Introduction
Mario Clifford Rivera pleaded guilty to conspiring to distribute and possess with intent to distribute, and to distributing, 400 grams or more of fentanyl. That quantity placed his offenses within 21 U.S.C. § 841(b)(1)(A)(vi), which carries a mandatory minimum sentence of ten years and a maximum of life imprisonment.
The district court imposed a 210-month sentence after using a larger drug quantity—3,230 grams of fentanyl—to calculate Rivera’s advisory Sentencing Guidelines range. Rivera argued on appeal that reliance on a quantity greater than the indictment’s “400 grams or more” allegation constructively amended the indictment in violation of Apprendi v. New Jersey and Alleyne v. United States. He also sought an opportunity, if resentencing were ordered, to challenge prior convictions used in calculating his criminal history category.
The Eleventh Circuit rejected both arguments. It held that the indictment established the statutory sentencing range, while Rivera’s admitted conduct could determine his position within that range under the Guidelines. Because his 210-month sentence remained within the authorized range, no constructive amendment occurred.
Analysis
1. Standard of Review and Preservation
The court began with the requirement that sentencing objections be presented at the original sentencing hearing. Under United States v. Canty, litigants must object to factual findings, legal conclusions, and the manner in which the sentence is imposed. United States v. Beckles establishes that an unpreserved objection to the presentence investigation report is reviewed only for plain error.
As explained in United States v. Turner, plain-error relief requires Rivera to establish: an error; that the error was plain; and that it affected his substantial rights. Even then, correction is discretionary and generally requires an error seriously affecting the fairness, integrity, or public reputation of judicial proceedings. Rivera could not pass the first step because the district court committed no sentencing error.
2. Constructive Amendment of an Indictment
Relying on United States v. Madden, the court explained that a constructive amendment occurs when the essential elements of the charged offense are altered so as to broaden the possible bases for conviction beyond those authorized by the indictment.
Rivera’s conviction, however, remained based on the same offense charged by the grand jury: a fentanyl offense involving 400 grams or more. The larger quantity used at sentencing did not create a different crime or expose him to a statutory range broader than the one charged. It merely informed the advisory calculation of a sentence within the already authorized ten-years-to-life range.
3. Application of Apprendi and Alleyne
Apprendi v. New Jersey requires any fact—other than a prior conviction—that increases the statutory maximum penalty to be submitted to a jury and proved beyond a reasonable doubt. Alleyne v. United States extends that rule to facts increasing a mandatory minimum sentence.
The 400-gram threshold was therefore an element because it triggered both a ten-year mandatory minimum and a maximum of life imprisonment. That element was included in Rivera’s indictment and admitted through his guilty plea. The additional quantity did not raise either statutory boundary. Consequently, it could be used to select a Guidelines range within those boundaries without violating Apprendi or Alleyne.
The opinion draws a critical distinction between:
- Statutory sentencing facts: Facts that change the legally authorized minimum or maximum and therefore must be charged and admitted or proved to a jury.
- Guidelines sentencing facts: Facts used to calculate an advisory range within the statutory limits, which may be found at sentencing from admissible and reliable sources.
4. Reliance on Admissions and the Presentence Report
Under United States v. Wilson, a sentencing court may make findings based on trial evidence, admissions accompanying a guilty plea, undisputed statements in the presentence report, and evidence introduced at sentencing. Rivera admitted that his offense involved between 1.2 and 4 kilograms of fentanyl, and he did not dispute the report’s attribution of 3,230 grams.
Those admissions supplied an independent basis for the Guidelines calculation. The district court was not treating the larger amount as a new statutory element; it was using Rivera’s admitted conduct to determine the appropriate sentence within the statutory range.
5. Sufficiency of the Indictment
Federal Rule of Criminal Procedure 7(c)(1) requires an indictment to identify the law allegedly violated. Under United States v. Walker, an indictment ordinarily is sufficient when it tracks the statutory language and provides enough factual context to notify the defendant of the charged offense.
Rivera’s indictment tracked § 841(b)(1)(A)(vi) by alleging 400 grams or more of fentanyl—the statute’s highest threshold category. It was not required to allege the exact 3,230-gram quantity because that additional amount did not alter the applicable statutory range.
6. Criminal History Calculation
Rivera’s second argument concerned prior convictions used to calculate his criminal history. His attorney had withdrawn the relevant objection at sentencing.
United States v. Bennett permits a sentencing court to rely on undisputed facts in a presentence report and treats failure to object to reported prior convictions as an admission of those facts. Similarly, United States v. Wade holds that failing to object to the district court’s factual findings generally precludes a later appellate claim that those findings were erroneous.
The withdrawal therefore left the presentence report’s calculation uncontested: 14 criminal-history points and category VI. Rivera conceded that he could not establish plain error. Because the court rejected his constructive-amendment claim, there was also no independent basis for remanding the case and reopening the criminal-history issue.
7. Technical Inconsistencies in the Opinion
The opinion contains apparent drafting inconsistencies concerning the Guidelines provisions. It initially states that § 2D1.1(c)(5) provides level 30 for 400 grams to 1.2 kilograms and that § 2D1.1(c)(4) provides level 32 for 1.2 to 4 kilograms. Later, it refers to Rivera as having been sentenced under § 2D1.1(c)(5) at level 32 and also describes § 2D1.1(c)(4) as covering 1.5 to 4 kilograms. The opinion also cites United States v. Madden to page numbers outside the reporter citation previously given.
These appear to be typographical or citation errors rather than substantive ones. The court’s essential conclusion is clear: Rivera’s admitted 3,230 grams supported base offense level 32, and his ultimate sentence remained within the statutory range authorized by the indictment.
Complex Concepts Simplified
Constructive Amendment
A constructive amendment occurs when the prosecution or court effectively changes the charged crime without obtaining a new grand-jury indictment. Merely using more detailed facts to calculate a sentence for the same charged crime is not necessarily an amendment.
Statutory Range Versus Guidelines Range
The statutory range establishes the legal minimum and maximum sentence. The Sentencing Guidelines recommend where the sentence should fall within that range. Here, the indictment authorized ten years to life; the higher admitted quantity affected only the advisory recommendation within that range.
Plain Error
Plain-error review is a demanding standard applied when an issue was not properly preserved below. An appellant must show an obvious legal error that affected the outcome and seriously undermined the fairness or integrity of the proceedings.
Presentence Investigation Report
The presentence report provides the sentencing court with information about the offense, the defendant’s background, prior convictions, and the applicable Guidelines. Facts not specifically disputed generally may be accepted as true.