“[T]he realm of charged conduct and the realm of relevant conduct for Guidelines purposes are not coterminous,” and the Guidelines do not prohibit including as relevant conduct activities that took place when a defendant is a juvenile, provided the activities otherwise meet the test for relevant conduct. United States v. Hinojosa, 749 F.3d 407, 415-16 (5th Cir. 2014).

To establish plain error, "a defendant must show (1) error, (2) that is clear or obvious, and (3) that affected the defendant's substantial rights." United States v. Hinojosa , 749 F.3d 407, 411 (5th Cir. 2014). The third step of the analysis may be satisfied by showing "a reasonable probability that, but for the error, the outcome of the proceeding would have been different."

Traditional fact finding on relevant conduct, to the extent that it increases the discretionary sentencing range for a district judge under the Sentencing Guidelines, does not implicate the Sixth Amendment. United States v. Hinojosa, 749 F.3d 407, 412-13 (5th Cir. 2014); see also United States v. Leontaritis, 977 F.3d 447, 451 (5th Cir. 2020), petition for cert. filed (U.S. May 17, 2021) (No. 20-1614). ("We [have] . . . a clean division of labor: . . . sentencing within the statutory minimums and maximums following a guilty verdict and applying the Sentencing Guidelines is for the district judge to decide.").

... The Court did not suggest that the setting of Sentencing Guidelines ranges in a PSR, which structure but do not control district judge discretion, were subject to the same requirement. United States v. Hinojosa , 749 F.3d 407, 412–13 (5th Cir. 2014) ; see also Stanford , 805 F.3d at 570 (holding that "[n]either Apprendi nor Alleyne applies to sentencing guidelines" and that a district court may "adjudge[ ] a sentence within the statutorily authorized range"); United States v. Romans , 823 F.3d 299, 316–17 (5th Cir. 2016) (holding the same). In addition to conflicting with the law of six other circuits, the Ninth Circuit's ruling in Pimentel-Lopez is unpersuasive for the additional reason that it is inconsistent with our case law.

Based on White's personal involvement in the July transaction, the similarities between the June offenses and the July offense, and the temporal proximity of the July transaction to the earlier transactions, the reliable evidence shows by a preponderance of the evidence that the July transaction was part of the same course of conduct or common scheme or plan. See United States v. Ocana, 204 F.3d 585, 589-90 (5th Cir. 2000); see also United States v. Hinojosa, 749 F.3d 407, 415 (5th Cir. 2014). In addition, White did not present any evidence at the sentencing hearing to demonstrate that the drug quantity was "materially untrue, inaccurate or

In making that determination, we review the district court's application of the Sentencing Guidelines de novo and its factual findings for clear error. United States v. Hinojosa, 749 F.3d 407, 411 (5th Cir. 2014). Facts used to determine a sentence must be supported "by a preponderance of the relevant and sufficiently reliable evidence."

In contrast, our sister Circuits have held that defendants who acted while detained, away from the scene, post-arrest did not act "contemporaneously with arrest." See United States v. Hinojosa , 749 F.3d 407, 416 (5th Cir. 2014) (defendant made phone call from jail post-indictment); United States v. Massey , 443 F.3d 814, 821 (11th Cir. 2006) (defendant concealed drugs while handcuffed to hospital bed post-arrest); United States v. Waldon , 206 F.3d 597, 608–09 (6th Cir. 2000) (defendant made telephone call from jail six hours post-arrest); United States v. Hankins , 127 F.3d 932, 935 (10th Cir. 1997) (defendant made phone call from jail two days post-arrest); but see United States v. Morales–Sanchez , 609 F.3d 637, 640 (5th Cir. 2010) (where defendant made phone call from the back seat of a patrol car, the Government conceded that he acted "contemporaneously with arrest"). Welshans’s case does not require us to rule on the propriety of these decisions.

"[Alleyne] did not imply that the traditional fact-finding on relevant conduct, to the extent it increases the discretionary sentencing range for a district judge under the Guidelines, must now be made by jurors." United States v. Hinojosa, 749 F.3d 407, 412 (5th Cir. 2014). In United States v. Romans, 823 F.3d 299, 316 (5th Cir. 2016), the Fifth Circuit noted that Alleyne did not address discretionary guideline enhancements that are determined by a court.

Accordingly, Shambaugh's sentence for count three did not implicate constitutional concerns. See Hebert, 813 F.3d at 564; United States v. Hinojosa, 749 F.3d 407, 412-13 (5th Cir. 2014). Motion to Withdraw Guilty Plea

In Alleyne v. United States, ––– U.S. ––––, 133 S.Ct. 2151, 2155, 186 L.Ed.2d 314 (2013), the court extended this logic to facts that increase the statutory mandatory minimum sentence. The Court in Alleyne did not address discretionary guideline enhancements, and as this court noted in United States v. Hinojosa, 749 F.3d 407, 411 (5th Cir.2014), “[t]he Alleyne opinion did not imply that the traditional fact-finding on relevant conduct, to the extent it increases the discretionary sentencing range for a district judge under the Guidelines, must now be made by jurors.” Moseby was convicted of conspiracy to possess with intent to distribute 1,000 kilograms of marijuana.