                                                                                      FILED
                                                                          United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                              Tenth Circuit

                             FOR THE TENTH CIRCUIT                            December 22, 2016
                         _________________________________
                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                            No. 15-3159
                                                    (D.C. No. 2:14-CR-20066-JAR-1)
EMANUEL GODINEZ-PEREZ,                                          (D. Kan.)

      Defendant - Appellant.
                      _________________________________

                                      ORDER
                         _________________________________

Before TYMKOVICH, Chief Judge, BRISCOE and MURPHY, Circuit Judges.
                 _________________________________

       This matter is before the court on the Petition for Panel Rehearing and Rehearing

En Banc filed by Defendant - Appellant, Emanuel Godinez-Perez.

       Pursuant to Fed. R. App. P. 40, the petition for panel rehearing is granted in part to

the extent of the modifications in the attached revised opinion. The court’s October 24,

2016 opinion is withdrawn and replaced by the attached revised opinion.

       The petition for rehearing en banc and the attached revised opinion were

transmitted to all of the judges of the court who are in regular active service. As no

member of the panel and no judge in regular active service on the court requested that the
court be polled, the petition for rehearing en banc is denied. See Fed. R. App. P. 35(f).



                                              Entered for the Court
                                              ELISABETH A. SHUMAKER, Clerk



                                              by: Chris Wolpert
                                                  Chief Deputy Clerk




                                             2
                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                December 22, 2016
                                     PUBLISH                   Elisabeth A. Shumaker
                                                                   Clerk of Court
                   UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
 v.                                                      No. 15-3159
 EMANUEL GODINEZ-PEREZ,

       Defendant - Appellant.



         APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF KANSAS
                   (D.C. No. 2:14-CR-20066-JAR-1)


Melody Brannon, Federal Public Defender, District of Kansas, Topeka, Kansas,
for Defendant-Appellant.

Carrie N. Capwell, Assistant United States Attorney, (Barry R. Grissom, United
States Attorney, with her on the brief), Kansas City, Kansas, for Plaintiff-
Appellee.


Before TYMKOVICH, Chief Judge, BRISCOE and MURPHY, Circuit Judges.


BRISCOE, Circuit Judge.


      Defendant Emanuel Godinez-Perez (Godinez) pleaded guilty to three

criminal counts arising out of his role in a conspiracy to distribute and possess

with intent to distribute more than 500 grams of methamphetamine. The district
court sentenced Godinez to a term of imprisonment of 108 months, to be followed

by a two-year term of supervised release. Godinez now appeals his sentence.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we agree with Godinez that

the district court erred in calculating his base offense level and, in turn, his

advisory Guidelines sentencing range. Specifically, the court erred in failing to

make particularized findings regarding relevant conduct attributable to Godinez.

Consequently, we remand to the district court with directions to vacate Godinez’s

sentence and resentence him.

                                           I

                                          A

      In June and July of 2014, law enforcement agents from the Kansas Bureau

of Investigation (KBI) and the United States Department of Homeland Security-

Homeland Security Investigations (HSI) used a confidential informant (CI) to

make two controlled purchases of methamphetamine from an individual named

“Manuel” in Kansas City, Kansas. Law enforcement agents ultimately determined

that “Manuel” was Godinez and they arrested him, along with Jose Menera-

Alvarez and Gilbert Cano-Bahena, both of whom were involved with Godinez in

the distribution of the methamphetamine. During the course of the investigation,

law enforcement agents seized ten different quantities of methamphetamine,

totaling approximately 1,505.26 grams. Laboratory testing revealed that these

quantities of methamphetamine ranged in purity from 96.1% to 100%. Based

                                           2
upon these purity figures, the net weight of the methamphetamine was estimated

to be 1,479.8 grams.

                                          B

      On July 25, 2014, a criminal complaint was filed charging Godinez,

Menera-Alvarez, and Cano-Bahena with conspiracy to distribute and possess with

intent to distribute 500 grams or more of methamphetamine, in violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(A)(viii), 846, and 18 U.S.C. § 2, and possession with

the intent to distribute 50 grams or more of methamphetamine, in violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(B)(viii), 846, and 18 U.S.C. § 2. The complaint also

alleged two separate counts of distribution solely against Godinez. On August 6,

2014, a federal grand jury returned an indictment setting forth the same four

charges.

      On January 22, 2015, Godinez appeared before the district court and

entered a plea of guilty, without benefit of a plea agreement, to the charges

against him. The district court directed the probation office to prepare a

presentence investigation report (PSR).

      On April 27, 2015, the probation office submitted the PSR to the district

court and the parties. The PSR concluded that Godinez’s “offense involv[ed] at

least 1.5 kilograms but less than 4.5 kilograms of ‘Ice’” (high-grade

methamphetamine), and thus assigned Godinez a base offense level of 36,

pursuant to U.S.S.G. § 2D1.1. ROA, Vol. 3 at 13. The PSR in turn applied a

                                          3
two-level reduction pursuant to the safety-valve provision of U.S.S.G. §

2D1.1(b)(17), as well as two-level and one-level reductions pursuant to U.S.S.G.

§ 3E1.1(a) and (b), all of which resulted in a total offense level of 31. That total

offense level, combined with the calculated criminal history category of I,

resulted in an advisory Guidelines sentencing range of 108 to 135 months.

Neither party filed objections to the PSR.

      Godinez did, however, file a sentencing memorandum asking the district

court “to sentence him to less than 60 months in the Bureau of Prisons.” Id., Vol.

1 at 36. In support of his request, Godinez argued that he was “clearly the

LEAST culpable of the three” defendants in the case because the other two were

suppliers and Godinez “only had direct or indirect control over 601.57 of the

1505.39 grams of methamphetamine that comprise[d] his drug quantity

calculation.” Id. at 36, 38. More specifically, Godinez argued that “601.57 grams

[we]re a result of actual sales by” him, and that “887.25 grams [we]re a result of

the execution of a search warrant on a storage unit that did not belong to [him],”

and was not “under his control.” Id. at 37.

      Godinez also argued in his sentencing memorandum that “[t]here [we]re

more general reasons to consider a variance for [him].” Id. To begin with, he

argued that “the methamphetamine guideline lacks empirical support,” id., and

“penalize[s] methamphetamine much, much more severely than any other drug,”

id. at 41. Second, Godinez argued that “the unique focus on methamphetamine

                                          4
purity in [§] 2D1.1 further undermines the goals of [18 U.S.C. §] 3553(a).” Id. at

42. “For example,” he argued, his “base offense level would have been 32 instead

of 36 had the drug quantity been calculated as a mixture.” Id. And, he argued,

that would have “result[ed] in a sentence range of 70-87 months absent the

differential calculation for drug purity.” Id. Lastly, Godinez argued that his case

was treated differently than other criminal prosecutions in the District of Kansas

because the probation office in his case calculated the amount at issue “as ‘Ice’”

even though the “actual amount [wa]s available.” Id. at 45.

      On June 29, 2015, Godinez appeared before the district court for

sentencing. The district court, again without objections from either party,

adopted the PSR’s sentencing calculations. Defense counsel asked the district

court to vary downward from the advisory Guidelines sentencing range and

impose a term of imprisonment of no greater than 60 months. The district court

denied Godinez’s request and sentenced him to 108 months’ imprisonment, to be

followed by a two-year term of supervised release.

      Judgment was entered in the case that same day. Godinez filed a timely

notice of appeal and challenges only his sentence.

                                         II

                 Determination of relevant conduct - drug quantity

      In his first issue, Godinez complains that “the district court made no

particularized findings on the record about the relevant conduct attributable to

                                          5
[him] individually, but instead held him responsible for the entirety” of the

methamphetamine that was seized by law enforcement officials. Aplt. Br. at 8.

Because Godinez did not raise this specific argument in the district court, our

review is limited to plain error under Federal Rule of Criminal Procedure 52(b). 1

Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016). We “ha[ve]

discretion to remedy a forfeited error provided certain conditions are met.” Id.

The defendant must establish (1) the existence of “an error that has not been

intentionally relinquished or abandoned,” (2) “the error [is] plain—that is to say,

clear or obvious,” and (3) “the error . . . ha[s] affected the defendant’s substantial

rights.” Id. “Once these three conditions have been met, the court of appeals

should exercise its discretion to correct the forfeited error if the error seriously

affects the fairness, integrity or public reputation of judicial proceedings.” Id.

(quotation marks omitted).

      Godinez argues that the district court in this case was required to “make

particularized findings about relevant conduct—here, the drug quantity and

type—attributable to the defendant, rather than just default to the overall

conspiracy.” Aplt. Br. at 10-11. Godinez further argues that “the PSR failed to


      1
        As we have noted, Godinez hinted at the issue in his sentencing
memorandum by arguing that the 887.25 grams of methamphetamine that were
seized as “a result of the execution of a search warrant on a storage unit did not
belong to [him], nor [were those narcotics] under his control.” ROA, Vol. 1 at
37. Ultimately, however, Godinez failed to object to the drug quantity
calculations set forth in the PSR and adopted by the district court.

                                           6
offer any particularized findings about individual relevant conduct,” and the

district court in turn “made no findings particular to the scope of [Godinez’s]

agreement, either as to quantity or type of methamphetamine.” Id. at 11. And, he

argues, “[t]he record does not support that [he] agreed to jointly undertake the

distribution of more than 1.5 kilograms of [I]ce.” Id.

       Section 1B1.3 of the United States Sentencing Guidelines, which addresses

relevant conduct for purposes of sentencing, states that a defendant’s base offense

level “shall be determined on the basis of . . . all acts and omissions committed,

aided, abetted, counseled, commanded, induced, procured or willfully caused by

the defendant,” as well as, “in the case of a jointly undertaken criminal activity

. . . , all acts and omissions of others that were . . . within the scope of the jointly

undertaken criminal activity, . . . in furtherance of that criminal activity, and

. . . reasonably foreseeable in connection with that criminal activity.” U.S.S.G.

§ 1B1.3(a)(1)(A) and (B). “This includes any controlled substance that was

handled by another member of the conspiracy if it was ‘(A) in furtherance of the

jointly undertaken criminal activity; and (B) reasonably foreseeable in connection

with that criminal activity.’” United States v. Figueroa-Labrada, 720 F.3d 1258,

1265 (10th Cir. 2013) (quoting U.S.S.G. § 1B1.3, cmt. n.2).

       Application Note 3(B) to § 1B1.3 states that “[b]ecause a count may be

worded broadly and include the conduct of many participants over a period of

time, the scope of the ‘jointly undertaken criminal activity’ is not necessarily the

                                            7
same as the scope of the entire conspiracy, and hence relevant conduct is not

necessarily the same for every participant.” U.S.S.G. § 1B1.3, cmt. n.3(B).

Application Note 3(B) further states that “[i]n order to determine the defendant’s

accountability for the conduct of others under subsection (a)(1)(B), the [district]

court must first determine the scope of the criminal activity the particular

defendant agreed to jointly undertake (i.e., the scope of the specific conduct and

objectives embraced by the defendant’s agreement).” Id. Consistent with this

Application Note, we have held that “[a] sentencing court must make

particularized findings to support the attribution of a coconspirator’s actions to

the defendant as relevant conduct, whether or not the defendant asks it to do so or

disputes the attribution.” Figueroa-Labrada, 720 F.3d at 1264. In other words,

even if the defendant does not lodge any objections to the PSR, the district court

must still make these particularized findings. Id.

      In this case, the district court adopted the factual findings contained in the

PSR and otherwise made no independent factual findings of its own at the time of

sentencing. Unfortunately, however, the factual findings contained in the PSR

and adopted by the district court did not address the scope of the criminal activity

that Godinez agreed to jointly undertake. Nor did the PSR’s factual findings

otherwise include information specifically linking Godinez to all of the quantities




                                          8
of methamphetamine that were seized during the investigation. 2 Consequently,

we conclude, and government counsel essentially agreed at oral argument, that the

district court erred in failing to make such findings, and that its error was plain in

light of existing Tenth Circuit precedent.

      The question then becomes whether the district court’s error affected

Godinez’s substantial rights. To address this question, we begin by reviewing the

allegations set forth in the charges that are encompassed by Godinez’s guilty plea.

Count 1 of the indictment in this case alleged that “[b]eginning on or about June

16, 2014, and continuing until July 16, 2014,” Godinez and his two codefendants

“knowingly and intentionally combined, conspired, and agreed . . . to distribute

and possess with intent to distribute more than 500 grams of a mixture and

substance containing a detectable amount of methamphetamine.” ROA, Vol. 1 at

24. Count 2 of the indictment alleged that “[o]n or about June 17, 2014,”

Godinez “knowingly and intentionally distributed 50 grams or more of a mixture

and substance containing a detectable amount of methamphetamine.” Id. at 25.

Count 3 of the indictment alleged that “[o]n or about July 9, 2014,” Godinez

“knowingly and intentionally distributed 50 grams or more of a mixture and


      2
        In its appellate response brief, the government notes that the PSR contains
the statement that “the defendant is accountable for 1.505 kilograms of ‘Ice.’”
Aplee. Br. at 6 (quoting ROA, Vol. 3 at 12 (PSR at ¶ 31)). But this was not an
independent, particularized finding. At no point does the PSR differentiate
between the drugs attributable to the conspiracy as a whole and those attributable
to Godinez individually.

                                          9
substance containing a detectable amount of methamphetamine.” Id. Lastly,

Count 4 alleged that “[o]n or about July 16, 2014,” Godinez and his two

codefendants, “aiding and abetting each other, knowingly and intentionally

possessed with intent to distribute 50 grams or more of a mixture and substance

containing a detectable amount of methamphetamine.” Id.

         In his petition to enter a plea of guilty, Godinez admitted all of these

allegations. By doing so, Godinez admitted to distributing or possessing with

intent to distribute 650 grams or more of methamphetamine. That amount greatly

exceeds the specific amounts that he personally distributed to the CI on June 17

and July 9, 2014 (those two transactions totaled 172.2 grams). Thus, Godinez

effectively admitted that additional amounts of methamphetamine in his

possession or the possession of his codefendants, totaling approximately 478

grams or more, were attributable to him. But it does not account for all of the

methamphetamine that was attributed to him by the PSR and, in turn, the district

court.

         At the plea hearing, the district court asked government counsel to recite

the factual basis for the plea. In response, government counsel discussed the

specific seizures of methamphetamine that occurred during the course of the

investigation of Godinez and his codefendants. These seizures, which were

subsequently listed in the PSR’s factual findings, included the following:




                                            10
       Date/Occurrence        Weight of Meth Mixture Weight of Actual Meth
       6/17/14 Controlled Buy Bag 1 - 27.79 grams    27.3 grams
                              Bag 2 - 28.12 grams    27.9 grams

       7/9/14 Controlled Buy    Bag 1 - 54.85 grams      52.8 grams
                                Bag 2 - 54.67 grams      52.9 grams

       7/9/14 Storage Unit      Crystals - 9.32 grams    9.3 grams
       Search                   Bag 1 - 321.57 grams     318.2 grams
                                Bag 2 - 375.47 grams     374.8 grams
                                Bag 3 - 180.9 grams      180.8 grams

       7/16/14 Search of        436 grams                419.3 grams
       Vehicle

       7/16/14 Search of        16.57 grams              16.5 grams
       Apartment

       TOTALS                   1,505.26 grams           1,479.8 grams

Id., Vol. 3 at 12.

       A portion of this methamphetamine was unquestionably attributable to

Godinez. To begin with, the methamphetamine that was seized following the two

controlled buys was attributable to Godinez because it is undisputed that he was

the one who directly sold the methamphetamine to the CI. Similarly, the 436

grams of methamphetamine that were seized from a vehicle on July 16, 2014,

were attributable to Godinez because they were the result of a one-pound

methamphetamine transaction that he had verbally negotiated with the CI that day

but had not yet consummated, and because the vehicle from which the

methamphetamine was seized was owned by Godinez. To be sure, codefendant

Cano-Bahena was actually driving the vehicle at the time the methamphetamine

                                        11
was seized. But the record indicates that Cano-Bahena was acting as Godinez’s

supplier for that transaction. Lastly, the 16.57 grams of methamphetamine that

were seized from Cano-Bahena’s apartment later that same day also are

reasonably attributable to the conspiracy outlined in the indictment. More

specifically, the district court could have reasonably found that Cano-Bahena, in

connection with the conspiracy, directly possessed this methamphetamine with the

intent to distribute it. The district court also could have reasonably found that

Godinez, in turn, constructively possessed the same methamphetamine for the

same purpose. Together, these amounts total 618 grams of methamphetamine

mixture or 596.7 grams of actual methamphetamine.

      The more difficult question concerns the 887.26 grams of

methamphetamine mixture that were seized from the storage unit on July 9, 2014.

The events that led to the search of the storage unit and the seizure of the

methamphetamine are described as follows in the PSR:

      13.    On July 9, 2014, agents utilized the CI to make a controlled
             purchase of four ounces of methamphetamine for $3,600 from
             Godinez-Perez in Kansas City, Kansas. The CI contacted
             Godinez-Perez by calling cellular phone number (816) 719-
             XXXX. During the call, Godinez-Perez told the CI that he was
             still at work and would not be able to meet with [the CI] until
             around 6:30 p.m.

      14.    Agents were conducting surveillance at XXX Central Avenue,
             Kansas City, Kansas, when they observed three Hispanic males
             leaving the apartments and driving away in a Chevrolet
             Trailblazer bearing Kansas license plate 201 XXX [and
             registered to Godinez]. Agents with HSI and KBI followed the

                                          12
      Trailblazer to a gas station in Gardner, Kansas. The Hispanic
      males exited the Trailblazer and were observed making phone
      calls on their cellular phones. A few minutes later the
      Hispanic males were observed driving away from the gas
      station and were followed to the Price Chopper in Gardner,
      Kansas and seen parking in the parking lot. A short time later,
      a black Jeep Patriot bearing Kansas license plate 826 XXX was
      observed slowly driving past the Trailblazer. The Trailblazer
      was seen backing out of the parking stall and following the
      Jeep Patriot to an apartment complex on East Lincoln Street in
      Gardner, Kansas. Four Hispanic males were observed standing
      near the vehicles[,] which were parked in front of one of the
      apartments.

15.   Agents checked the registration of the Jeep Patriot Kansas[,]
      license plate 826 XXX[,] and found it was for a 2014 Jeep
      Patriot registered to Sandra Patricia XXXXXXX of Gardner,
      Kansas.

16.   A few minutes later, agents observed the Chevrolet Trailblazer
      and Jeep Patriot leaving the apartment complex and driving to
      the Central Self Storage facility located at 1702 Kansas City
      Road in Olathe, Kansas. Agents observed the Hispanic males
      entering Unit 17[D]. After being at the storage unit for several
      minutes, both vehicles were observed leaving the facility.

17.   Agents followed the Chevrolet Trailblazer back to Central
      Avenue in Kansas City, Kansas[;] the Jeep Patriot was
      observed heading back towards Gardner, Kansas[,] and
      surveillance was discontinued.

18.   The CI received a phone call from Godinez-Perez indicating
      that he was ready to meet at the same location as before. The
      CI met with Godinez-Perez in a seafood restaurant parking lot
      located near 12th and Central Avenue, Kansas City, Kansas.
      The CI purchased four ounces of methamphetamine from
      Godinez-Perez for $3,600. During the meeting Godinez-Perez
      quoted the CI prices for pound and kilogram quantities of
      methamphetamine. A field test . . . showed a presumptive
      positive result for the presence of methamphetamine, weighing
      56.9 and 57 grams per bag.

                                  13
      19.    Agents contacted the Olathe Police Department, which agreed
             to use a K-9 drug detection unit to conduct an open air sniff on
             the Central Self Storage Units, 1702 Kansas City Road, Olathe,
             Kansas. The certified K-9 alerted only on storage unit 17D
             after sniffing several other units in the facility.

      20.    A search warrant was obtained for Central Self Storage Unit
             17D from Johnson County, Kansas District Court. During the
             search of storage unit 17D, agents seized plastic bags
             containing 762.03 and 217.72 grams of methamphetamine.
             They also seized 517.09 grams of marijuana, digital scales and
             packaging material.

Id., Vol. 3 at 9-10. The PSR contains no other mention of the storage unit. Thus,

although the information contained in the PSR would have allowed the district

court to reasonably infer that the 109.52 grams of methamphetamine distributed

by Godinez to the CI on July 9, 2014, originated from the storage unit, it was

insufficient to allow the district court to determine who directly or constructively

possessed the 887.26 grams of methamphetamine that were seized later that day

by law enforcement officers during the search of the storage unit.

      In an attempt to connect Godinez with the 887.26 grams of

methamphetamine seized from the storage unit, the government notes that it was

Godinez and Cano-Bahena who traveled from Kansas City, Kansas, to the storage

unit on July 9, 2014, and obtained the 113.9 grams of methamphetamine that

Godinez distributed to the CI later that day. Although the government is correct




                                         14
on this point, 3 the government fails to acknowledge a key fact that is set forth in

the PSR. Godinez and Cano-Bahena did not drive directly from the apartment to

the storage unit, but instead made three intervening stops: at a gas station where

they made a series of telephone calls, then at a grocery store where they were met

by a Jeep Patriot, and finally at an apartment complex where they met with an

unidentified Hispanic male who apparently had been driving the Jeep Patriot.

Only after making those three stops did Godinez and Cano-Bahena drive to the

storage unit, accompanied again by the unidentified Hispanic male driving the

Jeep Patriot. All of which suggests that the storage unit may not have been

owned, rented, or otherwise controlled by Godinez or a coconspirator, whether or

not indicted. 4 In other words, the limited evidence contained in the record on

appeal is not so one-sided that the district court would have had no choice but to

attribute to Godinez, as part of the conspiracy to which he pled guilty, the 887.26

grams of methamphetamine that were stored in and seized from the storage unit.

      Consequently, the record, which lacks particularized findings by the district

court, does not reasonably foreclose the possibility that the 887.26 grams of


      3
        As noted, the PSR states only that “three Hispanic males” traveled in
Godinez’s vehicle from Kansas City, Kansas, to the storage unit, and does not
otherwise identify those individuals. Id. In his sentencing memorandum,
however, Godinez essentially conceded that he and Cano-Bahena were two of
those individuals.
      4
       Both in its brief and at oral argument, the government failed to identify
the owner of the storage unit.

                                         15
methamphetamine that were stored in and seized from the storage unit were not

“within the scope of the criminal activity that [Godinez] jointly undertook,” and

thus were not attributable to him. Figueroa-Labrada, 720 F.3d at 1265.

      We in turn conclude that Godinez’s substantial rights were impacted by the

district court’s error. The PSR assigned Godinez a base offense level of 36,

noting that U.S.S.G. § 2D1.1 “provides that an offense involving at least 1.5

kilograms but less than 4.5 kilograms of ‘Ice’ has a base offense level of 36.” Id.,

Vol. 3 at 13. Had the PSR omitted from its relevant conduct determination the

methamphetamine that was seized from the storage unit, Godinez’s base offense

level would have been reduced to 34 (the same base offense level that would have

applied had the PSR relied solely on Godinez’s admissions when he pleaded

guilty). That in turn would have resulted in a total offense level of 29, and an

advisory Guidelines sentencing range of 87 to 108 months, far different than the

108–to–135–month advisory Guidelines range calculated by the district court.

Thus, in sum, it is apparent that the district court’s error resulted in an

“erroneous, and higher, Guidelines range [that] set the wrong framework for the

sentencing proceedings.” Molina-Martinez, 136 S. Ct. at 1345. Consistent with

the Supreme Court’s holding in Molina-Martinez, we conclude that this is

sufficient to establish “a reasonable probability of a different outcome absent the

error.” Id.; see id. at 1346 (“In most cases a defendant who has shown that the

district court mistakenly deemed applicable an incorrect, higher Guidelines range

                                           16
has demonstrated a reasonable probability of a different outcome.”). In other

words, nothing in the record in this case indicates that the district court “based

the sentence [it] selected on factors independent of the Guidelines,” and “the

record is [also] silent as to what the district court might have done had it

considered the correct Guidelines range.” Id. at 1347.

      We are left only with the question of whether the district court’s error

seriously affects the fairness, integrity or public reputation of judicial

proceedings. We have adopted a presumption that this question must be answered

in the affirmative whenever a defendant has established that an unobjected-to

sentencing error affects his substantial rights. See United States v. Sabillon-

Umana, 772 F.3d 1328, 1333 (10th Cir. 2014) (“[A]n obvious misapplication of

the sentencing guidelines will usually satisfy the third and fourth elements of the

plain error test.”). Because Godinez has established that the district court’s error

in this case affected his substantial rights, the presumption thus applies.

Although we have also held that this presumption can be overcome in certain

instances, we conclude that “[t]his case . . . falls within the heartland of the

presumption, not any exception.” Id. at 1334. The sentence imposed by the

district court—108 months—was at the very bottom of the incorrectly-calculated

advisory Guidelines range, and nothing in the record indicates that the district

court selected this sentence independently from the advisory Guidelines range.

Further, as we have explained, the bottom of the correctly-calculated advisory

                                           17
Guidelines range would have been 21 months lower than the sentence that was

imposed by the district court. Thus, a very real possibility exists that, absent the

district court’s error, it would have imposed a substantially lower sentence.

      For these reasons, we conclude that the case must be remanded to the

district court with directions to vacate Godinez’s sentence and resentence him.

Before doing so, however, we proceed in the interests of judicial economy to

review the remaining challenges posed by Godinez on appeal.

                   Determination of relevant conduct - drug type

      As part of his first issue, Godinez argues that the district court also erred in

calculating his advisory Guidelines range on the basis of Ice, rather than on the

basis of a methamphetamine mixture. In support, Godinez asserts that “he

admitted and was convicted of trafficking in a mixture or substance containing a

detectable amount of methamphetamine.” Aplt. Br. at 14. Nevertheless, he

asserts, the district court performed its sentencing calculations on the basis of Ice.

      Section 2D1.1 of the Sentencing Guidelines defines the term “Ice” as “a

mixture or substance containing d methamphetamine hydrochloride of at least

80% purity.” U.S.S.G. § 2D1.1, Notes to Drug Quantity Table, n.(C). It also

provides that “[i]f a mixture of substance contains more than one controlled

substance, the weight of the entire mixture of substance is assigned to the

controlled substance that results in the greater offense level.” Id., Notes to Drug

Quantity Table, n.(A).

                                          18
       The PSR in this case, and in turn the district court, properly recognized and

applied these principles. In outlining Godinez’s offense conduct, the PSR

included a table that listed the quantity (both “Net Weight of Methamphetamine

Mixture” and “Net Weight/Actual Methamphetamine”) and purity of each seizure

of methamphetamine that occurred during the course of the investigation.

Together, the total net weight of the methamphetamine mixture was 1,505.26

grams and the net weight/actual methamphetamine, which took into account the

purity of the various quantities seized, was 1,479.8 grams. ROA, Vol. 3 at 12.

The PSR in turn treated this total amount as Ice, explaining:

       Since the methamphetamine mixture is over 80% pure, it is
       considered “Ice” for the purposes of the guideline. USSG §2D1.1
       Note to Drug Quantity Table (C). Note to Drug Quantity Table (A)
       indicates that the weight of a controlled substance set forth in the
       table refers to the entire weight of any mixture or substance
       containing a detectable amount of the controlled substance. If a
       mixture or substance contains more than one controlled substance,
       the weight of the entire mixture or substance is assigned to the
       controlled substance that results in the greater offense level.
       Therefore, the defendant is accountable for 1.505 kilograms of “Ice.”

Id. Godinez did not object to this or any other portion of the PSR. Consequently,

the district court adopted these findings and determination as its own. Godinez

fails to establish that this was error, let alone plain error, on the part of the

district court.

    Denial of downward variance - empirical basis for drug-related Guidelines

       Godinez also argues that the district court “relied on a demonstrably wrong


                                            19
premise to deny [his] request for a below-guideline variance.” Aplt. Br. at 9. We

review for an abuse of discretion a district court’s decision not to grant a

downward variance. United States v. Franklin-El, 554 F.3d 903, 914 (10th Cir.

2009); United States v. Smart, 518 F.3d 800, 805 (10th Cir. 2008) (“[W]hether

any . . . disparity justifies a sentencing variance in a given case raises a . . .

question . . . of substantive reasonableness,” which we review for an abuse of

discretion).

       In the sentencing memorandum that he filed with the district court, Godinez

argued that the Sentencing Commission did not use an “empirical approach in

developing the Guidelines for drug-trafficking offenses,” and instead “employed

the 1986 Act’s weight-driven scheme.” ROA, Vol. 1 at 41 (quoting Kimbrough v.

United States, 552 U.S. 85, 96 (2007)). Godinez in turn argued that he was

entitled to a downward variance because “[t]he result of th[e] [Sentencing

Commission’s] approach, unmoored from empirical evidence or careful study,

[wa]s to penalize methamphetamine much, much more severely than any other

drug.” Id. At the sentencing hearing, the district court stated on the record: “I

think the [G]uidelines are the product of empirical research and ongoing empirical

study and, while not perfect, the focus on quantity and purity of drugs does speak

to a number of factors that are relevant when one considers one’s relative

culpability, vis-à-vis the culpability of defendants across the nation.” Id., Vol. 2

at 50. Godinez now argues on appeal that the district court’s statement was

                                            20
contrary to Kimbrough and constituted reversible error.

      The government argues in response that the district court’s statement was

not erroneous because this court has expressly recognized that “the Sentencing

Commission based the drug quantities and conversion rates provided in § 2D1.1

on Congressional directives and appropriate reliance on experts and practitioners

in the field.” Aplee. Br. at 34 (emphasis added) (quoting United States v. Kort,

440 F. App’x 678, 683 (10th Cir. 2011)). But “reliance on experts and

practitioners in the field” is not necessarily empirical evidence. Instead,

empirical evidence is that which is “[b]ased on, concerned with, or verifiable by

observation or experience rather than theory or pure logic.” Empirical Evidence,

Oxford Dictionaries Online (2016), http://www.oxforddictionaries.com/us/

definition/american_english/empirical. Thus, in the sentencing context, empirical

evidence would be that “derived from the review of . . . individual sentencing

decisions.” Gall v. United States, 552 U.S. 38, 46 (2007). Perhaps the “experts

and practitioners” that the Sentencing Commission sought guidance from

themselves relied on their own review of individual sentencing decisions; but that

much is not clear from our decision in Kort. Thus, contrary to the government’s

assertions, our decision in Kort does not support the district court’s statements in

this case.

      The fact of the matter is that, in large part, “the Guidelines are . . . the

product of careful study based on extensive empirical evidence derived from the

                                           21
review of thousands of individual sentencing decisions.” Id.; see U.S.S.G. ch. 1,

pt. A1, § 3 (discussing how the Sentencing Commission took an “an empirical

approach that used as a starting point data estimating pre-guidelines sentencing

practice”). But “not all of the Guidelines are tied to this empirical evidence.”

Gall, 552 U.S. at 46 n.2. “For example,” the Court noted, “the Sentencing

Commission departed from the empirical approach when setting the Guidelines

range for drug offenses, and chose instead to key the Guidelines to the statutory

mandatory minimum sentences that Congress established for such crimes.” Id.

(citing U.S.S.G. § 1A1.1 (Nov. 2006)).

      Returning to the district court’s challenged statement, it is unclear whether

its reference to “the [G]uidelines [being] the product of empirical research and

ongoing empirical study” was intended to refer to all of the Guidelines, including

§ 2D1.1 and its drug quantity table, or whether, instead, it was intended as a

general reference to most of the Guidelines. Thus, it is simply unclear whether

the district court’s statement was erroneous or not.

      Assuming, for purposes of argument, that the district court’s statement was

intended to refer to all of the Guidelines and was thus erroneous, the question

becomes whether that erroneous statement had any impact on the district court’s

decision to deny Godinez’s request for a downward variance. The district court

expressly noted at the time it made the challenged statement that it was

“rejecting” Godinez’s request for a downward variance to the extent it was based

                                         22
on Godinez’s “arguments that pertain[ed] to the [S]entencing [G]uidelines

themselves and the [G]uidelines[’] focus on the purity of the drug.” ROA, Vol. 2

at 50. The district court explained:

      [W]hile not perfect, the [Guidelines’] focus on quantity and purity of
      drugs does speak to a number of factors that are relevant when one
      considers one’s relative culpability, vis-á-vis the culpability of
      defendants across the nation. For example, the pure—the more pure
      the drug, the closer to the source. The quantity of the drug, you
      know, is a direct reflection of the size of the organization or at least
      the complexity or the opportunity that organization has to distribute
      large quantities of drugs.

      The [G]uidelines view some organization or person that is able to
      deal in large quantity– quantities of drugs, of course, having more
      significant and adverse effect on the community than one that deals
      in small amounts and only has access to small amounts. And as the
      government argued, the facts in this case illustrate that Mr. Godinez,
      as well as his co-defendants, were able to—to deal in sizable
      quantities of drugs, at least in the pound quantities, if not the
      kilogram quantities, and were willing to start, you know, two, four
      ounces of methamphetamine at a time. And the methamphetamine
      was almost pure, 98 percent. All of which, of course, suggests that
      they are players in an organization that is a significant organization
      and has access to big quantities of drugs and pure quantities of drugs
      relatively close to the ultimate source of the methamphetamine.

Id. at 50-51. Nothing about this statement is erroneous, and Godinez does not

suggest otherwise. Nor does Godinez argue that the district court abused its

discretion in concluding that the amount and purity of the methamphetamine

involved in this case was relevant for purposes of determining Godinez’s relative

role in the conspiracy at issue.




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                                         III

      The case is REMANDED to the district court with directions to VACATE

Godinez’s sentence and resentence him.




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