     Case: 16-41689   Document: 00514218587        Page: 1   Date Filed: 10/31/2017




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

                                    No. 16-41689                          FILED
                                                                   October 31, 2017
                                                                     Lyle W. Cayce
UNITED STATES OF AMERICA,                                                 Clerk

             Plaintiff - Appellee

v.

DARRIN ANTONIO SOZA,

             Defendant - Appellant




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


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
WIENER, Circuit Judge:
      Defendant-Appellant Darrin Antonio Soza pleaded guilty to one count of
unlawful possession of firearms with altered and obliterated serial numbers,
in violation of 18 U.S.C. §§ 922(k) and 924(a)(1)(B). At sentencing, the district
court concluded that Soza was a “prohibited person” under 18 U.S.C.
§ 922(g)(2) and adopted the factual findings of the presentence investigation
report (“PSR”) regarding Soza’s criminal history. Soza’s resulting Guidelines
range was 108 to 135 months, but the court sentenced him to the applicable
statutory maximum of 60 months. On appeal, Soza challenges the sufficiency
of the evidence to support (1) the ruling that he was a prohibited person, and
(2) his criminal history as reflected in the PSR and adopted by the district
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                                       No. 16-41689
court. We affirm the district court’s calculation of Soza’s criminal history
points, but vacate his sentence and remand for resentencing.
                              I. FACTS AND PROCEEDINGS
         Soza was charged with one count of knowingly possessing firearms—
specifically, two AK-47 rifles—“with altered and obliterated serial numbers,
that had been shipped and transported in interstate and foreign commerce[.]”
He pleaded guilty pursuant to a written plea agreement.
         The PSR stated that Soza was a prohibited person at the time he
committed the offense and applied a base offense level of 20 under
§ 2K2.1(a)(4)(B) of the Sentencing Guidelines (“Guidelines” or “U.S.S.G.”). 1
The PSR also added four enhancements—each of four levels—for specific
offense characteristics under U.S.S.G. § 2K2.1(b). After application of a two-
level reduction for acceptance of responsibility, Soza’s total offense level was
34. 2
         The PSR noted that Soza had six criminal history points: one for driving
under the influence of alcohol in 2008, one for driving while impaired (“DWI”)
in 2010, one for larceny in 2011, one for DWI in 2012, and two for “committ[ing]
the instant offense while on a term of probation.” Consequently, Soza’s
criminal history category was III. 3 In support of these calculations, the PSR


         1U.S. SENTENCING GUIDELINES MANUAL § 2K2.1(a)(4)(B) (U.S. SENTENCING COMM’N
2016). All references to the Guidelines herein are to the 2016 edition, which was applicable
in this case.
        2 The officer applied the cross reference in § 2K2.1(c)(1) because she determined that

“it [was] reasonably foreseeable that the firearms sold to an individual on behalf of unknown
individuals in Reynosa, Tamaulipas, Mexico, would have the potential to facilitate another
felony offense of exportation of arms without required validated export license.” U.S.S.G.
§ 2M5.2 assigns a base offense level of 26 for the “exportation of arms . . . without required
validated export license.” But under § 2K2.1(c), the cross reference applies only “if the
resulting offense level is greater than that determined [under § 2K2.1(a) and (b)].” Therefore,
Soza’s total offense level was 36—the base offense level of 20 under § 2K2.1(a)(4)(B) plus the
four 4-level enhancements under § 2K2.1(b).
        3 U.S. SENTENCING GUIDELINES MANUAL ch. 5, pt. A (U.S. SENTENCING COMM’N

2016).
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attached a page of a North Carolina probation violation warrant for Soza’s
arrest. This page noted that a “written statement” was provided to the North
Carolina court, but no copy of that statement was given to the district court.
      With a total offense level of 34, Soza’s sentencing range was 188 to 235
months. 4 At the sentencing hearing, the district court granted the
government’s motion for a third level of reduction for acceptance of
responsibility pursuant to § 3E1.1, and also granted Soza’s objection to one of
the four-level enhancements. That yielded a total offense level of 29 and a
sentencing range of 108 to 135 months. 5 The statutory maximum
imprisonment was five years, however. 6
      Soza had filed other written objections, including the contention that
there was insufficient evidence to support the PSR’s determination that he was
a prohibited person under § 2K2.1(a)(4)(B). The district court overruled that
objection and sentenced Soza to the statutory maximum term of five years
imprisonment, to be followed by three years of supervised release.
      Soza timely appealed, raising two arguments: (1) The district court erred
in applying § 2K2.1(a)(4)(B) because the evidence was insufficient to establish
that Soza was a prohibited person; and (2) the district court improperly
calculated Soza’s criminal history points because the evidence was insufficient
to support the 2012 DWI conviction and to show that Soza was on probation
when he committed the instant offense.
      After Soza filed his opening brief on appeal, the government moved to
supplement the record with a copy of the judgment for Soza’s 2012 DWI
conviction and the full arrest warrant for his probation violation, including a
written description of the violations. A single judge of this court granted the


      4 Id.
      5 Id.
      6 18 U.S.C. § 924(a)(1)(B).

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                                   No. 16-41689
government’s motion, after which Soza filed a motion for panel reconsideration
that was denied by a different panel, subject to reconsideration by this panel.
                                   II. ANALYSIS
A.    Whether Soza was a “Prohibited Person”
      U.S.S.G. § 2K2.1(a)(4)(B) applies a base offense level of 20 if the offense
involved a “semiautomatic firearm that is capable of accepting a large capacity
magazine” and the defendant was a “prohibited person” at the time he
committed the instant offense. The Guidelines contain two definitions of
prohibited person that are relevant to this case: (1) per 18 U.S.C. § 922(g)(1), a
person “who has been convicted in any court of, [sic] a crime punishable by
imprisonment for a term exceeding one year,” and (2) per 18 U.S.C. § 922(g)(2),
a person “who is a fugitive from justice.” 7 Soza maintains that the evidence
was insufficient to establish that he was a prohibited person under either
definition.
      1.      Standard of Review
      “This court reviews the district court’s interpretation and application of
the Sentencing Guidelines de novo and its factual findings for clear error.” 8
Whether the evidence was sufficient to support a Guidelines enhancement
requires a finding of fact which we review for clear error. 9 The government has
the burden of demonstrating, by a preponderance of the evidence, the facts that
are necessary to support the enhancement. 10 “Failure to object to either the
PSR or the district court’s sentence,” however, “results in review for plain




      7  U.S. SENTENCING GUIDELINES MANUAL § 2K2.1 cmt. n.3 (U.S. SENTENCING COMM’N
2016); see 18 U.S.C. § 922(g).
       8 United States v. Olarte-Rojas, 820 F.3d 798, 801 (5th Cir. 2016).
       9 United States v. Reyna-Esparza, 777 F.3d 291, 294 (5th Cir. 2015).
       10 United States v. Olivares, 833 F.3d 450, 452 (5th Cir. 2016) (per curiam).

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error.” 11 “Plain error exists if (1) there is an error, (2) the error is plain, . . .
(3) the error affect[s] substantial rights and (4) the error seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.” 12
       The parties dispute whether Soza preserved this challenge. “There is
‘[n]o bright-line rule . . . for determining whether a matter was raised below.’” 13
“[I]f a party wishes to preserve an argument for appeal, the party must press
and not merely intimate the argument during the proceedings before the
district court. An argument must be raised to such a degree that the district
court has an opportunity to rule on it.” 14 “The raising party must present the
issue so that it places the opposing party and the court on notice that a new
issue is being raised.” 15
       In his written objections to the PSR, Soza challenged the base offense
level applied under § 2K2.1(a)(4)(B), contending that “no documentation ha[d]
been provided by the government in support of the assertion that Mr. Soza was
a ‘prohibited person’ under . . . 18 U.S.C. 922(g)(2).” The probation officer
responded in part as follows: “[O]n July 8, 2014, a probation violator’s warrant




       11  United States v. Ocana, 204 F.3d 585, 588 (5th Cir. 2000); see United States v.
Garcia-Perez, 779 F.3d 278, 281 (5th Cir. 2015) (“When a defendant objects to his sentence
on grounds different from those raised on appeal, we review the new arguments raised on
appeal for plain error only.” (quoting United States v. Medina-Anicacio, 325 F.3d 638, 643
(5th Cir. 2003))).
        12 United States v. Gordon, 838 F.3d 597, 604 (5th Cir. 2016) (alterations in original)

(quoting United States v. Garcia-Carrillo, 749 F.3d 376, 378 (5th Cir. 2014) (per curiam)).
        13 United States v. Brown, 561 F.3d 420, 435 n.12 (5th Cir. 2009) (alterations in

original) (quoting Castillo v. Cameron Cty., 238 F.3d 339, 355 n.21 (5th Cir. 2001)).
        14 Dallas Gas Partners, L.P. v. Prospect Energy Corp., 733 F.3d 148, 157 (5th Cir. 2013)

(internal quotation marks and citation omitted); see also Garcia-Perez, 779 F.3d at 282 (“The
‘objection must be sufficiently specific to alert the district court to the nature of the alleged
error and to provide an opportunity for correction.’” (quoting United States v. Neal, 578 F.3d
270, 272 (5th Cir. 2009))).
        15 Kelly v. Foti, 77 F.3d 819, 823 (5th Cir. 1996) (quoting Portis v. First Nat’l Bank, 34

F.3d 325, 331 (5th Cir. 1994)).
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                                   No. 16-41689
was issued for the defendant, and remains active; therefore, the defendant is a
fugitive from justice.”
      At the sentencing hearing, Soza’s attorney raised the following objection:
      [W]e wanted to ask the Court to make a ruling on some of our
      objections, that the base offense level—and [sic] that he was not a
      prohibited person. I did ask for some documentation and Probation
      did provide a warrant with an electronic signature but no
      judgments, so we’re just asking the Court to find whether this was
      sufficient evidence to find that he was—or to rule that he was a
      prohibited person.
The sentencing court overruled that objection. Although the court did not
specify which definition of prohibited person it applied to Soza, the PSR applied
both definitions—(1) a person “who has been convicted in any court of, [sic] a
crime punishable by imprisonment for a term exceeding one year,” and (2) a
person “who is a fugitive from justice”—to conclude that Soza was a prohibited
person under U.S.S.G. § 2K2.1(a)(4)(B). The government concedes on appeal,
however, that the first definition does not apply to Soza. “The [g]overnment
thus relies solely on Soza’s ‘fugitive from justice’ status under § 922(g)(2).”
      The government now urges that “the critical question [Soza raises on
appeal] boils down to whether the district court clearly erred in finding that
Soza was a ‘fugitive from justice’ under 18 U.S.C. § 922(g)(2)—and thus a
prohibited person for purposes of § 2K2.1(a)(4)(B).” Although the government
acknowledges that Soza objected “to the district court’s general application of
U.S.S.G. § 2K2.1(a)(4)(B) on the basis that he was a ‘prohibited person[,]’” it
states that Soza did not present this particular argument to the district court.
The government contends that Soza did not ask the district court to rule on
whether he was a fugitive from justice, but instead “merely asked the court to
rule whether that single page [of the warrant] constituted sufficient evidence”
that Soza was a prohibited person.


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                                     No. 16-41689
      Soza’s written objection referred specifically to the paragraph of the PSR
that explained that he was a prohibited person because he was a fugitive from
justice. Soza’s attorney re-urged the challenge during the sentencing hearing.
That objection was “sufficiently specific to alert the district court to the nature
of the alleged error and to provide an opportunity for correction.” 16 It also
“place[d] the [government] and the court on notice” that Soza was objecting to
the finding that he was a fugitive from justice and thus a prohibited person
under the Guidelines. 17 Soza has therefore preserved this argument for appeal,
and we review his challenge for clear error.
      2.     Sufficiency of the Evidence
      As noted above, “[t]he [g]overnment . . . relies solely on Soza’s ‘fugitive
from justice’ status under § 922(g)(2).” “The term ‘fugitive from justice’ means
any person who has fled from any State to avoid prosecution for a crime or to
avoid giving testimony in any criminal proceeding.” 18 The PSR concluded that
Soza is a fugitive from justice because a probation violator’s warrant issued in
2014 for a 2012 DWI conviction in North Carolina remains active. Soza
counters that, alone, the probation violator’s warrant is insufficient to
establish that he was a prohibited person “because the warrant does not, by
itself, show that Mr. Soza fled the jurisdiction to avoid prosecution[.]” To
support its claim that Soza was a fugitive from justice, the government
provided the district court with a copy of the relevant order for arrest. That
order notes that Soza’s probation officer filed a written statement with the
North Carolina state court alleging that Soza violated various conditions of his
probation. But that written statement was not before the district court, and




      16 Garcia-Perez, 779 F.3d at 282 (quoting Neal, 578 F.3d at 272).
      17 See Kelly, 77 F.3d at 823 (quoting Portis, 34 F.3d at 331).
      18 18 U.S.C. § 921(a)(15).

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the single page of the warrant that was before the court does not describe the
conviction underlying Soza’s probation or the alleged probation violations.
              a.      Required Mens Rea to be a Fugitive from Justice
       The parties dispute whether, to be a fugitive from justice, Soza had to
have either intent to avoid prosecution (or at least knowledge that he was a
fugitive) or know that charges were pending against him. This court has yet to
determine whether a defendant must have such intent or knowledge to be a
fugitive from justice under 18 U.S.C. § 922(g)(2), 19 and there is a split among
other circuits on this issue. The Ninth and Eleventh Circuits have held that,
to establish that a defendant is a fugitive from justice, the government must
show that the defendant fled with the intent to avoid prosecution. 20 The Fourth
and Seventh Circuits, however, have rejected this approach. 21 But these latter
two circuits do require that, to qualify as a fugitive from justice, a defendant
must have had knowledge that charges against him are pending. 22



       19  See United States v. Clark, 89 F. App’x 453, 457–58 (5th Cir. 2004) (per curiam)
(recognizing the circuit split but declining to decide the issue because it was waived).
        20 See United States v. Gonzalez, 122 F.3d 1383, 1387 (11th Cir. 1997) (“[M]ere absence

from the jurisdiction in which a crime occurred does not render the suspect a fugitive from
justice; he must be found to have absented himself from the jurisdiction with the intent to
avoid prosecution.” (quoting United States v. Fonsesca-Machado, 53 F.3d 1242, 1243–44 (11th
Cir. 1995))); United States v. Durcan, 539 F.2d 29, 31 (9th Cir. 1976) (“In order to establish
that Durcan was a ‘fugitive from justice’ within the meaning of section 922(g)(2), an
indispensable requisite of the prosecution’s proof was that Durcan had left Florida with the
intent to avoid arrest or prosecution.”).
        21 See United States v. Ballentine, 4 F.3d 504, 506 (7th Cir. 1993) (“[K]nowledge of

one’s status as a ‘fugitive’ simply is not an element of 18 U.S.C. § 922(g)(2)).”); United States
v. Spillane, 913 F.2d 1079, 1081–82 (4th Cir. 1990) (per curiam) (“We are unpersuaded by
the argument . . . that to meet the . . . burden of proof the prosecution must show that the
appellant left New York with the intent to avoid facing the charges pending against him. . . .
It is not necessary that the accused make a furtive exit from the prosecuting jurisdiction.”).
        22 Ballentine, 4 F.3d at 506 (“[To be a fugitive from justice], a defendant need only

know that charges are pending against him, that he has refused to answer to those charges
and that he has left the jurisdiction where the charges are pending.”); Spillane, 913 F.2d at
1081–82 (“Any person who, knowing that charges are pending, purposely (1) leaves the
jurisdiction of prosecution and (2) refuses to answer those charges by way of appearance
before the prosecuting tribunal, is a fugitive from justice.”).
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                                       No. 16-41689
        This court has addressed whether other subsections of § 922(g) contain
a mens rea element. In United States v. Dancy, we held that the district court
did not err when it failed to instruct the jury on a mens rea requirement for
conviction under § 922(g)(1), which prohibits persons convicted of crimes
punishable by more than one year imprisonment from possessing firearms. 23
The Dancy panel explained that, “[l]ike the provisions it supersedes, § 922(g)
contains no element of mens rea.” 24 Similarly, in United States v. Butler, this
court        considered   whether     § 922(g)(6),    which     prohibits     “dishonorable
dischargees” from possessing firearms, has a mens rea element. 25 Relying on
the analysis in Dancy, the Butler panel concluded that a conviction under
§ 922(g)(6) did not require proof of knowledge:
              This court’s holding in Dancy, that the defendant need not
        know of his prohibited status to violate § 922(g)(1), persuades us
        that § 922(g)(6) does not require it either. The two subsections
        have parallel language, and it would be illogical to impose a mens
        rea requirement on only one of the subsections. In Dancy, the court
        looked to the legislative history of § 922(g) and the applicable
        penalty provision, § 924(a)(1)(B). The Dancy court concluded that
        Congress intended to incorporate former law into the statute,
        and that the statute does not require that a felon knew of his
        prohibited status. 26
        Although these cases imply that all subsections of § 922(g) should be
treated alike, there are compelling reasons to distinguish subsection 922(g)(2)
from subsections 922(g)(1) and (g)(6) for the purpose of the mens rea
requirement. These two subsections, like most subsections of § 922(g), are
phrased in passive terms that make relevant not a person’s conduct or
knowledge, but simply what their status is or what has happened to them, such



        23 United States v. Dancy, 861 F.2d 77, 81–82 (5th Cir. 1988) (per curiam).
        24 Id. at 81.
        25 United States v. Butler, 637 F.3d 519, 523–24 (5th Cir. 2011) (per curiam).
        26 Id. at 524 (citations omitted).

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as: any person “who has been convicted in any court” of a felony; 27 any person
“who has been adjudicated as a mental defective or who has been committed
to a mental institution”; 28 any person “who, being an alien . . . has been
admitted to the United States under a nonimmigrant visa”; 29 or any person
“who has been discharged from the Armed Forces under dishonorable
conditions[.]” 30 At first blush, § 922(g)(2) appears to follow that same status-
based approach, stating that it is unlawful for any person “who is a fugitive
from justice” to ship, transport, possess, or receive firearms. 31
       But the definition of fugitive from justice necessarily incorporates intent.
Fugitive from justice is defined in § 921 as “any person who has fled from any
State to avoid prosecution for a crime or to avoid giving testimony in any
criminal proceeding.” 32 A literal reading of that definition suggests that one
cannot be a fugitive from justice without having “fled” a state for the explicit
purpose, i.e. with the express intent, of avoiding either prosecution or
testimony.
       First, the meaning of the word “fled” contemplates a purposeful
departure rather than one that merely has the effect of avoiding prosecution
or testimony. 33 Second, the use of the word “to” in the infinitive, “to avoid,”
similarly suggests purposeful action. 34 To the extent that “to” can be read as
indicating not only a purpose but also an end or result, the rule of lenity



       27  See 18 U.S.C. § 922(g)(1).
       28  Id. § 922(g)(4).
        29 Id. § 922(g)(5)(B).
        30 Id. § 922(g)(6).
        31 Id. § 922(g)(2).
        32 Id. § 921(a)(15).
        33 See Spillane, 913 F.2d at 1083–84 (4th Cir. 1990) (Murnaghan, J., dissenting) (citing

Webster’s New Collegiate Dictionary and Black’s Law Dictionary in support of the
proposition that “to flee” means to depart for the purpose of avoiding something).
        34 See To, MERRIAM-WEBSTER COLLEGIATE DICTIONARY (11th ed. 2003) (defining “to”

as “a function word to indicate purpose, intention, tendency, result, or end”).
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                                        No. 16-41689
requires that it be construed in favor of the defendant. 35 Thus, while § 922(g)(2)
does not itself contain a requirement of knowledge or intent, unlike §§ 922(g)(1)
and (g)(6), it incorporates the definition of fugitive from justice in § 921 which,
by its plain terms, does require intent. 36
       A distinction can therefore be drawn between having the status or label
of fugitive from justice on the one hand and the conduct and intent necessary
to obtain that status on the other. By analogy to Dancy and Butler, a defendant
need not have had knowledge of his status or label as a fugitive to be guilty
under § 922(g)(2) and thus be subject to the enhanced base offense level under
U.S.S.G. § 2K2.1(a)(4)(B)(2). 37 Under § 921, however, a defendant cannot be a
fugitive from justice without having fled for the intended purpose of avoiding
prosecution or testimony. 38



       35  See Spillane, 913 F.2d at 1082 (Murnaghan, J., dissenting).
       36  See Gonzalez, 122 F.3d at 1387 (suggesting that § 922(g)(2) requires evidence that
the defendant “intentionally absented himself—that is, took himself away—from [the
prosecuting state] to avoid prosecution there”); Durcan, 539 F.2d at 31 (“In order to establish
that Durcan was a ‘fugitive from justice’ within the meaning of section 922(g)(2), an
indispensable requisite of the prosecution’s proof was that Durcan had left Florida with the
intent to avoid arrest or prosecution.”).
        37 Cf. Ballentine, 4 F.3d at 506 (stating that “knowledge of one’s status as a ‘fugitive’

simply is not an element of 18 U.S.C. § 922(g)(2)” but that “‘fugitive’ status necessarily
involves a defendant’s knowledge that charges are pending against him”).
        38 As a practical matter, the difference between fleeing the state with the intent to

avoid charges and fleeing the state knowing that charges are pending (the requirement
adopted by the Seventh and Fourth Circuits) would have little impact in most cases. As the
Third Circuit recognized in United States v. Donahue, intent can be inferred from knowledge.
United States v. Donahue, 681 F. App’x 171, 173 (3d Cir. 2017), cert. denied, No. 16-9418,
2017 WL 2405872 (U.S. Oct. 2, 2017). The primary distinction between an intent standard
and a knowledge standard appears to be how each relates to the timing of the decision to
leave a state. Under a specific-intent standard, based on a literal reading of § 921(a)(15), the
knowledge of the pending charges and the decision to leave a state to avoid those charges
would have to be established as of the time that the defendant actually crossed the state line.
That standard would not apply to a person who left the state for some other reason and then,
with knowledge of pending charges in that state, decided to stay away to avoid those charges.
The word “fled” could be read, however, to encompass staying away, so that one who leaves
a state for some other purpose but then stays away to avoid prosecution could be considered
“fleeing.” See Spillane, 913 F.2d at 1081 (raising this concern and “find[ing] no logical
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                                      No. 16-41689
                 b.   Evidence Before the District Court
       The government did not present sufficient evidence that Soza had such
intent. The evidence before the district court consisted of only a July 2014
warrant for Soza’s arrest based on unidentified probation violations. That
warrant states that the probation officer provided a written statement
outlining Soza’s alleged probation violations, which was apparently attached
to the warrant, but that statement was not in the record before the district
court. The single page of the warrant that was before the district court is
insufficient to establish intent. Without at least the dates on which the
underlying violations occurred and the date Soza left North Carolina, it cannot
be inferred that he left—fled—for the purpose of avoiding prosecution. 39
       The government attempts to analogize to United States v. Donahue, in
which the Third Circuit held, in an unpublished opinion, that “[i]ntent to flee
can be established when further prosecution is substantially certain but not
already initiated.” 40 But that is not the case here: Based solely on the single
page of the warrant, the sentencing court would have no information about the
timing and nature of the alleged probation violations. Thus, that court could
not infer that Soza would have known that prosecution was “substantially
certain[.]” 41
       The facts of Donahue illuminate this distinction: Authorities found
Donahue in possession of “false identification and utility notices under an




distinction between the person who leaves to avoid prosecution and the person who, once
gone, refuses to return for the same reason”).
       39 In fact, this single page of the warrant is unlikely even to establish knowledge of

the pending charges. As noted above, the single page gives no information concerning the
timing and nature of the probation violations giving rise to the warrant. This lack of
information makes it difficult to infer whether Soza could have known that prosecution was
“substantially certain” to follow. See Donahue, 681 F. App’x at 173.
       40 Id.
       41 See id.

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                                       No. 16-41689
alias.” 42 There are no similar facts in Soza’s case. It may be true that a
defendant could flee with the intent to avoid prosecution without direct
knowledge of an arrest warrant, but the bare fact that a warrant had been
issued does not itself explain why the defendant fled.
              c.     Motion to Supplement the Record
       The question becomes much closer if the supplemental evidence is
considered. On appeal, the government submitted the sworn statement of the
North Carolina probation officer indicating that Soza engaged in the following
conduct in violation of his conditions of release: (1) failing to attend
appointments with probation; (2) failing to make payments towards his court
indebtedness; (3) failing to make payment towards his probation supervision
fees; (4) being charged with DWI; and (5) failing to obtain a DWI assessment.
       Soza contends that, because the government had the burden of
production to establish the applicability of any sentencing enhancement, it
should be restricted to the evidence that it produced at sentencing and should
not be permitted a “second bite at the apple.” 43 In United States v. Dickler, the
Third Circuit stated that “where the government has the burden of production
and persuasion as it does on issues like enhancement of the offense level . . . ,
its case should ordinarily have to stand or fall on the record it makes the first
time around.” 44 But the court in Dickler also “perceive[d] no constitutional or
statutory impediment to the district court’s providing the government with an
additional opportunity to present evidence on remand if it has tendered a




       42 Id.
       43 Additionally, in a letter pursuant to Federal Rule of Appellate Procedure 28(j), Soza
highlighted United States v. Reynolds, where this court stated that “we are reluctant” to
permit parties to supplement the record on appeal. United States v. Reynolds, 2017 WL
3328154, at *4 (5th Cir. Aug. 3, 2017) (unpublished) (per curiam).
       44 United States v. Dickler, 64 F.3d 818, 832 (3d Cir. 1995).

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                                       No. 16-41689
persuasive reason why fairness so requires.” 45 We follow this prudent approach
and will allow the district court on remand to be the first to determine whether
to consider the additional evidence.
       3.     Harmless Error
       The government further contends that any error is harmless. 46 To show
that an error in calculating the applicable Guidelines range is harmless, the
government must “convincingly demonstrate[] both (1) that the district court
would have imposed the same sentence had it not made the error, and (2) that
it would have done so for the same reasons it gave at the prior sentencing.” 47
In other words, “the government ‘must show that the [sentence] the district
court imposed was not influenced in any way by the erroneous Guideline
calculation.’” 48
       Before imposing sentence, the district court expressed several concerns:
       [A]s I was reading through this report, one of the things that struck
       me is that I didn’t see a connection that you had down here in the
       Valley, and I don’t know how you wound up down here. And it is
       not clear from the report . . . what else you were . . . doing down
       here, but it did trouble me that you come down here and you
       purposely engage in this activity. . . . [S]omebody who comes
       here . . . [,] to almost immediately engage in this criminal conduct,
       I very frankly wonder whether maybe part of the consideration for
       coming down here is knowing the kind of opportunities that are
       present.
That court also indicated that it was troubled by Soza’s specific offense conduct:
       [Y]ou seem to be [the] person sort of behind all of this [criminal
       conduct], and . . . the charge is that you obliterate serial
       numbers . . . to ensure that these guns are not traced back to you.


       45 Id.
       46 See United States v. Ibarra-Luna, 628 F.3d 712, 713–14 (5th Cir. 2010) (holding that
“a sentence may be upheld if an error in the calculation is shown to be harmless”).
       47 Id. at 714.
       48 United States v. Hernandez-Montes, 831 F.3d 284, 295 (5th Cir. 2016) (alteration in

original) (quoting United States v. Ramos, 739 F.3d 250, 253 (5th Cir. 2014)).
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                                       No. 16-41689
         And maybe you don’t have a full understanding of the many
         problems that we have here and immediately south of the border
         because of this type of criminal activity, but you must have had
         some understanding because of the fact that you are purposely
         obliterating the serial numbers to ensure that [the firearms] don’t
         come back to you, and that is of concern to the Court[.]
The court then reiterated that Soza “purposely engaged . . . in very serious
criminal activity that can cause a lot of harm to our community here, as well
as to our community on the southern part of the border.” The court noted that
Soza’s Guidelines range was “way above” the 60-month statutory maximum
and that the statutory maximum “very frankly . . . trouble[d] [the court]
because of all that we have here.” It then sentenced Soza to the maximum 60
months imprisonment.
         The parties agree that, if he were not a fugitive from justice, making the
district court’s application of U.S.S.G. § 2K2.1(a)(4)(B) error, Soza’s revised
offense level would be 23. Because his criminal history category was correct,
then, as explained below, his Guidelines range would be 57 to 71 months,
significantly less than the 108- to 135-month range for an offense level of 29. 49
         The district court did not state that it would impose the same sentence
if its application of § 2K2.1(a)(4)(B) were erroneous. 50 And, although it is true
that “[t]he court’s imposition of the maximum allowable sentence . . . favors
finding any error was harmless,” 51 it is not clear, given the significant disparity


         49   U.S. SENTENCING GUIDELINES MANUAL ch. 5, pt. A (U.S. SENTENCING COMM’N
2016).
         50Although not necessary, such a statement would make it “abundantly clear that
[the court] would have imposed this sentence, regardless of whether it improperly calculated
the appropriate Guidelines range.” United States v. Sanchez, 850 F.3d 767, 769–70 (5th Cir.
2017) (per curiam) (“In imposing a 135-month sentence, the district court stated ‘to the extent
that I erred in the application of the enhancement of plus six, the sentence would still be the
same.’ This court has held that similar statements during sentencing provide sufficient basis
to conclude that any potential error resulting from an improperly calculated Guidelines range
is harmless.” (citation omitted)).
        51 United States v. Groce, 784 F.3d 291, 297 (5th Cir. 2015).

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                                      No. 16-41689
between the two ranges, that “the district court would have imposed the same
sentence had it not made the error.” 52 The fact that the maximum sentence
would be within—as opposed to far below—the correct Guidelines range may
or may not have affected the sentencing judge’s decision. The record does not
clearly demonstrate that Soza’s sentence “was not influenced in any way by
the erroneous Guideline calculation.” 53 We therefore vacate the sentence
imposed and remand for resentencing so that the district court may determine,
in the first instance, whether the supplemental evidence should be considered
and, if so, whether such evidence is sufficient to establish the requisite intent.
B.     Soza’s Criminal History Points
       Soza also contends that, “[b]ecause the probation violator’s warrant is
insufficient for the government to meet its burden for the USSG
§ 2K2.1(a)(4)(B) enhancement, it was necessarily likewise insufficient evidence
for the district court to calculate Mr. Soza’s criminal history score.” We are
convinced that the district court’s criminal history calculation was not
erroneous.
       1.     Standard of Review
       To repeat, we review the district court’s interpretation and application
of the Sentencing Guidelines de novo and its factual findings, including those
related to the defendant’s criminal history, for clear error. 54 “Failure to object
to either the PSR or the district court’s sentence,” however, “results in review
for plain error.” 55 “Plain error exists if (1) there is an error, (2) the error is




       52 Ibarra-Luna, 628 F.3d at 714.
       53 Hernandez-Montes, 831 F.3d at 295 (quoting Ramos, 739 F.3d at 253).
       54 Olarte-Rojas, 820 F.3d at 801; see United States v. Pesina-Arano, 650 F. App’x 185,

187 (5th Cir. 2016) (per curiam).
       55 Ocana, 204 F.3d at 588.

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                                         No. 16-41689
plain, . . . (3) the error affect[s] substantial rights and (4) the error seriously
affect[s] the fairness, integrity or public reputation of judicial proceedings.” 56
       The parties again dispute whether Soza preserved this challenge. Soza
contends that the district court should have assigned only three criminal
history points rather than six, thereby placing him in criminal history category
II. He argues that the record was insufficient to support the (1) one point
assessed in Paragraph 52 of the PSR under U.S.S.G. § 4A1.1(c) for Soza’s 2012
DWI conviction, and (2) two points assessed in Paragraph 54 of the PSR under
§ 4A1.1(d) because he “committed the instant offense while on a term of
probation.”
       Soza did not raise this objection before the district court. 57 In his written
objections to the PSR, he “ask[ed] the Court to consider that his criminal
history is less serious than others in his same criminal history category”
because “[h]e has only misdemeanor convictions in his criminal history.” At the
sentencing hearing, Soza’s attorney reiterated this request: “We’re asking the
Court to find that his criminal history might be over-represented.” At no point
did Soza or his counsel object to Paragraphs 52 or 54 in the PSR or challenge
Soza’s criminal history category or the sufficiency of the evidence to support
the criminal history reflected in the PSR. 58 We therefore review this challenge
by Soza for plain error. 59




       56   Gordon, 838 F.3d at 604 (alterations in original) (quoting Garcia-Carrillo, 749 F.3d
at 378).
       57 See Dallas Gas Partners, 733 F.3d at 157; Kelly, 77 F.3d at 823.
       58 For each objection Soza did make to the PSR, he pointed to the specific paragraph
to which he was objecting. By contrast, the heading preceding his request that the court
consider that his criminal history “might be over-represented” refers to the section of the PSR
regarding “factors that may warrant departure.”
       59 See United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005); Garcia-Perez, 779

F.3d at 281 (5th Cir. 2015).
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                                        No. 16-41689
       2.     Sufficiency of the Evidence
       “The presentence report is considered reliable evidence for sentencing
purposes” 60:
       In making its factual findings for sentencing, a district court may
       adopt the findings of the PSR without additional inquiry if those
       facts have an evidentiary basis with sufficient indicia of reliability
       and the defendant does not present rebuttal evidence or otherwise
       demonstrate that the information is materially unreliable. The
       defendant has the burden of showing that the information relied
       on by the district court in the PSR is materially unreliable. 61
“Mere objections do not suffice as competent rebuttal evidence.” 62 “At
sentencing, a district court may not consider a bare arrest record contained in
a PSR. However, in the absence of any indication that the information is not
reliable, the court can consider specific information provided in the PSR.” 63
       Soza has failed to present any rebuttal evidence, to either the district
court or this court, to demonstrate that the description of his 2012 conviction
or the fact that he was on probation is materially untrue, inaccurate, or
unreliable. 64 The district court was therefore free to adopt the factual findings
in those paragraphs of the PSR without further explanation. 65 We therefore
affirm the district court’s calculation of Soza’s criminal history points.



       60  United States v. Reasor, 541 F.3d 366, 369 (5th Cir. 2008) (quoting United States v.
Clark, 139 F.3d 485, 490 (5th Cir. 1998)).
        61 United States v. Ford, 558 F.3d 371, 377 (5th Cir. 2009) (internal quotation marks

and citations omitted).
        62 Olivares, 833 F.3d at 452 (quoting United States v. Solis, 299 F.3d 420, 455 (5th Cir.

2002)).
        63 United States v. Turcios-Rivera, 583 F. App’x 375, 376 (5th Cir. 2014) (per curiam)

(citing United States v. Harris, 702 F.3d 226, 229–31 & n.1 (5th Cir. 2012)).
        64 Olivares, 833 F.3d at 452 (“[A]s a general rule, information in the pre-sentence

report is presumed reliable and may be adopted by the district court without further inquiry
if the defendant fails to demonstrate by competent rebuttal evidence that the information is
materially untrue, inaccurate, or unreliable[.]” (quoting United States v. Carbajal, 290 F.3d
277, 287 (5th Cir. 2002))).
        65 Reasor, 541 F.3d at 369 (“If no relevant affidavits or other evidence is submitted to

rebut the information contained in the PSR, the court is free to adopt its findings without
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                                      No. 16-41689
                                    III. CONCLUSION
       For the reasons stated above, the district court’s calculation of Soza’s
criminal history points is affirmed, but Soza’s sentence is vacated and the case
remanded for resentencing in accordance with this opinion.




further inquiry or explanation.” (quoting United States v. Jefferson, 258 F.3d 405, 413 (5th
Cir. 2001))).
                                            19
