### 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 below

G uidelines sentence of 146 month s’ imprisonment, claiming the court: erred in calculating his base

- offense level, engaged in inappropriate fact

- finding

* Pursuant to 5 th Cir. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 th Cir. R. 47.5.4

. United States Court of Appeals Fifth Circuit 

### FILED April 30, 2018 Lyle W. Cayce Clerk Case: 17-40399 Document: 00514450745 Page: 1 Date Filed: 04/30/2018No. 17

- 40399

2 regarding the drug quantity, and committed other procedural errors in imposing his sentence. Although post

- Booker , the Sentencing Guid elines 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 preserv ed objection to an ultimate sentence is reviewed for substantive reasonableness under an abuse

- of

- discretion standard. Id. at 51; United States v. Delgado

Martinez , 564 F.3d 750, 751

– 53 (5 th 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 (5 th Cir. 2008). First, Cerva ntes 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

. T he presentence investigation r eport ’s ( PSR ) factual recitation was based on investigative material and interviews with an agent from the Drug Enforcement A dministration . It had sufficient indicia of reliability

. Although Cervantes objecte d at sentencing to the drug

- quantity calculation, he presented no testimony or other rebuttal evidence t o 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. , Uni ted States v. Gomez

- Alvarez , 781 F.3d 787, Case: 17-40399 Document: 00514450745 Page: 2 Date Filed: 04/30/2018No. 17

- 40399

3 796 (5th Cir. 2015)

. Moreover, t he court did not clearly err in determining that the shipments referenced by C ervantes constituted relevant con duct , or in relying on Cervantes’ statements to make a reasonable est imat e 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 o r 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 G uidelines 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 (5 th 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 p rogeny, any fact that increases the statutory minimum or “increases a potential criminal penal ty 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 (5 th 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 th e fact

- finding on relevant conduct, to the extent it increases the advisory sentencing range under the Case: 17-40399 Document: 00514450745 Page: 3 Date Filed: 04/30/2018No. 17

- 40399

4 Guidelines, must be ma de 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 G uideline 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 f actors ; 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. Case: 17-40399 Document: 00514450745 Page: 4 Date Filed: 04/30/2018