The district court did not err in conducting its own fact finding for purposes of applying the guidelines cross-reference and determining the guidelines range. See United States v. Hinojosa, 749 F.3d 407, 412-13 (5th Cir. 2014); United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). Second, Samuels contends that the district court's fact finding relevant to the statutory minimum sentence applicable to count 14 violated his Fifth Amendment right to due process and Sixth Amendment right to a trial by jury.

The argument is also inconsistent with holdings from courts that have applied Alleyne. See i.e., United States v. Thomas, 760 F.3d 879, 889-90 (8th Cir. 2014); Gonzalez, 765 F.3d at 738-39; United States v. Hinojosa, 749 F.3d 407, 412-13 (5th Cir. 2014). McCauley points to the Eighth Circuit's opinion in United States v. Lara-Ruiz, 721 F.39 554 (8th Cir. 2013), where the Eighth Circuit concluded that based on Alleyne, the district court erred by applying an elevated mandatory minimum based on that court's finding that the defendant brandished a weapon, even when the district court stated that the defendant's sentence would be the same regardless of whether the mandatory minimum based on the jury's findings or the elevated mandatory minimum based on the court's findings applied.

Neither Apprendi nor Alleyne applies to sentencing guidelines. See United States v. Hinojosa, 749 F.3d 407, 412–13 (5th Cir.2014). Therefore, his argument is without merit and we find no error.

As the Fifth Circuit has explained, "the 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." United States v. Hinojosa, 749 F.3d 407, 412 (5th Cir. 2014) (citing United States v. Booker, 543 U.S. 220, 257 (2005) and Alleyne, 133 S. Ct. at 2169). Here, Movant was not facing a mandatory minimum sentence.

Montgomery's reliance on Alleyne v. United States, 133 S. Ct. 2151 (2013) is misplaced because Alleyne dealt with sentence enhancements affecting mandatory minimum or maximum statutory sentences, while the present case involves only the calculation of a sentencing guideline range that falls within the statutory minimum and maximum sentence. United States v. Hinojosa, 749 F.3d 407, 412 (5th Cir. 2014). For these reasons, the six-level enhancement described in paragraph 31 of the Presentence Investigation Report was appropriate, and Montgomery's argument to the contrary is without substantive merit.

In determining whether a breach occurred, this court decides "whether the Government's conduct is consistent with the defendant's reasonable understanding of the agreement." United States v. Hinojosa , 749 F.3d 407, 413 (5th Cir. 2014) (internal quotation marks omitted). A defendant's subjective belief about the agreement's terms may not constitute a reasonable understanding and may not be sufficient to establish a breach.

Miller appears to argue that, because of the discretion afforded federal courts under the Sentencing Guidelines, federal courts are not bound by statutory maximums. However, the Fifth Circuit has held that, "Guideline ranges based on relevant conduct and other factors" do not require a jury determination of the facts underlying that conduct or other factors. U.S. v. Hinojosa, 749 F.3d 407, 413 (5th Cir. 2014), see also U.S. v. Stanford, 805 F.3d 557, 570 (5th Cir. 2015). In this case, under the applicable statutes, Miller faced five (5) to forty (40) years on Count I and zero (0) to twenty (20) years on Count II. See 21 U.S.C.A. §841(b)(1)(B) and 18 U.S.C.A. §156(a)(1)(B)(i). Miller was ultimately sentenced to a term of 160 months (13 years and 4 months) one each count, to run concurrently.

"If those requirements are met, the reviewing court may in its discretion remedy the error only if it (4) seriously affects the fairness, integrity or public reputation of the judicial proceedings." United States v. Hinojosa , 749 F.3d 407, 411 (5th Cir. 2014). If the unpreserved error does not meet this demanding plain error standard, the court does not have authority to correct it. Puckett , 556 U.S. at 135, 129 S.Ct. 1423.b. Applicable Law and Analysis

"[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.

Further, it is well-established that the district court may consider any information which has sufficient indicia of reliability. United States v. Ramirez, 271 F.3d 611, 612 (5th Cir. 2001); see also United States v. Hinojosa, 749 F.3d 407, 412 (5th Cir. 2014) (noting that relevant conduct determinations that increase the guidelines range do not have to be found by a jury). Finally, the petitioner contends that he should be resentenced in accordance with 18 U.S.C. § 3559(c)(7).