            Case: 17-15666   Date Filed: 10/26/2018   Page: 1 of 8


                                                                [PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT


                              No. 17-15666
                          Non-Argument Calendar


                D.C. Docket No. 8:16-cr-00486-CEH-TBM-4



UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                    versus

ALEXIS HERNANDEZ,

                                                           Defendant-Appellant.



                 Appeal from the United States District Court
                     for the Middle District of Florida


                              (October 26, 2018)


Before WILSON, ANDERSON, and WILLIAM PRYOR, Circuit Judges.

WILSON, Circuit Judge:
               Case: 17-15666    Date Filed: 10/26/2018   Page: 2 of 8


     Defendants convicted of certain drug-related felonies are subjected to a 240-

month mandatory minimum if they have previously been convicted of a drug-related

felony. See 21 U.S.C. § 841(b). If the existence of the prior conviction is in

dispute, district courts are required to conduct a “§ 851 hearing” to determine

whether the defendant has a previous conviction, thus making him eligible for the

sentence enhancement. See 21 U.S.C § 851(c)(1). On this appeal, we decide

whether it was an abuse of discretion to disregard the Federal Rules of Evidence

during a § 851 hearing. We hold that it was not.

     Alexis Hernandez was convicted of felony conspiracy to possess with intent to

distribute 500 grams or more of methamphetamine and one kilogram or more of

heroin under 21 U.S.C. § 846. The district court sentenced Hernandez to 240

months, the mandatory minimum under 21 U.S.C. § 841(b)(1)(A). Hernandez

appeals his sentence, arguing: (1) the district court should have applied the Federal

Rules of Evidence at his § 851 hearing, and (2) the district court committed plain

error when it applied the incorrect standard of proof as to the government’s burden

under § 851.

                                          I.

     We review a district court’s evidentiary rulings for abuse of discretion. United

States v. Green, 873 F.3d 846, 854 (11th Cir. 2017). The Federal Rules of Evidence

do not apply to miscellaneous proceedings such as sentencing hearings. FED. R.

                                          2
               Case: 17-15666     Date Filed: 10/26/2018     Page: 3 of 8


EVID. 1101(d)(3). A sentencing court may consider any evidence, regardless of its

admissibility at trial, in determining whether factors exist that would enhance a

defendant’s sentence, provided that (1) the evidence has sufficient indicia of

reliability, (2) the court makes explicit findings of fact as to credibility, and (3) the

defendant has an opportunity to rebut the evidence. United States v. Ghertler, 605

F.3d 1256, 1269 (11th Cir. 2010). Prior convictions are treated as sentencing

factors. See United States v. Gibson, 434 F.3d 1234, 1244 (11th Cir. 2006) (citing

Almendarez-Torres v. United States, 523 U.S. 224, 228–35 (1998)).

     Under 21 U.S.C. § 841(b)(1)(A), a defendant found guilty of one of the

enumerated offenses, including conspiracy to distribute, or possess with intent to

distribute, 500 grams or more of methamphetamine and one kilogram or more of

heroin, is subject to a 20-year mandatory minimum term of imprisonment if that

defendant has a prior conviction for a felony drug offense. 21 U.S.C.

§ 841(b)(1)(A). In order to obtain this sentencing enhancement, the government

must file an information before trial indicating its intent to use the prior conviction.

21 U.S.C. § 851(a)(1). If the defendant files a written response challenging the prior

conviction, the district court must “hold a hearing to determine any issues raised by

the response which would except the person from increased punishment.” 21

U.S.C. § 851(c)(1). At this hearing, the government “shall have the burden of proof

beyond a reasonable doubt on any issue of fact.” Id.

                                            3
               Case: 17-15666     Date Filed: 10/26/2018    Page: 4 of 8


      In this case, the government properly filed an information alleging Hernandez

had a prior felony drug conviction. Hernandez filed a response denying the

conviction. Accordingly, pursuant to § 851(c)(1), the district court held a hearing to

determine whether Hernandez had a prior conviction.

      During the § 851 hearing, Hernandez repeatedly objected to the introduction of

evidence. First, Hernandez objected to the admission of the certified judgment of his

possession of cocaine charge. Hernandez claimed admission of the evidence violated

Rule 902 of the Federal Rules of Evidence because the document was a photocopy of

the certified judgment, not the original, and therefore it was not properly

authenticated. Second, Hernandez objected to the admission of booking photographs

taken of Hernandez after he was arrested for the possession of cocaine. According to

Hernandez, the photographs were not authenticated under Rule 902. See FED. R.

EVID. 902. Moreover, Hernandez argued that the probation officer that identified the

person in the photographs as Hernandez was not competent to testify about the

similarity of photographs, as she was not a facial recognition expert. Finally, on

hearsay grounds, Hernandez objected to the admission of the probation officer’s

testimony as to the Presentence Investigation Report (“PSR”), the certified judgment

of his prior possession of cocaine conviction, and her conversation with Hernandez’s

state probation officer. The district court dismissed each objection, reasoning that the

Federal Rules of Evidence do not apply to § 851 hearings.

                                           4
               Case: 17-15666      Date Filed: 10/26/2018   Page: 5 of 8


      We have not explicitly determined whether the Federal Rules of Evidence

 apply to § 851 hearings. The Eighth Circuit dealt with a similar situation in United

 States v. Pratt, where the defendant challenged the district court’s reliance on

 hearsay evidence at his § 851 hearing. 553 F.3d 1165, 1170 (8th Cir. 2009). The

 Eighth Circuit categorized the § 851 hearing as part of the sentencing process and

 did not consider the Federal Rules of Evidence, simply reasoning that “the rules of

 evidence do not apply at sentencing.” Id. Instead, the court employed the

 “sufficient indicia of reliability” standard federal courts use at sentencing hearings.

 See id. at 1170–71; see also Ghertler, 605 F.3d at 1269.

      Likewise, we conclude that the Federal Rules of Evidence do not apply at

§ 851 hearings because they are miscellaneous proceedings akin to sentencing

hearings. First, the Federal Rules of Evidence do not apply at sentencing, and prior

convictions are treated as sentencing factors. See FED. R. EVID. 1101(d)(3); see also

Gibson, 434 F.3d at 1244. Second, § 851 hearings are similar to sentencing hearings

insofar as they involve determining the existence of facts that, if proven, enhance an

individual’s sentence independent of the crime of conviction. Finally, § 851

hearings, like sentencing hearings, are post-trial bench proceedings in which the

judge is the finder of fact. Accordingly, whether to apply the Federal Rules of

Evidence during a § 851 hearing is left to the discretion of the district court. The

district court’s decision to disregard the Federal Rules of Evidence during the § 851

                                            5
                Case: 17-15666     Date Filed: 10/26/2018     Page: 6 of 8


hearing was, therefore, not an abuse of discretion.

      We therefore consider whether the evidence satisfies the “sufficient indicia of

reliability” standard. We agree with the district court that the documents appear to be

reliable and authentic. Accordingly, the district court did not clearly err. See

Ghertler, 605 F.3d at 1269.

                                            II.

      During § 851 hearings, the government has “the burden of proof beyond a

reasonable doubt on any issue of fact.” 21 U.S.C. § 851(c)(1). We generally review

the interpretation of a criminal statute de novo. United States v. Rojas, 718 F.3d

1317, 1319 (11th Cir. 2013). When a party fails to object in the district court,

however, we review for plain error. United States v. Rodriguez, 398 F.3d 1291, 1298

(11th Cir. 2005). In order to establish plain error, a party must demonstrate: (1) the

district court erred; (2) the error was plain; and (3) the error affected the party’s

substantial rights. Id. If all three conditions are met, this Court “may exercise its

discretion to notice a forfeited error, but only if the error seriously affected the

fairness, integrity, or public reputation of judicial proceedings.” Id. To affect a

party’s substantial rights, the error “must have affected the outcome of the district

court proceedings” such that, absent the error, there is a reasonable probability of a

different result. Id. at 1299.

      In this case, the district court improperly employed the preponderance of the
                                             6
               Case: 17-15666     Date Filed: 10/26/2018   Page: 7 of 8


evidence standard, as opposed to the beyond a reasonable doubt standard. See 21

U.S.C. § 851(c)(1). We review that choice for plain error because Hernandez failed

to object to the application of the wrong standard. See Rodriguez, 398 F.3d at 1298.

      Hernandez satisfies the first two prongs of plain error review. The district

court’s application of the preponderance of the evidence standard was plainly

erroneous because § 851 requires the United States to prove the conviction beyond a

reasonable doubt. 21 U.S.C. § 851(c)(1). Hernandez fails to satisfy the third prong,

however, which requires establishing a reasonable probability that the outcome

would have been different if the district court applied the correct standard. See

Rodriguez, 398 F.3d at 1299.

      Hernandez contends that the district court’s failure to apply the Federal Rules

of Evidence in his § 851 hearing affected his substantial rights. According to

Hernandez, but for the inadmissible evidence, the government would not have been

able to meet its burden of proof in establishing the prior felony drug conviction. But

we have already established that the Federal Rules of Evidence did not apply, and

Hernandez never challenged nor objected to the reliability or substance of the

documentary evidence. There was sufficient evidence for the district court to find

beyond a reasonable doubt that Hernandez was previously convicted of possession of

cocaine. Accordingly, it was not reasonably probable that the outcome of the

proceedings would have changed even if the district court had applied the correct

                                           7
               Case: 17-15666     Date Filed: 10/26/2018    Page: 8 of 8


standard. See id. The district court did not plainly err.

      AFFIRMED.




                                           8
