     Case: 19-50813   Document: 00515470663        Page: 1   Date Filed: 06/29/2020




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit


                                    No. 19-50813                          FILED
                                                                      June 29, 2020
                                                                     Lyle W. Cayce
UNITED STATES OF AMERICA,                                                 Clerk

             Plaintiff - Appellee

v.

KEVIN RENE APARICIO-LEON,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Western District of Texas


Before SMITH, HIGGINSON, and ENGELHARDT, Circuit Judges.
KURT D. ENGELHARDT, Circuit Judge:
      Kevin Rene Aparicio-Leon pleaded guilty to possession with intent to
distribute at least 500 grams of a mixture or substance containing a detectable
amount of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(A)(viii). The district court sentenced Aparicio to a within guideline
sentence of 165 months of imprisonment and five years of supervised release.
Aparicio appeals his sentence. We AFFIRM.
                                         I.
      Aparicio raises two arguments for the first time on appeal. First, he
asserts that his due process rights were violated because he was sentenced for
an offense for which he was not charged. Specifically, Aparicio complains that
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                                        No. 19-50813
he was charged with and pled guilty to possession with intent to distribute a
mixture or substance containing methamphetamine, but he was sentenced for
possession with intent to distribute “ice.” Second, he contends that the district
court procedurally erred in failing to adjust his sentence to account for time he
spent in custody prior to sentencing that will not be credited to his federal
sentence by the Bureau of Prisons (BOP). We address both arguments in turn.
                                               II.
       Because Aparicio did not raise these issues in the district court, we
review for plain error only. 1 See United States v. Sanchez-Hernandez, 931 F.3d
408, 410 (5th Cir. 2019); United States v. Herrera-Munoz, 622 F. App’x 442,
442 (5th Cir. 2015). To prevail on plain-error review, Aparicio must show (1)
an error that has not been affirmatively waived, (2) that is clear or obvious,
and (3) that affected his substantial rights. Puckett v. United States, 556 U.S.
129, 135 (2009). If he can satisfy these three conditions, this court has the
discretion to correct the error and should do so only if it “seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” Rosales-
Mireles v. United States, 138 S. Ct. 1897, 1905 (2018).



       1 Aparicio concedes that review of the first issue is for plain error. He argues, however,
that the second issue was preserved. We disagree. The central focus of Aparicio’s objection
before the district court was requesting that Aparicio’s federal sentence run concurrent to
any future, related state sentence, which the court ordered. The district judge, rather than
the defendant, initiated the discussion about potential credit for the time Aparicio spent in
custody prior to sentencing. A colloquy between the court, defense counsel, and the AUSA
ensued. Defense counsel did not directly challenge the court’s resolution of the custody credit
issue, nor did he seek any further clarification. Instead, he merely stated he was “just not so
certain” that BOP would give Aparicio credit for time served, slightly undermining—but,
again, not directly challenging—the district court’s assumption that BOP would do so.
Because Aparicio did not alert the district court to the error of which he now complains, our
review of the unpreserved issue is for plain error. See United States v. Mondragon-Santiago,
564 F.3d 357, 361 (5th Cir. 2009); see also United States v. Rocha, 732 F. App’x 291, 294 (5th
Cir. 2018) (plain error review of supervised release condition where “the gist of the exchange
would lead the district judge to think that Rocha’s attorney agreed with her, and Rocha’s
attorney did not make any further objections”).
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                                     No. 19-50813
                                           III.
      First, Aparicio challenges the district court’s reliance on § 2D1.1 of the
Sentencing Guidelines and characterization of the methamphetamine as “ice,”
in calculating his base offense level of 34. Aparicio argues that this
classification is inconsistent with the indictment, which charged him with
possession with intent to distribute at least 500 grams of a mixture or
substance containing a detectable amount of methamphetamine, a Schedule II
Controlled Substance. Instead, he argues that if the calculation was based on
the methamphetamine mixture, his offense level would have been 30, reducing
his advisory guideline range. 2
      Aparicio’s first argument is without merit. Under the Sentencing
Guidelines, a defendant convicted under 21 U.S.C. § 841(a) is generally
sentenced based on the Drug Quantity Table in U.S.S.G. § 2D1.1(c). See
U.S.S.G. § 2D1.1(a)(5), (c); see also United States v. Lee, 725 F.3d 1159, 1165
(9th Cir. 2013). For methamphetamine, the base offense level is determined by
the weight and purity of the controlled substance. See Lee, 725 F.3d at 1166.
The Table lists various qualities of methamphetamine—“methamphetamine,”
“methamphetamine (actual),” and “ice.” See generally U.S.S.G. § 2D1.1(c).
According to the Drug Quantity Table, “at least 500 G but less than 1.5 KG of
‘Ice’” results in a base offense level of 34. U.S.S.G. § 2D1.1(a)(5),(c)(3).
      The district court did not err in applying § 2D1.1(a)(5),(c)(3) of the Drug
Quantity Table to calculate Aparicio’s sentencing guideline range based on the
purity of the methamphetamine he had in his possession. For the purposes of
this guideline, “ice” means “a mixture or substance containing d-



      2  The district court determined that Aparicio’s advisory sentencing guideline range
was 151–188 months of imprisonment. Applying the asserted lower base offense level of 30
and making the proper adjustment for the 10-year mandatory minimum, Aparicio argues
that his advisory sentencing range should have been 120–121 months.
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                                        No. 19-50813
methamphetamine hydrochloride of at least 80% purity.” U.S.S.G. § 2D1.1(c)
n.(C); see also United States v. Walker, 688 F.3d 416, 418 n.2 (8th Cir. 2012)
(“‘Ice’ is a purer, more potent form of methamphetamine.”). According to the
factual basis and PSR, the methamphetamine seized was identified as d-
methamphetamine hydrochloride with a net weight of 989 grams and a purity
level of 97%, thus it was appropriately classified as “ice” methamphetamine. 3
       We rejected a similar due process challenge in United States v. Molina,
469 F.3d 408, 414 (5th Cir. 2006). Molina argued that the district court erred
in calculating his sentencing guidelines by using the multiplier for actual
methamphetamine instead of the multiplier for methamphetamine mixture or
substance, in violation of his due process rights. Id. at 412. Like Aparicio,
Molina asserted that the appropriate multiplier in the Guidelines calculation
was based on the language in the indictment. In rejecting this argument, this
court reasoned that Molina misapprehended the operation of the Guidelines.
Id. at 414.
       The choice of which multiplier to use is not determined by the
       language of the indictment. Rather, commentary to § 2D1.1
       provides: “In the case of a mixture or substance containing . . .
       methamphetamine, use the offense level determined by the entire
       weight of the mixture or substance, or the offense level determined
       by the weight of the . . . methamphetamine (actual), whichever is
       greater.” § 2D1.1(c) n.B. Thus, even if the indictment alleges
       possession     of    a     mixture   or    substance      containing
       methamphetamine, the Guidelines’ commentary directs the court
       to apply the offense level determined by the weight of the pure
       methamphetamine in the mixture or substance if doing so would
       result in a higher offense level.



       3 Aparicio did not object to the PSR’s base offense level calculation or its drug quantity
and purity level findings. See United States v. Arechiga-Mendoza, 566 F. App’x 713, 718–19
(10th Cir. 2014) (holding that because the unchallenged evidence established that the
methamphetamine exceeded 93% purity, the court did not clearly err in concluding that the
purity of the methamphetamine at issue met the definition of “ice” under the Guidelines).
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                                    No. 19-50813
Id. Ultimately, the court rejected Molina’s contentions that the harsher actual-
methamphetamine multiplier (10:1 ratio) lacked a rational basis or was
arbitrary. Id. at 413–14; accord United States v. Reyes-Soto, 184 F. App’x 777,
781 (10th Cir. 2006).
      Regardless of the language of the indictment, the Guidelines advise the
district court to apply the offense level determined by the weight of the pure
methamphetamine in the mixture or substance if doing so would result in a
higher offense level. U.S.S.G. § 2D1.1(c) n.(B); see also Molina, 469 F.3d at 414;
United States v. Collamore, 330 F. App’x 708, 718–719 (10th Cir. 2009) (the
district court did not err or otherwise violate defendant’s constitutional rights
in its application of U.S.S.G. § 2D1.1 and use of the weight of the actual
methamphetamine—proven by a preponderance of evidence—because it
provided a higher offense level than application of the mixture weight).
Accordingly, the district court did not err—plainly or otherwise—in applying
the undisputed pure methamphetamine weight to the Drug Quantity Table to
determine Aparicio’s base offense level. 4
      Aparicio attempts to distinguish Molina, contending that his due process
complaint is unique because it is based on lack of notice of the charges against
him. Nevertheless, his argument fails. An indictment must allege only the
“essential element[s] of an offense.” United States v. Wilson, 884 F.2d 174, 179
(5th Cir. 1989); see also United States v. Dentler, 492 F.3d 306, 310–11 (5th Cir.
2007). “Because the fact that the methamphetamine involved in [Aparicio’s]
offense was ‘ice’ does not affect the statutory penalty for his crime, that fact is
not an ‘element’ of the offense.” United States v. Clark, 199 F. App’x 392, 393
(5th Cir. 2006); accord United States v. Williams, 246 F. App’x 626, 633–34



      4 See also United States v. Godinez-Perez, 864 F.3d 1060, 1068–69 (10th Cir. 2016);
United States v. Todero, 155 F. App’x 437, 438–39 (11th Cir. 2005).
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                                      No. 19-50813
(11th Cir. 2007); see also United States v. Gore, 212 F. App’x 313, 314 (5th Cir.
2007) (holding, under similar circumstances, that the guilty plea was knowing
and voluntary because the defendant was informed of the elements of the
offense charged: the “fact that the methamphetamine involved in the offense
was ‘ice’ was not a fact that increased the statutory penalty for [the] crime such
that it, in effect, became an essential ‘element’ of the offense charged.”).
       Moreover, at the time of his guilty plea, Aparicio stated that he had
reviewed the factual basis with his attorney and conceded that the facts
contained in the factual basis were “true and accurate.” In so doing, Aparicio
had notice of and admitted, inter alia, that “the substance [he possessed] was,
in fact, methamphetamine weighing 989 grams, at 97% purity,” an admitted
purity level sufficient to qualify as “ice.” Cf. Lee, 725 F.3d at 1167 (concluding
that the district court procedurally erred in applying the 38-level provision in
sentencing Lee because, “at the time of making her plea agreement, Lee
factually stipulated only to having transported 3 KG of methamphetamine and
that she did not admit to any purity level”). Therefore, we reject Aparicio’s
“lack-of-notice argument” and conclude that the district court did not err in its
calculation of Aparicio’s base offense level. 5
       As to Aparicio’s second challenge on appeal, he fails to show that the
district court committed reversible plain error. Aparicio contends that the
district court procedurally erred in failing to adjust his sentence to account for
time he spent in custody prior to sentencing that he claims will not be credited




       5 Furthermore, the district court’s findings as to the amount and purity of Aparicio’s
methamphetamine as “ice,” and the resulting advisory guidelines, neither increased
Aparicio’s mandatory minimum sentence of ten years nor caused his sentence to exceed the
statutory maximum of life imprisonment. Because the findings related to drug quantity only
increased Aparicio’s discretionary guideline range, the facts need only be proven by a
preponderance of the evidence. United States v. Romans, 823 F.3d 299, 316–17 (5th Cir.
2016); see also United States v. Gore, 212 F. App’x 313, 314–15 (5th Cir. 2007).
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                                    No. 19-50813
to his federal sentence by the BOP. According to Aparicio, the district judge
intended for Aparicio to receive this time credit, but mistakenly assumed (and
was misinformed) BOP would credit this time. Thus, he requests that the case
be remanded so the district court can reduce his sentence for the “nine and a
half months spent in state custody.”
      Aparicio was arrested on December 13, 2018 by the Lorena, Texas Police
Department and was charged in McLennan County with possession of
methamphetamine, evading arrest, and possession of cocaine. These state
charges arose out of the same December 13, 2018 incident as the instant
federal charge, and, according to the PSR, remain pending. On January 8,
2019, a one-count indictment was filed accompanied by a writ of habeas corpus
ad prosequendum ordering the McLennan County Sheriff to transfer Aparicio
to the United States Marshal on January 15, 2019. 6 Aparicio was sentenced in
federal court on August 28, 2019. Aparicio was then returned to state custody,
but has not yet been sentenced on his state charges.
      At sentencing, defense counsel requested that Aparicio’s federal sentence
“run concurrent with any state sentence to be imposed.” The district court
granted this request, and ordered that the term of 165 months “imposed in this
case shall be served concurrently to any term imposed in McLennan County,
Texas arising out of the same offense.” See U.S.S.G. § 5G1.3(c).
      Later in the same discussion, the district court indicated that it takes
into consideration “the amount of time someone has spent in prison already”
in determining a “fair” sentence. The court then asked counsel whether the
amount of time Aparicio has been in state custody would be “count[ed] against”
the sentence the court was going to impose. The AUSA stated that he believed



      6  A writ of habeas corpus ad prosequendum “merely ‘loans’ the prisoner to federal
authorities.” Dominguez v. Williamson, 251 F.3d 156 (5th Cir. 2001).
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                                  No. 19-50813
Aparicio is “going to get credit for that time.” Defense counsel said he believed
“that’s a call the Bureau of Prisons makes” depending on a designation of
federal custody, and “I’m just not so certain that [receiving credit] actually
happens.”
      The final resolution of the custody credit question consisted of the court’s
quoting the PSR that Aparicio had been in “federal custody since January,”
and opining that the Bureau of Prisons would “start running” the pending
sentence as of January. The court gave the assurance that if Aparicio did not
receive the credit the court would be “very sympathetic” to such a post-
sentencing claim. Defense counsel did not raise any concerns over the court’s
response or seek any further clarification.
      “After a district court sentences a federal offender, the Attorney General,
through the BOP, has the responsibility for administering the sentence.”
United States v. Wilson, 503 U.S. 329, 335 (1992). The computation of a federal
sentence requires the BOP to determine the commencement date of the
sentence and the extent to which the defendant receives credit for time spent
in custody prior to the commencement of his sentence. See 18 U.S.C. § 3585. A
federal sentence “commences on the date the defendant is received in custody
awaiting transportation to, or arrives voluntarily to commence service of
sentence at, the official detention facility at which the sentence is to be served.”
18 U.S.C. § 3585(a). In calculating a term of imprisonment, 18 U.S.C. § 3585(b)
requires that the defendant be given credit “for any time he has spent in official
detention prior to the date the sentence commences.” The statute provides in
relevant part:
            (b) Credit for prior custody – A defendant shall be given
            credit toward the service of a term of imprisonment for any
            time he has spent in official detention prior to the date the
            sentence commences –


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                                  No. 19-50813
                   (1) as a result of the offense for which the sentence was
                   imposed; or

                   (2) as a result of any other charge for which the
                   defendant was arrested after the commission of the
                   offense for which the sentence was imposed;

              that has not been credited against another sentence.

18 U.S.C. § 3585(b); see also In re U.S. Bureau of Prisons, 918 F.3d 431, 438
(5th Cir. 2019).
      “The Attorney General, through the Bureau of Prisons (BOP),
determines what credit . . . will be awarded to prisoners for time spent in
custody prior to the commencement of their federal sentences.” Leal v.
Tombone, 341 F.3d 427, 428 (5th Cir. 2003). Federal law “does not authorize a
district court to compute the credit at sentencing.” Wilson, 503 U.S. at 334.
Instead, “[b]ecause the offender has a right to certain jail-time credit under §
3585(b), and because the district court cannot determine the amount of the
credit at sentencing, the Attorney General has no choice but to make the
determination as an administrative matter when imprisoning the defendant.”
Id. at 335.
      Aparicio has not shown a clear or obvious error. Despite the court’s
colloquy about potential credit for time served, neither the court’s oral
pronouncement of the sentence nor its written judgment impermissibly
attempted to award Aparicio credit for time served or to determine the
commencement date of the sentence. Cf. United States v. Maldonado, 538 F.
App’x 457, 458–459 (5th Cir. 2013). Instead, at most, the record suggests that
the court imposed a non-binding recommendation to the BOP to account for
time. See United States v. Benavides-Hernandez, 548 F. App’x 278, 280 (5th
Cir. 2013).


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                                       No. 19-50813
       Even if the district court erred, Aparicio has not shown that the district
court’s purported error affected his substantial rights. See Sanchez-Hernandez,
931 F.3d at 410–11. Aparicio was sentenced within the Guidelines range and
was not denied relief to which he was entitled. 7 See United States v. Alonzo,
435 F.3d 551, 554 (5th Cir. 2006) (within guideline sentences are
presumptively reasonable). Aparicio’s claim of error is based on his premature
and speculative assertion that he will not receive credit for his detention prior
to the imposition of his federal sentence. Significantly, it is not yet known how
the BOP will calculate Aparicio’s sentence and to what extent he will receive
credit for time served. See Crumedy v. United States, No. 97-41039, 1999 WL
274481, at *1 (5th Cir. Apr. 16, 1999) (per curiam) (The BOP “will not calculate
[a defendant’s] sentence, including any credit for time served, until he reports
for federal custody.”); see also United States v. Cahala, No. 91-30188, 1992 WL
16804, at *2 (9th Cir. Feb. 4, 1992) (per curiam). Further obscuring the issue,
Aparicio has not been sentenced on his state charges.




       7  Aparicio’s argument that the court erred in failing to follow the requirements of
U.S.S.G. § 5G1.3 is meritless. Aparicio argues that U.S.S.G. § 5G1.3 required the district
court to (1) determine whether the time Aparicio spent in custody on the state charge will be
credited to his federal sentence by the Bureau of Prisons; and (2) adjust his federal sentence
downward for any period of imprisonment that he would not be credited by the Bureau of
Prisons. These requirements, however, would result from § 5G1.3(b), which Aparicio concedes
does not apply in this case. Subsection (b) does not apply to Aparicio’s case because there is
no state “term of imprisonment [that] resulted from another offense that is relevant conduct
to the instant offense.” See § 5G1.3(b). As noted above, Aparicio has not yet been sentenced
in state court and, thus, there is no state term of imprisonment. Aparicio’s argument is
misplaced because it conflates the requirements of subsection (b) with subsections (c) and (d).
See United States v. Looney, 606 F. App’x 744, 748 (5th Cir. 2015).
        Additionally—because a state sentence has not yet been imposed—it is unclear
whether the exceptions for receiving “double credit” to both state and federal sentences for
time spent in pre-sentence custody will be relevant to the BOP’s calculation. See, e.g., Willis
v. United States, 438 F.2d 923 (5th Cir. 1971); Kayfez v. Gasele, 993 F.2d 1288 (7th Cir. 1993).
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                                       No. 19-50813
        The BOP, not the district court, is empowered to calculate 18 U.S.C. §
3585(b) credits after the prisoner begins his sentence. 8 Wilson, 503 U.S. at 333.
Further, the BOP decides “where a federal sentence will be served, when it
begins, and, in certain respects, how long it will last.” United States v. Cibrian,
374 F. App’x 524, 529–30 (5th Cir. 2010) (citations omitted). Because the
district court did not exceed its authority and the record does not reflect the
outcome of the state proceedings or the BOP’s computation of Aparicio’s federal
sentence, Aparicio has failed to show that the district court plainly erred. Cf.
United States v. Chatman, No. 19-30529, 2020 WL 3421628 (5th Cir. June 22,
2020)       (per   curiam)   (unpublished).        Moreover,    prisoners     are   afforded
administrative review of the computation of their credits, and may seek
judicial review of these computations after exhausting their administrative
remedies. 9 See, e.g., Wilson, 503 U.S. at 335 (citations omitted); Smith v.
McConnell, 950 F.3d 285, 288 (5th Cir. 2020); United States v. Tindall, 455
F.3d 885, 888 (8th Cir. 2006).
                                             IV.
        For the foregoing reasons, Aparicio’s sentence is AFFIRMED.




        8Pursuant to § 3585(b), “a defendant shall be given credit toward the service of a term
of imprisonment for any time he has spent in official detention prior to the date the sentence
commences . . . that has not been credited against another sentence.” 18 U.S.C. § 3585(b).
       9 The district court stated at sentencing that it would be “very sympathetic” to a post-

sentencing claim depending on the BOP’s custody credit calculation.
                                             11
