                                                                                   FILED
                                                                       United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                           Tenth Circuit

                             FOR THE TENTH CIRCUIT                               May 24, 2018
                         _________________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                           No. 17-2100
                                                   (D.C. No. 1:13-CR-02028-JAP-2)
MIGUEL BUSTAMANTE-CONCHAS,                                    (D. N.M.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, HOLMES, and PHILLIPS, Circuit Judges.
                  _________________________________

      Miguel Bustamante-Conchas appeals his 216-month concurrent sentences,

imposed on remand, for conspiring to distribute and possessing with intent to distribute

one kilogram or more of heroin. He argues that the district court plainly erred by

considering at sentencing the presentence reports (PSRs) of co-defendants and

co-conspirators without giving him prior notice and an opportunity to respond.

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



      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                    BACKGROUND

       The factual background for this case is thoroughly recounted in this court’s prior

opinions. See United States v. Bustamante-Conchas, 832 F.3d 1179 (10th Cir. 2016)

(Bustamante-Conchas I), rev’d on reh’g en banc, 850 F.3d 1130 (10th Cir. 2017)

(Bustamante-Conchas II). We repeat only those facts necessary for an understanding of

the limited issues before us.

       Bustamante-Conchas and Baltazar Granados ran a heroin trafficking operation in

the Albuquerque, New Mexico, area. The heroin was supplied by Joel Nunez-Haros and

Pablo Felix Sicairos, among others. Bustamante-Conchas allowed those two men to use

homes he owned and rented in Albuquerque to store heroin, cash, and drug-related items.

       When the group was arrested in 2013, police found over two hundred grams of

heroin in Bustamante-Conchas’s homes and almost ten kilograms of heroin in Granados’s

home and a residence rented by Granados’s wife at Bustamante-Conchas’s direction.

Additionally, inside Granados’s home, the police found a Glock pistol. According to an

investigator, Granados’s wife said that Granados told her that Bustamante-Conchas

supplied the gun for protection against a former trafficking partner.

       A jury found Bustamante-Conchas guilty of conspiring to distribute and

possessing with intent to distribute one kilogram or more of heroin. At sentencing, the

district court attributed 12.84 kilograms of heroin to Bustamante-Conchas, and it imposed

a two-level enhancement for the Glock’s possession in connection with the conspiracy.

Despite a resulting Guidelines sentencing range of 292 to 365 months’ imprisonment, the



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district court cited Bustamante-Conchas’ childhood circumstances and varied downward

to a 240-month sentence.

       On appeal, Bustamante-Conchas challenged the drug quantity attributed to him,

the dangerous-weapon enhancement, and the absence of an opportunity to allocute before

sentencing. A divided panel of this court affirmed, with Judge Lucero concurring in part,

but dissenting on the allocution issue. Bustamante-Conchas I, 832 F.3d at 1186-87. On

en banc review limited to the allocution issue, a majority of this court’s judges vacated

Bustamante-Conchas’s sentence and remanded for resentencing. Bustamante-Conchas II,

850 F.3d at 1144.

       At resentencing, the district judge began by recounting the documents he had

reviewed since the initial sentencing, which included the PSRs of four co-defendants

(Granados, Angel Miramontes-Cruz, Ramon Cabrales-Guerra, and Ruben Garcia-

Miranda) and two separately charged co-conspirators (Sicairos and Nunez-Haros), all of

whom the judge had previously sentenced. After hearing Bustamante-Conchas’s

allocution, the judge adopted his earlier findings in support of the gun enhancement and

drug quantity, and he determined after recounting the scope of Bustamante-Conchas’s

criminal activity that the Guideline range would remain 292 to 365 months. After

reiterating his consideration of the co-defendants’ and co-conspirators’ PSRs, and finding

that Bustamante-Conchas’s allocution was sincere and contrite, the judge selected a

sentence of 216 months’ imprisonment. At no point did Bustamante-Conchas object to

the judge’s consideration of the third-party PSRs.



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       Bustamante-Conchas now appeals, arguing that the district court plainly erred by

considering those PSRs without giving him advance notice and an opportunity to

respond.

                                         DISCUSSION

       Where, as here, an appellant raises an argument that he forfeited below by not

objecting, see, e.g., Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir. 2011),

the argument must be reviewed under the “rigorous plain-error standard,” United States v.

McGehee, 672 F.3d 860, 876 (10th Cir. 2012).1 Under that standard, the appellant “must

persuade us that there is (1) error, (2) that is plain, which (3) affects [his] substantial

rights, and which (4) seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” United States v. Rios-Morales, 878 F.3d 978, 987 (10th Cir. 2017)

(internal quotation marks omitted), cert. denied, 2018 WL 1610267 (U.S. Apr. 30, 2018).




       1
          Bustamante-Conchas invokes the exception to plain-error review for a
sentencing court “error that the defendant cannot be expected to anticipate,” United
States v. Martinez-Barragan, 545 F.3d 894, 899 (10th Cir. 2008). He argues that
“[n]othing in the record suggests that Mr. Bustamante should have been prepared for
the district court’s sua sponte reliance at resentencing on confidential, third-party
PSRs - sources of information presumed to be inaccessible to the defendant and that
he would have no opportunity to rebut.” Aplt. Opening Br. at 28. Even assuming the
continued viability of the unforeseeable-error doctrine, see Martinez-Barragan, 545
F.3d at 899 n.1, Bustamante-Conchas has not shown it applies here. In particular, the
district judge announced at the outset of the sentencing hearing and before
pronouncing sentence that he had considered the third-party PSRs. Despite this
notice and opportunities to address the consideration of those PSRs, Bustamante-
Conchas neither mentioned them nor requested a continuance to rebut them. Under
these circumstances, any error in the district judge sentencing Bustamante-Conchas
after considering third-party PSRs was not unforeseeable.

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                                         I. Error

       Bustamante-Conchas contends that the district court’s “reliance on the

co-defendant and co-conspirator PSRs without allowing [him] to challenge them”

violated two provisions in the Rules of Criminal Procedure. Aplt. Opening Br. at 33.

First, he points to Rule 32(i)(1)(B), which requires a sentencing court to give “the

defendant and an attorney for the government a written summary of--or summarize in

camera--any information excluded from the presentence report under Rule 32(d)(3)[2] on

which the court will rely in sentencing, and give them a reasonable opportunity to

comment on that information.” Fed. R. Crim. P. 32(i)(1)(B). This provision “obligates

the district court to provide the parties advance access to information on which it will rely

in sentencing” in order to “safeguard against . . . sentencing based on evidence that the

parties have not had reasonable notice of and opportunity to address.” United States v.

Rakes, 510 F.3d 1280, 1286 (10th Cir. 2007) (internal quotation marks omitted).

       Next, Bustamante-Conchas cites Rule 32(i)(1)(C), which requires a sentencing

court to “allow the parties’ attorneys to comment on the probation officer’s

determinations and other matters relating to an appropriate sentence.” Fed. R. Crim. P.

32(i)(1)(C). This provision ensures that a defendant’s sentence is subjected to “thorough

adversarial testing.” United States v. Angel-Guzman, 506 F.3d 1007, 1016 (10th Cir.

2007) (internal quotation marks omitted).

       2
         PSRs may not reveal: “any diagnoses that, if disclosed, might seriously
disrupt a rehabilitation program”; “any sources of information obtained upon a
promise of confidentiality”; and “any other information that, if disclosed, might
result in physical or other harm to the defendant or others.” Fed. R. Crim. P.
32(d)(3).
                                             5
       Despite these Rule 32 directives, the government maintains there was no error

because “the district court never stated that it went a step beyond reviewing and actually

relied on the third-party [PSRs] to reach different conclusions about the contested issues

than the court would have reached without reviewing those reports.” Aplee. Br. at 14.

True, the district judge did not say he “relied” on the third-party PSRs. Rather, at the

hearing’s outset, after listing the documents he had reviewed for sentencing, which

included Bustamante-Conchas’s own PSR as well as the third-party PSRs, the district

judge asked the parties whether there were “any other written materials that [he] should

consider.” R., Vol. III at 40 (emphasis added). And before announcing sentence, the

district judge said that “in reviewing the[ ] [third-party] plea agreements and [PSRs],” he

became convinced that “[i]f those defendants had chosen to go to trial, likely they would

have ended up with sentences much closer to what is being imposed on . . .

Bustamante-Conchas.” Id. at 91. Thus, the record clearly indicates that the district judge

relied on the third-party PSRs in sentencing Bustamante-Conchas.

       Mere reliance, however, is not Bustamante-Conchas’s complaint. His claimed

error is reliance without prior notice and a reasonable opportunity to respond. The

problem with this claim, however, is, as we mentioned earlier, that the district judge

announced his consideration of the third-party PSRs at the beginning of the sentencing

hearing. And throughout the hearing, Bustamante-Conchas had opportunities to address

the consideration of those PSRs. Granted, without knowing the content of those PSRs,

Bustamante-Conchas might have been at a disadvantage in fashioning a response. See

United States v. Berzon, 941 F.2d 8, 21 (1st Cir. 1991) (“[N]otwithstanding the wide

                                             6
scope of the sentencing court’s discretion, a defendant may not be placed in a position

where, because of his ignorance of the information being used against him, he is

effectively denied an opportunity to comment on or otherwise challenge material

information considered by the district court.”). But given that the district judge had

already sentenced Bustamante-Conchas’s co-defendants and co-conspirators, it should

have come as no surprise to Bustamante-Conchas that the judge had, at one time or

another, reviewed the third-party PSRs. Moreover, regardless of when that review took

place, the district judge rendered the same findings of fact from the original sentencing

proceeding regarding drug quantity and firearm possession (which this court had affirmed

in Bustamante-Conchas I), with the same resulting sentencing range. And then, the

district judge gave Bustamante-Conchas one more opportunity to argue for an

“appropriate sentence.” R., Vol. III at 82. Under these circumstances, we fail to see how

Bustamante-Conchas was denied an opportunity “to rebut or explain allegations made in

a sentencing proceeding,” United States v. Alvarado, 909 F.2d 1443, 1446 (10th Cir.

1990) (internal quotation marks omitted).

                                     II. Plain Error

       Assuming for the sake of argument that the district court failed to give

Bustamante-Conchas sufficient notice of, and opportunity to address, its consideration of

third-party PSRs, we now turn to whether that error was plain. An error is plain if it “is

contrary to well-settled law.” United States v. Smith, 815 F.3d 671, 675 (10th Cir. 2016)

(internal quotation marks omitted). In order “to characterize a proposition of law as



                                             7
well-settled, we normally require precedent directly [o]n point from the Supreme Court

or our circuit or a consensus in the other circuits.” Id.

       Bustamante-Conchas does not identify a case where, as here, the district court

resentenced a defendant after (1) announcing it had reviewed the PSRs of co-defendants

and co-conspirators who the court had already sentenced, and (2) adopting the same

findings of fact made at the original sentencing. Instead, Bustamante-Conchas cites

Alvarado, where the district court sentenced a defendant based on materials reviewed in

camera that “confirm[ed] the accuracy of the summary of [a] confidential informant’s

report included in the [defendant’s PSR]” and supplied “additional inculpatory

information about [the defendant’s] role in the [drug-trafficking].” 909 F.2d at 1445-46.

Because the district court relied on the materials without giving the defendant at least a

summary of them, it violated “the law of this circuit requiring that a defendant be

permitted to rebut or explain allegations made in a sentencing proceeding.” Id. at 1446

(internal quotation marks omitted).

       We do not find Alvarado sufficiently on point to render the assumed error in

Bustamante-Conchas’s sentencing plain. Here, the judge’s consideration of information

in previously sentenced co-defendants’ and co-conspirators’ PSRs—which did not alter

relevant sentencing findings—makes this case unique. And while the absence of

precedent directly on point is not determinative if the error is clear and obvious from

another source, such as a statute or procedural rule, see United States v. Powell, 767 F.3d

1026, 1035 (10th Cir. 2014), we cannot so characterize the assumed error based on

Rule 32’s language. Specifically, Rule 32(i)(1)(B) does not appear to cover a sentencing

                                              8
court’s consideration of third-party PSRs, given that the rule applies to material, which if

revealed, might disrupt a rehabilitation program, result in physical harm, or identify an

information source that was obtained upon a promise of confidentiality. And while

Rule 32(i)(1)(C) affords a general opportunity to “comment on . . . matters relating to an

appropriate sentence,” Fed. R. Crim. P. 32(i)(1)(C), the circumstances in this case do not

indicate that this prescription was clearly and obviously violated.

                                       CONCLUSION

       We affirm Bustamante-Conchas’s sentence.
                                              Entered for the Court


                                              Gregory A. Phillips
                                              Circuit Judge




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