Case: 15-41431       Document: 00513755349         Page: 1     Date Filed: 11/10/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit

                                     No. 15-41431                            FILED
                                   Summary Calendar                  November 10, 2016
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

RICARDO GONZALEZ,

                                                  Defendant - Appellant


                   Appeals from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:15-CR-217-7


Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Ricardo Gonzalez appeals his statutory-minimum, 120-month sentence
for conspiracy to possess, with intent to distribute, more than 1,000 kilograms
of marijuana, in violation of 21 U.S.C. § 841(b)(1)(A)(vii). Having pleaded
guilty to that offense, he contends his sentence is procedurally unreasonable
because the district court incorrectly calculated the advisory Sentencing
Guidelines range and failed to make a finding that the amount of marijuana


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
    Case: 15-41431     Document: 00513755349       Page: 2   Date Filed: 11/10/2016


                                   No. 15-41431

attributable to him sufficed to subject him to the statutory minimum. To that
end, he contends there is insufficient evidence to support such a finding.
(Gonzalez additionally asserts he was not provided the presentence
investigation report (PSR) at least 35 days before sentencing, and his counsel
was ineffective for failing to review the PSR with him and failing to object to
the sentence-calculation errors; but, he waived review of those issues by failing
to brief them. See United States v. Reagan, 

, 254–55 (5th Cir.
2010).)
      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the Guideline-sentencing range for use in deciding on
the sentence to impose. Gall v. United States, 

, 48–51 (2007). In
that respect, for issues preserved in district court, its application of the
Guidelines is reviewed de novo; its factual findings, only for clear error. E.g.,
United States v. Cisneros-Gutierrez, 

, 764 (5th Cir. 2008).
      At sentencing, however, and as Gonzalez concedes, he objected neither
to the PSR’s Guidelines calculation nor to any procedural unreasonableness.
Because he did not raise these issues in district court, review is only for plain
error. E.g., United States v. Broussard, 

, 546 (5th Cir. 2012).
Under that standard, Gonzalez must show a forfeited plain (clear or obvious)
error that affected his substantial rights. Puckett v. United States, 

, 135 (2009). If he does so, we have the discretion to correct the reversible
plain error, but should do so only if it “seriously affect[s] the fairness, integrity
or public reputation of judicial proceedings”. 

States v.
Olano, 

, 736 (1993)). There is no reversible plain error.




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                                  No. 15-41431

      Gonzalez first asserts the court committed significant procedural error
by failing to consider the “correct” guidelines range of 70 to 87 months, based
on an offense level of 27 and criminal-history category of I, before imposing the
statutory minimum of 120 months.         He also contends the court erred by
imposing that sentence without finding the amount of marijuana attributable
to him met the 1,000-kilogram threshold for it. See United States v. Haines,

, 740 (5th Cir. 2015); § 841(b)(1)(A)(vii). In that regard, he asserts
there is insufficient evidence to support finding he was accountable for at least
1,000 kilograms of marijuana.
      Gonzalez’ contention that the court failed to make a factual finding about
the attributable drug quantity is flawed. Any fact that subjects defendant to a
mandatory minimum sentence must be “submitted to the jury and found
beyond a reasonable doubt” or admitted by the defendant. Alleyne v. United
States, 

, 2155 (2013) (citing Apprendi v. New Jersey, 

, 483 n.10 (2000)) (submitted to jury); see Blakely v. Washington, 

, 303 (2004) (admitted by defendant). To the extent the court predicated
its imposition of the mandatory-minimum sentence on the PSR’s attributable
quantity finding, Gonzalez does not assert any violation of Alleyne. He waived
any such claim on appeal. See 

–55.
      Gonzalez’ position fails, regardless of how it is characterized.       The
statutory minimum becomes the Guidelines sentence when it exceeds the
Guidelines range. U.S.S.G. § 5G1.1(b); see United States v. Carter, 

, 576–77 (5th Cir. 2010). Further, Gonzalez did not object to the PSR’s
determination of the amount attributable to him for purposes of the statutory
minimum. Consistent with Gonzalez’ guilty plea, the PSR noted that, in a
presentencing interview, he “admitted to conspiring with others to possess
with intent to distribute more than 1,000 kilograms of marihuana”. As stated,



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                                  No. 15-41431

on these facts, the imposition of the statutory minimum sentence does not
constitute reversible plain error. See 

; cf. United States
v. Ramirez, 

, 204–05 (5th Cir. 2009); United States v. Rodriguez,

, 362–63 (5th Cir. 2010).
      AFFIRMED.




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