Lead Opinion
A jury convicted Paul Suarez for his involvement in a drug trafficking conspiracy and for firearms offenses. Suarez appeals contending that the convictions were not supported by sufficient evidence. He also asserts that the district court erred in imposing a 120-month (ten year) mandatory minimum prison sentence for possession of a sawed-off shotgun in furtherance of a drug trafficking crime. The evidence was sufficient to sustain each of Suarez’s convictions, and they are affirmed. But that the mandatory minimum sentence of 120 months of imprisonment was inapplicable, and we therefore vacate the sentence and remand to the district court for resentenc-ing.
I
After discovering methamphetamine in Timothy Sharp’s truck during the course of a traffic stop, Cooke County Police obtained a warrant to search the residence of Erica Gutierrez, from whom Sharp said he purchased the drugs. When police searched Gutierrez’s home, they found her and Paul Suarez—who, according to Sharp, acted as “consul or overseer” for Gutierrez’s drug deals—in the master bedroom. Also found in that room were a distributable amount of methamphetamine, baggies, scales, security cameras, a .380 caliber Davis pistol, shotgun shells, body armor, and a .20 gauge Winchester .sawed-off shotgun that, though disassembled, had ammunition in its chamber. Police also found a .20 gauge Ithaca sawed-off shotgun underneath a mattress in a second bedroom. During the search, officers answered a call to Gutierrez’s cell phone from Travis Puckett, who wanted t'o buy methamphetamine. Puckett agreed to meet at a local hotel, and he was arrested when he arrived there to consummate the transaction.
Gutierrez and Puckett were witnesses at Suarez’s trial. Gutierrez testified that Suarez distributed methamphetamine and split the profits with her, had stayed at the house the previous night, gave her the pistol, and knew about the Winchester but not the Ithaca. Puckett testified that Suar rez was often present when he bought methamphetamine from Gutierrez and that Suarez made the sale if Gutierrez was unavailable. Puckett also testified that the Ithaca, which he identified by the tape on its handle, was “always” in the master bedroom when he made purchases, there.
. Count-1 of the indictment charged Suarez with conspiracy to possess with intent to distribute narcotics in violation, of 21 U.S.C. § 846. Count II charged possession of the pistol and Winchester shotgun in furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(c). Counts III and IV alleged possession of the , unregistered Winchester and Ithaca shotguns in violation of 26 U.S.C. § 5861(d). Suarez moved for acquittal on Counts III and IV under Federal Rule of Criminal Procedure 29, but the district court denied the motion. The proposed jury charge and verdict form for Count II did not require the jury to specify which firearm—the pistol or the Winchester—supported guilt on Count II, and Suarez did not object at trial.
The jury found Suarez guilty on all four counts. The Presentence Investigation Report (PSR) recommended 60 months of imprisonment for Counts I, III, and IV and concluded that Count II required a ten-year minimum prison sentence, to run consecutively to any other counts. The district court adopted the recommendation and sentenced Suarez to 180 months of imprisonment, but stated on the record that it- would have sentenced Suarez to a shorter term but for the ten-year mandatory minimum sentence that it had concluded was applicable. This appeal followed.
II
The standard of review for insufficiency-of-the-evidence claims depends on whether the claims were preserved. We review claims preserved through a Rule 29 motion de novo, but “with substantial deference to the jury verdict.”
A
We- review the conviction under Count I for plain error.
To prove a drug conspiracy, the Government must prove, (1) an agreement between two or more persons to violate narcotics laws; (2)-knowledge of the agreement; and (3) voluntarily participation in the agreement.
Gutierrez’s testimony was not the only evidence of Suarez’s involvement in the drug distribution conspiracy. Officers testified that they found Suarez in the master bedroom with Gutierrez and that the bedroom contained a distributable quantity of methamphetamine, packing and weighing materials, security cameras, guns, and body armor. Puckett testified that Suarez was usually present when he bought drugs from Gutierrez, Suarez had answered Gutierrez’s phone before, and Puckett went to the hotel where he was arrested because he assumed the male officer who answered Gutierrez’s phone was Suarez, Suarez argues that Gutierrez and Puckett .are unreliable' witnesses, but we generally “will not' disturb (the jury’s) verdict [or] weigh the-' credibility of witnesses.”
B
We also review the conviction on Count II for plain error. Count II charged Suarez with violating 18 U.S.C. § 924(c) by possessing firearms in furtherance of a drug trafficking crime. The firearms identified in Count II were the sawed-off Winchester .20 gauge shotgun and the Davis .380 caliber pistol.
To support a conviction for possession of a firearm in furtherance of a drug trafficking crime, the Government must prove that Suarez had either actual or constructive possession of a firearm
On plain error review, we conclude that the record is sufficient to sustain the conviction under § 924(c)(1)(A), and the consequent imposition of a five-year mandatory minimum sentence under § 924(c)(1)(A)®. The indictment alleged that “[o]n or about February 4, 2015,” the date that the search warrant was executed, Suarez possessed the Winchester shotgun and the Davis .380 caliber pistol in furtherance of a drug trafficking crime.
There is some question as to whether the Winchester shotgun could function as a firearm at the time it was found in the master bedroom. The shotgun was partially disassembled and was in three pieces. The stock was not connected and was lying on the floor under the bed. The portion of the shotgun that contained a shell was in a black bag under the mattress, and the top piece of the shotgun was along the bed rail. The testimony at trial was that in this disassembled' condition, the weapon could be fired but that it would not be safe to do so because “[t]here’s not a very good spot to hold onto the shotgun unless you’re holding near the breach.” There was “a possibility, a very distinct one” that “if you had made an attempt to fire that weapon, you probably would have injured yourself.” There was no evidence as to how quickly the Winchester could have been re-assembled. Nevertheless, we cannot say that “the record is ‘devoid of evidence pointing to guilt,’ or ... ‘the evidence on a key element of the offense [i]s so tenuous that a conviction would be shocking’ ”
In any event, both the Winchester and the pistol were in the same- room as, and accessible to, Suarez when the police found him, as were the drugs and distribution paraphernalia, surveillance equipment, and body armor. Gutierrez testified that Suarez knew about the Winchester and that he gave her the pistol. Suarez was an overnight guest at the house. Officer Benavides testified that Sharp identified Suarez as “consul” for Gutierrez and stated that Suarez would sit with a firearm during drug deals. Another officer testified that Suarez’s role as a “male overseer” to Gutierrez was typical in drug deals.
The jury was entitled to credit this evidence and testimony and find that Suarez actively assisted Gutierrez in her drug trafficking operations. There is support for the jury’s conclusion that Suarez possessed at least one of the two firearms found in the master bedroom and that such possession furthered the drug trafficking crimes.
Suarez also challenges his conviction on Count II based on the failure of the district court to require that the jury unanimously determine which firearm formed the basis of the conviction. Because he did not object to the instruction at trial, we review for plain error.
C
Because Suarez properly preserved his challenge to the verdicts on Counts III- and IV, we review the convictions on those counts de novo.
Police found parts of the Winchester in plain sight and close proximity to Suarez, who was an overnight guest in the house.
The evidence is also sufficient to support the conviction as to Count IV, involving the Ithaca. Puckett testified that Suarez was usually at the house when Puckett purchased drugs and that the Ithaca shotgun was “always” by the dresser in the master bedroom. Though Gutierrez testified that neither she nor Suarez knew the Ithaca shotgun was in the house, a reasonable jury could have credited Puckett’s testimony over Gutierrez’s,
Ill
Congress has determined that if a person possessed .“a short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon,” in committing a crime defined in 18 .U.S.C. § 924(c), “the person shall be sentenced to a term of imprisonment of not less than 10 years.”
The district court’s imposition of. the ten-year mandatory minimum sentence was plain error. The Supreme Court determined in United. States v. O’Brien
This error affected Suarez’s substantial rights. Suarez received a sentence of imprisonment that the district court said it would not have imposed but for its conclusion that a mandatory minimum ten-year sentence under § 924( c) (1) (B) (i) was required. The district court’s statement establishes with reasonable probability that Suarez would have received a lesser sentence but for the court’s error.
The error seriously affects the fairness, integrity, and public reputation of the judicial process for a number of reasons. Principles found in Alleyne itself support this conclusion. The Court recognized in Al-leyne that “[ejlevating the low-end of a sentencing range heightens the loss of liberty associated with the crime: the defendant’s ‘expected punishment has increased as a result of the narrowed range’ and ‘the prosecution is empowered, by invoking the mandatory minimum, to require the judge to impose a higher punishment than he might wish.’ ”
The Court explained in Alleyne that the Sixth Amendment is violated because “[i]t is no answer to say that the defendant could have received the same sentence with or without that fact [that must be found by a jury].”
This determination regarding the fourth prong of plain error review is consistent with prior decisions of this court, even absent a Sixth Amendment violation.
In a case involving monetary restitution, rather than liberty, this court vacated a sentence after applying the plain error standard of. review when the defendant was ordered to pay $164,988.98, and “without the error, the court could not have ordered restitution in an amount greater than $54,384.43.”
We may exercise our discretion to vacate a sentence imposed without the requisite finding by a jury
IV
The dissenting opinion contends that we should not vacate the sentence or remand for resentencing, advancing several arguments. First, the dissenting opinion asserts that Suarez failed to address the fourth prong of plain error review in his briefing in our court.
Suarez’s brief sufficiently presented his argument. His contentions regarding the ten-year mandatory minimum sentence are pertinent to his positions regarding both the Sixth Amendment violation and the sentence of imprisonment itself, both of which Suarez concedes in his brief are reviewed under the plain error standard. In contending that the district court plainly erred when it failed to require the jury to find which specific firearm formed the basis of the guilty verdict on Count II, Suarez explained that prior to trial, in the Notice of Penalty issued by the court, he was apprised that Count II carried a term of imprisonment of not less than 5 years. His brief also recounts that in his initial appearance, the magistrate judge admonished him that the minimum sentence for Count II was five years (not ten years) and that no mention was made of the ten-year minimum. He asserts in his brief that the failure of the court to require the jury to indicate which firearm, or firearms listed in the indictment was possessed in furtherance of a drug trafficking crime was not a “minor” omission because if the jury had “attributed the pistol to Mr. Suarez and not the disassembled Winchester shotgun, the mandatory minimum would have remained at five years instead of being increased to ten.” Suarez argues that the district court’s “hand was forced into sentencing Mr. Suarez to an enhanced [ten-year] minimum sentence that nobody was anticipating.” The brief then quotes .the district court’s statement.-that.it had'no discretion regarding the length of the sentence because of its conclusion that a. ten-year mandatory ■ minimum sentence applied. These are facts, not boilerplate assertions about the fourth prong of plain error, that .pertain to the gravity of the Sixth Amendment violation. and corresponding error in sentencing.
The very next section of Suarez’s brief, challenging the sentence of 180-months of imprisonment, reflects that Suarez filed a notice of no objections to the PSR, conceding that his sentencing arguments are subject to plain error review. The first subheading in this section of the brief asserts that “[b]y judicially fact-finding the enhancement increasing the mandatory minimum sentence from five year to ten years, the district court removed a required fact-question [sic] from the province of the jury.” This again reflects the argument that the Sixth Amendment violation and ten-yéar minimum, sentence are inextricably related. The brief then discusses Supreme .Court decisions which have held that any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and the brief asserts that “the finding that Suarez possessed the sawed-off shotgun in furtherance of drug-trafficking activity was a fact question to be decided by the jury,” He continues with further argument, including the assertion that his “sentence of 180 months was procedurally unreasonable because it was based upon a. judicial fact-finding of an issue that was required to be submitted to, and found by the jury. Appellant’s sentence was increased by five years due to an enhancement he had no notice of, and that was not proven to the requisite burden of proof. Therefore, this sentence should be vacated.” These facts coupled with citations to Supreme Court decisions regarding the Sixth Amendment’s requirements are more than adequate to support a conclusion that the Sixth Amendment error and consequent sentencing error seriously affects the fairness, integrity or public reputation of judicial proceedings.
None of the many decisions of our court cited by the dissenting opinion hold that in order to brief the fourth prong of plain error review adequately, the words “fairness, integrity or public reputation of judicial proceedings” must be used.
The dissenting opinion quotes this court’s unpublished decision in United States v. Monroe,
Consistent with Monroe, Suarez has pointed to more than the Sixth Amendment error. He has “pointed to”
The circumstances of this case involve a “material and substantial” over-sentencing,
The dissenting opinion argues that the facts in this case do not “seriously call[] into question the integrity of our judicial system,” and that “[n]o one should reasonably think that the result here 'is unfair to this unobjecting defendant.”
It is clear that Sixth Amendment error flowing from the failure to submit an element of a crime to a jury “may be forfeited ... by the failure to make timely assertion i of the right,” and that when a. jury “surely” would have found the missing element, a defendant should not be permitted to escape the more severe punishment prescribed by Congress.
⅜ ⅛
Fox’ the foregoing reasons, Suarez’s conviction's on all counts are AFFIRMED. However, we VACATE the district court’s sentencing order as to' Count II and REMAND for resentencing. • ■
. United States v. Delgado, 672 F.3d 320, 330-31 (5th Cir. 2012) (en banc).
. United States v. McDowell, 498 F.3d 308, 312 (5th Cir. 2007) (quoting United States v. Ragsdale, 426 F.3d 765, 770-71 (5th Cir. 2005)).
. See Delgado, 672 F.3d at 330.
. Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (alteration in original) (quoting United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)).
. McDowell, 498 F.3d at 312 (alteration in original) (quoting United States v. Knezek, 964 F.2d 394, 400 n.14 (5th Cir. 1992)); see also Delgado, 672 F.3d at 330-31 (reaffirming these standards as "proper applications of the plain-error test to claims of evidentiary insufficiency”).
. Delgado, 672 F.3d at 331 (emphasis in original).
. McDowell, 498 F.3d at 312; see also Delgado, 672 F.3d at 330-31 (explaining that the "manifest miscarriage of justice" standard relates to whether the verdict undermines the fairness, integrity, or reputation of the proceedings).
. McDowell, 498 F.3d at 312.
. See Delgado, 672 F.3d at 330.
. United States v. Gallo, 927 F.2d 815, 820 (5th Cir. 1991).
. United States v. Arledge, 553 F.3d 881, 888 (5th Cir. 2008) (quoting United States v. Osum, 943 F.2d 1394, 1405 (5th Cir. 1991)).
. Id. (alteration in original) (quoting United States v. Garner, 581 F.2d 481, 485 (5th Cir. 1978)).
. See United States v. Phillips, 477 F.3d 215, 219 (5th Cir. 2007) (quoting United States v. Avants, 367 F.3d 433, 449 (5th Cir. 2004)).
. See United States v. Cardenas, 748 F.2d 1015, 1019 (5th Cir. 1984).
. United States v. Walker, 828 F.3d 352, 354 (5th Cir. 2016) (quoting United States v. Palmer, 456 F.3d 484, 489-90 (5th Cir. 2006)).
. Id. at 354-55 (quoting Palmer, 456 F.3d at 490); see also United States v. Smith, 878 F.3d 498, 501-03, 2017 WL 6616805, at *3 (5th Cir. 2017).
. Walker, 828 F.3d at 354.
. See United States v. Correa-Ventura, 6 F.3d 1070, 1087 (5th Cir. 1993). But see id. at 1087 n.35 (noting that verdict specificity may be necessary for a court to impose the appropriate penalty); cf. United States v. Campbell, 775 F.3d 664, 669 (5th Cir. 2014) (explaining that multiple counts under § 924(c) may require the government to prove, and the jury to find, that the defendant possessed more than one firearm, but finding no plain error in not so instructing the jury).
. United States v. McDowell, 498 F.3d 308, 312 (5th Cir. 2007) (alteration in original) (quoting United States v. Knezek, 964 F.2d 394, 400 n.14 (5th Cir. 1992)); see also United States v. Delgado, 672 F.3d 320, 330-31 (5th Cir. 2012) (en banc) (reaffirming these standards as “proper applications of the plain-error test to claims of evidentiary insufficiency”).
. See, e.g., United States v. Zamora, 661 F.3d 200, 210-11 (5th Cir. 2011) (determining evidence was sufficient to show defendant possessed a handgun in furtherance of a drug trafficking crime; handgun was found in defendant’s residence, easily accessible, and loaded, and drugs were found in defendant’s car); United States v. Holley, 831 F.3d 322, 329-30 (5th Cir. 2016) (determining evidence was sufficient to show defendant possessed a firearm in furtherance of a drug trafficking crime because the gun was located near the defendant, a large caliber and semi-automatic, possessed illegally, was near cash, and in the same house as distributable quantify of drugs).
. United States v. Fuchs, 467 F.3d 889, 900 (5th Cir. 2006) ("[J]ury instructions that were not objected to are reviewed for plain error.”).
. See United States v. Montes, 602 F.3d 381, 386-87 (5th Cir. 2010).
. United States v. Correa-Ventura, 6 F.3d 1070, 1087 (5th Cir. 1993); see also United States v. O'Brien, 560 U.S. 218, 235, 130 S.Ct. 2169, 176 L.Ed.2d 979 (2010) (holding that the status of a firearm as a machine gun is an element, rather than a sentencing factor when used to support an enhanced sentence, but upholding a guilty plea by the defendants to a violation of § 924(c) that listed three different firearms).
, See generally Richardson v. United States, 526 U.S. 813, 817, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999) ("Where, for example, an element of robbery is force dr the threat of force, some jurors might conclude that the defendant used a knife to create the threat; others might conclude he used a gun. But that disagreement—a disagreement about means—would not matter as long as all 12 jurors unanimously concluded that the Government had proved the necessary related element, namely, that the defendant had threát-ened force.”).
, See generally Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 2160-63, 186 L.Ed.2d 314 (2013).
, See id. at 2162 ("[Bjecause the fact of brandishing aggravates the legally prescribed range of allowable sentences, it constitutes an element of a separate, aggravated offense that must be found by the jury.”).
. United States v. Grant, 683 F.3d 639, 642 (5th Cir. 2012).
. United States v. Redd, 355 F.3d 866, 872 (5th Cir. 2003).
. United States v. Mergerson, 4 F.3d 337, 348 (5 th Cir. 1993),
. Id. at 349.
. Cf. United States v. Zamora, 661 F.3d 200, 210-11 (5th Cir. 2011) (evidence sufficient to show defendant possessed a handgun in furtherance of a drug trafficking crime when handgun was found in defendánt’s residence).
. See United States v. Arledge, 553 F.3d 881, 888 (5th Cir. 2008); see also United States v. Sinclair, 438 F.2d 50, 52-53 (5th Cir. 1971) (noting that, even when the conviction rests on "the testimony of convicts,” "the verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the government, to support it” (quoting Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942))).
. See Mergerson, 4 F.3d at 349.
. 18 U.S.C. § 924(c)(l)(B)(i).
. United States v. Lopez-Velasquez, 526 F.3d 804, 806 (5th Cir. 2008) (per curiam),
. United States v. Scott, 821 F.3d 562, 570-71 (5th Cir. 2016).
. United States v. Williams, 821 F.3d 656, 658 (5th Cir. 2016) (quoting United States v. Hebron, 684 F.3d 554, 559 (5th Cir. 2012)).
. United States v. Duhon, 541 F.3d 391, 397 (5th Cir. 2Ó08) (alteration in original) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). -
. See Scott, 821 F.3d at 571.
. United States v. Castaneda, 140 F.3d 169, 171 (5th Cir. 2013) (per curiam) (quoting United States v. Hope, 545 F.3d 293, 295 (5th Cir. 2008)).
. 560 U.S. 218, 130 S.Ct. 2169, 176 L.Ed.2d 979 (2010).
. Id. at 235, 130 S.Ct. 2169.
. 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314(2013).
. Id. at 2155.
. See 18 U.S.C. § 924(c)(l)(B)(i).
. See, e.g., Richardson v. United States, 526 U.S. 813, 817, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999) (observing "that a jury in a federal criminal case cannot convict unless it unanimously finds that the Government has proved each element" of the offense) (citing Johnson v. Louisiana, 406 U.S. 356, 369-371, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972) (Powell, J., concurring); Andres v. United States, 333 U.S. 740, 748, 68 S.Ct. 880, 92 L.Ed. 1055 (1948); Fed. R. Crim. P. 31(a)); see also Apprendi v. New Jersey, 530 U.S. 466, 477, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (explaining that “trial by jury has been understood to require that ‘the truth of evety accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of [the defendant’s] equals and neighbours ....’”) (quoting 4 William Blackstone, Commentaries on the Laws of England 343 (1769)).
. See United States v. Scott, 821 F.3d 562, 570-71 (5th Cir. 2016).
. Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 2161, 186 L.Ed.2d 314 (2013) (quoting Apprendi v. New Jersey, 530 U.S. 466, 522, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (Thomas, J., concurring)).
. Id.
. Id. at 2162.
. United States v. Cotton, 535 U.S. 625, 633, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (quoting Johnson v. United States, 520 U.S. 461, 470, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)).
. 133 S.Ct. at 2162.
. Id.
. Id. (emphasis in original).
. Id.
. See United States v. Mudekunye, 646 F.3d 281, 290-91 (5th Cir. 2011) (per curiam) (concluding the plain error standard was satisfied when the sentence of 97 months of imprisonment was 19 months above the correct range); United States v. Sandlin, 589 F.3d 749, 757-58 (5th Cir. 2009) (concluding, in a case in which the defendant was sentenced to 36 months of imprisonment and the correct guidelines range was 30-36 months,-that "the dramatic increase in sentence satisfies the fourth prong by affecting the fairness of this proceeding. We therefore exercise our discretion to correct the unobjected-to error”); United States v. Garza-Lopez, 410 F.3d 268, 275 (5th Cir. 2005) (finding the fourth prong of plain error satisfied when the applicable range was 33-41 months of imprisonment and the sentence was 77 months); United States v. Alfaro, 408 F.3d 204, 209-10 (5th Cir. 2005) (concluding that the fourth prong of plain error was satisfied when the sentence was 50 months and the correct Guidelines range was 15-21 months); United States v. Villegas, 404 F.3d 355, 364-65 (5th Cir. 2005) (per curiam) (vacating and remanding after applying plain error standard when the sentence was .21 months and the correct advisory range was 10-16 months).
. 597 F.3d 263 (5th Cir. 2010).
. Id. at 286.
. Id.
. United States v. Maturin, 488 F.3d 657, 663 (5th Cir. 2007).
. See United States v. Inman, 411 F.3d 591, 595 (5th Cir. 2005).
. See United States v. Duhon, 541 F.3d 391, 397 (5th Cir. 2008).
. United States v. Cotton, 535 U.S. 625, 633, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (quoting Johnson v. United States, 520 U.S. 461, 470, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)) .(finding evidence overwhelming and uncon-troverted that a drug conspiracy involved 50 or more grams of cocaine when evidence showed over a kilogram).
. Post at 642.
. Fed. R. App. P. 28(a)(8)(A).
. United States v. Miranda, 248 F.3d 434, 443 (5th Cir. 2001).
. Id. at 444.
.Post at 642-43 (citing United States v. Caravayo, 809 F.3d 269, 273-74 (5th Cir. 2015) (per curiam); United States v. Rivera, 784 F.3d 1012, 1018 n.3 (5th Cir. 2015); United States v. Andaverde-Tinoco, 741 F.3d 509, 523 (5th Cir. 2013); United States v. Monroe, 629 Fed.Appx. 634, 637-38 (5th Cir. 2015) (per cu-riam) (unpublished); United States v. Carrillo-Gonzales, 627 Fed.Appx. 366, 367 (5th Cir. 2015) (per curiam) (unpublished); United States v. Handy, 647 Fed.Appx. 296, 300-01 (5th Cir. 2016) (per curiam) (unpublished); and United States v. Neria, 628 Fed.Appx. 256, 258 (5th Cir. 2015) (per curiam) (unpublished)).
. See id.
. 629 Fed.Appx. 634 (5th Cir. 2015) (per curiam) (unpublished).
. Post at 644.
. Monroe, 629 Fed.Appx. at 635.
. Id. at 636 (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004)).
. Id. at 638.
. Id.
. United States v. John, 597 F.3d 263, 289 (5th Cir. 2010).
. Post at 645.
. United States v. Cotton, 535 U.S. 625, 633, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (quoting Johnson v. United States, 520 U.S. 461, 470, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)).
. Id. at 634 (quoting Yakus v. United States, 321 U.S. 414, 444, 64 S.Ct. 660, 88 L.Ed. 834 (1944)).
. Id.
Dissenting Opinion
dissenting:
Mr. Suarez has plenty of advocacy on his behalf; the rule of law has none. By advancing all the unbriefed points of plain error, the panel' majority takes up the considerable slack left by counsel’s total failure to argue the fourth prong, and the government wilts, at best, and' begs on Suarez’s behalf, at worst. Yet at oral argument, the most the Department of Justice could do to support its confession of error was to say that “it feels like the right thing to do.” Alas,
The panel decision marks a new low in this court’s plain-error jurisprudence, although it is a bonanza for lawyers who submit inadequate briefs. It would be malpractice for any Federal Public Defender or criminal defense counsel in Texas, Louisiana, or Mississippi not to pite the majority opinion, for - the proposition that this circuit no longer requix-es plain error to be briefed on appeal, ■ The well-intentioned majority opinion is error in so many respects that it is hard to know where to begin. I agree with affirming the convictions but respectfully dissent from the inexplicable decision to vacate the sentence.
At its core, the majority opinion overlooks the essential character of the American system of justice as adversarial, not inquisitorial. We expect a criminal defendant to raise issues and objections in the trial court and, whether- or not they are articulated there, to bring them again as an appellant. Alert to this potential deficiency, this panel, before oral argument, sent the,-lawyers a notice requesting sup-, plemental briefing.
Our published caselaw-is unequivocal: [The defendant’s]' statutory challenge cannot succeed on plain error review because he' fails to argue that the alleged error affected the fairness, integrity, or public reputation of judicial proceedings. “We have "... refused to correct plain errors when as here, the complaining party makes no showing as to the fourth prong.” United States v. Rivera, 784 F.3d 1012, 1018 n.3 (5th Cir. 2015); see United States v. Andaverde-Tinoco, 741 F.3d 509, 523 (5th Cir. 2013) (“[T]he burden is on the defendant to demonstrate that the error affects the fairness, integrity, or public reputation of judicial proceedings.”)
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United States v. Caravayo, 809 F.3d 269, 273-74 (5th Cir. 2015) (per curiam). Even showing that the first three prongs are met is not enough. “[T]he defendant points to nothing beyond the district court’s error and the increase in her sentence that the error may have caused.” Rivera, 784 F.3d at 1018.
Suarez’s supplemental letter answering the pre-argument inquiry admits that his briefing on appeal
[t]he only thing the brief failed.to do was to go through each prong of plain-error review analysis step- by step but despite failing to do so, it is clear from the record and the brief each prong has been met .... As it relates to the 4th prong, Appellant met it’s [sic] -burden that the error affected the fairness, integrity, or public reputation of the judicial proceedings. While Appellant did not use those exact words, the fact Appellant’s sentence was increased by 5 years contrary to Supreme Court precedent, it clearly affected the fairness of the proceedings.
The majority’s first shortcoming, therefore, is its refusal to enforce the well-established requirement that to obtain plain-error relief, an appellant must adequately address the four prongs in his brief. In his supplemental letter, in attempting to show how his brief sufficiently addressed plain error, Suarez points to only three pages: “The issue was clearly presented for appeal in pages 26 to 28 of the Appellants [sic] Brief.” Although in its desperate effort to rescue Suarez from a ditch, the majority ranges far and wide throughout- the brief to find snippets in support of adequate arguments, Suarez directs us only to pages 26 to 28.
I will make it easy for future defense counsel to use the majority’s opinion as an excuse for inadequate briefings -by setting forth in toto the argument contained on pages 26-28 of Suarez’s brief. It shows how little this circuit now requires to make a successful fourth-prong argument. I reproduce pages 26-28 in the footnote.
This brief does nothing more than to use the words “plainly erred” once in the entire document. In the 32-page brief, there is no mention of any case that sets forth the test for showing plain error, nor is the test even stated. There is no listing of the four required prongs, much less a discussion of how any of them is satisfied. Pages 26-28 do give information that would support the first three prongs, but without even mentioning that those prongs exist. As quoted above, however, “the burden is on the defendant to demonstrate that the error affects the fairness, integrity, or public reputation of judicial proceedings.” Caravayo, 809 F.3d at 274 (citation omitted).
Suarez’s brief waives any claim to plain-error relief for the reasons we identified in United States v. Monroe, 629 Fed.Appx. 634 (5th Cir. 2015) (per curiam). Suarez
makes no specific argument on this court’s exercise of its discretion. Instead, [he] simply argues for a general reversal based on the district court’s alleged error. In United States v. Rivera, we rejected a “per se fourth-prong argument” and declined to remedy a plain error where the appellant made no showing on why the court should exercise its discretion. Rivera, 784 F.3d at 1018. Observing that a per se approach would “collapse the fourth prong- into the first three,” we noted that this court has “refused to correct plain errors when ... the complaining party makes no showing as to the fourth prong.” Id. at 1018-19 & n.3. Because [Suarez] has pointed to nothing beyond the district court’s alleged error to justify reversal, he has failed to show why his conviction “impugns the fairness, integrity, or public reputation of the court system.” Id. at 1019.
Monroe, 629 Fed.Appx. at 637-38 (ellipses in original). Suarez’s counsel is guilty of precisely the same insufficiency that we identified in Rivera, 784 F.3d at 1018. Yet this panel majority enthusiastically excuses it.
The panel majority turns all of the cited decisions to dust.
Even if the fourth prong had been adequately briefed, the facts are far from what should justify the rare invocation of plain-error relief. No one should feel sorry for Mr. Suarez, who was caught in the midst of an extensive and sordid drug operation. As the majority accurately recounts, “police ... found ... Suarez—who ... acted as ‘consul or overseer ...—in the master bedroom [with] a distributable amount of methamphetamine, baggies, scales, security cameras, a .380 caliber Davis pistol, shotgun shells, body armor, and a .20 gauge Winchester sawed-off shotgun [and] a .12 gauge Ithaca sawed-off shotgun ... in a second bedroom.” No one should reasonably think that the result here is unfair to this unobjecting defendant, much less that it seriously calls into question the integrity of our judicial system, as the plain-error test requires.
As the majority accurately explains, the unpreserved error is that, as for the mandatory minimum sentence, the instruction did not require the jury to find which of the two firearms charged in Count II—the pistol or the Winchester—formed the basis of its verdict. The jury found that Suarez, in furtherance of the drug-trafficking offense, possessed either the pistol (with mandatory minimum of five years) or the Winchester (a sawed-off shotgun requiring a minimum of ten years). It is easy to conclude, however, that Suarez could have “possessed” either or both. The Winchester was undeniably there.
Weapons were plainly integral to this drug-trafficking operation. One witness testified that Suarez “knew about the Winchester.” Another stated “that Suarez would sit with the shotgun during drug deals.” There is ample support for the jury’s conclusion that Suarez possessed at least one of the two guns ... that ... furthered the drug-trafficking crimes.
The majority also correctly upholds the verdict for possession (actual or constructive) of the Winchester and the Ithaca because Suarez “had knowledge of and access to” them. As the majority candidly recounts, “[p]olice found the Winchester in plain sight and close proximity to Suarez,” and “Suarez knew of the Winchester and sometimes carried a sawed-off shotgun during drug deals.” Under these seedy facts, it is difficult to understand how the majority can conclude that the failure to ask the jury specifically whether Suarez possessed the Winchester in furtherance of his crimes affects, much less “seriously” affects, the integrity of the courts.
In sum, the majority commits numerous errors of law and fact. It evaporates the requirement that plain error be properly raised or briefed on appeal. For the administration of justice, the unhappy consequence is that a defendant who fails to raise error in the district court is also excused from raising it on appeal, at least when the government foolishly agrees. Further, the majority misreads the record in concluding that “the evidence regarding the Winchester shotgun is not overwhelming.” The evidence, to the contrary, is plain and abundant, and any supposed error would by no means impugn the integrity of the judicial system.
The scratchy aspéct of plain-error review is that our proper duty is almost always to let unnoticed error stand. A perfectionist goal of fixing every prejudicial mistake is inconsistent with plain-error review as the Supreme Court has explained it.
Reversal of this sentence hardly “feels like the right thing to do,” to quote government counsel in default. Our adversarial system of justice deserves better. I respectfully dissent.
. The first two paragraphs of the notice read as follows: ■
Some decisions of this court suggest that the burden is on the defendant appellant to show entitlement to plain-error review and that ah argument that a sentence is reversible plain error is waived or abandoned for failure to demonstrate satisfaction of each of the four prongs of the plain-error test in the appellant’s opening brief. More specifically, this precedent suggests that the court will not exercise its plain-error discretion if the appellant does not specifically show how the alleged sentencing error seriously affects the fairness, integrity, or public reputation of judicial proceedings under, e.g., Puckett v. United States, 5S6 U.S. 129, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). Some precedent suggests also that this court is not bound by the government's concession of reversible plain error.
The letter briefs should discuss whether the issue is waived in this case for failure of adequate briefing. Relevant caselaw includes. United States v. Caravayo, 809 F.3d 269, 273-74. (5th Cir. 2015) (per curiam): United States v. Rivera, 784 F.3d 1012, 1018 n.3 (5th Cir. 2015); United States v. Andaverde-Tinoco, 741 F.3d 509, 523 (5th Cir. 2013); United States v. Monroe, 629 Fed.Appx. 634, 637-38 (5th Cir. 2015) (per curiam); United States v. Carrillo-Gonzales, 627 Fed.Appx. 366, 367 (5th Cir. 2015) (per curiam); United States v. Handy, 647 Fed.Appx. 296, 300-01 (5th Cir. 2016) (per curiam); and United States v. Neria, 628 Fed.Appx. 256, 258 (5th Cir. 2015) (per curiam). These are only examples, and counsel is free to refer to other relevant authorities.
. Suarez filed an opening brief but not a reply brief.
. The brief reads as follows:
The District Court plainly erred by not requiring a jury finding on which specific firearms formed the basis of the guilty verdict reached on Count 2.
In Appreridi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed. 2d 435 (2000), and Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 2158, 186 L.Ed. 2d 314 (2013), the Supreme Court held that factual determinations that increase maximum or minimum sentences, other than a prior conviction, must be found by a jury beyond a reasonable doubt (or admitted by the defendant), The recent Fifth Circuit opinion in United States, v. Haines, further explored this longstanding rule and found "facts that increase the mandatory minimum sentence are therefore elements and must be submitted to the jury and found beyond a reasonable doubt.” United States v. Haines, 803 F.3d 713, 738 (5th Cir. 2015).
In the Indictment returned by the Grand Jury, Count 2 listed two specific weapons, a short-barreled shotgun and a pistol. ROA. 13. In the Notice of Penalty, Appellant was put on notice that this count carried a term of imprisonment "of not less than 5 years.” ROA.16. At Mr. Suarez’ initial appearance, the honorable Don Bush admonished Mr. Suarez and again stated the minimum sentence for Count 2 was five years. ROA. 176 at 12-15. Suarez was never admonished that the . mandatory minimum was, in actuality a ten year minimum because of the allegation of the sawed-off shotgun. This fact was not known to him until it was revealed within the Presentence Report. ROA.665.
When the jury verdict was returned, the verdict for Count 2 simply found Mr. Suarez guilty as to the offense charged, but did not indicate which of the firearms listed within the indictment (the shotgun or the pistol), this verdict referenced. This omission is not a minor one. Had the jury attributed the pistol to Mr. Suarez and not the disassembled Winchester shotgun the mandatory minimum would have remained at five years instead of being increased to ten. As such, Judge Mazzant's hand was forced into sentencing Mr. Suarez to an enhanced minimum sentence that nobody was anticipating:
THE COURT: I am a judge who tries to look at each person, and because of the conspiracy and the firearms—usually somebody that has no criminal history like you have or a Category I would be someone the Court would look at as a possible variance in terms of fashioning a non-guideline sentence. But in your case I don’t have that discretion because of the mandatory minimums.
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I'll follow the recommendation, and if it weren't for the mandatory minimums, I probably would go less than that, but I don’t have that power. ROA.575-76.
The 924(c) charge contained within Count 2 consisted of two distinct firearms, each with different mandatory minimums. Because the mandatory minimum was enhanced based upon one, but not both of these firearms, the question of which firearm was being attribute to the defendant was a fact question that should have been submitted to the jury in accordance with Apprendi, Alleyne, and Haines. It was not, and as a result of this clear error, the Appellant’s rights were directly and substantially effected [sic] by having his sentence increased by an additional five years.
Appellant’s brief at 26-28 (ellipses in brief).
. This circuit’s rule of orderliness may be an impediment to the precedential impact of the majority’s sweeping pronouncements. To the extent that the decisions I have cited are binding, this panel majority has no authority to undermine them. No doubt the judges in the majority believe in good faith that their opinion does not contravene precedent, so for purposes of showing my disagreement, I treat the majority opinion as though it were binding on future panels.