United States v. Albiter

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19- 10921
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MARCO ANTONIO ALBITER,

Defendant-Appellant

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:19-CR-60-1

Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM:
*

A jury convicted Marco Antonio Albiter of conspiring to possess with
intent to distribute a controlled substance (count one), being a felon in
possession of a firearm (count two), and possessing a firearm in furtherance of
a drug trafficking crime (count three). He received a within-guidelines
combined sentence of 235 months on the first two counts and a consecutive 60-
month sentence on the firearms count.

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
July 6, 2020

Lyle W. Cayce
Clerk
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No. 19-10921
2
In his sole issue on appeal, Albiter asserts that the 20-to-1 multiplier
used to convert a quantity of d-methamphetamine hydrochloride (ice) to its
converted drug weight for sentencing purposes is not based on scientific
principles and suggests that the multiplier is arbitrary. See U.S.S.G. § 2D1.1,
comment. (n.8(D)). He notes that the 20-to-1 multiplier is ten times harsher
than the 2-to-1 multiplier used to convert methamphetamine to its converted
drug weight. See id.
Because Albiter did not raise this argument before the district court, our
review is for plain error. See Puckett v. United States, 556 U.S. 129, 135 (2009).
To show plain error, Albiter must show that an error occurred, that the error
was clear or obvious, and that the error affected his substantial rights. See id.
If he makes such a showing, this court has the discretion to correct the error
but only if it seriously affects the fairness, integrity, or public reputation of
judicial proceedings. See id.
Albiter’s argument fails on plain error review. That is, because we have
not addressed his argument under the precise circumstances presented here,
see United States v. Molina, 469 F.3d 408, 413-14 (5th Cir. 2006), he cannot
establish that any error was clear or obvious, see United States v. Evans, 587
F.3d 667, 671 (5th Cir. 2009).
The record reveals a clerical error in the judgment. The written
judgment provides as to count three that Albiter was convicted of “Possession
of a Firearm in Relation to a Drug Trafficking Crime.” See United States v.
Cooper, 714 F.3d 873, 877 (5th Cir.2013). Count three of the superseding
indictment charged him with possessing a firearm in furtherance of a drug
trafficking crime, i.e., conspiracy to possess a controlled substance with intent
to distribute as set forth in count one of the superseding indictment, and a jury
found him guilty of count three of the superseding indictment. Thus, the
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No. 19-10921
3
judgment should be corrected to properly identify the offense of conviction on
count three.
Albiter’s sentence is AFFIRMED. This matter is REMANDED for
correction of the clerical error pursuant to Federal Rule of Criminal Procedure
36.
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