United States v. Mercer , 834 F.3d 39 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 15-1343
UNITED STATES OF AMERICA,
Appellee,
v.
CRAIG MERCER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Torruella, Lynch, and Barron,
Circuit Judges.
K. Hayne Barnwell for appellant.
Margaret D. McGaughey, Assistant United States Attorney, with
whom Thomas E. Delahanty II, United States Attorney, was on brief,
for appellee.
August 17, 2016
BARRON, Circuit Judge. Craig Mercer challenges his
conviction and sentence for possession of cocaine with intent to
distribute. Mercer raises a number of issues on appeal. They
relate to the District Court's denial of a pre-trial motion to
suppress, the conduct of the trial proceedings, and the District
Court's sentencing determinations. Finding no errors, we affirm.
I.
On September 20, 2013, police pulled over the gold Saturn
that Mercer was driving, arrested Mercer on the basis of
outstanding warrants, and recovered, among other things, two
ounces of cocaine from a search of the car. Authorities then
charged Mercer with one count of possession with intent to
distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(C).
Prior to trial, Mercer filed a motion to suppress the
cocaine evidence on the ground that it was the fruit of an
unconstitutional seizure of the Saturn. The District Court denied
the motion to suppress on May 29, 2014. A jury trial was then
held, resulting in Mercer's conviction.
The District Court sentenced Mercer to a term of
imprisonment of 41 months. The District Court's sentence was at
the top end of the range that the pre-sentence report ("PSR")
calculated under the United States Sentencing Guidelines (the
"Guidelines" or "U.S.S.G"). The PSR based that range on a total
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offense level of 18, which included enhancements for obstruction
of justice, U.S.S.G. §3C1.1, and possession of a dangerous weapon
during the offense, U.S.S.G. §2B1.1(b)(1). The District Court
also sentenced Mercer to a term of supervised release of five years
and assessed monetary penalties. This appeal followed.
II.
We start with Mercer's challenge to the District Court's
denial of his motion to suppress. Mercer contends that the
District Court erred in ruling that the stop of the Saturn was
lawful. On a suppression motion, we review findings of fact for
clear error and legal conclusions, including the ultimate
reasonable suspicion determination, de novo. See United States v.
Chhien, 266 F.3d 1, 5 (1st Cir. 2001). We conclude that the
District Court did not err.
Mercer concedes, as he must, that the stop was lawful if
law enforcement had reasonable grounds to suspect that Mercer was
in possession of drugs at the time that police made the stop. See
United States v. Arvizu, 534 U.S. 266, 273 (2002) ("[I]n brief
investigatory stops of persons or vehicles, the Fourth Amendment
is satisfied if the officer's action is supported by reasonable
suspicion to believe that criminal activity 'may be afoot.'"
(quoting United States v. Sokolow, 490 U.S. 1, 7 (1989))). But
Mercer contends that the only basis law enforcement had for
suspecting that Mercer would be in possession of such contraband
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was his association with one man -- Richard Magee -- who law
enforcement had reason to suspect was engaged in drug trafficking.
And Mercer further contends that his mere association with Magee
was not enough to justify the stop of the Saturn. See Ybarra v.
Illinois, 444 U.S. 85, 90-91 (1979) (holding that officers "had no
reason to believe" that patron of tavern "had committed, was
committing, or was about to commit" any crime, where officers "knew
nothing in particular about [patron], except that he was present,
along with several other customers, in a public tavern at a time
when the police had reason to believe that the bartender would
have heroin for sale"); cf. Sibron v. New York, 392 U.S. 40, 62
(1968) ("The inference that persons who talk to narcotics addicts
are engaged in the criminal traffic in narcotics is simply not the
sort of reasonable inference required to support an intrusion by
the police upon an individual's personal security.").
The record shows, however, that the officers knew, at
the time of the stop, that:
 Magee supplied cocaine to a person by the name of David
Jones;
 Magee and Jones would sometimes consummate drug deals at
Ruski's, a restaurant in Portland, Maine;
 Magee planned to supply cocaine to Jones at Ruski's on
September 20, 2013;
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 Magee told Jones, in the course of an intercepted phone
conversation that occurred on September 20, that he was
running late to Ruski's, that Jones might want to come to
Magee's house to consummate the drug deal, and that Jones
should tell "Craig" to wait at Ruski's because he was still
planning to go there;
 Magee at some point left his house and went to Ruski's,
where agents observed a man -- whom we now know to be
Mercer -- who "appeared to be waiting for someone" and who
was "kind of pacing up and down the sidewalk";
 Magee, upon arriving at Ruski's, approached Mercer's
Saturn, conversed with Mercer, and at one point "leaned
inside the driver's window [of the Saturn], which was down,
just for a moment";
 Magee then went inside Ruski's, gave a package to a female
bartender, exited Ruski's, and conversed with Mercer yet
again, at one point "leaning on the passenger door window"
of the Saturn;
 Mercer shortly thereafter departed in his Saturn, without
ever having entered Ruski's or interacted with anyone
besides Magee; and
 Magee interacted with no one else at Ruski's.
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We have little trouble concluding that law enforcement reasonably
suspected a relatively close association between Mercer and Magee,
given the content of the September 20 conversation and the
interactions between Mercer and Magee at Ruski's. We also have
little trouble concluding further that, based on the circumstances
under which Magee and Mercer interacted, law enforcement
reasonably suspected that Magee transferred cocaine to Mercer at
Ruski's and that, accordingly, Mercer possessed cocaine at the
time of the stop.
In this regard, we note that while, on their own, the
reference to "Craig" in the September 20 conversation and Mercer's
behavior at Ruski's "could admit of several potentially innocent
explanations," United States v. Tiru-Plaza, 766 F.3d 111, 121 (1st
Cir. 2014), such facts could also "reasonably give rise to a
suspicion" of criminal activity when taking into account the
totality of the circumstances, id. The record shows that the
reference to "Craig" was made in the context of a drug-related
conversation (albeit between Magee and Jones) and that Magee
instructed Jones to have "Craig" wait for him at Ruski's, a place
where Magee had dealt drugs in the past. Moreover, the record
shows that Magee briefly "leaned inside" the window of Mercer's
Saturn and that Mercer never went inside Ruski's (which one might
reasonably expect him to do if the visit were simply a social one).
When viewed in context, then, the facts collectively establish
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reasonable suspicion to believe that Mercer and Magee were engaged
in a drug transaction at Ruski's. See United States v. Arnott,
758 F.3d 40, 44 (1st Cir. 2014) (stating that "reasonable
suspicion . . . deals with degrees of likelihood, not with
certainties or near certainties," and allows "police officers to
draw upon their experience and arrive at inferences and
deductions").
In contending that law enforcement lacked reasonable
suspicion to stop the Saturn, Mercer notes that officers did not
actually observe any transfer of drugs and that the officer who
testified at the suppression hearing "never testified [that]
Magee's hands or torso went inside the Saturn," which one might
expect if there had been a transfer of drugs. But the officer at
the suppression hearing testified that the observing officers'
vantage points prevented them from being able to see either the
interior of the Saturn or Magee hand anything off to Mercer. And
the officer testified that it was "normal" for officers not to see
the drugs involved in a drug deal. As nothing in the record
renders this testimony incredible, we conclude that the features
that Mercer emphasizes do not, as Mercer contends, negate
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reasonable suspicion of a drug transfer. See Arnott, 758 F.3d at
44.1
In sum, Mercer is not like the "unwitting tavern patron"
in Ybarra. Wyoming v. Houghton, 526 U.S. 295, 304 (1999).2 Nor
was the interaction between Magee and Mercer one for which law
enforcement would have been justified in suspecting only an
innocent purpose. Rather, law enforcement reasonably suspected
that Mercer was going to Ruski's to participate in a drug deal and
that a drug exchange actually occurred at Ruski's. Thus, the
District Court did not err in denying the suppression motion.
1
Mercer also notes that Magee did not actually refer to any
drug deal at Ruski's besides the one with Jones (which apparently
ended up taking place at Magee's house) and that officers did not
observe Mercer engage in any obvious drug activity. But the
absence of these circumstances does not negate reasonable
suspicion, given the picture created by the evidence as a whole.
2
This case is also a far cry from Reid v. Georgia, 448 U.S.
438 (1980), on which Mercer also relies. There, the DEA stopped
an individual in a Florida airport based on the fact that the
person "appeared to . . . fit the so-called 'drug courier profile,'
a somewhat informal compilation of characteristics believed to be
typical of persons unlawfully carrying narcotics." Id. at 440.
The Court concluded that the circumstances underlying that profile
were so general that they "describe[d] a very large category of
presumably innocent travelers." Id. Law enforcement did not,
however, rely on a profile in this case. Rather, law enforcement
relied on an "emerging tableau" of events that sufficed to create
individualized reasonable suspicion. Chhien, 266 F.3d at 6.
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III.
Mercer's next challenge to his conviction concerns the
government's purported violation of Fed. R. Crim. P. 16(a)(1)(B),
a mandatory discovery rule. That rule provides in relevant part:
Upon a defendant's request, the government must disclose
to the defendant . . . any relevant written or recorded
statement by the defendant if the statement is within the
government's possession, custody, or control; and the
attorney for the government knows -- or through due
diligence could know -- that the statement exists.
Id. Mercer contends that the prosecution violated this rule by
turning over too late a batch of Mercer's phone records. Mercer
thus seeks reversal on the ground that the District Court
improperly permitted the prosecution to use a piece of the late
disclosed evidence -- namely, a potentially incriminating text
message -- in its rebuttal.
"To succeed in obtaining a reversal on appeal [for a
Rule 16 discovery violation], a defendant must prove both an abuse
of discretion and prejudice." United States v. Alvarez, 987 F.2d
77, 85 (1st Cir. 1993). The government does not contest that a
discovery violation occurred.3 Proceeding on the assumption that
3
The parties agree that a violation of the discovery rule
occurred, but the record does not reveal when Mercer requested the
relevant material, or when the District Court requested that the
government provide such material in accordance with Fed. R. Crim.
P. 16(a)(1)(B). Nor does the record disclose by what date the
government was supposed to provide such material to Mercer.
Further, it is not clear from the record when the government
actually disclosed the phone records. Mercer contends that the
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one did occur, we nevertheless conclude that the District Court
did not abuse its discretion in permitting the use of the text
message.
In deciding whether to permit the use of the text
message, the District Court expressly asked trial counsel about
prejudice. Trial counsel's assertions of prejudice -- "my defense
preparation would have been different" and "it fundamentally
changes in some way whether I would move toward, for example,
recommending a plea disposition" -- were very generalized. See
United States v. Arboleda, 929 F.2d 858, 864 (1st Cir. 1991)
(noting, in finding no prejudice as would justify reversal on
appeal, that trial counsel's generalized allegations of
prejudice -- that the defense would have been conducted
"differently" -- were insufficient); United States v. Gladney, 563
F.2d 491, 494-95 (1st Cir. 1977) (concluding that the defendant's
claim of prejudice, which "boil[ed] down to the argument that had
his [trial] counsel learned earlier of the [late disclosed
evidence] he might have advised a guilty plea and would, in any
event, have insisted that his client not discredit himself by
telling an obvious lie," was not "of sufficient moment to justify
evidence was turned over five to seven business days before trial.
But the record provides some indication that the evidence was
turned over on October 21, 2014, which was two weeks -- or about
ten business days -- before trial. Finally, the record does not
reveal how much evidence was belatedly disclosed to Mercer.
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a reversal"). Moreover, trial counsel never requested a
continuance when confronted with the late disclosed evidence,
which lends support to the conclusion that the District Court did
not abuse its discretion. Cf. Gladney, 563 F.2d at 494 ("[T]he
district court did not abuse its discretion by admitting the [late
disclosed evidence] after first inquiring about a continuance and
being advised by [the defendant] that none was desired.").
Finally, any prejudicial impact of the text message was undercut,
as the properly disclosed evidence of Mercer's dealings with Magee
arguably played a similar role as the text message in terms of
refuting Mercer's defense to the cocaine possession count (which
was based on an absence of knowledge of the cocaine). We therefore
conclude that the District Court did not abuse its discretion in
permitting the use of the text message.
Mercer does also contend that the government acted in
bad faith in disclosing the evidence when it did. See United
States v. Delgado-Marrero, 744 F.3d 167, 198 (1st Cir. 2014). But
even assuming the government's bad faith could alter our
conclusion, the record does not support Mercer's contention in
that regard.
To be sure, it appears that the prosecutor could have
discovered and disclosed the evidence earlier. But that fact
alone -- which is all that the record affirmatively
supports -- does not itself establish bad faith. See id. at 494
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(contrasting lack of due diligence, which may or may not constitute
bad faith, with the deliberate withholding of information, which
is the prototypical example of bad faith). And we have special
reason to reject Mercer's claim of bad faith, as trial counsel not
only did not allege bad faith, but also expressly conceded that
the prosecutor was an "honest man" who legitimately communicated
that he would not use the late disclosed evidence in his case-in-
chief. See Arboleda, 929 F.2d at 864 ("No allegations that the
government delayed production in bad faith were made by the
defendants to the district court. In fact, early on at trial[,]
counsel for [one of the defendants] made clear he did not mean to
impugn the government's motives, and he expressed no change in
this opinion as the trial went on and disclosures increased.").4
4 Relatedly, Mercer contends that his trial counsel was
ineffective in failing to review the contents of the late disclosed
evidence before trial and in failing to move for a continuance at
trial once the government sought to exploit the late disclosed
evidence in rebuttal. But there are significant uncertainties in
the record that bear on whether trial counsel's performance was
deficient and whether trial counsel's performance prejudiced
Mercer. See, e.g., supra note 3. Accordingly, we follow our usual
course and decline to decide this question on direct appeal,
leaving any consideration of it to a collateral challenge, should
Mercer choose to make one. See United States v. Kenney, 756 F.3d
36, 48-49 (1st Cir. 2014); United States v. Santiago-González, ___
F.3d ___, 2016 WL 3162813, at *3 (1st Cir. 2016) (concluding that
the record was too "undeveloped" to render the Court able to
"reconstruct the circumstances of counsel's challenged conduct,
and to evaluate the conduct from counsel's perspective at the time"
(quoting Strickland v. Washington, 466 U.S. 668, 689 (1984))).
Mercer may request that the District Court appoint counsel for
him.
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IV.
Mercer's next challenge to his conviction is that the
prosecutor improperly questioned him about facts not in evidence
and thus violated his Sixth Amendment rights to confrontation and
to an impartial jury. Specifically, Mercer challenges the fact
that the prosecutor questioned him about the extent of his phone
interactions with Magee without having first developed a proper
evidentiary foundation, such as by entering the underlying phone
records into evidence. See United States v. Ofray-Campos, 534
F.3d 1, 18 (1st Cir. 2008) ("The Sixth Amendment requires that the
jury's verdict must be based solely upon the evidence developed at
trial.").
There was no objection to this line of questioning below,
and so the parties agree that we review for plain error. See
United States v. Ríos-Hernández, 645 F.3d 456, 462 (1st Cir. 2011)
("A party seeking to survive the onerous challenge of plain error
review 'must show: (1) that an error occurred (2) which was clear
and obvious and which not only (3) affected the defendant's
substantial rights, but also (4) seriously impaired the fairness,
integrity, or public reputation of judicial proceedings.'"
(quoting United States v. Ahrendt, 560 F.3d 69, 76 (1st Cir.
2009))). We find none.
Given the other evidence tying Mercer to Magee, such as
the officers' observations of the two acting suspiciously in the
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immediate run-up to Mercer's arrest, Mercer's bare assertion that
the jury was likely influenced by the line of questioning at issue
is insufficient to show that his substantial rights were
prejudiced. See United States v. Rodríguez, 525 F.3d 85, 97 (1st
Cir. 2008) ("The mere possibility that the jury may have speculated
[about the insinuations created by evidence that should not have
been admitted] does not rise to the level of plain error.").
V.
We now turn to Mercer's challenges to his sentence. None
have merit.
A.
Magee first contends that the District Court erred by
applying the sentencing enhancement set forth in
U.S.S.G. §2D1.1(b)(1) -- the so-called dangerous weapon
enhancement. Under the terms of that enhancement, "[i]f a
dangerous weapon (including a firearm) was possessed" in the
offense, the defendant's base offense level is increased by two
levels. Id. Here, Mercer was in possession of a padlock in a
bandana ("padlock-bandana") at the time of the arrest. On that
basis, the District Court applied the dangerous weapon enhancement
to Mercer.
Mercer objected to the application of the enhancement
below. We thus review the District Court's legal determinations,
including the applicability of the enhancement, de novo, and we
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review the District Court's factual determinations, which must be
supported by a preponderance of the evidence, for clear error.
United States v. Lagasse, 87 F.3d 18, 21 (1st Cir. 1996). We
conclude that the District Court did not err.
We set forth the framework for applying the enhancement
in United States v. McDonald, 121 F.3d 7 (1st Cir. 1997). Once
the government proves that "a [weapon] possessed by the defendant
was present during the commission of the offense," "the burden
shifts to the defendant to persuade the factfinder that a
connection between the weapon and the crime is clearly improbable."
Id. at 10.
Mercer asks us to "reconsider" the burden-shifting
framework in McDonald because he contends that it "unfairly
relieves the Government from proving this enhancement by a
preponderance of the evidence, violating due process." But "[w]e
are precluded from considering that argument by the law of the
circuit[,] under which we are 'bound by a prior panel decision,
absent any intervening authority.'" United States v. Oliveira,
493 F. App'x 145, 146 (1st Cir. 2012) (quoting United States v.
Grupee, 682 F.3d 143, 149 (1st Cir. 2012)); United States v.
Napolitan, 762 F.3d 297, 309-10 (3d Cir. 2014).
Mercer does not challenge the District Court's
conclusion that a padlock-bandana constitutes a "dangerous
weapon." Nor does Mercer contest that he was in possession of a
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padlock-bandana at the time of his arrest. The only question for
us, then, is whether the District Court clearly erred in concluding
that Mercer did not "demonstrat[e] the existence of special
circumstances that would render it 'clearly improbable' that the
weapon's presence has a connection" to the offense of conviction.
United States v. Corcimiglia, 967 F.2d 724, 728 (1st Cir. 1992);
United States v. Preakos, 907 F.2d 7, 9 (1st Cir. 1990)
(identifying the standard as one of clear error). We cannot say
that the District Court did.
The District Court reasonably found that Mercer's
contention that he carried the padlock-bandana for purposes of his
job providing security services for escorts and not for purposes
of drug trafficking "merely indicates [that Mercer] uses [the
padlock-bandana] for multiple purposes." See United States v.
Quiñones-Medina, 553 F.3d 19, 24 (1st Cir. 2009) ("The presence of
an alternative basis for the possession of a weapon does not render
a finding of a protection-related purpose clearly erroneous.");
United States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990)
(concluding that the connection between a weapon and a drug offense
was not vitiated solely by the fact that the defendant "was
compelled to carry the [weapon] by virtue of his employment" as a
law enforcement officer). The District Court also reasonably found
that drug dealers use weapons "to protect themselves and the drugs
from outside parties" and thus that Mercer's friendly relationship
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with his drug trafficking partners did not negate the connection
between the padlock-bandana and the offense of conviction. See
Preakos, 907 F.2d at 9 (concluding that "the district court was
permitted to make the reasonable inference that defendant used one
or more of the firearms [found] to protect his drug operation,"
where the defendant was involved in a long-standing conspiracy to
distribute cocaine with several other partners); cf. Quiñones-
Medina, 553 F.3d at 24 (noting that the presence of a weapon is
made more foreseeable by the fact that the value of the contraband
is "substantial"). Finally, the District Court reasonably found
that Mercer's weapon of choice -- a padlock-bandana as opposed to
a firearm -- did not undermine the application of the enhancement,
as Mercer concedes that he used the padlock-bandana for at least
some protection purposes (namely, the protection of escorts as
part of a security job). Thus, Mercer's challenge to the dangerous
weapon enhancement fails.
B.
Mercer also contends that the District Court erred in
applying the sentencing enhancement set forth in
U.S.S.G. §3C1.1 -- the so-called obstruction-of-justice
enhancement -- to him. That enhancement applies "[i]f (1) the
defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice . . . , and (2)
the obstructive conduct related to . . . the defendant's offense
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of conviction." Id. The obstruction-of-justice enhancement "is
not intended to punish a defendant for the exercise of a
constitutional right." U.S.S.G. §3C1.1, cmt. 2. The enhancement
does apply, however, if a defendant exercises his right to testify
at trial but commits perjury in the process. Id. cmt. 4.
The parties agree that, if Mercer has not waived this
claim, we review the District Court's application of the
enhancement for plain error, given the absence of an objection
below. We conclude that the District Court did not plainly err.
In concluding that the enhancement applied, the District
Court found that Magee "perjured himself during trial." In
reaching this conclusion, the District Court adopted the PSR's
account as to the manner in which Magee committed perjury. The
PSR provided in relevant part:
During his trial, Mercer testified untruthfully.
Specifically, he asserted that he never received drugs
from Richard Magee. The evidence in this case
established that Magee did supply drugs to Mercer. Based
on the foregoing, since the defendant provided materially
false information during his trial, he is subject to [the
enhancement].
Mercer contends that the District Court erred by not
independently making the findings necessary to warrant application
of the enhancement. But the District Court was free to accept the
undisputed portions of the PSR as findings of fact. See Fed. R.
Crim. P. 32(i)(3) (providing that district courts "may accept any
undisputed portion of the presentence report as a finding of
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fact"). And, to the extent that Magee means to contend that the
District Court did not make the findings necessary to support the
finding that perjury occurred, we disagree.
A finding of perjury is sufficiently supported where a
sentencing court makes findings that "encompass all the elements
of perjury -- falsity, materiality, and willfulness." United
States v. Matiz, 14 F.3d 79, 84 (1st Cir. 1994). "A sentencing
court, however, is not required to address each element of perjury
in a separate and clear finding. In fact, the [Supreme] Court in
[United States v. Dunnigan, 507 U.S. 87 (1993)] affirmed a district
court's finding [of perjury] that did not use the term willful."
Id. (citation omitted).
Here, the District Court found that Magee provided
"materially false" testimony when "he asserted that he never
received drugs from Richard Magee." The nature of the material
falsehood in this case is not one in which the willfulness of the
falsehood could reasonably be questioned. We thus do not perceive
any basis for concluding that the District Court, relying on the
PSR and its assessment of the defendant's testimony, failed to
make the requisite findings to support a finding of perjury. See
Matiz, 14 F.3d at 84 (affirming district court's finding of perjury
even though "the court was not explicit as to whether [the
defendant's] testimony was material" because "the record
demonstrate[d]" that the testimony was material).
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Mercer also contends that the District Court's
application of the enhancement impermissibly punished him for
testifying and presenting his defense. But Mercer has no protected
right to provide testimony that qualifies as perjury, see United
States v. Shinderman, 515 F.3d 5, 20 (1st Cir. 2008), and Mercer
does not contest the District Court's perjury finding. Thus,
Mercer's challenge to the obstruction-of-justice enhancement
fails.
C.
That brings us to Mercer's contention that the District
Court erred in relying upon dismissed charges in sentencing Mercer.
The parties agree that we review for plain error, as there was no
objection below.
The District Court referred to Mercer's dismissed
charges at two points during Mercer's sentencing proceeding. The
District Court first referred to dismissed charges in the context
of concluding that Mercer's criminal history was not
overrepresented and thus that Mercer was not entitled to a downward
departure in his criminal history category. See U.S.S.G.
§4A1.3(b). In that regard, the District Court stated:
And then I look at other criminal conduct here, multiple
charges of -- though I understand they're dismissed,
including in 2012 an unlawful possession of a scheduled
drug. And that's an interesting charge. The time -- the
conduct indicates he was detained for speeding and
operating a motorcycle recklessly in a residential
neighborhood. He tells the policeman that he has a knife
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in his pocket. Now, this is in spite of the fact he had
a long history of weapons offenses. And the policeman
takes the knife, thinking that the white residue is
cocaine. Defendant admitted to law enforcement that he
was a cocaine user, which indicates that he was in
possession of cocaine, clearly, again another violation
of the law. Apparently the white substance turned out
to be lidocaine, not cocaine. This is not an individual
who apparently learns from experiences.
The District Court then stated: "And then going into dismissed
conduct, we've got the knife again in 2012 and this offense in
2013."
At no point, however, did the District Court rely on
Mercer's dismissed charges. The District Court instead merely
referred to Mercer's dismissed charges in the course of relying on
certain conduct that took place in connection with the dismissed
charges. Because that conduct was set forth in undisputed portions
of the PSR, the District Court was entitled to rely on that conduct
when sentencing Mercer. See Fed. R. Crim. P. 32(i)(3); United
States v. Cortés-Medina, 819 F.3d 566, 570 (1st Cir. 2016). We
thus perceive no plain error. See United States v. Paneto, 661
F.3d 709, 716 (1st Cir. 2011).5
VI.
For the reasons given, we affirm.
5 Mercer's argument that the Fifth and Sixth Amendments of
the U.S. Constitution require that the facts comprising the
dangerous weapon enhancement and the obstruction-of-justice
enhancement be found by a jury beyond a reasonable doubt is
foreclosed by our precedent. See United States v. Rivera-Rivera,
555 F.3d 277, 292 (1st Cir. 2009).
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