960 F.3d 173
5th Cir.2020Background
- In 2016 Dallas PD investigation led to a March 2016 search of Gilberto Gomez’s home that recovered drugs, cash, paraphernalia, and seven firearms. Gomez was indicted on drug counts and two § 924(c) firearm counts.
- Count 3 was charged under § 924(c)(1)(A)(i) (five-year mandatory minimum). Count 5 was charged under § 924(c)(1)(C)(i) as a “second or subsequent” § 924(c) conviction (25-year mandatory minimum) by treating the simultaneous count-3 conviction as the predicate.
- Gomez was convicted at trial in 2017 and originally sentenced to 652 months. The Fifth Circuit granted a limited remand and Gomez was resentenced on November 26, 2018 to 480 months (including a consecutive 300-month § 924(c) term).
- Gomez appealed his 2018 resentencing on two grounds: (1) § 403 of the First Step Act eliminated the 25-year stacking enhancement and should apply to his pending case; and (2) the district court imposed four special supervised-release conditions in the written judgment without orally pronouncing them at the resentencing.
- The district court’s written judgment listed four special conditions (domestic-violence treatment, substance-abuse treatment, timely child-support payments, and financial-disclosure to probation). At resentencing the court said the TSR would be “subject to the same terms and conditions as previously stated.”
Issues
| Issue | Gomez's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether § 403 of the First Step Act (amending § 924(c)) applies to defendants whose cases were pending on direct appeal when the Act took effect | § 403 should apply because his case was pending on direct appeal on Dec. 21, 2018 and the amendment merely "clarified" § 924(c) | § 403 is not retroactive; its text applies only where a sentence had not been imposed by Dec. 21, 2018; Gomez was sentenced before that date | Court held § 403 does not apply; the relevant date is when the district court imposed sentence, so Gomez cannot benefit from the reduced mandatory minimum |
| Whether the district court erred by imposing special supervised-release conditions in the written judgment without orally pronouncing them at resentencing | The written-only imposition deprived Gomez of required oral pronouncement and notice | The court orally adopted the previously imposed conditions by stating the TSR would be "subject to the same terms and conditions as previously stated," and Gomez had prior opportunity to review and object | Court held no reversible error: plain-error review applies and there was no error because the court effectively pronounced the conditions and Gomez had notice |
Key Cases Cited
- Deal v. United States, 508 U.S. 129 (1993) (approved stacking simultaneous § 924(c) convictions)
- Gagnon v. Scarpelli, 470 U.S. 522 (1985) (defendant’s right to be present at sentencing)
- Puckett v. United States, 556 U.S. 129 (2009) (four‑part plain‑error framework)
- Olano, 507 U.S. 725 (1993) (plain‑error doctrine principles)
- Dorsey v. United States, 567 U.S. 260 (2012) (interpretation of retroactivity and effect of ameliorative statutes)
- Rivera v. United States, 954 F.3d 410 (1st Cir. 2020) (First Step Act § 403 not retroactive to cases pending on direct appeal)
- Jordan v. United States, 952 F.3d 160 (4th Cir. 2020) (same)
- Richardson v. United States, 948 F.3d 733 (6th Cir. 2020) (same)
- Hodge v. United States, 948 F.3d 160 (3d Cir. 2020) (same)
- Brotherhood of R.R. Trainmen v. Baltimore & Ohio R.R. Co., 331 U.S. 519 (1947) (section headings cannot limit plain text)
- Grene v. United States, 460 F.2d 580 (5th Cir. 1972) (sentence is imposed when pronounced)
- Bigelow v. United States, 462 F.3d 378 (5th Cir. 2006) (oral‑pronouncement requirement for supervised‑release conditions)
- Mudd v. United States, 685 F.3d 473 (5th Cir. 2012) (abuse‑of‑discretion standard when no opportunity to object)
- Huor v. United States, 852 F.3d 392 (5th Cir. 2017) (plain‑error review when opportunity to object existed)
- Johnson v. United States, 632 F.3d 912 (5th Cir. 2011) (statutory interpretation principles)
- United States v. Gonzalez, 949 F.3d 30 (1st Cir. 2020) (sentence imposed when pronounced or entered)