               Not for Publication in West's Federal Reporter

          United States Court of Appeals
                      For the First Circuit

No. 14-1224

                    UNITED STATES OF AMERICA,

                               Appellee,

                                    v.

                        SERGIO SANTA-OTERO,

                       Defendant, Appellant.



          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

         [Hon. José Antonio Fusté, U.S. District Judge]



                                 Before

                       Howard, Chief Judge,
              Torruella and Barron, Circuit Judges.



     Alejandra Bird López on brief for appellant.
     Tiffany V. Monrose, Assistant United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Rosa Emilia Rodríguez-Vélez, United Sates Attorney,
on brief for appellee.



                             July 13, 2015
             BARRON, Circuit Judge.          The defendant in this federal

gun crime case challenges his sentence on a number of grounds.               We

vacate and remand for resentencing consistent with this opinion.

                                        I.

             On August 12, 2013, Puerto Rico law enforcement officers

performed a traffic stop after noticing a driver smoking what

appeared to be marijuana.         The officers asked the driver -- later

identified as Sergio Santa-Otero, the defendant-appellant here --

whether, in addition to the marijuana, there was anything else

illegal in the car.         Santa informed the officers that he had a gun

and some ammunition inside a black fanny pack. The officers seized

a loaded Glock pistol from the fanny pack.             At some point, Santa

told the officers not to touch the gun's trigger because the gun

had a "chip" and thus could fire as an automatic weapon.                    The

officers also recovered from the car four loaded Glock pistol

magazines, two additional loaded high-capacity magazines, and more

than one hundred .40-caliber rounds of ammunition.

             Federal    authorities     charged    Santa    with   unlawfully

possessing a machine gun in violation of 18 U.S.C. §§ 922(o)(1)

and 924(a)(2), and with unlawfully possessing a firearm as a

convicted    felon     in   violation   of   18   U.S.C.   §§   922(g)(1)   and

924(a)(2).     Santa pled guilty to both counts.

             The plea agreement recommended a sentence between 33 and

41 months in prison, which was the range recommended by the


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sentencing    guidelines   assuming   that   Santa's    criminal   history

category was II.     The probation office subsequently determined,

however, that Santa's criminal history category was III, not II,

and thus that the proper guidelines range for Santa was 37 to 46

months.

             The District Court did not sentence Santa within even

that higher range.    The District Court instead imposed a sentence

of 65 months in prison.     At the sentencing hearing, the District

Court explained that, due to the seriousness of the "arsenal" Santa

possessed at the time of arrest and Santa's "prior convictions at

the state level," a "nefarious" purpose motivated Santa's unlawful

possession of the automatic weapon and ammunition.

             One of Santa's two prior convictions was for domestic

violence.     Santa apparently had "[p]unched the woman in the face

and body, [and] broke[n] her nose."      The other conviction was for

simple possession of controlled substances.            The District Court

repeatedly mischaracterized that conviction, however, as one for

possession with intent to distribute.           Santa now appeals his

sentence chiefly on the basis of that error.1




     1 Because the District Court did not sentence Santa within
the terms of the plea agreement, the government rightly
acknowledges that the agreement's waiver-of-appeal clause does not
bar the present appeal.


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                                  II.

          Santa argues that the District Court clearly erred in

finding that Santa had been convicted of possession with intent to

distribute controlled substances, when in fact he was convicted of

simple possession.    Santa is right, and even the government now

concedes the point.   The dispute, then, is over the consequences

of the District Court's error.

          The government contends the error was harmless.        To

decide whether it was, we look to see if the error "affect[ed] the

district court's selection of the sentence imposed." United States

v. Tavares, 705 F.3d 4, 26-27 (1st Cir. 2013) (quoting Williams v.

United States, 503 U.S. 193, 203 (1992)).    "If the party defending

the sentence persuades the court of appeals that the district court

would have imposed the same sentence absent the erroneous factor,

then a remand is not required . . . ."    Williams, 503 U.S. at 203.

          In contending the error did not affect the sentence, the

government argues that the error did not alter Santa's criminal

history category under the sentencing guidelines.         Under the

guidelines, the criminal history category helps to determine the

recommended sentencing range.      But the District Court did not

impose a sentence within the guidelines range.    The District Court

instead imposed a sentence that varied considerably upwards from

that guidelines range. The government's argument for why the error

was harmless is therefore insufficient.


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             Instead, the key question is whether the error affected

the extent of the variance.          As to that point, the District Court,

in explaining its rationale for the upward variance, expressly

referenced       the   supposed   drug    trafficking        offense   three    times

during     the   sentencing    hearing.         And    the   District    Court,    in

justifying       the     sentence,    both      highlighted      Santa's       "prior

convictions at the state level" and concluded that "any reasonable

person can infer [that] a person with [Santa's] history and his

criminal history, and that amount of ammunition and kind of gun

and arsenal, . . . had no good purposes or intents by having . . .

that firearm and those high capacity magazines." (Emphasis added.)

But the District Court may have viewed Santa's criminal history -

- and the plausibility of his alleged innocent intention for

possessing the firearm, ammunition, and magazines -- differently

had   it   properly      understood      that   the     defendant's     prior    drug

conviction was for mere possession and not possession with intent

to distribute.         Then again, maybe not.         Ultimately, however, while

Santa's sentence "might well have been the same regardless of" the

error, given the emphasis the court placed on it "we are not

certain enough to find harmless error."                United States v. McGhee,

651 F.3d 153, 158 (1st Cir. 2011).                     We thus cannot say the

government has met its burden of showing that the District Court's

mistaken understanding of the defendant's prior drug conviction




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had no effect on the sentence.        See Tavares, 705 F.3d at 26-27.

We therefore vacate Santa's prison sentence.2

                                 III.

           That leaves one final issue.        The District Court orally

imposed a three-year term of supervised release, but the final

written   judgment   purported   to   impose    a   five-year   supervised

release term.   Santa asks that we vacate the supervised release

portion of the sentence and remand so that the District Court may

conform the supervised release term to the term set forth in the

District Court's oral sentence. Because "an oral sentence prevails

over a written judgment if there is a material conflict between

the two," United States v. Riccio, 567 F.3d 39, 40 (1st Cir. 2009),

the government rightly concedes that the District Court erred in

imposing the five-year supervised release term set forth in the

written judgment.    We therefore vacate Santa's supervised release

term so that it may be corrected on remand.

                                  IV.

           For the reasons provided above, we vacate Santa's prison

sentence and supervised release term and remand for resentencing.




     2 Because we reach that conclusion, we need not address
Santa's separate contention that insufficient evidence supported
the District Court's conclusion that Santa necessarily had a
"nefarious" purpose in possessing the weapon and ammunition.


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