NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________

No. 20-2803 ______________

UNITED STATES OF AMERICA

v.

CORNELIUS RILEY, Appellant ______________

On Appeal from the United States District Court for the District of Delaware (D.C. Criminal No. 1-18-cr-00018-001) District Court: Honorable Richard G. Andrews ______________

Submitted: September 21, 2021

Before: JORDAN, PORTER, and RENDELL, Circuit Judges.

(Filed: September 23, 2021)

______________

OPINION ______________

 This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding precedent. PORTER, Circuit Judge.

Cornelius Riley appeals his conviction and sentence for distributing heroin. We

will affirm the District Court’s judgment. We write for the parties, who are familiar with

the record.

I1

Riley first argues that a witness’s supposed misidentification of him during trial

ultimately led to a violation of Riley’s Fifth Amendment right to due process. At trial,

police detective Greg Simpler testified about how he conducted a controlled purchase of

heroin from Riley. When asked to identify Riley to the jury, Simpler stated, “He is sitting

back there in the - - at the defense table. It looks like he’s wearing maybe a gray jacket

maybe.” S. App. 42. Later in his testimony, the government’s attorney asked the District

Court to declare for the record that Simpler had accurately identified Riley as the

perpetrator. Instead of granting the government’s request, the District Court paused the

testimony to hold a sidebar conference with counsel.

During the conference, the District Court stated that it would not declare that

Simpler had accurately identified Riley. The District Court said that it heard Simpler

identify Riley as “the guy in the gray jacket,” S. App. 79, but noted that “[Riley]’s not

wearing a gray jacket.” S. App. 80. Rather, Riley’s counsel was wearing a gray jacket,

thus suggesting that Simpler might have identified Riley’s counsel as the perpetrator.

Wisely exercising caution, the District Court decided that he was “not going to say the

1 The District Court had jurisdiction under

. We have jurisdiction under

. 2 record reflects identification because I don’t think it does.” S. App. 80. The conference

concluded, and the government’s attorney returned to questioning Simpler. Simpler then

made a more precise identification of Riley, which the District Court accepted.

In a post-trial ruling, the District Court changed course from its conclusion at the

sidebar conference. The District Court explained, “I was not then sure whether Detective

Simpler had or had not correctly identified [Riley],” but after “reviewing the exact

testimony, it is clear that Detective Simpler was expressing some hesitation in how to

describe what [Riley] was wearing.” App. 11a. The District Court continued, “Defense

counsel was wearing a gray suit jacket. [Riley] was wearing a long-sleeved gray upper

garment that I think was better described as a gray shirt than a gray jacket.” App. 11a.

Thus, the District Court found that Simpler had correctly identified Riley before the

sidebar conference.

On appeal, Riley claims that Simpler initially misidentified Riley’s counsel as the

perpetrator. He argues that the District Court’s subsequent decision to conduct a sidebar

conference with counsel—leaving Riley alone at the table in front of Simpler’s gaze—

violated Riley’s Fifth Amendment guarantee to due process. According to Riley, the

District Court’s action was “unnecessarily suggestive” because it gave Simpler a strong

clue as to who he should identify as the perpetrator: the only person remaining seated at

the defense table during the sidebar conference. Appellant’s Br. 31–32.

As Riley acknowledges, he did not raise his objection to the sidebar conference

until after trial, so we will review his due-process argument under the plain-error

standard. See United States v. Kolodesh,

, 230 n.4 (3d Cir. 2015); see also

3 Fed. R. Crim. P. 52(b). Under the plain-error standard, a defendant must show that (1) an

error occurred, (2) the error is “clear or obvious,” and (3) the error affected the

defendant’s substantial rights. Puckett v. United States,

(2009). If a

defendant satisfies these three requirements, we may exercise our discretion to reverse

“only if the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial

proceedings.’”

(alteration in original) (internal quotation marks omitted) (quoting

United States v. Olano,

(1993)).

“A due process violation can result when an identification procedure is so

suggestive that it undermines the reliability of the resulting identification.” United States

v. Lawrence,

(3d Cir. 2003). But we do not need to discuss Riley’s

argument in depth because its key factual premise is lacking: Simpler did not misidentify

Riley. In his post-trial ruling, the District Court found that Simpler had correctly

identified Riley before the sidebar conference began. If Simpler had already identified

Riley before the sidebar conference, as the District Court found, then the sidebar

conference was not an unduly suggestive action that revealed to Simpler who he should

identify as the perpetrator. Accordingly, there was no error.2

II

Riley next argues that the District Court violated the Sixth Amendment at

sentencing by using a judicially found fact to increase Riley’s punishment when the fact

2 Riley’s additional argument, that his trial counsel had a conflict of interest that rendered him ineffective because Simpler misidentified trial counsel as the perpetrator, also fails. Given the District Court’s finding that Simpler did not misidentify trial counsel as the perpetrator, no basis exists for trial counsel to have had a theoretical conflict of interest. 4 should have been decided by a jury. Riley’s presentence investigation report (“PSR”)

assigned an offense level of 30 for Riley’s conduct and gave him a criminal history

category of IV, leading to a Sentencing Guidelines range of 135 to 168 months. The

probation office arrived at an offense level of 30 by using the results from a laboratory

report indicating that some of the heroin found on Riley contained a fentanyl analogue.

Riley argues that if the heroin did not contain a fentanyl analogue, then he would have

received a Sentencing Guidelines range of 77 to 96 months. At sentencing, the District

Court adopted the facts in the PSR and sentenced Riley to 100 months’ imprisonment.

Riley asks us to extend the Supreme Court’s decisions in Apprendi v. New Jersey,

(2000), and United States v. Alleyne,

(2013), to cover any

finding of fact that increases a defendant’s Sentencing Guidelines range. He cites

Apprendi and Alleyne for the proposition that factual determinations increasing the

statutory maximum or minimum sentence must be made by a jury with proof beyond a

reasonable doubt. We review questions of law, such as Riley’s Sixth Amendment

challenge, de novo. United States v. Barbosa,

(3d Cir. 2001).

Our precedent forecloses Riley’s argument. In United States v. Smith, two

defendants argued “that the District Court violated their Sixth Amendment rights by

enhancing their Guidelines range on the basis of judge-found facts.”

(3d Cir. 2014). “They contend[ed] that a jury, not a sentencing judge, must find any facts

that increase a defendant’s sentence, even if, as in this case, the sentence implicated

neither a mandatory minimum nor a statutory maximum.”

We held that Apprendi and

Alleyne did not support the defendants’ argument. See

Rather, at sentencing, “[a]

5 district court may, consistent with the Fifth and Sixth Amendments, engage in additional

factfinding, using a preponderance-of-the-evidence standard, to select an appropriate

sentence up to the statutory maximum based on application of the Guidelines.”

Riley’s conviction for violating

(a)(1) and (b)(1)(B) yielded a

minimum of five years’ imprisonment and a maximum penalty of forty years’

imprisonment. Our precedent permitted the District Court “to find facts relevant in

selecting a sentence within th[is] prescribed statutory range” of five to forty years. Smith,

. The District Court’s factfinding replaced the baseline range of 77 to 96

months with a range of 135 to 168 months. Both ranges are well within the statutory

minimum and maximum.

In addition to Apprendi and Alleyne, Riley claims that Peugh v. United States,

(2013), shows that the District Court violated the Sixth Amendment. In Peugh,

the Supreme Court held that retroactively applying a more punitive Sentencing

Guidelines range violated the Ex Post Facto Clause.

. The Court rejected the

government’s argument that because the Sentencing Guidelines were advisory, their

application lacked “adequate legal force to constitute an ex post facto violation.”

. The Court concluded that the advisory nature of the Sentencing Guidelines meant

little because “the range is intended to, and usually does, exert controlling influence on

the sentence that the court will impose.”

. Thus, application of a more punitive,

retroactive Sentencing Guidelines range created a “‘significant risk’ of a higher sentence”

for the defendant.

at 550 (quoting Garner v. Jones,

(2000)).

6 Riley contends that “Peugh . . . reflect[s] the practical reality that sentencing

guidelines are the prescribed range for sentencing just as much as minimum and

maximum penalties.” Appellant’s Br. 23. Thus, “a fact which increases those ranges

implicates due process protections.” Appellant’s Br. 23. But the Supreme Court rejected

Riley’s argument in Peugh, noting that “the Sixth Amendment and Ex Post Facto Clause

inquiries are analytically distinct.” Peugh, 569 U.S. at 549–50. The Court explained,

“Our Sixth Amendment cases have focused on when a given finding of fact is required to

make a defendant legally eligible for a more severe penalty.” Id. at 550 (emphasis added).

It continued, “Our ex post facto cases, in contrast, have focused on whether a change in

law creates a ‘significant risk’ of a higher sentence.” Id. (second emphasis added)

(quoting Garner,

). Peugh does not help Riley’s case.

* * *

We will affirm the judgment of the District Court.

7