                   United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                 No. 13-1945
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                             Joseph Benjamin Thomas

                       lllllllllllllllllllll Defendant - Appellant
                          ___________________________

                     Appeal from United States District Court
                          for the District of Minnesota
                                 ____________

                          Submitted: November 21, 2013
                               Filed: July 8, 2014
                                   [Published]
                                 ____________

Before RILEY, Chief Judge, BRIGHT and KELLY, Circuit Judges.
                              ____________

PER CURIAM.

      John Benjamin Thomas pled guilty to possession with intent to distribute 50
grams or more of actual methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(A). The district court sentenced Thomas to a term of imprisonment of 120
months. Thomas alleges the court erred in calculating his sentencing guideline range.
We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. For the
reasons below, we remand for clarification from the district court.

                                  I. Background

       While investigating another individual for domestic terrorism, an FBI agent
was introduced to Thomas. The scope of the investigation shifted once the FBI
became aware Thomas was distributing methamphetamine. After Thomas sold
methamphetamine to an undercover FBI agent on three occasions, a grand jury
returned a four-count indictment against Thomas. The indictment charged him with
possession with intent to distribute 50 grams or more of actual methamphetamine
from February 1, 2012, to April 16, 2012, in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(A) (Count 1), and three counts of distribution of 5 grams or more of actual
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) (Counts 2–4).

       Thomas pled guilty to Count 1 of the indictment pursuant to a written plea
agreement. In the agreement, the parties stipulated Thomas’ relevant conduct
involved more than 50 grams, but less than 150 grams, of actual methamphetamine,
resulting in a base offense level of 32. See United States Sentencing Guidelines
Manual (“USSG”) § 2D1.1(c)(4). The parties agreed no specific offense
characteristics applied. The parties anticipated Thomas’ criminal history category
would be III. After subtracting 3 levels for acceptance of responsibility, the parties
predicted Thomas’ sentencing guideline range would be 120–135 months.1 The




      1
        At offense level 29, criminal history category III, Thomas’ guideline range
would be 108–135 months. Thomas faced a statutory mandatory minimum sentence
of 120 months pursuant to 21 U.S.C. § 841(b)(1)(A), however, so his guideline range
effectively became 120–135 months.

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government agreed not to seek a sentence above 120 months. The plea agreement did
not mention that Thomas might be eligible for safety valve sentencing relief.2

       Thomas’ Presentence Investigation Report (“PSR”) calculated a different
sentencing guideline range. It determined Thomas’ relevant conduct included a larger
amount of methamphetamine than considered by the parties, resulting in a base
offense level of 34, and also recommended a 2-level enhancement for possession of
a firearm. See USSG §§ 2D1.1(b)(1), (c)(3). Because of the age and nature of
Thomas’ prior convictions, however, the PSR found Thomas was in criminal history
category I, rather than category III.

      Thomas objected to the higher base offense level and the 2-level firearm
enhancement. In addition, he argued that he was safety valve eligible,3 which would
reduce the parties’ stipulated offense level by 2 levels—to a level 27 after the 3-level
reduction for acceptance of responsibility—and allow the district court to sentence




      2
       Pursuant to the “safety valve,” if a defendant meets the criteria outlined in 18
U.S.C. § 3553(f)(1)–(5), “the court shall impose a sentence in accordance with the
applicable guidelines without regard to any statutory minimum sentence.” USSG
§ 5C1.2. If the defendant qualifies for the safety valve, the guidelines further provide
for a 2-level reduction in the otherwise applicable offense level. USSG
§ 2D1.1(b)(16).
       3
        In relevant part, the criteria for eligibility are: (1) “the defendant does not have
more than 1 criminal history point”; (2) “the defendant did not use violence or
credible threats of violence or possess a firearm or other dangerous weapon”; (3) “the
offense did not result in death or serious bodily injury to any person”; (4) “the
defendant was not an organizer, leader, manager, or supervisor of others in the
offense”; and (5) “not later than the time of the sentencing hearing, the defendant has
truthfully provided to the Government all information and evidence the defendant has
concerning the offense . . . .” USSG § 5C1.2(a)(1)–(5). A defendant must meet all
five criteria in order to be eligible for the safety valve.

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him below the statutory mandatory minimum sentence of 120 months. See USSG
§ 2D1.1(b)(16); 18 U.S.C. § 3553(f). Thomas asserted, accordingly, that the
applicable sentencing guideline range, based on offense level 27 and criminal history
category I, was 70–87 months.

      The government agreed to abide by the base offense level in the plea
agreement; it declined to seek the firearm enhancement recommended in the PSR, but
agreed with its recommended criminal history category of I. The government further
agreed Thomas was safety valve eligible such that—as argued by Thomas—his
guideline range was now 70–87 months. Nonetheless, it requested the court impose
a sentence of 120 months, seeking both an upward variance under 18 U.S.C.
§ 3553(a) and an upward departure pursuant to USSG § 5K2.21 (dismissed and
uncharged conduct).

       At the April 2, 2013, sentencing hearing, the court agreed to “follow the
government’s and the defendant’s plea negotiation.” Despite finding Thomas was
safety valve eligible, the court concluded on the record that Thomas’ total offense
level was 29, his criminal history category was III, and his custody range was
120–135 months. Neither party objected to these findings. The court then sentenced
Thomas to a term of imprisonment of 120 months, stating it was adopting the
government’s arguments in support of an upward variance.

                                   II. Discussion

       Thomas first argues the district court committed reversible procedural error
when determining his offense level was 29, rather than 27. This, he asserts, resulted
in the calculation of an erroneous sentencing guideline range. See United States v.
Spikes, 543 F.3d 1021, 1023 (8th Cir. 2008) (in reviewing a criminal sentence for
reasonableness, we “ ‘first ensur[e] that the district court committed no significant
procedural error, such as . . . improperly calculating the Guidelines range’ ” (quoting

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Gall v. United States, 552 U.S. 38, 51 (2007)). The government responds that
Thomas has waived this argument: Thomas stipulated in his plea agreement that no
specific offense characteristics applied, and he cannot now argue the district court
erred in failing to reduce his offense by 2 levels pursuant to the safety valve. While
the parties did agree that no specific offense characteristics would apply (including,
presumably, the safety valve reduction, which is listed as a “specific offense
characteristic” under USSG § 2D1.1(b)(16)), we do not read Thomas’ argument on
appeal to be that the district court’s error was in concluding he did not qualify for the
safety valve reduction. Instead, we understand Thomas’ argument to be that once the
district court concluded the reduction did apply, the court simply failed to subtract
these 2 levels from his offense level, resulting in procedural error.

       Nevertheless, because Thomas did not object to the district court’s calculation
at sentencing, nor bring this matter to the district court’s attention within 14 days after
sentencing, we review his claim for plain error. United States v. Leppa, 469 F.3d
1206, 1208 (8th Cir. 2006); Fed. R. Crim. P. 35(a) (“Within 14 days after sentencing,
the court may correct a sentence that resulted from arithmetical, technical, or other
clear error.”). “Under this standard, [Thomas] must show: (1) an error; (2) that was
plain; (3) that affected his substantial rights; and (4) that, if left uncorrected, would
result in a miscarriage of justice.” Leppa, 469 F.3d at 1208 (citations omitted).

       Under plain error review, we must first determine whether the district court
erred. At sentencing, the court agreed with the parties that Thomas was “safety valve
eligible,” yet concluded his adjusted offense level was 29, his criminal history
category was III, and his guideline range was 120–135 months. Thomas argues this
calculation failed to take into account the effect of the safety valve—a 2-level
reduction in the base offense level and relief from the 120-month mandatory
minimum sentence—resulting in procedural error. We note both parties expressly
argued to the district court at sentencing that the proper guideline range was 70–87
months. The government, which presented its argument immediately prior to

                                           -5-
imposition of sentence, asked the court to “vary [Thomas’] sentence above the range
that we have, which is 70 to 87 months once the two-level reduction for the safety
valve is applied.” Also, despite having previously stated Thomas’ custody range was
120–135 months, the district court granted the government’s motion for an upward
variance and then imposed a sentence of 120 months imprisonment.

       When granting the government’s motion, however, the district court did not
explicitly specify a starting range from which it varied upward. Indeed, the only
statement the district court made about the guideline range was a finding on the
record that the applicable range was 120–135 months. Thomas points out that the
written record states yet another guideline range. “It is well settled . . . that a district
court’s oral sentence controls when it conflicts with the written judgment.” United
States v. Olson, 716 F.3d 1052, 1056 (8th Cir. 2013) (citing United States v. Buck,
661 F.3d 364, 374 (8th Cir. 2011)). “If the oral sentence is ambiguous, our task is to
discern the court’s intent.” Id. If we find such an ambiguity, then we look to “‘the
entire sentencing pronouncement,’ including the written record,” to determine the
district court’s intent. Id. (quoting Buck, 661 F.3d at 374). “There is no dispute that
ambiguities in the sentence pronouncement are to be construed in favor of the
defendant.” Buck, 661 F.3d at 374 (quotation omitted).

       In this case, the oral pronouncement is sufficiently ambiguous that we are
permitted to look to the “entire sentencing pronouncement.” Id. (quotation omitted).
The written record does not clarify the ambiguity. The written Statement of Reasons
form, the Statement of Reasons for Imposing Sentence, and the amended Statement
of Reasons form all identify a guideline range of 87–108 months4—a third guideline
range that neither party asserts is accurate. It may be that the district court’s initial
pronouncement of the sentencing range was simply a misstatement. Looking at the


       4
     This sentencing guideline range was based on the district court’s finding that
Thomas’ offense level was 29 and his criminal history category was I.

                                            -6-
oral pronouncement, the hearing record as a whole, and the written record, however,
it remains unclear to us whether the district court committed procedural error. Under
such circumstances, we conclude the best course of action is to allow the district court
the opportunity to clarify its intentions.

       Thomas also argues that the sentence imposed was substantively unreasonable.
The government asserts Thomas waived this claim on appeal because, by stipulating
that his sentence of imprisonment would be at least 120 months, he “explicitly and
voluntarily expose[d] himself to a specific sentence,” such that he “may not challenge
that punishment on appeal.” United States v. Cook, 447 F.3d 1127, 1128 (8th Cir.
2006) (citing United States v. Nguyen, 46 F.3d 781, 783 (8th Cir. 1995)). Because
we remand on other grounds, we do not reach this issue or the government’s waiver
argument.

                                   III. Conclusion

      Accordingly, we remand to the district court for additional proceedings
consistent with this opinion. The district court may grant a hearing and arrive at a
sentence that is the same or different, but not greater, than the sentence previously
imposed.
                       ______________________________




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