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

                            FOR THE TENTH CIRCUIT                        September 9, 2016
                        _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
UNITED STATES OF AMERICA,

     Plaintiff - Appellee,

v.                                                        No. 14-2158
                                                 (D.C. No. 1:10-CR-03239-JB-1)
CHRISTIAN ALEXANDER                                         (D. N.M.)
SANGIOVANNI,

     Defendant - Appellant.
                     _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before BRISCOE, EBEL, and BACHARACH, Circuit Judges.
                   _________________________________

      In this direct criminal appeal, Defendant-Appellant Christian Sangiovanni

challenges his conviction for being a previously convicted felon unlawfully in

possession of a firearm, and the 120-month prison sentence the district court imposed

for that offense. Having jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a), we AFFIRM.

                                 I. BACKGROUND

      Viewed in the light most favorable to the jury’s verdict, see United States v.

Jim, 786 F.3d 802, 804-05 (10th Cir. 2015), cert. denied, 136 S. Ct. 348 (2015), the


*
 This order and judgment is not binding precedent, except under the doctrines of law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.
evidence presented at trial indicated the following: On April 25, 2010, Sangiovanni

confronted S.V., a seventeen-year-old high school senior, in the parking lot of a

convenience store. Sangiovanni, who had “unrequited romantic feelings” for S.V.

(Aple. Br. 5), got into S.V.’s van, became angry, pulled a gun and held S.V. at

gunpoint; at one point he cocked the gun and told S.V. “I’ll blast you. . . . I’m not

afraid to blast you and me right here. I’m not scared to die. I’d rather die and go to

Heaven with you than lose you to someone else” (V R. 233 (internal quotation marks

omitted).) S.V. recognized the gun that Sangiovanni pointed at her, a nine-millimeter

Smith and Wesson that belonged to Dallas Green, Sangiovanni’s housemate and

S.V.’s former boyfriend.

      Eventually Sangiovanni calmed down and let S.V. go. Before doing so,

however, he warned her: “Don’t go telling the police or your parents about this,

otherwise I’m going to have to kill you and your family and then kill myself.” (Id.

235 (internal quotation marks omitted).)

      Undeterred, S.V. went home and told her mother, who called the police.

Although S.V. told police officers that day that Sangiovanni had threatened her, she

did not mention that Sangiovanni had a gun. The next day, however, S.V. told the

police resource officer assigned to her school both about the assault and that

Sangiovanni had a gun.

      Several hours after the assault and in between S.V.’s conversations with

police, Sangiovanni sent S.V. a threatening email. At some later point in time,

Sangiovanni emailed S.V. two photographs of him pointing a gun to his own head.

                                            2
      Eight days after the assault, police executed a search warrant at the home

where Sangiovanni lived with Dallas Green and his family. There, in Green’s

stepfather’s room, officers found the nine-millimeter gun that Sangiovanni had used

to threaten S.V. and ammunition. Later, Sangiovanni called S.V. from jail. During

the call, which was recorded, Sangiovanni admitted to threatening S.V. with a gun.

      A grand jury charged Sangiovanni with being a previously convicted felon

unlawfully in possession of a firearm, the nine-millimeter Smith and Wesson, in

violation of 18 U.S.C. § 922(g)(1). At trial, Sangiovanni defended against that

charge by arguing that S.V. was lying about his having a gun. The jury, nevertheless,

convicted Sangiovanni.

      At sentencing, the district court calculated Sangiovanni’s advisory sentencing

range to be between 168 and 210 months in prison. But because, by statute,

Sangiovanni’s offense was punishable by no more than ten years in prison, see 18

U.S.C. § 924(a)(2), ten years (120 months) became Sangiovanni’s advisory guideline

range. See U.S.S.G. § 5G1.1(a). The district court imposed a 120-month prison

sentence.

                             II. LEGAL DISCUSSION

A. The district court did not abuse its discretion in admitting the threatening
email

      At 2:53 the morning after the incident, and after S.V. had spoken with police,

Sangiovanni sent her this email with the subject line “Haha”:

      Fuk u u dumbass bitch u ain t gone prove shit. Fuk u n ur story. Ain t
      ne body gone believe u. U gone try 2fuk me over? U can t even prove I

                                          3
      do heroin. Fukn bitch ass spoiled brat. Hav a nice fukn life alone.
      Haha.

(I Supp. R. 5 (Gov’t Ex. 8).)1

      The district court did not abuse its discretion in admitting this email over

Sangiovanni’s objection, made under Fed. R. Evid. 403, that the email’s unfair

prejudice to Sangiovanni substantially outweighed its probative value. In rejecting

Sangiovanni’s argument, the district court reasoned that his sending S.V. a

threatening email within hours of the purported assault was probative because it

made it more probable that Sangiovanni had done something that he did not want

S.V. to report to the police, Fed. R. Evid. 401; and any prejudice to Sangiovanni

stemming from admitting the email was not unfair, that is it would not cause jurors to

reach a verdict based on emotion rather than reason, see United States v. Rodella,

804 F.3d 1317, 1334 (10th Cir. 2015), petition for cert. filed, 84 U.S.L.W. 3546 (U.S.

Mar. 14, 2016) (No. 15-1158).

B. The district court did not abuse its discretion in admitting two photographs
that Sangiovanni emailed to S.V., depicting him holding a gun to his head

      Sangiovanni next contends that the district court abused its discretion in

admitting, under Fed. R. Evid. 404(b)(2), the two photographs Sangiovanni emailed

to S.V. depicting him holding to his head what appears to be a gun similar to the

weapon with which Sangiovanni threatened S.V. Although such “[e]vidence of a


1
 In admitting this email, the district court directed the Government to redact the line
about S.V. being unable to prove Sangiovanni did heroin. At Sangiovanni’s request,
however, the line was ultimately not redacted.

                                           4
crime, wrong, or other act is not admissible to prove a person’s character in order to

show that on a particular occasion the person acted in accordance with the character,”

Fed. R. Evid. 404(b)(1), it “may be admissible for another purpose, such as proving

motive, opportunity, intent, preparation, plan, knowledge, identity, absence of

mistake, or lack of accident,” Rule 404(b)(2).

      Evidence is admissible under Rule 404(b)(2) if it satisfies “the four-part test

set out in” Huddleston v. United States, 485 U.S. 681, 691-92 (1988):

      (1) the evidence was offered for a proper purpose under Rule 404(b);
      (2) the evidence was relevant under Rule 401; (3) the probative value of
      the evidence was not substantially outweighed by its potential for unfair
      prejudice under Rule 403; and (4) the district court, upon request,
      instructed the jury pursuant to Rule 105 to consider the evidence only
      for the purpose for which it was admitted.

Rodella, 804 F.3d at 1333 (alterations, quotation omitted). Here, the district court

did not abuse its discretion in admitting these photos under Rule 404(b)(2) because

they satisfied each of the Huddleston factors. See Rodella, 804 F.3d at 1329

(reviewing district court’s Rule 404(b) ruling for abuse of discretion).

      First, the Government offered these photos for a proper purpose under Rule

404(b)(2), to prove that Sangiovanni knew about the gun and had an opportunity to

access it. Second, the photos were relevant for that purpose because they showed

him holding what appeared to be the same or a similar gun, making it more probable

that Sangiovanni threatened S.V. with that weapon, a critical issue in the case. See

Fed. R. Evid. 401. The relevance of those photos was further enhanced because at




                                           5
least one of the photos was taken close in time to the April 25 assault. See United

States v. McGlothin, 705 F.3d 1254, 1265 (10th Cir. 2013).2

      Third, the district court did not abuse its discretion in determining that the

photos’ probative value was not substantially outweighed by the danger of unfair

prejudice to Sangiovanni. When, as here, “other-act evidence is admitted for a

proper purpose and is relevant, it may be admissible even though it has the potential

impermissible side effect of allowing the jury to infer criminal propensity.” United

States v. Moran, 503 F.3d 1135, 1145 (10th Cir. 2007) (internal quotation marks

omitted). “Evidence is unfairly prejudicial only if it makes a conviction more likely

because it provokes an emotional response in the jury or otherwise tends to affect

adversely the jury’s attitude toward the defendant wholly apart from its judgment as

to his guilt or innocence of the crime charged.” McGlothin, 705 F.3d at 1266

(internal quotation marks omitted). Neither was the case here.

      Lastly, the district court gave jurors the Tenth Circuit’s pattern limiting

instruction:

            You have heard evidence of other acts engaged in by Mr.
      Sangiovanni. You may consider that evidence only as it bears on Mr.
      Sangiovanni’s motive, opportunity, intent, preparation, plan,
      knowledge, identity, absence of mistake or accident and for no other

2
  Sangiovanni contends that he did not place his knowledge or ability to access the
firearm at issue during the trial. But Sangiovanni also did not stipulate that he knew
about and had access to the firearm. And the Government had the burden at trial to
prove beyond a reasonable doubt that Sangiovanni knowingly possessed a Smith and
Wesson nine-millimeter gun on April 25, 2010. See McGlothin, 705 F.3d at 1263
n.12; see also United States v. Sampson, 980 F.2d 883, 888 (3d Cir. 1992) (“The
parameters of Rule 404(b) are not set by the defense’s theory of the case; they are set
by the material issues and facts the government must prove to obtain a conviction.”).
                                           6
       purpose. Of course, the fact that Mr. Sangiovanni may have previously
       committed an act similar to the one charged in this case does not mean
       that Mr. Sangiovanni necessarily committed the act charged in this case.

(I R. 424 (Instruction 8); see also V R. 398-99).)

       Sangiovanni did not object to this instruction in the district court or in his

opening brief, at least in regards to the admission of the photos under Rule 404(b)(2).

Instead, it was not until his reply brief that he first argued that the limiting instruction

was inadequate. For this reason, we decline to address Sangiovanni’s belated

argument. See United States v. Watson, 766 F.3d 1219, 1230 n.8 (10th Cir. 2014),

cert. denied, 135 S. Ct. 735 (2014). We note, however, that this court has previously

upheld the use of similar instructions against plain-error review. See McGlothin, 705

F.3d at 1267 & n.19.

C. The Government did not constructively amend the indictment

       Sangiovanni next argues that the Government constructively amended the

indictment. The parties agree that, because he did not raise this issue in the district

court, we apply plain-error review, considering whether (1) there was error that

(2) was plain, (3) affected substantial rights and (4) seriously affected the fairness,

integrity, or public reputation of judicial proceedings. See United States v. Kalu, 791

F.3d 1194, 1201 (10th Cir. 2015).

       Here, there was no error, plain or otherwise, because the Government did not

constructively amend the indictment. As relevant here, a constructive amendment

broadens the indictment, permitting the jury to convict the defendant on conduct not

charged by the grand jury. See id. at 1201, 1206. In this case, the indictment

                                             7
charged Sangiovanni with unlawfully possessing a firearm “on or about April 25,

2010.” (I R. 1.) Sangiovanni argues that the Government constructively amended

that charge to permit the jury, instead, to convict him of possessing, on other dates,

the firearms depicted in the photos Sangiovanni sent S.V.

       Sangiovanni contends that the Government constructively amended the

indictment in this manner because (1) the district court admitted the photos into

evidence, (2) the Government, during its closing argument, argued that the photos

corroborated S.V.’s testimony that Sangiovanni threatened her with Dallas Green’s

gun on April 25, 2010, at the convenience store, as well as showing that Sangiovanni

was able to access the gun and exercise control and dominion over it, and (3) the

district court did not adequately instruct jurors to limit their consideration of the

photos for a specific Rule 404(b) purpose.

       Sangiovanni’s constructive-amendment argument is unavailing because the

jury instructions made clear to jurors that the grand jury charged Sangiovanni with

unlawfully possessing the firearm “[o]n or about April 25, 2010” (I R. 427, 431

(Instructions 11, 15)), and that “[t]he government must prove beyond a reasonable

doubt that Mr. Sangiovanni committed the crime reasonably near April 25, 2010” (Id.

431 (Instruction 15).) The instructions further informed jurors that “Mr. Sangiovanni

is not on trial for any act, conduct, or crime not charged in the indictment.” (Id. 432

(Instruction 16).)




                                             8
D. The district court did not err in enhancing Sangiovanni’s offense level by four
based on facts found by the sentencing court (and not a jury) by a
preponderance of the evidence (and not beyond a reasonable doubt)

       In calculating Sangiovanni’s advisory sentencing range, the sentencing court

enhanced Sangiovanni’s offense level by four after finding, by a preponderance of

the evidence, that Sangiovanni used or possessed a firearm in connection with

another felony offense, U.S.S.G. § 2K2.1(b)(6)(B); in this case aggravated assault by

pointing the firearm at the victim and threatening to kill her. Sangiovanni argues that

a jury had to make that finding beyond a reasonable doubt.

       The Fifth and Sixth Amendments require a jury to find beyond a reasonable

doubt any fact (other than the fact of a prior conviction) that increases the statutory

maximum or mandatory minimum sentence that a defendant faces. See Alleyne v.

United States, 133 S. Ct. 2151, 2155 (2013); Apprendi v. New Jersey, 530 U.S. 466,

490 (2000). But those requirements do not apply to facts, like the one at issue here,

that a sentencing court finds in order to calculate a sentence within the statutorily

prescribed range. See United States v. Cassius, 777 F.3d 1093, 1094, 1097, 1099 n.4

(10th Cir. 2015), cert. denied, 135 S. Ct. 2909 (2015). Sangiovanni acknowledges

that Supreme Court and Tenth Circuit case law forecloses his argument, but he makes

it on appeal “in order to preserve the issue for possible further appeal.” (Aplt. Br.

37.)

       For the first time on appeal, Sangiovanni further argues that there was

insufficient reliable evidence to support the sentencing court’s finding that he

committed an aggravated assault because that finding was based on S.V.’s testimony,

                                            9
and her testimony was suspect in light of evidence presented at trial that S.V. was an

illicit drug user and a pathological liar. Reviewing for plain error, see United States

v. Howard, 784 F.3d 745, 748 (10th Cir. 2015), we reject this argument. S.V.’s

credibility is a question of fact for the sentencing court, see United States v. Virgen-

Chavarin, 350 F.3d 1122, 1134 (10th Cir. 2003), and “factual disputes regarding

sentencing not brought to the attention of the district court do not rise to the level of

plain error,” Howard, 784 F.3d at 749 (internal quotation marks omitted).

E. Sangiovanni’s 120-month sentence is not substantively unreasonable

      Applying the sentencing guidelines, the district court calculated Sangiovanni’s

offense level to be thirty and his criminal history category to be VI, resulting in an

advisory sentencing range of between 168 and 210 months in prison. But, because by

statute his offense was punishable by not more than ten years in prison, see 18 U.S.C.

§ 924(a)(2), Sangiovanni’s guideline range became 120 months, see U.S.S.G.

§ 5G1.1(a), and that is the sentence the district court imposed. Because his sentence

is within the applicable guideline range, it is presumed to be reasonable, and

Sangiovanni has not rebutted that presumption. See United States v. Harry, 816 F.3d

1268, 1284 (10th Cir. 2016).




                                            10
                                III. CONCLUSION

     For the foregoing reasons, we AFFIRM Sangiovanni’s conviction and 120-

month sentence




                                      Entered for the Court


                                      David M. Ebel
                                      Circuit Judge




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