United States Court of Appeals

for the Fifth Circuit ____________

No. 22-30643

Summary Calendar

____________

United States of America, 

Plaintiff—Appellee, 

versus

James Alexander, 

Defendant—Appellant. 

______________________________

Appeal from the United States District Court 

for the Eastern District of Louisiana

USDC No. 2:21-CR-71-1 

______________________________

Before King, Haynes, and Graves, Circuit Judges.

Per Curiam:*

James Alexander pleaded guilty to conspiring to distribute and possess 

with the intent to distribute one kilogram or more of heroin, in violation of 

21 U.S.C. § 846, and was sentenced within the guidelines range to 

262 months of imprisonment, followed by a five-year term of supervised 

release. For the first time on appeal, he complains that he was charged with 

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

January 2, 2024

Lyle W. Cayce

Clerk

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a drug conspiracy involving heroin but was convicted for an offense involving 

Fentanyl, which he argues amounted to a constructive amendment of the 

indictment, in violation of his Fifth Amendment rights.

As the Government contends, constructive amendment of the 

indictment is a claim of trial error and thus has no application where, as here, 

the defendant pleaded guilty. See United States v. Phillips, 477 F.3d 215, 222 

(5th Cir. 2007). Although we do not construe counseled briefs liberally, see 

Beasley v. McCotter, 798 F.2d 116, 118 (5th Cir. 1986), Alexander’s argument 

that he was convicted for an offense with which he was not charged 

challenges the sufficiency of the factual basis for his plea. Because he did not 

raise the argument first in the district court, we review for plain error. See 

United States v. Palmer, 456 F.3d 484, 489 (5th Cir. 2006). To establish plain 

error, Alexander must show a forfeited error that is clear or obvious and that 

affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 135 

(2009). If he makes such a showing, this court has the discretion to correct 

the error but should do so only if it seriously affects the fairness, integrity, or 

public reputation of judicial proceedings. See id.

The district court did not clearly or obviously err in accepting the 

factual basis for Alexander’s plea, which established his knowing agreement 

with another conspirator to violate the narcotics laws, his voluntary 

participation in the conspiracy, and the quantity of drugs involved in the 

conspiracy. See United States v. Hildenbrand, 527 F.3d 466, 474-75 (5th Cir. 

2008); see also United States v. Vargas-Ocampo, 747 F.3d 299, 303 (5th Cir. 

2014) (en banc); United States v. Reyes, 300 F.3d 555, 559 (5th Cir. 2002). 

Alexander’s complaint that he pleaded guilty to a conspiracy involving 

heroin, and believed the substance involved to be heroin but later discovered 

that it was Fentanyl, does not affect the validity of the factual basis for his 

plea because drug type is not an element of 21 U.S.C. § 841(a)(1) or of 

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conspiracy to commit a violation of § 841(a)(1).1 United States v. PatinoPrado, 533 F.3d 304, 309-10 (5th Cir. 2008).

Alexander additionally argues that the district court committed 

procedural error in treating the Guidelines as mandatory when denying his 

motion for a downward variance. As with his preceding argument, because 

he did not object in the district court, plain error review applies. See United 

States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009); see also 

United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009).

At sentencing, the district court stated that it had read Alexander’s 

motion for a downward variance, as well as the letters from friends and family 

and his own letter seeking leniency, considered his allocution and the 

testimony of his witnesses, and had considered the Government’s opposition

to the requested variance. It summarized the arguments presented but found 

no reasonable basis to depart from the guidelines range, while specifically 

acknowledging its “great discretion” to craft a reasonable sentence, clearly 

indicating its awareness of its authority to depart from the Guidelines. The 

court further explained that the sentence was justified by the 18 U.S.C. 

§ 3553(a) factors as applied to the facts of Alexander’s case. Consequently, 

Alexander fails to show that the district court clearly or obviously erred in 

treating the Guidelines as mandatory. See United States v. Washington, 480 

F.3d 309, 320 (5th Cir. 2007).

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1 Moreover, even if there was a clear or obvious error, Alexander fails to show that 

his substantial rights were affected. To make such a showing, he must demonstrate 

“a reasonable probability that, but for the error, he would not have entered the plea.” 

United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004); see also United States v. CastroTrevino, 464 F.3d 536, 540-47 (5th Cir. 2006). Alexander has abandoned by failing to brief 

any such argument. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); Beasley, 

798 F.2d at 118.

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Next, Alexander asserts that the sentence imposed is substantively 

unreasonable. This court reviews the substantive reasonableness of the 

sentence under a deferential abuse-of-discretion standard. Gall v. United 

States, 552 U.S. 38, 51 (2007). A discretionary sentence imposed within 

a properly calculated guidelines range is entitled to a rebuttable presumption 

of reasonableness. United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). 

A defendant may rebut the presumption of reasonableness “by showing that 

the sentence does not account for factors that should receive significant 

weight, gives significant weight to irrelevant or improper factors, or 

represents a clear error of judgment in balancing sentencing factors.” United 

States v. Rashad, 687 F.3d 637, 644 (5th Cir. 2012).

Alexander has not rebutted the presumption of reasonableness 

attached to his low-end guidelines sentence. He contends that the district 

court failed to consider and give sufficient weight to the mitigation arguments 

and evidence he presented in his motion for a downward variance and instead 

gave too much weight to the career offender Guideline. However, the record 

establishes that the district court was presented with and specifically 

considered each of Alexander’s mitigation arguments. The court weighed 

those arguments against other relevant sentencing factors, including

Alexander’s extensive criminal history and the need for the sentence 

imposed to provide deterrence and to promote respect for the law. See 

§ 3553(a). Alexander’s appellate argument “amounts to a request that we

reweigh the sentencing factors and substitute our judgment for that of the 

district court, which we will not do.” United States v. Hernandez, 876 F.3d 

161, 167 (5th Cir. 2017).

Finally, Alexander contends that the district court plainly erred in 

treating him as a career offender because his instant conviction for conspiring 

to commit a controlled substance offense is not a “controlled substance 

offense” within the meaning of U.S.S.G. § 4B1.1 and § 4B1.2, as the 

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definition of such offenses does not include inchoate crimes like conspiracies.

He acknowledges that his argument is foreclosed by this court’s decision in 

United States v. Vargas, 74 F.4th 673 (5th Cir. 2023)(en banc), petition for cert. 

filed (U.S. Oct. 23, 2023) (No. 23-5875), but he seeks to preserve it for 

possible further review.

In Vargas, this court held that “inchoate offenses like conspiracy are 

included in the definition of ‘controlled substance offense.’” Vargas, 74 

F.4th at 698. Thus, as Alexander correctly concedes, his argument is 

foreclosed. See id.

The district court’s judgment is AFFIRMED.

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