NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

__________ Nos. 13-3477 and 13-4449

__________ UNITED STATES OF AMERICA

v. MARK MILLER, a/k/a Sharkey Mark Miller, Appellant at No. 13-3477

__________ UNITED STATES OF AMERICA

v. JAQUEL CREWS, a/k/a Quelly Jaquel Crews, Appellant at No. 13-4449

__________ On Appeal from the United States District Court for the Eastern Distri ct of Pennsylvania (D.C. Criminal Nos. 2-10-cr-006 63-006 and 2-10 -cr-00663-004) District Judge: Honorable John R. Padova

Submitted Under Third Circuit LAR 34.1(a) September 9, 2015 BEFORE: VANASKIE, NYGAARD, and RENDELL, Circuit Judges2 (Filed: April 1, 2016)

__________

OPINION *

__________ NYGAARD, Circuit Judge.

Introduction Appellants Mark Miller and Jaquel Crews were convicted by a federal jury for their participation in a multimillion dollar drug organization that dist ributed hundreds of kilograms of cocaine and crack cocaine in Philadelphia’s Frankfort neighborhood for more than 20 years. They have appealed their convictions and sentences. We will

affirm. Background Because we write solely fo r the parties, we will provid e only a brief outline of the factual background. Miller and Crews were ve terans of the illegal drug trade. Testimony

revealed that Miller had been selling cocaine at least sinc e 1986, while Crews had been supplying drug dealers since 1996. Together, the Appella nts laundered millions of dollars in drug proceeds throu gh the purchase of real estate and other assets. Although neither Appellant was gainfully employed, th ey lived extrav agantly, attending events like the Super Bowl and the MTV Video Music Award show. They also laundered drug proceeds through the purchase of luxury items like mink coat s, Breitling watches, and

* This disposition is not an opinion of the fu ll Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.3 more than $100,000 in diam ond jewelry. Both Miller a nd Crews routinely delivered money to a California-based cocaine supp lier, flying between Philadelphia and Los Angeles and Philadelphia and Las Vegas on numerous occasions. The supplier, in turn, would provide Crews and other member s of the conspiracy with cocaine. 1 After a ten-day trial, a jury convicted Cr ews and Miller of one count of conspiracy to distribute five kilograms or more of coca ine and fifty grams or more of crack cocaine

between 1986 and November of 2007, in violation of 21 U.S. C. § 846. Miller was also convicted of seven counts of money laun dering, in violation of 18 U.S.C. § 1956(a)(1)(A)(i) and 18 U.S.C. § 1956(a)(1)(B)(i). Crews was found guilty of ten counts of money laundering in violation of the sa me aforementioned statutes. The Government filed forfeiture motions, seeking personal forfeiture money judgments against both Appellants in the amount of $5,000,000, purs uant to 21 U.S.C. § 853 , which the District Court granted. At sentencing, the District Court imposed a 212-month prison sentence on

Miller while Crews received a senten ce of 240 months’ imprisonment. We granted Miller’s motion to consolidate his appeal with Crews.’ Together, and

in some instances individua lly, they raise numerous cha llenges to their convictions, sentences, and the District Court’s forfeiture order. We will discuss each issue in turn, beginning with the evidentiary claims. Exclusion of the Lofton Recordings At trial, Crews and Miller attempted to introduce excerpts of telephone calls a Government witness, Craig Lofton, made from prison to various individuals on the

1 App. 780-81a.4 outside. One of several witnesses called by the Government, Lofton testified to his knowledge and participation in Miller and Crews’ drug trafficking schemes. The Appellants argued to the District Court th at these excerpts woul d impeach Lofton by revealing incentives he had to lie on behalf of the Government. The District Court permitted Miller to use eight of the requested twelve excerpts. On appeal, Miller and Crews argue that the District Court abused its discretion by excluding the four remaining excerpted conversatio ns from evidence. 2 At the outset, we reject the Appellants’ overarching contention that the District Court failed to articulate a legal basis for ex cluding these four exce rpts from evidence. The record clearly rev eals the foundation for the District Court’s ruling: Federal Rule of

Evidence 608. 3 Under this rule, “extrinsic evidence is not admissible to prove specific

instances of a witness’s conduct in order to attack or support the witness’s character for

truthfulness.” 4 The District Court ruled these four ex cerpts to be extrinsic evidence and it did not abuse its discretion in doing so. For example, the excerpt taken from a te lephone conversation between Lofton and an unidentified woman during which Lofton discussed his belief that he and Crews were

2 We review the District Court’s ruling as to the admissibility of evidence and its limitation on cross-examination for an abuse of discretion. United States v. Knight , 700 F.3d 59, 62 (3d Cir. 2012); United States v. Mussare , 405 F.3d 161, 169 (3d Cir. 2005).

3 The District Court asked counsel for Appellant Crews: “So that these conversations are conversations that were made outside the cour troom. They were ma de – they involve Mr. Lofton and other people, and th e defendant Crews wants to use these conversations for impeachment – for cred ibility purposes under Ru le 608(b), is that a fair statement?” Counsel for Crews responded “Fair enough.” App. at 1445a.

4 Fed. R. Evid. 608(b).5 coming “home in two years,” 5 is extrinsic because Lofton testified three years after making that statement. By that time, he coul d no longer have had the expectation he was going to be released in two years since thr ee had already passed. Crews now argues that this excerpt should have b een admitted nonetheless because it was contrary to Lofton’s testimony that he had not been given any promises or sent encing expectations by the Government. This argument misses the impor tant point that, at trial, Lofton was questioned about his then-current sentencing expectations; not the expectations he had in 2009 when this telephone conversation was r ecorded. Miller attack s this exclusion from a somewhat different angle, arguing it was ad missible to prove Lofton expected to serve two years, not twenty-five. Bu t, this excerpt is irrelevant to Miller’s argument. As we just noted, by the time he testified at trial, Lofton’s purported expect ation of a two year sentence was already outmoded by a year, rendering his prio r conversation about that expectation irrelevant. Therefore, the Distri ct Court did not abuse its broad discretion in evidentiary matters by ruling th is excerpt out of bounds. Likewise, the District Court did not a buse its discretion by excluding excerpts from a telephone conversation in which Lofton speaks of being suicidal. Here, Lofton was talking with another Government witne ss, Michael Durrant, in March of 2009. Lofton told Durrant that a ten-year sentence was “a long time,” and that “[a]nything underneath it, I’m extremely underneath that ove r it. I’m upset. I’m tore down. Suicide

5 App. at 1666a.6 material.” 6 The District Court found this particul ar excerpt to be ex trinsic evidence of Lofton’s motivation for testifying, and we agree. Lofton had already testified that he did not have an expectation of a reduced sentence in exchange for his cooperation with the

Government. 7 On appeal, Miller maintains that th is excerpt was evid ence of Lofton’s bias and that the District Court erred by preventing him from challenging Lofton. We see nothing in the record that supports his argument. Crews and Miller were unencumbered

in their cross-examination of Lofton and questioned him in de tail about his plea agreement and the possible senten ce Lofton may have received had he not pleaded guilty. Further, Crews and Miller could certainly have recalled Lofton to question him about the other admitted excerpts, but elected not to do so. Therefore, we see no abuse of

discretion in the exclusion of this excerpt from evidence. Lastly, Miller and Crews argue that two excerpts from a conv ersation Lofton had with an agent from the Drug Enforcement Agency should have been admitted into

evidence. These exce rpts are part of a conversation between Lofton and a DEA agent concerning plans to take Lofton to meet with Government la wyers prior to his grand jury testimony. In the first excerpt, after clar ifying where Lofton was being held, the agent inquired whether Lofton would like “a nice s it down dinner” when they picked him up. 8

6 App. at 1668a.

7 App. at 1455a.

8 App. at 1668a.7 Lofton thought that would be “lovely.” 9 In the second excerp t, Lofton tells the agent “Yeah man, its three people that pretty much gonna walk through this thing. You know

what I mean. You know them all. I can’t call em out, but you know who they are. One of ‘em already walked through the water look the devil in the face. An he’s up on the west side. Everybody can’t get a brea k but I make sure I protected them.” 10 At trial,

counsel for Miller and Crews tried to admit th ese excerpted conversations as evidence of

Lofton’s inconsistent statements but ac knowledged that Lofton had never been questioned about these statements. 11 The District Court sustained the Government’s objection to the admission of this excerpt. 12 Now on appeal, both Appellants maintain that the first conversation should have

been admitted as evidence of bias. Miller be lieves that this exclusion prevented him “from showing . . . that Lofton received special treatment from the investigating agents.” 13 This basis for admission, however, was never argued to the District Court and, as such, is waived. 14 And, even were it not, the reco rd does not support this claim because Lofton was never ques tioned by the defense about th e invitation to dinner, nor did the defense call the DEA Agent to be ques tioned about his offer. Likewise, it was not

9 Id

.

10 App. at 1667a.

11 App. at 1454a.

12 App. at 1454a, 1466a.

13 Miller Br. at 26.

14 United States v. Burnett , 773 F.3d 122, 130 (3d Cir. 2014).8 an abuse of discretion for the District Court to exclude the second excerpt. Nothing in that exchange was inconsistent with Lofton ’s prior testimony and the excerpt makes no

mention of coordination with other witnesse s or any other type of conversation. In sum, it was not an abuse of discreti on for the District Court to exclude the forgoing excerpts from Lofton’s reco rded telephone conversations. Crews’ Mandatory Minimum Sentence Next, Crews individually challenges his sentence, specifically the imposition of a statutorily mandated minimum term. Prior to sentencing, the Government filed for a

downward variance from the advi sory guidelines range on ac count of assistance Crews provided in another prosecutio n. The Government declined to file, however, a motion permitting a sentence below the statutory ma ndatory minimum of 240 months. Crews offered several objections to his proposed sentence, including an objection based on a perceived Alleyne error as well as an objection to an enhancement for his leadership role in the offense. The District Court granted Crews a downward variance, rejected his other challenges, and imposed the mandatory minimu m sentence permitted by the statute—240 months. On appeal, Crews again attacks the pr opriety of his sentence. We start with his

claim of Alleyne error. After the verdict was hand ed down, but before Crews was sentenced, the Supreme

Court announced its decision in Alleyne v. United States

. 15 In Alleyne , the Supreme

15 133 S.Ct. 2151 (2013). The jury verdic t was announced on March 14, 2012. The Supreme Court handed down its opinion in the Alleyne case on June 17, 2013, and Crews was sentenced on No vember 5, 2013.9 Court held that any fact that increases th e mandatory minimum sentence is an element which must be determined by the jury. 16 Therefore, where a factual determination such as a drug quantity “trigger[s] a statutory mandato ry minimum sentence, [it] must . . . be submitted to a jury.” 17 Crews was charged, at Count Five of the indictment, with responsibility for distributing “five kilograms or more, that is hundreds of kilograms, of

mixture and substance containi ng a detectable amount of cocaine, and 50 grams or more, that is multiple kilograms, of a mixture an d substance containing a detectable amount of cocaine base (“crack”).” 18 Concerning Count Five, the Dist rict Court instructed the jury that, to find Crews guilty, it must “be satisfi ed that the Government proved the weight or quantity beyond a reasonable doubt.” 19 Further, the District Cour t noted that the jury had received “evidence during the course of this trial as to how much—what the weight was with respect to what was rec overed and what was involved.” 20 The jury was also specifically told that it must “determine the weight of the cocaine and cocaine base crack which was involved in the conspiracy,” and that “in making this decision, you should

consider all the controlled substances that the members of the conspiracy actually

distributed.” 21 Finally, the District Court told the jury that they must “unanimously find

16 Id . at 2155, 2163.

17 United States v. Smith , 751 F.3d 107, 117 (3d Cir. 2014) (interpreting Alleyne ).

18 App. at 111a. These were alleged violati ons of 21 U.S.C. § 841(a)(1) and (b)(1)(A).

19 App. at 1504a.

20 App. at 1505a.

21 App. at 1505a.10 beyond a reasonable doubt that th e weight or quantity of cocain e that was involved in the conspiracy was five kilograms or more.” 22 In finding Crews guilty of conspiracy, the jury unanimously determined that the conspi racy involved five or more kilograms of cocaine and 280 grams or more of cocaine base. 23 But, as Crews submits, and the Government concedes, the jury did not determ ine an exact amount of cocaine and cocaine base directly attributable to Crews himself. This lack of an individualized determination, the parties maintain, was error in light of Alleyne . We agree. However, such a lapse was

harmless. Alleyne errors can certainly be reviewed for harmlessness. Recently, in United

States v. Lewis , 24 we applied a harmless error analysis to an Alleyne error, noting that, while the Supreme Court had not discussed such a review in Alleyne , the Court has “. . . adopted the general rule that a constitutional error does not automatically require reversal

22 App. at 1505a. Similar instructions were given to the jury on the amount of cocaine base they needed to find (280 grams). See App. at 1506a.

23 App. at 1652a. We note that after Crews a nd Miller were indicted, the Fair Sentencing Act of 2010 (FSA) was enacted. It increased the amount of crack cocaine that triggers the ten-year mandatory minimum sentence from 50 grams to 280 gram s. On June 21, 2012, the United States Supreme Court held that the more lenient penalties of the FSA apply to those offenders whose crimes occurr ed before the effective date of the Act (August 3, 2010), but who were sentenced after that date. See Dorsey v. United States , 132 S.Ct. 2321, 2335 (2012). Here, the offens es being prosecuted occurred well before August of 2010 and the Appellees were senten ced well after that date. Therefore, while the indictment charged them only with cons piracy to distribute 50 grams of crack cocaine, the District Court correctly instructed the jury that it had to find the conspiracy involved 280 grams of crack cocaine.

24 802 F.3d 449 (3d Cir. 2015).11 of a conviction,” and that the Supreme Cour t has “applied harmless error analysis to a wide range of errors and has recognized that most constitutional errors can be

harmless.” 25 Lewis provides an important template for our analysis in this case. As a prerequisite, Lewis instructs that harmless error revi ew may only be undertaken “when

the defendant has made a ti mely objection to an error.” 26 That was done here. Crews’ objections to his sentence contained sp ecific reference and argument to Alleyne , sufficient to satisfy this requirement. 27 Lewis additionally reminds us that the Government has a heavy burden “to demonstrate th at reversal is not warranted.” 28 And lastly, Lewis notes the important distinction between tr ial errors and sentencing errors. 29 Both types of errors are subject to harm less-error review, thou gh our standard of review differs markedly for each one. “Harmless-error re view for a sentencing error

turns on whether the error did or did no t ‘contribute to the [sentence] obtained.’” 30 By contrast, harmless-error review for a trial e rror “turns on whether it is ‘clear beyond a

25 802 F.3d at 454 (quoting Arizona v. Fulminante , 499 U.S. 279, 306 (1991)).

26 Id . (quoting United States v. Adams , 252 F.3d 276, 281 (3d Cir. 2001)).

27 See, e.g. , App. at 1807a, 1874a.

28 Lewis , 802 F.3d at 454 (quoting United States v. Waller , 654 F.3d 430, 438 (3d Cir. 2011)).

29 Id. 455 (citing United States v. Brennan , 326 F.3d 176, 180 (3d Cir. 2003)).

30 Id. at 456.12 reasonable doubt that a rationa l jury would have found the defendant guilty absent the

error.’” 31

In Lewis , we categorized the Alleyne error as “a pure sentencing error.” 32 There, Lewis’s indictment charged him with the o ffense of using or ca rrying a firearm during

and in relation to a crime of violence. And at trial, the jury was pr operly instructed for that offense and found him guilty. Yet the Di strict Court sentenced him for brandishing a firearm during a crime of violence, which is a “‘separate, aggravated offense that must be found by a jury.’” 33 We held that this was a “pure sentencing error,” as the jury was properly instructed at trial as to each element of the crim e for which Lewis was indicted and found him guilty of that cr ime, but then the District Co urt sentenced him for a crime

for which he was neither indicted nor tried. As a result, applying harmless-error review,

we considered whether the Alleyne error contributed to Lewis’s sentence, concluded that it did, and vacated the sent ence and remanded. Importantly, we also recognized in Lewis that “not . . . all Alleyne or Apprendi errors are pure sentencing errors.” 34 For example, in United States v. Vasquez, 35 we were confronted with “both a trial e rror and a resulting sentencing error.” 36 There, Vasquez

31 Id . (quoting Neder v. United States , 527 U.S. 1, 18 (1999)).

32 Id . at 455.

33 Id. at 454 (quoting Alleyne v. United States , 133 S. Ct. 2151, 2162 (2013)).

34 Id . at 455.

35 271 F.3d 93 (3d Cir. 2001).

36 Id

.13 was indicted and tried for conspiring to posse ss and distribute more than five kilograms of cocaine. But the District Court never prop erly instructed the ju ry at trial on drug quantity, which was an element of the offense for which he was indicted and tried. As a result, Vasquez’s prescribed statutory maximu m was 240 months, but the District Court,

in violation of Apprendi , sentenced him to 288 months af ter finding at sentencing that he had possessed a certain quantity of drugs. So, even though the District Court erred at sentencing, that error was caused by a trial erro r—i.e., its failure to submit to the jury an

element of the offense for whic h he was indicted and tried. And because this trial error was “comparable to the errors in both Neder [ v. United States , 527 U.S. 1 (1999)], and

Johnson [ v. United States , 520 U.S. 461 (1997)],” we considered whether the evidence at trial established beyond a r easonable doubt that Vasquez had possessed the quantity of drugs found by the District Court and held that it did. 37 In other words, we were “confident that Vazquez’s sentence would have been the same had the jury made the drug quantity finding.” 38

The error in this case is akin to the trial error in Vasquez rather than the pure sentencing error in Lewis . Like Vasquez’s indictment, Crews’ indictment charged him with conspiring to possess and distribute five or more kilograms of cocaine. Yet the District Court never properly instructed the ju ry at trial that they had to determine the quantity of drugs specifically a ttributable to Crews and instead instructed it to determine the quantity of drugs attributable to the conspiracy as a whole. Then, at sentencing, the

37 Id. at 102.

38 Id . at 104.14 District Court, in violation of Alleyne , sentenced Crews to 240 months, which was the mandatory minimum for an offense involving five or more kilograms of cocaine. Accordingly, because the District Court’s Alleyne error was caused by a trial error, we

can look to the trial record and conclude that the e rror was harmless because of the overwhelming evidence in sup port of the drug quantity. For example, Crews supplie d Vincent Graham with 4. 5 to 9 ounce quantities of cocaine every five to se ven days throughout 2003. 39 And, evidence also established that Crews supplied Graham with 4. 5 to 13 ounces of cocaine every five to seven days between May, 2005 and May, 2006. 40 The trial record also reveals that Michael Durant sold Crews 20 to 25 kilograms of cocaine between 2004 and 2005. 41 Before that, Emmanuel Moore supplied Crews with approxi mately 25 kilograms of cocaine between the fall of 2002 and early 2003. 42 Evidence also establishe d that Moore traveled to California two times per week between May 2003 and October 2004 and purchased “no less than 5” kilograms of cocaine per week for Crews. 43 Indeed, Crews admits in his brief that “[i]n 2004, Moore purchased at least 20 kilos of coca ine on each trip to California; Crews would receive betw een five and eight of the kilos.” 44 And, the record

39 App. at 909a-15a.

40 App. at 916a-17a.

41 App. at 634a-38a.

42 App. at 983a-84a, 988a-93a.

43 App. at 998a-1003a.

44 Crews Br. at 5 (citing App. at 1011a).15 also establishes Crews received 20 kilogram s of cocaine from a source Lofton had in

North Carolina. 45 Given all of this, including Crew s’ admission on appeal, we have little difficulty concluding that the trial record contained overwhelming evidence of drug quantity attributable to Crews. Therefore, we also have little difficulty concluding the

District Court’s Alleyne error was harmless. Crews next argues that the post-convictio n assistance he gave the Government in other investigations required the Government to file a motion pursuant to 18 U.S.C. § 3553(e). 46 This argument is meritless as well. At sentencing, the Government filed a motion for a downwa rd variance from the applicable Guideline range pursuant to U.S.S.G. § 5K1. 1, based on Crews’ postconviction cooperation, but elect ed not to file a motion pursua nt to 18 U.S.C. § 3553(e),

which would ha ve permitted the District Court to sentence Crews below the mandatory minimum sentence of 20 years. Crews first atte mpts to connect this refusal to file a § 3553(e) motion to the Government’s filing of a motion under §5K1.1. 47 He tells us that, because these provisions operate under the “same principles,” the District Court mistakenly concluded that it lacked the authority to depart below the mandatory minimum sentence, the absence of a §3553(e) motion notwithstanding. Crews is

45 App. at 727a.

46 18 U.S.C. § 3553(e) provides: “Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as minimum sentence so as to reflect a defendant’s subs tantial assistance in the investigation or prosecution of another person who has committed an offense.”

47 Crews Br. at 27.16 incorrect. The Supreme Court has rejected the notion that § 5K1.1 and § 3553(e)

somehow connect to form a unitary downward departure system whereby a § 5K1.1

motion authorizes a district court to se ntence below the mandatory minimum under § 3553(e). 48 Crews could possibly have received a sent ence below the statutory minimum if the Government filed a motion pursua nt to 18 U.S.C. § 3553(e). 49 It did not do so here and

stated its reasons to the District C ourt in detail at the sentencing hearing. 50 This makes

the Government’s decision unreviewable unle ss the parties agreed that the Government

would file such a motion and th en did not do so, or that the Government’s reasons for not filing the motion were based on an unconstitu tional motive, like a defendant’s race or religion. 51 Crews had no agreement with the Go vernment which would have required the filing of such a motion. So, Crews is leftto argue that the reasons provided by the

48 Melendez v. United States , 518 U.S. 120 (1996).

49 See United States v. Kellum , 356 F.3d 285, 289 (3d Cir. 2 004) (holding that a district court only has authority to depart below mandatory minimum sentence pursuant to 18 U.S.C. § 3553(e), (f)); Melendez v. United States , 518 U.S. 120, 130 (1996) (a district court has no authority to impose a sentence below a statutory mandatory minimum when the government has not made a motion pursu ant to § 3553(e)). There are two other avenues whereby a district court might im pose a sentence less than the statutory mandatory minimum—Federal Rule of Criminal Procedure 35(b) and the safety value set out in 18 U.S.C. § 3553(f)(7)— which are inapplicable here.

50 App. at 1876a-1882a.

51 See Wade v. United States , 504 U.S. 181, 185-86 (1992).17 Government for not filing the § 3553(e) mo tion are “not rationally related to any legitimate Government end.” 52 He bears the burden on this point and has not met it. 53

The Government set out numerous reasons in support of its decision not to file a § 3553(e) motion: the extent and breadth of Crews’ drug tra fficking and money laundering activities, the decades-long du ration of the conspiracy, Cr ews’ leadership role, the massive amounts of drugs put onto the streets of Philadelphia through Crews’ actions, the large number of individuals in volved in Crews’ activities, Cr ews’ continuation of drug trafficking activities despite his conviction a nd supervised release for the same activities in 1995, the timing of his cooperation with the Government—which he gave only after being convicted—his post-convi ction offer of information on the criminal activities of witnesses who testified against him, Crews’ failure to accept responsibility for his crimes, the sentences imposed on his co-defendants and the level of departure granted to witnesses who cooperated, and the level of in timidation those witne sses faced as a result of their trial testimony against Crews. 54 The District Court found no arbitrariness among

these reasons nor do we. Crews maintains that several of the Government’s reasons were indeed arbitrary, yet he offers us very few specifics or suppo rt for his contentions. Mere claims that Crews provided substantial assi stance and generalized allegations of the Government’s improper motive do not “e ntitle a defendant to a remedy . . ..” 55

52 Id

.

53 Id . at 186.

54 App. at 1879a-1883a.

55 Wade , 504 U.S. at 186.18 He argues, for example, that some defe ndants “more deeply involved in the same conspiracy as Crews testified at trial and received lesser sentences.” 56 But, Crews’ scant paragraph of conclusory ar gument on this point lacks supporting facts from which a viable claim of arbitrariness can spring . Additionally, Crews suggests that the Government’s decision not to file the § 3 553(e) motion amounted to an impermissible attempt by the Government to control the exercise of judicial authority. 57 This is a separation of powers argument. He char acterizes the Government’s concern with avoiding sentencing disparities as representative of a “[d]isag reement with and distrust of judicial authority.” 58 However, Crews ignores the fact that a statute—§ 3553(e)—gives the Government authority to make the decisi on whether to file the motion and that this statutory mandate is not a us urpation of judicial power. We have noted that, “[w]hen Congress establishes a minimum sentence for a particular crime, district courts are required to sentence defendants guilty of that crime to a term of imprisonment no less than the Congressionally prescribed mini mum, unless an explicit exception to the minimum sentence applies.” 59 Indeed, the Supreme Court has “consistently recognized

56 Crews Br. at 30.

57 Id

.

58 Id

.

59 United States v. Winebarger , 664 F.3d 388, 392 (3d Cir. 2011).19 that Congress has plenary authority over th e designation of appropriate punishment for

federal crimes.” 60 Lastly, Crews charges that the Govern ment arbitrarily took the timing of his cooperation into accoun t when deciding not to file the § 3553(e) motion. He argues, more specifically, that he was penalized for exercising his right to trial. That did not happen here. At sentencing the Governme nt acknowledged distinctions between Crews and his co-defendants, recognizing that the co-defendants who plead ed guilty and offered meaningful assistance to the Gove rnment received lesser sentences. 61 Further, the Government acknowledged that Crews had the right to proceed to trial and that the Government was not penalizing him for exercising that right. 62 There is no evidence, however, of unconstitutional conduc t by the Government. Instead, the Government made the decision not to file the § 3553(e) moti on after weighing the quantity and quality of Crews’ assistance; assistance it did not find substantial enough to warrant the filing of the motion. For example, while Crews did provide information on unsolved murders allegedly committed by his co-conspirators, th e information was decades old and, as the Government noted, it does not typically prosecute murder cases. 63 Crews also gave the Government information concerning a cell ph one that another co-conspirator used,

60 United States v. Frank , 864 F.2d 992, 1010 (3d Cir. 1988) (citing United States v. Grayson , 438 U.S. 41 (1978).

61 See App. at 1879a.

62 Id

.

63 Id.20 information that the Government acknowledged as useful duri ng the penalty phase of that co-conspirator’s trial. 64 However, since Crews was by th en a convicted felon, thereby diminishing the reliability of his testimony in the eyes of a jury, th e Government elected not to call him to testify in that case. The foregoing reasons do not reflect a motivation to punish Crews for exercising his right to a tria l. Instead, they reflect the Government’s

rational consideration of the value of Crews’ assistance as compared to that offered by other conspirators. We agree, therefore, with the District Court that the Government did not act arbitrarily in declining to file a § 3553(e) motion. Crews next argues that § 841(b)(1)(A)’s mandatory minimum sentence “conflicts” with the parsimony provision of 18 U.S.C. § 3553(a), which prov ides that a district court “shall impose a sentence sufficient, but not greater than necessary” to accomplish the goals of sentencing. 65 Specifically, Crews ma intains that the District Court was unable to carry out its judicial function, as set fo rth in the mandates of 18 U.S.C. § 3553(a), because it had to comply with the mandatory 20 year senten ce. We have previously rejected such challenges to mandatory minimum sentences. 66 These decisions are

64 Id.

65 18 U.S.C. § 3553(a).

66 See United States v. Grober, 624 F.3d 592 (3d Cir. 2010); United States v. Walker , 473 F.3d 71, 85 (3d Cir. 2007) (holding that there is no conflict between § 3553 and a mandatory minimum sentence pr ovision because “ § 3553(a) mu st be read in conjunction with § 3553(e), which prohibits the court from sentencing a de fendant below the statutory mandatory minimum sentence unless the Government files a motion permitting such departure”); United States v. MacEwan , 445 F.3d 237, 251–52 ( 3d Cir. 2006) (“Congress has the power to define criminal punishment s without giving the courts any sentencing discretion.” (quoting Chapman v. United States , 500 U.S. 453, 467 (1991)).21 binding precedent, and consequently re solve Crews’ argument in favor of the Government. Therefore, we need not discuss this particular issue in any greater detail.

We likewise need not disc uss Crews’ next issue in any great depth. Crews challenges the enhancement of his sentence due to his prior criminal conviction. Title 21 U.S.C. § 841(b)(1)(A) contains a proviso whereby a mandatory minimum sentence can be doubled because of a prior criminal conviction. Crews ar gues that the existence of his prior conviction was an element of his offens e and, as such, had to be alleged in the indictment and proven to th e jury beyond a reasonable doub t. This argument has been rejected. 67 The District Court was thus fully em powered to make the necessary findings to double Crews’ mandatory minimum se ntence based on a prior conviction. Lastly on the question of his sentence, Crews attacks the information filed by the Government pursuant to 21 U.S.C. § 851, which doubled Crews’ mandatory minimum sentence. Specifically, he claims the no tice he received of this enhancement was deficient. We disagree . Section 851 provides: No person who stands convicted of an offense under this part shall be sentenced to increase d punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (a nd serves a copy of such information on the person or couns el for the person) stating in writing the previous convic tions to be relied upon.... 68

67 Almendarez–Torres v. United States , 523 U.S. 224, 246–47 ( 1998) (prior conviction that increases maximum penalty need not be tr eated as element of offense and proven to a jury); United States v. Blair , 734 F.3d 218, 227 (3d Cir. 2013) (“ Alleyne do[es] nothing to restrict the established exception under Almendarez–Torres that allows judges to consider prior convictions.”).

68 21 U.S.C. § 851(a)(1).22 We review the sufficiency of the Government’s notice de novo and agree with the District Court that Crews was provided w ith sufficient notice of the Government’s intention to rely on his prior felony conviction to enhance his sentence. 69

The Government’s informa tion stated the following: On or about February 21, 1 996, defendant Jaquel Crews was sentenced in the United States District Court for the Eastern District of Pennsylvania on his guilty plea to the felony drug offenses of conspiracy to di stribute cocaine and distribution of cocaine base, at Criminal Numb er 95-0391, to a term of 56 months, and 4 year supervised release. Jaquel Crews is charged in the Second Superseding Indictment, Criminal No. 10-663-2, with, in Count Five, conspiracy to possess with intent to distribute 5 kilograms or more of cocaine, in violation of 21 U.S.C. § 846. Jaquel Crews’ prior felony drug conviction serves as the basi s for increased punishment pursuant to 21 U.S.C. § 841(B)(1)(b). 70

Crews asserts that this notice was faulty because it omits the date his prior trafficking conviction became final and did not specific ally mention that this conviction became

final before the offense dates in the instant prosecution. We have never required such specificity, however. Instead, all that is required is that the § 851 notice provide a

defendant with reasonable no tice of the Government’s intention to rely on a previous conviction and an opportunity to be heard on the issue. 71 The notice in this case satisfies these basic requirements.

69 United States v. Weaver , 267 F.3d 231, 246 (3d Cir. 2001).

70 App. at 1671a-72a.

71 See Weaver , 267 F.3d at 247.23 In sum, we see no error in the applica tion of the mandatory minimum sentence to Appellant Crews. Enhancement for Leadership Role Crews complains that the District Cour t incorrectly determined that he was a leader of the drug conspiracy and, therefor e, erroneously enhanced his sentence by four

levels. 72 We review a district court’s ruling on a sentencing enhancement that requires a predominately factual inquiry for clear error. 73 The leadership enha ncement is such an inquiry and it is appropriately activated if th e evidence show s that Crews exercised some degree of control over at least one other person involved in the offense. 74 We find no

clear error in the District Court’s determ ination that Crews bore a leadership or organizational role in the offense. The evid ence established, for example, that Crews supervised Donielle Fletcher in the produc tion, packaging, storage, and delivery of

cocaine from her residence. 75 Further, evidence also esta blished that Crews directed Craig Lofton and others to purchase larg e amounts of cocaine on buying trips to California. Crews paid for these trips from his own funds and answered to no one for

these excursions. 76 As the District Court aptly su mmarized, “[t]hose deals were his

72 See U.S.S.G. § 3B1.1(a).

73 United States v. Richards , 674 F.3d 215, 221- 22 (3d Cir. 2012).

74 United States v. Helbling , 209 F.3d 226, 243-44 (3d Cir. 2010); see also U.S.S.G. § 3B1.1 app. note 2.

75 App. at 262a-269a.

76 See App. 1859a-69a.24 deals.” 77 Accordingly, the District Court did not clearly err in determining that the fourlevel leadership enhancement applied.

Issues Related to the Fo rfeiture Determination Both Miller and Crews challenge the fo rfeiture judgments entered against them, raising different points of attack. 78 The Government sought forfeiture pursuant to 21 U.S.C. §853, which limits forfe iture to “any property cons tituting, or derived from any proceeds the person obtained, directly or indirec tly, as a result of such violation; or any of the person’s property used, or intended to be us ed, in any manner or part, to commit, or to

facilitate the commission of, such violations.” 79 The standard of proof is preponderance

of the evidence. 80 The District Court granted the forfeiture motion in the amount of $5 million, and in doing so, indicated that its decision was supported by both a proceeds theory and a facilitating property theory of forfeiture. 81 We will start with a challenge to the forfe iture raised by Appellant Miller. Miller asserts that the District Court, as opposed to the jury, unconstitu tionally made certain factual findings in ordering th e forfeiture. Our decision in United States v. Leahy , and the

77 App. at 1867a.

78 As these issues present questions of law, we exercise plenary review. United States v. Vampire Nation , 451 F.3d 189, 198 (3d Cir. 2006) (citing United States v. Ledesma– Cuesta , 347 F.3d 527, 53 0 (3d Cir. 2003)).

79 21 U.S.C. § 853(a)(1), (2).

80 United States v. Leahy , 438 F.3d 328, 33 3 (3d Cir. 2006).

81 App. at 11.25 Supreme Court’s decision in Libretti v. United States preclude Miller’s argument. 82 Those decisions clearly hold that the right to a jury is not im plicated in criminal forfeiture proceedings. 83 In light of this controlling prec edent, Miller’s claim is untenable. 84 For his part, Crews contends that the Dist rict Court lacked statutory authority to impose a $5 million money j udgment against him persona lly under 21 U.S.C. § 853(a)(1). This argument likew ise fails when confronted with our prior precedent. In United States v. Vampire Nation , we specifically held that “in personam forfeiture judgments are appropriate under 21 U.S.C. § 853, even where the amount of the judgment exceeds the defend ant’s available assets at the time of conviction.” 85 Crews makes several attempts to distinguish our decision in Vampire Nation from his case, all of which are unavailing. Fo r example, he believes Vampire Nation is inapplicable because

the forfeiture there was rooted in 18 U.S.C. § 981(a)(1)(C ), a civil forfeiture provision that was made enforceable in criminal pros ecutions by 28 U.S.C. § 2461(c), whereas his

82 438 F.3d 328, 331 (3d Cir. 2006)(en banc); 516 U.S. 29, 48-49 (1995).

83 See, e.g., Libretti , 516 U.S. at 49.

84 The Appellants call our attention to the Supreme Court’s decision in Southern Union Co. v. United States , 132 S.Ct. 2344 (2014), arguing that opinion casts serious doubt on the continued validity of Libretti . In Southern Union , the Supreme Court applied Apprendi to the imposition of criminal fines, thereby requiring a jury determination before fines can be imposed. Th e Appellants urge us to view Libretti as effectively overruled, and ask us to now require a jury determination in the context of criminal forfeitures, just as Southern Union required it for criminal fines. This, we cannot do. Libretti has not been overruled, and we are obligat ed to follow its clear holding that “the right to a jury verdict on forfeitability does not fall within the Sixth Amendment’s constitutional protection.” 516 U.S. at 49.

85 451 F.3d 189, 203 (3d Cir. 2006).26 forfeiture was imposed directly under § 853. This argument is meritless. Our decision in Vampire Nation specifically addresses § 853 forfeitures. 86 Next, Crews pivots and argues that Vampire Nation does not apply because that case concerned § 853’s procedural provisions, while his forfeiture was premised on that section’s substantive authority. Yet, Crews offers us no supporting authority to validate this distinction, nor does he attempt to explain the importance of such a difference. The Government, however, did find case law re jecting Crews’ argument. The Court of Appeals for the Second Circuit looked at this issue and found “no meaningful difference” between an in personam forfeiture judgment arising directly from § 853, and an in personam forfeiture that might arise from § 853 by way of another statute, 28 U.S.C. § 2461(c), for example. 87 We agree. Lastly, Crews trie s to get out from our holding in Vampire Nation by arguing that that opinion never ad dressed the point he advances here: in personam money judgments are not availabl e under § 853. This is not the case. We did address this argument in Vampire Nation, specifically holding that “an in personam forfeiture judgment may be entered for th e full amount of the criminal proceeds.” 88 This holding precludes Crews’ argument.

86 Id . at 203.

87 United States v. Kalish , 626 F.3d 165, 169 (2d Cir. 2010).

88 451 F.3d at 202-03.27 To conclude, the Appellants’ claims th at in personam forfeiture money judgments are unavailable in the context of their drug trafficking sentences are erroneous. We find

no error in the District Court’ s imposition of such a judgment. As a parallel argument, Crews contends th e District Court lacked the authority to enter an in personam money judg ment against him based on a facilitating property theory. Here, he finds fault with the indictment. Purs uant to Federal Rule of Criminal Procedure Rule 32, “[a] court must not enter a judgm ent of forfeiture in a criminal proceeding

unless the indictment or information contains notice to the defendant that the Government will seek the forfeiture of property as part of any sentence in accordance with the applicable statute.” 89 Crews argues that the forfeitu re judgment was invalid because while the phrase “the sum of $5,000,000” was indicated in the proceeds section of the indictment, it was not repeated in the forfeiture property section. 90 This reading of the

rule is too restrictive. Ru le 32 and due process only require that notice of the possible forfeiture be given to a defendant and that a defendant have an opportunity to be heard. 91 An indictment is sufficiently sp ecific as long as it “puts th e defendant on notice that the government seeks forfeiture a nd identifies the assets with su fficient specificity to permit

the defendant to marshal ev idence in their defense.” 92 Here, the indictment gave Crews

89 Fed. R. Crim. P. 32.2(a).

90 Appellant Miller joins in this argument.

91 See United States v. James Daniel Good Real Property , 510 U.S. 43, 48–50 (1993).

92 See, e.g., United States v. Loe , 248 F.3d 449, 464 (5th Cir. 2001).28 ample notice that the Government intende d to seek a $5 milli on forfeiture money judgment and the fact that this request was not repeated in separate sections of the

indictment is not an error. Crews also argues that the District Co urt erred by imposing joint and several liability based on the forfeited pr operty. Here, we share the Go vernment’s belief that this argument is largely academic, given that join t and several liability was also imposed by

the District Court based on the proceeds of the conspir acy, an action which our prior precedent clearly endorses. 93 Crews claims that the language of 21 U.S.C. § 853(a)(2) limits the scope of a forfeiture under the f acilitating property theory to that property belonging only to him. We do not agree. Section 853(a)(2) permits the forfeiture of “any of the person’s property used, or intended to be used, in any manner or part, to commit,

or to facilitate the commission of” the crime. Crews keys-in on the words “any person” and “the person’s” as la nguage, he says, that limits the ex tent of the forfeiture to property that belongs solely to him. Crews neglec ts to mention, however, that the proceeds section of § 853 contains the same language and we have held that language to take in all the property possessed by any member of the conspiracy. 94 In United States v. Pitts , we noted that § 853(a)(1) “does not say that each conspirator shall forfeit only such property

involved in the offense which is or has even been in th at conspirator’s possession.

93 See, e.g., United States v. Pitts , 193 F.3d 751, 765 (3d Cir. 1999); see also United States v. Van Nguyen , 602 F.3d 886, 904 (8th Cir. 2010) (imposing jo int and several liability with respect to forfeiture of pr oceeds of a drug conspiracy).

94 193 F.3d 751, 765 (3d Cir. 1999).29 Rather, the statute recognizes that the amount of property involved in a . . . conspiracy cannot be different for different conspirators.” 95 Given the identical language in § 853(a)(2), we see no reason not to apply this holding to that section. And, Crews has

offered us none. We therefore see no error in the District Court’s order of forfeiture. Lastly, Appellant Miller argues that th e District Court should have made a foreseeability determination before imposing joint and several forfeiture liability. He acknowledges, however, that he failed to “object on this basis below.” 96 We, therefore, apply a plain error review to his claims. 97 Miller insists that we should apply plenary

review to this claim nonetheless because he di d not have an opportuni ty to object to the lack of a foreseeability finding. 98 Specifically, he says that he could not have known the District Court would impose joint and seve ral liability on him without a foreseeability

determination until the District Cour t issued its order and memorandum. 99 By that time, he maintains, it was too late for him to objec t. We disagree. Miller had plenty of time and opportunity to object. Indeed, almost a year would pass between the entry of the

District Court’s forfeiture order and Mille r’s sentencing. 100 Nothing prevented Miller

95 Id.

96 Miller Br. at 40.

97 United States v. Berger, 689 F.3d 297, 299 (3d Cir. 2012).

98 Miller Brief at 40.

99 Id

.

100 The forfeiture order and accompanying memora ndum were filed on August 14, 2012 and Miller was sentenced on July 24, 2013.30 from filing an objection to the forfeiture ba sed on a lack of fore seeability during that

time. This is because a forfe iture order only becomes final at the time of sentencing. 101 Therefore, given this om ission, we review Miller’s claim for plain error. 102 Under the plain error standard, we may re verse the District Court's ruling only if there was “(1) an error; (2) that is plain; (3 ) that affects substantial rights; and (4) which seriously affects the fairness, integrity, or public reputation of judicial proceedings.” 103 There was no error here, much less a plain one. We have held that a District Court may impose joint and several liability on co-def endants as part of a forfeiture money judgment. 104 And, while other courts may have done so, we have not held that a foreseeability finding is required prior to th e imposition of joint a nd several liability on co-defendants. Therefore, we see no error. Ev en were we to find e rror, it certainly would not be plain, given that a foreseeability requi rement is not uniformly required. Miller

calls our attention to decisions from other ci rcuits that have required a foreseeability finding— United States v. Elder , 105 for example. He also points out that we have issued a

101 See Fed. R. Crim. P. 32.2(b)(1)(A); United States v. Pelullo , 178 F.3d 196, 202 (3d Cir. 1999).

102 See United States v. Flores , 454 F.3d 149, 156 (3d Cir. 2006) (citing Fed.R.Crim.P. 30; Gov’t of the Virgin Islands v. Knight , 989 F.2d 619, 631 (3d Cir. 1993)).

103 United States v. Paladino , 769 F.3d 197, 2 01 (3d Cir. 2014).

104 United States v. Pitt , 193 F.3d 751, 765 (3d Cir. 1999).

105 682 F.3d 1065 (8 th Cir. 2012).31 non-precedential opini on requiring such a determination. 106 However, courts are not harmonized in their view that a foreseeability requirement is necessary. The Court of Appeals for the Eleventh Circu it, for example, has specifi cally rejected a foreseeability requirement, relying on Supreme Court precedent. 107 And, our decision in Plaskett , as the parties recognize, was a non-precedential opinion issued under our I.O.P. 5.7, and as such lacks precedential authority and is non-bindin g on any subsequent case or panel. Given these contrary opinions, we cannot sa y that the District Court’s lack of a foreseeability determina tion was obvious error. 108

Conclusion In light of the foregoing, we will affi rm the convictions of Appellants Crews and Miller, the sentence of Appellant Crews, an d the forfeiture money judgments entered against both Appellants in the District Court.

106 United States v. Plaskett , 355 F. App’x 639 (3d Cir. 2009).

107 See, e.g., United States v. Browne , 505 F.3d 1229, 1279 (11 th Cir. 2007).

108 United States v. Olano , 507 U.S. 725, 733-35 (1993) (“ To demonstrate “plain error,” a defendant must prove that the Court erred, th at the error was “clear” or “obvious,” and that the error “affect[ed] substan tial rights” of the defendant.).