     Case: 18-10535      Document: 00514976790         Page: 1    Date Filed: 05/30/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                      No. 18-10535                           May 30, 2019
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk


              Plaintiff - Appellee

v.

ALEXANDER GALLEGOS,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 7:17-CR-8-3


Before HAYNES, GRAVES, and HO, Circuit Judges.
PER CURIAM:*
       Alexander Gallegos appeals his 200-month sentence following a guilty
plea. “[B]eginning in or before 2016,” he knowingly conspired to possess with
intent to distribute methamphetamine in violation of 21 U.S.C. §§ 846,
841(a)(1), (b)(1)(B).       To calculate his advisory Guidelines range, the
presentence investigation report (PSR) divided Gallegos’s past meth-related
conduct into two groups.           First, it classified meth transactions with a


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 18-10535
confidential informant from late 2013 as “relevant conduct” to the instant
conspiracy. It therefore included the 2013 drug amounts in Gallegos’s Offense
Level. Second, it classified three 2014 Texas convictions—two for possession
and one for delivery—as “prior sentences” that enhanced Gallegos’s criminal
history score.
      Gallegos objected to the classification of those 2014 convictions as “prior
sentences.” He argued that they were also “relevant conduct” to the instant
conspiracy—the convictions were for conduct that overlapped with the 2013
transactions, both temporally and factually. The government responded that
the PSR miscategorized the 2013 transactions as “relevant conduct.”
Accordingly, the 2014 convictions were properly categorized as “prior
sentences” pre-dating Gallegos’s entry into the conspiracy.          Finally, the
Probation Office explained in its Addendum to the PSR that it classified the
2014 convictions as “prior sentences” because the 2014 convictions were for
“user amount[s],” not “distribution amount[s].”
      At the sentencing hearing, the district court overruled Gallegos’s
objections “for the reasons stated in the Addendum and in the Government’s
response.” But, the court also said it adopted “the fact findings contained in
the [PSR] and the Addendum.” Further, in its written “Statement of Reasons,”
the court adopted the PSR “without change.” The problem, put simply, is that
the PSR and the government’s response contradict each other about the 2013
transactions, so the court could not have fully adopted both.
      The government asks us to harmonize the oral pronouncement with the
Statement of Reasons by assuming the court only adopted the parts of the PSR
not contradicted by the government’s response.        We decline to ignore the
Statement of Reasons under these circumstances—the hearing transcript does
not provide a “thorough” enough explanation of the district court’s reasoning
for us to assume that the error here was merely “clerical.” See United States
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                                 No. 18-10535
v. Shakbazyan, 841 F.3d 286, 292 (5th Cir. 2016) (permitting such a clerical
error).
      We review the district court’s Guidelines interpretation de novo, and its
factual findings for clear error. See United States v. Rhine, 583 F.3d 878, 884–
85 (5th Cir. 2009). Because we cannot conclusively determine the factual basis
for the court’s sentence, we vacate and remand for resentencing. In doing so,
we express no opinion as to the proper classification of Gallegos’s past conduct.




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