IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-40399

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

HECTOR CERVANTES-SANCHEZ, also known as Rojo,

Defendant - Appellant

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 7:14-CR-1751-1

Before JONES, SMITH, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Hector Cervantes-Sanchez, federal prisoner # 09687-085, pleaded guilty 

to conspiring to possess, with the intent to distribute, marijuana, in violation 

of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846. He challenges his belowGuidelines sentence of 146 months’ imprisonment, claiming the court: erred 

in calculating his base-offense level, engaged in inappropriate fact-finding 

 

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5th Cir. 

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

April 30, 2018

Lyle W. Cayce

Clerk

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regarding the drug quantity, and committed other procedural errors in 

imposing his sentence.

Although post-Booker, the Sentencing Guidelines are advisory only, the 

district court must avoid significant procedural error, such as improperly 

calculating the Guidelines sentencing range. Gall v. United States, 552 U.S. 

38, 48–51 (2007). If no such procedural error exists, a properly preserved 

objection to an ultimate sentence is reviewed for substantive reasonableness 

under an abuse-of-discretion standard. Id. at 51; United States v. DelgadoMartinez, 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues 

preserved in district court, its application of the Guidelines is reviewed de novo; 

its factual findings for clear error. E.g., United States v. Cisneros-Gutierrez, 

517 F.3d 751, 764 (5th Cir. 2008).

First, Cervantes asserts the court erred in calculating the drug quantity 

used to determine his offense level under Guideline § 2D1.1(c)(1) because it 

included drugs that were not alleged in his indictment, and counted as relevant 

conduct drug shipments he referenced in unverified statements to a 

confidential source. He contends the court’s determination that his offense 

involved 174,176.00 kilograms of marijuana, which was primarily based on 

those statements, was speculative. 

The presentence investigation report’s (PSR) factual recitation was 

based on investigative material and interviews with an agent from the Drug 

Enforcement Administration. It had sufficient indicia of reliability. Although 

Cervantes objected at sentencing to the drug-quantity calculation, he 

presented no testimony or other rebuttal evidence to show the information 

contained in the PSR was materially untrue, inaccurate, or unreliable. 

Accordingly, the court was free to adopt the PSR’s findings without further 

inquiry or explanation. E.g., United States v. Gomez-Alvarez, 781 F.3d 787, 

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796 (5th Cir. 2015). Moreover, the court did not clearly err in determining that 

the shipments referenced by Cervantes constituted relevant conduct, or in 

relying on Cervantes’ statements to make a reasonable estimate of the 

quantity of drugs involved in the offense. See U.S.S.G. §§ 1B1.3(a), 2D1.1(c)(1), 

2D1.1 cmt. n.5.

Next, Cervantes contends he was sentenced in violation of Apprendi v. 

New Jersey, 530 U.S. 466 (2000), because, although he was charged with, and 

convicted of, a drug offense involving 100 kilograms or more of marijuana, 

judicially-found facts regarding drug quantity caused him to be held 

accountable for a much higher drug quantity for purposes of calculating his

advisory Guidelines sentencing range. Because Cervantes raises this point for 

the first time on appeal, review is only for plain error. E.g., United States v. 

Broussard, 669 F.3d 537, 546 (5th Cir. 2012).

Under the plain-error standard, Cervantes must show a forfeited plain 

error (a clear or obvious error, rather than one subject to reasonable dispute) 

that affected his substantial rights. E.g., Puckett v. United States, 556 U.S. 

129, 135 (2009). If he makes that showing, we have the discretion to correct 

such reversible plain error, but generally should do so only if it “seriously 

affect[s] the fairness, integrity or public reputation of judicial proceedings”. Id. 

Under Apprendi and its progeny, any fact that increases the statutory 

minimum or “increases a potential criminal penalty beyond the [statutory] 

maximum” sentence must be alleged in the indictment and either admitted by 

defendant or found by a jury beyond a reasonable doubt. United States v. 

Hinjosa, 749 F.3d 407, 412 (5th Cir. 2014); e.g., Alleyne v. United States, 570 

U.S. 99, 107–08 (2013); United States v. Booker, 543 U.S. 220, 232, 245 (2005). 

However, nothing in those decisions states that the fact-finding on relevant 

conduct, to the extent it increases the advisory sentencing range under the 

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Guidelines, must be made by jurors. Hinojosa, 749 F.3d at 412–13. Moreover, 

Cervantes’ 146-month sentence was within the statutory minimum and 

maximum penalty range for the conduct admitted in the guilty plea. 

Accordingly, Cervantes has not shown that the court committed the requisite 

clear or obvious error. See Puckett, 556 U.S. at 135. 

Also for the first time on appeal, Cervantes claims the court procedurally 

erred at sentencing by failing to: (1) identify the applicable Guideline offense 

level and sentencing range; (2) address on the record what, if any, departure it 

would take with respect to his sentence; (3) address the 18 U.S.C. § 3553(a) 

sentencing factors; and (4) formally pronounce his sentence. The sentencing 

transcript belies these contentions. In short, once again, Cervantes has not 

shown the court committed the requisite clear or obvious error. See id.

AFFIRMED. 

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