Case: 20-50064     Document: 00515593914         Page: 1     Date Filed: 10/07/2020




              United States Court of Appeals
                   for the Fifth Circuit                             United States Court of Appeals
                                                                              Fifth Circuit

                                                                            FILED
                                                                      October 7, 2020
                                  No. 20-50064                         Lyle W. Cayce
                                Summary Calendar                            Clerk


   United States of America,

                                                             Plaintiff—Appellee,

                                       versus

   Sergio Rios Baltazar,

                                                         Defendant—Appellant.


                  Appeal from the United States District Court
                       for the Western District of Texas
                           USDC No. 7:19-CR-167-1


   Before Wiener, Southwick, and Duncan, Circuit Judges.
   Per Curiam:*
          Sergio Rios Baltazar appeals his 327-month sentence for possession of
   five or more grams of actual methamphetamine with intent to distribute. He
   challenges the district court’s finding based on the presentence report (PSR)
   that the methamphetamine seized from him and admitted by him during a


          *
            Pursuant to 5th Circuit Rule 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   opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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                                     No. 20-50064


   post-arrest interview, totaling 31.06 kilograms, was actual methamphetamine
   rather than a mixture containing methamphetamine. The finding increased
   his base offense level from 36 to 38 under U.S.S.G. § 2D1.1(c) and enhanced
   the guidelines maximum prison term from 262 months to 327 months.
          Because Rios Baltazar did not object on this ground in the district
   court, review is for plain error. See Rosales-Mireles v. United States, 

, 1904 (2018). He must show an error that is clear or obvious and that
   affects his substantial rights. See

those three requirements,
   we should exercise our discretion to correct the error if it “seriously affects
   the fairness, integrity or public reputation of judicial proceedings.”

(internal quotation marks and citation omitted).
          There was no information in the PSR to support the finding. It did not
   describe any admission by Rios Baltazar that the relevant amounts were
   actual methamphetamine, discuss the substance’s purity or concentration, or
   include laboratory results, which were pending. See U.S.S.G. § 2D1.1(c),
   comment. (n.(B)); United States v. Koss, 

, 467-68 (5th Cir. 2016);
   United States v. Dinh, 

, 313 (5th Cir. 2019).
          Nor was there support for the finding in the factual basis for Rios
   Baltazar’s guilty plea. It referred to “20.1 grams of methamphetamine”
   found on his person and to his post-arrest statements that he was selling
   “methamphetamine” or “meth.” It did not include an admission of the
   purity or concentration of the methamphetamine. See § 2D1.1(c), comment.
   (n.(B)); 

.
          Finally, Rios Baltazar’s guilty plea to possession with intent to
   distribute five or more grams of actual methamphetamine did not provide an
   adequate evidentiary basis for the PSR’s assertion that the total drug quantity
   was actual methamphetamine. The type of controlled substance is not an
   element of the offense under § 841(a), United States v. Patino-Prado, 

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                                    No. 20-50064


   304, 309 (5th Cir. 2008), and Rios Baltazar was not admonished of the
   meaning or significance of the term “actual” before he entered the plea.
          For all of these reasons, the PSR’s factual assertion that the drug
   quantity of 31.06 kilograms was actual methamphetamine did not have an
   adequate evidentiary basis with sufficient indicia of reliability to support its
   probable accuracy. See United States v. Harris, 

, 230 & n.2 (5th
   Cir. 2012). The district court’s reliance on it at sentencing was an error that
   was clear or obvious. See United States v. Zuniga, 

, 591 (5th Cir.
   2013); see also Puckett v. United States, 

, 135 (2009). The error
   resulted in the application of an erroneously high guidelines range and
   affected Rios Baltazar’s substantial rights. See Molina-Martinez v. United
   States, 

, 1345-47 (2016). We will exercise our discretion to
   correct it. See Rosales-Mireles, 138 S. Ct at 1907-08.
          Rios Baltazar’s sentence is VACATED, and the case is
   REMANDED for resentencing.




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