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        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                 No. 15-41303                           FILED
                                                                    May 23, 2017

UNITED STATES OF AMERICA,                                          Lyle W. Cayce
                                                                        Clerk
       Plaintiff - Appellee

v.

FRANCISCO JAVIER SANCHEZ-VILLARREAL,

       Defendant - Appellant




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


Before PRADO, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      Francisco Javier Sanchez-Villarreal pleaded guilty to possession with
intent to distribute cocaine. The district court sentenced Sanchez-Villarreal to
155 months’ imprisonment after refusing to apply a mitigating-role
adjustment. Sanchez-Villarreal appealed, and we vacate and remand for
resentencing.
                                        I
      On or about February 10th, 2015, a police officer stopped Sanchez-
Villarreal while driving in Texas. The officer discovered five bundles of cocaine
weighing approximately 5.95 kilograms, and an additional four plastic baggies
of cocaine in the truck. Sanchez-Villarreal stated that he had been hired by a
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                                 No. 15-41303
person he knew only as “Chaparro” to transport the cocaine. He admitted that
he was paid $1,000 to deliver the cocaine to an unknown person who would be
waiting at a convenience store and that he personally intended to sell the four
baggies of cocaine. He also admitted that, less than a month earlier, he had
delivered approximately the same amount of cocaine for Chaparro. A zippered
pouch containing a handgun, a loaded magazine and second magazine clip, and
nineteen rounds of ammunition was also found concealed above the truck’s
driver’s seat visor. Sanchez-Villarreal stated that “they” had provided him with
the firearm for protection, but he did not identify “they.”
      On March 4, 2015, a federal grand jury indicted Sanchez-Villarreal for
conspiracy to possess with intent to distribute five kilograms or more of
cocaine, in violation 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A), and for
possession with intent to distribute five kilograms or more of cocaine, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) and 18 U.S.C. § 2. Pursuant to
a plea agreement, Sanchez-Villarreal pleaded guilty to the second count.
      The Probation Officer prepared the presentence report (PSR) using the
2014 edition of the Guidelines Manual, and calculated Sanchez-Villarreal’s
total offense level to be 29. That offense level combined with Sanchez-
Villarreal’s Category V criminal history yielded a Guidelines sentencing range
of 140 to 175 months.
      Sanchez-Villarreal filed written objections to the PSR. Relevant here, he
objected to the PSR’s failure to recommend a mitigating-role adjustment under
U.S.S.G. § 3B1.2. In response, the Probation Office maintained its position that
a mitigating-role adjustment was not warranted.
      At the sentencing hearing, Sanchez-Villarreal’s counsel urged the court
to grant his client a mitigating-role reduction. He argued that Sanchez was a
“standard ‘mule’” who had been ordered to transport drugs without knowing
the end location and without coordinating or initiating the drug trafficking.
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                                 No. 15-41303
      The district court judge responded that she understood the argument
and the standards for assessing the role, but she ultimately overruled the
objection and concluded that Sanchez-Villarreal’s conduct did not warrant a
mitigating-role adjustment. In doing so, the judge advised that this was one
area where she “probably had some disagreement with the guidelines as well.”
The district court explained its reasoning:
      [B]ecause while it’s true that he kind of may be not the person
      involved at the high end of the overall conspiracy, he may not be
      the person organizing everything, he may be not the person
      gaining the most financially from this, but – but he is – I’m
      hesitating to use the word “critical,” but I’ll go ahead and use the
      word “critical.” He is critical to the operation as far as moving the
      drugs, and – and also, especially here, where by his own admission
      this was the second time he’d done this – and in that regard I do
      consider that, his admission – he’s –he’s entrusted, obviously to get
      this work done. If we didn’t have individuals like Mr. Sanchez
      willing to get this work done, then the choice from the people that
      are higher up would be either to stop doing it or to do it themselves,
      and then we’d be able to at least have those defendants facing the
      penalties.

      After overruling Sanchez-Villarreal’s mitigating-role objection, the
district court announced an oral sentence of 135 months’ imprisonment.
Several hours later that day, the district court reconvened the sentencing
hearing and the judge explained that she had misspoken that morning and
meant to sentence Sanchez-Villarreal to 155 months’ imprisonment. Counsel
for Sanchez-Villarreal objected to the revised sentence, and the district court
overruled the objection. Sanchez-Villarreal timely filed a notice of appeal.
                                        II
      We must first decide whether the district court had authority to
resentence Sanchez-Villarreal under Rule 35 of the Federal Rules of Criminal
Procedure. Rule 35(a) dictates that, “[w]ithin 14 days after sentencing, the
court may correct a sentence that resulted from arithmetical, technical, or
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other clear error.” We review do novo whether the district court had
jurisdiction to resentence under Rule 35(a). United States v. Olarte-Rojas, 820
F.3d 798, 804 (5th Cir. 2016).
      The question here is whether the district court’s initial 135-month orally
pronounced sentence was the result of “clear error,” making it subject to Rule
35 correction. “The narrow authority of the sentencing court to act under Rule
35(a) extends solely to ‘cases in which an obvious error or mistake has occurred
in the sentence, that is, errors which would almost certainly result in a remand
of the case to the trial court for further action.’” Id. at 803–04 (quoting Fed. R.
Crim. P. 35, advisory committee’s note to 1991 amendment). “Rule 35(a) is not
designed for the court to reconsider the application or interpretation of the
Guidelines or to change its mind about the propriety of a sentence, and should
not be used to reopen issues previously resolved at sentencing ‘through the
exercise of the court’s discretion with regard to the application of the
sentencing [G]uidelines.’” Id. (quoting Fed. R. Crim P. 35, advisory committee’s
note to 1991 amendment).
      Here, after calculating the Guidelines range of 140–175 months,
affirming that it was “an appropriate range for sentencing” and that this was
not a case where “the low end of that 140 months is appropriate,” the district
court then immediately announced a sentence significantly below that range.
The district court gave no explanation justifying a downward variance,
contrary to the Supreme Court’s instruction in Gall v. United States, 552 U.S.
38, 46 (2007), that the district court “must give serious consideration to the
extent of any departure from the Guidelines and must explain [its] conclusion
that an unusually lenient or an unusually harsh sentence is appropriate in a
particular case with sufficient justifications.” Indeed, the district court’s
comments all appear aimed at justifying a high-end Guidelines sentence.
Further, there is nothing in the record suggesting that—between its initial oral
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                                       No. 15-41303
pronouncement of 135 months and its revised sentence of 155 months—the
district court “reexamine[d] whether a guideline should be applied,
reevaluate[d] the application of a guideline that was subject to interpretation,
reconsider[ed] calculations made under the appropriate guidelines range,
[sought] to alter the sentence because of a disagreement with a guideline, or
reconsider[d] whether the sentence was a proper exercise of its discretion.”
Olarte-Rojas, 820 F.3d at 805. Rather, after quickly recalling the case, the
district judge explained that the initial sentence was “simply misspoken,” and
that she “had specifically referenced that [she] was sentencing [Sanchez-
Villarreal] within the guidelines” and “indicated that I didn’t think the low end
was sufficient.” Accordingly, because it is facially apparent from the record that
this was an “obvious error or mistake that almost certainly would result in a
remand,” see id., we hold that the district court had authority to resentence
Sanchez-Villarreal under Rule 35.
                                             III
       Sanchez-Villarreal argues that the district court erred in denying him
the mitigating-role reduction pursuant to U.S.S.G. § 3B1.2. Effective
November 1, 2015—several months after the district court sentenced Sanchez-
Villarreal—the Sentencing Commission amended the commentary to § 3B1.2.
See U.S.S.G. app. C supp., amend. 794 (Nov. 1, 2015). 1 Sanchez-Villarreal
contends on appeal that Amendment 794 is a clarifying amendment and thus
retroactively applicable to his sentence. He argues that the district court erred
in failing to apply the amendment when determining whether to grant his
request for a mitigating-role adjustment. 2


       1 The Sentencing Commission first published the proposed Amendment 794 on April
30, 2015, several months before Sanchez-Villarreal’s sentencing hearing. See United States
v. Gomez-Valle, 828 F.3d 324, 328 (5th Cir. 2016).
       2 If the district court had granted the mitigating-role adjustment, the additional two-

level reduction would have rendered a total offense level of 27. Combined with Sanchez-
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                                       No. 15-41303
                                              A
       Section 3B1.2 provides a two-level decrease to the defendant’s applicable
offense level if the defendant played a “minor” role in the criminal activity or
a four-level decrease if the defendant’s role was “minimal.” At the time of
Sanchez-Villarreal’s sentencing, the commentary to § 3B1.2 described the
mitigating-role adjustment as applying to “a defendant who plays a part in
committing the offense that makes him substantially less culpable than the
average participant.” § 3B1.2 cmt. n.3 (2014). The commentary also described
a “minimal participant” as one who is the least culpable and may lack
“knowledge or understanding of the scope and structure of the enterprise and
of the activities of others,” while the “minor participant” is one who is less
culpable than most other participants “but whose role could not be described
as minimal.” § 3B1.2, cmt. nn.4, 5. Further, the commentary noted that “[a]
defendant who is accountable under §1B1.3 (Relevant Conduct) only for the
conduct in which the defendant personally was involved and who performs a
limited function in concerted criminal activity is not precluded from
consideration for an adjustment under this guideline.” § 3B1.2, cmt. n.3. The
district court’s decision regarding whether to apply the reduction is “heavily
dependent upon the facts of the particular case.” § 3B1.2 cmt. n.3(C).
       Amendment 794, which became effective less than two months after
Sanchez-Villarreal was sentenced, revised the commentary to § 3B1.2 but not
the language of the actual Guidelines provision. See U.S.S.G. app. C supp.,
amend. 794. The amendment made several revisions, including adding a “non-
exhaustive list of factors” that the court should consider in determining




Villarreal’s criminal history category of V, this would have resulted in a Guidelines range of
120–150 months’ imprisonment.
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                                   No. 15-41303
whether to apply the adjustment. Id. Importantly for this appeal, the
Commission added the following language at the end of Note 3(C):
       The fact that a defendant performs an essential or indispensable
       role in the criminal activity is not determinative. Such a defendant
       may receive an adjustment under this guideline if he or she is
       substantially less culpable than the average participant in the
       criminal activity.

Id.
       As part of its “Reasons for the Amendment,” the Commission cited case
law demonstrating that courts had been denying mitigating-role adjustments
solely because defendants were integral or indispensable to the criminal
activity. Id. The Commission explained that such a construction of the
Guideline was inconsistent with the primary criterion of relative culpability.
Id. The Commission also explained that the amendment was intended to
address a circuit conflict regarding the meaning of “average participant” in the
Guidelines provision. The amendment “adopt[ed] the approach of the Seventh
and Ninth Circuits, revising the commentary to specify that, when determining
mitigating role, the defendant is to be compared with the other participants,
‘in the criminal activity.’” Id.
                                        B
       This court may consider amendments to the Guidelines that were “not
effective at the time of the commission of the offense or at the time of
sentencing” if they are “intended only to clarify, rather than effect substantive
changes.” United States v. Anderson, 5 F.3d 795, 802 (5th Cir. 1993). In such a
case, the amendments are “not controlling, [and this court] consider[s] [them]
as evidence of the Sentencing Commission’s intent behind” the Guideline at
issue. Id.
       At oral argument, the Government conceded that Amendment 794 is
clarifying, see also United States v. Quintero-Levya, 823 F.3d 519, 522 (9th Cir.
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2016) (noting the Government’s concession that Amendment 794 applies
retroactively), however, our court has not yet itself determined whether
Amendment 794 is clarifying. 3 Three other circuit courts—the Sixth, the
Ninth, and the Eleventh—have recently held that Amendment 794 is a
clarifying amendment and thus retroactively applicable, see Quintero-Levya,
823 F.3d at 522; United States v. Cruickshank, 837 F.3d 1182, 1194 (11th Cir.
2016); United States v. Carter, 662 F. App’x 342, 349 (6th Cir. 2016)
(unpublished), and the parties have not drawn our attention to contrary
authority. Cf. United States v. Morosco, 822 F.3d 1, 24 (1st Cir. 2016) (declining
to decide whether Amendment 794 is clarifying or substantive).
       In determining whether an amendment to the Guidelines is clarifying or
substantive, this court looks to several, non-determinative factors: (1) whether
the Commission expressly characterizes the amendment as clarifying; (2)
whether the amendment is intended to address a circuit split, which generally
indicates that the amendment is substantive, not clarifying; (3) whether the
amendment is listed in § 1B1.10(d) 4 as being retroactively applicable; and (4)
whether the amendment alters the language of the commentary rather than
the language of the Guideline itself, which may suggest that it is clarifying.
See United States v. Huff, 370 F.3d 454, 465–67 (5th Cir. 2004). Here, two
factors suggest that Amendment 794 is clarifying. First, the amendment alters
only the text of the commentary and does not change the text of the Guideline
itself. U.S.S.G. app. C supp., amend. 794; see also Huff, 370 F.3d at 466.



       3 Several recent cases have considered the question and noted that it is one of first
impression in this circuit, but none has decided the issue. See United States v. Castro, 843
F.3d 608, 610–11 (5th Cir. 2016) (finding it unnecessary to decide the retroactivity question
because, even assuming that the amendment was clarifying and applicable, the district court
did not clearly err); United States v. Gomez-Valle, 828 F.3d 324, 330–31 (5th Cir. 2016)
(assuming that Amendment 794 applied to the defendant’s pre-amendment sentence).
       4 The relevant case law references § 1B1.10(c), which was re-designated as § 1B1.10(d)

on November 1, 2014. See U.S.S.G. app. C supp, amend. 780 (Nov. 1, 2014).
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Second, although the Commission did not use the word “clarify” in the text of
the amendment, the “Reasons for Amendment” section explains that the
amended commentary was issued to better reflect the Commission’s intent and
provide “additional guidance to sentencing courts.” See U.S. Sentencing
Guidelines Manual app. C, amend. 794. (explaining that the amendment was
responsive to a Commission study indicating “that [the] mitigating[-]role
[adjustment] is applied inconsistently and more sparingly than the
Commission intended”); see also Huff, 370 F.3d at 466.
       On the other hand, the amendment is not listed in § 1B1.10(d) as being
retroactively applicable, see § 1B1.10(d), and as noted earlier, the amendment
resolves a circuit split regarding who qualifies as an “average participant.”
U.S.S.G. app. C supp., amend. 794. In Huff, however, we noted that this court
has held that a Guidelines amendment was clarifying even though it was not
designated as applying retroactively, 370 F.3d at 466; and in United States v.
Fitzhugh, this court found a Guidelines amendment to be clarifying even
though it resolved a circuit split. 954 F.2d 253, 254–55 (5th Cir. 1992). 5
       On balance, application of the Huff factors supports the conclusion that
Amendment 794 is clarifying, especially as we also take note of the unanimity
of circuit courts that have ruled on the issue and the Government’s concession
that the amendment is clarifying.
                                              C
       We review the interpretation and application of the Guidelines de novo
and the district court’s factual finding that Sanchez-Villareal was not a minor
participant for clear error. See United States v. Vazquez, 839 F.3d 409, 411–12



       5 Indeed, the court in Fitzhugh applied the amendment retroactively even though it
effectively overruled then-existing Fifth Circuit precedent. Id.; see also Quintero-Levya, 823
F.3d at 522 (finding that the amendment’s resolution of a circuit split indicates that the
amendment is clarifying); Carter, 662 F. App’x at 349 (same).
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                                       No. 15-41303
(5th Cir. 2016); Gomez-Valle, 828 F.3d at 327. “A factual finding is not clearly
erroneous if it is plausible in light of the record read as a whole.” United States
v. Villanueva, 408 F.3d 193, 203 (5th Cir. 2005). The defendant has the burden
to show that he is entitled to the adjustment. See United States v. Angeles-
Mendoza, 407 F.3d 742, 753 (5th Cir. 2005). However, “[i]f the district court
made a legal error that affected its factual findings, ‘remand is the proper
course unless the record permits only one resolution of the factual issue.’”
Vazquez, 839 F.3d at 411 (quoting Bail v. LeBlanc, 792 F.3d 584, 596 (5th Cir.
2015)). 6
       The district court erred in its interpretation and application of § 3B1.1
by giving conclusive weight to its finding that Sanchez-Villarreal’s role was
“critical.” The district court began by stating that it understood the Guidelines
“as to what they speak to about the role here,” but then noted that “this is one
area where I probably have some disagreement with the guidelines as well.” It
then proceeded to deny the mitigating-role adjustment because of the “critical”


       6  As the Government contends, Sanchez-Villarreal did not specifically argue that the
district court should apply the then-pending Amendment 794. In his written objections to the
PSR, he argued categorically instead that “his role was limited to that of a transporter” and
that “he [was] among the least culpable of those involved as he lacked knowledge of the scope
and structure of the enterprise that his unindicted co-participants possessed.” At sentencing,
defense counsel similarly contended that Sanchez-Villarreal was a “standard ‘mule,’” who
was simply obeying orders and transporting drugs with no knowledge of the “end location.”
Adopting our reasoning in United States v. Torres-Perez, 777 F.3d 764 (5th Cir. 2015), we
conclude that Sanchez-Villarreal preserved his objection. He “raise[d] a claim of error with
the district court in such a manner so that the district court may [have] correct[ed] itself.”
See id. at 767 (alterations in original) (quoting United States v. Mondragon-Santiago, 564
F.3d 357, 361 (5th Cir. 2009)). Indeed, not only did Sanchez-Villarreal object to the denial of
the mitigating-role adjustment, but his arguments before the district court and on appeal are
the same: namely, that his role as a mere drug courier, with limited knowledge of the scope
and structure of the drug trafficking activity, qualified him for the adjustment. Notably,
Sanchez-Villarreal did not make one argument in support of a particular Guidelines
application before the district court, and then make a different argument in support of that
application on appeal. See, e.g., United States v. St. Junius, 739 F.3d 193, 212 & n.21 (5th
Cir. 2013). Rather, Sanchez-Villarreal provided sufficient notice to the district court and to
the Government that Sanchez-Villarreal believed his role as a drug courier qualified him for
the mitigating-role adjustment under § 3B1.2.
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                                  No. 15-41303
role played by Sanchez-Villarreal, noting the characteristics of Sanchez-
Villarreal’s conduct that made his role “critical.”
      Even in light of Amendment 794’s clarifying guidance, it is proper for a
sentencing court to consider the “critical” or “essential” nature of a defendant’s
role when assessing application of § 3B1.2; however, a sentencing court may
not deny the adjustment on this ground alone. See § 3B1.2 cmt. 3(C) (“The fact
that a defendant performs an essential or indispensable role in the criminal
activity is not determinative. Such a defendant may receive an adjustment
under this guideline if he or she is substantially less culpable than the average
participant in the criminal activity.”); see also Castro, 843 F.3d at 612 (“In
short, a court does not err by taking into account a defendant’s integral role in
an offense when deciding whether she is entitled to a § 3B1.2 adjustment, as
long as her role is not the sole or determinative factor in its decision.”); Torres-
Hernandez, 843 F.3d at 209 (finding no “indication that the district court relied
solely on its view that transporting the marijuana into this country was a
critical role in the offense”). Here, the court’s explanation at sentencing for its
denial of the mitigating-role reduction strongly suggests that the court made
outcome determinative its finding that Sanchez-Villarreal’s role was “critical.”
      This error also appears to have pretermitted the district court’s
application of § 3B1.1 and the applicable commentary. The district court made
no findings regarding the “average participant” in the criminal activity to
assess whether Sanchez-Villarreal was “substantially less culpable than the
average participant.” See Castro, 843 F.3d at 612–13; Torres-Hernandez, 843
F.3d at 208–210; cf. Cruickshank, 837 F.3d at 1195 (“While it is possible that
the district court did not rely solely on drug quantity in making its minor-role
determination, the consequences for Cruickshank’s advisory sentencing range
could be significant . . . . Thus, we think the wisest course of action is to vacate
the district court’s decision and remand for resentencing.”).
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       In these circumstances, where mitigating-role facts are debatable, and
where there was an unexpected Rule 35 resentencing, we deem that “remand
is the proper course unless the record permits only one resolution of the factual
issue.” Vazquez, 839 F.3d at 411–12 (quoting Bail, 792 F.3d at 596). The
district court may well after deliberate inquiry conclude that Sanchez-
Villarreal has not carried his burden to prove that he was substantially less
culpable than the average participant, however, because more than one
outcome is permissible on these facts, we take as our “wisest course of action”
a remand. 7
                                            IV
       For the foregoing reasons, we VACATE the district court’s sentence and
REMAND for re-sentencing consistent with this opinion.




       7 The Government argues that because Sanchez-Villarreal was held accountable only
for his personal conduct, he cannot claim that his role was minor. This is contradicted by
Note 3(A) in the commentary, however. § 3B1.2 cmt. n.3(A) (“A defendant who is accountable
under §1B1.3 (Relevant Conduct) only for the conduct in which the defendant personally was
involved and who performs a limited function in concerted criminal activity is not precluded
from consideration for an adjustment under this guideline.”). The case on which the
government relies predates the 2001 amendment that added this language. See United States
v. Garcia, 242 F.3d 593, 598–99 (5th Cir. 2001) (holding that the defendant did not qualify
for a mitigating-role adjustment because “his role was not minor, but actually coextensive
with the conduct for which he was held accountable”); United States v. Hill, 563 F.3d 572,
577 (7th Cir. 2009) (noting that the Sentencing Commission added the relevant conduct
language in comment n.3(A) in 2001 to resolve a circuit split regarding whether a defendant
“sentenced solely for his own criminal conduct . . . [is] ineligible for a mitigating role
reduction”).
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