     Case: 17-10690   Document: 00514657410     Page: 1   Date Filed: 09/26/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                 No. 17-10690                   United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
UNITED STATES OF AMERICA,                                      September 26, 2018
                                                                  Lyle W. Cayce
             Plaintiff – Appellee,                                     Clerk

v.

GILBERTO GOMEZ,

             Defendant – Appellant.




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


Before DAVIS, JONES, and ENGELHARDT, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
      Gilberto Gomez appeals his 652-month sentence imposed after his
conviction by a jury of drug-trafficking and firearms offenses in violation of 21
U.S.C. §§ 841 & 846 and 18 U.S.C. §§ 924(c) & 2. On appeal, Gomez contends
that the district court improperly enhanced his sentence by applying a two-
level adjustment pursuant to U.S.S.G. § 3B1.1(c), which he claims is
inapplicable here because he was not an “organizer, leader, manager, or
supervisor” in the underlying criminal activities. He further alleges that the
district court failed to adequately explain his sentencing or consider the 18
U.S.C. § 3553(a) sentencing factors. Gomez also argues that the district court
erroneously believed that it could not consider the mandatory-minimum
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                                       No. 17-10690
sentences it was required to impose in arriving at a sentence on the remaining
counts and thereby fashioned an unreasonable aggregate sentence.
       As explained more fully below, we REMAND the case for the limited
purpose of determining whether the district court wishes to resentence the
defendant in light of the Supreme Court’s opinion in Dean v. United States. 1
                                              I.
       After an undercover investigation, Dallas Police Department officers
executed a search warrant at Gilberto Gomez’s home.                    The officers found
various items of contrabands, including several kinds of illegal drugs, firearms,
a large amount of cash, and items associated with drug distribution. Gomez
and a codefendant, Felix Cantu, were then arrested at the scene.                         The
Government charged Gomez and Cantu with conspiracy to possess with intent
to distribute 500 grams or more of methamphetamine (Count 1); possession
with intent to distribute 500 grams or more of methamphetamine (Count 2);
possession of a firearm in furtherance of a drug-trafficking crime (Count 3);
and possession with intent to distribute cocaine (Count 4). Additionally, the
Government charged Gomez separately with another count of possession of a
firearm in furtherance of a drug-trafficking crime (Count 5) and possession
with intent to distribute marijuana (Count 7). The jury found Gomez guilty on
all counts. 2
       Following the United States Sentencing Guidelines, 3 the presentence
report (“PSR”) grouped the drug counts and assessed a base offense level of 34.

       1   137 S. Ct. 1170 (2017).

       2Cantu, individually, pleaded guilty to conspiracy to possess with intent to distribute
methamphetamine and possession of a firearm in furtherance of a drug trafficking crime,
and cooperated with the Government in Gomez’s prosecution. The district court sentenced
Cantu to 117 months of imprisonment.

       3   Gomez was sentenced under the 2016 version of the Guidelines.

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                                   No. 17-10690
Gomez also received a two-level enhancement under U.S.S.G. § 2D1.1(b)(12)
for maintaining a drug premises, and another two-level enhancement for being
a leader or organizer of the offense under U.S.S.G. § 3B1.1(c). In total, the
Sentencing Guidelines calculation yielded an offense level of 38 and criminal
history category of III. 4
      Based on this information, the PSR concluded that Gomez’s Guidelines
range for the drug counts was from 292 to 365 months of imprisonment, noting
that the methamphetamine charges (Counts 1 and 2) carried a statutory
minimum of 10 years under 21 U.S.C. §§ 846, 841(a)(1) & (b)(1)(A)(viii). On
the firearms counts, the first offense (Count 3) carried a statutory minimum
sentence of five years under 18 U.S.C. § 924(c)(1)(A)(i), while the second offense
(Count 5) carried a statutory minimum of 25 years under 18 U.S.C.
§ 924(c)(1)(C)(i). In total, Gomez faced a mandatory-minimum sentence of 40
years. The mandatory-minimum sentences were required under § 924(c) to
run consecutively to each other and any other sentence.
      Gomez filed several objections to the PSR, including an objection to the
enhancement for being a leader or organizer. And as to the firearms counts,
he argued that imposing multiple consecutive sentences would violate his due




      4  Gomez’s offenses have the following statutory provisions related to terms of
imprisonment:
           Count 1: Mandatory minimum of 10 years and a maximum of life
              imprisonment;
           Count 2: Mandatory minimum of 10 years and a maximum of life
              imprisonment;
           Count 3: Mandatory minimum of 5 years, to be served consecutively to any
              other sentence;
           Count 4: Not more than 20 years;
           Count 5: Mandatory minimum of 25 years, to be served consecutively to any
              other sentence; and
           Count 7: Not more than 5 years.
       See generally 21 U.S.C. §§ 846, 841(a) & (b); 18 U.S.C. §§ 924(c) & 2.
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                                      No. 17-10690
process rights and his rights under the Eighth Amendment. The district court
overruled the objections.
       At the sentencing hearing, Gomez urged the district court to find a way—
“in any . . . shape[] or form for the Court, with the autonomy and authority . . .
inherent as an Article III judge”—to not “stack” the two firearms counts, which
together amounted to a total sentence of 30 years. In response, the district
court stated: “[T]he clear statutory language doesn’t permit me to do that.”
After hearing from counsel and Gomez, the court imposed a 652-month
aggregate sentence on all counts; this included 292 months on the drug
offenses, which is on the low end of the Guidelines, and 360 months for the
firearms offenses.           The judge further remarked:            “I find under the
circumstances that the Guideline calculation is excessive, but I believe that’s
what I’m required to do by the statute.” Gomez timely appealed. We discuss
the issues below.
                                            II.
       We examine sentences for reasonableness by engaging in a bifurcated
review. 5        An appellate court must first ensure that the sentencing court
“committed no significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, . . . or failing to adequately
explain the chosen sentence.” 6 If there is no procedural error, the appellate
court reviews the substantive reasonableness of the sentence under a
deferential abuse of discretion standard. 7


       5Gall v. United States, 552 U.S. 38, 49–51 (2007); United States v. Delgado–Martinez,
564 F.3d 750, 752 (5th Cir. 2009).

       6   Gall, 552 U.S. at 51.

       7   Id.

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                                      No. 17-10690
                                            A.
       First, Gomez argues that the district court erroneously found him to be
an organizer or leader of the criminal offenses, thereby misapplying a two-level
enhancement to his Guidelines offense level. He objected to the enhancement
at his sentencing hearing and thus preserved this issue for appeal. We review
this factual determination for clear error. 8
       Relevant here, § 3B1.1(c) of the United States Sentencing Guidelines
provides for a two-level adjustment if the defendant was an organizer, leader,
manager, or supervisor in any criminal activity other than activity involving
five or more participants or any otherwise extensive activity. 9
       In determining whether a defendant had a leadership role, a district
court should consider the following factors:
                [whether the defendant exercised] decision making
                authority, the nature of participation in the
                commission of the offense, the recruitment of
                accomplices, the claimed right to a larger share of the
                fruits of the crime, the degree of participation in
                planning or organizing the offense, the nature and
                scope of the illegal activity, and the degree of control
                and authority exercised over others. 10
       In this case, Gomez avers that he was not a leader in the underlying
offenses and that he and Cantu “worked together with equal responsibility and
culpability.” Specifically, Gomez claims that he did not recruit Cantu, that he




       8See United States v. Gomez–Alvarez, 781 F.3d 787, 791 (5th Cir. 2015); United States
v. Posada–Rios, 158 F.3d 832, 878 (5th Cir. 1998); United States v. Rodriguez, 15 F.3d 408,
414 (5th Cir. 1994).

       9   See U.S.S.G. § 3B1.1(c).

       10Id. at § 3B1.1, comment (n.4); see United States v. Ochoa–Gomez, 777 F.3d 278, 281–
82 (5th Cir. 2015).

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                                     No. 17-10690
did not exercise control over Cantu, and that Cantu acted independently and
claimed the fruits of his own drug activities.
       From the record, we find the district court’s determination of Gomez’s
leadership status plausible. Evidence at trial established that Cantu sold
drugs for Gomez and Gomez controlled Cantu in their activities. In return for
living in Gomez’s home, Cantu was available to assist Gomez as needed. Cantu
testified that he “worked for” Gomez and that Gomez once described their
relationship as “him being the chief and me being the Indian.” Cantu admitted
that he also sold drugs, particularly marijuana and cocaine, for his own profit.
He stated, nevertheless, that there was an “understanding” that he would
obtain these drugs from Gomez in order to “keep the money in the house.”
       Furthermore, the record shows that Gomez exercised extensive control
over many aspects of the underlying offenses. Cantu testified that Gomez kept
most proceeds from sales of methamphetamine, set the price for such sales,
and sometimes pre-weighed the quantities of methamphetamine for sale.
According to Cantu, Gomez was also involved in “cutting” and packaging the
drugs, and arranged for the supply of marijuana.
       Based on the evidence presented at trial, we conclude that the district
court did not clearly err in applying the § 3B1.1(c) role enhancement. The
court’s finding is “plausible in light of the record as a whole.” 11
                                            B.
       Next, Gomez alleges that the district court committed procedural error
by failing to adequately explain the reasons for his sentencing and failing to
consider the 18 U.S.C. § 3553(a) factors. Additionally, relying on Dean, Gomez
argues that the district court was not fully aware of its discretionary authority


        See United States v. Serfass, 684 F.3d 548, 550 (5th Cir. 2012) (internal quotation
       11

marks and footnote citation omitted).

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                                         No. 17-10690
under the Sentencing Guidelines on the counts not controlled by a mandatory
minimum when arriving at a total sentence.
       Because Gomez failed to raise these issues, 12 we review these claims for
plain error. 13 Plain error doctrine provides:
                 An appellate court may not correct an error the
                 defendant failed to raise in the district court unless
                 there is (1) error, (2) that is plain, and (3) that affects
                 substantial rights. If all three conditions are met an
                 appellate court may then exercise its discretion to
                 notice a forfeited error but only if (4) the error
                 seriously affects the fairness, integrity, or public
                 reputation of judicial proceedings. 14

                                                1.
       Generally, a sentencing court must “state in open court the reasons for
its imposition of the particular sentence.” 15 It must also “set forth enough to
satisfy the appellate court that [the sentencing court] has considered the
parties’ arguments and has a reasoned basis” for the decision. 16


       12 Gomez asks us to review the district court’s application of the Sentencing Guidelines
de novo. However, “[a] party must raise a claim of error with the district court in such a
manner so that the district court may correct itself and thus obviate the need for appellate
court review.” Rodriguez, 15 F.3d at 414 (quoting United States v. Bullard, 13 F.3d 154, 156
(5th Cir. 1994). Simply voicing disagreement about the Sentencing Guidelines’ recommended
range for imprisonment is insufficient to notify the sentencing court of a party’s basis for
objection. See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009).

       13 See FED. R. CRIM. P. 52(b); United States v. Martinez-Rodriguez, 821 F.3d 659, 662–
63 (5th Cir. 2016) (internal quotations and citations omitted) (holding unpreserved
procedural and substantive sentencing objections are reviewed “only for plain error”); United
States v. Peltier, 505 F.3d 389, 391 (5th Cir. 2007).

       14 United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005) (internal quotations and
citations omitted); United States v. Ellis, 564 F.3d 370, 377 (5th Cir. 2009).

       15 18 U.S.C. § 3553(c); United States v. Salazar, 743 F.3d 445, 451 (5th Cir. 2014)
(citing United States v. Warren, 186 F.3d 358, 366 (3d Cir. 1999)).

       16   Rita v. United States, 551 U.S. 338, 356 (2007).

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                                       No. 17-10690
       In the instant case, the district court stated that it had reviewed the PSR,
the PSR Addendum, and Gomez’s sentencing memorandum. It also adopted
the PSR and recited the applicable Guidelines calculations.                   Because the
district court sentenced Gomez within the Guidelines range on the drug counts
not carrying a mandatory minimum, a lengthy explanation was not required. 17
Based on the record, we are satisfied that the district court adequately
considered the parties’ submissions and complied with § 3553(c)(1) by stating
the reasons for its imposition of Gomez’s sentence. 18 Accordingly, on this point,
there is no plain error.
                                             2.
       Finally, Gomez argues that the district court erroneously believed it was
not authorized to consider the counts carrying mandatory-minimum
sentences—a total of 40 years—in arriving at a prison term on the remaining
counts so his aggregate sentence was unreasonable. Relying on the Supreme
Court’s recent decision in Dean, Gomez asserts that nothing in § 924(c)
“restricts the authority of sentencing courts to consider the imposition of a
mandatory minimum when calculating a just sentence for an underlying
predicate count.” He claims that the district court’s failure to recognize this
authority “in effect treat[ed] the Guidelines as mandatory.” As a result, Gomez
concludes that the district court unreasonably imposed a 652-month aggregate
sentence despite “find[ing] under the circumstances that the Guideline
calculation is excessive. . . .”




       17 See id.; Mares, 402 F.3d at 519 (holding “[i]f the sentencing judge exercises her
discretion to impose a sentence within a properly calculated Guideline range, in our
reasonableness review we will infer that the judge has considered all the factors for a fair
sentence set forth in the Guidelines.”).

       18See United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006) (holding district court
need not engage in a “checklist recitation of the [§] 3553(a) factors”).
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                                              No. 17-10690
         In response, the Government argues that the sentencing court obviously
“misspoke”          at    the    hearing,      unintentionally    substituting    “Guideline
calculation” for the lengthy consecutive sentences required under § 924(c) and
§§ 846, 841(a)(1) & (b)(1)(A)(viii). In support of this theory, the Government
points to the district court’s reference to what it was “required to do by the
statute”—that is, § 924(c) requiring imposition of mandatory, statutory-
minimum sentences of 30 years for the firearms offenses and §§ 846, 841(a)(1)
& (b)(1)(A)(viii) mandating a minimum of 10 years on the methamphetamine
counts. The Government contends that we should affirm the sentence because
Gomez has not met the demanding standard required to demonstrate plain
error.
         Gomez suggests that the Supreme Court’s Dean decision, announced
about two months before he was sentenced, provides guidance in this
situation. 19 In Dean, the defendant was convicted of conspiracy to commit
robbery and robbery, as well as two counts of possession of a firearm in
furtherance of a crime of violence, in violation of 18 U.S.C. §§ 924(c) & 2. 20
Following the Eighth Circuit’s precedent in United States v. Hatcher, 21 the
district judge concluded that he “was required to disregard Dean’s 30-year
mandatory minimum when determining the appropriate sentences for Dean’s
other counts of conviction.” 22 The court therefore sentenced Dean to a total of




         19   The Supreme Court decided Dean on April 3, 2017. Gomez was sentenced on June
19, 2017.

         20   Dean, 137 S. Ct. at 1174–75.

         21   501 F.3d 931 (8th Cir. 2007).

         22   Dean, 137 S. Ct. at 1175.

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                                         No. 17-10690
400 months’ imprisonment, which was 40 months longer than the 30-year and
one-day sentence he deemed “more than sufficient.” 23
       The Supreme Court reversed. Contrary to the Eighth Circuit’s holding
in Hatcher, the Court held that when a defendant is facing two consecutive
sentences—one for a predicate offense, which does not carry a mandatory-
minimum sentence, and another for an offense committed under § 924(c),
which does carry a mandatory-minimum sentence—the sentencing judge may
consider the defendant’s § 924(c) sentence when deciding the proper amount of
time to be served for the predicate offense. 24 In a unanimous decision, the
Court reasoned:          To render a fair and reasonable judgment—“a sentence
sufficient, but not greater than necessary, to comply with the four identified
purposes of sentencing: just punishment, deterrence, protection of the public,
and rehabilitation”—it is important that a sentencing court considers the
aggregate prison term and “the need for the sentence imposed to serve the four
overarching aims of sentencing.” 25 The Court recognized that nothing in the
statutory language of § 924(c) prevents sentencing courts from considering the
mandatory minimums when arriving at a just aggregate sentence. 26
       Although this circuit has never announced a contrary position, Dean has
abrogated several sister circuits’ precedents that previously held a sentencing
court may not consider a defendant’s § 924(c) mandatory-minimum sentence
when deciding what sentence to impose for the predicate offense. 27

       23   See id. at 1170 (internal quotation marks omitted).

       24   Id. at 1176–77.

       25See id. at 1175 (citing 18 U.S.C. §§ 3553(a)(1), (2)(A)–(D); Gall, 552 U.S. at 50, n.6)
(quotation marks omitted).

       26   Id. at 1176–77.

       27 See, e.g., id. (abrogating Hatcher, 501 F.3d 931); United States v. Shelton, 715
F. App’x 559 (7th Cir. 2018) (acknowledging that Dean abrogated United States v. Roberson,
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                                         No. 17-10690
       In this case, the district court correctly observed that it had no discretion
to reduce the mandatory-minimum sentences required under § 924(c). 28 But,
based on the record, it appears unlikely that the district court considered the
Supreme Court’s teachings in Dean, which clearly authorized sentencing
courts to consider the length of the mandatory-minimum sentence they were
required to give in fashioning a sentence on the discretionary, non-mandatory
counts. By “find[ing] . . . the Guideline calculation [. . .] excessive” in Gomez’s
case yet still imposing a prison term within that uncomfortable territory, the
district judge signaled a desire for a downward variance—if he had known it
was permissible. And Dean makes it clear that the district court could have
deviated from the Guidelines on the discretionary counts. Yet because we
cannot determine from the record whether the court would have deviated
downward on those counts—had it known that was permissible—we conclude
that we should give the district court an opportunity to clarify whether, in light
of Dean, it wishes to reconsider the sentence he imposed on the discretionary
counts.
       A limited remand is the appropriate remedy here. The Seventh Circuit,
for instance, has confronted a similar issue. In a post–Booker 29 sentencing
appeal reviewed under plain error, the Seventh Circuit explained: Unless the


474 F.3d 432 (7th Cir. 2007), which “precluded judges from reducing the sentence of a
predicate crime in order to offset a consecutive § 924(c) sentence”); United States v. Henry,
722 F. App’x 496, 501 (6th Cir. 2018) (recognizing “Dean abrogated United States v. Franklin,
499 F.3d 578, 586 (6th Cir. 2007), which had required district courts to ignore § 924(c) when
sentencing the offender for the predicate crimes.”); see also, e.g., United States v. Bonilla, 700
F. App’x 82, 84 (2d Cir. 2017) (noting “Dean may have effectively overruled [the Second]
[C]ircuit’s precedent [in United States v. Chavez, 549 F.3d 119, 135 (2d Cir. 2008)].”).

       28   See United States v. Carter, 595 F.3d 575, 578–79 (5th Cir. 2010).

        Booker refers to the Supreme Court’s decision in United States v. Booker, 543 U.S.
       29

220 (2005) (holding Sentencing Guidelines should be treated as advisory rather than
mandatory).

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                                           No. 17-10690
record indicates otherwise, it is often difficult, if not impossible, for a reviewing
court to determine, without consulting the sentencing judge, whether the judge
would issue a lower sentence. 30              Thus, in some uncertain situations, the
Seventh Circuit has recognized that “[t]he only practical way (and it happens
also to be the shortest, the easiest, the quickest, and the surest way) to determine
whether the kind of plain error argued in these cases has actually occurred is
to ask the district judge.” 31
      The Seventh Circuit applied the same logic and common-sense approach
in handling some post–Dean cases. For example, in United States v. Anderson,
the defendant challenged his sentence, in part, based on Dean. 32                    There,
Anderson was convicted by a jury for unlawful possession of a firearm as a
felon, possession of crack cocaine with intent to distribute, and possession of a
firearm in furtherance of a drug trafficking offense. 33                The two firearms
offenses carried mandatory-minimum sentences. 34                      At sentencing, the
defendant asked the district court to offset the consecutive term that was
statutorily mandated by § 924(c) by reducing the term of imprisonment on the
other charges. 35 In response, the court stated that “[under Seventh Circuit
caselaw, 36] sentencing [j]udges may not reduce a prison term for an underlying
crime to offset the consecutive term that is [s]tatutorily mandated for


      30   See United States v. Paladino, 401 F.3d 471, 482 (7th Cir. 2005).

      31   Id. at 483 (emphasis added).

      32   881 F.3d 568 (7th Cir. 2018).

      33   Id. at 570.

      34   Id.

      35   Id. at 576.

      36   Roberson, 474 F.3d 432; United States v. Ikegwuonu, 826 F.3d 408 (7th Cir. 2016).

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                                         No. 17-10690
[violating] 924(c).” 37 This statement of the law, the Seventh Circuit recognized,
is now in conflict with Dean. 38 Because “[t]here is some ambiguity in the
sentencing hearing as to whether the district court nonetheless considered the
mandatory sentence in determining its sentence,” the Seventh Circuit noted it
“cannot be certain” whether “the district court felt bound in its sentencing by
[its] since-abrogated [caselaw].” 39 Accordingly, the Seventh Circuit concluded
that “a limited remand is appropriate to ascertain whether the district court
would be inclined to sentence Anderson differently in light of the Supreme
Court’s decision in Dean.” 40
       We elect to do the same here. We remand this case to the district judge
for the limited purpose of providing us with an answer to the following
question: Do you wish to modify your original sentence in this case in light of
Dean?       If yes, then the district court may proceed with resentencing the
defendant. If no, then the district court shall enter an order reflecting that
intent. Whichever option the district court chooses, the Clerk for the Northern
District of Texas shall forward to us the district court’s order, and we will
proceed accordingly with this appeal. 41 We will retain appellate jurisdiction
pending the district court’s response.


       37   Anderson, 881 F.3d at 576.

       38   Id.

       39   Id. at 576–77.

       40 Id. at 577; see also, e.g., United States v. Cureton, 882 F.3d 714, 715 (7th Cir. 2018)
(issuing limited remand); United States v. Shelton, 715 F. App’x 559, 560 (7th Cir. 2018)
(same); United States v. Badoni, 694 F. App’x 592, 593 (9th Cir. 2017) (holding “[b]ecause the
record does not make clear whether the district court understood that it could consider the
§ 924(c) mandatory sentence . . . we vacate the sentences on those counts and remand for
resentencing in light of Dean.”).

       41 Because we afford the district court an opportunity, at its discretion, for
resentencing, we need not consider now whether Gomez’s 652-month prison term is
substantively reasonable. See Gall, 552 U.S. at 51 (holding determination of reasonableness
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                                     No. 17-10690
                                          III.
      Based on the foregoing reasons, we REMAND this case for the limited
purpose stated above.
      REMANDED FOR LIMITED CONSIDERATION CONSISTENT
WITH THIS OPINION.




begins first with reviewing procedural error, then substantive); see also United States v.
Diehl, 775 F.3d 714, 722–23 (5th Cir. 2015). Our decision to issue a limited remand has no
bearing on the substantive reasonableness of Gomez’s existing prison term.
                                           14
