     Case: 12-10382      Document: 00512901934         Page: 1    Date Filed: 01/14/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 12-10382
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                January 14, 2015
                                                                           Lyle W. Cayce
                                                 Plaintiff - Appellee           Clerk

v.

MARCO ANTONIO NEVAREZ-MORALES,

                                                 Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                            USDC No. 4:11-CR-157-A-2


Before STEWART, Chief Judge, and BARKSDALE and GRAVES, Circuit
Judges.
PER CURIAM: *
       Marco Antonio Nevarez-Morales pled guilty to conspiracy to possess with
intent to distribute 500 grams or more of cocaine. The district court found that,
based upon relevant conduct, he was accountable for 11.48 kilograms of
cocaine.    He was sentenced to 120 months of imprisonment based on a
Guidelines range of 108–135 months, as well as a five-year term of supervised
release. We AFFIRM.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                    No. 12-10382

                               I.    Alleyne Error
        Nevarez-Morales maintains that the district court engaged in judicial
fact-finding in violation of the Fifth and Sixth Amendments because, in light
of the holding in Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013), all facts
that determine a defendant’s statutory penalty range must be found by a jury
beyond a reasonable doubt or admitted by him. He contends that the district
court made a drug-quantity finding by a preponderance of the evidence that
subjected him to an increased statutory minimum sentence. Because Nevarez-
Morales has not shown any error, we need not decide whether he sufficiently
preserved this argument in the district court. See United States v. Rodriguez,
523 F.3d 519, 525 (5th Cir. 2008).
       The amount of cocaine admitted to by Nevarez-Morales—less than two
kilograms—established a statutory minimum of five years and a statutory
maximum of 40 years. See 21 U.S.C. § 841(b)(1)(B)(ii) (supplying sentence for
500 grams or more of cocaine). For sentencing purposes, however, based upon
relevant conduct and using the preponderance standard, the district court
attributed 11.48 kilograms of cocaine to Nevarez-Morales.           That quantity
would support a statutory minimum of 10 years and a statutory maximum of
life in prison. See § 841(b)(1)(A)(ii) (supplying sentence for five kilograms or
more of cocaine).
       The Government contends that the applicable statutory range was
provided by § 841(b)(1)(B)(ii), and that the court merely conducted fact-finding
as to the drug quantity that resulted in a 10-year sentence within the range
supplied by that statute (again, five to 40 years). Nevarez-Morales argues that
the    judicial   drug   quantity   finding   above   five   kilograms    triggered
§ 841(b)(1)(A)(ii) and therefore subjected him to that statute’s 10-year
minimum sentence in violation of Alleyne.



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                                       No. 12-10382

       Nevarez-Morales’s argument is foreclosed by United States v. Hinojosa,
where the appellant took a practically identical tack. 749 F.3d 407, 412–13
(5th Cir. 2014). In Hinojosa, the defendant was charged with, and pled guilty
to, possession with intent to distribute more than 100 kilograms of marijuana.
Id. at 409. For purposes of sentencing, he was held accountable for 2,860
kilograms of marijuana, resulting in a Guidelines range of 151 to 188 months
of imprisonment; he was sentenced to 151 months.                     See id. at 412.       The
defendant argued that the district court’s quantity finding became an element
of the offense and effectively subjected him to § 841(b)(1)(A)’s 10-year statutory
minimum sentence. 1 See id.
       This court rejected that argument and held that there had been no
Alleyne error. See id. at 412–13. There was nothing in the record that showed
the district court had applied the increased minimum sentence: the
presentence report (“PSR”), which had been adopted by the district court,
referenced the § 841(b)(1)(B) range and the judge did not refer to a mandatory
minimum at sentencing or in the judgment. Id. at 412. The district court had
merely conducted fact-finding on relevant conduct that remained permissible
after Alleyne. See id. at 412–13; see also Alleyne, 133 S. Ct. at 2163 (“Our
decision today is wholly consistent with the broad discretion of judges to select
a sentence within the range authorized by law.”).
       Here, as in Hinojosa, the record establishes that the district court
engaged only in fact-finding that altered the advisory Guidelines range but did
not increase the statutory minimum sentence. The PSR—expressly adopted
by the district court, as relevant here—references the § 841(b)(1)(B)(ii)


       1 As noted above, §§ 841(b)(1)(A) and 841(b)(1)(B) provide two separate penalty tracks
tied to drug quantity. For marijuana, § 841(b)(1)(B)(vii) is applicable to drug crimes involving
100 kilograms or more, while § 841(b)(1)(A)(vii) is applicable to drug crimes involving 1,000
kilograms or more.


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                                     No. 12-10382

sentencing range.       The factual resume does the same.           The district court
admonished Nevarez-Morales that he faced the § 841(b)(1)(B)(ii) sentencing
range, and the judgment references § 841(b)(1)(B)(ii).             There is no direct
evidence indicating that the district court ever felt bound by § 841(b)(1)(A)(ii).
Additionally, that the Guidelines range referenced in the PSR dropped below
§ 841(b)(1)(A)(ii)’s 10-year minimum undercuts Nevarez-Morales’s suggestion
that his precisely 10-year sentence resulted from an application of
§ 841(b)(1)(A)(ii). 2
       There is every indication that the § 841(b)(1)(B) sentence at all times
furnished the applicable statutory range. Thus, the drug quantity here did not
have to be admitted by Nevarez-Morales or found by a jury beyond a reasonable
doubt. See Hinojosa, 749 F.3d at 413 (“As a matter of simple logic, [Guidelines]
ranges may . . . exceed a higher statutory minimum applicable to a related
offense. When that is the case, nothing . . . provides that the discretionary
range of the Guidelines triggers a statutory minimum higher than the one
applicable to the count of conviction or the requirement of jury fact-finding.”).
Accordingly, Nevarez-Morales has not shown error.
       We hasten to add that at least three other circuits have taken this view
in virtually indistinguishable circumstances. See United States v. Freeman,
763 F.3d 322, 336 (3d Cir. 2014) (“Freeman and Mark’s alleged ‘exposure’ to a
sentencing range with a low end of ten years of incarceration bears little on
our inquiry into what the District Court actually relied upon in imposing their
respective sentences.”); United States v. Ramírez-Negrón, 751 F.3d 42, 51 (1st
Cir. 2014) (“The fact that Ramírez’s sentence falls above the 10-year
mandatory minimum is insufficient to establish that the mandatory minimum


       2Indeed, this case is even weaker than the one presented in Hinojosa, since the
Hinojosa defendant’s Guidelines range was entirely above the § 841(b)(1)(A) threshold. See
749 F.3d at 412.


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                                     No. 12-10382

governed or that an Alleyne error occurred.”); United States v. Valdez, 739 F.3d
1052, 1054 (7th Cir. 2014) (“The district court did not err by calculating a
greater drug quantity solely for purposes of determining [the defendant’s]
Guideline range without requiring proof beyond a reasonable doubt or a jury
finding or admission.”).
                               II.    Rule 11 Error
      Nevarez-Morales also contends that the district court violated Federal
Rule of Criminal Procedure 11(b)(1) by not admonishing him about the
increased statutory minimum and maximum sentences that applied based
upon the quantity of drugs for which he was found responsible at sentencing.
Nevarez-Morales concedes that he did not raise this issue in the district court
and that it is therefore reviewed for plain error. See United States v. Oliver,
630 F.3d 397, 411–12 (5th Cir. 2011). However, the court admonished him
regarding the proper statutory range and, as discussed earlier, it did not apply
a higher range. Nevarez-Morales has not shown plain error. See United States
v. Vonn, 535 U.S. 55, 58–59 (2002).
                      III.   Quantity Determination Error
      Finally, Nevarez-Morales contends that the district court erred in
determining the quantity of drugs for which he was responsible under U.S.S.G.
§ 2D1.1.   He objected on this basis in his written objections to the PSR.
However, the transcript of the sentencing hearing shows that he chose to forgo
his objections to the drug quantity determinations. Accordingly, his challenge
on this point is waived and unreviewable. See United States v. Arviso-Mata,
442 F.3d 382, 384 (5th Cir. 2006); United States v. Musquiz, 45 F.3d 927, 931–
32 (5th Cir. 1995).
      AFFIRMED.




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