                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                               January 27, 2015
                                    PUBLISH                   Elisabeth A. Shumaker
                                                                  Clerk of Court
                   UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT


 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
 v.                                                     No. 13-1367
 TIMOTHY G. CASSIUS, a/k/a
 “Cash,” a/k/a “Almighty Dollar,” a/k/a
 “AD,”

       Defendant-Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF COLORADO
                  (D.C. No. 1:06-CR-00270-REB-1)


John M. Tanski, Axinn, Veltrop & Harkrider LLP, Hartford, CT, for Defendant-
Appellant.

Michael C. Johnson, Assistant United States Attorney (John F. Walsh, United States
Attorney, with him on the brief), Denver, CO, for Plaintiff-Appellee.


Before LUCERO, BALDOCK, and HOLMES, Circuit Judges.


BALDOCK, Circuit Judge.


      For this appeal, we must decide whether Alleyne v. United States, 133 S. Ct.

2151 (2013), allows a district court to enhance a criminal defendant’s Sentencing

Guidelines range for a 21 U.S.C. § 841 conviction based on a judicial drug quantity
finding greater than what the jury found at trial. We hold that, so long as the court

does not use its own drug quantity finding to alter the defendant’s statutory

sentencing range, such an enhancement is entirely consistent with Alleyne. Here,

nothing indicates the trial court altered Defendant Timothy Cassius’s statutory

sentencing range in any way, so the court did not contravene Alleyne.           Thus,

exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we affirm.

                                          I.

      To best understand Alleyne, one must go back at least to McMillan v.

Pennsylvania, 477 U.S. 79 (1986). There, the Supreme Court first attempted to

distinguish the “elements” of a crime, which must be found by a jury beyond a

reasonable doubt, from mere “sentencing factor[s],” which are “facts that are not

found by a jury but that can still increase the defendant’s punishment.” Alleyne, 133

S.Ct. at 2156–57 (quoting McMillan, 477 U.S. at 86). In McMillan, the Court held

that a fact was not an element just because it created or increased a mandatory

minimum sentence. McMillan, 477 U.S. at 80–93. As such, Pennsylvania did not

violate the Constitution when it imposed mandatory minimum sentences based on

trial courts finding, by a mere preponderance of the evidence, that various defendants

“visibly possessed a firearm” while committing certain felonies. Id.

      In Apprendi v. New Jersey, 530 U.S. 466 (2000), however, the Supreme Court

held that any factual determination increasing a defendant’s maximum statutory

sentence is an element that must be proved to a jury beyond a reasonable doubt. Id.

                                          2
at 490. Applying this principle, the Court struck down a New Jersey statutory

scheme by which a defendant’s maximum allowable sentence for unlawfully

possessing a firearm jumped from 10 years to 20 years when the trial court

found—again, by a mere preponderance of the evidence—that the crime was a “hate

crime.” See id. at 469–70, 497.

      Two years later, a sharply divided Court stressed, in line with McMillan, that

Apprendi did not apply to mandatory minimum sentences. Compare Harris v. United

States, 536 U.S. 545, 568–69 (2002) (explicitly reaffirming McMillan, 477 U.S. 79),

with id. at 572–73 (Thomas, J., dissenting) (“The Court’s holding today . . . rests on

either a misunderstanding or a rejection of the very principles that animated

Apprendi just two years ago. . . .      I would reaffirm Apprendi[ and] overrule

McMillan . . . .”). Specifically, the Court upheld a federal statute that allowed a

district court to increase a defendant’s mandatory minimum sentence for using or

carrying a firearm in relation to a drug trafficking crime from 5 years to 7 years

because the judge found by a preponderance of the evidence that he had also

“brandished” the weapon. Id. at 568–69 (citing 18 U.S.C. § 924(c)(1)(A)). “Basing

a 2-year increase in the defendant’s minimum sentence on a judicial finding of

brandishing,” the Court wrote, “does not evade the requirements of the Fifth and

Sixth Amendments.” Id. at 568.

      Over a decade passed, and then the Supreme Court granted certiorari to a

defendant who—like the Harris defendant—was convicted under 18 U.S.C.

                                          3
§ 924(c)(1)(A). See Alleyne, 133 S. Ct. at 2155. More precisely, a jury found this

defendant guilty of using or carrying “a firearm during and in relation to a crime of

violence,” but did not find he had “brandished” the weapon, which would have

triggered the mandatory seven-year minimum. Id. at 2156. Regardless, the district

court found by a preponderance of the evidence that he had brandished a firearm and

sentenced him to exactly seven years, in direct accordance with § 924(c)(1)(A)(ii)’s

mandatory minimum sentence for brandishing. Id. at 2156, 2164.

      An appeal in Alleyne was a lost cause so long as Harris remained good law.

After granting certiorari, however, the Supreme Court explicitly overruled Harris and

McMillan and held the district court had violated the defendant’s Sixth Amendment

right to trial by jury. Id. at 2155, 2164–65. Extending Apprendi, the Court held

“facts that increase mandatory minimum sentences must be submitted to the jury,”

as well.   Id. at 2163.   “When a finding of fact alters the legally prescribed

punishment so as to aggravate it,” explained the Court, “the fact necessarily forms

a constituent part of a new offense and must be submitted to the jury.” Id. at 2162.

Significantly, Alleyne also made clear what the Constitution does not require: “Our

ruling today does not mean that any fact that influences judicial discretion must be

found by a jury. We have long recognized that broad sentencing discretion, informed

by judicial factfinding, does not violate the Sixth Amendment.” Id. at 2163.

                                         II.

      Denver Police Department officers arrested Defendant Timothy Cassius in

                                         4
June 2006. At the time, he was carrying a briefcase that was found to contain crack

cocaine, digital scales, and a semi-automatic handgun. He was subsequently indicted

on over a half-dozen criminal counts. At trial, the Government put forth evidence

that the cocaine discovered in the briefcase totaled 20.869 grams. The jury then

found Defendant guilty under 21 U.S.C. § 841(a), which makes it unlawful to possess

a controlled substance (such as crack cocaine) with intent to distribute. After

classifying Defendant as a career offender under § 4B1.1 of the Sentencing

Guidelines, the district court sentenced Defendant to 25 years in jail for his § 841(a)

violation. (For all six of Defendant’s convictions combined, he received 30 years’

imprisonment.) We dismissed Defendant’s direct appeal. See United States v.

Cassius, 340 F. App’x 444 (10th Cir. 2009) (unpublished). The next year, Defendant

moved to vacate his sentence under 28 U.S.C. § 2255, contending new case law

proved he had been wrongly classified as a career offender. The Government

eventually conceded this point, and the court ordered a resentencing.

      To determine the appropriate Guidelines range for resentencing, the district

court held an evidentiary hearing to resolve the quantity of crack cocaine attributable

to Defendant. At the end of this hearing, the court found Defendant responsible for

450.462 grams. Four days later, the Supreme Court issued Alleyne. Defendant

quickly filed an objection, arguing the district court was violating Alleyne by

utilizing its larger crack amount to drastically increase his sentencing range under

the Guidelines. The court disagreed and sentenced Defendant to 204 months in

                                          5
prison (i.e., 17 years) for the § 841 conviction. Overall, the court varied downward

and sentenced Defendant to 264 months in jail—88 months below the bottom of the

Guidelines range for all six of his convictions combined. Defendant appealed.

                                         III.

      On appeal, Defendant argues the district court committed procedural error in

calculating the applicable Guidelines range. Because Defendant preserved this

procedural argument below, we review for an abuse of discretion. See United States

v. Gordon, 710 F.3d 1124, 1160 (10th Cir. 2013). Typically, this means “we review

de novo the district court’s legal conclusions regarding the guidelines and review its

factual findings for clear error.” United States v. Gantt, 679 F.3d 1240, 1246 (10th

Cir. 2012) (citing United States v. Mollner, 643 F.3d 713, 714 (10th Cir. 2011)). But

as a practical matter, our review here is purely de novo because Defendant does not

contest the court’s factual finding of 450+ grams of crack cocaine; rather, he

challenges the court’s legal authority to enhance his sentence based on this finding.

      Defendant contends drug quantity is an “element” of all 21 U.S.C. § 841

violations—meaning it must be found by a jury beyond a reasonable doubt—and

therefore the district court erred by computing his Guidelines range using a crack

cocaine amount the court found by a preponderance of the evidence. And drug

quantity is plainly an element of any § 841 violation, Defendant insists, because

maximum and minimum penalties available under § 841 vary depending on the drug

quantity involved.

                                          6
      Defendant is correct that the § 841 statutory penalties vary based on the

quantity of crack cocaine in question. Since mid-2010, a basic § 841 violation

involving 280 grams or more of crack cocaine results in a statutory sentencing range

of 10 years to life imprisonment, see id. § 841(b)(1)(A), a basic violation involving

28 grams or more results in a sentencing range of 5 years to 40 years imprisonment,

see id. § 841(b)(1)(B), and a basic violation involving an unspecified amount results

in a sentencing range with a maximum of 20 years imprisonment and no minimum,

see id. § 841(b)(1)(C). These numbers increase if certain aggravating factors exist.

For example, if a person is convicted under § 841(a) “after a prior conviction for a

felony drug offense has become final”—as occurred here 1—the statutory parameters

will be as follows:

      21 U.S.C.           Crack cocaine             Minimum      Maximum
      § 841(b)(1)(C)      Unspecified               —            30 years
      § 841(b)(1)(B)      28 grams or more          10 years     Life
      § 841(b)(1)(A)      280 grams or more         20 years     Life

      In its brief, the Government argued that drug quantity is not an element under

§ 841(b)(1)(C)—unlike (b)(1)(A) and (b)(1)(B)—because that specific subsection

“does not require proving to the jury any quantity of drugs.” The Government

changed its tune at oral argument, however, asserting instead that drug quantity is

an element of § 841 violations. Thankfully, we need not discern which of the


      1
         Defendant was originally convicted and sentenced under a prior, harsher
version of 21 U.S.C. § 841. The district court re-sentenced Defendant in line with
the present version, however, and neither party has objected to the court’s doing so.

                                         7
Government’s positions is correct, as nothing in the record here indicates the district

court’s actions were improper. Even assuming (without deciding) that drug quantity

is an element of all § 841 violations, the court properly treated it as such when it

calculated Defendant’s statutory sentencing range (0 to 30 years) based on the jury’s

drug quantity finding. The court only used its own drug quantity finding as a mere

sentencing factor to help choose a sentence within the proper statutory range (i.e.,

17 years). This duality is quite permissible.

      Indeed, despite Defendant’s protestations to the contrary, Alleyne is perfectly

clear on this point. There, the Court emphasized that the district court only violated

the defendant’s rights during sentencing because it altered his statutory sentencing

range based on a finding not made by the jury. “When a finding of fact alters the

legally prescribed punishment so as to aggravate it,” the Court explained, “the fact

necessarily forms a constituent part of a new offense and must be submitted to the

jury.” Alleyne, 133 S.Ct. at 2162. Importantly, the Court then assured readers that

“[o]ur ruling today does not mean that any fact that influences judicial discretion

must be found by a jury. We have long recognized that broad sentencing discretion,

informed by judicial factfinding, does not violate the Sixth Amendment.” Id. at 2163

(emphasis added); see also United States v. Booker, 543 U.S. 220, 233 (2005)

(“[W]hen a trial judge exercises his discretion to select a specific sentence within a

defined range, the defendant has no right to a jury determination of the facts that the

judge deems relevant.”).

                                          8
      In sum, nothing in the record indicates the district court increased Defendant’s

statutory sentencing range or otherwise altered his legally prescribed punishment;

rather, by all indications the court used its larger drug quantity finding solely as a

sentencing factor to help determine Defendant’s sentence within the prescribed

statutory range. We find no error in this procedure under Alleyne.

      This conclusion is fully supported by our sister circuits who have analyzed,

pursuant to Alleyne, a district court’s finding of a higher drug quantity when

calculating the Guidelines range for a § 841 conviction. See United States v.

Freeman, 763 F.3d 322, 336 (3rd Cir. 2014) (“These [higher drug quantity] findings,

made for purposes of determining [defendants’] applicable Guidelines ranges, were

permissible under Alleyne so long as the ultimate sentence imposed was within the

statutorily prescribed range. . . . [O]ur review of both sentencing transcripts reveals

no reliance by the District Court on any sentencing minimum . . . .”); United States

v. Ramírez-Negrón, 751 F.3d 42, 49 (1st Cir. 2014) (“We flatly reject the proposition

that all drug quantity calculations made under the advisory Guidelines must be

submitted to a jury. . . . No Alleyne error occurs when a defendant’s sentence is

based entirely on Guidelines considerations without changing the applicable

mandatory minimum.”); 2 United States v. Valdez, 739 F.3d 1052, 1054 (7th Cir.


      2
         Notably, Ramírez-Negrón held drug quantity is not an element under 21
U.S.C. § 841’s “default” drug distribution crime—i.e., distribution punishable under
§ 841(b)(1)(C). Id. at 49. This may indeed be correct, but as we explained above,
                                                                       (continued...)

                                          9
2014) (“Because the quantity found by the district court would support a statutory

minimum of ten years [under] § 841(b)(1)(A)(i), Valdez says, the court ran afoul of

Alleyne. . . . The district court did not err by calculating a greater drug quantity

solely for purposes of determining Valdez’s Guideline range . . . .”); United States

v. Johnson, 732 F.3d 577, 584 (6th Cir. 2013) (“Alleyne did not extend Apprendi to

facts that do not increase the prescribed statutory penalties. . . . [T]he district court’s

factual determination with respect to the additional [drug] quantities did not violate

his [defendant’s] Sixth Amendment rights as articulated in Alleyne.”).

       Other circuits have held similarly, albeit on sentencing enhancements

unrelated to drug quantity. See United States v. Holder, 549 F. App’x 214, 215 (4th

Cir. 2014) (per curiam) (unpublished) (“[A]lthough judicially determined facts are

no longer relevant after Alleyne to deciding the applicable mandatory minimum, the

factual findings needed to calculate a defendant’s advisory Guidelines range are still

within the district court’s province.”); United States v. Tuma, 738 F.3d 681, 693 (5th

Cir. 2013) (“The Alleyne decision applies only to facts that increase a statutory

mandatory minimum sentence. . . . Tuma’s sentence did not expose him to a

mandatory minimum sentence and was well within the sentencing discretion of the

district court . . . .”); United States v. Ibrahim, 529 F. App’x 59, 64 (2d Cir. 2013)



       2
        (...continued)
we need not reach the issue because Alleyne’s logic and principles apply here even
if drug quantity is in some sense an element under every branch of § 841.

                                            10
(unpublished) (“Because the Sentencing Guidelines are advisory rather than

mandatory . . . application of guidelines enhancements that do not increase the

statutory maximum or minimum penalty neither implicates nor violates a defendant’s

Sixth Amendment right to a jury trial.” (citing, inter alia, Alleyne, 133 S. Ct. at

2162–64)).

      Obviously, the deck is stacked against Defendant here, as not a single circuit

has ruled in favor of the position he espouses. Still, we would be remiss not to

address several of his attacks on our holding. For starters, Defendant points out we

have twice ruled recently that Alleyne does not allow a district court to calculate the

Guidelines range using judge-found facts. See United States v. Lake, 530 F. App’x

831 (10th Cir. 2013) (unpublished) (Lake I); United States v. Lake, 556 F. App’x 706

(10th Cir. 2014) (unpublished) (Lake II).        Of course, we are not bound by

unpublished decisions. Moreover, the Lake cases—which involved a father and son,

respectively—contain no analysis of the relevant issue. This is because we accepted

the Government’s concession of Alleyne error in Lake I, and in Lake II we were

bound by the law of the case (i.e., Lake I), even though the Government had by that

time changed its mind regarding Alleyne. Lake I, 530 F. App’x at 832; Lake II, 556

F. App’x at 707–708. Thus, we wrote nothing in Lake I or Lake II that contradicts

our position. Indeed, another unpublished decision we wrote accords with the

position we now espouse. See United States v. Baum, 542 F. App’x 724, 727 (10th

Cir. 2013) (unpublished) (“Relying on Alleyne . . . Baum nonetheless contends that

                                          11
the government was required to prove the number of images [of child pornography]

beyond a reasonable doubt because the enhancement increased his advisory

Guidelines range. Yet Alleyne addressed ‘[a]ny fact that, by law, increases the

penalty for a crime’ and specifically noted that the case ‘does not mean that any fact

that influences judicial discretion must be found by a jury.’ The district court thus

did not err . . . .” (internal citations omitted)).

       Defendant also implies that perhaps the district court did view itself bound by

a mandatory minimum sentence even though the jury’s finding merited no such

thing. 3   Specifically, he cites the following statement made by the court at

sentencing: “The drug related and firearm related felony offenses for which Mr.

Cassius [has] been convicted are inherently extremely serious offenses which carry

lengthy prison terms. In fact, many of the counts of conviction carry mandatory

minimum sentences.” (emphasis added). This last line is particularly troubling,

Defendant asserts. We are not so troubled. The sentence in question is ambiguous

at worst, and it specifically acknowledges that some of Defendant’s convictions did

not carry a mandatory minimum sentence. Indeed, the court made clear elsewhere

at sentencing and in its subsequent statement of reasons that only one count required

a mandatory minimum: Defendant’s conviction for carrying a firearm during and in

relation to a drug crime. Most importantly, the Court explicitly discussed Alleyne


       3
         Defendant admits, however, that the “district court did not explicitly say it
felt constrained to impose a mandatory minimum sentence.”

                                             12
at sentencing, noted that it only applied where mandatory minimum sentences were

increased due to judicial fact-finding, and that “[t]here is no such issue in this case.”

In the end, we will not hang our hat on such a flimsy hook as the above quote.

      Finally, Defendant insinuates our holding violates the will of Congress by

allowing a district court to “transform an element of a crime into a mere sentencing

factor through its choice of how to conduct sentencing.” But, as we explained above,

the court’s “choice of how to conduct sentencing” here was in clear accordance with

Supreme Court precedent, which in our view allows a district court to make any

relevant factual findings—even if that finding involves an element of the crime

found by the jury—so long as it does not alter a defendant’s statutory sentencing

range. See Alleyne, 133 S.Ct. at 2163–64; Booker, 543 U.S. at 230.

      AFFIRMED. 4




      4
          Defendant contends, alternatively, that even sentencing factors solely used
to calculate a Guidelines range must be found by a jury and not a judge. Defendant
concedes, however, that this argument is precluded by binding precedent. See, e.g.,
Alleyne, 133 S. Ct. at 2163; United States v. Ray, 704 F.3d 1307, 1314 (10th Cir.
2013) (“The Supreme Court . . . has definitively held that Apprendi does not apply
to the present advisory-Guidelines regime.” (citing Booker, 543 U.S. at 233)). Thus,
we will not address it further. But cf. Jones v. United States, 135 S. Ct. 8, 8–9
(2014) (Scalia, J., dissenting from denial of certiorari) (arguing that even if a judge’s
factual finding does not alter the proper statutory range, the finding is impermissible
if the final sentence would be substantively unreasonable in absence of the finding).

                                           13
