NOT PRECEDENTIAL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. C rim in al Action No. 1

- 11

- c r - 0 0 230

- 001 ) District Judge: Honorable Yvette Kane

________________ Argued on July 7 , 2015
Before: F UENTES , 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 Appellee2 ________________ OPINION *

________________ RO TH , 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, t he D istrict Court found , by a preponderance of the evidence , that Lopez

- Esmurria trafficked 9kg of cocaine and 320g of heroin. Th e s e finding s raised Lopez

- Esmurria’s Sentencing Guidelin es offense level from 20 to 36. B ased 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

- Esmu rria first argues that his Sixth Amendment rights were violated under
the Supreme Court’s Apprendi 1 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 C ourt and pursuant to I.O.P . 5.7 does not constitute binding precedent.
1 Apprendi v. New Jersey , 530 U.S. 466 (2000).3

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 I n 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 mandat ory maximums or minimums

— not exclusively maximums as Apprendi
held

— triggers the Sixth Amendment inquiry. 5 Lopez

- Esmurria argues that because the
dr ug quantities found by the judge were so vastly different from those found by the jury, he was subject to a greater mandatory m inimum under 28 U.S.C. § 841(b) and the
sentence is invalid under Alleyne . But the District Court sentenced Lopez

- Esmurria
pursu ant 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. “B road sentencing discretion, informed by j udicial 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 mad e. 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) (cit ing Smith , supra ). 7 Alleyne , 133 S. Ct. at 2163.4

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

error. 8 We do no t question the credibility determinations; that is distinctly the province
of the District Court . But t he District C ourt 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 t o support the drug quantities found by the District Court

. The PSR’s drug quantity ca lculation 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 th at it relied on the trial testimony of Jorge San Miguel, Angel Cruz, Jerome Brunson, and Darryl Pierc e to determine the drug quantities

. 10 But neither Cruz nor Pierce ’s testimony contributed to the eventual calculations, most of which came from the testimo ny 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 pac kage 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. 30 4

- 0 6, 31 0

.5

there is an unstated assumption that every time Lopez

- Esmurria came to Santana’s house , Lopez

- Esmurria received both heroin and cocaine, al though 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 imprison ed 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 S an Miguel, Brunson’s timeline was unspecified
between 2009 or 2010. 14 While the indictment in this case is for conduct tha t 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 T he District Court erred by unquestioningly accept ing these calculated drug

12 At oral argument, counsel for the Government was asked where in the record it indicates that Lop ez - 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. 574.6

quantities

. We will therefore affirm the judgment of conviction but v acate 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 ti mes per month .” Gov’t Br. at 10 (citing PSR ¶ 6). T he 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 recor d 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 quantitie s 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.