     Case: 17-40399       Document: 00514450745         Page: 1     Date Filed: 04/30/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                     No. 17-40399                               FILED
                                   Summary Calendar                         April 30, 2018
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

HECTOR CERVANTES-SANCHEZ, also known as Rojo,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:14-CR-1751-1


Before JONES, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM: *
       Hector Cervantes-Sanchez, federal prisoner # 09687-085, pleaded guilty
to conspiring to possess, with the intent to distribute, marijuana, in violation
of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846.               He challenges his below-
Guidelines sentence of 146 months’ imprisonment, claiming the court: erred
in calculating his base-offense level, engaged in inappropriate fact-finding




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
    Case: 17-40399     Document: 00514450745      Page: 2   Date Filed: 04/30/2018


                                  No. 17-40399

regarding the drug quantity, and committed other procedural errors in
imposing his sentence.
      Although post-Booker, the Sentencing Guidelines are advisory only, the
district court must avoid significant procedural error, such as improperly
calculating the Guidelines sentencing range. Gall v. United States, 552 U.S.
38, 48–51 (2007). If no such procedural error exists, a properly preserved
objection to an ultimate sentence is reviewed for substantive reasonableness
under an abuse-of-discretion standard. Id. at 51; United States v. Delgado-
Martinez, 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues
preserved in district court, its application of the Guidelines is reviewed de novo;
its factual findings for clear error. E.g., United States v. Cisneros-Gutierrez,
517 F.3d 751, 764 (5th Cir. 2008).
      First, Cervantes asserts the court erred in calculating the drug quantity
used to determine his offense level under Guideline § 2D1.1(c)(1) because it
included drugs that were not alleged in his indictment, and counted as relevant
conduct drug shipments he referenced in unverified statements to a
confidential source. He contends the court’s determination that his offense
involved 174,176.00 kilograms of marijuana, which was primarily based on
those statements, was speculative.
      The presentence investigation report’s (PSR) factual recitation was
based on investigative material and interviews with an agent from the Drug
Enforcement Administration. It had sufficient indicia of reliability. Although
Cervantes objected at sentencing to the drug-quantity calculation, he
presented no testimony or other rebuttal evidence to show the information
contained in the PSR was materially untrue, inaccurate, or unreliable.
Accordingly, the court was free to adopt the PSR’s findings without further
inquiry or explanation. E.g., United States v. Gomez-Alvarez, 781 F.3d 787,



                                        2
    Case: 17-40399     Document: 00514450745      Page: 3    Date Filed: 04/30/2018


                                  No. 17-40399

796 (5th Cir. 2015). Moreover, the court did not clearly err in determining that
the shipments referenced by Cervantes constituted relevant conduct, or in
relying on Cervantes’ statements to make a reasonable estimate of the
quantity of drugs involved in the offense. See U.S.S.G. §§ 1B1.3(a), 2D1.1(c)(1),
2D1.1 cmt. n.5.
      Next, Cervantes contends he was sentenced in violation of Apprendi v.
New Jersey, 530 U.S. 466 (2000), because, although he was charged with, and
convicted of, a drug offense involving 100 kilograms or more of marijuana,
judicially-found facts regarding drug quantity caused him to be held
accountable for a much higher drug quantity for purposes of calculating his
advisory Guidelines sentencing range. Because Cervantes raises this point for
the first time on appeal, review is only for plain error. E.g., United States v.
Broussard, 669 F.3d 537, 546 (5th Cir. 2012).
      Under the plain-error standard, Cervantes must show a forfeited plain
error (a clear or obvious error, rather than one subject to reasonable dispute)
that affected his substantial rights. E.g., Puckett v. United States, 556 U.S.
129, 135 (2009). If he makes that showing, we have the discretion to correct
such reversible plain error, but generally should do so only if it “seriously
affect[s] the fairness, integrity or public reputation of judicial proceedings”. Id.
      Under Apprendi and its progeny, any fact that increases the statutory
minimum or “increases a potential criminal penalty beyond the [statutory]
maximum” sentence must be alleged in the indictment and either admitted by
defendant or found by a jury beyond a reasonable doubt. United States v.
Hinjosa, 749 F.3d 407, 412 (5th Cir. 2014); e.g., Alleyne v. United States, 570
U.S. 99, 107–08 (2013); United States v. Booker, 543 U.S. 220, 232, 245 (2005).
However, nothing in those decisions states that the fact-finding on relevant
conduct, to the extent it increases the advisory sentencing range under the



                                         3
    Case: 17-40399    Document: 00514450745     Page: 4   Date Filed: 04/30/2018


                                 No. 17-40399

Guidelines, must be made by jurors. Hinojosa, 749 F.3d at 412–13. Moreover,
Cervantes’ 146-month sentence was within the statutory minimum and
maximum penalty range for the conduct admitted in the guilty plea.
Accordingly, Cervantes has not shown that the court committed the requisite
clear or obvious error. See Puckett, 556 U.S. at 135.
      Also for the first time on appeal, Cervantes claims the court procedurally
erred at sentencing by failing to: (1) identify the applicable Guideline offense
level and sentencing range; (2) address on the record what, if any, departure it
would take with respect to his sentence; (3) address the 18 U.S.C. § 3553(a)
sentencing factors; and (4) formally pronounce his sentence. The sentencing
transcript belies these contentions. In short, once again, Cervantes has not
shown the court committed the requisite clear or obvious error. See id.
      AFFIRMED.




                                       4
