USA v. Christopher Lee

Filing

UNPUBLISHED OPINION FILED. [16-11554 Affirmed] Judge: RHB, Judge: ECP, Judge: PRO. Mandate pull date is 08/24/2017 for Appellant Christopher Lee [16-11554]

Case: 16-11554

Document: 00514101917

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Date Filed: 08/03/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-11554
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
August 3, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
CHRISTOPHER LEE,

Defendant - Appellant
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 4:16-CR-122-15
Before BARKSDALE, PRADO, and OWEN, Circuit Judges.
PER CURIAM: *
Christopher Lee pleaded guilty to conspiring to possess, with intent to
distribute, 50 grams or more of a mixture and substance containing a
detectable amount of methamphetamine, in violation of 21 U.S.C. §§ 846;
841(a)(1), (b)(1)(B). He was sentenced, following a downward departure, to 240
months’ imprisonment, below the advisory Sentencing Guidelines range of 360
to 480 months, to be followed by three years’ supervised release.

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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

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Lee presents two issues. He asserts errors in the colloquy, pursuant to
Federal Rule of Criminal Procedure 11, warrant reversal of his guilty-plea
conviction. And, he contends the district court violated his Sixth Amendment
right to a jury trial by finding he was responsible for approximately 4.7
kilograms of actual methamphetamine, as recommended in his presentence
investigation report (PSR), rather than the quantity charged in the
superseding information:

50 grams or more of a mixture and substance

containing a detectable amount of methamphetamine.
At Lee’s rearraignment, the magistrate judge allowed Lee to waive the
reading of his charging instrument and factual resume, and did not advise Lee
regarding his maximum term of supervised release. As Lee concedes, because
he did not object to his Rule 11 colloquy, review is only for plain error. E.g.,
United States v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012). Under that
standard, Lee must show a forfeited plain (clear or obvious) error that affected
his substantial rights. E.g., Puckett v. United States, 556 U.S. 129, 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”. Id.
Lee has not made the required showing. The record demonstrates Lee
advised the magistrate judge he had reviewed the information and factual
resume; and he affirmed the information and factual resume had been read to
him, agreed with the facts stated, and confirmed his signature appeared on the
factual resume.

Lee asserts his acknowledgements could not be effective

because he cannot read, but the magistrate judge phrased his questions to Lee
in a manner recognizing Lee could not do so. Accordingly, the court’s variance
from Rule 11 was, at best, harmless error.

See United States v. Cuevas-

Andrade, 232 F.3d 440, 444 (5th Cir. 2000). Therefore, it does not rise to the

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level of reversible plain error. See Puckett, 556 U.S. at 135. Further, there is
no indication in the record that Lee did not understand, or was confused by,
the nature of the conspiracy charge or the facts underlying it, nor does he
identify any such instances. Cf. United States v. Portillo, 18 F.3d 290, 292–93
(5th Cir. 1994).
Additionally, the court’s not stating the maximum term of supervised
release was not plain error because the admonition that his supervised-release
term would be “not less than four years” includes the possibility of a maximum
term of life. See, e.g., United States v. Jackson, 559 F.3d 368, 371 (5th Cir.
2009).
As Lee concedes, he failed to object to the court’s findings of fact as they
related to the relevant drug quantity; again, review is for plain error. E.g.,
Puckett, 556 U.S. at 135. Noting he pleaded guilty to a conspiracy involving 50
grams or more of a mixture and substance containing methamphetamine, not
the 4.7 kilograms of actual methamphetamine recommended in the PSR, he
asserts the court’s finding resulted in his statutory minimum imprisonment
being erroneously increased from five to 10 years, and his statutory maximum
from 40 years to life. But, to the extent Lee contends his Guidelines range was
unconstitutionally increased based on the court’s factual findings, there is no
evidence in the record, as discussed below, that Lee’s statutory minimum and
maximum ranges were increased based on drug-quantity findings. There was
no plain error.
In his factual resume, Lee stipulated to being involved in a conspiracy
involving 50 grams or more of methamphetamine, resulting in a punishment
range of between five and 40 years’ imprisonment, and he admitted to the
elements of the offense at rearraignment.

The PSR specifically noted a

statutory range of five to 40 years imprisonment, and the court properly

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limited the advisory Guideline sentencing range, reflecting a 40-year
maximum sentence. Moreover, to the extent Lee’s contention is directed at the
court’s factual findings related to drug quantity for purposes of applying the
Guidelines, such findings do not violate the Sixth Amendment. See United
States v. Romans, 823 F.3d 299, 316–17 (5th Cir. 2016).
AFFIRMED.

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