and

that it was suppressed inadvertently.       Thus, the determinative

issue is whether the suppression resulted in prejudice.

          “Impeachment   evidence   must   be   material   before    its

suppression justifies a new trial.”    Conley v. United States, 

, 188 (1st Cir. 2005).        Evidence is material when a

“reasonable probability [exists] that the result of the trial would

have been different” if the suppressed evidence had been disclosed.

(internal quotation marks omitted).

Reasonable probability does not require that “the defendant ‘would

more likely than not have received a different verdict with the

evidence,’ only that the likelihood of a different result is great

enough to ‘undermine[] confidence in the outcome of the trial.’”

Smith v. Cain, 

, 630 (2012) (alteration in original)

(quoting Kyles v. Whitley, 

, 434 (1995)).               “This

somewhat delphic ‘undermine confidence’ formula suggests that

reversal might be warranted in some cases even if there is less

than an even chance that the evidence would produce an acquittal.”




                                -7-


(quoting United States v. Sepúlveda, 

, 1220 (1st Cir. 1993)).

           The strength of impeachment evidence and the effect of

suppression are evaluated in the context of the entire record to

determine materiality.     

     Evidence is immaterial where

it is cumulative or merely impeaches a witness on a collateral

issue.   United States v. Dumas, 

, 16 (1st Cir. 2000).

Likewise, “suppressed impeachment evidence has little probative

value if additional evidence strongly corroborates the witness’s

testimony the suppressed evidence might have impeached.”            

.

           C. The Materiality of the Andino Proffer

           The materiality of undisclosed evidence ultimately turns

on the factors outlined above.            As such, we assess the Andino

proffer in terms of: (1) its evidentiary strength; (2) whether it

was cumulative of other evidence offered at trial; (3) whether the

matters on which it would have allowed impeachment were collateral;

and (4) whether the matters on which impeachment would have been

made possible were otherwise corroborated.

                   i. Evidentiary Strength

           While the impact of withholding evidence is severe when

that   evidence   is   highly   impeaching,    the   failure   to   disclose

evidence whose impeachment value is merely marginal is manifestly

insufficient to place the trial record in “such a different light


                                    -8-
as to undermine confidence in the verdict.”           

(quoting 

).

                The district court’s finding that the Andino proffer was

immaterial was based, in part, on the conclusion that its contents

were “ambiguous.”       This conclusion was well-founded, because while

the Andino proffer suggests that Vega was involved in the drug

trade months after he had professed otherwise, the full story is

considerably more complicated.         At the hearing on the motion for a

new trial, the government represented to the district court that

Vega’s service as a confidential informant extended beyond the

Paladin investigation. More specifically, the government indicated

that Vega had executed a controlled buy with Andino in December

2009       at   the   direction   of   agents   involved   in    a   separate

investigation of Andino.           This buy, of course, would exactly

correspond with the information contained in the Andino proffer.

                Based on the government’s representations, it seems

likely that Vega did engage in a drug transaction with Andino

during the period of time that Andino described.                And, because

Andino was merely under investigation at the time, one might

reasonably infer that Andino would have had no reason to believe

that he was dealing with a government informant.4               But, because


       4
          Indeed, the notes from the Andino proffer go on to
describe that: “Andino said that he had [later] heard that . . .
Vega was working with the police and had set Andino up. Andino
said that after he heard about Vega possibly working for the
police, he stopped dealing with Vega and pushed him away.”

                                       -9-
Paladin chose to leave the record before the district court

undeveloped, this panel is left to speculate as to what Vega might

have       said    if   confronted      with    the   Andino   proffer    on    cross-

examination at trial.

                  We   can   envision   three    scenarios.      Vega    could   have

confirmed that he purchased Oxycontin from Andino in or around

December 2009, but indicated that he did so at the direction of

government agents investigating Andino; second, Vega could have

admitted to lying on direct examination about his motivation for

turning himself in to the FBI and about the cessation of his drug

dealing; and third, Vega could have flatly denied engaging in

narcotics transactions of any kind with Andino.                     We simply cannot

know which of these scenarios would have played out because Paladin

declined the district court’s invitation to hold an evidentiary

hearing to learn more.

                  As the movant seeking a new trial under Brady, the burden

to   demonstrate         the   materiality      of    undisclosed    evidence    rests

squarely with Paladin.               See 

.               Yet

Paladin made the decision not to call either Vega or Andino as

witnesses before the district court.5                  Of the potential scenarios


       5
          When asked, defense counsel indicated to the district
court that he did not intend to call either Vega or Andino, leaving
the district court to lament that “I have limited information here
because neither of you decided to investigate further or tried to
produce it in front of me . . . .” With respect to Andino, the
district court theorized that “I suspect [defense counsel elected
not to call Andino] because you’re probably concerned that he might

                                          -10-
that we outline above, only two of three are potentially helpful to

Paladin.   In scenario one, were Vega to confirm that he purchased

Oxycontin from Andino at the direction of the government, the

impeachment value of the Andino proffer would be nonexistent

because it would not suggest a discrepancy in Vega’s testimony.

           If, on the other hand, in scenario two, the Andino

proffer prompted Vega to admit that he had lied to the FBI and to

the jury, the impeachment value of such testimony would be most

significant. Likewise, in scenario three, were Vega to flatly deny

dealing with Andino, it is possible that the Andino proffer could

have been used to highlight the factual discrepancy and undermine

Vega’s credibility, assuming that the district court admitted the

proffer under an exception to the rule against hearsay.6

           In effect, Paladin asks this panel to infer (or, more

accurately, guess) that either scenario two or scenario three would

have unfolded and, furthermore, were it scenario three, that the



not say something that favors you.”
     6
          As the district court recognized, were Vega to deny the
contents of the Andino proffer, use of the proffer to impeach
Vega’s credibility would be significantly complicated by the
prohibition against hearsay. See United States v. Walthour, 202 F.
App’x 367, 371 (11th Cir. 2006) (per curiam) (“Statements in police
reports made by individuals other than the reporting officer . . .
constitute hearsay upon hearsay, and are therefore inadmissible.”).
The parties hotly contest the applicability of several hearsay
exceptions, and moreover whether inadmissability necessarily
precludes a finding of materiality. But, because we find that the
Andino proffer is of questionable impeachment value based on its
inherent ambiguity, we need not reach these questions.

                               -11-
district    court    would      have        resolved     the    various     hearsay

complications in Paladin’s favor.             This is a bridge too far and we

decline to cross it because we conclude that Paladin has not

carried his burden to demonstrate that the Andino proffer would

have been at all helpful to him.             We reach the same conclusion as

the district court: the contents of the Andino proffer are at best

highly ambiguous.        Based on the record before us, we can only

conclude that the impeachment value of the undisclosed evidence was

likely    minor,   and   thus   it     is    insufficient      to   undermine   our

confidence in the jury’s verdict.

                    ii. Was the Andino Proffer Cumulative?

            Suppressed      evidence    that     is    cumulative    of    evidence

presented at trial is immaterial.              

;

see also Moreno-Morales v. United States, 

, 148 (1st

Cir. 2003).     Where, as here, suppressed evidence would have been

used for impeachment purposes, the key issue is whether the defense

had an adequate opportunity to impeach the witness by other means.

Zeigler    v.   Callahan,    

,     266   (1st   Cir.   1981).

“Impeachment evidence, even that which tends to further undermine

the credibility of the key Government witness whose credibility has

already been shaken due to extensive cross-examination, does not

create a reasonable doubt that did not otherwise exist where that

evidence is cumulative . . . .”              

(quoting

United States v. Shelton, 

, 1248 (9th Cir. 1978)); see


                                       -12-
also United States v. Connolly, 

, 217 (1st Cir. 2007).

Nevertheless, “suppressed impeachment evidence can be immaterial

because of its cumulative nature only if the witness was already .

. . impeached at trial by the same kind of evidence.”   

(quoting United States v. Cuffie, 

, 518

(D.C. Cir. 1996)) (internal quotation marks omitted).

          The district court’s immateriality finding was based, in

part, on its conclusion that the Andino proffer would have provided

avenues of impeachment that were cumulative of others already

available to the defense.    We agree that, at best, the Andino

proffer would have provided Paladin with more of the same kind of

evidence that was already available to him to undermine Vega’s

credibility.

          Paladin relies principally on the notion from Conley that

evidence is cumulative only insofar as the witness was already

impeached by the “same kind of evidence.”   See 

the

defendant police officer was convicted of perjury and obstruction

charges stemming from his involvement in (and subsequent cover-up

of) the accidental beating of an undercover officer.    

A key government witness - a fellow officer involved in the pursuit

that led to the beating - testified regarding his perception of the

chain of events.   However, the prosecution had failed to disclose

an FBI interview with the witness during which he expressed

uncertainty regarding the events, and even asked that he be


                               -13-
hypnotized in order to better recall what had happened.     

  This Court found that a Brady violation had occurred

because the defendant had been unaware of any evidence suggesting

that the witness was uncertain as to his recollection of events.

(“Prior to trial . . . Petitioner did not know the

Government’s key witness previously suggested he be hypnotized to

‘truly recall’ the events . . . . Without any other similar

material, Petitioner did not impeach [the witness’s] ability to

recall at trial.”).

           A prejudicial Brady violation has not been effected,

however, where the defendant already had available to him evidence

that would have allowed for impeachment on the same or similar

topics.   In Moreno-Morales, for example, a key government witness

implicated the defendant police officer in the murder of an unarmed

. On appeal, the defendant argued that

the government had turned over only a subset of polygraph test

results demonstrating that the witness changed his story numerous

times prior to trial.   This Court disagreed, concluding that the

additional test results would have been cumulative because the

defense had ample opportunity to impeach the witness’s credibility

with other evidence of his prior inconsistencies.   

see

also 

(“Given [the witness’s] extensive

criminal history, it would not have been an abuse of discretion for

the district court to find that the absence of additional cross-


                               -14-
examination on essentially the same well-developed theme would not

undermine confidence in the jury’s verdict.”).

            Paladin’s reliance on Conley is misplaced.           While the

Andino proffer had the potential to lead to a line of questioning

regarding Vega’s truthfulness with law enforcement and with the

jury, Paladin already had available - and used - the same kind of

evidence to undermine Vega’s credibility.         For example, on cross-

examination, the defense elicited from Vega the concession that,

despite earning upwards of a million dollars from the sale of

Oxycontin   tablets,   Vega   paid    virtually   nothing   in   taxes   and

laundered the narcotics proceeds through a small business that he

owned.   Vega was also questioned about a home invasion in which

several masked intruders broke into his house, bound Vega and his

wife in front of their children, and stole various items.                Vega

admitted that he lied to police officers after the incident when he

told them that he was not a drug dealer. In continued questioning,

the defense suggested that Vega was similarly lying about his

relationship with Paladin in order to avoid prosecution.

            In sum, the principal focus of the defense on cross-

examination sought to undermine Vega’s credibility by suggesting to

the jury that Vega was generally dishonest and was willing to lie

to serve his own interests. In the best case scenario for Paladin,

the Andino proffer would have permitted one additional avenue to




                                     -15-
accomplish this same objective.7              This, we believe, necessarily

means     that   the   Andino   proffer    was   cumulative     because    it    is

ultimately the same kind of evidence already in the record.                      See

.

                       iii. Were the Issues for Impeachment Collateral?

             “Impeachment evidence . . . does not create a reasonable

doubt that did not otherwise exist where that evidence is . . .

collateral.”      

(quoting 

).     A matter is considered collateral if “the matter itself is

not relevant in the litigation to establish a fact of consequence,

i.e., not relevant for a purpose other than mere contradiction of

the   in-court     testimony    of   the    witness.”        United    States    v.

Beauchamp, 

, 4 (1st Cir. 1993) (quoting 1 McCormack on

Evidence § 45, at 169 (4th ed. 1992)).

             The district court touched on this issue when it drew a

distinction      between   “evidence      the   government    has     produced   to

support the elements of the case” and “evidence that bears on the

credibility of a witness.”           We read the district court’s oral

decision as concluding, based on this distinction, that the Andino

proffer    was   collateral     because    while   it   would    have    possibly



      7
          Though we note again the distinct possibility that Vega
might have responded to this line of questioning by indicating that
the transactions with Andino had been in his capacity as a
confidential informant and at the direction of the government - a
response that would have served to eliminate any impeachment value
that the proffer might have provided.

                                       -16-
permitted impeachment of Vega’s general credibility, it would not

have permitted impeachment of the factual evidence underlying the

government’s case.     In light of the weakness of the suppressed

evidence and its cumulativeness, any error in the district court’s

finding - if indeed there was any at all - was harmless.

                   iv. Were the Issues for Impeachment Corroborated?

            “[S]uppressed impeachment evidence has little probative

value if additional evidence strongly corroborates the witness’s

testimony the suppressed evidence might have impeached.”            

; see also 

.               Nevertheless,

“[c]onfidence in the outcome is particularly doubtful when the

withheld    evidence   impeaches   a      witness   whose    ‘testimony   is

uncorroborated and essential to the conviction.’”                Norton v.

Spencer, 

, 9 (1st Cir. 2003) (quoting United States v.

Martínez-Medina, 

, 126 (1st Cir. 2002)).

            This Court has previously found undisclosed evidence to

be immaterial by virtue of having been independently corroborated.

See, e.g., United States v. González-González, 

, 18-19

(1st Cir. 2001) (despite government’s nondisclosure of evidence

tending to undermine the credibility of two witnesses, numerous

other witnesses testified as to defendant’s involvement in a drug

conspiracy and the government introduced documentary evidence

including    recordings   of   conversations,       travel    records     and

surveillance photographs); 

(aside from a


                                   -17-
government witness who later purportedly recanted his testimony,

multiple    other    witnesses          testified    as    to   defendant’s       corrupt

dealings with organized crime figures); 

(despite delayed disclosure of evidence defendant argued could be

used to shift blame to one of the witnesses against him, numerous

other witnesses testified as to their victimization by defendant’s

financial     scheme       and     the     government       introduced       voluminous

corroborative records).                Nevertheless, at the other end of the

spectrum, this Court has found that a trial court erred when it

declined    to     grant    a    new    trial     where    evidence     emerged     post-

conviction    that     the      government’s       sole    witness    had    fabricated

allegations and where no additional corroborative evidence was

introduced at trial.            See 

.

             Our    focus       with    respect    to     corroboration      is   on   the

conspiracy charge.           The district court concluded, and we agree,

that the evidence of Paladin’s guilt on the distribution and

possession with intent to distribute charges was overwhelming and

did not depend on Vega’s credibility.                   Jurors heard testimony from

federal, state and local law enforcement personnel who variously

investigated       Paladin,       conducted       surveillance     on    a   series    of

controlled buys with Vega, tested and confirmed as cocaine the

substances that Vega purchased from Paladin, executed a search

warrant at Paladin’s residence where a significant cocaine stash

was uncovered, and arrested Paladin while he was traveling in


                                           -18-
Georgia and carrying some ten thousand dollars in cash.                 This

evidence was not meaningfully contested.

           As the district court recognized, however, despite the

strength of the government’s case with respect to the other counts,

the   conspiracy   charge   depended   in   large   part   on   the   jury’s

willingness to accept Vega’s version of events that had taken place

prior to his becoming a confidential informant.8

           We    believe    that   there    was     sufficient    evidence

corroborative of Vega’s testimony on the conspiracy count.                We

begin with Paladin’s own statements.        The jury heard a series of

audio recordings of meetings and controlled buys between Vega and

Paladin, as well as the testimony of members of law enforcement who

surveilled these interactions.      Paladin is heard to make a series

of comments indicative of a long-standing drug dealing relationship

with Vega.      For example, in one conversation in which Vega and

Paladin are discussing drug quantities, the following exchange took

place:

           Paladin: That’s what you need, we don’t need,
           it’s not like [expletive deleted] to go around
           like we used to do, you know what I mean.



      8
          “[I]n situations where the conspiracy involves only [one]
defendant and a government informer. . . . there can be no
conspiracy because it takes two to conspire and the government
informer is not a true conspirator.” United States v. Giry, 

, 126 (1st Cir. 1987) (second alteration in original)
(citations omitted).     The controlled drug transactions that
occurred after Vega became an informant could not form the basis of
conspiracy liability.

                                   -19-
          Vega: [Expletive deleted], what are we doing
          [expletive deleted] that one summer like 100
          keys.9

          Paladin: [Inaudible] . . . I’m going beyond that.

          During a separate conversation on the topic of conducting

their meetings in parking lots, Paladin is heard to say: “Yeah,

[expletive deleted], you gotta move in close so we can meet up like

we did before, you feel me?”    We view these (and other) statements

by Paladin as corroborating Vega’s testimony that Vega and Paladin

had previously conspired to distribute cocaine prior to Vega’s

service as an informant.

          There was also corroboration of Vega’s testimony by other

witnesses, principally Agent Alford, the FBI agent who oversaw the

investigation   of   Paladin   and   who   testified   first   for   the

government.   In one instance of corroboration, among others, Vega

testified that in approximately 2007, he paid Paladin for a

shipment of cocaine by giving him a customized Suzuki motorcycle.

Agent Alford testified regarding the FBI’s seizure of the same

motorcycle in 2010 and the government offered in evidence the

motorcycle’s title history which showed Vega’s past ownership and

present ownership by Paladin’s girlfriend, Cristy Baez.10



     9
          The government represented at oral argument, and we have
no reason to doubt, that a “key” is a kilogram.
     10
          Agent Alford testified that when the FBI tracked down the
motorcycle, it was for sale on Craigslist, with interested buyers
instructed to call a phone number registered to Paladin and Baez.

                                 -20-
            Next, Agent Alford corroborated Vega’s testimony with

respect to the nature of the “fronting” and payment practices.

Vega testified that his independent dealings with Paladin spanned

from 2004 to 2008, and that there was a gap between Vega’s last

purchase in 2008 and his reinitiation of contact with Paladin at

the   direction   of    the   FBI   in    November      2009.       Vega   testified

regarding the details of the first controlled buy, and jurors heard

an audio recording of what transpired.                       During this meeting,

Paladin provided Vega with six ounces of cocaine, and Vega and

Paladin agreed that Vega would pay for it approximately a week

later.    This practice, in which the buyer effectively purchases

drugs on credit, then pays the seller later with proceeds from the

resale,    is   known   as    fronting.         Vega   testified      that    in   two

additional controlled buys in November and December 2009, Vega and

Paladin used similar fronting arrangements.

            Agent Alford corroborated this testimony by detailing for

jurors his oversight of the controlled purchases.                    Specifically,

Agent    Alford   testified     that     in     the   case    of   each    controlled

purchase, Paladin fronted Vega the drugs, then Vega later paid for

them with funds provided by the government.                  As the district court

recognized, Paladin’s willingness to front significant quantities

of cocaine to Vega beginning with the first controlled purchase in

November 2009 is indicative of a prior drug dealing relationship.




                                         -21-
We believe it unlikely that Paladin would have done so were he

dealing with Vega for the first time.

            Witnesses other than Agent Alford corroborated Vega’s

testimony as well.      For example, Vega testified that Paladin used

the Lowell, Massachusetts home of an associate by the name of Juan

Burgos (nicknamed “Indio”) as a stash house for guns, drugs and

bulletproof vests. Vega testified about a conversation that he had

with Paladin in 2007 in which Paladin described arriving at Indio’s

home to collect a package of marijuana, knocking on the front door,

and it being opened by police officers and FBI agents who happened

to have just recently raided the home in connection with an

investigation into Indio.          Vega testified that Paladin told him

that the officers questioned but ultimately released him.                  This

testimony   was   corroborated      by    members   of   the   Lowell   Police

Department who testified as to the execution of the raid at Indio’s

home and Paladin’s ill-timed arrival, questioning and release.

            D. Conclusion

            Because of the questionable evidentiary strength of the

Andino proffer, the fact that we believe it to provide avenues of

impeachment that are merely cumulative of others that were already

available   to    the   defense,    and   because   Vega’s     testimony   was

sufficiently corroborated, we agree with the district court that

the Andino proffer was immaterial.          As such, we AFFIRM the denial

of Paladin’s motion to set aside verdict and for a new trial.


                                     -22-
                          III. Constitutional Challenges

                 Paladin raises a series of constitutional challenges to

the district court’s imposition of a life sentence.                    As we noted

previously,         the   life    sentence     was   made    mandatory       by   the

government’s        filing   of   an   information     pursuant   to    21    U.S.C.

§ 851(a)(1) regarding two prior felony drug convictions that

Paladin had sustained.11          These convictions, combined with the fact

that the instant charges involved more than the necessary five

kilograms of cocaine, triggered the requirement set forth at 21

U.S.C.       §   841(b)(1)(A)(viii)     that   “[i]f   any   person     commits    a

violation of this subparagraph . . . after two or more prior

convictions for a felony drug offense have become final, such

person shall be sentenced to a mandatory term of life imprisonment

without release . . . .”               Paladin raises these constitutional

challenges for further appellate review because, as he concedes,

most of them are foreclosed by binding precedent. We consider each

of Paladin’s arguments in turn, but they need not detain us for

long.




        11
          The information, filed in August 2010, suggests that
Paladin was previously convicted in 1998 for conspiracy to possess
a controlled drug with intent to sell, and in 2003 for conspiracy
to sell a controlled drug. Both convictions were in New Hampshire
state courts.    The record suggests that, prior to sentencing,
Paladin sought unsuccessfully to vacate the 1998 conviction.

                                        -23-
            A. Does Alleyne v. United States Require Submission of
            Prior Convictions to the Jury?

            Paladin maintains that because the indictment did not

reference his two prior felony convictions, and because the jury

was not required to find beyond a reasonable doubt that he had been

convicted of these crimes, Paladin’s Fifth and Sixth Amendment

rights to have all of the elements of an offense included in an

indictment and found by a jury beyond a reasonable doubt were

violated.    Because this argument was preserved, our review is for

harmless error, see United States v. Harakaly, 

, 94 (1st

Cir. 2013), cert. denied, 

(2014), but we conclude

based on binding Supreme Court and Circuit precedent that there was

no error at all.

            In Almendarez-Torres v. United States, the Supreme Court

upheld the constitutionality of a statute that permitted district

courts to enhance certain sentences based on the defendant’s status

as a recidivist even where allegations of the defendant’s prior

offenses were not set forth in the indictment.    

, 228

(1998) (“An indictment must set forth each element of the crime

that it charges.    But it need not set forth factors relevant only

to the sentencing of an offender found guilty of the charged

crime.”) (citations omitted).      Four years later, in Harris v.

United States, the Supreme Court affirmed the conviction of a

defendant where the district court had found by a preponderance of

the evidence that the defendant had “brandished” a firearm in

                                -24-
relation to a drug crime, but the question of brandishing had not

been submitted to the jury.      

, 550-52 (2002).     Under

the applicable statute, the district court’s finding that the

defendant had brandished the firearm resulted in an enhanced

mandatory minimum sentence.     

            Alleyne v. United States overruled Harris, reasoning that

“[f]acts that increase the mandatory minimum sentence are . . .

elements and must be submitted to the jury and found beyond a

reasonable doubt.”      

, 2158 (2013).      Nevertheless,

Alleyne recognized an exception to this rule that a defendant’s

prior convictions need not be submitted to the jury even where

those convictions form the basis for an increased sentence. 

n.1.    In Alleyne, the Supreme Court expressly declined to

revisit Almendarez-Torres.      See id.; see also United States v.

Carrigan, 

, 51 n.4 (1st Cir. 2013), cert. denied, 134 S.

Ct. 668 (2013) (“[Appellant] . . . ask[ed] this court to find that

his sentence is unconstitutional because the question of his status

as an [armed career criminal] should have been submitted to the

jury pursuant to [Alleyne].     We disagree.   In Alleyne, the Supreme

Court   stated   that    [Almendarez-Torres]     remains   good   law.”)

(citations omitted). This being the case, we must reject Paladin’s

argument that his Fifth and Sixth Amendment rights were implicated

when the indictment did not set forth his prior convictions and the

jury was not required to pass upon them.


                                  -25-
            B. Does Alleyne Require Submission of Drug Quantity to
            the Jury?

            Paladin contends that the district court erred by not

submitting      to    the   jury   the   question    of   whether   Paladin    was

individually responsible for the charged quantity of cocaine (five

kilograms    or      more).    Because     Paladin    did   not   preserve    this

argument, our review is for plain error. See 

.   To prevail, Paladin must show that the error was “prejudicial

and affected his substantial rights, and . . . caused a miscarriage

of    justice   or     seriously    undermined      the   integrity   or   public

reputation of judicial proceedings.”             United States v. Carpenter,

, 632 (1st Cir. 2013), cert. denied, 

(2014) (quoting United States v. Henderson, 

, 105 (1st

Cir. 2003)) (internal quotation marks omitted).

            As we noted earlier, Alleyne requires that any fact that

serves to increase the mandatory minimum sentence be submitted to

the jury and found beyond a reasonable 

.

Prior to Alleyne, this Court had held that “when a district court

determines drug quantity for the purpose of sentencing a defendant

convicted of participating in a drug-trafficking conspiracy, the

court is required to make an individualized finding as to drug

amounts attributable to, or foreseeable by, that defendant.”

United States v. Colón-Solís, 

, 103 (1st Cir. 2004).

Paladin urges a collective reading of Colón-Solís and Alleyne to

require that the jury make an individualized finding as to the

                                         -26-
quantity of drugs attributable to a particular defendant.                  Against

that backdrop, Paladin argues that the district court’s jury

instructions were insufficient to glean an individualized finding

as to the quantity of cocaine attributable to him.

            This argument misconstrues the district court’s jury

instructions and overlooks the nature of the charged conspiracy.

The district court instructed the jury that “[i]n order for the

defendant to be found guilty of the charged conspiracy, the

government must prove that the defendant conspired to distribute

and possess with intent to distribute five or more kilograms of

cocaine.” (emphasis added).         These instructions required the jury

to find that Paladin directly conspired with respect to the

applicable minimum quantity in order to sustain a conviction.

            What is more, we distinguish the instant conspiracy from

the facts underlying this Court’s holding in Colón-Solís.                   There,

this Court was faced with one defendant involved in a large-scale

Puerto Rican drug cartel responsible for massive quantities of

cocaine and heroin.      

     Of course, in these contexts, the

automatic    attribution    of    the    full    scope    of   the    conspiracy’s

dealings    to   a   particular    defendant         without   an   individualized

quantity finding is problematic.                See 

            Here,

however, the charged five kilogram quantity was based solely on the

conspiratorial dealings of two men: Paladin and Vega.                      Paladin

cannot   reasonably     maintain    that       his    substantial     rights   were


                                        -27-
affected when there are no third parties to whom a material portion

of the cocaine in question could be attributed.12

          Even if we were to look beyond the sufficiency of the

jury instructions and the nature of the charged conspiracy and

conclude that the district court had erred, Paladin would be unable

to demonstrate the requisite prejudice necessary to prevail on

plain error review.     This Court has previously “treated the

presence of overwhelming evidence of the requisite drug types and

quantities as a proxy for harmlessness.”   

(quoting United States v. Pérez-Ruiz, 

, 18 (1st Cir.

2003)).

          Vega testified that, in his estimate, he and Paladin

dealt in more than 100 kilograms of cocaine between 2004 and 2008.

We acknowledge that this figure is an estimate and nothing more.

But the volume of cocaine attributable to Paladin in the mere five

weeks between the first controlled purchase with Vega and the raid

on Paladin’s home confirms that he dealt in significant quantities,

lending credibility to Vega’s estimate.

          Agent Alford testified that Vega purchased six ounces of

cocaine from Paladin in each of two controlled buys on November 12

and December 8, 2009, and a kilogram in a third buy on December 15.


     12
          Indeed, jurors heard testimony about just one transaction
in which Paladin was not directly involved. Vega testified that on
one occasion in early 2008, after Indio’s house was raided and
Paladin was nearly implicated, Paladin “had a little hiatus” and
Vega purchased cocaine from Paladin’s girlfriend.

                               -28-
Then, Agent Alford testified that in the raid on Paladin’s home on

December 17, an additional three and a half kilograms of cocaine

were found and seized.      That Paladin was responsible for nearly

five kilograms of cocaine during this short period of time suggests

that Vega’s estimate of their prior dealings between 2004 and 2008

was not wildly inaccurate.13

             C. Does the Five-Year Limitation on Challenging Prior
             Convictions under 21 U.S.C. § 851(e) Violate Due Process
             and Equal Protection?

             “No person who stands convicted of an offense . . . may

challenge the validity of any prior conviction alleged under this

section which occurred more than five years before the date of the

information alleging such prior conviction.”     21 U.S.C. § 851(e).

Paladin’s argument with respect to this issue may be summarized as

follows: the 1998 felony drug conviction that he sustained and that

was one of two prior felonies referenced in the government’s

information filed with the district court was tainted due to

ineffective assistance of counsel, but Paladin was barred from

raising this issue before the district court because the conviction

was more than five years old.     Thus, his right to due process and

equal protection was violated.    Our review is de novo.   See United

States v. Robinson, 

, 653 (1st Cir. 1998).




     13
             A kilogram is equal to just over 35 ounces. The three
controlled     purchases and the raid produced approximately 4.8
kilograms.

                                 -29-
           As Paladin acknowledges, this argument has been squarely

refuted   by   Circuit       precedent,    and     we   must   reject    it.   See

    (“The    ban    against      challenging

convictions over five years need only be supported by a rational

legislative purpose because no fundamental right or suspect class

is at issue in this case.          The five year limitation . . . has a

rational basis in light of both the administrative difficulties

inherent in challenges to prior convictions . . . and the interest

in finality.         We therefore have no difficulty concluding that

section 851(e) does not violate [defendant’s] right to due process

and equal protection of the law.”) (citations omitted).

           D. Is the Life Sentence Arbitrary and Capricious?

           Paladin contends that broad prosecutorial discretion

results in the arbitrary and capricious application of sentencing

enhancements under § 851(e).          This argument too is foreclosed by

binding precedent as the Supreme Court has reviewed and deemed

constitutional the applicable practices under § 851.                    See United

States v. Labonte, 

, 761-62 (1997).

           E. Does the Life Sentence Violate the Eighth Amendment?

           Paladin’s final challenge suggests that his life sentence

violates the Eighth Amendment because it is cruel and unusual and

is contrary to an emerging national consensus on sentencing for




                                         -30-
non-violent drug crimes.14         Our review is de novo.        See United

States v. Raymond, 

, 40 (1st Cir. 2012).              This Court

recently considered, and rejected, virtually identical arguments in

United States v. Jones, 

, 96-97 (1st Cir. 2012), cert.

denied, 

(2012) (citing Supreme Court cases upholding

life and other lengthy prison sentences for non-violent repeat drug

offenders), and we must do the same here.

            While we may well agree with the sentiment of the

district court that the sentence here is excessive, like the

district    court,   we   cannot   but   hold   that   it   is   lawful   and

constitutional.      Relief in cases such as this - if there is any -

must come, in the first instance, in the exercise of restraint and

wisdom in the charging decision of the prosecutor, or in the

exercise of the clemency power; both are executive not judicial

functions and leave us powerless to intercede to grant relief.



Affirmed.




     14
          With respect to an emerging national consensus, Paladin
relies principally on Graham v. Florida, 

(2010), in
which the Supreme Court considered national public opinion in
assessing the constitutionality of sentencing juveniles to life in
prison without the possibility of parole for non-homicide offenses.

                                    -31-