     Case: 19-11244      Document: 00515530087         Page: 1    Date Filed: 08/17/2020




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

                                                                               FILED
                                    No. 19-11244                         August 17, 2020
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

KENNETH SAULS, also known as Smurf,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:17-CR-129-3


Before DAVIS, STEWART, and HO, Circuit Judges.
PER CURIAM: *
       Kenneth Sauls appeals his sentence of 70 months in prison on a charge
of conspiracy to interfere with commerce by robbery, 18 U.S.C. § 1951(a),
following the vacatur of his conviction for using, carrying, or brandishing a
firearm in connection with a crime of violence, 18 U.S.C. §§ 924(c)(1)(A)(ii)
and 2.     According to Sauls, the district court erred by holding a full
resentencing on the remaining conviction after vacating the § 924(c) conviction


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 19-11244     Document: 00515530087    Page: 2   Date Filed: 08/17/2020


                                 No. 19-11244

rather than simply amending the judgment to excise the vacated conviction
because, under United States v. Clark, 816 F.3d 350, 360 (5th Cir. 2016), the
sentences on the two counts of conviction were independent.
      The Government has filed a motion for summary affirmance or, in the
alternative, an extension of time in which to file a brief. According to the
Government, this court’s decisions in United States v. Reece, 938 F.3d 630, 636
(5th Cir. 2019), as revised (Sept. 30, 2019), and United States v. Rodriguez, 114
F.3d 46, 47-48 (5th Cir. 1997), foreclose Sauls’s challenge because each holds
that, where the vacated conviction has sentencing implications for the
remaining convictions, a full resentencing is appropriate.      Because Sauls,
relying on Clark, does not concede that his issue is foreclosed, we deny the
Government’s motion for summary affirmance. See Groendyke Transp., Inc. v.
Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). However, because Sauls is not
entitled to the relief he seeks, as discussed below, we dispense with further
briefing and affirm.
      In Rodriguez, as in the instant matter, the imposition of a sentence for a
firearm offense in conjunction with a sentence for an underlying offense
originally prevented consideration of the § 924(c) firearm conduct in
calculating the sentence for the underlying offense. See Rodriguez, 114 F.3d
at 47 & n.5; U.S.S.G. § 2K2.4, comment. (n.4). Therefore, the district court did
not err in resentencing Rodriguez after the elimination of the limitation on
using the § 924(c) conduct to compute the guidelines range for the underlying
offense. Rodriguez, 114 F.3d at 47-48. Similarly, this court in Reece, citing
Clark, concluded that the sentences in that case were interrelated and so
required resentencing where the reversal of three of Reece’s § 924(c)
convictions eliminated the basis for the enhancement of the sentence for the
remaining § 924(c) conviction. See 938 F.3d at 632-36.



                                       2
    Case: 19-11244    Document: 00515530087     Page: 3   Date Filed: 08/17/2020


                                 No. 19-11244

      In Clark, by contrast, our reversal of the § 924(c) conviction did not
implicate Clark’s other sentences because Clark faced statutorily mandated
life sentences on two of the remaining drug convictions, and the district court
had imposed concurrent sentences on all of Clark’s remaining non-§ 924(c)
convictions. 816 F.3d at 360. Moreover, in Clark, we reversed the § 924(c)
conviction but specifically and independently affirmed the remaining
convictions and sentences. Id.
      In the instant matter, the sentencing implication for the remaining
conviction after eliminating the § 924(c) conviction indicates that the sentences
are interrelated as in Reece and Rodriguez and unlike in Clark. Because of the
aggregated sentences here, the district court set this matter for resentencing
at the same time that the court vacated the § 924(c) conviction and sentence.
Sauls fails to show that the district court erred in resentencing him on the
remaining conviction of conspiracy to interfere with commerce by robbery. See
Reece, 938 F.3d at 636; Clark, 816 F.3d at 360; Rodriguez, 114 F.3d at 47-48.
      The judgment of the district court is AFFIRMED. The Government’s
opposed motion for summary affirmance is DENIED, and its alternative
unopposed motion for an extension of time to file its brief is DENIED as
unnecessary.




                                       3
