                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                ______________

                                      No. 13-1756
                                    ______________

                           UNITED STATES OF AMERICA

                                            v.

                                JONATHAN TRIMINIO,

                                                       Appellant
                                    ______________

                    On Appeal from the United States District Court
                           for the District of New Jersey
                         (D.C. Crim. No. 2-12-00698-001)
                    Honorable Katherine S. Hayden, District Judge
                                  ______________

                       Submitted under Third Circuit LAR 34.1(a)
                                   October 8, 2013

          BEFORE: FUENTES, GREENBERG, and BARRY, Circuit Judges

                                (Filed: October 23, 2013)
                                    ______________

                              OPINION OF THE COURT
                                  ______________

GREENBERG, Circuit Judge.

      This matter comes on before this Court on an appeal from a judgment of

conviction and sentence entered on March 13, 2013, on the basis of appellant Jonathan

Triminio’s plea of guilty pursuant to a plea agreement to a single count of unlawful
possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). The

District Court sentenced Triminio to a 73-month custodial term to be followed by a three-

year term of supervised release. The Court calculated that Triminio had a final offense

level of 25 with 8 criminal history points, making an advisory sentencing range of 84 to

105 months. The offense level included a 4-level enhancement under U.S.S.G. §

2K2.1(b)(6)(B) for unlawful possession of body armor.

       Triminio appeals only from the use of this enhancement in calculating his offense

level as he claims that its use violated his due process rights because he was not

convicted of a body armor offense and he did not stipulate that he had possession of body

armor. He principally relies on Alleyne v. United States, 133 S.Ct. 2151 (2013), United

States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005), Blakely v. Washington, 542 U.S.

296, 124 S.Ct. 2531 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348

(2000). He does not contend, however, that, in terms, the enhancement could not be

applied to his possession of body armor, though he does contend that his plea agreement

did not contemplate the use of the enhancement in the calculation of his sentencing level.

       The District Court had jurisdiction under 18 U.S.C. § 3231 and we have

jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. Although, here, as in most

cases, we exercise an abuse of discretion standard in reviewing a sentence, Triminio

contends that the District Court erred as a matter of law by including the 4-level body

armor enhancement in calculating his offense level and thus, to the extent of considering

that argument, we exercise plenary review.



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       We will affirm. Triminio complains that the District Court, by finding as a fact

that he had possession of body armor, violated the rule that he contends that the cases he

cites established. But clearly the Court did not violate the principles recognized in those

cases. Although possession of body armor could have been charged as a separate offense

so that if a jury convicted him of that offense he could have been sentenced for its

commission, the government did not make any such charge. Rather, the government

referred to the body armor only as a basis for enhancement of Triminio’s guidelines

offense level and, in doing so, in no way permitted an increase in the statutory sentence

that could have been imposed on him or in any other way affected any mandatory

minimum or maximum sentence applicable to him. Here the maximum sentence – with

or without the 4-level enhancement – was ten years and the enhancement did not increase

any mandatory minimum that the Court was obliged to impose. Accordingly, the Court

by the use of the enhancement simply increased the advisory but not binding sentencing

range to which Triminio was subject. Thus, United States v. Grier, 475 F.3d 556, 559 (3d

Cir. 2007) (en banc), which held “that facts relevant to the advisory United States

Sentencing Guidelines need not be submitted to a jury” is controlling here and we are

constrained to affirm.

       We make three additional comments. First, as we noted above, Triminio relies on

the very recent case of Alleyne v. United States, 133 S.Ct. 2151 (2013). But that case

holds that “any fact that increases the mandatory minimum [sentence for an offense] is an

‘element’ [of the offense] that must be submitted to the jury.” Id. at 2155. Thus, it is the

counterpoint to Apprendi which held the same thing with respect to increases in the

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statutory maximum sentence for an offense. But Alleyne, like Apprendi, is not applicable

here because the body armor enhancement did not increase any mandatory minimum

sentence to which Triminio was subject. Second, we see nothing in the record that in any

way made it unfair for the District Court to use the enhancement in calculating his

offense level. To the contrary when the Court calculated his sentencing range it acted

consistently with the provisions of Triminio’s plea agreement.

       Our final comment is that if Triminio is correct it is difficult to understand how a

district court ever can make a finding that is the basis for a guidelines sentencing level

enhancement. It is ironic that Triminio is making his argument in a case in which he does

not even claim that the District Court erred in its finding that he possessed body armor as

he does not deny being in possession of it.

       For the foregoing reasons the order entered on March 13, 2013, will be affirmed.




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