USA v. Edwin Giovanny Mendoza-Verdugo

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11138
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDWIN GIOVANNY MENDOZA-VERDUGO,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 1:22-cr-00012-AW-GRJ-2
____________________
USCA11 Case: 23-11138 Document: 24-1 Date Filed: 03/20/2024 Page: 1 of 5

-- 1 of 5 --

2 Opinion of the Court 23-11138
Before WILSON, JORDAN, and LAGOA, Circuit Judges.
PER CURIAM:
Edwin Giovanny Mendoza-Verdugo appeals his total sen-
tence of 132 months’ imprisonment for conspiracy to distribute or
possess with intent to distribute a controlled substance, in violation
of 21 U.S.C. § 841(a)(1), and possession of a firearm in furtherance
of a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A)(i). He argues that the district court violated his Fifth
and Sixth Amendment rights by considering (and making findings
about) conduct for which he was acquitted (a drug amount) in cal-
culating his guideline range. He does not, however, challenge as
clearly erroneous the district court’s drug quantity finding.
I
We review constitutional challenges to a sentence de novo.
See United States v. Hall, 965 F.3d 1281, 1293 (11th Cir. 2020). Issues
not raised in the initial brief on appeal are deemed abandoned.
United States v. Campbell, 26 F.4th 860, 871 (11th Cir. 2022) (en banc).
See also United States v. Corbett, 921 F.3d 1032, 1043 (11th Cir. 2019)
(stating that an appellant abandons an issue on appeal “when []he
makes only passing references to it that are background to other
arguments or [are] buried within other arguments, or both”) (quo-
tation marks omitted). We are “bound to follow a prior panel’s
holding unless and until it is overruled or undermined to the point
of abrogation by an opinion of the Supreme Court or of this Court
sitting en banc.” United States v. Gillis, 938 F.3d 1181, 1198 (11th Cir.
2019).
USCA11 Case: 23-11138 Document: 24-1 Date Filed: 03/20/2024 Page: 2 of 5

-- 2 of 5 --

23-11138 Opinion of the Court 3
II
In calculating a defendant’s guideline range, a district court
may consider acquitted conduct that is proven by a preponderance
of the evidence. See United States v. Watts, 519 U.S. 148, 155-57
(1997); United States v. Faust, 456 F.3d 1342, 1347 (11th Cir. 2006). A
district court’s consideration of acquitted conduct proven by a pre-
ponderance of the evidence does not violate due process, so long
as the sentence imposed does not exceed the statutory maximum
for the crime of conviction. See Watts, 519 U.S. at 155-157.
This principle applies where the district court calculates a
defendant’s guideline range based on drug weight for which the
defendant was acquitted by a jury but was proven by a preponder-
ance of the evidence at sentencing. See United States v. Smith, 741
F.3d 1211, 1226-27 (11th Cir. 2013). And it applies where a district
court considers factual allegations or evidence outside of the jury’s
special verdict. See United States v. Duncan, 400 F.3d 1297, 1304 (11th
Cir. 2005) (ruling that it was not plain error for the sentencing court
to consider evidence of the defendant’s connection to an amount
of cocaine beyond the five kilograms for which the jury found him
responsible via special verdict). The reason is that a jury’s verdict
and a district court’s factual determinations at sentencing employ
different standards of proof. See United States v. Bradley, 644 F.3d
1213, 1298 (11th Cir. 2011) (“There is nothing inconsistent with a
jury verdict to the effect that the Government had not proven cer-
tain acts beyond a reasonable doubt and a judicial finding that the
Government had proven those acts by a preponderance of the evi-
dence.”).
“Other than the fact of a prior conviction, any fact that in-
creases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a
USCA11 Case: 23-11138 Document: 24-1 Date Filed: 03/20/2024 Page: 3 of 5

-- 3 of 5 --

4 Opinion of the Court 23-11138
reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
See also Jones v. United States, 526 U.S. 227, 251-52 (1999) (ruling that
each element of a crime must be “charged by indictment, proven
beyond a reasonable doubt, and submitted to a jury for its verdict”).
In United States v. Booker, 543 U.S. 220, 244 (2005), the Supreme
Court reaffirmed its holding from Apprendi that “[a]ny fact (other
than a prior conviction) which is necessary to support a sentence
exceeding the maximum authorized by the facts established by a
plea of guilty or a jury verdict must be admitted by the defendant
or proved to a jury beyond a reasonable doubt.” In doing so, it de-
termined that the Sentencing Reform Act of 1984 was unconstitu-
tional “insofar as the guidelines were mandatory and to the extent
that they allowed the upper limits of the sentence to depend on
facts that had not been established by a plea of guilty or proven to
a jury beyond a reasonable doubt.” United States v. Irey, 612 F.3d
1160, 1183 (11th Cir. 2010) (en banc) (citing Booker, 543 U.S. at 244).
We have “repeatedly stated that sentencing courts may find
by a preponderance of the evidence all facts relevant to imposing a
sentence below the statutory maximum.” Smith, 741 F.3d at 1227.
Moreover, “Booker does not suggest that the consideration of ac-
quitted conduct violates the Sixth Amendment as long as the judge
does not impose a sentence that exceeds what is authorized by the
jury verdict.” Duncan, 400 F.3d at 1304.
III
As a preliminary matter, Mr. Mendoza-Verdugo has aban-
doned any issue other than his constitutional challenge to the dis-
trict court’s consideration of acquitted drug weight in calculating
his guideline range, which is reviewed de novo. Though his initial
brief references substantive and procedural reasonableness claims,
USCA11 Case: 23-11138 Document: 24-1 Date Filed: 03/20/2024 Page: 4 of 5

-- 4 of 5 --

23-11138 Opinion of the Court 5
this reference is minor and background to his constitutional chal-
lenge, and it is thus abandoned.
We are bound by the decision of the Supreme Court in
Watts, which allows for the consideration of a defendant’s acquit-
ted conduct at sentencing. We are also bound by our own prece-
dent, which holds that a district court may find that a particular fact
was proven by a preponderance of the evidence despite a special
verdict finding that the same fact was not proven beyond a reason-
able doubt.
Contrary to Mr. Mendoza-Verdugo’s contention, Apprendi
and Jones do not abrogate Watts, because those cases allow a court
to make factual findings relevant to sentencing by a preponderance
of the evidence, so long as those findings do not result in a sentence
beyond the statutory maximum set by the jury’s verdict. Indeed,
we have applied Watts to judicial findings about drug weight after
Apprendi and Jones. See Smith, 741 F.3d at 1226-27.
Here the district court’s consideration (and finding) of ac-
quitted drug weight affected Mr. Mendoza-Verdugo’s guideline
range, but not the statutory maximum fixed by the counts of con-
viction. Mr. Mendoza-Verdugo was ultimately sentenced to a term
of 132 months, well below the statutory maximum of 40 years
stemming from the jury’s guilty verdicts.
IV
We affirm Mr. Mendoza-Verdugo’s sentence.
AFFIRMED.
USCA11 Case: 23-11138 Document: 24-1 Date Filed: 03/20/2024 Page: 5 of 5

-- 5 of 5 --