                                                             NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                             ________________

                                   No. 14-4166
                                ________________

                         UNITED STATES OF AMERICA

                                           v.

                          FREDDIE LOPEZ-ESMURRIA,
                                               Appellant
                              ________________

                    Appeal from the United States District Court
                      for the Middle District of Pennsylvania
                   (D.C. Criminal Action No. 1-11-cr-00230-001)
                       District Judge: Honorable Yvette Kane
                                 ________________

                              Argued on July 7, 2015

              Before: FUENTES, SLOVITER and ROTH, Circuit Judges
                         (Opinion filed: October 27, 2015)

Samuel Rivera, Esquire   (Argued)
Rivera Law Firm
P.O. Box 62051
Harrisburg, PA 17106

                   Counsel for Appellant

Daryl F. Bloom, Esquire (Argued)
Office of United States Attorney
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108

                   Counsel for Appellee
                                    ________________

                                        OPINION*
                                    ________________

ROTH, Circuit Judge

         Freddie Lopez-Esmurria was convicted of cocaine and heroin distribution under

21 U.S.C. § 841(a)(1) and related conspiracies under 21 U.S.C. § 846. The jury was

given a special verdict sheet with ranges of drug quantities and found that Lopez-

Esmurria trafficked less than 500g of cocaine and less than 100g of heroin. With respect

to cocaine, the verdict form also presented options of weights between 500g and 5kg and

greater than 5kg. With respect to heroin, the verdict form also presented options of

weights between 100g and 1kg and greater than 1kg. The jury declined to choose those

options. At sentencing, the District Court found, by a preponderance of the evidence, that

Lopez-Esmurria trafficked 9kg of cocaine and 320g of heroin. These findings raised

Lopez-Esmurria’s Sentencing Guidelines offense level from 20 to 36. Based on a

Category II Criminal History, Lopez-Esmurria’s Guidelines Sentence range increased

from 36–47 months to 210–262 months. The District Court sentenced him to 210

months. Lopez-Esmurria appealed.

         Lopez-Esmurria first argues that his Sixth Amendment rights were violated under

the Supreme Court’s Apprendi1 line of cases because the additional drug quantities at

sentencing constituted an element of the crime that must be found by a jury. Under the

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
    Apprendi v. New Jersey, 530 U.S. 466 (2000).
                                             2
Apprendi line of cases, facts that change the mandatory punishment a defendant is subject

to—“elements” of a crime—must be found by a jury beyond a reasonable doubt.2 In

2007, we held in United States v. Grier that because Sentencing Guidelines are advisory, 3

Apprendi does not apply to facts relevant to enhancements.4 In 2013, the Supreme Court

decided Alleyne v. United States, explaining that a factual finding that raises either the

applicable mandatory maximums or minimums—not exclusively maximums as Apprendi

held—triggers the Sixth Amendment inquiry.5 Lopez-Esmurria argues that because the

drug quantities found by the judge were so vastly different from those found by the jury,

he was subject to a greater mandatory minimum under 28 U.S.C. § 841(b) and the

sentence is invalid under Alleyne. But the District Court sentenced Lopez-Esmurria

pursuant to the Guidelines, not to a mandatory minimum, and as we held last year,

Alleyne did not upset our holding in Grier.6 We reiterate now that drug quantities are

sentencing factors, not elements of the crime. “Broad sentencing discretion, informed by

judicial factfinding, does not violate the Sixth Amendment.”7 Lopez-Esmurria has no

claim under Apprendi or Alleyne.

       Lopez-Esmurria also contends that there was not enough reliable evidence for the

District Court to make the drug quantity findings it made. Here he fares better. We

2
  See, e.g., Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013).
3
  See United States v. Booker, 543 U.S. 220, 259 (2005).
4
  475 F.3d 556, 565-66 (3d Cir. 2007) (en banc).
5
  133 S. Ct. at 2155.
6
  United States v. Smith, 751 F.3d 107, 117 (3d Cir. 2014) (“The Supreme Court’s recent
decision in [Alleyne] has not changed the field of play.”); see also United States v.
Freeman, 763 F.3d 322, 335-36 (3d Cir. 2014) (citing Smith, supra).
7
  Alleyne, 133 S. Ct. at 2163.

                                              3
review the factual determinations that contribute to selecting a Guidelines range for clear

error.8 We do not question the credibility determinations; that is distinctly the province

of the District Court. But the District Court found precisely the drug quantities suggested

to it by the Presentence Investigation Report, and even crediting every witness, we cannot

find evidence in the record to support the drug quantities found by the District Court.

       The PSR’s drug quantity calculation relied on twice-monthly drug buys of

minimum 250g cocaine and 10g heroin, for sixteen months, with an additional two

isolated kilogram purchases of cocaine added in, for a total of 9kg of cocaine and 320g of

heroin.9 The District Court stated that it relied on the trial testimony of Jorge San

Miguel, Angel Cruz, Jerome Brunson, and Darryl Pierce to determine the drug

quantities.10 But neither Cruz nor Pierce’s testimony contributed to the eventual

calculations, most of which came from the testimony of Zenaida Arroyo, whom the court

did not mention.

       Arroyo testified that Lopez-Esmurria came to Fremo Santana’s house “a couple

times a month” to pick up drugs, the smallest cocaine package she ever saw Santana use

was 250g, and the smallest heroin package was one “finger” (10g).11 The calculations

base both the frequency of pickups and minimum purchase on Arroyo’s testimony. But




8
  United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009).
9
  J.A. 465-66.
10
   J.A. 561.
11
   J.A. 304-06, 310.
                                              4
there is an unstated assumption that every time Lopez-Esmurria came to Santana’s house,

Lopez-Esmurria received both heroin and cocaine, although no witness testified to that.12

       The information about the two individual kilograms of cocaine came from the

testimony of San Miguel and Brunson. San Miguel testified that at some undetermined

time between 2009 and when he was imprisoned in April 2010, he saw Lopez-Esmurria

purchasing a kilogram of cocaine from Fremo Santana.13 Brunson similarly testified to

seeing Lopez-Esmurria receive what appeared to be a kilogram of cocaine, but he insisted

that he did not know for certain. Like San Miguel, Brunson’s timeline was unspecified

between 2009 or 2010.14 While the indictment in this case is for conduct that postdated

March 2010, the PSR and the Government included—and the District Court accepted—

both of these purchases in the calculation uncritically.

       Though the quantities were described as “very very conservative” estimates,15 they

are not.16 The District Court erred by unquestioningly accepting these calculated drug




12
   At oral argument, counsel for the Government was asked where in the record it
indicates that Lopez-Esmurria received both drugs each time he visited Santana, and he
responded that he “can’t specifically point to the record in that regard.” Oral Arg. at
20:20, available at http://www2.ca3.uscourts.gov/oralargument/audio/14-
4166USAv.LopezEsmurria.mp3. Counsel further stated unspecifically that the
assumption was based on “at least several witnesses that testified as to drug weight,” id.
at 21:19, and eventually admitted that he “believe[s] there’s no specific testimony that he
was absolutely getting cocaine and heroin every single time.” Id. at 22:41.
13
   J.A. 167, 463.
14
   J.A. 283.
15
   J.A. 574.
                                              5
quantities. We will therefore affirm the judgment of conviction but vacate the judgment

of sentence and remand this case to the District Court for recalculation of the appropriate

Guidelines Range on the record actually before it and resentencing.17




16
   The Government separately asserts, with no basis in fact, that Lopez-Esmurria “was
receiving . . . up to 1/4 kilogram quantities of heroin approximately two times per
month.” Gov’t Br. at 10 (citing PSR ¶ 6). The PSR citation does not point to any actual
evidence to support that statement, and Lopez-Esmurria objected to the drug quantities in
the PSR. An independent review reveals no place in the entire record that even mentions
a single instance of a quarter-kilogram quantity of heroin. While this assertion did not
factor into the ultimate calculations, it demonstrated the carelessness with which both the
PSR and the Government’s brief treated drug quantities that led to extra years’
imprisonment.
17
   We have considered the remainder of Lopez-Esmurria’s arguments, that the District
Court erroneously applied the leadership role enhancement and that the District Court
abused its discretion in admitting testimony that predated the time frame in the
Indictment, and find them without merit.
                                             6
