     Case: 15-40191   Document: 00513367161     Page: 1   Date Filed: 02/03/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                 No. 15-40191                  United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
UNITED STATES OF AMERICA,                                       February 3, 2016
                                                                 Lyle W. Cayce
             Plaintiff – Appellee,                                    Clerk

v.

OSCAR EDUARDO JUAREZ,

             Defendant – Appellant.


                Appeal from the United States District Court
                     for the Southern District of Texas


Before ELROD, GRAVES, and COSTA, Circuit Judges.
PER CURIAM:
      Oscar Eduardo Juarez appeals his ten-year sentence for brandishing a
firearm. Because there is uncertainty in the record as to whether the district
court intended to impose an upward departure or variance or erroneously
believed that the ten-year sentence was within the Sentencing Guidelines, and
because the government has not shown that any procedural error was
harmless, we VACATE Juarez’s sentence and REMAND for resentencing.
                                       I.
      Juarez was charged with one count of carjacking in violation of 18 U.S.C.
§ 2119 and one count of brandishing a firearm during and in relation to a crime
of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Juarez pleaded guilty,
    Case: 15-40191     Document: 00513367161        Page: 2   Date Filed: 02/03/2016



                                  No. 15-40191
pursuant to a written plea agreement, to the charge of brandishing a firearm,
and the government dismissed the carjacking charge.
      Juarez’s presentence investigation report (PSR) correctly stated that
under § 924(c)(1)(A)(ii), Juarez was subject to a mandatory minimum sentence
of seven years’ imprisonment and a maximum sentence of life imprisonment.
The PSR also correctly noted that “[p]ursuant to U.S.S.G. § 2K2.4(b), if the
defendant . . . was convicted of violating [§ 924(c)] the guideline sentence is the
minimum term of imprisonment required by statute, which in this case is 7
years (84 months).” The PSR also stated that under § 2K2.4, cmt. n.2(B), any
sentence above the seven-year mandatory minimum would be an upward
departure from the guideline sentence. Neither party objected to the PSR.
      At sentencing, after confirming that Juarez had reviewed the PSR, the
district court stated, “[a]lthough the Guidelines address this kind of conviction,
the Guidelines really don’t set out the guideline range for this. It becomes
whatever the statute requires, and so what you’re looking at is a minimum of
five years—excuse me, seven years and up to life in prison.” Juarez’s counsel
then requested that the district court impose the seven-year mandatory
minimum sentence, noting that “the Guidelines basically provide that that’s
essentially the recommended guideline sentence.” In support of this request,
Juarez’s counsel asked the district court to take into consideration that Juarez
was 19 years old, had been candid with law enforcement, and had two young
children, and that Juarez’s criminal record was the result of his drug use and
“association with negative peers.”              Counsel also stated that Juarez
acknowledged his need to “pay his debt to society,” “address his drug problem,”
and “change the people with whom he’s associating.” Juarez then apologized
to the district court and to his victims.
      The government opposed Juarez’s request for the mandatory minimum
sentence, maintaining that it was inadequate. The government asserted that
                                            2
    Case: 15-40191      Document: 00513367161      Page: 3   Date Filed: 02/03/2016



                                    No. 15-40191
Juarez had an extensive history of “bad acts” with victims who were lucky not
to have been killed or injured and that in the instant case Juarez was carrying
a loaded firearm, pointing it at people, and using drugs. The government then
stated that “[b]ased on the PSR, obviously the Court is well aware of the
mandatory minimum applies, but there is no guideline range, per se, and the
Court is open to whatever the Court believes that the Defendant deserves.”
Juarez’s counsel interjected to correct the government, stating that under
§ 2K2.4, “[i]f the Defendant was convicted of violating [§] 924(c), the guideline
sentence is the minimum term of imprisonment required by statute.” The
district court responded, “I do agree and I read that, but—.” Before the district
court could complete its sentence, Juarez’s counsel continued, “[a]nd I’m again,
I’m not saying the Court is bound by the Guidelines, but I’m asking the Court
to find that that is sufficient.”
        The district court then proceeded to discuss Juarez’s youth and
circumstances, telling him, “my heart does ache for you” because of the path
his life had taken. The district court then emphasized the seriousness of the
offense conduct and Juarez’s luck that the carjacking victim was unarmed and
nobody was killed. The district court sentenced Juarez to a ten-year term of
imprisonment and a five-year term of supervised release. The court explained
that:
        if this was a recent spur of criminal activity, Mr. Juarez, I would
        have no problem sentencing you at the mandatory minimum here,
        but because of the history that we have here dating back to a very
        young age and I’ll note that in that respect in 2009, one of the
        juvenile offenses that you had is where—involving a weapon and
        it was luckily not something that resulted, again, in anybody being
        hurt and a few years later, you have the same situation in 2012
        and again, luckily nobody was hurt, but certainly there is conduct
        that the Court believes is serious enough where the Court cannot
        impose the mandatory minimum here, Mr. Juarez.


                                         3
    Case: 15-40191    Document: 00513367161      Page: 4   Date Filed: 02/03/2016



                                 No. 15-40191
Juarez objected to his sentence, arguing that it was greater than necessary to
accomplish the sentencing goals of 18 U.S.C. § 3553(a).
      In its written statement of reasons (SOR), the district court adopted the
PSR without change. However, the SOR incorrectly listed Juarez’s Guidelines
range, before any departures, as 84 months (seven years) to life imprisonment.
The SOR further indicated that Juarez’s ten-year term of imprisonment was a
within-Guidelines range sentence, and the departure and variance sections of
the SOR were left blank.
      Juarez filed a timely notice of appeal, arguing that his sentence must be
vacated and his case remanded for resentencing because it is impossible to
determine whether the district court mistakenly believed that the ten-year
sentence was within the Guidelines range or intended to impose a departure
or variance from the Guidelines range, and that his sentence is procedurally
and substantively unreasonable. The government argues that the district
court unambiguously and mistakenly believed that its sentence was within the
Guidelines range, but that the error was harmless.
                                           II.
      In reviewing sentencing challenges, “[r]egardless of whether the
sentence imposed is inside or outside the Guidelines range, the appellate court
must review the sentence under an abuse-of-discretion standard.” Gall v.
United States, 552 U.S. 38, 51 (2007). “It must first ensure that the district
court committed no significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range . . . or failing to adequately
explain the chosen sentence—including an explanation for any deviation from
the Guidelines range.” Id. “Assuming that the district court’s sentencing
decision is procedurally sound, the appellate court should then consider the
substantive reasonableness of the sentence imposed under an abuse-of-
discretion standard.” Id.
                                       4
    Case: 15-40191    Document: 00513367161      Page: 5   Date Filed: 02/03/2016



                                 No. 15-40191
      If procedural error occurs, we review for harmless error. United States
v. Clay, 787 F.3d 328, 330 (5th Cir. 2015). “In conducting this review, we
review the district court’s interpretation or application of the sentencing
guidelines de novo and its factual findings for clear error.” Id.
                                      III.
                                       A.
      It is undisputed that the correct Guidelines “range” was a seven-year
sentence.   The statutory mandatory minimum sentence for brandishing a
firearm under § 924(c)(1)(A)(ii) is seven years’ imprisonment.         18 U.S.C.
§ 924(c)(1)(A)(ii). Section 2K2.4(b) provides that “if the defendant . . . was
convicted of violating section 924(c) . . . the guideline sentence is the minimum
term of imprisonment required by statute.”       U.S.S.G. § 2K2.4(b); see also
United States v. Thomas, 384 F. App’x 394, 396 (5th Cir. 2010) (noting that the
guideline sentence for a violation of § 924(c)(1)(A)(ii) was the seven-year
mandatory minimum term of imprisonment).
      It is unclear from the record whether the district court understood that
the ten-year sentence it imposed exceeded the Guidelines sentence. On the one
hand, the PSR and sentencing recommendation both correctly identified the
Guidelines range as seven years. In addition, at sentencing Juarez twice
reiterated that the Guidelines recommendation was the mandatory minimum
of seven years. On one occasion, the district court responded, “I do agree and
I read that, but—” before being interrupted. On the other hand, the district
court incorrectly stated at the onset of the sentencing hearing that there was
no Guidelines range for Juarez’s firearm offense and the statutory range of
seven years to life established the applicable range of imprisonment.
Moreover, the district court did not correct the Government when it reiterated
this misunderstanding by stating “there is no guideline range, per se.”


                                        5
    Case: 15-40191    Document: 00513367161     Page: 6   Date Filed: 02/03/2016



                                 No. 15-40191
      The SOR furthered this confusion.       In the SOR, the district court
indicated that: (1) the Guidelines range, before any departures, was seven
years to life imprisonment; (2) the court had imposed a within-Guidelines
sentence; and (3) it had not departed or varied from the Guidelines. However,
in the SOR the district court also adopted the PSR, which listed the correct
seven-year Guidelines sentence and noted that any sentence above the
mandatory minimum would be an upward departure. As such, at various
times both at sentencing and in its SOR, the district court seemed to be under
the misunderstanding that the Guidelines range was seven years to life.
      Where a sentence is ambiguous, the proper course is to remand so that
the district court can clarify its sentence at a resentencing proceeding. In
United States v. Garza, 448 F.3d 294 (5th Cir. 2006), the district court had
orally announced alternative sentences in anticipation of a pending Supreme
Court decision, but the written judgment did not include these alternative
sentences. We explained:
      “[W]hen there is a conflict between a written sentence and an oral
      pronouncement, the oral pronouncement controls.” However, if
      there is “an ambiguity between the two sentences, the entire
      record must be examined to determine the district court’s true
      intent.” In the case before us, there is an ambiguity in the oral
      pronouncement itself, and we cannot ascertain the district court’s
      true intent from an examination of the record.
Id. at 302 (citations omitted). Because “[c]riminal sentences must ‘reveal with
fair certainty the intent of the court to exclude any serious misapprehensions
by those who must execute them,’” the court explained that “unclear or
ambiguous sentences must be vacated and remanded for clarification in ‘the
interest of judicial economy and fairness to all concerned parties.’”         Id.
(citations omitted); see also United States v. Garcia-Ortiz, 310 F.3d 792, 795
(5th Cir. 2002) (“In light of the ambiguity in the record, the best course is to
remand the case for reconsideration of the sentence.”); United States v.
                                       6
    Case: 15-40191    Document: 00513367161     Page: 7   Date Filed: 02/03/2016



                                 No. 15-40191
Aguilar-Ramirez, No. 00-50889, 264 F.3d 1141, at *2 (5th Cir. June 22, 2001)
(unpublished) (“Where, as here, the record is confusing, a remand is
required.”).
      Here, although the district court unambiguously sentenced Juarez to ten
years’ imprisonment, it was ambiguous whether the district court imposed the
sentence incorrectly believing it to be within the Guidelines or as a departure
or variance. The inconsistences between the district court’s statements at
sentencing, the PSR, and the SOR make it impossible to determine with
certainty whether the district court committed a “significant procedural error”
by improperly calculating Juarez’s Guidelines sentence.        Accordingly, the
proper course is to vacate Juarez’s sentence and remand for resentencing. See
Garza, 448 F.3d at 302 (vacating sentence and remanding for resentencing);
Aguilar-Ramirez, 264 F.3d 1141, at *3 (same); see also United States v. Brown,
578 F.3d 221, 226 (3d Cir. 2009) (vacating sentence and remanding for
resentencing where district court’s inconsistent statements left court of
appeals “unable to determine whether the District Court intended to grant an
upward departure or intended to grant a variance”).
                                       B.
      Even assuming arguendo that—as the government argues—the district
court unambiguously committed a procedural error by mistakenly concluding
that the Guidelines range was seven years to life, the government has not met
its burden to establish that the error was harmless.          “If the court has
committed [a significant procedural] error, we must remand unless the
proponent of the sentence establishes that the error ‘did not affect the district
court’s selection of the sentence imposed.’” United States v. Delgado-Martinez,
564 F.3d 750, 753 (5th Cir. 2009) (quoting Williams v. United States, 503 U.S.
193, 203 (1992)). “[T]he harmless error doctrine applies only if the proponent
of the sentence convincingly demonstrates both (1) that the district court would
                                       7
    Case: 15-40191     Document: 00513367161      Page: 8   Date Filed: 02/03/2016



                                  No. 15-40191
have imposed the same sentence had it not made the error, and (2) that it
would have done so for the same reasons it gave at the prior sentencing.”
United States v. Ibarra-Luna, 628 F.3d 712, 714 (5th Cir. 2010). “To satisfy
that burden, the proponent ‘must point to evidence in the record that will
convince us that the district court had a particular sentence in mind and would
have imposed it, notwithstanding the error.’” Id. at 718 (citation omitted).
“This is a heavy burden.” Id. at 717.
      The government argues that the district court’s statements at sentencing
establish that it unambiguously had the ten-year sentence in mind, rendering
the error harmless. The government argues that the district court imposed the
sentence “because it agreed with the Government that the mandatory-
minimum sentence was insufficient under the 18 U.S.C. § 3553(a) factors” and
never mentioned the Guidelines range.
      At sentencing, the district court recognized Juarez’s youth, but expressed
its “grave concern” for the people that could have been killed as a result of his
offense, and noted that drug activity had become Juarez’s “way of life” and that
“this is the time” he needed to be “held accountable for [his] conduct.” The
court continued:
      But you are, because of the history that I have here, of great
      concern to me and if this was the only time that you had been
      involved with a weapon, if this was a recent spur of criminal
      activity, Mr. Juarez, I would have no problem sentencing you at the
      mandatory minimum here, but because of the history that we have
      here dating back to a very young age and I’ll note that in that
      respect in 2009, one of the juvenile offenses that you had is
      where—involving a weapon and it was luckily not something that
      resulted, again, in anybody being hurt and a few years later, you
      have the same situation in 2012 and again, luckily nobody was
      hurt, but certainly there is conduct that the Court believes is serious
      enough where the Court cannot impose the mandatory minimum
      here, Mr. Juarez.


                                        8
    Case: 15-40191    Document: 00513367161    Page: 9   Date Filed: 02/03/2016



                                No. 15-40191
(emphasis added). The district court also noted that it had considered the
§ 3553(a) factors, specifically, the need to protect the public, deter future
criminal conduct, and promote respect for the law.
      Under our precedent, these comments are insufficient to satisfy the
government’s “heavy burden” of showing that the district court’s procedural
error was harmless. In Ibarra-Luna, the district court imposed a 36-month
sentence after incorrectly calculating the Guidelines range as 12 to 18 months,
when the correct range was 6 to 12 months. 628 F.3d at 716. We were
“convinced that the explanation the district court gave for imposing an above-
Guidelines sentence would have led it to do so even if it had considered the
correct Guidelines range,” but nevertheless vacated the sentence and
remanded for resentencing, explaining: “We cannot state with the requisite
certainty . . . that the district court would have imposed precisely the same
sentence. The district court did not indicate how it selected a sentence of 36
months, and it did not state whether this sentence was influenced by its
Guidelines calculations or based instead on independent factors.” Id. at 719.
      Here, it is not even clear that the district court would have departed
upward if it had known that the Guidelines suggested a sentence of seven years
and not seven years to life. This is significant; the district court apparently
believed the sentence it was imposing was far below the Guidelines’ maximum
recommended sentence of life imprisonment, when in fact it was three years
above the Guidelines sentence. This fact alone casts doubt on the government’s
premise that the error was harmless. See Delgado–Martinez, 564 F.3d at 753
(“[T]he improper calculation of the Guidelines range can rarely be shown not
to affect the sentence imposed.”) (quoting United States v. Langford, 516 F.3d
205, 215 (3d Cir. 2008)). Regardless, the district court did not explain how it
selected the ten-year sentence, nor did it state that it would impose the same
sentence if the Guidelines recommended only seven years’ imprisonment.
                                      9
    Case: 15-40191      Document: 00513367161        Page: 10     Date Filed: 02/03/2016



                                     No. 15-40191
Under these circumstances, we “cannot state with the requisite certainty . . .
that the district court would have imposed precisely the same sentence” in the
absence of the error. Ibarra-Luna, 628 F.3d at 719; see also United States v.
Martinez-Flores, 720 F.3d 293, 300–01 (5th Cir. 2013) (rejecting a harmless
error argument where the district court did not clearly state that it would
impose the same sentence absent the error). Therefore, the government has
not met its heavy burden to show that the district court’s procedural error was
harmless. 1
                                           IV.
      For the foregoing reasons, we VACATE Juarez’s sentence and REMAND
for resentencing.




      1We therefore need not reach Juarez’s additional argument that his ten-year sentence
was substantively unreasonable.
                                           10
