United States v. Mario Rivera

2 Opinion of the Court 25-11695 more of fentanyl and for distribution of 400 or more grams of fen- tanyl. On appeal, Rivera argues that: (1) the district court erred by constructively amending his indictment at sentencing when it used a higher drug quantity of 1.2 kilograms of fentanyl than the quan- tity charged in the indictment, which was an element of the offense under Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99 (2013); and (2) if we vacate and remand for resentencing on his constructive-amendment argument, he should be permitted on remand to raise arguments challenging the inclusion of certain past convictions in the calculation of his crimi- nal history category. After thorough review, we affirm.

I.

We require litigants to raise all objections to a sentencing court's findings of fact, conclusions of law, and the manner in which a sentence is imposed at the initial sentencing hearing. United States v. Canty, 570 F.3d 1251, 1256 (11th Cir. 2009). Where a party fails to raise an objection to the presentence investigation report ("PSI"), we review the argument on appeal for plain error. See United States v. Beckles, 565 F.3d 832, 842 (11th Cir. 2009). To establish plain error, the defendant must show (1) an error, (2) that is plain, and (3) that affected his substantial rights. United States v. Turner, 474 F.3d 1265, 1276 (11th Cir. 2007). If the defendant satis- fies these conditions, we may exercise our discretion to recognize the error only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id.

II.

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25-11695 Opinion of the Court 3 First, we are unpersuaded by Rivera's claim that the district court erred by constructively amending his indictment. A district court may not constructively amend the indictment because a de- fendant may only be convicted of a crime charged in the indict- ment. United States v. Madden, 733 F.3d 1314, 1317-18 (11th Cir. 2013). Constructive amendment occurs when the essential ele- ments of an indicted offense are altered to "broaden the possible bases for conviction beyond what is contained in the indictment."

Id. at 1318 (citation modified).

In Apprendi, the Supreme Court held that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submit- ted to a jury, and proved beyond a reasonable doubt." 530 U.S. at

490. Later, in Alleyne, the Supreme Court extended Apprendi by holding that "any fact that increases the mandatory minimum is an 'element' that must be submitted to the jury." 570 U.S. at 103. The district court may make findings of fact at sentencing based on ev- idence at trial, facts admitted by the defendant's guilty plea, undis- puted statements in the PSI, and evidence presented at the sentenc- ing hearing. United States v. Wilson, 884 F.2d 1355, 1356 (11th Cir.

1989).

The Federal Rules of Criminal Procedure provide that "the indictment or information must give the official or customary cita- tion of the statute, rule, regulation, or other provision of law that the defendant is alleged to have violated." Fed. R. Crim. P. 7(c)(1). An indictment that tracks the language of the relevant statute is

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4 Opinion of the Court 25-11695 sufficient so long as it provides a statement of facts and circum- stances that give notice of the offense to the accused. United States

v. Walker, 490 F.3d 1282, 1296 (11th Cir. 2007). The statutory imprisonment range for possession with in- tent to distribute or distribution of 400 grams or more of a sub- stance containing fentanyl is a mandatory minimum of 10 years' imprisonment to a possible maximum of life imprisonment. 21 U.S.C. § 841(b)(1)(A)(vi). Section 2D1.1 of the Sentencing Guide- lines establishes various potential base offense levels for possession with intent to distribute fentanyl, based on threshold quantities. See generally U.S.S.G. § 2D1.1(c). Relevant to this appeal, § 2D1.1(c)(5) establishes a base offense level of 30 for an offense in- volving between 400 grams and 1.2 kilograms of fentanyl, while § 2D1.1(c)(4) establishes a base offense level of 32 for the offense in- volving between 1.2 kilograms and 4 kilograms of fentanyl. Id. § 2D1.1(c)(4), (5).

Here, Rivera argues that the district court erred by sentenc- ing him under § 2D1.1(c)(5) to a base offense level of 32, which cor- responds with the 3,230 grams of fentanyl attributed to him at sen- tencing. Instead, he says, the district court was required to sen- tence him to a base offense level of 30, using the 400-grams-or- more drug quantity charged in his indictment. We disagree. For starters, an offense involving 400 grams or more of fen- tanyl is the highest threshold quantity of fentanyl that can be charged and carries a statutory range of a mandatory minimum of

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25-11695 Opinion of the Court 5 10 years' imprisonment to a possible maximum of life imprison- ment. 21 U.S.C. § 841(b)(1)(A)(vi). Thus, Rivera's indictment properly tracked the language of the statute he was being charged under, as was required. Fed. R. Crim. P. 7(c)(1); see Walker, 490 F.3d at 1296; see 21 U.S.C. § 841(b)(1)(A)(vi). The district court then sentenced him within the statutory penalty range applicable to the offense charged by the grand jury and to which he pled guilty. At sentencing, the undisputed facts in the PSI established that Rivera possessed 3,230 grams of fentanyl, which corresponds with a base offense level of 32 for an offense involving between 1.5 kilograms and 4 kilograms of fentanyl. U.S.S.G. § 2D1.1(c)(4). By admitting as part of his guilty plea that his offense involved between 1.2 and 4 kilograms of fentanyl, Ri- vera allowed the district court to sentence him according to the Sentencing Guidelines at a particular point within the authorized statutory penalty range. See Wilson, 884 F.2d at 1356. So while it is true that drug quantity was an element of Rivera's offense under Apprendi and Alleyne -- since the 400-grams-or-more statutory thresh- old quantity in § 841(b)(1)(A)(vi) triggered a 10-year statutory min- imum sentence and raised the applicable statutory maximum from 20 years' to life imprisonment -- it is also true that Rivera's ultimate sentence of 210 months fell within the range for the offense to which he pled guilty. See Apprendi, 530 U.S. at 466; Alleyne, 570 U.S. at 99; 21 U.S.C. § 841(b)(1)(A).

In short, the district court could permissibly consider at sen- tencing the higher quantity of 1.2 to 4 kilograms of fentanyl that

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6 Opinion of the Court 25-11695 Rivera specifically admitted as part of his plea, so long as his sen- tence fell within the statutory range for the offense charged in the indictment. 21 U.S.C. § 841(b)(1)(A); U.S.S.G. § 2D1.1(c)(4). And because Rivera's sentence fell within the statutory range estab- lished by the drug quantity in his indictment, he cannot show that the district court erred by imposing a sentence within that range that was informed by the specific drug quantity to which he admit- ted in his guilty plea. See Madden, 733 F.3d at 1268-69.

III.

We are also unpersuaded by Rivera's claim challenging the inclusion of certain past convictions in the calculation of his crimi- nal history category. Rivera admits that, if we do not grant him relief and remand for resentencing on his first claim -- and we are not doing so -- the instant claim is reviewed for plain error since his counsel withdrew his objection to it at sentencing. He also admits, and we agree, that he cannot show plain error.

The district court may rely on undisputed facts in the PSI when determining a sentence. United States v. Bennett, 472 F.3d 825, 832 (11th Cir. 2006) (per curiam). A failure to object to the facts of prior convictions included in the PSI is deemed an admission of those facts. Id. at 833-34. Failure to object to the district court's factual findings also precludes the argument on appeal that there was error in them. United States v. Wade, 458 F.3d 1273, 1277 (11th Cir. 2006).

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25-11695 Opinion of the Court 7 As we've noted, Rivera's counsel withdrew his objection at sentencing to the inclusion of certain past convictions in the calcu- lation of Rivera's criminal history category. By doing so, his with- drawal is deemed an admission of the PSI's factual findings. See Bennett, 472 F.3d at 833-34. This means that the district court was entitled to rely on the undisputed facts of the PSI, including Ri- vera's 14 criminal-history points and criminal history category VI, in determining the appropriate sentence. Thus, as Rivera concedes, he cannot show that the district court plainly erred by sentencing him to 210 months' imprisonment based on the PSI's uncontested criminal history calculation. Wade, 458 F.3d at 1277.

AFFIRMED.

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