                                                                                   FILED
                                                                       United States Court of Appeals
                                         PUBLISH                               Tenth Circuit

                       UNITED STATES COURT OF APPEALS                         August 18, 2020

                                                                           Christopher M. Wolpert
                             FOR THE TENTH CIRCUIT                             Clerk of Court
                         _________________________________

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                             No. 19-1203
                                                      (D.C. No. 1:18-CR-00266-PAB-1)
 JOANNA ZARATE-SUAREZ,                                            (D. Colo.)

       Defendant - Appellant.
                      _________________________________

                               PUBLISHED DISSENT
                         _________________________________

PHILLIPS, Circuit Judge.
                     __________________________________


       I concur with the majority’s affirming the district court’s application of the

aggravating-role adjustment, United States Sentencing Guidelines Manual (U.S.S.G.)

§ 3B1.1(a). But I dissent with its affirming the district court’s application of the use-of-

violence specific offense characteristic, located at § 2D1.1(b)(2).

                                     BACKGROUND

       Zarate-Suarez headed a multi-pound-methamphetamine conspiracy in Denver,

Colorado. She pleaded guilty to three drug counts, the first for conspiracy, the second and

third for possession with intent to distribute. The district court sentenced her to 20 years

of imprisonment.
       This appeal involves a small subset of the case’s facts: One of Zarate-Suarez’s

out-of-state customers sent his girlfriend to Colorado with $16,000 to buy three pounds of

methamphetamine from Zarate-Suarez. Sometime before the sale, Zarate-Suarez devised

a more profitable plan. She enlisted three male underlings to invite the girlfriend on a

late-night cigarette run. The underlings would then abandon her at the gas station when

she got out of the car. This would enable Zarate-Suarez and others the needed time to

enter the girlfriend’s hotel room and steal the $16,000. All went according to plan until

on arriving at the gas station the girlfriend merely pulled her seat forward to let one of the

men out and refused to get out herself. That led to one of the men assaulting her and

removing her from the car. The three men returned to Zarate-Suarez, and she divided the

$16,000, keeping most of it for herself.1

       After Zarate-Suarez pleaded guilty to all charges, a probation officer prepared a

presentence report (PSR). The PSR recommended a two-offense-level enhancement

under the specific offense characteristic located at U.S.S.G. § 2D1.1(b)(2), which applies

when “the defendant” has “used violence, made a credible threat to use violence, or

directed the use of violence.” The PSR’s one-paragraph justification for the enhancement

reads as follows:

       47. Specific Offense Characteristics: Pursuant to §2D1.1(b)(2), if the
       defendant used violence, made a credible threat of violence, or directed the
       use of violence, increase by two levels. The undersigned considered the
       offense in which the female courier was kidnapped and [Zarate-Suarez],
       along with Fitzgerald, “devised” the plan. [Zarate-Suarez] also split the

       1
        As for Zarate-Suarez’s reaction after hearing about the men having physically
assaulted the girlfriend, the district court acknowledged that none of the attorneys had
ever asked about that.
                                              2
       money with those who kidnapped the female courier. Due to [Zarate-
       Suarez’s] involvement in this kidnapping, a two-level increase was applied.

R. vol. 2 at 16. In her Objection to Presentence Investigation Report, Zarate-Suarez

opposed the enhancement on two grounds. First, she argued that the government had

offered insufficient evidence to meet the specific terms of § 2D1.1(b)(2):

               There is insufficient evidence, even under a preponderance of the
       evidence standard, that Ms. Zarate-Suarez used violence, made a credible
       threat to use violence, or directed the use of violence. Ms. Zarate-Suarez was
       not present when [the girlfriend] was beaten. There is insufficient evidence
       that Ms. Zarate-Suarez directed anyone to commit violence. No witness with
       personal knowledge has ever alleged that Ms. Zarate-Suarez was involved in
       a plan to kidnap or assault [the girlfriend].

R. vol. 1 at 38.

       Second, immediately after this, Zarate-Suarez opposed the PSR’s basis for

imposing the enhancement—her involvement in the “kidnapping,”2 in which her

underlings (not she) had used violence. By deeming Zarate-Suarez responsible for the

violent acts of others, the PSR departed from the plain text of § 2D1.1(b)(2), which limits

a defendant’s responsibility to her own acts. In doing so, the PSR necessarily (though

silently) jumped to a different guideline, which, when applicable, allows a sentencing

court to hold a defendant responsible for the conduct of others. See U.S.S.G.

§ 1B1.3(a)(1)(B).



       2
         At the sentencing hearing, Zarate-Suarez’s counsel stated, “I also do want to
point out that while the words ‘kidnap’ and ‘robbery’ keep getting thrown out, I don’t
think they are intended as the legal definition, and I would point out there was no
robbery. Nothing was taken from the person or presence of [the girlfriend] and it was not
a kidnap. She chose to leave. Although she was left at the gas station, she chose to get
into the vehicle and go there to get cigarettes.” R. vol. 3 at 42:16–22.
                                             3
       On this point, Zarate-Suarez disputed as a factual matter one of § 1B1.3(a)(1)(B)’s

prerequisites—that the acts of the others had been reasonably foreseeable to her:

              Under the relevant conduct standard of § 1B1.3(a)(1)(B), the assault
       of [the girlfriend] would have to be “reasonably foreseeable” to Ms. Zarate-
       Suarez in order for the enhancement at § 2D1.1(b)(2) to be applicable. The
       assault was not reasonably foreseeable to Ms. Zarate-Suarez.

R. vol. 1 at 38–39. In this regard, Zarate-Suarez spent a page disputing that the others’

violence was reasonably foreseeable to her. She explained that she and her underlings had

planned to abandon the girlfriend at the gas station when the girlfriend got out to buy

cigarettes; that the plan had faltered when the girlfriend stayed in the car, leaning her car

seat forward to let one of the men out and refusing to get out; and that in this unexpected

situation the underlings spontaneously assaulted the girlfriend and removed her from the

car. Id. at 39–40.

       At the sentencing hearing, Zarate-Suarez repeated her arguments. First, Zarate-

Suarez’s counsel argued that the government had presented insufficient evidence of her

personal involvement in the assault, as required by § 2D1.1(b)(2). On this point, counsel

noted that Zarate-Suarez had not been present at the assault, and further declared that

“[t]here is absolutely no evidence that she directed anyone or told anyone or suggested to

anyone that violence should occur.” R. vol. 3 at 42:13–15. Second, counsel noted that “I

do think that this is not something that was reasonably foreseeable to Ms. Zarate either,”

id. at 42:25–43:1, later adding that “the assault itself was the spontaneous conduct of




                                              4
these men, and in no way did Ms. Zarate ever suggest that that should happen,”3 id. at

46:3–5.

       On appeal, Zarate-Suarez has continued to maintain her district-court arguments.

Addressing the first argument, she states as follows:

       The [District] Court’s focus on the foreseeability of whether violence might
       occur, however, is misplaced. Indeed, we have been unable to uncover any
       decision in which a court has applied a foreseeability requirement to
       determine whether a defendant used violence, made a credible threat to use
       violence, or directed the use of violence in the course of committing a drug-
       trafficking offense.

Br. of Appellant at 29. She describes the “key question” as being “whether the defendant

used violence, intended to use violence or directed the use of violence.” Id. at 31. In this

regard, she cites cases in which courts have imposed two offense levels under

§ 2D1.1(b)(2) against defendants who themselves had used violence (as opposed to

others having done so). Addressing the second argument, Zarate-Suarez continues to



       3
         For the first time on appeal, the government contends that the record belies that
“the assault ‘was simply spontaneous and independent conduct,’” and that it instead
supports that one of the underlings had told Zarate-Suarez that if the girlfriend “wouldn’t
cooperate, ‘they would kick her out of the car.’” Appellee’s Br. at 8, 14. As it turns out,
this information comes from a DEA interview of one of the three men on the cigarette
run. The PSR did not include this information, the government did not mention it at the
sentencing hearing, and the district court did not rely on it. And for good reason. The
report notes how this man repeatedly changed his story on key points. Suppl. R. vol. 2 at
15 (describing the special agents’ belief that the man “omitted information” and “openly
provided false information” to the agents). Even if the district court had known about and
found the man’s statement credible, the statement would not justify a § 2D1.1(b)(2)
enhancement. The man described a plan to trick the girlfriend into exiting the car to let
one of the men in the back seat get out at the service station, but she leaned her seat
forward instead. This plan shows an intent to avoid committing an assault. Certainly, this
account does not show Zarate-Suarez directing that violence be used.

                                              5
maintain that her underlings’ assault on her customer’s girlfriend was not reasonably

foreseeable to her. She emphasizes that the plan had been to abandon the girlfriend at the

gas station and that, when the girlfriend refused to get out of the car, the men

spontaneously assaulted her and removed her from the car. Zarate-Suarez argues that she

had no way of knowing that the girlfriend would be “dressed only in a blanket and flip

flops and would refuse to get out because it was cold outside.”4 Id. at 32–33. Because

Zarate-Suarez has preserved her objection to the district court’s imposing two offense

levels under § 2D1.1(b)(2), I would review de novo that question. See, e.g., United States

v. Evans, 782 F.3d 1115, 1117 (10th Cir. 2015) (“[W]e review the district court’s legal

conclusions under the Guidelines de novo and its findings of fact for clear error, giving

great deference to the district court’s application of the Guidelines to the facts.” (citation

and internal quotation marks omitted)).

                                         ANALYSIS

I.     U.S.S.G. § 2D1.1(b)(2)

       Section 2D1.1(b)(2) reads as follows: “If the defendant used violence, made a

credible threat to use violence, or directed the use of violence, increase by 2 levels.” The




       4
          The two arguments are independent and distinct. Any attempt to combine the
first as part of the second would make no sense. After all, how would Zarate-Suarez’s
showing that she did not use violence, credibly threaten the use of violence, or direct the
use of violence in turn show that the violent acts of other persons with whom she had
jointly undertaken criminal activity would not be reasonably foreseeable to her? Plus,
Zarate-Suarez referred to § 2D1.1(b)(2) in discussing her lack of personal participation,
not to § 1B1.3(a)(1)(B).
                                               6
district court did not find that Zarate-Suarez did any of these three things. So by the

subsection’s plain language, Zarate-Suarez is entitled to prevail.

II.    U.S.S.G. § 1B1.3(a)(1)(B)

       The district court erred by departing from the plain text of § 2D1.1(b)(2) and

instead following the PSR’s view that Zarate-Suarez was responsible for the two-offense-

level enhancement because she had been “involved in the kidnapping” in which others

had used violence. See § 1B1.3(a)(1)(B). But by requiring that Zarate-Suarez be the one

using violence, credibly threatening violence, or directing violence, § 2D1.1(b)(2)

unequivocally forecloses the district court from enhancing Zarate-Suarez’s Guidelines

calculation for others’ conduct.

       Here, it helps to step back and examine the workings of § 1B1.3(a)(1)(B). When

applicable, that subsection applies in calculating base offense levels, specific offense

characteristics, and adjustments “on the basis of the following:”

       in the case of a jointly undertaken criminal activity (a criminal plan, scheme,
       endeavor, or enterprise undertaken by the defendant in concert with others,
       whether or not charged as a conspiracy), all acts and omissions of others that
       were—(i) within the scope of the jointly undertaken criminal activity, (ii) in
       furtherance of that criminal activity, and (iii) reasonably foreseeable in
       connection with that criminal activity; that occurred during the commission
       of the offense of conviction, in preparation for that offense, or in the course
       of attempting to avoid detection or responsibility for that offense[.]

§ 1B1.3(a)(1)(B). But § 1B1.3(a)(1)(B) is inapplicable to § 2D1.1(b)(2).

       All-important are the three words that begin § 1B1.3: “Unless otherwise

specified.” When a Guideline enhancement requires a showing that the defendant has

done a specific act, the Guidelines have “otherwise specified” that § 1B1.3(a)(1)(B) does


                                              7
not apply.5 This only makes sense—§ 2D1.1(b)(2) requires that the defendant has used

violence, credibly threatened violence, or directed violence, not that someone else has

done so.6 The Guidelines’ text itself spells The End.

       To activate § 1B1.3(a)(1)(B), the Sentencing Commission does not speak in terms

of “the defendant did X, Y, or Z.” After all, doing so would make no sense.

Enhancements requiring that the defendant personally committed some act (like

§ 2D1.1(b)(2)’s “the defendant used violence”) do not mix with § 1B1.3(a)(1)(B)’s

application to conduct of other persons. Simply put, § 2D1.1(b)(2) considers only the

defendant’s conduct, and § 1B1.3(a)(1)(B) considers only conduct of persons other than

the defendant. The two subsections are oil and water. By objecting that the government


       5
         Though this is self-evident from the quoted Guidelines sections’ text, the
Sentencing Commission takes no chances with any misunderstandings. In its training
materials for judges, probation officers, prosecutors, and defense counsel, the
Commission states it this way: “One of the most common specifications otherwise
[speaking to § 1B1.3’s prefatory ‘Unless otherwise specified’] is the use of the term
‘defendant’ (as opposed to ‘offense’) to limit relevant conduct in some considerations to
the acts for which the defendant is directly responsible (as opposed to acts a co-
participant may have done).” Advanced Relevant Conduct, U.S. Sentencing Comm’n 31
(2017), https://www.ussc.gov/education/training-resources/relevant-conduct-slideshows.
       6
         See also United States v. Pojilenko, 416 F.3d 243, 248 (3d Cir. 2005) (“In our
view, § 3B1.4 ‘specifie[s]’ [referring to § 1B1.3(a)] that ‘use of a minor’ enhancements
be individualized, and thus not based on the acts of co-conspirators,” relying on the “if
‘the defendant used or attempted to use a person less than eighteen years of age’”
language (first alteration in the original) (first quoting § 1B1.3(a); and then quoting
§ 3B1.4)); United States v. Acosta, 474 F.3d 999, 1002–03 (7th Cir. 2007) (adopting
Pojilenko’s reasoning and rejecting three other circuits’ application of § 1B1.3(a)(2) to
§ 3B1.4); cf. United States v. Tagore, 158 F.3d 1124, 1128–29 (10th Cir. 1998)
(recognizing that a cross reference’s applying if “the offense involved” implicates
broader relevant conduct than does a specific offense characteristic applying if “‘the
defendant’ engaged in a pattern of activity involving the sexual abuse or exploitation of a
minor” (citation omitted)).
                                             8
had offered insufficient evidence that she herself had used violence, credibly threatened

violence, or directed the use of violence, Zarate-Suarez necessarily objected to the district

court’s enhancing her sentence based on the conduct of others under § 1B1.3(a)(1)(B).

And she was well within her rights in arguing that the evidence did not show the violence

of her underlings was reasonably foreseeable to her. She was free to do so in case the

district court followed the PSR’s mistaken course.

       The Sentencing Commission uses different wording when allowing defendants to

be held responsible for the conduct of others under § 1B1.3(a)(1)(B). A flip through the

Guidelines Manual shows that it routinely does so. For instance, to increase the base

offense level under § 2A1.4(a)(2)(A) for involuntary manslaughter, the Sentencing

Commission requires that “the offense involved reckless conduct[.]” A reference to “the

offense involved” is a dead giveaway. After all, the Guidelines provide that “‘Offense’

means the offense of conviction and all relevant conduct under § 1B1.3 (Relevant

Conduct) unless a different meaning is specified or is otherwise clear from the context.”

§ 1B1.1 cmt. n.1(I). So if § 2D1.1(b)(2) instead read, “If the offense involved the use of

violence, a credible threat of violence, or a direction to use violence, increase by 2

levels,” Zarate-Suarez might well be responsible for the two levels.7 But the Sentencing

Commission chose differently. That is, it chose to “specify otherwise” under § 1B1.3.


       7
        See Thomas W. Hutchinson et al., Federal Sentencing Law and Practice 73
(2019 ed.) (“The Commission has defined the term ‘offense’ to mean ‘the offense of
conviction and all relevant conduct under § 1B1.3 (Relevant Conduct) unless a different
meaning is specified or is otherwise clear from the context.’ The Commission, therefore,
cannot be otherwise specifying whenever it uses the term ‘offense’ in a chapter two or
three guideline provision.”).
                                              9
       Another way the Sentencing Commission words Guidelines enhancements to

include other persons’ conduct under § 1B1.3(a)(1)(B) is illustrated by § 2D1.1(b)(7): “If

the defendant, or a person for whose conduct the defendant is accountable under § 1B1.3

(Relevant Conduct), distributed a controlled substance through mass-marketing by means

of an interactive computer service, increase by 2 levels.” Again, if § 2D1.1(b)(2) read, “If

the defendant, or a person for whose conduct the defendant is accountable under § 1B1.3

(Relevant Conduct), used violence, made a credible threat of violence, or directed the use

of violence,” Zarate-Suarez might well receive the two-level enhancement. But the

Sentencing Commission chose against using this formulation, again specifying otherwise.

       Our circuit has decided two cases involving the very dynamic between “the

defendant” and “unless otherwise specified” as raised in this case—albeit in individual

commentary to two guideline sections. First, in United States v. Pena-Sarabia, 297 F.3d

983, 987–89 (10th Cir. 2002), we reviewed a defendant’s eligibility for a safety-valve

reduction under U.S.S.G. § 5C1.2. At issue was the second of five eligibility conditions,

namely, that “the defendant did not use violence or credible threats of violence or possess

a firearm or other dangerous weapon (or induce another participant to do so) in

connection with the offense[.]” § 5C1.2(a)(2). Though Ms. Pena-Sarabia had not

possessed a firearm, her codefendant husband had done so. 297 F.3d at 987. Despite this,

the government contended that she “should nevertheless be held accountable for the

foreseeable acts of her husband undertaken in their joint criminal activity.” Id.

       The court reviewed the district court’s interpretation of § 5C1.2 as a question of

law. Id. Among other things, the court considered the following language from § 5C1.2’s

                                             10
commentary section: “Consistent with § 1B1.3 (Relevant Conduct), the term ‘defendant,’

as used in subdivision (2) [of § 5C1.2], limits the accountability of the defendant to his

own conduct and conduct that he aided or abetted, counseled, commanded, induced,

procured, or willfully caused.”8 Id. at 987–88 (alteration in original) (quoting § 5C1.2

cmt. n.4) (internal quotation marks omitted). The court applied § 1B1.3’s prefatory

“Unless otherwise specified” as defeating the application of § 1B1.3(a)(1)(B). Id. at 988.

In reaching this plain-text result, the court overruled United States v. Hallum, 103 F.3d 87

(10th Cir. 1996), which had disallowed safety-valve relief because of “another person’s

reasonably foreseeable possession of a firearm in furtherance of a joint criminal activity.”

Id. at 987–98 (citing Hallum, 103 F.3d at 90).9

       Second, in United States v. Conley, 131 F.3d 1387 (10th Cir. 1997), we reviewed a

district court’s imposition of two offense levels under U.S.S.C. § 3C1.2, Reckless

Endangerment During Flight. After a bank robbery, three robbers led police on a high-

speed chase. Id. at 1388–89. The § 3C1.2 adjustment applies “[i]f the defendant

recklessly created a substantial risk of death or serious bodily injury to another person in

the course of fleeing from a law enforcement officer[.]” Id. at 1389. As in Pena-Sarabia,

the court quoted the Guideline’s commentary section, which for § 3C1.2 provided that

the “defendant [is] responsible for the reckless conduct of others only if he ‘aided or



       8
        This tracks the language of § 1B1.3(a)(1)(A).
       9
        Because a panel is bound by the precedent of earlier panels, the court circulated
the opinion to the en banc court. The en banc court voted unanimously to overrule
Hallum. Pena-Sarabia, 297 F.3d at 989 n.2. The court noted that every other circuit to
pass on the issue had rejected Hallum. Id. at 987–89.
                                             11
abetted, counseled, commanded, induced, procured, or willfully caused’ that conduct.”

Id. at 1390 (quoting § 3C1.2 cmt. n.5). Though Conley had not driven the getaway car,

we affirmed the district court’s imposition of the two offense levels. Id. at 1391. We

relied on PSR information indicating that Conley had encouraged the driver’s reckless

behavior. Id. We also relied on the inherent dangers of a high-speed escape from a bank

robbery. Id. In this regard, we looked to Conley’s aiding or abetting, counseling,

commanding, inducing, procuring, or willfully causing the driver’s reckless behavior. Id.

In other words, we looked at what Conley himself had done leading up to the high-speed

chase, because “[m]ere reasonable foreseeability of the reckless behavior at issue is not

enough by itself to support a § 3C1.2 enhancement.” Id. at 1390.

       Unlike the Guidelines sections at issue in Pena-Sarabia and Conley, § 2D1.1(b)(2)

contains no similar commentary note.10 But this does not mean that the Sentencing

Commission has authorized the district court to use § 1B1.3(a)(1)(B) in determining

whether Zarate-Suarez herself “used violence, made a credible threat of violence, or

directed the use of violence” under § 2D1.1(b)(2).11 Again, the plain text of the two

Guidelines sections establishes this. And a leading commentator our court has previously



       10
            See also U.S.S.G. §§ 2K2.1 cmt. n.13(c), 2K3.1 cmt. n.1(A), 3B1.5 cmt. n.2.
       11
          In its training materials for judges, probation officers, prosecutors, and defense
counsel, the Commission states it this way: “The use of the term ‘defendant’ prohibits
including relevant conduct based on the acts of others under § 1B1.3(a)(1)(B). NOTE:
Defendant is still accountable for acts he/she committed, aided, abetted, counseled,
commanded, induced, procured, and willfully caused at § 1B1.3(a)(1)(A).” Advanced
Relevant Conduct, U.S. Sentencing Comm’n 33 (2017), https://www.ussc.gov/education/
training-resources/relevant-conduct-slideshows.
                                             12
relied on sees it the same way. See Thomas W. Hutchinson et al., Federal Sentencing

Law and Practice 73 (2019 ed.) (“Use of the term ‘the defendant.’ The Commission

does ‘otherwise specify’ whenever it uses the term ‘defendant’ in a chapter two or three

guideline provision. Requiring that a determination be made on the basis of defendant’s

conduct is inconsistent with the relevant conduct rules of § 1B1.3(a) that make a

defendant accountable for the conduct of others. The use of ‘defendant,’ therefore,

otherwise specifies and precludes holding a defendant accountable for the conduct of

others.”).12

III.   Plain-Error Standard

       A.      Why the Plain-Error Standard Does Not Apply.

       The majority concludes that the plain-error standard governs Zarate-Suarez’s

§ 2D1.2(b)(2) claim. It rules that she forfeited her argument that the district court erred

by relying on the violent conduct of her underlings under § 1B1.3(b)(2). Essentially, it

requires that to preserve the argument, Zarate-Suarez needed to tell the district court that

it would commit legal error by applying that subsection. But as mentioned, Zarate-Suarez

did just that by arguing that the district court could not impose the two levels under

§ 2D1.1(b)(2) without finding that she herself had used violence, credibly threatened the

use of violence, or directed the use of violence. This suffices to have alerted the district

court that Zarate-Suarez objected to her sentence being enhanced based on others’




       12
         Our court relied on this treatise in Pena-Sarabia, 297 F.3d at 989, as authority
disagreeing with Hallum, as discussed earlier in footnote 9.
                                              13
conduct. Otherwise stated, her § 2D1.1(b)(2) objection necessarily also preserved an

objection to the district court’s application of § 1B1.3(a)(1)(B).

       B.     Why Zarate-Suarez Would Prevail on Plain-Error Standard if it Did
              Apply.

       Even under plain-error review, Zarate-Suarez should prevail. First, as explained

above, the district court erred by not denying the § 2D1.1(b)(2) enhancement according

to the plain text of that subsection and § 1B1.3. By requiring that Zarate-Suarez herself

have used, credibly threatened, or directed violence, § 2D1.1(b)(2) “otherwise specified”

that § 1B1.3(a)(1)(B) does not apply. As stated above, in concluding that the district court

erred in enhancing Zarate-Suarez’s sentence under § 2D1.1(b)(2), I rely on the instruction

from the Sentencing Commission, the reasoning from Pena-Sarabia and Conley, and the

supporting statements in Hutchinson et al., Federal Sentencing Law and Policy.13

       Second, the error is plain. Our court has often ruled that error can be plain based

on the text of statutes or Guidelines. See, e.g., United States v. Faulkner, 950 F.3d 670,

678 (10th Cir. 2019) (noting in a dispute about a Guidelines application that, in addition

to showing that the Supreme Court or Tenth Circuit has addressed an issue, a defendant

can show an error is plain “if the district court’s interpretation was clearly erroneous”

(citation and internal quotation marks omitted)); United States v. Fagatele, 944 F.3d

1230, 1239 (10th Cir. 2019) (ruling that to show that error is plain, a defendant must


       13
         The majority declines to rule on whether the district court erred in applying two
offense levels under § 2D1.1(b)(2), instead opting to rule that the error was not plain.
Majority Op. at 10 (noting that “even if we continued the plain-error analysis, we would
affirm. That’s because even if we assume the district court erred in applying the
reasonably foreseeable standard, that error was not plain.”).
                                             14
“demonstrate either that this court or the Supreme Court has resolved these matters in his

favor, or that the language of the relevant statutes is ‘clearly and obviously’ limited to the

interpretation [he] advances” (citations omitted)); United States v. Brown, 316 F.3d 1151,

1158 (10th Cir. 2003) (ruling based on the text of U.S.S.G. § 3E1.1 that the district court

plainly erred by providing a one-level reduction for acceptance of responsibility when

that Guideline allowed a binary choice between two or no levels); United States v.

Alessandroni, 982 F.2d 419, 420 (10th Cir. 1992) (reviewing for plain error a defendant’s

claim that the district court had erroneously applied the Guidelines’ criminal-history

provisions and noting that “the imposition of a sentence based on an erroneous

interpretation of the law constitutes plain error” (citation omitted)).

       The text of § 2D1.1(b)(2) and § 1B1.3 demonstrates that the district court’s error is

plain. Their text alone shows two reasons that the district court’s error is plain. First, as

explained above, “the defendant” as used in § 2D1.1(b)(2) and “[u]nless otherwise

specified” as used in § 1B1.3 bar the district court’s use of § 1B1.3(a)(1)(B) to hold

Zarate-Suarez responsible for the violent acts of others. Second, the Guidelines elsewhere

reinforce this. As earlier mentioned, some Guidelines commentary notes—including the

one involved in Pena-Sarabia—provide that “Consistent with § 1B1.3 (Relevant

Conduct),” the term “defendant,” as used in the particular Guidelines section “limits the

accountability of the defendant to the defendant’s own conduct and conduct that the

defendant aided or abetted, counseled, commanded, induced, procured, or willfully

caused.” U.S.S.G. §§ 2K2.1 cmt. n.13(B), 2K3.1 cmt. n.1(A), 3B1.5 cmt. n.2, 5C1.2 cmt.

n.4; see also U.S.S.G. § 3C1.2 cmt. n.5 (“Under this section, the defendant is accountable

                                              15
for the defendant’s own conduct and for conduct that the defendant aided or abetted,

counseled, commanded, induced, procured, or willfully caused.”). Again, the introductory

words show the district court’s error to be plain: “Consistent with § 1B1.3 (Relevant

Conduct).” This limits the meaning of “defendant” for § 1B1.3 (Relevant Conduct)

purposes to the defendant’s “own conduct and conduct that the defendant aided or

abetted, counseled, commanded, induced, procured, or willfully caused.” Thus, for any

uses of “defendant” in the Guidelines Manual, this “Consistent with § 1B1.3” limitation

includes within “defendant” conduct listed at § 1B1.3(a)(1)(A), but it excludes conduct

listed at § 1B1.3(a)(1)(B).

       In addition, Zarate-Suarez has met the third prong of the plain-error analysis by

showing that the error affected her substantial rights—she has shown a reasonable

probability that absent the error the outcome of the proceeding would have been different.

United States v. Dominguez Benitez, 542 U.S. 74, 81–82 (2004). In Molina-Martinez v.

United States, 136 S. Ct. 1338 (2016), the Court reviewed for plain error a district court’s

miscalculation of the defendant’s advisory Guidelines range. The Court noted that

“[w]hen a defendant is sentenced under an incorrect Guidelines range—whether or not

the defendant’s ultimate sentence falls within the correct range—the error itself can, and

most often will, be sufficient to show a reasonable probability of a different outcome

absent the error.” Id. at 1345. Though the district court varied downward by a third of

Zarate-Suarez’s advisory sentence (from 30 to 20 years), I see nothing in the sentencing

transcript revealing what sentence the district court would have imposed absent the two



                                            16
offense levels added under § 2D1.1(b)(2).14 See United States v. Sabillon-Umana, 772

F.3d 1328, 1333 (10th Cir. 2014) (“When the court’s starting point is skewed a

‘reasonable probability’ exists that its final sentence is skewed too.” (citation omitted)).

       Finally, on a showing of the first three prongs of the plain-error analysis, this court

has “discretion to correct the forfeited error if the error “seriously affects the fairness,

integrity or public reputation of judicial proceedings.” Molina-Martinez, 136 S. Ct. at

1343 (quoting United States v. Olano, 507 U.S. 725, 736 (1993)) (internal quotation

marks omitted). In Sabillon-Umana, 772 F.3d at 1334, this court noted that

       whether a court clearly miscalculates the advisory guidelines range or clearly
       mistakes its entitlement to depart from that range under § 5K1.1, a
       defendant’s substantial rights and the integrity of the judicial process are
       surely at risk: in either event the benchmark for the entire sentencing process
       rests on an obviously mistaken premise.

And the court concluded by stating that “we can think of few things that affect an

individual’s substantial rights or the public’s perception of the fairness and integrity of

the judicial process more than a reasonable probability an individual will linger longer in

prison than the law demands only because of an obvious judicial mistake.” Id. at 1335.

       For these reasons, I would vacate the district court’s sentence and remand for

resentencing without the two offense levels imposed from § 2D1.1(b)(2).15


       14
          The district court stated that it was holding against Zarate-Suarez the beating up
of the girlfriend, and then it imposed the 240-month sentence. I am uncertain whether the
sentence would remain 240 months if the district court no longer held the violence
against her as it did by applying two offense levels under § 2D1.1(b)(2).
       15
          I acknowledge that publishing a dissent is unusual when the majority does not
publish its opinion. I publish this one because of the importance of relevant conduct in
federal sentencings and the need for rulings explaining how it works. Unwarranted
Guidelines enhancements lead to unwarranted prison time.
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