United States v. Mercer

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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