     Case: 18-50627   Document: 00515231145      Page: 1   Date Filed: 12/10/2019




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

                                                                       FILED
                                 No. 18-50627                   December 10, 2019
                                                                  Lyle W. Cayce
UNITED STATES OF AMERICA,                                              Clerk


             Plaintiff – Appellee,

v.

ALEXIS AGUILAR-ALONZO,

             Defendant – Appellant.




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


Before SMITH, WIENER, and ELROD, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
      The original opinion in this matter was filed on August 27, 2019. United
States v. Aguilar-Alonzo, 936 F.3d 278 (5th Cir. 2019). We withdraw our
previous opinion and substitute the following.
      Alexis Aguilar-Alonzo pleaded guilty to aiding and abetting the
possession with intent to distribute marijuana. The district court imposed a
two-level enhancement to Aguilar-Alonzo’s base offense level under U.S.S.G.
§ 2D1.1(b)(15)(A) (2016) for “us[ing] fear, impulse, friendship, affection, or
some combination thereof to involve another individual” in the offense.
Aguilar-Alonzo appeals, contending that the evidence does not support the two-
    Case: 18-50627     Document: 00515231145    Page: 2   Date Filed: 12/10/2019



                                 No. 18-50627
level enhancement and that the district court clearly erred in applying the
enhancement. We agree and VACATE and REMAND.
                                       I.
        Aguilar-Alonzo, his girlfriend Yudilet Chavez-Hernandez, and eight
others were charged with aiding and abetting the possession with intent to
distribute more than 100 kilograms of marijuana but less than 1000 kilograms
in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Aguilar-Alonzo pleaded
guilty without a plea agreement.
        After her arrest, Chavez-Hernandez told investigators that “she had
been dating Aguilar-Alonzo for approximately one year and . . . knew [he] was
involved in drug trafficking,” but that she had never participated in “picking
up a load of narcotics” herself prior to this offense. This time, Aguilar-Alonzo
requested that she accompany him “to pick up the [marijuana].” She told the
investigators that she agreed to participate “out of fear he would break up with
her.”
        The presentence investigation report (PSR) calculated a base offense
level of 24 under the 2016 Sentencing Guidelines §§ 2D1.1(a)(5) and (c)(8). It
recommended a two-level enhancement under § 3B1.1(c) of the Guidelines
because Aguilar-Alonzo “was an organizer, leader, manager, or supervisor.”
Because of this two-level enhancement for leadership, the PSR recommended
an additional two-level enhancement for two independent reasons.           First,
Aguilar-Alonzo “us[ed] friendship or affection to involve [Chavez-Hernandez]
in the illegal transport of controlled substance[s], [Chavez-Hernandez]
received little or no compensation [from] the transport of the controlled
substances, and [Chavez-Hernandez] had minimal knowledge of the scope and




                                       2
     Case: 18-50627      Document: 00515231145        Page: 3    Date Filed: 12/10/2019



                                     No. 18-50627
structure of the enterprise.” See U.S.S.G. § 2D1.1(b)(15)(A) (2016). 1 Second,
Aguilar-Alonzo, “knowing that [Chavez-Hernandez] was pregnant, involved
[her] in the offense.” See § 2D1.1(b)(15)(B)(iii). With a three-level reduction
for acceptance of responsibility under § 3E1.1(a) and (b), Aguilar-Alonzo’s total
offense level was 25. Based on the offense level of 25 and a criminal history
category of II, the Guidelines range was 63 to 78 months of imprisonment.
      Aguilar-Alonzo objected to the two-level enhancement for use of
affection, asserting that “Chavez-Hernandez had more [than minimal]
knowledge” of the scope and structure of the criminal enterprise and that
merely being “in a dating relationship does not trigger” that enhancement. The
probation officer asserted that the requirements for the enhancement were
satisfied.   Regarding use of affection, the probation officer noted that
(1) “Chavez-[Hernandez] was engaged in a romantic relationship with
[Aguilar-Alonzo],” (2) Aguilar-Alonzo “was aware Chavez-[Hernandez] was
pregnant with his child at the time of the instant offense,” and (3) “Chavez-
[Hernandez] agreed to help [Aguilar-Alonzo] as she feared [he] would
terminate his relationship with her.”
      At sentencing, Aguilar-Alonzo contended that nothing in the record
indicated that he “made any kind of action or said any words” suggesting that
he would end the relationship if she refused to participate in the offense.
Aguilar-Alonzo asserted that, even though she may have felt that way, he
“ha[d] to make some sort of actual action or words” to be eligible for the
enhancement. In addition, Aguilar-Alonzo contended that Chavez-Hernandez
had more than minimal knowledge of the scope and structure of the enterprise:
“[S]he knew [that] he was involved in drug trafficking,” she saw him pick up



      1  This section has been renumbered as § 2D1.1(b)(16)(A) effective November 1, 2018,
but the language remains the same.
                                            3
    Case: 18-50627       Document: 00515231145   Page: 4   Date Filed: 12/10/2019



                                  No. 18-50627
and unload drugs in the past, and she then agreed to participate in the offense
following his request.
      Aguilar-Alonzo also objected to the second independent basis for the two-
level enhancement, claiming it was unwarranted under § 2D1.1(b)(15)(B)
because “it [was] unclear whether [Aguilar-Alonzo] knew at the time of the
offense that [Chavez-Hernandez] was pregnant.” Aguilar-Alonzo asserted that
“he didn’t find out until she was arrested,” at which point she called from jail
to tell him “I think I just found out I’m pregnant,” and that he had a letter from
her to him explaining “[she] wish[ed she] would have told [him] that [she] was
pregnant.”    The prosecutor conceded that the government did not have
evidence proving that Aguilar-Alonzo knew of Chavez-Hernandez’s pregnancy
at the time of the offense.
      The district court explicitly found that the facts did not establish
whether Aguilar-Alonzo knew, at the relevant time of the offense, that Chavez-
Hernandez was pregnant and declined to sustain the enhancement under
§ 2D1.1(b)(15)(B). Nevertheless, the district court determined that the two-
level enhancement was warranted under § 2D1.1(b)(15)(A) because it was
“apparent from the facts . . . that [Aguilar-Alonzo] used fear, impulse,
friendship, affection, or some combination thereof to involve [Chavez-
Hernandez]” in the offense. The court overruled Aguilar-Alonzo’s objection to
the enhancement for a leadership role. With this two-level enhancement for
the use of affection, the total offense level was 25, resulting in a Guidelines
range of 63 to 78 months. The district court declined to depart from the
Guidelines recommendation and sentenced Aguilar-Alonzo to 70 months of
imprisonment and 5 years of supervised release.
      On appeal, Aguilar-Alonzo challenges only the two-level enhancement
under § 2D1.1(b)(15)(A), asserting that the district court clearly erred in
concluding that he “used fear, impulse, friendship, affection, or some
                                        4
     Case: 18-50627       Document: 00515231145         Page: 5    Date Filed: 12/10/2019



                                      No. 18-50627
combination thereof to involve” Chavez-Hernandez in the offense because
“[t]he [G]uideline’s plain language requires active employment of affection to
induce another to participate in the offense,” but “[n]o evidence supported a
finding    that    Aguilar[-Alonzo]       actively    induced     Chavez[-Hernandez’s]
participation by playing on affection.” Aguilar-Alonzo further argues that this
error prejudiced him because, without the erroneous two-level enhancement,
his Guidelines range would have been 60 to 63 2 months, and there is no
indication that the district court would have imposed the same 70-month
sentence if it had considered the lower range.
                                             II.
       “To preserve error, an objection must be sufficiently specific to alert the
district court to the nature of the alleged error and to provide an opportunity
for correction.” United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009). At
the sentencing hearing, Aguilar-Alonzo argued that he did not take any action
or make any statement that would have led Chavez-Hernandez to believe that
he would end the relationship if she refused to participate in the offense. His
argument was sufficiently specific to alert the district court to the nature of
the issue raised on appeal. See id.
       “We review the district court’s interpretation and application of the
Guidelines de novo, and its factual findings for clear error.” United States v.
Zuniga, 720 F.3d 587, 590 (5th Cir. 2013). “A factual finding is not clearly
erroneous as long as it is plausible in light of the record read as a whole.”
United States v. Dinh, 920 F.3d 307, 310 (5th Cir. 2019) (quoting United States
v. Sanders, 942 F.2d 894, 897 (5th Cir. 1991)). The proponent of an adjustment
to the defendant’s base offense level bears the burden of establishing the



       Aguilar-Alonzo’s brief states 60 to 71 months, but the proper calculation yields 60 to
       2

63 months.
                                             5
    Case: 18-50627    Document: 00515231145      Page: 6   Date Filed: 12/10/2019



                                  No. 18-50627
factual predicate “by a preponderance of the relevant and sufficiently reliable
evidence.” United States v. Richardson, 781 F.3d 237, 249 (5th Cir. 2015)
(quoting United States v. Alfaro, 919 F.2d 962, 965 (5th Cir. 1990)).
      “Where . . . the district court commits a significant procedural error such
as miscalculating the Guidelines range, we must vacate the sentence unless
the error did not affect the selection of the sentence imposed.” Neal, 578 F.3d
at 274. “The proponent of the sentence has the burden of establishing that the
error was harmless.” Id.
                                      III.
      On appeal, Aguilar-Alonzo only challenges the district court’s two-level
enhancement under U.S.S.G. § 2D1.1(b)(15)(A) (2016), which reads:
      If the defendant receives an adjustment under § 3B1.1 . . . and[:]
      (i) The defendant used fear, impulse, friendship, affection, or some
      combination thereof to involve another individual in the illegal
      purchase, sale, transport, or storage of controlled substances, (ii)
      the individual received little or no compensation from the illegal
      purchase, sale, transport, or storage of controlled substances, and
      (iii) the individual had minimal knowledge of the scope and
      structure of the enterprise . . . increase by 2 levels.
The district court concluded that all three parts of this Guideline were met and
applied the two-level increase.    Aguilar-Alonzo specifically challenges the
district court’s finding that he “used affection to involve . . . [Chavez-
Hernandez] in the” offense under part (i) of the Guideline quoted above.
Aguilar-Alonzo contends that it was clear error for the district court to apply
this enhancement and that the error prejudiced him by resulting in a greater
sentence than the court would have otherwise imposed. In order to resolve this
case, we must determine the proper interpretation of the term “used” in the
Guideline, ascertain whether it was clear error for the district court to apply
the enhancement in light of our interpretation of the word, and determine
whether any error was harmless.

                                       6
    Case: 18-50627     Document: 00515231145     Page: 7     Date Filed: 12/10/2019



                                 No. 18-50627
                                      A.
      Aguilar-Alonzo    and   the   government     dispute     both   the   proper
interpretation of the verb “used” in the context of the Guidelines and the
application of that interpretation to these facts. Aguilar-Alonzo contends that
“[t]he plain language of [§ 2D1.1(b)(15)(A) requires] that a defendant must
actively employ or play upon affection to induce another to commit [an]
offense.” Alternatively, the government argues that “used” encompasses a
broader definition, including “passively exploiting another’s affection.” We
agree with Aguilar-Alonzo’s interpretation of “used” under the Guidelines.
      We interpret the Sentencing Guidelines according to “the typical rules of
statutory interpretation,” “[s]tarting with the text of the relevant guideline.”
United States v. Stanford, 883 F.3d 500, 511 (5th Cir. 2018). “If the language
is unambiguous, and does not lead to an ‘absurd result,’ the court’s inquiry
begins and ends with the plain meaning of that language.” Id. (quoting United
States v. Koss, 812 F.3d 460, 473 (5th Cir. 2016)). “When a word is not defined
by statute, we normally construe it in accord with its ordinary or natural
meaning.” Smith v. United States, 508 U.S. 223, 228 (1993).
      In a variety of criminal statutory contexts, we have consistently
interpreted the ordinary and natural meaning of the verb “use” to require
active employment of something, as has the Supreme Court. For example, the
Supreme Court explained that proof of “use” in “[18 U.S.C.] § 924(c)(1) requires
evidence sufficient to show an active employment of the firearm by the
defendant, a use that makes the firearm an operative factor in relation to the
predicate offense.”    Bailey v. United States, 516 U.S. 137, 143 (1995),
superseded by statute on other grounds as stated in Welch v. United States, 136
S. Ct. 1257 (2016). In Jones v. United States, the Supreme Court determined
that 18 U.S.C. § 844’s requirement “that [a] building be ‘used’ in an activity
affecting commerce” was “most sensibly read to mean active employment for
                                       7
     Case: 18-50627       Document: 00515231145          Page: 8     Date Filed: 12/10/2019



                                       No. 18-50627
commercial purposes, and not merely a passive, passing, or past connection to
commerce.” 529 U.S. 848, 855 (2000). This interpretation of “use” has been
reaffirmed many times. 3          The proper interpretation of “used” under the
Guideline requires active employment of affection in return for involvement in
the offense, and that interpretation is consistent with the previous
interpretations discussed above.
       The only other circuit court of appeals decision to address the “used . . .
affection” provision of § 2D1.1(b)(15)(A) is consistent with our interpretation of
the word. The Third Circuit, in United States v. Best, affirmed the district
court’s two-level enhancement for Best’s use of affection to involve his
girlfriend in a drug trafficking offense. 639 F. App’x 848, 853–54 (3d Cir. 2016).
At trial, “Best admitted . . . that he convinced [his girlfriend] to steal pills and
blank prescriptions by telling her that he loved her,” “that she was never in
trouble before meeting him,” and “that if not for him, [his girlfriend] ‘wouldn’t
be here,’ facing criminal charges.” Id. at 853. In that case, Best was held
subject to the two-level enhancement after he explicitly told his girlfriend that
he loved her for the purpose of getting her to steal pills for him. Best supports
our interpretation of “use” under § 2D1.1(b)(15)(A) as requiring active
employment of affection on the part of the defendant.
                                              B.
       We next address whether it was clear error for the district court to apply
the two-level enhancement under the Guidelines. “A factual finding is not




       3 E.g., Smith, 508 U.S. at 229 (reaffirming earlier precedent defining “use” as “‘to
employ’ or ‘to derive service from’” (quoting Astor v. Merritt, 111 U.S. 202, 213 (1884)); see
also Leocal v. Ashcroft, 543 U.S. 1, 9 (2004) (“As we said in a similar context in Bailey, ‘use’
requires active employment.”); United States v. Chapa-Garza, 243 F.3d 921, 926 (5th Cir.
2001) (“‘[U]se’ refers to volitional, purposeful, not accidental, employment of whatever is
being ‘used.’”), overruled on other grounds by United States v. Reyes-Contreras, 910 F.3d 169
(5th Cir. 2018) (en banc).
                                               8
    Case: 18-50627    Document: 00515231145     Page: 9   Date Filed: 12/10/2019



                                 No. 18-50627
clearly erroneous as long as it is plausible in light of the record read as a
whole.” Dinh, 920 F.3d at 310 (quoting Sanders, 942 F.2d at 897). As the
proponent of the adjustment to Aguilar-Alonzo’s base offense level, the
government bears the burden of establishing the factual predicate of that
adjustment “by a preponderance of the relevant and sufficiently reliable
evidence.” Richardson, 781 F.3d at 249 (quoting Alfaro, 919 F.2d at 965). The
government fails to meet this burden.       After reviewing the evidence, we
conclude that the district court’s finding that Aguilar-Alonzo used affection to
involve Chavez-Hernandez in the offense is implausible as it is not supported
by the record. As a result, the district court’s application of the two-level
enhancement under § 2D1.1(b)(15)(A) was clear error.
      Under our interpretation of the verb “used” in § 2D1.1(b)(15)(A), the
evidence in the record does not support a two-level enhancement to Aguilar-
Alonzo’s offense level because he did not actively employ or play upon affection
to induce involvement by Chavez-Hernandez in the offense. The evidence
consists of two primary facts, neither of which support a finding that Aguilar-
Alonzo actively used affection to induce Chavez-Hernandez’s involvement in
the offense. First, Aguilar-Alonzo asked Chavez-Hernandez to participate in
the offense. Second, Chavez-Hernandez asserted that she agreed to participate
“out of fear [Aguilar-Alonzo] would break up with her” if she did not
participate.
      The government essentially argues that, just because Aguilar-Alonzo
had the opportunity to use affection to recruit his girlfriend, we should assume
that he did, despite the lack of evidentiary support. The government attempts
to support this result by emphasizing that Chavez-Hernandez had no previous
involvement in criminal activity, had little to gain financially from the crime,
and had a limited role in the crime. However, the government offered no
support for the proposition that Aguilar-Alonzo did something or said
                                       9
   Case: 18-50627     Document: 00515231145      Page: 10   Date Filed: 12/10/2019



                                  No. 18-50627
something to cajole or force her to help him. Her fear that Aguilar-Alonzo
would break up with her was simply her own subjective assessment of the
situation.   We see no indication that Aguilar-Alonzo actually did or said
anything about their relationship when he asked her to help him. There is
nothing in the record whatsoever that indicates Aguilar-Alonzo even knew of
Chavez-Hernandez’s subjective fear that he might break up with her but for
her involvement in the offense. “No evidence suggests that [Aguilar-Alonzo]
cajoled, wheedled, threatened a breakup, or otherwise actively played on
[Chavez-Hernandez’s] affection or emotions about the relationship.” Perhaps,
if Aguilar-Alonzo knew of this fear prior to his request for Chavez-Hernandez’s
involvement, a finding that he used affection may be appropriate. That is not
the case here. Chavez-Hernandez’s own subjective assessment cannot be solely
relied on as evidence that Aguilar-Alonzo used affection to induce her
involvement.
      It cannot be that the mere existence of a romantic, familial, or any other
kind of pre-existing relationship would support a two-level enhancement under
§ 2D1.1(b)(15)(A) when one person, who fits the other criteria under the
Guidelines, recruits another to assist in the offense. Aside from the existence
of the relationship and Chavez-Hernandez’s subjective fear of a breakup, there
is nothing in the record that could even possibly relate to use of affection.
      Neither does Chavez-Hernandez’s pregnancy support the conclusion that
Aguilar-Alonzo actively used affection to involve her in the offense. The district
court explicitly found that the facts did not establish whether Aguilar-Alonzo
knew, at the relevant time of the offense, that Chavez-Hernandez was
pregnant. The fact that Aguilar-Alonzo and Chavez-Hernandez at some point
had a sexual relationship, without more, is not enough to establish that
Aguilar-Alonzo “actively employed” affection to involve her in the offense.


                                       10
   Case: 18-50627    Document: 00515231145      Page: 11   Date Filed: 12/10/2019



                                 No. 18-50627
      The Third Circuit’s opinion in Best well illustrates why the facts of the
instant case do not support the same two-level use of affection enhancement.
See 639 F. App’x at 853–84. Unlike in Best, no record evidence demonstrates
that Aguilar-Alonzo actively employed affection to induce involvement by
Chavez-Hernandez. In Best, the defendant told his girlfriend that he loved her
in order to convince her to steal pills and blank prescriptions. Id. at 853. In
the present case, Aguilar-Alonzo simply asked Chavez-Hernandez for her help.
We see nothing in the record that indicates Aguilar-Alonzo actively employed
the continuation of their relationship in return for Chavez-Hernandez’s
involvement in the offense. Aside from adopting the PSR, which stated that
Chavez-Hernandez agreed to participate in the offense out of fear that Aguilar-
Alonzo would break up with her—an uncommunicated, subjective feeling—the
district court did not identify how Aguilar-Alonzo actively employed affection
to induce involvement by Chavez-Hernandez in the offense. We therefore
conclude that the district court’s finding that Aguilar-Alonzo used affection to
involve Chavez-Hernandez in the offense is implausible in light of the evidence
in the record, and—as a result—that the district court’s application of the two-
level enhancement under § 2D1.1(b)(15)(A) was clear error.
                                       C.
      “Where . . . the district court commits a significant procedural error such
as miscalculating the Guidelines range, we must vacate the sentence unless
the error did not affect the selection of the sentence imposed.” Neal, 578 F.3d
at 274. “The proponent of the sentence has the burden of establishing that the
error was harmless.” Id. As the proponent of the sentence, the government
bears the burden of establishing that the error of applying the two-level
enhancement was harmless to Aguilar-Alonzo.          The government fails to
address harmlessness of the error in its brief. Accordingly, any argument as


                                       11
    Case: 18-50627        Document: 00515231145          Page: 12     Date Filed: 12/10/2019



                                       No. 18-50627
to harmlessness is forfeited. However, even if we were to consider the issue,
the district court’s error was not harmless.
       The district court determined that Aguilar-Alonzo’s total offense level
was 25. With a criminal history category of II, this offense level yielded a
Guidelines range of 63 to 78 months of imprisonment. Without the two-level
enhancement under § 2D1.1(b)(15)(A), Aguilar-Alonzo’s total offense level
would have been 23, yielding a Guidelines range of 60–63 months of
imprisonment. 4 The district court’s sentence of 70 months of imprisonment is
entirely outside the appropriate Guidelines range. The record lacks evidence
that the court intended to increase Aguilar-Alonzo’s sentence beyond the
Guidelines range. In fact, the district judge, at the sentencing hearing, stated
that he intended to remain within the recommended Guidelines range.
Consequently, the district court’s error in imposing the § 2D1.1(b)(15)(A)
enhancement affected the court’s selection of the sentence it imposed.
Accordingly, the error was not harmless, as it affected Aguilar-Alonzo’s
“substantial rights.” See Fed. R. Crim. P. 52(a).
                                              IV.
       For the foregoing reasons, we VACATE Aguilar-Alonzo’s sentence and
REMAND for further proceedings consistent with this opinion.




       4 See U.S.S.G. ch. 5 pt. A (2016) (Sentencing Table). Absent additional factors, a total
offense level of 23 together with a criminal history category of II yields a Guidelines range of
51 to 63 months’ imprisonment. However, Aguilar-Alonzo’s statute of conviction, 21 U.S.C.
§ 841, requires a mandatory minimum sentence of 60 months’ (5 years) imprisonment for his
offense. See id. § 841(b)(1)(B). Consequently, under U.S.S.G. § 5G1.1(c), the lower end of the
correct Guidelines range would be 60 months, the “statutorily required minimum sentence,”
instead of 51 months.
                                              12
    Case: 18-50627          Document: 00515231145         Page: 13       Date Filed: 12/10/2019



                                         No. 18-50627
JERRY E. SMITH, Circuit Judge, dissenting:

       There is good news and bad news, and even more bad news. The good
news is that, after substantial prodding, the panel majority finally
acknowledges the correct standard of review of factfinding at sentencing. The
bad news is that the majority mutilates that standard so that it is unrecog-
nizable. The further bad news is that the Department of Justice is apparently
asleep at the switch. I again respectfully dissent. 1

                                                I.
       Without protest from the Department of Justice, which failed to move for
rehearing en banc or even panel rehearing of the now-withdrawn first opinion, 2
the panel majority has set in stone this circuit’s caselaw on the interpretation
of the word “use” for purposes of U.S.S.G. § 2D1.1(b)(15)(A) (2016) and possibly
beyond. The majority’s interpretation of “use” is based on a foundation so
flimsy that the most it can muster is an unpublished (and hence non-
precedential) opinion from another circuit. 3 But that court didn’t even decide—
because it didn’t need to—the issue at hand. The court affirmed the enhance-
ment because the defendant explicitly admitted that he told his girlfriend he
loved her to convince her to help with the crime. The court was not asked to
decide whether “use” would have included passive, as distinguished from
active, statements or actions, because those weren’t the facts. So here, the


       1See United States v. Aguilar-Alonzo, 936 F.3d 278, 287−90 (5th Cir. 2019) (Smith, J.,
dissenting).
       2 It surprises me that the Department of Justice wasn’t alarmed by the majority’s
wholesale abandonment of the plausibility standard of review at sentencing. The panel
opinion was no accident. The government’s brief had carefully explained that “[a] factual
finding is not clearly erroneous as long as it is plausible in light of the record as a whole”
(citations omitted). And my dissent highlighted that glaring error. But then the government
was, and has remained, mute.
       3   See United States v. Best, 639 F. App’x 848 (3d Cir. 2016).
                                                13
   Case: 18-50627     Document: 00515231145     Page: 14    Date Filed: 12/10/2019



                                 No. 18-50627
panel majority fashions its new rule by ipse dixit without agreement from any
court that has interpreted this subsection of the guidelines.

                                       II.
      At last, after withdrawing its suspect opinion, the panel majority now
admits that at sentencing, “[a] factual finding is not clearly erroneous as long
as it is plausible in light of the record read as a whole.” (Citation omitted.)
The majority omits, however, the further explanation that “[w]here there are
two permissible views of the evidence, the factfinder’s choice between them
cannot be clearly erroneous.” Alvarado de Rodriguez v. Holder, 585 F.3d 227,
234−35 (5th Cir. 2009). The majority makes no effort to explain how it is that
this district judge’s finding is implausible, except for the majority’s unhelpful
conclusional statement that it “is implausible as it is not supported by the rec-
ord.” That of course begs the question. Nor does the majority even try to
explain how Judge David Counts’s decision is not a “permissible view of the
evidence.”

      Reversal here is error even under the majority’s errant announcement
that “‘use’ under § 2D1.1(b)(15)(A) [requires] active employment of affection.”
The majority’s analysis seems to require direct evidence that the defendant
explicitly said to his young girlfriend something like “I’ll break up with you
unless you help me with this crime.” Indeed, the record contains no such
explicit statement.   But it doesn’t matter.    The panel majority refuses to
acknowledge that circumstantial evidence can render a finding credible in the
absence of direct evidence. The majority profoundly misses the point by not
even mentioning the word “circumstantial.”

      The long and short of it is that, at least on appeal of a sentence, a defen-
dant can’t establish clear error without showing, as a necessary condition, that
the district judge’s factual finding is “implausible.” Black’s Law Dictionary
                                       14
    Case: 18-50627        Document: 00515231145          Page: 15     Date Filed: 12/10/2019



                                       No. 18-50627
defines “plausible” as “[c]onceivably true,” “possibly correct or even likely,”
“reasonable.” 4

       The facts are that the defendant was twenty-one; his girlfriend was nine-
teen. He lived in a trailer behind her parents’ house. They had been dating at
least a year and had had sexual intercourse. She knew she was pregnant; the
district judge declined to find, one way or the other, whether the defendant
knew that. 5 But it is undisputed that the defendant remembered the carnal
knowledge, and no evidence suggests that the relationship was still anything
but close. As the majority explains, the defendant “requested that she accom-
pany him ‘to pick up the [marijuana].’ She told investigators that she agreed
to participate ‘out of fear he would break up with her.’”

       All agree that the sole question is whether “the defendant used fear . . .
[or] affection 6 . . . to involve” his girlfriend in the illegal activity. To answer
that, we ask only whether it is plausible—that is, “conceivably true,” “possibly
correct,” or “reasonable” 7—that the defendant did so. If it is any of those three,
we must affirm. Importantly, the panel majority makes no effort to explore
plausibility in terms of these well-recognized concepts.”

       I won’t waste much space to recount that at federal sentencing, the evi-
dentiary rules are considerably relaxed. For example, the sentencing judge
can consider hearsay and a wide range of circumstantial evidence, and the de-
fendant has no right to confront witnesses or conduct cross-examination. The



       4   Plausible, BLACK’S LAW DICTIONARY (10th ed. 2014).
       At sentencing, the probation officer testified that the defendant “did explain that he
       5

knew she was pregnant at the time that the offense was committed.”
       6 In this case, the concepts of fear and affection are intertwined. There’s no suggestion
that fear was used in the sense of physical threats or intimidation. Her fear, specifically, was
that he would end the romantic relationship.
       7   BLACK’S LAW DICTIONARY, supra.
                                              15
    Case: 18-50627         Document: 00515231145        Page: 16     Date Filed: 12/10/2019



                                        No. 18-50627
judge can make inferences from the evidence and can apply reason and experi-
ence. And he can rely on the findings in the presentence report.

       At a minimum, the judge knew that the couple was in a one-year roman-
tic relationship that wasn’t on the wane. They had had sexual relations, and
the girlfriend knew she was pregnant. She was only nineteen. She told the
probation officer that she had “agreed to [defendant’s] request [to assist him]
out of fear he would break up with her.”

       From these bare facts, do we know, for a certainty, that asking his
girlfriend to help with the crime was a threat to break up with her, leaving her
with child and without companion, if she refused? We do not, and neither did
the district judge. But what we do know (for a certainty) is that she felt that
way. And nothing even remotely suggests that that feeling was unfounded.
Her fear that the defendant would end the relationship is based on all the cir-
cumstances of which she was aware. That is her reading of their communi-
cations. It is unrefutable circumstantial evidence of the direct evidence that is
absent: that the defendant made a threat to end the romance if his girlfriend
didn’t assist. 8

       To prevail on appeal, the defendant must convince this court that the
district judge’s inference from the circumstantial evidence is an hallucination
that isn’t “conceivably true,” “possibly correct,” or “reasonable.” As I’ve already


       8   The government helpfully explains it this way:
                  Additional circumstantial evidence supported the district court’s
       finding. [The girlfriend’s] expression of fear that she might lose the
       relationship if she declined his request should not be dismissed as a mere
       expression of her state of mind. It reflected and implied action on [defendant’s]
       part, even if it was subtle and not revealed during the presentence
       investigation. Just as seeing one flinch circumstantially evidences an
       assailant’s raised fist, her expression of concern about the relationship
       circumstantially pointed to [defendant’s] use of her affection to involve her in
       his crime.
                                              16
    Case: 18-50627    Document: 00515231145       Page: 17   Date Filed: 12/10/2019



                                  No. 18-50627
said, this defendant can’t establish clear error if Judge Counts’s finding is one
of “two permissible views of the evidence.” Alvarado de Rodriguez, 585 F.3d
at 235. Well beyond being one of two permissible views, it is plainly the better
one.

       It is much more likely that the defendant exploited his relationship with
his young girlfriend than that he picked her out randomly, from among the
earth’s inhabitants, to assist in the crime. This record easily permits the con-
clusion that the defendant, knowing this young woman was enamored, chose
her, rather than someone else, to assist. By deciding as it has, however, the
panel majority necessarily implies that Judge Counts engaged in a flight of
fancy by entertaining an explanation that is outside the bounds of ordinary
reason and human experience and that invents a story that defies logic and
has no basis in the record. Although I’m confident that the majority doesn’t
mean to plaster Judge Counts with the accusation that he has lost his senses,
that is the necessary implication of the majority’s analysis, which I had hoped
it would reconsider. Instead, it digs in, unwilling to take another look or even
to examine what it means for a judicial finding to be “plausible.”

       It is therefore error to suggest that Judge Counts’s finding of fear or
affection is pure caprice in the sense that it is not “conceivably true,” that it is
not “possibly correct,” and that it is not “reasonable.” The majority confronts
none of this, content only to emphasize what it sees as a dearth of facts, ignor-
ing the relaxed evidentiary procedures and the broad use of circumstantial
evidence and inferences at sentencing.

       Much to the contrary, however, there is plenty of circumstantial evidence
from which―even given the majority’s suspect holding that “use” requires
active employment―this sentencing judge could have concluded that the
defendant actively used affection by telling his girlfriend that he would break

                                        17
   Case: 18-50627     Document: 00515231145         Page: 18   Date Filed: 12/10/2019



                                     No. 18-50627
up with her if she didn’t help with the crime of conviction. That is, in fact, the
most “credible” reading of the record.

                                         III.
      At bottom, the decision to reject Judge Counts’s factual finding does
grave disservice to the federal sentencing regime that this court is sworn to
uphold, whether the Department of Justice recognizes it or not. The majority’s
ruling undermines the carefully structured assignment of factfinding to an
independent Article III judge.

      The dynamics of federal sentencing are unique. Especially in venues
such as Pecos, Texas, where this case is sited, scores of criminal defendants
queue up for sentencing hearings on a routine day. The district judge carefully
studies the presentence report, hears from the attorneys, and takes allocution.
He or she then makes factual findings and announces a sentence. The eviden-
tiary standards are relaxed for good reason, given the caseload. That is not to
say that the proceedings are inadequate. Much to the contrary. They are the
optimum way to make fair and accurate factual decisions and rulings of law in
a relatively short period of time.

      Here, the probation office prepared a comprehensive presentence report,
with addenda, totaling more than twenty pages. Judge Counts conducted a
twenty-minute sentencing hearing, with a transcript of seventeen pages, and
made detailed findings, giving ample time for participation. The crush of the
sentencing docket can be accommodated by dedicated judges and staff who
read and apply the law to the facts. The procedures used to present and in-
corporate those facts get the job done well. Nitpicking by circuit judges who
(with the best of intentions) misunderstand or misapply the standards of
review do not.


                                         18
    Case: 18-50627       Document: 00515231145         Page: 19     Date Filed: 12/10/2019



                                      No. 18-50627
       “The standard for affirming a district court’s factual finding is low:
‘Where a factual finding is plausible in light of the record as a whole, it is not
clearly erroneous.’” 9 That is so except for this panel majority, which erects a
standard much higher than that. One “plausible” reading of the majority opin-
ion is that circumstantial evidence is verboten at sentencing. But an “agree-
ment may be inferred from concert of action, voluntary participation may be
inferred from a collection of circumstances, and knowledge may be inferred
from surrounding circumstances.” 10

       Regrettably, the Department of Justice gives no heed to this corruption
of the standard for factual findings at sentencing. That will have consequences
well beyond the case at hand. It is bad news supplemented by even more bad
news that leaves a court of appeals without a clue as to how to review factual
findings at sentencing. I therefore respectfully dissent.




       9 United States v. Stubblefield, No. 18-20169, 2019 U.S. App. LEXIS 33365, at *6−7
(5th Cir. Nov. 7, 2019) (per curiam) (quoting United States v. Adam, 296 F.3d 327, 334 (5th
Cir. 2002)).
       10 United States v. Martinez, 921 F.3d 452, 467−68 (5th Cir. 2019), petition for cert.
filed (U.S. Oct. 18, 2019) (No. 19-6375).
                                             19
