United States v. Andrew
| Decision Date | 22 November 2022 |
| Docket Number | 22-11612 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. VERAN ANDREW, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
DO NOT PUBLISH
Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 0:21-cr-60223-RAR-1 Before ROSENBAUM, JILL PRYOR, and BRASHER, Circuit Judges.
Veran Andrew appeals his sentence of 87 months' imprisonment which is comprised of consecutive sentences of 27 months' imprisonment for possession with intent to distribute a controlled substance, 21 U.S.C. § 841(a)(1), and 60 months' imprisonment for possessing a firearm during and in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A). Specifically, Andrew challenges the calculation of his 27-month term using Note A to the Drug Quantity Table U.S.S.G. § 2D1.1(c). Note A provides that "the weight of a controlled substance . . . refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance." U.S.S.G. § 2D1.1(c), Note A.
Because Andrew possessed 29.60 grams of "heroin and fentanyl," the district court applied Note A and calculated the converted drug weight for the 29.60 grams as if it were entirely fentanyl. Accordingly, Andrew's total offense level was 17, which resuited in a 27-33-month guideline range. If the district court had treated the 29.60 grams as entirely heroin, Andrew's total offense level would have been 13 with a guideline range of 15-21 months.
Andrew argues that the district court should have treated the 29.60 grams of drugs as being entirely heroin for two reasons. First, he contends that the government did not prove by a preponderance of the evidence that he possessed a mixture of heroin and fentanyl. Second, he asserts that the district court's application of Note A is absurd and unjust because it allows a defendant who possessed trace amounts of a substance to be sentenced as if he possessed a large amount of it. After careful review, we disagree and affirm.
We start with Andrew's argument that the government was required to prove at sentencing that he possessed a mixture of heroin and fentanyl. Andrew notes that he pleaded guilty to possession with intent to distribute heroin. But the Presentence Investigation Report, which the district court adopted, stated that he possessed "heroin and fentanyl [with] a net weight of 29.60 grams."
Andrew suggests that this statement in the report is ambiguous as to whether the heroin and fentanyl were mixed and, therefore, is insufficient to justify the district court's finding that he possessed a 29.60-gram mixture of heroin and fentanyl. We disagree. Even assuming there is some ambiguity in the report's use of the term "heroin and fentanyl," that ambiguity is clarified by two other parts of the report. First, Andrew also possessed cocaine, which the report noted separately "had a net of weight of 1.44 grams." If the heroin and fentanyl were not a mixture, the report would have separated their weights just as it did for cocaine. Second, the report calculated the converted drug weight as entirely fentanyl under Note A, which would apply only if the drugs were mixed. Had the drugs not been mixed, all agree Note A would not apply. In context, therefore, it is clear that the 29.60 grams of "heroin and fentanyl" referenced in the report was a mixture.
Because Andrew did not object to the report's factual assertion that the heroin and fentanyl were a mixture, the government did not have to prove this fact. Although Andrew disputed the calculation of the converted drug weight as entirely fentanyl when he objected to the PSI, he did not dispute that the heroin and fentanyl were a mixture. Rather, Andrew argued that the district court could not use the converted drug weight for fentanyl because the government did not prove which kind of fentanyl Andrew possessed. At sentencing, the district court summarized Andrew's objection as arguing that "we cannot discern the level of fentanyl that is mixed up with [the heroin]." Andrew clarified that his objection was that the government did not prove what kind of fentanyl he possessed and how much he possessed. Andrew further argued that someone with a mixture that contains a small amount of fentanyl should not be punished the same as someone who possesses pure fentanyl.
On appeal, Andrew no longer pursues his argument that the government needed to prove the kind or amount of fentanyl. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681-82 (11th Cir. 2014). And his failure to object to the facts in the presentence report precludes him from challenging them now or arguing that the government needed to prove them by a preponderance of the evidence. Absent objections, a district court may make findings of fact based on statements in the presentence report. United States v. McCloud, 818 F.3d 591, 595 (11th Cir. 2016). Unless a defendant disputes a fact in the report, the government does not have to prove it by a preponderance of the evidence at sentencing. United States v. Bennett, 472 F.3d 825, 832 (11th Cir. 2006). "It is the law of this circuit that a failure to object to allegations of fact in a PSI admits those facts for sentencing purposes." United States v. Wade, 458 F.3d 1273, 1277 (11th Cir. 2006). "It is also established law that the failure to object to a district court's factual findings precludes the argument that there was error in them." Id.
Moving to Andrew's...
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