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

                                   No. 16-30773                             FILED
                                                                       August 7, 2017
                                                                       Lyle W. Cayce
UNITED STATES OF AMERICA,                                                   Clerk

             Plaintiff–Appellee,

v.

NOE JUAREZ,

             Defendant–Appellant.




                Appeal from the United States District Court
                   for the Eastern District of Louisiana


Before KING, PRADO, and SOUTHWICK, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
      Houston police officer Noe Juarez was charged and convicted of two
counts related to his participation in a drug trafficking conspiracy. On appeal,
he contends the district court erred by (1) admitting extrinsic evidence under
Federal Rule of Evidence 404(b), (2) instructing the jury on deliberate
ignorance, and (3) applying a sentencing enhancement based on Juarez’s sale
of body armor to his coconspirators. We AFFIRM Juarez’s conviction because
the district court did not abuse its discretion in admitting the 404(b) evidence
or by giving the instruction. However, because the district court misapplied the
body-armor provision of the sentencing guidelines and this error was not
harmless, we VACATE Juarez’s sentence and REMAND for resentencing.
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                                  No. 16-30773
                              I. BACKGROUND
      Noe Juarez was a twenty-year veteran of the Houston Police
Department. In April 2015, he was charged with (1) conspiring to distribute
five kilograms or more of cocaine hydrochloride in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(A), and 846, and (2) conspiring to possess firearms in
furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(o). Juarez
allegedly used his position as a police officer to assist the Grimaldo drug
organization—an arm of the Los Zetas drug cartel—in its efforts to traffic
drugs from Mexico to the United States. Twenty witnesses testified at trial
during the Government’s case-in-chief, including three members of the
Grimaldo organization: Sergio Grimaldo, one of the leaders; Aldo Perez, a
courier who delivered drugs from Houston to Houma, Louisiana; and Sabino
Duarte, another courier. The Government sought to prove that Juarez assisted
the Grimaldos’ drug trafficking business by providing its members with
firearms, body armor, police scanners, and vehicles, as well as by helping the
conspirators evade detection by law enforcement. Juarez did not testify, but
his defense was that he did not intend to join the conspiracy because he did not
know he was working with drug dealers. He argued through counsel that he
believed the Grimaldos were “legitimate businessmen.”
      The district court allowed the Government to introduce evidence of
Juarez’s involvement in two prior, uncharged conspiracies, referred to by the
parties as the “Gallegos conspiracy” and the “Casteneda conspiracy.” The
Government contended that Juarez provided “virtually the same type of
assistance” to these conspiracies as he did to the Grimaldo conspiracy.
Particularly significant to the Government’s case was an audio and video
recording of Juarez speaking to an FBI informant. During these discussions,
Juarez offered to sell the informant weapons and body armor to ship to drug
dealers in Mexico, gave the informant advice on avoiding detection by law
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                                 No. 16-30773
enforcement, and instructed her to delete and replace the serial numbers on
the firearms she was provided.
      The jury convicted Juarez on both counts. The district court applied a
sentencing enhancement pursuant to U.S.S.G. § 3B1.5 predicated on Juarez’s
sale of bulletproof police vests to the Grimaldos. The enhancement resulted in
a Guidelines range of 292–365 months’ imprisonment. The district court
sentenced Juarez to 365 months on Count 1 and 240 months on Count 2, to be
served concurrently. Juarez timely appealed.
                              II. DISCUSSION
A.    Admission of Extrinsic Evidence
      Juarez first argues that the district court erred in admitting extrinsic
evidence of his involvement in the uncharged conspiracies. Under Federal Rule
of Evidence 404(b), evidence of a “crime, wrong, or other act is not admissible
to prove a person’s character”; however, such evidence may be admissible “for
another purpose, such as proving motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of accident.” Fed. R.
Evid. 404(b)(1)–(2). This Court’s two-step test for admissibility requires a
determination that (1) “the extrinsic offense evidence is relevant to an issue
other than the defendant’s character” and (2) the evidence “possess[es]
probative value that is not substantially outweighed by its undue prejudice . .
. and meet[s] the other requirements of [Federal Rule of Evidence] 403.” United
States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc). Juarez does not
contest that the extrinsic evidence was relevant under step one; rather, he
contends that the district court “incorrectly conclud[ed] that the prejudice
arising from this evidence did not substantially outweigh its probative value”
under the second prong. We consider several factors when weighing the
evidence under Rule 403: “(1) the government’s need for the extrinsic evidence,
(2) the similarity between the extrinsic and charged offenses, (3) the amount
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of time separating the two offenses, and (4) the court’s limiting instructions.”
United States v. Smith, 804 F.3d 724, 736 (5th Cir. 2015) (quoting United
States v. Kinchen, 729 F.3d 466, 473 (5th Cir. 2013)). In addition, we consider
the overall prejudicial effect of the extrinsic evidence. See Beechum, 582 F.2d
at 917. We address each factor in turn.
      1. The Government’s Need for Extrinsic Evidence
      Extrinsic evidence has high probative value when intent is the key issue
at trial. See, e.g., United States v. Rojas, 812 F.3d 382, 405 (5th Cir. 2016);
Smith, 804 F.3d at 736; Beechum, 582 F.2d at 914–15. This is particularly true
when the evidence is “necessary to counter [a defendant’s] claim that he was
merely an ignorant participant in the operation and never knowingly agreed
to participate in a[n] [illegal] business.” United States v. Jackson, 339 F.3d 349,
356 (5th Cir. 2003). We also consider whether there was other evidence of
intent that might have made extrinsic evidence unnecessary. Id. For example,
in United States v. Hernandez-Guevara, 162 F.3d 863 (5th Cir. 1998), this
Court found that the district court did not abuse its discretion in allowing
references at trial to the defendant’s past misconduct, noting that the probative
value of such evidence was “relatively great” because the defendant “based his
defense on a claim that he was merely in the wrong place at the wrong time
and had been framed.” Id. at 872. The probative value was further heightened
by the fact that the other evidence “shed little light on [the defendant’s] intent
and whether his alleged crime was the result of mistake or accident.” Id.
      Here, the district court found that the Government’s need for the
extrinsic evidence weighed in favor of admission. The district court explained
that “[b]y pleading not guilty, Juarez placed his criminal intent directly at




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issue.” 1 Moreover, because Juarez “denied knowing that any of his alleged
cohorts were drug dealers,” evidence of his prior activity helped “eliminate
alternative explanations, such as ignorance of drugs and the drug trade.” See
United States v. Thomas, 294 F. App’x 124, 130 (5th Cir. 2008). At trial, there
was some independent evidence of Juarez’s intent; for example, Sergio
Grimaldo testified that Juarez knew Grimaldo was “moving cocaine” and
“knew what [Grimaldo] was doing.” But the extrinsic evidence was nonetheless
highly persuasive in corroborating that testimony and refuting Juarez’s
defense that he was an ignorant participant. Accordingly, the district court did
not err in its determination that this factor weighs in favor of admission.
       2. Similarity Between the Extrinsic and Charged Offenses
       Similarity between the prior and charged offenses increases both the
probative value and prejudicial effect of extrinsic evidence. See Hernandez-
Guevara, 162 F.3d at 872. Despite the prejudicial effect of similar prior bad act
evidence, however, this Court has maintained that “it does not follow that
similarity requires exclusion of the evidence.” Kinchen, 729 F.3d at 473; see
also Cockrell, 587 F.3d at 679–80 (allowing admission of defendant’s prior drug
conviction even though it was for “substantially the same crime charged”). In
Beechum, we reasoned that if the offenses are mostly dissimilar or only share
one element, “the extrinsic offense may have little probative value to
counterbalance the inherent prejudice of this type of evidence.” 582 F.2d at
915. Thus, “the probative value of the extrinsic offense correlates positively
with its likeness to the offense charged.” Id. As with the overall balancing act
under Rule 403, the district court must assess the similarity of the offenses




       1  “Where, as here, a defendant enters a plea of not guilty in a conspiracy case,” intent
is at issue and “the first prong of the Beechum test is satisfied.” United States v. Cockrell, 587
F.3d 674, 679 (5th Cir. 2009).
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and weigh enhanced probative value against the prejudice that almost
certainly results when evidence of prior misconduct is admitted. Id.
      The district court recognized that similarity “can cut both ways.” In the
charged conspiracy, Juarez assisted the Grimaldos by purchasing vehicles for
their use, selling them firearms and body armor, and assisting them in evading
detection by law enforcement. The evidence presented regarding the
uncharged conspiracies suggested that Juarez’s participation in the Gallegos
and Casteneda conspiracies was essentially identical, a fact which was
undoubtedly prejudicial to Juarez. But given that the probative value of the
extrinsic offense correlates positively with its likeness to the charged offense,
the similarity factor also weighs in favor of admission.
      3. Amount of Time Separating the Offenses
      Probative value is “augmented by [a] lack of temporal remoteness”
between the offenses. Id. at 971. This Court has found that evidence of
misconduct committed less than three years prior to the charged crime is
admissible, while suggesting that ten years may be too remote. See United
States v. Adair, 436 F.3d 520, 527 (5th Cir. 2006); United States v. Grimes, 244
F.3d 375, 384–85 (5th Cir. 2001). It is even more probative when the offenses
occur “concurrently.” Smith, 804 F.3d at 736.
      The district court noted that “Juarez allegedly participated in the
charged offense, as well as the other drug conspiracies, at roughly the same
time.” His participation in the charged conspiracy to distribute drugs began
“’at a time unknown until in or about the year 2012,” and the conspiracy to
possess firearms began “on a date unknown but prior to July 17, 2013.” The
district court found that Juarez’s alleged participation in the Gallegos
conspiracy ended at most eight or nine years before the charged offense. With
regard to the Casteneda conspiracy, it appears that Juarez’s conduct took place


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between 2011 and 2012. Accordingly, the closeness in time between the
extrinsic and charged offenses weighs in favor of admission.
      4. Limiting Instructions
      While limiting instructions cannot eliminate prejudicial effect, they can
to a certain extent “allay . . . the undue prejudice engendered by” extrinsic
evidence. Beechum, 582 F.2d at 917. When the court gives “extensive and
immediate limiting instructions following the admission of prior offense
testimony,” that helps to counteract the prejudicial effect of 404(b) evidence.
Cockrell, 587 F.3d at 680; see also Smith, 804 F.3d at 736; United States v.
McCall, 553 F.3d 821, 829 (5th Cir. 2008). The district court took several
measures intended to allay undue prejudice. First, the district court instructed
the jury more than once regarding the limited purpose of the 404(b) evidence,
both before the Government began its presentation of that evidence, and
during the final jury instructions. Second, recognizing that the volume of
extrinsic evidence had the potential to overwhelm the proceedings, the district
court allowed the Government only one day to present evidence of uncharged
conspiracies. Separating the “case-in-chief” and extrinsic evidence was
intended to minimize confusion by the jury. Thus, the district court took
preventative measures aimed at reducing the prejudicial effect of the 404(b)
evidence.
      5. Overall Prejudicial Effect
      Even if all four factors weigh in the Government’s favor, we must still
evaluate the district court’s decision under a “commonsense assessment of all
the circumstances surrounding the extrinsic offense.” Beechum, 582 F.2d at
914. Such circumstances generally include the nature of the prior offense and
the likelihood that the 404(b) evidence would confuse or incite the jury. This
Court explained in Beechum that the “remaining considerations under [R]ule
403 [did] not alter [its] conclusion as to the admissibility of the extrinsic
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evidence,” noting that the prior offense was “not of a heinous nature” and
“would hardly incite the jury to irrational decision by its force on human
emotion.” Id. at 917. Similarly, in Hernandez-Guevara, the Court observed that
the “prior misconduct lacked the hallmarks of highly prejudicial evidence. They
were not violent acts, nor were they greater in magnitude than the crimes for
which [the defendant] was on trial, nor did they occupy more of the jury’s time
than the evidence of the charged offenses.” 162 F.3d at 872 (citation omitted).
      The crux of Juarez’s argument is that the district court’s efforts were
insufficient in light of how the evidence was presented at trial. According to
Juarez, the extrinsic evidence “overwhelmed the proceedings.” As he points
out, the Government’s opening statement characterized the extrinsic evidence
as “special evidence” that would be “particularly important” because it
captured “Noe Juarez on tape, on video and audiotape.” The Government also
highlighted that Juarez did “[a]lmost the same thing” in the prior conspiracies
and characterized him as “an opportunist who will join drug and gun
conspiracies to benefit himself.” At the same time, however, the Government
also explained that the extrinsic evidence was special because it was only to be
used for the purpose of proving Juarez’s intent and reminded the jury that the
judge would give them corresponding “special instructions” regarding that
evidence.
      Given the similarity of the offenses and the nature of the evidence, there
was a definite risk that the jury would place undue weight on the extrinsic
evidence and convict Juarez based on his involvement in the uncharged
conspiracies. The extrinsic offenses were not of a “heinous nature,” but they
nonetheless involved audio and video evidence of Juarez offering to sell
firearms to ship to drug dealers in Mexico and providing advice on how to evade
detection by law enforcement—evidence which was likely more concrete for the
jury than witness testimony. Moreover, the Government’s statement that this
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evidence proved Juarez was “an opportunist who will join drug and gun
conspiracies to benefit himself” was highly prejudicial because it characterized
Juarez as the kind of person who commits criminal acts—the thing Rule 404(b)
prohibits. A similar situation arose in Jackson, where we found it unduly
prejudicial for the prosecutor to refer to the defendant, who had been recruited
for a burglary, as “local talent” because it “invited the jury to think about [the
defendant’s] character.” 339 F.3d at 356. The “opportunist” statement is
analogous. And although the district court limited the presentation of 404(b)
evidence to one day of trial, the jury nevertheless heard from eight witnesses
who testified regarding Juarez’s involvement in the prior conspiracies.
      Despite the prejudicial effect, however, we cannot say that the district
court’s weighing of the evidence was an abuse of discretion. The Government’s
need for the evidence, the similarity of the offenses, and the closeness in time
between the charged and uncharged conspiracies made the extrinsic evidence
highly probative in proving the key issue at trial. The district court also gave
limiting instructions and structured the trial such that the jury would not get
confused about the purpose of the evidence. The majority of the trial was spent
on the charged conspiracy and the extrinsic evidence did not take up an undue
amount of time. Furthermore, Juarez’s conduct was not of a heinous or violent
nature. While highly persuasive, the extrinsic evidence was unlikely to incite
the jury to convict purely based on its emotional impact. Accordingly, we find
that the district court did not abuse its discretion in admitting extrinsic
evidence of the prior conspiracies under Rule 404(b).
B.    Deliberate Ignorance Instruction
      Juarez next argues that the district court erred by giving the jury a
deliberate ignorance instruction, allowing the jury to conclude that Juarez
knowingly joined the conspiracy if it found that Juarez “deliberately closed his


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eyes to what would otherwise have been obvious to him.” 2 Jury instructions
are reviewed for abuse of discretion; we determine “whether the charge, as a
whole, was a correct statement of the law and whether it clearly instructed the
jurors as to the principles of the law applicable to the factual issues confronting
them.” United States v. Cessa, 785 F.3d 165, 185 (5th Cir. 2015) (quoting
United States v. Wright, 634 F.3d 770, 774 (5th Cir. 2011)). The instruction
must be both “legally accurate” and “factually supportable”—“the court may
not instruct the jury on a charge that is not supported by evidence.” Id. (quoting
United States v. Mendoza-Medina, 346 F.3d 121, 132 (5th Cir. 2003)). When
counsel objected to the instruction at trial, the district court stated that it
believed there was “evidence in the record supporting the charge,” particularly
because there was a “contention that this was a mistake or . . . there was
evidence that [Juarez] would have had to have closed his eyes to what was
there not to know what was going on.”
      “Due to concerns that a jury will convict a defendant for what [he] should
have known rather than the appropriate legal standard, [this Court has] ‘often
cautioned against the use of the deliberate ignorance instruction.’” United
States v. Demmitt, 706 F.3d 665, 675 (5th Cir. 2013) (quoting Mendoza-Medina,
346 F.3d at 132). A deliberate ignorance instruction is rarely appropriate; it
should only be given “where the evidence shows (1) subjective awareness of a
high probability of the existence of illegal conduct, and (2) purposeful



      2   The district court used the Fifth Circuit Pattern Jury Instructions, which state:

      You may find that the defendant had knowledge of a fact if you find that the
      defendant deliberately closed his eyes to what . . . would otherwise have been
      obvious to him. While knowledge on the part of the defendant cannot be
      established merely by demonstrating that the defendant was negligent, careless,
      or foolish, knowledge can be inferred if the defendant deliberately blinded himself
      to the existence of a fact. See Fifth Circuit Pattern Jury Instructions (Criminal)
      § 1.37A (2015)).
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contrivance to avoid learning of the illegal conduct.” United States v. Jones,
664 F.3d 966, 979 (5th Cir. 2011). This Court has explained that “[t]he key
aspect of deliberate ignorance is the conscious action of the defendant—the
defendant consciously attempted to escape confirmation of conditions or events
he strongly suspected to exist.” United States v. Lara-Velasquez, 919 F.2d 946,
951 (5th Cir. 1990). “[T]he same evidence that will raise an inference that the
defendant had actual knowledge of the illegal conduct ordinarily will also raise
the inference that the defendant was subjectively aware of a high probability
of the existence of illegal conduct.” Id. at 952.
      1. Subjective Awareness of a High Probability of Illegal Conduct
      On the first prong, the Government must present “facts that support an
inference that the . . . defendant subjectively knew his act to be illegal.” United
States v. Nguyen, 493 F.3d 613, 619 (5th Cir. 2007). “The evidence should allow
a ‘glimpse’ into the defendant[’s] mind[] when there is no evidence pointing to
actual knowledge.” Id. at 619–20. “Suspicious and erratic behavior may be
sufficient to infer subjective awareness of illegal conduct.” Id. at 620.
      Witnesses at trial testified to numerous instances of suspicious and
erratic behavior that would support an inference Juarez knew about the drug
conspiracy. Specifically, there was evidence of the following: Juarez regularly
received payments in cash from Perez, and the two would meet exclusively at
nightclubs to conduct transactions; on several occasions Juarez showed Perez
and Efrain Grimaldo (Sergio Grimaldo’s brother) firearms he had in his car
and offered to sell them, although he never asked why Perez and Sergio
Grimaldo might be in need of guns; he sold Sergio Grimaldo a bulletproof police
vest; Juarez socialized at the Chaparral nightclub in the VIP section with the
Grimaldos while they used cocaine; he explained to Sergio Grimaldo how to tell
if he was being followed by law enforcement and identified several federal
narcotics agents at a restaurant so Grimaldo would know who they were; and
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Juarez used the code words that members of the drug conspiracy used. We find
that this evidence was such that the jury could have found Juarez had actual
knowledge or was at least subjectively aware of a high probability of illegal
activity by the Grimaldos.
      2. Purposeful Contrivance to Avoid Learning of Illegal Conduct
      The second prong may be satisfied “[i]f the circumstances . . . were so
overwhelmingly suspicious that the defendant[’s] failure to conduct further
inspection or inquiry suggests a conscious effort to avoid incriminating
knowledge.” Nguyen, 493 F.3d at 621 (internal quotation marks omitted). “Not
asking questions can be considered a purposeful contrivance to avoid guilty
knowledge.” Id. at 622. For example, in Nguyen, a case involving bank fraud
and money laundering, we noted that the defendants engaged in multiple
suspicious transactions “but never requested to examine the actual checks
themselves,” raising an inference that they “suspected or actually knew, but
avoided further knowledge, about the non-existence of the down payment
checks before the loans were dispersed.” Id. at 621–22. This Court found that
overall, the “sheer intensity and repetition in the pattern of suspicious activity
coupled with [the defendants’] consistent failure to conduct further inquiry”
created an inference that the defendants purposefully contrived to avoid
further knowledge. Id. at 622.
      Similarly, this case involves an overwhelmingly suspicious pattern of
activity. As listed above, the conspirators testified about numerous occasions
of socializing with Juarez, making cash payments to him, receiving his
assistance in evading law enforcement, and purchasing firearms from him.
These activities were apparently repeated and routine. And significantly, there
was ample evidence that Juarez consistently failed to make inquiries regarding
the suspicious nature of these dealings. Grimaldo testified that Juarez told him
directly that “he didn’t want to get involved in those types of issues,” which
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Grimaldo took to mean that Juarez wanted to do business but did not want to
be involved in drug dealing. The combination of Juarez’s routinely suspicious
behavior and his continual lack of inquiry into what his associates would do
with the firearms, cash, and vehicles suggests that he purposefully contrived
to remain ignorant regarding the Grimaldos’ drug conspiracy. Because the
evidence supported a deliberate ignorance instruction, the district court did
not abuse its discretion by giving the instruction to the jury.
C.     Body-Armor Sentencing Enhancement
       1. Application of U.S.S.G. § 3B1.5
       Juarez next argues that his sentence should be vacated due to an
incorrect application of U.S.S.G. § 3B1.5, which provides a sentencing
enhancement when a defendant convicted of a drug trafficking crime or crime
of violence uses body armor during the commission of the offense. 3 The
Guidelines commentary defines “use” as “(A) active employment in a manner
to protect the person from gunfire; or (B) use as a means of bartering.” U.S.S.G.
§ 3B1.5 cmt. n.1. The commentary further notes that “‘[u]se’ does not mean




       3   The full provision reads:

       If—

       (1) the defendant was convicted of a drug trafficking crime or crime of violence;
           and

       (2) (apply the greater)—

                (A) the offense involved the use of body armor, increase by 2 levels; or

                (B) the defendant used body armor during the commission of the offense, in
                preparation for the offense, or in an attempt to avoid apprehension for the
                offense, increase by 4 levels.

       U.S. Sentencing Guidelines Manual § 3B1.5 (U.S. Sentencing Comm’n 2015).
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mere possession (e.g., ‘use’ does not mean that the body armor was found in the
trunk of the car but not used actively as protection).” Id.
      The presentencing report (“PSR”) stated that Juarez had sold two
bulletproof vests to Efrain Grimaldo and Sergio Grimaldo, and these “vests
were stored in one of the Houston stash houses, where drugs, drug proceeds,
and firearms were kept.” The PSR recommended a four-level enhancement
based on this conduct. Counsel for Juarez filed a written objection, arguing
that the vests were never “used” in furtherance of the conspiracy as required
by the Guidelines provision. The district court disagreed. The court found that
Juarez “sold bullet-proof vests to at two least co-conspirators” and that
“[a]lthough the Application Note to the guideline does not explicitly include the
phrase ‘sell’ in its definition of ‘use,’ . . . it is not inconsistent with the purposes
of the sentencing guidelines to interpret ‘use’ and ‘barter’ as an exchange of
body armor for money.” The application of § 3B1.5 increased Juarez’s
Guidelines range from 188–235 months’ imprisonment to 292–365 months’
imprisonment, and Juarez was sentenced to 365 months’ imprisonment.
Juarez presses his argument on appeal that he did not “use” body armor as
defined because there is “no evidence that Mr. Juarez or anyone else in the
conspiracy actively employed the body armor for protection while committing
acts in furtherance of the conspiracy.”
      “When a defendant objects to a sentencing enhancement, this court
‘reviews the district court’s interpretation and application of the Guidelines de
novo and its factual findings for clear error.’” United States v. Sanchez, 850
F.3d 767, 769 (5th Cir. 2017) (per curiam) (quoting United States v. Johnson,
619 F.3d 469, 472 (5th Cir. 2010)). “We analyze the Guidelines under the rules
that apply to the interpretation of statutes.” United States v. Mendez-Villa, 346
F.3d 568, 570 (5th Cir. 2003) (per curiam). “The text of the guideline is the


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starting point in the analysis; the commentary is considered authoritative,”
and we should use a “plain-meaning approach” in our interpretation. Id.
      The plain language of § 3B1.5 precludes its application to the sale of body
armor. The provision states that “use” either means “active employment in a
manner to protect the person from gunfire”—which is plainly inapplicable—or
“use as a means of bartering.” U.S.S.G. § 3B1.5 cmt. n.1. Juarez was not
“bartering” by selling body armor. This Court has defined “barter” to mean “the
exchange of one commodity for another without the use of money.” United
States v. Hagman, 740 F.3d 1044, 1050–51 (5th Cir. 2014) (quoting Barter,
Black’s Law Dictionary (9th ed. 2009)) (finding that the defendant’s “alleged
attempt to exchange money for the eleven missing firearms [did] not constitute
bartering” under 18 U.S.C. § 922(j), which proscribes bartering with stolen
firearms). Indeed, the Sentencing Commission could have chosen to apply the
enhancement to selling as well as bartering, as other provisions make
enhancements dependent on “pecuniary gain” or conduct “motivated by
payment or offer of money or other thing of value.” See U.S.S.G.
§§ 2G2.2(b)(3)(A), 2A2.2(b)(5).
      The Government, while acknowledging that the plain language does not
apply to Juarez’s conduct, argues that excluding the sale of body armor from
the definition “would go against both the purpose of the guideline and common
sense.” The Government contends that it would be unreasonable to apply the
provision to the “exchange of body armor for firearms, but not to the exchange
of the same body armor for one dollar.” But the Government has no authority
for its position; to date, this Court and others have only applied the body-armor
enhancement where the defendant committed a crime wearing body armor.
See, e.g., United States v. Cervantes, 706 F.3d 603, 620–21 (5th Cir. 2013);
United States v. Roush, 527 F. App’x 349, 351 (6th Cir. 2013); United States v.
Matthew, 451 F. App’x 296, 296–97 (4th Cir. 2011) (per curiam); United States
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                                No. 16-30773
v. Shamah, 624 F.3d 449, 759 (7th Cir. 2010); United States v. Barrett, 552
F.3d 724, 727–28 (8th Cir. 2009); United States v. Chambers, 268 F. App’x 707,
712 (10th Cir. 2008); United States v. Douglas, 242 F. App’x 324, 330 (6th Cir.
2007).
      We decline to expand the application of a Guideline when doing so would
be plainly inconsistent with the Guideline’s language. Thus, we find that the
district court erred in applying the body-armor enhancement.
      2. Harmless Error
      Because we find there was a sentencing error, we must determine
whether that error was harmless. “[E]ven when a court does not consider the
proper sentencing range, ‘an error in the guidelines calculation can still be
considered harmless.’” United States v. Martinez-Romero, 817 F.3d 917, 924
(5th Cir. 2016) (per curiam) (quoting United States v. Richardson, 676 F.3d
491, 511 (5th Cir. 2012)). But it is the Government’s “heavy burden” to prove
that (1) “the district court would have imposed a sentence outside the properly
calculated sentencing range for the same reasons it provided at the sentencing
hearing” and (2) “the sentence the district court imposed was not influenced in
any way by the erroneous Guidelines calculation.” Id. (internal quotation
marks omitted).
      In Martinez-Romero, the district court improperly added a 16-level
enhancement—altering the Guidelines range from 18–24 months to 46–57
months—and sentenced the defendant to 46 months’ imprisonment. Id. at 924–
25. While there was “no record evidence that the district court considered the
lower, correctly calculated guideline range,” the district court nonetheless
made three clear statements at the sentencing hearing that even if the
enhancement had been incorrectly applied, the court still would have imposed
the same 46-month sentence. Id. The district court elaborated on its decision,
pointing out other similar crimes the defendant had committed, aggravating
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                                 No. 16-30773
circumstances of those crimes, and the defendant’s prior conviction for
breaching the peace. Id. at 925. The court further commented that the
defendant’s conduct had been “very disturbing” and that the court had
considered the factors under 18 U.S.C. § 3553(a) in reaching its decision. Id.
      On appeal, we were satisfied that the district court would have imposed
a sentence higher than one within the correctly calculated range “for the same
reasons it provided at the sentencing hearing” but not that the defendant’s
sentence “was not influenced in any way by the erroneous Guidelines
calculation.” Id. at 925–26. Because the imposed sentence “coincide[d] with the
lowest end of the improperly calculated guideline range,” we found it “a stretch
to say that the court’s choice of the same parameters as the improperly
calculated guidelines range . . . was mere serendipity.” Id. at 925–26. It was
clear that the improper calculation was what “called the court’s attention to
that range in the first instance.” Id. at 962. Accordingly, we found the error
was not harmless. Id; see also United States v. Rico-Mejia, 859 F.3d 318, 324–
25 (5th Cir. 2017) (finding a sentencing error not harmless when the imposed
sentenced corresponded precisely to the bottom of the incorrect guidelines
range and the Government was “unable to convincingly show that the sentence
imposed on [the defendant] was uninfluenced by the erroneous Guidelines
calculation”).
      In the instant case, the district court stated the following at sentencing:
            The Court also notes that it would impose this same
      sentence even if it had sustained the defendant’s objection to the
      adjustment under Sentencing Guideline 3B1.5(2)(B) for the use of
      body armor.
           The Court finds that if that section did not apply in this case,
      then the guideline would not have appropriately captured the
      defendant’s conduct. By selling body armor to drug traffickers,
      defendant protected armed, dangerous criminals and increased the
      danger they posed to law enforcement and others.

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                                  No. 16-30773
           If there is a distinction between a sale and a barter, the
      Court doesn’t see[] any meaningful distinction in terms of the
      harm caused in this case by the . . . supplying of the body armor.
            The Court finds for these reasons that if Section 3B1.5(2)(B)
      did not apply to defendant’s conduct, an upward variance would be
      warranted, and the defendant’s sentence would remain
      unchanged.
      These statements by the district court are similar to those in Martinez-
Romero and Rico-Mejia. As in Martinez-Romero, there was no clear evidence
that the court considered the correct range. Nor was there any “indication that
the court’s decision to select the exact . . . high end[] of the improper range was
independent of the erroneous calculation that called the court’s attention to
that range in the first instance.” Martinez-Romero, 817 F.3d at 926. Unlike in
those cases, however, the district court here sentenced Juarez to the top of the
erroneously-calculated Guidelines range. We find that while the Government
has proved that the district court would have departed from the correct range,
it has not convincingly shown that the 365-month sentence was not influenced
by the improperly calculated range. The Government has thus not met its
heavy burden to prove harmless error.
                              III. CONCLUSION
      For the foregoing reasons, we AFFIRM Juarez’s conviction but VACATE
his sentence and REMAND for resentencing.




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