United States v. Paul Suarez

America, UNITED STATES

Plaintiff-Appellee, SUAREZ, Defendant-Appellant.

Paul

No. 16-41267 Appeals, Court

Fifth Circuit.

January Smith,

Maureen Assistant Clancy U.S. Attorney, Office, Attorney’s Eastern Texas, Sherman, TX, District of for Plain- tiff-Appellee. Whalen,

James Patrick Whalen Law Of- fice, Frisco, TX, for Defendant-Appellant. SMITH, OWEN, Before HIGGINSON, Judges. Circuit OWEN, R. Circuit Judge: PRISCILLA juryA Paul for his convicted Suarez in a drug trafficking conspira- involvement cy for firearms offenses. ap- and Suarez peals contending that the convictions were by sufficient He supported evidence. also asserts the district erred (ten a imposing year) 120-month mandato- ry prison possession for minimum shotgun of a a sawed-off furtherance of drug trafficking crime. The evidence was sufficient sustain each of Suarez’s con- victions, they and are affirmed. But sentence of 120 minimum of imprisonment months inapplicable, vacate the sentence and therefore court for resentenc- remand ing.

I methamphetamine in discovering After during Timothy Sharp’s the course truck stop, County of a Cooke Police ob- traffic a warrant to search the residence tained Gutierrez, Sharp from he Erica whom said drugs. police purchased When home, they her searched found Gutierrez’s Suarez—who, according to and Paul Sharp, overseer” for acted “consul the master bed- Gutierrez’s deals—in Also room room. found in that were methamphetamine, distributable amount cameras, scales, security baggies, .380 shells, shotgun pistol, body Davis caliber jury charge and verdict proposed tion. The armor, gauge .sawed- and a .20 Winchester disassembled, that, require had II did not though off form Count pistol Police also firearm—the specify chamber. its ammunition II, Count Winchester—supported guilt shot- on gauge .20 Ithaca sawed-off in a object at trial. a mattress did gun underneath Suarez second search, an- During the bedroom. officers on all guilty four found Suarez phone cell a call to swered Gutierrez’s Investigation Re- counts. The Presentence Puckett, buy t'o wanted Travis who from (PSR) 60 months of port recommended agreed Puckett meet methamphetamine. I, III, Counts IV imprisonment hotel, he and was arrested at a local II Count and concluded that consummate the trans- he arrived there to sentence, to run prison ten-year action. any other consecutively to counts. dis- witnesses at Puckett were Gutierrez and adopted trict court the recommendation testified Sua- Gutierrez Suarez’s trial. to 180 months sentenced methamphetamine split rez distributed imprisonment, stated the record but her, stayed at had profits to a it- have sentenced Suarez that would night, her the gave previous house ten-year manda- shorter term but about Winchester pistol, and knew con- tory minimum sentence had Suar Ithaca. Puckett testified that not the fol- applicable. appeal This cluded bought present when he rez often lowed. methamphetamine from and that Gutierrez made sale if Gutierrez Suarez II also Puckett testified unavailable. Ithaca, tape he identified on of for insuf standard review handle, “always” in

its master on depends ficiency-of-the-evidence claims purchases, when he made there. bedroom preserved. We the claims were whether 29 preserved through a of review claims Rule charged Sua- .Count-1 indictment novo, motion def possess de but “with substantial conspiracy rez with with intent violation, “if to the verdict.”1 in of erence We affirm narcotics distribute § fact possession II trier of conclude charged U.S.C. 846. Count reasonable could es pistol of of offense in ... the elements were and Winchester beyond drug trafficking of in tablished a reasonable doubt.”2 furtherance offense 924(c). § of III are. violation Counts Claims reviewed preserved U.S.C. , or alleged possession unregis- IV of the error.3 must show a clear and Suarez shotguns legal in error that affects his sub Winchester and Ithaca obvious tered 5861(d). “seriously rights § of violation U.S.C. Suarez stantial and affect[s] III acquittal public moved on Counts IV and reviewing judicial proceedings.”4 In under Federal Rule of Criminal Procedure evidence, sufficiency mo- of the an the district court denied the Delgado, Delgado, 330- 3. See at 330. 1. United States v. 672 F.3d 2012) (en banc). States, 556 U.S. v. United Puckett (2009) (alter McDowell, 1423, 173 129 S.Ct. L.Ed.2d United States original) (quoting (quoting United States v. ation Olano, Ragsdale, 507 U.S. ) . 2005)). (1993) L.Ed.2d if “only provides or obvious” “clear the record alone sufficient evidence estab- conviction, lish “A pointing guilt,’ espe- three ‘devoid evidence all elements. one cially accompanied by an accomplice key ... ‘the evidence on a element instruction, may be sustained the un- offense so tenuous conviction [i]s that a ”5 testimony corroborated accomplice shocking.’ appropri- would be Relief is long testimony ‘the so is not incredible only exacting ate under this if standard ”11 or otherwise on its insubstantial face.’ “obviously Government’s evidence is gave an accom- insufficient”6 and the defendant “a shows plice instruction. Gutierrez testified justice.”7 miscarriage manifest Under assisted her in selling methamphet- Suarez standards, both we “view[ ] evidence proceeds amine and- divided the her. with light most favorable to the verdict and testimony Her is neither nor incredible all from draw[] reasonable'inferences on its face. insubstantial ..... to support evidence the verdict.”8 testimony Gutierrez’s was not the A only evidence Suarez’s involvement conspiracy. distribution Officers We- review the conviction under they testified that found Suarez I for plain charged Count error.9 Count I master with bedroom and that Gutierrez distribute, conspiracy the bedroom contained a distributable distribute, possession with intent quantity methamphetamine, packing grams or of a mixture or substance .more materials, cameras, weighing security containing a amount metham detectable guns, body armor. testified Puckett phetamine violation 21 U.S.C. usually present that Suarez was when he 841(a)(1) §§ and 846. Defense con counsel bought Gutierrez, drugs from Suarez had supported that the convic ceded before, phone answered Gutierrez’s count, tion under this agree Puckett went hotel where he was the evidence was sufficient. because he offi arrested assumed male prove drug To conspiracy, the cer answered phone who was Gutierrez’s (1) prove, Suarez, agreement must Government argues that Gutierrez Suarez and persons two or more to between violate witnesses, Puckett .are unreliable' laws; (2)-knowledge agree narcotics (the the generally jury’s) “will not' ver disturb (3) ment; voluntarily participation and in weigh credibility of witn dict [or] the-' agreement.10 testimony the Gutierrez’s The esses.”12 is “devoid record not McDowell, (alteration McDowell, 498 at 312 5. F.3d in 8. 498 F.3d 312. at Knezek, original) (quoting United States v. 964 (5th 1992)); F.2d 400 n.14 Cir. see also Delgado, 9. See at 330. Delgado, (reaffirming 672 at 330-31 F.3d "proper applications these standards as of the Gallo, F.2d 10. United States plain-error evidentiary test to claims of insuf ficiency”). Arledge, 553 States v. Delgado, F.3d (emphasis origi- F.3d at nal). (quoting Osum, 1991)). F.2d 312; McDowell, Delga see also F.3d do, (explaining at 330-31 the (alteration original) (quoting miscarriage justice" re "manifest standard Garner, to the verdict lates whether undermines 1978)). pro or of the ceedings). support to presented is the evi- firearm guilt,” nor is pointing count under 18 U.S.C. single conviction is that a “so tenuous dence 924(c)(1)(A), § is shocking.”13 weapon the on agree unanimously possessed.18 defendant B review, we conclude On also the conviction review We the con- to sustain the record is sufficient charged II II for error. Count Count 924(c)(1)(A), § the con- viction under 924(c) § violating 18 U.S.C. Suarez five-year imposition of a sequent mandato- furtherance of firearms in possessing under ry firearms iden trafficking crime. The drug 924(c)(1)(A)®. alleged § The indictment II the sawed-off Win tified Count were 4, 2015,” February or “[o]n about shotgun and the Davis gauge chester .20 executed, was that the search warrant date pistol. .380 caliber shotgun Suarez Winchester To a conviction pistol in further- the Davis .380 caliber of a of a in furtherance possession firearm drug trafficking crime. ance of a crime, drug trafficking the Government question as whether There is some actual had either prove must shotgun could function as a the Winchester of a firearm14 possession constructive time it was found firearm at the “further[ed], ad possession shotgun partial- The master bedroom. vance[d], drug help[ed] forward” the pieces. ly and was three disassembled following non-ex .trafficking The offense.15 lying stock and was connected determining factors are relevant clusive portion on the floor under the bed. of a possession “in furtherance” whether in a shotgun contained a shell was (1) type drug trafficking crime: mattress, top bag black under (2) conducted; accessibility activity along the bed piece of the (4) (3) firearm; firearm; type of in this testimony rail. The at trial was that (5) stolen; legal whether the firearm condition, weapon could disassembled' (6) gun ity possession; of the whether not be safe do be fired but that would (7) loaded; weapon proximity very good spot not a (8) so “[t]here’s because circum drugs; the time and you’re shotgun unless to hold onto the the firearm is found.16 stances under which There was “a holding near the breach.” of a insuff presence “The mere firearm” is you “if very one” that possibility, a distinct of more than one icient.17 When evidence 215, Walker, 17. 828 F.3d at 354. Phillips, 477 13. See United States v. F.3d (5th 2007) (quoting 219 Cir. United States v. 433, (5th 2004)). Avants, 449 Cir. 367 F.3d Correa-Ventura, 6 F.3d See United States v. 1993). 1070, (5th see id. at 1087 1087 Cir. But Cardenas, 748 F.2d 14. See United States v. may (noting specificity n.35 that verdict 1015, (5th 1984). Cir. 1019 impose appropri- necessary court to 352, Walker, 828 F.3d 354 15. United States v. penalty); Campbell, 775 v. ate cf. 2016) (5th (quoting Palm Cir. United States v. 664, (5th 2014) (explaining 669 Cir. F.3d (5th 2006)). er, 484, Cir. 456 F.3d 489-90 924(c) may require § multiple counts under find, jury government prove, and the Palmer, (quoting F.3d at 16. Id. at 354-55 possessed more than one that the defendant Smith, 490); F.3d see also United States v. firearm, finding plain in not so (5th no 501-03, 6616805, *3 WL at 2017). instructing jury). Cir. attempt to weapon, had made an fire that jury entitled to credit evi- dence testimony and find you probably injured yourself.” would have and that Suarez actively in drug assisted Gutierrez her no to how quickly There was evidence as trafficking operations. There is the Winchester could have been re-assem- jury’s conclusion that Suarez Nevertheless, say cannot bled. we at least one the two in firearms found pointing “the record is ‘devoid evidence posses- bedroom master and that such to guilt,’ or ... ‘the on a key sion furthered drug trafficking element of the offense so tenuous [i]s ”19 crimes.20 a conviction shocking’ would be had the jury its based verdict on the also challenges Winchester Suarez his conviction on Count II shotgun. based on the failure of the dis- require trict court jury that the unani- event, any both the Winchester mously determine which firearm formed as, in pistol were the same- room the basis of the conviction. Because he did to, police accessible object not trial, the instruction him, drugs as were the and distribution review for error.21 previous- We have paraphernalia, equipment, surveillance and ly approved of pattern jury instruction body armor. Gutierrez testified that Sua- given at trial as a correct statement rez knew about the Winchester and he law.22 have also We held that the need gave pistol. her the an over- Suarez was unanimously agree on which firearm night guest at the house. Officer Benavides supports the conviction for this offense.23 Sharp testified Suarez as identified For purposes of a conviction under 18 “consul” Gutierrez and stated Sua- 924(c)(1)(A), § whether a U.S.C. defendant during drug rez would sit a firearm particular pertains used firearm deals. Another officer testified that Sua- committed, means which the crime was rez’s role as a “male overseer” to Gutierrez is not therefore typical drug unanimously particular deals. determine that a McDowell, ic, cash, possessed illegally, 19. United States v. 498 F.3d was near 2007) (5th (alteration original) Cir. quantify the same house as distributable Knezek, (quoting United States F.2d v. drugs). (5th 1992)); 400 n.14 Cir. see also United (5th Delgado, States v. 330-31 F.3d Fuchs, States United 2012) (en banc) (reaffirming Cir. these stan- ("[J]ury that were instructions “proper applications plain- dards as objected er are reviewed for evidentiary error test to claims of insufficien- ror.”). cy”). Montes, See 602 F.3d See, Zamora, e.g., United States v. 386-87 2011) (determining evi pos dence was sufficient to show defendant Correa-Ventura, 23. United States v. handgun sessed a of a furtherance 1993); crime; see also trafficking handgun was found de O'Brien, residence, accessible, easily fendant’s 2169, (2010) loaded, (holding drugs 176 L.Ed.2d 979 that were found in defendant’s car); gun Holley, the status of a firearm as a element, is an 322, United States machine v. 831 F.3d sentencing than a when (determining 329-30 rather factor evidence sentence, support possessed used to an enhanced but was sufficient to show a defendant by drug trafficking upholding guilty plea firearm of a a the to a furtherance defendants 924(c) gun § crime because the was located near the violation of that three different listed defendant, firearms). large a caliber and semi-automat unregistered possession of was used an indictment when Suarez .firearm that firearm was charges more-than one Itha firearms—the- Winchester possessed.24 5861(d). § from is This distinct what of ca—in 26 U.S.C. violation statutory minimum impose a may or construct “[Possession actual 924(c)(l)(B)(i), under as will possession ive.”29 Constructive estab § particular a below.25Possession of discuss plau supports “a when the lished an offense type of firearm is element defendant sible inference had statutory ten-year min- purposes of knowledge weapon of and access to imum sentence not a conviction contraband.”30 possession of a firearm furtherance Police parts of the Winchester drug trafficking crime.26The district Suarez, plain sight proximity to and close failing not err in instruct therefore did an overnight guest in the house.31 who was upon firearm jury specify testified that Gutierrez Benavides 924(c)(1)(A). § conviction based under ancj of the knew Suarez Winchester some- affect instruction While does not during times carried sawed-off shotgun conviction, validity it does of Suarez’s therefore deals. Government met sentence, validity as we of his affect the posses- its burden to establish constructive III. section consider in sion. C The evidence is also sufficient IV, involving the conviction as to Count pre properly Because Suarez the Ithaca. Puckett testified challenge his to the verdicts served usually at when IV, the house Puckett III- and convic Counts we review the purchased drugs the Ithaca shot- on those counts de On a suffi tions novo.27 however, gun “always” by the dresser ciency-of-the-evidence challenge, bedroom. review-permits only Though master Gutierrez testi- de novo tous evaluate verdict, fied that neither she nor jury’s Suarez knew reasonableness house, verdict Ithaca in the reason- whether we believe that charged III able credited Puckett’s was correct.28 could have Counts and IV 24, States, sentences, range generally See allowable it constitutes an v. Richardson 1707, separate, aggravated offense element U.S. S.Ct. (1999) ("Where, example, jury.”). must be found L.Ed.2d robbery force dr the threat element force, Grant, jurors might v. some conclude threat; 2012). knife defendant used a to create the might gun. But that others conclude he used a Redd, disagreement—a disagreement about v. 28. United States 355 F.3d long all 12 as means—would matter jurors unanimously Gov concluded that the proved ele necessary had related ernment Mergerson, United States ment, namely, 1993), (5 had threát- defendant th Cir. force.”). ened Id. at 349. States, generally Alleyne See v. United 2160-63, Zamora, Cf. (2013). 2011) (evidence L.Ed.2d 314 sufficient to handgun show defendant fur- ("[Bjecause drug trafficking See at 2162 fact of a id. crime therance residence). brandishing handgun aggravates legally was found in prescribed defendánt’s

635 Gutierrez’s,32-Puckett’s testimony ness, over integrity public tes- or judi ”38 timony supports an inference proceedings,’ construc- cial .The Government con possession.33 tive and,- plain cedes error brief, its did oppose argument, remand. At oral Ill affirmatively urged Government this court (cid:127)

Congress has determined to remand to take into account- its if person possessed a .“a short-barreled Though concession error.39 must we rifle, short-barreled shotgun, semiauto “give review,”40 independent issue (cid:127) weapon,” matic assault committing a (cid:127) conclude remand is warranted/ 924(c), § in 18 crime .U.S.C. “the defined The imposition court’s of. the district person shall be to a term sentenced ten-year mandatory minimum sentence imprisonment of years.”34 not less 10 than Supreme error. Court de impo court’s challenges termined in United. States v. O’Brien41 (ten- sition a consecutive 120-month that, may a court impose a thirty-year year) mandatory minimum sentence under mandatory 924(c)(1)(B)© under § as to minimum Count II. Because § 924(c)(l)(B)(ii), the jury object unless deter he of this failed the imposition beyond a reasonable mandatory mines minimum doubt sentence dis court, firearm at gun.42 trict was a we review for A error.35 issue Sub machine .Alleyne States,43 v. sentencing sequently, is plain if contrary error it is United Court, Supreme Supreme precedent.36 circuit Court held .that is any fact that, error sue rights affects substantial if increases mandatory- “there mini the. that, ‘a probability reasonable mum sentence must submitted .-to error, [the defendant] have received found.beyond would reasonable doubt.'44A may sentence.’”37 years lesser We exercise five our resentencing generally discretion remand 18 under U.S.C. § if “the ‘seriously 924(c)(1)(A)© possession affect[s] of a fire fair 881, Arledge, 391, Duhon, 32. See United 553 F.3d 38. United States v. 541 F.3d 397 (5th 2008); (5th 888 2Ó08) (alteration Cir. see also United States v. original) (quot Cir. Sinclair, 50, (5th 1971) 438 F.2d Cir. Olano, 725, 732, ing States United v. 507 that, (noting even - conviction rests 1770, (1993)). 113 S.Ct. 508 123 L.Ed.2d convicts,” testimony "the "the verdict must be if sustained there substantial Scott, 39. See 821 F.3d at 571. evidence, taking the view most favorable government, (quoting it” Glasser Castaneda, 169, 40. v. 140 F.3d States States, 315 U.S. 62 S.Ct. (5th 2013) curiam) (per (quoting 171 Cir. 457, (1942))). L.Ed. 293, (5th Hope, 545 United States v. F.3d 2008)) Mergerson, 33. See 4 F.3d at 349. Cir. . 924(c)(l)(B)(i). § 34. 18 U.S.C. 218, 560 U.S. 176 L.Ed.2d 41. S.Ct. (2010). Lopez-Velasquez, United States v. 2008) curiam), (per Id. at 130 S.Ct. 2169. Scott, 36. United 570- F.3d 43. 570 U.S. 186 L.Ed.2d 314(2013). Williams, 37. United States v. (quoting United States v. Id. at Hebron, 2012)). 636 crime, but, court’s statement es- quired. The district drug

arm in furtherance of a probability that noted, reasonable impris tablishes with earlier the minimum term sen- received a lesser years if fire would have to ten onment increases for the court’s error. Supíneme tence but shotgun.45 arm is a sawed-off jury unanimity re has held that Court seriously affects the The error trial as to each quired in a federal criminal judi public reputation integrity, and togeth element of a federal crime.46Read Prin process for a number reasons. cial er, Supreme make Court’s decisions itself Alleyne ciples found minimum mandatory ten- clear that recognized Al- The Court conclusion. 924(c)(l)(B)(i) § could year sentence under of a “[ejlevating the low-end leyne that present in the case unless imposed not be of lib sentencing range heightens loss trial, jury, was a the factfinder the crime: the defen erty associated with beyond a reasonable unanimously found ‘expected punishment has increased dant’s possessed a sawed-off that Suarez doubt range’ of the narrowed and ‘the as a result drug of a traffick shotgun in furtherance invoking empowered, by prosecution is jury instruction did ing crime. The minimum, require judge mandatory of the two require that the find which impose higher punishment than he ”48 charged pistol in Count II—the firearms Supreme Court rea might wish.’ shotgun— or the sawed-off Winchester reality demonstrates “[t]his soned of its verdict. One formed the basis triggering fact the core crime find that jurors have failed to more could together mandatory minimum sentence sawed-off the Winchester crime, new, each aggravated constitute a in furtherance of traffick must be submitted to the element of which Alleyne, court’s ing. light vein, In this the Court ob jury.”49 same plain.47 sentencing error was finding of fact alters “[w]hen served legally prescribed punishment so as Suarez’s substantial This error affected it, necessarily forms a aggravate of im- the fact rights. a sentence Suarez received part of a new offense and must court said it prisonment the district constituent jury.”50 submitted to the The error imposed but for its conclu- be would not have violation, not ten-year here is a Amendment sion that a Sixth 924(c)(1)(B) (i) sentencing a court solely § was re- error. When under tion, 924(c)(l)(B)(i). appeal, § should afterwards con See 18 U.S.C. 45. suffrage firmed the unanimous twelve neighbours equals defendant’s] See, States, [the e.g., 526 46. Richardson v. United ....’”) (quoting William 4 813, 817, 1707, Com Blackstone, U.S. 119 S.Ct. 143 L.Ed.2d (1769)). England 343 (1999) (observing jury in a federal mentaries on the Laws of 985 "that a criminal case cannot convict unless it unani Scott, 562, 47. See United States v. proved mously that the Government has finds (5th Cir. offense) (citing element" of the each Johnson Louisiana, 356, 369-371, 92 S.Ct. v. U.S. States, 99, J., Alleyne (1972) (Powell, v. United con L.Ed.2d 152 2151, 2161, (2013) S.Ct. 186 L.Ed.2d 314 States, curring); 333 U.S. Andres v. United Jersey, (quoting Apprendi New 530 U.S. (1948); S.Ct. L.Ed. (2000) 120 S.Ct. L.Ed.2d 31(a)); Apprendi see also Crim. P. Fed. R. (Thomas, J., concurring)). Jersey, 530 U.S. New (2000) (explaining 147 L.Ed.2d 435 that “trial by jury require been understood to has accusation, evety pre ‘the truth of whether indictment, shape in the informa Id. at ferred jury, fails to submit an issue to a viola if a range received different had been ap Amendment, “Indeed, plicable.” tion of the Sixth “the fair if a judge were to find ness, integrity, or'public reputation judi of a that increased statutory fact the maxi when, sentence, proceedings” implicated, cial is as mum a finding such would vio here, Amendment, consequences the for the defendant late the Sixth if even the years imprison of ultimately are additional five defendant a received sentence falling ment and within original sentencing the evidence would have the range (i.e., supported jury’s finding range a applicable the omitted the ag without that “ fact).”55 ‘overwhelming’ gravating case, element is not or ‘essen present the if ’(cid:127)’51 tially permitted stand, we uncontroverted.’ the sentence Sua imprisoned rez would be for an offense explained Alleyne The Court that the that a never found he committed. Amendment is violated because “[i]t Sixth district court that it punish said not would say is no answer the defendant it did but for ten-year as the man could have received the same sentence sentence, datory which the dis [that with or without must be fact trict court erroneously applied. thought A by found a That because jury].”52 “[i]t Amendment seriously Sixth violation af obvious, for example, that defendant fects the public could be convicted and sentenced of process the in this assault, if jury only finds facts for case imposition because results in the of if larceny, punishments pre even of an years sentence additional five of for each crime are identical. One scribed imprisonment for a crime for which there reason is each has crime different conviction, was no and the evidence that and a defendant can be elements convicted might supported have a conviction under only if has each of element 924(c)(l)(B)(i) § strong. the crime of conviction.”53The Court ex plained aggravating regarding that an fact is “an This determination the fourth of separate, prong plain element of a offense error aggravated review is consistent court, by jury, regardless prior be found decisions must of this even might of what sentence the have a Sixth violation.56 defendant Amendment absent Cotton, 51. United States v. case in the defendant was sentenced to 1781, (2002) (quot- imprisonment of 122 S.Ct. 152 L.Ed.2d 860 36 months and the correct States, months,-that ing guidelines range v. 520 U.S. was 30-36 "the United Johnson (1997)). L.Ed.2d increase in sentence satisfies the dramatic affecting prong by fourth the fairness of this proceeding. We therefore exercise our discre 52. 133 at 2162. S.Ct. error”); unobjected-to tion to correct Garza-Lopez, 410 F.3d 53. Id. (5th 2005) (finding prong Cir. the fourth applicable original). plain when the (emphasis satisfied range imprisonment was 33-41 months months); United and the sentence was 77 55. Id. Alfaro, States 408 F.3d 209-10 2005) (concluding prong that the fourth Mudekunye, See United States v. 2011) curiam) plain error was when the sentence (per satisfied 290-91 50 months and correct Guidelines (concluding was error standard was sat months); range 15-21 United States v. isfied when sentence 97 months Villegas, 404 imprisonment above the cor 364-65 was 19 months Sandlin, curiam) (vacating remanding range); (per after rect United States v. 2009) (concluding, when the sen applying in a error standard John,57 punishment is finding to authorize -that Similarly, in as of fairness offensive prong was least notions fourth met when held that imposition of is exces- range im restitution sentencing guidelines $70,000. by calculated, im sive sentence properly range applicable exceeded posed our may exercise discretion We imprisonment.58 based that We months req without imposed vacate sentence on a number consider determination jury62 if finding by uisite ations, including the fa'ct .that predicate unproven a statu factual without consideration reached enhancement is tory minimum sentence because, were sen and range correct ‘essentially un- “‘overwhelming’ not affirmed, imposed with tence would Here, the evidence re controverted.’”63 ordinarily ac findings-that must any out garding is the Winchester significantly company sentence that essentially overwhelming uncontro- in range.59 know guidelines We above the verted. today that' the district us the case before imposed an not have addition would years imprisonment of had it known al five IV ten-year sen minimum that dissenting opinion con (cid:127) inapplicable.. tence was that not vacate the sen tends we should restitution, resentencing, ad monetary tence remand involving In a case First, arguments. liberty, vancing several this court rather than vacated plain dissenting opinion error asserts that applying after sentence prong fourth of review when the defendant failed address standard of. briefing in $164,988.98, plain in our pay error review his was ordered “with- error, no disagree. There is re not have court.64 We out court could quirement use the greater in an amount that a defendant ordered restitution $54,384.43.”60 to raise Resentencing prong” simi- words “fourth order than subject that sufficiently after an issue larly plain error review of Ap Rule permissible error review. Federal award ‘exceeded 28(a)(8)(A) $70,000.61 requires It pellate of restitution amount Procedure difficult, impossible, if brief contain his or place appellant’s a mone- tary one’s her liberty. appar- value it is “contentions and reasons But them, being subjected to citations to the authorities ent that five additional ap- on which the any jury parts the record year? imprisonment without Duhon, advisory months tence was correct 62. See United States v. .21 months). 2008). range 2010). 57. 597 F.3d Cotton, 535 U.S. 63. United States v. (2002) (quot 122 S.Ct. 152 L.Ed.2d Id. at 286. States, ing 520 U.S. v. United Johnson (1997)) L.Ed.2d .(finding overwhelming and evidence uncon- drug conspiracy troverted that involved Maturin, 488 60. United States v. grams or more of cocaine when 2007). kilogram). over a showed Inman, 61. See United States v. Post

pellate relies.”.65 “a prudential year] Under nobody sentence that requires construct the exercise of anticipating.” The brief quotes then .the discretion,” to satisfy re- “[f]ailure had'no court’s statement.-that.it quirements Rule 28 .... ordinarily discretion regarding length of the sen- abandonment of constitutes the issue.”66 tence because its ten- conclusion a. n However, exercising discretion on our year mandatory ap- minimum sentence matter, liberally must construe “we facts, These are not boilerplate as- plied. determining briefs what have issues sertions about prong fourth presented appeal.”67 been error, .pertain gravity sufficiently presented brief his Suarez’s Sixth Amendment violation. and corre- argument. His contentions sponding regarding sentencing. ten-year mandatory minimum sentence are The very brief, next section Suarez’s positions pertinent regarding his both challenging the sentence of 180-months of the Sixth violation and the Amendment imprisonment, reflects Suarez filed a itself, imprisonment both PSR, notice of no objections to the conced- Suarez concedes his brief are ing his sentencing arguments are sub- plain under the error reviewed standard. ject to error review. The first sub- contending plain- that the district court heading in this of the brief section asserts ly require jury to erred when failed the “[b]y that judicially fact-finding the en- specific to find the which firearm formed increasing hancement the mini- mandatory II, guilty of on basis the verdict Count year years, mum sentence from to ten five trial, that explained prior Suarez in the to the district court required fact- removed a court, Penalty by Notice of the issued he question from the of province [sic] the

was that Count II a term apprised carried jury.” argument the again This reflects imprisonment years. of of not less than 5 the that Sixth Amendment violation and His brief that in also recounts his initial minimum, ten-yéar sentence are inextrica- appearance, judge the magistrate admon- bly The then related. brief discusses Su- him ished that the minimum sentence preme .Court decisions have held (not years) II years was five ten and Count any that fact that penalty increases ten-year that no of mention was made beyond prescribed statutory crime in minimum. He asserts his that the brief jury, must be submitted to a maximum of to require failure court to finding asserts that “the that brief firearm, or in indicate which firearms listed in possessed Suarez the sawed-off the indictment was in further- drug-trafficking activity of furtherance trafficking of a drug ance crime was not a by jury,” to question fact be decided “minor” if because had omission argument, He continues with further in- pistol to “attributed the Mr. Suarez and cluding that his of the assertion “sentence shotgun, not the disassembled Winchester procedurally months unreasonable minimum would have re- it was fact- years being upon mained at in- because based five instead a. finding argues issue creased ten.” Suarez to, Ap- by jury. district court’s “hand was into sen- submitted forced tencing pellant’s Mr. to an by [ten- Suarez enhanced five sentence was increased App. 28(a)(8)(A). Fed. R. P. Miranda, 66. United error, imprison- that his sentence no he had

years to an enhancement due years. of, proven by five The that was ment was increased notice Therefore, this proof. adequately requisite only burden has not been prong fourth be vacated.” These should briefed, sentence but satisfied. facts Supreme Court coupled citations opinion quotes dissenting Amend- regarding the Sixth decisions unpublished court’s decision ade- are more than requirements ment’s Monroe,70 support prop of the a conclusion quate any waives brief osition “Suarez’s consequent Amendment error Sixth for the reasons plain-error claim to relief fair- seriously affects the sentencing only in that er we identified” case.71 ness, judi- public integrity was “that alleged appeal ror Monroe proceedings. cial a sufficient not have the district did many decisions our None plea.”72 The accept his factual basis dissenting opinion hold by court cited of his convic sought reversal defendant prong of to brief the fourth order This His was not at issue. tion. adequately, the words plain error review regard prong to the third court held with “fairness, reputation of integrity public review, error standard must be used.68 To judicial proceedings” that his Monroe failed to show sub had only that contrary, the cited hold cases rights because he stantial were affected regarding “showing” there must be probability to “show reasonable failed “showing” regarding A prong.69 fourth that, error, not have for the he would prong has fourth been made regard plea.”73 entered the With why to the sentence his initial brief as review, plain error prong fourth no imposed a crime for which “pointed explained that the defendant had vacated, if prin him must be convicted alleged to nothing beyond” to failure fourth sought to ciples be embodied factual require presentation of a sufficient meaning power. any réal prong have accept guilty plea basis Monroe’s substantive, not for This court evaluates impugned error the fair establish that mulaic, accordingly. arguments and rules ness, integrity public explained pred his sentence Suarez that system.74 not hold Monroe We did on a crime that the never icated inadequate that un a defendant’s brief committed, court would the district expressly for its less it recites the well-known imposed the sentence but have (citing v. 69. See id. 68.Post at 642-43 Ca (5th 2015) ravayo, 809 F.3d 273-74 Cir. Rivera, curiam); (per United States v. (5th 2015) Fed.Appx. (per 70. 629 Cir. 2015); (5th 1018 n.3 Cir. curiam) (unpublished). (5th Andaverde-Tinoco, 741 2013); Monroe, 629 Fed. Cir. United States v. 71. Post at 644. 2015) Appx. (per cu- 637-38 riam) (unpublished); United States Carrillo- Monroe, Fed.Appx. at 635. Gonzales, Fed.Appx. 2015) curiam) (per (unpublished); United (quoting States v. Id. at 636 Domin- Handy, Fed.Appx. Benitez, guez 542 U.S. S.Ct. curiam) 2016) (per (unpublished); (2004)). 159 L.Ed.2d 157 Neria, Fed.Appx. and United States v. curiam) (unpub (per lished)). at prong plain elements of the fourth error consequent five-year mandatory mini- sentence, review. mum say we cannot that there no evidence support reasonable Monroe, Consistent with has Suarez juror’s that possessed conclusion pointed to more than the Sixth Amend Winchester, shotgun in furtherance of to”75 “pointed ment error. He has facts. drug trafficking. But that does These include the fact that the district not overwhelmingly establish that the di- court stated that “if it werén’t sassembled Winchester possessed mínimums, go ! probably would furtherance of trafficking at the time months], than I less don’t have [120 alleged in the indictment. power.” pointed He to the fact that the result the district court’s error was It is clear that Sixth Amendment imposition ten-year mandatory flowing from error the failure to submit an of imprisonment. sentence “may element of a crime a jury be The circumstances of this case involve a forfeited ... timely failure make “material and substantial” over-sentenc- i right,” assertion of the a. government ing,76 plain concession of jury “surely” would have found the miss error, overwhelming and facts that do not element, ing a defendant should conclusion that the disassem- permitted escape the more severe pun bled Winchester was further- prescribed by Congress.79 ishment The Su drug trafficking ance of al- time preme plain Court made in Cotton that leged. prong The fourth error ‘fairness, real then to “[t]he threat review satisfied. public reputation argues The dissenting opinion proceedings’ Respondents, be if would de in this not “seriously spite overwhelming facts case do and uncontrovert- question integrity they into of our call[] ed evidence were involved judicial system,” drug conspiracy, one should vast to receive á “[n]o were reasonably think that prescribed committing the result here 'is those unobjecting ‘drug' unfair to this less defendant.”77 substantial offenses because determining objected error review whether was never to at seriously error affects trial.”80 But cannot on say, Amendment we based the Sixth case, the facts of this that public jury “surely” the of proceedings, con have that Suarez courts should would sider whether evidence of in the element of the Winchester of furtherance the to drug trafficking alleged crime was not the at in the submitted the time “ ‘overwhelming’ ‘essentially indictment. the We therefore exercise dis ”78 uncontroverted.’ As above re discussed cretion error of under the standard garding sufficiency of the the to to to court review remand the district for support a II resentencing. conviction Count under States, 461, ing 75. Id. v. United 520 U.S. Johnson (1997)). 117 S.Ct. L.Ed.2d 718 John, States United v. (5th Cir. (quoting Id. at 634 Yakus United v. States , 414, 444, L.Ed. 64 S.Ct. 77. Post at 645. (1944)). Cotton, 78. United States v. 535 U.S. (2002) (quot 152 L.Ed.2d 860 -

n n this proposition that opinion, for the ty error to be longer requix-esplain no circuit reasons, con Suarez’s foregoing Fox’the n appeal, on The well-intentioned briefed AFFIRMED. on counts are all viction's many in so re- opinion is majority However, the district court’s VACATE to know to is hard where spects II RE to' sentencing as Count order n . affirming convic- agree I the begin. (cid:127) resentencing for MAND the in- from respectfully dissent tions to the decision vacate sentence. explicable SMITH, Judge, E. Circuit JERRY dissenting: core, majority opinion over- At its advocacy of on plenty his Mr. has the Ameri- looks the essential character of behalf; By of has the rule law none. ad- adversarial, not justice as system can vancing points all unbriefed criminal expect a defen- inquisitorial. We error, majority up the panel' takes objections in the dant to raise issues and total slack left counsel’s considerable and, they or not whether- are trial court prong, the fourth failure to argue there, again bring to them as articulated best, wilts, begs on at and' government potential this Alert to defi- appellant. behalf, argu- at Yet oral worst. Suarez’s argument, ciency, panel, oral this before ment, Department Justice most sup-, requesting a notice the,-lawyers sent of error do to its confession could only response, briefing.1 plemental right thing say “it like the feels sup- muster government case could Alas, to do.” unpub- fourth-prong relief was port (and opin- non-precedential) hence low lished marks new panel decision in the Neria that was listed al- notice. jurisprudence, ion plain-error court’s this having flagged in ad- Despite issue lawyers it is a who though bonanza vance, nor government Sua- neither It mal- inadequate would be briefs. submit single point to a attorney is rez’s any Public Defender able practice for Federal given Texas, published case have Loui- which we or criminal defense counsel majori- where the defendant did pite relief siana, Mississippi plain-error briefs discuss whether letter should notice read paragraphs of the two The first n issue is waived this case failure follows: briefing. in adequate suggest Relevant caselaw Some decisions Caravayo, 809 appellant F.3d United States burden defendant cludes. 269, curiam): 2015) plain-error review and (per entitlement show 273-74. argument Rivera, revers ah plain error is waived or 2015); ible abandoned n.3 v. Andav satisfaction each failure to demonstrate erde-Tinoco, prongs plain-error test in four 2013); Monroe, 629 Fed. specifi appellant’s opening brief. More (per Appx. cu precedent suggests cally, that the court this Carrillo-Gonzales, riam); United plain-error discretion if will not exercise its 2015) 366, (5th (per Fed.Appx. Cir. 627 367 specifically show appellant does not the curiam); Handy, Fed. States v. 647 sentencing seriously alleged error how (5th 2016) 296, (per Appx. Cir. cu 300-01 fairness, integrity, public rep or affects the riam); Neria, 628 Fed. and United under, e.g., judicial proceedings utation curiam). 256, 2015) (per Appx. 258 States, 5S6 U.S. Puckett v. United examples, only are and counsel These (2009). Some S.Ct. L.Ed.2d free to refer authorities. to other relevant suggests also precedent this court by government's not bound concession plain of reversible error. adequately not show how each of the re- record brief each prong has quired prongs four was satisfied. met .... As it been relates to the 4th prong, Appellant met it’s -burden [sic] published unequivocal:

Our caselaw-is that the error fairness, in- affected statutory challenge [The defendant’s]' tegrity, public reputation or judi- cannot on error succeed review proceedings. cial Appellant While did he' fails to argue that al because words, not use those exact Ap- the fact leged fairness, error integ affected the pellant’s by increased or rity, public reputation of judicial years contrary Supreme to prece- Court proceedings. "... “We have refused to dent, clearly it affected the fairness of here, correct errors when as proceedings. complaining party no showing makes United States v. prong.” to the fourth majority’s first shortcoming, there- Rivera, F.3d n.3 fore, to is its refusal enforce the well- 2015); see United States v. Andav requirement established to obtain erde-Tinoco, plain-error relief, an appellant must ade- (“[T]he 2013) is on burden the de quately the four prongs in address his to fendant demonstrate the error letter, brief. In his supplemental in at- affects the public tempting to show how his sufficiently brief proceedings.”) plain error, points addressed only pages: clearly three “The issue States v. Caravayo, presented appeal in pages 26 to 28 of curiam). (per Even Appellants [sic] Brief.” Although in its showing that prongs first three are desperate effort to rescue Suarez from a enough. met is not points “[T]he defendant ditch, the ranges majority far and wide nothing beyond court’s error throughout- the brief to snippets find the increase her sentence that the adequate arguments, Suarez di- Rivera, may have caused.” pages us only rects 26 to 28. supplemental answering Suarez’s letter I it easy will make future defense pre-argument inquiry admits that his majority’s opinion counsel use the as an briefing appeal2 on falls well short inadequate briefings -by setting excuse above He standard. concedes forth in toto argument on contained only thing pages 26-28 of

[t]he brief do Suarez’s It shows brief. failed.to through go plain-error each prong how this now requires little circuit make analysis step- review by step despite fourth-prong argument. but I re- successful so, failing to do produce is clear from the pages 26-28 in the footnote.3 opening (2013), reply 2. Suarez filed an brief Supreme Court held that brief. factual determinations increase maxi sentences, mum other than a 3. The brief reads as follows: conviction, prior by must found plainly by The District Court erred (or beyond doubt admitted a reasonable jury finding requiring specific on which defendant), The recent Fifth Circuit firearms formed guilty the basis ver- States, Haines, opinion in United further dict reached Count 2. longstanding rule and explored Appreridi Jersey, v. New mandatory mini "facts that increase the 147 L.Ed. 2d 435 mum sentence and are therefore elements (2000), States, Alleyne v. United 570 jury must be submitted S.Ct. 2d L.Ed. Monroe, Fed.Appx. nothing more than use This brief does curiam). (per in once the en- erred” “plainly words brief, 32-page In the there tire document. on argument no specific makes that sets forth any case is no mention Instead, of its court’s exercise discretion. error, is the showing plain nor the test general for a reversal simply argues [he] listing of the There is no even stated. test alleged er- on the district court’s based a prongs, much less discus- four Rivera, re- we ror. Pages any of them is satisfied. of how sion “per argument” fourth-prong a se jected sup- information that would give 26-28 do remedy a and declined prongs, but without first three port showing on no appellant made where prongs exist. mentioning that those even its why the court should exercise discre- however, above, “the burden quoted As Rivera, at 1018. Observ- tion. to demonstrate the defendant “col- per approach se would ing that a error affects prong- into the first lapse the fourth proceedings.” public reputation three,” this court has noted (citation omit- Caravayo, at to correct errors “refused ted). no party makes complaining ... prong.” showing as to the fourth plain- any claim waives Suarez’s brief has n.3. Because [Suarez] 1018-19 & identified for the reasons we error relief nobody was antici- minimum sentence beyond a doubt.” reasonable Haines, pating: judge who tries to I am a THE COURT: person, each and because by look at returned the Grand Indictment In the firearms—usually conspiracy specific weapons, Jury, Count 2 listed two history somebody has no criminal shotgun pistol. and a short-barreled I would be you Category like or a Penalty, Appellant have In the Notice ROA.13. look at as a the Court would someone put that this count carried on notice fashioning possible variance terms imprisonment "of not less than 5 term of your non-guideline But in case ap- sentence. Mr. initial years.” At Suarez’ ROA.16. discretion I don’t have that because Don Bush admon- pearance, the honorable mandatory again minimums. mini- stated the ished Mr. Suarez and years. Count 2 was five sentence for mum recommendation, if I'll follow the ad- ROA. at 12-15. Suarez never minimums, I mandatory weren't for the minimum monished was, . that, go but I probably would less than actuality year be- ten minimum power. have ROA.575-76. allegation of the don’t sawed-off cause 924(c) charge within to him contained shotgun. was not known This fact distinct fire- Count consisted two within the Presentence until it was revealed arms, mandatory min- with different each Report. ROA.665. returned, mandatory minimum Because the imums. When the verdict one, upon but not was enhanced based simply found Mr. Sua- verdict for Count firearms, question of charged, both of these guilty offense but did rez as to the being attribute which firearm was which of the firearms listed indicate (the question that should defendant was a fact or the within the indictment jury been accor- omis- have submitted to pistol), this verdict referenced. This Apprendi, Alleyne, and Haines. dance with is not a minor one. Had the attrib- sion not, a result of this clear It was and as pistol to Mr. Suarez and not uted error, rights directly Appellant’s were shotgun the man- Winchester disassembled by having substantially [sic] effected datory would have remained at sentence increased an additional being ten. his years instead of increased to five such, years. Judge five As Mazzant's hand was forced brief). (ellipses Appellant’s brief at sentencing to an enhanced into Mr. Suarez beyond pointed nothing majority the As accurately explains, the the reversal, alleged justify court’s error to that, unpreserved as for the man- why he has failed to show his conviction sentence, datory minimum the instruction “impugns the pub- require did the to find which of of system.” lic the court Id. at the firearms charged two in Count II—the pistol or the Winchester—formed the basis Monroe, Fed.Appx. (ellipses Suarez, at 637-38 of its verdict. The found in original). guilty Suarez’s of counsel of furtherance drug-trafficking of- precisely same insufficiency that we fense, (with possessed pistol either the Rivera, at identified 1018. Yet years) minimum of five panel majority enthusiastically this excus- (a Winchester shotgun requiring sawed-off es it. years). minimum of easy ten It conclude, however, majority all of panel turns the cited that Suarez could have decisions dust.4 Nowhere does “possessed” Suarez’s either or both. The Winches- brief mention even the exercise of “discre- ter undeniably there. tion,” much less “seriously,” words as such Weapons plainly integral were to this “fairness,” “integrity,” or “reputation.” drug-trafficking operation. One witness testing There is little left of for adversarial testified Suarez “knew about the Win- appeal, error on because inquisi- this chester.” Another stated “that Suarez panel torial has unnecessary. declared it shotgun during would sit drug Even if the fourth prong had been ade- is ample deals.” There briefed, quately far facts are from jury’s conclusion that Suarez justify

what should rare invocation of guns least ... one two ... plain-error sorry No relief. one should feel furthered the drug-trafficking crimes. Suarez, who caught Mr. in the majority correctly upholds also midst of an drug extensive and sordid (actual possession verdict or construc- operation. majority accurately As the re- tive) of the Winchester and the Ithaca counts, “police ... ... Suarez—who knowledge because “had ... as ‘consul or acted ...—in overseer to” them. majority candidly access As the [with] master bedroom distributable recounts, “[p]olice found the Winchester of methamphetamine, baggies, amount plain sight Suarez,” proximity and close scales, cameras, security a .380 caliber and “Suarez knew the Winchester and shells, armor, pistol, shotgun Davis body shotgun sometimes carried sawed-off gauge .20 Winchester sawed-off during seedy Under these deals.” gauge a .12 Ithaca sawed-off [and] facts, it is difficult to understand how the shotgun ... in a bedroom.” second No one majority that the failure to can conclude reasonably should think the result jury specifically ask the whether Suarez unobjecting here is unfair to this defen- dant, possessed the seriously that it into Winchester furtherance much less calls question affects, our integrity sys- “seriously” his crimes much less tem, affects, plain-error requires. integrity as test courts. may majority good 4. This circuit’s rule of orderliness be an believe in faith their impediment precedential impact precedent, opinion does contravene so for majority’s pronouncements. sweeping To the disagreement, purposes showing my I treat I extent that decisions have are cited majority opinion though it were bind- binding, panel majority authority has no ing panels. on future judges to undermine them. No doubt the sum, majority commits numerous evaporates It of law and fact. errors properly error be

requirement For the ad- appeal. briefed

raised unhappy conse- justice,

ministration who fails

quence is that defendant also in the

raise error raising it on at least appeal, from

excused agrees. government foolishly

Further, the record misreads majority regarding concluding that “the evidence shotgun is overwhelm-

the Winchester evidence, contrary,

ing.” The abundant, any supposed error integrity of impugn no by means

would system. re- plain-error scratchy aspéct duty is almost proper our

view A error stand.

always to let unnoticed fixing every prejudi- goal

perfectionist plain-error mistake is inconsistent with

cial Court has ex- Supreme as the

review it.

plained hardly “feels of this sentence

Reversal do,” quote gov- right thing to

like the adversari- counsel default. Our

ernment I justice deserves better. system

al re-

spectfully dissent. URANGA, III, Petitioner

John

-Appellant

, Director, Depart DAVIS, Texas

Lorie Justice, Correction

ment Criminal Division, Respondent-

al Institutions

Appellee.

No. 15-10290

United States Court Appeals,

Fifth Circuit. January

FILED

Case Details

Case Name: United States v. Paul Suarez

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jan 12, 2018

Citation: 879 F.3d 626

Docket Number: 16-41267

Court Abbreviation: 5th Cir.