     Case: 18-11578   Document: 00515421654        Page: 1   Date Filed: 05/19/2020




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

                                                                      FILED
                                    No. 18-11578                  May 19, 2020
                                                                 Lyle W. Cayce
UNITED STATES OF AMERICA,                                             Clerk


             Plaintiff - Appellee

v.

GILBERTO GOMEZ,

             Defendant - Appellant




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


Before HIGGINBOTHAM, STEWART, and ENGELHARDT, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      In 2017, a jury convicted Appellant Gilberto Gomez of drug-trafficking
and firearms offenses. His first appeal to this Court resulted in a resentencing
proceeding at which his term of imprisonment was reduced by nearly 200
months. Gomez now raises two challenges to his revised sentence. First, he
argues that the First Step Act of 2018 invalidated the 25-year mandatory-
minimum sentence he received for one of his firearms offenses. Second, he
contends that the district court erred by failing to orally pronounce the special
conditions of supervised release that it later imposed in his written judgment.
Finding no error, we affirm.
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                                     No. 18-11578
                                            I.
      On a tip from a confidential informant in November 2015, the Dallas
Police Department initiated an undercover investigation of Appellant Gilberto
Gomez and his co-defendant Felix Cantu. The investigation revealed evidence
that Cantu was selling methamphetamine at Gomez’s direction, and that
Gomez was distributing other drugs, including cocaine and marijuana, in
addition to methamphetamine. A March 2016 search of Gomez’s residence
turned up large amounts of cash, drug paraphernalia, “bags of marijuana,
cocaine, methamphetamine, [and] alprazolam pills,” and seven firearms.
Gomez was indicted on six offenses: conspiracy to possess with intent to
distribute methamphetamine (count one); possession with intent to distribute
methamphetamine, cocaine, and marijuana (counts two, four, and seven,
respectively); and two counts of possession of a firearm in furtherance of a drug
trafficking crime (counts three and five).
      The two firearm counts were charged under separate subsections of 18
U.S.C. § 924(c)(1), which prohibits the use, carry, or possession of a firearm in
furtherance of a drug trafficking crime or a crime of violence. Count three was
charged under § 924(c)(1)(A)(i), which imposes a five-year mandatory-
minimum sentence for a first-time offense. Count five was charged under
§ 924(c)(1)(C)(i), which, at the time, imposed a 25-year mandatory-minimum
sentence for any “second or subsequent conviction under this section.” 1 Gomez
had not been convicted of a weapons offense in any prior prosecution. Instead,
the Government used Gomez’s simultaneous conviction on count three as the
predicate for imposing § 924(c)(1)(C)(i)’s repeat-offender enhancement on count
five. At the time, it was common practice to “stack” simultaneous § 924(c)(1)
offenses by charging one as a first-time offense and all others as successive. In


      1 18 U.S.C. § 924(c)(1)(C)(i) (2006), amended by First Step Act of 2018, Pub. L. No.
115-391, § 403, 132 Stat. 5194, 5221–22.
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                                         No. 18-11578
fact, this approach had been endorsed by the Supreme Court in 1993 when it
held that a defendant charged simultaneously with multiple § 924(c)(1)
offenses was subject to the enhanced repeat-offender minimum on all but the
first count. 2
       Gomez proceeded to trial and was convicted on all counts in March 2017.
The district court sentenced him to a total of 652 months’ imprisonment. The
court also imposed a five-year term of supervised release (“TSR”) “subject to
the standard conditions provided by the Sentencing Commission as well as the
mandatory conditions.” However, Gomez’s written judgment also included four
special conditions of supervised release that had not been mentioned at
sentencing or in his presentence investigation report (“PSR”).
       Gomez appealed, arguing that the district court had sentenced him
under the erroneous belief that it could not vary downward on the drug counts
despite considering his Guidelines range “excessive.” We agreed, and in
September 2018 we issued a limited remand for the district court to reconsider
Gomez’s sentence. 3 On November 26, 2018, the district court resentenced
Gomez to the statutory minimum term of 480 months’ imprisonment. In
addition to reduced terms on the drug charges, this sentence included the
mandatory minimum of 60 months on Gomez’s first firearm count and a
consecutive mandatory-minimum sentence of 300 months on the second. The
court also re-imposed a five-year TSR “subject to the same terms and
conditions as previously stated” in Gomez’s first judgment. Gomez’s revised
judgment listed the same four special conditions as the original.
       Gomez filed this appeal on December 5, 2018, raising two objections to
his revised sentence. First, he argues that the First Step Act of 2018
invalidated the 25-year mandatory-minimum sentence he received for the


       2   Deal v. United States, 508 U.S. 129, 131–33 (1993).
       3   United States v. Gomez, 905 F.3d 347 (5th Cir. 2018).
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                                       No. 18-11578
successive firearm violation. Second, Gomez argues that the district court
erred by imposing special conditions of supervised release in his written
judgment without orally pronouncing them at sentencing.
                                             II.
                                             A.
       The First Step Act of 2018 (the “Act”) was signed into law on December
21, 2018, “introducing a number of criminal justice reforms.” 4 Among those
reforms, § 403 of the Act amended 18 U.S.C. § 924(c)(1)(C)(i), the provision that
imposes a 25-year minimum sentence for repeat firearms offenders, to reduce
the severity of “stacked” charges. Before the Act, the 25-year minimum was
triggered by any “second or subsequent conviction under this subsection.” 5
Now, it is triggered only by a repeat “violation . . . that occurs after a prior
conviction under this subsection has become final.” 6 In other words, the 25-
year repeat-offender minimum no longer applies where a defendant is charged
simultaneously with multiple § 924(c)(1) offenses. Now, to trigger the 25-year
minimum, the defendant must have been convicted of a § 924(c)(1) offense in a
prior, separate prosecution. 7
       Although § 403 of the Act is not retroactive, Gomez urges us to construe
it as applying to defendants who, like him, were sentenced before December
21, 2018 but whose cases remained pending on direct appeal on that date. 8




       4 United States v. Hegwood, 934 F.3d 414, 416 (5th Cir. 2019).
       5 18 U.S.C. § 924(c)(1)(C)(i) (2006), amended by First Step Act § 403.
       6 First Step Act § 403.
       7 See United States v. Jordan, 952 F.3d 160, 171 (4th Cir. 2020).
       8 The parties dispute when Gomez’s sentence was “imposed” for purposes of our First

Step Act analysis: the date of the original sentencing hearing (June 19, 2017), or the date of
the resentencing hearing (November 26, 2018). We need not decide the issue because both
dates are prior to the Act’s enactment.
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                                         No. 18-11578
Because this is “a question of pure statutory construction,” our review is de
novo. 9
                                                B.
       It is undisputed that if Gomez were charged with the same offenses today
as he was in 2016, he would not face the enhanced minimum sentence for
repeat firearm offenders. Instead, his two weapons counts would each carry a
mandatory minimum of five years. 10 While we recognize the grave effect of this
infelicitous timing, we find no support in the statute or the case law for
applying § 403 retroactively to cases pending on direct appeal on the First Step
Act’s effective date.
       First and most importantly, the Act itself plainly states that § 403 is not
retroactive: It applies to an offense committed before its December 21, 2018
effective date only “if a sentence for the offense ha[d] not been imposed as of
such date.” 11 A sentence is “imposed” when the district court pronounces it, not
when the defendant exhausts his appeals. 12 Second, all other circuit courts to
consider Gomez’s argument—six at the time of this writing—have rejected it,
“uniformly support[ing]” our reading of the statute. 13


       9  United States v. Ahmad, 101 F.3d 386, 389 (5th Cir. 1996); see also United States v.
Snyder, 930 F.2d 1090, 1093 (5th Cir. 1991) (“We review de novo questions of statutory
construction.”).
        10 See Jordan, 952 F.3d at 171.
        11 § 403(b), 132 Stat. at 5222; see United States v. Carabali-Diaz, No. 19-20261, 2020

WL 1861972, at *1 (5th Cir. Apr. 13, 2020) (unpublished) (per curiam).
        12 Grene v. United States, 460 F.2d 580, 582 (5th Cir. 1972); see Jordan, 952 F.3d at

172; see also United States v. Gonzalez, 949 F.3d 30, 42 (1st Cir. 2020) (“A sentence is
customarily understood to be imposed either when it is pronounced or entered in the trial
court, regardless of subsequent appeals.”).
        As the Government points out, even if the Act were ambiguous about retroactivity, the
general federal saving statute would preclude relief. See 1 U.S.C. § 109 (providing that “[t]he
repeal of any statute shall not have the effect to release or extinguish any penalty . . . incurred
under such statute, unless the repealing Act shall so expressly provide . . . .”); see also Dorsey
v. United States, 567 U.S. 260, 272 (2012) (explaining that “the word ‘repeal’ applies when a
new statute simply diminishes the penalties that the older statute set forth”).
        13 Jordan, 952 F.3d at 172; see id. at 163 (“§ 403 of the First Step Act does not apply

retroactively to cases pending on direct appeal when it was enacted.”); United States v. Cruz-
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                                        No. 18-11578
       Finally, we see no merit in Gomez’s claim that § 403 is “analogous to . . .
a clarifying amendment to the United States Sentencing Guidelines,” which
“may be considered on direct appeal even when [it was] not effective at the time
of sentencing.” 14 To state the obvious, § 924(c)(1) is a statute, not a Sentencing
Guideline, and Gomez cites no authority for extending conventions of
Guidelines interpretation to statutes. Instead, he relies on the fact that § 403
is titled “Clarification of Section 924(c) of Title 18, United States Code.” 15 In
his view, the word “clarification” evinces congressional intent to make § 403,
like clarifying Guidelines amendments, retroactive to cases on direct appeal.
However, it is well established that “the heading of a section cannot limit the
plain meaning of the text,” which in this case refutes any implication of
retroactivity. 16 Despite its title, § 403 did more than clarify existing law; it
abrogated Supreme Court precedent that had endorsed the stacking of
§ 924(c)(1)(C)(i) sentences. 17

Rivera, 954 F.3d 410, 412 (1st Cir. 2020) (declining a defendant’s invitation to “read [§ 403(b)]
to mean the amendment applies to cases (like his) that were pending on direct review, and
so were not final, when the Act was passed”); United States v. Richardson, 948 F.3d 733, 737
(6th Cir. 2020) (holding that a defendant resentenced before December 21, 2018 “cannot
benefit from the First Step Act”); United States v. Hodge, 948 F.3d 160, 162 (3d Cir. 2020)
(rejecting the argument “that any defendant awaiting resentencing when the First Step Act
became law may benefit from the reduced § 924(c) mandatory minimum”); United States v.
Hamilton, No. 17-10490, 2020 WL 362943, at *2 (9th Cir. Jan. 22, 2020) (unpublished) (per
curiam) (“Section 403 of the First Step Act excludes [a case pending on direct appeal] because
[the defendant’s] sentence has already been ‘imposed.’”); United States v. Garcia, No. 17-
13992, 2019 WL 7503482, at *1 (11th Cir. July 9, 2019) (unpublished) (per curiam)
(“[A]lthough [the defendant’s] sentence has not yet become final because it has not yet been
affirmed on appeal, the date that matters” for purposes of § 403 “is the one on which the
district court sentenced him.”).
        14 United States v. Meza, 250 F. App’x 651, 655 (5th Cir. 2007) (unpublished) (per

curiam) (citing United States v. Anderson, 5 F.3d 795, 802 (5th Cir. 1993)) (“Amendments to
the guidelines and their commentary intended only to clarify, rather than effect substantive
changes, may be considered even if not effective at the time of the commission of the offense
or at the time of sentencing.”).
        15 § 403, 132 Stat. at 5222 (emphasis added).
        16 Bhd. of R.R. Trainmen v. Balt. & O.R. Co., 331 U.S. 519, 528–29 (1947); see United

States v. Johnson, 632 F.3d 912, 924 (5th Cir. 2011).
        17 See Richardson, 948 F.3d 733, 748 (rejecting a similar argument on the ground that

the Act “changed the law rather than clarified what the law always meant”); see also United
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                                         No. 18-11578
       For all these reasons, we reject Gomez’s reading of the statute and
instead join our sister circuits in holding that § 403 of the Act affords no relief
to defendants whose cases were pending on direct appeal on the law’s
December 21, 2018 effective date. The date that matters in the § 403 inquiry
is when the district court imposed the defendant’s sentence—not when the
defendant exhausted his appeals.
                                               III.
                                                A.
       Gomez next argues that the district court erred by imposing special
conditions of supervised release in his written judgment without orally
pronouncing them at his resentencing hearing. The district court’s obligation
to orally pronounce its sentence is grounded in the defendant’s right to be
present at sentencing, which in turn is derived from the Fifth Amendment’s
Due Process Clause. 18 We have long recognized that the oral-pronouncement
requirement applies to certain conditions of supervised release as well as to
custodial sentences. 19 Our notice-based method for determining the
appropriate standard of review has also remained consistent. If the defendant
had no opportunity to object to the unpronounced conditions in the district
court, we review for abuse of discretion; 20 if he had the opportunity but failed
to object, plain error review applies. 21



States v. Meehan, 798 F. App’x 739, 741 (3d Cir. 2020) (unpublished) (per curiam) (“[B]ecause
Congress made clear in § 403(b) that § 403(a) of the First Step Act applies only to defendants
who had not been sentenced as of the date of enactment, the use of the term ‘clarification’ in
§ 403’s heading is not relevant to the retroactivity determination.”).
        18 See United States v. Gagnon, 470 U.S. 522, 526 (1985) (per curiam).
        19 See United States v. Bigelow, 462 F.3d 378, 381 (5th Cir. 2006).
        20 United States v. Mudd, 685 F.3d 473, 480 (5th Cir. 2012).
        21 United States v. Huor, 852 F.3d 392, 398 (5th Cir. 2017). Under the four-prong

framework of plain-error review, a defendant must demonstrate (1) an error that (2) is “clear
or obvious” and that (3) “affected [his] substantial rights.” Puckett v. United States, 556 U.S.
129, 135 (2009). If the first three prongs are satisfied, we may exercise our discretion to
correct the error only if it (4) “seriously affects the fairness, integrity or public reputation of
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                                       No. 18-11578
       Just recently, however, our en banc Court in United States v. Diggles
established a new framework for determining which conditions of supervised
release require oral pronouncement and what counts as notice to the
defendant. 22 Formerly, only “special” conditions of supervised release had to be
pronounced; all others—including mandatory conditions, standard conditions,
and a hybrid category known as “recommended” conditions—were exempt.23
Although nominally pegged to distinctions drawn by the Sentencing
Guidelines, this taxonomy grew complex and confusing over time. Diggles
replaced it with a simple, statutorily based dividing line: “A sentencing court
must pronounce [only] those conditions that are discretionary under
18 U.S.C. § 3583(d),” the statute that governs supervised release. 24 If a
condition is required by the statute, “making an objection futile, the court need
not pronounce it.” 25
       Diggles also established that the district court’s “oral adoption” at
sentencing of a document listing proposed supervision conditions satisfies the
oral-pronouncement requirement and provides notice to the defendant, such
that a failure to object will result in plain-error review on appeal. 26 Although
the document orally adopted in Diggles was a PSR, the Court noted that any
document listing proposed conditions of supervised release will suffice so long
as the district court ensures that “the defendant had an opportunity to review
it with counsel” and orally adopts it “when the defendant is in court.” 27




judicial proceedings.” Id. (internal alterations omitted) (quoting United States v. Olano, 507
U.S. 725, 736 (1993)).
       22 No. 18-40521, 2020 WL 2048025, at *8 (5th Cir. Apr. 29, 2020).
       23 United States v. Torres-Aguilar, 352 F.3d 934, 938 (5th Cir. 2003).
       24 Diggles, 2020 WL 2048025, at *8.
       25 Id. at *4.
       26 Id. at *8.
       27 Id. at *6 n.5.


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                                       No. 18-11578
                                             B.
       The four conditions of supervised release listed as “special” on Gomez’s
revised judgment require him to participate in (1) domestic-violence and (2)
substance-abuse       treatment      programs,      (3)    make     timely   child-support
payments, and (4) provide his probation officer with any requested financial
information. Applying the new Diggles framework, we see that all four of these
conditions are discretionary under § 3583(d). 28 Thus, they are all subject to the
oral-pronouncement requirement.
       The next question is what standard of review governs Gomez’s
unpreserved oral-pronouncement challenge. The record shows that at Gomez’s
November 2018 resentencing hearing, the district court orally adopted the
special conditions it had listed in Gomez’s first written judgment the year
before. 29 While we do not know if Gomez had a physical copy of the first
judgment before him at the resentencing hearing, it had been in the record for
more than a year, giving the defense ample notice of its contents and
opportunity to object to the re-imposition of its supervised-release provisions.
Furthermore, given his prior appeal from the first written judgment, there is
no doubt that Gomez had had an opportunity to review its contents with
counsel prior to the November 2018 resentencing.
       Thus, we review for plain error, and just as in Diggles, we conclude that
Gomez’s challenge “do[es] not clear even the first of the four plain-error hurdles


       28  The statute lists participation in a domestic-violence treatment program as a
mandatory supervised-release condition, but only “for a defendant convicted for the first time
of a domestic violence crime . . . .” 18 U.S.C. § 3583(d). Because Gomez was not convicted of
such a crime, the district court’s imposition of a domestic-violence treatment condition was
discretionary.
        29 We note that the district court likely did violate the oral-pronouncement

requirement at Gomez’s first sentencing hearing in 2017. Neither Gomez’s PSR nor the court
itself made any mention of the conditions that later appeared on Gomez’s written judgment,
depriving him of notice and an opportunity to object. However, this appeal concerns only
Gomez’s second, 2018 resentencing proceeding, so our analysis is unaffected by any error that
might have occurred at the first.
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                                       No. 18-11578
for there was no error at all.” 30 The district court “pronounced” Gomez’s
conditions of supervised release when it stated that his new TSR would be
“subject to the same terms and conditions as previously stated” in his first
written judgment. 31
                                             IV.
       For the foregoing reasons, the revised sentence imposed by the district
court is affirmed.




       30 Diggles, 2020 WL 2048025, at *5.
       31 Although the district court did not identify the first written judgment by name, its
oral adoption of the “previously stated” conditions leaves little doubt about which document
it intended to incorporate. After all, Gomez’s first judgment was the only place in the record
where the previously imposed special conditions appeared. Moreover, Gomez has not
asserted, much less shown, that the conditions at issue were included in his first judgment
as the result of a mistake or are substantively inappropriate.
                                             10
