                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                ______________

                                      No. 12-2981
                                    ______________

                           UNITED STATES OF AMERICA

                                            v.

                                  RICHARD SPISAK,
                                           Appellant
                                   _______________

                      Appeal from the United States District Court
                       For the Eastern District of Pennsylvania
                        (D.C. Criminal No. 2-11-cr-00669-001)
                      District Judge: Honorable Paul S. Diamond
                                   ______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  September 11, 2013

         Before: McKEE, Chief Judge, SMITH and SLOVITER, Circuit Judges

                            (Opinion Filed: October 7, 2013)
                                   ______________

                                       OPINION
                                    ______________

McKEE, Chief Judge.

       Richard Spisak appeals the 32-month sentence that the district court imposed on

him following his guilty plea to one count of engaging in a sexual act with a ward. For

the reasons that follow, we will affirm that judgment.
       As we write only for the parties who are familiar with the facts and procedural

history, we need not reiterate the details of Spisak’s offense.

       Because the defendant failed to object at sentencing to the government’s

presentation of evidence, we review for plain error. Fed.R.Crim.P. 52(b). Under the

plain error standard, the appellant must show that “(1) an error was committed; (2) the

error was plain, that is, it is ‘clear’ and ‘obvious;’ and (3) the error affected [the

defendant’s] substantial rights.” United States v. Nappi, 243 F.3d 758, 762 (3d Cir. 2001)

(alteration in original). If the appellant makes that showing, we may correct the

sentencing error, but only if the error “seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” United States v. Dixon, 308 F.3d 229, 234 (3d Cir.

2002) (citations omitted).

       The defendant argues that the district court committed plain error by granting the

upward variance based on the testimony of the two additional inmates. In support of this

argument, he attempts to rely on Apprendi v. New Jersey, 530 U.S. 466 (2000) and

United States v. Booker, 543 U.S. 220 (2005). In Apprendi, the Court declared: “[o]ther

than the fact of a prior conviction, any fact that increases the penalty for a crime beyond

the prescribed statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt.” 530 U.S. at 490. The Court reaffirmed this holding in Booker. 543

U.S. at 244. The defendant claims that this precedent compels a finding of plain error

because the district court—and not a jury—found facts that resulted in a sentence

exceeding his maximum Guidelines range. We disagree.




                                               2
       Because the Guidelines are now advisory and only one factor a judge must

consider when sentencing, they do not increase the maximum sentence to which a

defendant is exposed; “[t]hey merely inform the judge’s broad discretion.” United States

v. Grier, 475 F.3d 556, 565 (3d Cir. 2007). As a result, sentencing judges can sentence

defendants up to the statutory maximum based on evidence presented at sentencing as

long as the defendant has been found guilty beyond a reasonable doubt of each element

of the offense of conviction, or has admitted guilt pursuant to a valid change of plea

proceeding. Id. at 561,

       Moreover, even if the district court had erred in crediting the testimony of the two

other victims, the error would have been harmless because it is clear that it did not affect

the defendant’s sentence. Rather, the district court concluded that an upward variance

would have been warranted even without their testimony.

       Accordingly, we will affirm the district court’s judgment.




                                              3
