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.

SeeUnited States v. Melquiades , 139 F. App'x 172, 177 (11th Cir. 2005) (unpublished) (per curiam) (affirming obstruction-of-justice enhancement where the defendant had denied at sentencing "that he had made post-arrest statements to police officers regarding the weight of the drug shipment, which was relevant conduct," in order to "obstruct or impede his sentencing by denying the quantity of drugs to which he had previously admitted").SeeUnited States v. Baggott , 694 F. App'x 306, 307 (5th Cir. 2017) (unpublished) (per curiam) (interviews of defendant's drug suppliers); United States v. Hinojosa , 749 F.3d 407, 415 (5th Cir. 2014) (testimony of confidential informant and federal agent); United States v. Rodriguez , 666 F.3d 944, 947 (5th Cir. 2012) (witness testimony). Barfield also cites United States v. Walter , 683 F. App'x 323 (5th Cir. 2017) (unpublished) (per curiam), as an example of a "relevant conduct [finding] based on testimony of law enforcement officer."

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 far as this court can tell, and Roe has not cited any precedent to the contrary, every court that has confronted the issue has stated that a knowing and voluntary guilty plea to an indictment which includes a mandatory-minimum-inducing drug-quantity element subjects a defendant to that mandatory minimum sentence. See, e.g., Davis v. United States , 817 F.3d 319, 326 (7th Cir. 2016) ; United States v. Caballero , 672 F. App'x 72, 75 (2d Cir. 2016) ; United States v. Jefferson , 791 F.3d 1013, 1016 (9th Cir. 2015) ; United States v. Etienne , 772 F.3d 907, 923 (1st Cir. 2014) ; United States v. Hinojosa , 749 F.3d 407, 412 (5th Cir. 2014) ; United States v. Bradley , 581 F. App'x 249, 253 (4th Cir. 2014) ; United States v. Heard , 561 F. App'x 873, 877 (11th Cir. 2014) ; United States v. Johnson , 732 F.3d 577, 584 (6th Cir. 2013). As these courts have noted, such a rule is entirely consistent with the line of Supreme Court cases that ultimately spawned the decision in Alleyne .

"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

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.

Plain-error review requires the defendant to 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). Then, “[i]f 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 judicial proceedings.”

A breach occurs if the Government's conduct was inconsistent with a reasonable understanding of its obligations. See United States v. Hinojosa , 749 F.3d 407, 413 (5th Cir. 2014). We start with determining just what the Government agreed to do.

... 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.

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.