UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

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

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BRISCOE , EBEL , and BACHARACH , Circuit Judges.

________________ _________________ In this direct criminal appeal, De fendant-Appellant Chri stian Sangiovanni challenges his conviction for being a prev iously convicted felon unlawfully in possession of a firearm, and the 120-month prison sentence the district court imposed for that offense. Having jurisdicti on under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we AFFIRM. I. BACKGROUND Viewed in the light most fa vorable to the jury’s verdic t, 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* This order and judgment is not binding precedent, excep t under the doctrines of law of the case, res judicata, and collateral estoppel. It ma y be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### September 9, 2016
Elisabeth A. Shumaker Clerk of Court2 evidence presented at trial i ndicated 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 roman tic feelings” for S.V. (Aple. Br. 5), got into S.V.’s van, beca me angry, pulled a gun and held S.V. at gunpoint; at one point he cocked the gun a nd told S.V. “I’ll blast you. . . . I’m not afraid to blast you and me right here. I’m not scared to di e. 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 Sangi ovanni pointed at her, a nine-millimeter Smith and Wesson that belonged to Da llas Green, Sangiovanni’s housemate and S.V.’s former boyfriend. Eventually Sangiovanni calmed down a nd 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 quotati on marks omitted).) Undeterred, S.V. went home and told her mother, who called the police. Although S.V. told police offi cers that day that Sangiovanni had threatened her, she did not mention that Sangiovan ni 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 threateni ng email. At some later point in time, Sangiovanni emailed S.V. two photographs of him pointing a gun to his own head.3 Eight days after the assa ult, police execute d 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-m illimeter gun that Sa ngiovanni had used to threaten S.V. and ammunition. Later, Sangiovanni called S. V. from jail. During the call, which was recorded, Sangiovanni admi tted to threatening S.V. with a gun. A grand jury charged Sangiovanni with being a previously convicted felon unlawfully in possession of a firearm, th e nine-millimeter Smith and Wesson, in violation of 18 U.S.C. § 922( g)(1). At trial, Sangiova nni 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 calcu lated Sangiovanni’s advisory sentencing range to be between 168 and 210 months in prison. But b ecause, by statute, Sangiovanni’s offense was punishable by no more than ten years in prison, see 18 U.S.C. § 924(a)(2), ten year s (120 months) became Sangi ovanni’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 ema il 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 ove r? U can t even prove I4 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 outwe ighed its probative value. In rejecting Sangiovanni’s argument, the district court reasoned that his sending S.V. a threatening email within hours of the pur ported assault was probative because it made it more probable that Sangiovanni had done somethi ng 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 unfai r, that is it would not cause jurors to reach a verdict based on emotion rather th an reason, see United States v. Rodella, 804 F.3d 1317, 1334 (10th Cir. 2015), petition for cert. f iled, 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., depi cting 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 ema il, the district court directed th e Government to redact the line about S.V. being unable to prove Sangiovann i did heroin. At Sangiovanni’s request, however, the line was ultima tely not redacted.5 crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the pers on acted in accordance with the character,” Fed. R. Evid. 404(b)(1), it “may be admiss ible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of acci dent,” Rule 404(b)(2). Evidence is admissible under Rule 404(b)(2) if it satisfies “t he four-part test set out in” Huddleston v. United Stat es, 485 U.S. 681, 691- 92 (1988): (1) the evidence was offered for a proper purpose unde r Rule 404(b); (2) the evidence was relevant under Ru le 401; (3) the probative value of the evidence was not substantially out weighed by its potential for unfair prejudice under Rule 403; and (4) the district court, upon request, instructed the jury pur suant to Rule 105 to consider the evidence only for the purpose for which it was admitted. Rodella, 804 F.3d at 1333 (alte rations, 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 fo r abuse of discretion). First, the Government offered thes e photos for a proper purpose under Rule 404(b)(2), to prove that Sangiovanni kne w about the gun and had an opportunity to access it. Second, the photos were relevant for that pu rpose 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 criti cal issue in th e case. See Fed. R. Evid. 401. The relevance of thos e photos was further enhanced because at6 least one of the photos was ta ken close in time to the Ap ril 25 assault. See United States v. McGlothin, 705 F.3d 1254, 1265 (10t h Cir. 2013). 2 Third, the district court did not abuse its discretion in determining that the photos’ probative value was not substantially outweighe d 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 ju ry to infer criminal propensity.” United States v. Moran, 503 F. 3d 1135, 1145 (10th Cir. 2007) (internal quotation marks omitted). “Evidence is unfai rly prejudicial only if it ma kes a conviction more likely because it provokes an emoti onal response in the jury or otherwise tends to affect adversely the jury’s attitude toward the de fendant 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 mist ake 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 tr ial. But Sangiovanni also di d not stipulate that he knew about and had access to the firearm. And th e Government had the burden at trial to prove beyond a reasonable doubt that Sa ngiovanni knowingly possessed a Smith and Wesson nine-millimeter gun on April 25, 201 0. See McGlothin, 705 F.3d at 1263 n.12; see also United States v. Samps on, 980 F.2d 883, 888 (3d Cir. 1992) (“The parameters of Rule 404(b) are not set by the defense’s theory of th e case; they are set by the material issues and facts the governme nt must prove to ob tain a conviction.”).7 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 comm itted the act charge d in this case. (I R. 424 (Instruction 8); see also V R. 398-99).) Sangiovanni did not object to this instru ction in the district court or in his opening brief, at least in re gards to the admission of the phot os under Rule 404(b)(2). Instead, it was not until his repl y 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 in structions against plain-erro r review. See McGlothin, 705 F.3d at 1267 & n.19. C. The Government did not constr uctively amend the indictment Sangiovanni next argues that the G overnment constructively amended the indictment. The parties agree that, because he did not raise this issue in the district court, we apply plain-erro r review, considering whethe r (1) there was error that (2) was plain, (3) affected substantial rights and (4) seri ously 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 othe rwise, because the Government did not constructively amend the indi ctment. 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 indictment8 charged Sangiovanni with unlawfully posse ssing a firearm “on or about April 25, 2010.” (I R. 1.) Sangiovanni argues that the Government c onstructively amended that charge to permit the ju ry, instead, to convict him of possessing, on other dates, the firearms depicted in the phot os Sangiovanni sent S.V. Sangiovanni contends that the Gove rnment constructively amended the indictment in this manner b ecause (1) the district cour t admitted the photos into evidence, (2) the Government, during its cl osing argument, argue d that the photos corroborated S.V.’s testimony that Sangiova nni threatened her with Dallas Green’s gun on April 25, 2010, at the convenience stor e, as well as showing that Sangiovanni was able to access the gun and exercise co ntrol and dominion over it, and (3) the district court did not adequate ly instruct jurors to limi t their consideration of the photos for a specific Rule 404(b) purpose. Sangiovanni’s constructiv e-amendment argument is unavailing because the jury instructions made clear to jurors that the grand ju ry 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 co mmitted the crime reasonably near April 25, 2010” (Id. 431 (Instruction 15).) The in structions further informed jurors that “Mr. Sangiovanni is not on trial for any act, c onduct, or crime not charged in the indictment.” (Id. 432 (Instruction 16).)9 D. The district court did not err in enha ncing Sangiovanni’s offense level by four based on facts found by the senten cing court (and not a jury) by a preponderance of the evidence (and not beyon d a reasonable doubt) In calculating Sangiovanni’s advisory sentencing range, the sentencing court enhanced Sangiovanni’s offense level by f our after finding, by a preponderance of the evidence, that Sangiova nni used or possessed a fi rearm 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 threat ening to kill her. Sangiovanni argues that a jury had to make that finding beyond a reasonabl e doubt. The Fifth and Sixth Amendments require a jury to find beyond a reasonable doubt any fact (other than the fact of a pr ior conviction) that in creases the statutory maximum or mandatory minimum sentence th at 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 a pply to facts, like the one at issue here, that a sentencing court finds in order to calculate a sentence wi thin the statutorily prescribed range. See United States v. Cassius, 777 F.3d 1093, 1094, 1097, 1099 n.4 (10th Cir. 2015), cert. de nied, 135 S. Ct. 2909 (2015) . Sangiovanni acknowledges that Supreme Court and Tenth Circuit case law forecloses his ar gument, but he makes it on appeal “in order to preserve the issue for possible further a ppeal.” (Aplt. Br. 37.) For the first time on appeal, Sangiova nni further argues that there was insufficient reliable evidence to support the sentencing court’s finding that he committed an aggravated as sault because that finding wa s based on S.V.’s testimony,10 and her testimony was suspect in light of evid ence presented at trial that S.V. was an illicit drug user and a pathologi cal liar. Reviewing for plai n 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 f act for the sentencing court, se e United States v. VirgenChavarin, 350 F.3d 1122, 1134 (10th Cir. 2003), and “fac tual disputes regarding sentencing not brought to the attention of the district court do not ri se to the level of plain error,” Howard, 784 F.3d at 749 (i nternal quotation marks omitted). E. Sangiovanni’s 120-month sentence is not substantively unreasonable Applying the sentencing guidelines, the di strict court calcula ted Sangiovanni’s offense level to be thirty a nd his criminal history categor y 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 1 20 months, see U.S.S.G. § 5G1.1(a), and that is the se ntence 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 presumpti on. See United States v. Harry, 816 F.3d 1268, 1284 (10t h Cir. 2016).11 III. CONCLUSION For the foregoing reasons, we AFFIRM Sangiovanni’s conviction and 120- month sentence

Entered for the Court

David M. Ebel Circuit Judge