United States v. Darrin Soza

Case: 16-41689 Document: 00514218587 Page: 1 Date Filed: 10/31/2017

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 16-41689 FILED

October 31, 2017

Lyle W. Cayce

UNITED STATES OF AMERICA, Clerk

Plaintiff - Appellee

v.

DARRIN ANTONIO SOZA,

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

Before WIENER, HIGGINSON, and COSTA, Circuit Judges.

WIENER, Circuit Judge:

Defendant-Appellant Darrin Antonio Soza pleaded guilty to one count of

unlawful possession of firearms with altered and obliterated serial numbers,

in violation of 18 U.S.C. §§ 922(k) and 924(a)(1)(B). At sentencing, the district

court concluded that Soza was a “prohibited person” under 18 U.S.C.

§ 922(g)(2) and adopted the factual findings of the presentence investigation

report (“PSR”) regarding Soza’s criminal history. Soza’s resulting Guidelines

range was 108 to 135 months, but the court sentenced him to the applicable

statutory maximum of 60 months. On appeal, Soza challenges the sufficiency

of the evidence to support (1) the ruling that he was a prohibited person, and

(2) his criminal history as reflected in the PSR and adopted by the district

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No. 16-41689

court. We affirm the district court’s calculation of Soza’s criminal history

points, but vacate his sentence and remand for resentencing.

I. FACTS AND PROCEEDINGS

Soza was charged with one count of knowingly possessing firearms—

specifically, two AK-47 rifles—“with altered and obliterated serial numbers,

that had been shipped and transported in interstate and foreign commerce[.]”

He pleaded guilty pursuant to a written plea agreement.

The PSR stated that Soza was a prohibited person at the time he

committed the offense and applied a base offense level of 20 under

§ 2K2.1(a)(4)(B) of the Sentencing Guidelines (“Guidelines” or “U.S.S.G.”). 1

The PSR also added four enhancements—each of four levels—for specific

offense characteristics under U.S.S.G. § 2K2.1(b). After application of a two-

level reduction for acceptance of responsibility, Soza’s total offense level was

34. 2

The PSR noted that Soza had six criminal history points: one for driving

under the influence of alcohol in 2008, one for driving while impaired (“DWI”)

in 2010, one for larceny in 2011, one for DWI in 2012, and two for “committ[ing]

the instant offense while on a term of probation.” Consequently, Soza’s

criminal history category was III. 3 In support of these calculations, the PSR

1U.S. SENTENCING GUIDELINES MANUAL § 2K2.1(a)(4)(B) (U.S. SENTENCING COMM’N

2016). All references to the Guidelines herein are to the 2016 edition, which was applicable

in this case.

2 The officer applied the cross reference in § 2K2.1(c)(1) because she determined that

“it [was] reasonably foreseeable that the firearms sold to an individual on behalf of unknown

individuals in Reynosa, Tamaulipas, Mexico, would have the potential to facilitate another

felony offense of exportation of arms without required validated export license.” U.S.S.G.

§ 2M5.2 assigns a base offense level of 26 for the “exportation of arms . . . without required

validated export license.” But under § 2K2.1(c), the cross reference applies only “if the

resulting offense level is greater than that determined [under § 2K2.1(a) and (b)].” Therefore,

Soza’s total offense level was 36—the base offense level of 20 under § 2K2.1(a)(4)(B) plus the

four 4-level enhancements under § 2K2.1(b).

3 U.S. SENTENCING GUIDELINES MANUAL ch. 5, pt. A (U.S. SENTENCING COMM’N

2016).

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attached a page of a North Carolina probation violation warrant for Soza’s

arrest. This page noted that a “written statement” was provided to the North

Carolina court, but no copy of that statement was given to the district court.

With a total offense level of 34, Soza’s sentencing range was 188 to 235

months. 4 At the sentencing hearing, the district court granted the

government’s motion for a third level of reduction for acceptance of

responsibility pursuant to § 3E1.1, and also granted Soza’s objection to one of

the four-level enhancements. That yielded a total offense level of 29 and a

sentencing range of 108 to 135 months. 5 The statutory maximum

imprisonment was five years, however. 6

Soza had filed other written objections, including the contention that

there was insufficient evidence to support the PSR’s determination that he was

a prohibited person under § 2K2.1(a)(4)(B). The district court overruled that

objection and sentenced Soza to the statutory maximum term of five years

imprisonment, to be followed by three years of supervised release.

Soza timely appealed, raising two arguments: (1) The district court erred

in applying § 2K2.1(a)(4)(B) because the evidence was insufficient to establish

that Soza was a prohibited person; and (2) the district court improperly

calculated Soza’s criminal history points because the evidence was insufficient

to support the 2012 DWI conviction and to show that Soza was on probation

when he committed the instant offense.

After Soza filed his opening brief on appeal, the government moved to

supplement the record with a copy of the judgment for Soza’s 2012 DWI

conviction and the full arrest warrant for his probation violation, including a

written description of the violations. A single judge of this court granted the

4 Id.

5 Id.

6 18 U.S.C. § 924(a)(1)(B).

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government’s motion, after which Soza filed a motion for panel reconsideration

that was denied by a different panel, subject to reconsideration by this panel.

II. ANALYSIS

A. Whether Soza was a “Prohibited Person”

U.S.S.G. § 2K2.1(a)(4)(B) applies a base offense level of 20 if the offense

involved a “semiautomatic firearm that is capable of accepting a large capacity

magazine” and the defendant was a “prohibited person” at the time he

committed the instant offense. The Guidelines contain two definitions of

prohibited person that are relevant to this case: (1) per 18 U.S.C. § 922(g)(1), a

person “who has been convicted in any court of, [sic] a crime punishable by

imprisonment for a term exceeding one year,” and (2) per 18 U.S.C. § 922(g)(2),

a person “who is a fugitive from justice.” 7 Soza maintains that the evidence

was insufficient to establish that he was a prohibited person under either

definition.

1. Standard of Review

“This court reviews the district court’s interpretation and application of

the Sentencing Guidelines de novo and its factual findings for clear error.” 8

Whether the evidence was sufficient to support a Guidelines enhancement

requires a finding of fact which we review for clear error. 9 The government has

the burden of demonstrating, by a preponderance of the evidence, the facts that

are necessary to support the enhancement. 10 “Failure to object to either the

PSR or the district court’s sentence,” however, “results in review for plain

7 U.S. SENTENCING GUIDELINES MANUAL § 2K2.1 cmt. n.3 (U.S. SENTENCING COMM’N

2016); see 18 U.S.C. § 922(g).

8 United States v. Olarte-Rojas, 820 F.3d 798, 801 (5th Cir. 2016).

9 United States v. Reyna-Esparza, 777 F.3d 291, 294 (5th Cir. 2015).

10 United States v. Olivares, 833 F.3d 450, 452 (5th Cir. 2016) (per curiam).

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error.” 11 “Plain error exists if (1) there is an error, (2) the error is plain, . . .

(3) the error affect[s] substantial rights and (4) the error seriously affect[s] the

fairness, integrity or public reputation of judicial proceedings.” 12

The parties dispute whether Soza preserved this challenge. “There is

‘[n]o bright-line rule . . . for determining whether a matter was raised below.’” 13

“[I]f a party wishes to preserve an argument for appeal, the party must press

and not merely intimate the argument during the proceedings before the

district court. An argument must be raised to such a degree that the district

court has an opportunity to rule on it.” 14 “The raising party must present the

issue so that it places the opposing party and the court on notice that a new

issue is being raised.” 15

In his written objections to the PSR, Soza challenged the base offense

level applied under § 2K2.1(a)(4)(B), contending that “no documentation ha[d]

been provided by the government in support of the assertion that Mr. Soza was

a ‘prohibited person’ under . . . 18 U.S.C. 922(g)(2).” The probation officer

responded in part as follows: “[O]n July 8, 2014, a probation violator’s warrant

11 United States v. Ocana, 204 F.3d 585, 588 (5th Cir. 2000); see United States v.

Garcia-Perez, 779 F.3d 278, 281 (5th Cir. 2015) (“When a defendant objects to his sentence

on grounds different from those raised on appeal, we review the new arguments raised on

appeal for plain error only.” (quoting United States v. Medina-Anicacio, 325 F.3d 638, 643

(5th Cir. 2003))).

12 United States v. Gordon, 838 F.3d 597, 604 (5th Cir. 2016) (alterations in original)

(quoting United States v. Garcia-Carrillo, 749 F.3d 376, 378 (5th Cir. 2014) (per curiam)).

13 United States v. Brown, 561 F.3d 420, 435 n.12 (5th Cir. 2009) (alterations in

original) (quoting Castillo v. Cameron Cty., 238 F.3d 339, 355 n.21 (5th Cir. 2001)).

14 Dallas Gas Partners, L.P. v. Prospect Energy Corp., 733 F.3d 148, 157 (5th Cir. 2013)

(internal quotation marks and citation omitted); see also Garcia-Perez, 779 F.3d at 282 (“The

‘objection must be sufficiently specific to alert the district court to the nature of the alleged

error and to provide an opportunity for correction.’” (quoting United States v. Neal, 578 F.3d

270, 272 (5th Cir. 2009))).

15 Kelly v. Foti, 77 F.3d 819, 823 (5th Cir. 1996) (quoting Portis v. First Nat’l Bank, 34

F.3d 325, 331 (5th Cir. 1994)).

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was issued for the defendant, and remains active; therefore, the defendant is a

fugitive from justice.”

At the sentencing hearing, Soza’s attorney raised the following objection:

[W]e wanted to ask the Court to make a ruling on some of our

objections, that the base offense level—and [sic] that he was not a

prohibited person. I did ask for some documentation and Probation

did provide a warrant with an electronic signature but no

judgments, so we’re just asking the Court to find whether this was

sufficient evidence to find that he was—or to rule that he was a

prohibited person.

The sentencing court overruled that objection. Although the court did not

specify which definition of prohibited person it applied to Soza, the PSR applied

both definitions—(1) a person “who has been convicted in any court of, [sic] a

crime punishable by imprisonment for a term exceeding one year,” and (2) a

person “who is a fugitive from justice”—to conclude that Soza was a prohibited

person under U.S.S.G. § 2K2.1(a)(4)(B). The government concedes on appeal,

however, that the first definition does not apply to Soza. “The [g]overnment

thus relies solely on Soza’s ‘fugitive from justice’ status under § 922(g)(2).”

The government now urges that “the critical question [Soza raises on

appeal] boils down to whether the district court clearly erred in finding that

Soza was a ‘fugitive from justice’ under 18 U.S.C. § 922(g)(2)—and thus a

prohibited person for purposes of § 2K2.1(a)(4)(B).” Although the government

acknowledges that Soza objected “to the district court’s general application of

U.S.S.G. § 2K2.1(a)(4)(B) on the basis that he was a ‘prohibited person[,]’” it

states that Soza did not present this particular argument to the district court.

The government contends that Soza did not ask the district court to rule on

whether he was a fugitive from justice, but instead “merely asked the court to

rule whether that single page [of the warrant] constituted sufficient evidence”

that Soza was a prohibited person.

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Soza’s written objection referred specifically to the paragraph of the PSR

that explained that he was a prohibited person because he was a fugitive from

justice. Soza’s attorney re-urged the challenge during the sentencing hearing.

That objection was “sufficiently specific to alert the district court to the nature

of the alleged error and to provide an opportunity for correction.” 16 It also

“place[d] the [government] and the court on notice” that Soza was objecting to

the finding that he was a fugitive from justice and thus a prohibited person

under the Guidelines. 17 Soza has therefore preserved this argument for appeal,

and we review his challenge for clear error.

2. Sufficiency of the Evidence

As noted above, “[t]he [g]overnment . . . relies solely on Soza’s ‘fugitive

from justice’ status under § 922(g)(2).” “The term ‘fugitive from justice’ means

any person who has fled from any State to avoid prosecution for a crime or to

avoid giving testimony in any criminal proceeding.” 18 The PSR concluded that

Soza is a fugitive from justice because a probation violator’s warrant issued in

2014 for a 2012 DWI conviction in North Carolina remains active. Soza

counters that, alone, the probation violator’s warrant is insufficient to

establish that he was a prohibited person “because the warrant does not, by

itself, show that Mr. Soza fled the jurisdiction to avoid prosecution[.]” To

support its claim that Soza was a fugitive from justice, the government

provided the district court with a copy of the relevant order for arrest. That

order notes that Soza’s probation officer filed a written statement with the

North Carolina state court alleging that Soza violated various conditions of his

probation. But that written statement was not before the district court, and

16 Garcia-Perez, 779 F.3d at 282 (quoting Neal, 578 F.3d at 272).

17 See Kelly, 77 F.3d at 823 (quoting Portis, 34 F.3d at 331).

18 18 U.S.C. § 921(a)(15).

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the single page of the warrant that was before the court does not describe the

conviction underlying Soza’s probation or the alleged probation violations.

a. Required Mens Rea to be a Fugitive from Justice

The parties dispute whether, to be a fugitive from justice, Soza had to

have either intent to avoid prosecution (or at least knowledge that he was a

fugitive) or know that charges were pending against him. This court has yet to

determine whether a defendant must have such intent or knowledge to be a

fugitive from justice under 18 U.S.C. § 922(g)(2), 19 and there is a split among

other circuits on this issue. The Ninth and Eleventh Circuits have held that,

to establish that a defendant is a fugitive from justice, the government must

show that the defendant fled with the intent to avoid prosecution. 20 The Fourth

and Seventh Circuits, however, have rejected this approach. 21 But these latter

two circuits do require that, to qualify as a fugitive from justice, a defendant

must have had knowledge that charges against him are pending. 22

19 See United States v. Clark, 89 F. App’x 453, 457–58 (5th Cir. 2004) (per curiam)

(recognizing the circuit split but declining to decide the issue because it was waived).

20 See United States v. Gonzalez, 122 F.3d 1383, 1387 (11th Cir. 1997) (“[M]ere absence

from the jurisdiction in which a crime occurred does not render the suspect a fugitive from

justice; he must be found to have absented himself from the jurisdiction with the intent to

avoid prosecution.” (quoting United States v. Fonsesca-Machado, 53 F.3d 1242, 1243–44 (11th

Cir. 1995))); United States v. Durcan, 539 F.2d 29, 31 (9th Cir. 1976) (“In order to establish

that Durcan was a ‘fugitive from justice’ within the meaning of section 922(g)(2), an

indispensable requisite of the prosecution’s proof was that Durcan had left Florida with the

intent to avoid arrest or prosecution.”).

21 See United States v. Ballentine, 4 F.3d 504, 506 (7th Cir. 1993) (“[K]nowledge of

one’s status as a ‘fugitive’ simply is not an element of 18 U.S.C. § 922(g)(2)).”); United States

v. Spillane, 913 F.2d 1079, 1081–82 (4th Cir. 1990) (per curiam) (“We are unpersuaded by

the argument . . . that to meet the . . . burden of proof the prosecution must show that the

appellant left New York with the intent to avoid facing the charges pending against him. . . .

It is not necessary that the accused make a furtive exit from the prosecuting jurisdiction.”).

22 Ballentine, 4 F.3d at 506 (“[To be a fugitive from justice], a defendant need only

know that charges are pending against him, that he has refused to answer to those charges

and that he has left the jurisdiction where the charges are pending.”); Spillane, 913 F.2d at

1081–82 (“Any person who, knowing that charges are pending, purposely (1) leaves the

jurisdiction of prosecution and (2) refuses to answer those charges by way of appearance

before the prosecuting tribunal, is a fugitive from justice.”).

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This court has addressed whether other subsections of § 922(g) contain

a mens rea element. In United States v. Dancy, we held that the district court

did not err when it failed to instruct the jury on a mens rea requirement for

conviction under § 922(g)(1), which prohibits persons convicted of crimes

punishable by more than one year imprisonment from possessing firearms. 23

The Dancy panel explained that, “[l]ike the provisions it supersedes, § 922(g)

contains no element of mens rea.” 24 Similarly, in United States v. Butler, this

court considered whether § 922(g)(6), which prohibits “dishonorable

dischargees” from possessing firearms, has a mens rea element. 25 Relying on

the analysis in Dancy, the Butler panel concluded that a conviction under

§ 922(g)(6) did not require proof of knowledge:

This court’s holding in Dancy, that the defendant need not

know of his prohibited status to violate § 922(g)(1), persuades us

that § 922(g)(6) does not require it either. The two subsections

have parallel language, and it would be illogical to impose a mens

rea requirement on only one of the subsections. In Dancy, the court

looked to the legislative history of § 922(g) and the applicable

penalty provision, § 924(a)(1)(B). The Dancy court concluded that

Congress intended to incorporate former law into the statute,

and that the statute does not require that a felon knew of his

prohibited status. 26

Although these cases imply that all subsections of § 922(g) should be

treated alike, there are compelling reasons to distinguish subsection 922(g)(2)

from subsections 922(g)(1) and (g)(6) for the purpose of the mens rea

requirement. These two subsections, like most subsections of § 922(g), are

phrased in passive terms that make relevant not a person’s conduct or

knowledge, but simply what their status is or what has happened to them, such

23 United States v. Dancy, 861 F.2d 77, 81–82 (5th Cir. 1988) (per curiam).

24 Id. at 81.

25 United States v. Butler, 637 F.3d 519, 523–24 (5th Cir. 2011) (per curiam).

26 Id. at 524 (citations omitted).

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as: any person “who has been convicted in any court” of a felony; 27 any person

“who has been adjudicated as a mental defective or who has been committed

to a mental institution”; 28 any person “who, being an alien . . . has been

admitted to the United States under a nonimmigrant visa”; 29 or any person

“who has been discharged from the Armed Forces under dishonorable

conditions[.]” 30 At first blush, § 922(g)(2) appears to follow that same status-

based approach, stating that it is unlawful for any person “who is a fugitive

from justice” to ship, transport, possess, or receive firearms. 31

But the definition of fugitive from justice necessarily incorporates intent.

Fugitive from justice is defined in § 921 as “any person who has fled from any

State to avoid prosecution for a crime or to avoid giving testimony in any

criminal proceeding.” 32 A literal reading of that definition suggests that one

cannot be a fugitive from justice without having “fled” a state for the explicit

purpose, i.e. with the express intent, of avoiding either prosecution or

testimony.

First, the meaning of the word “fled” contemplates a purposeful

departure rather than one that merely has the effect of avoiding prosecution

or testimony. 33 Second, the use of the word “to” in the infinitive, “to avoid,”

similarly suggests purposeful action. 34 To the extent that “to” can be read as

indicating not only a purpose but also an end or result, the rule of lenity

27 See 18 U.S.C. § 922(g)(1).

28 Id. § 922(g)(4).

29 Id. § 922(g)(5)(B).

30 Id. § 922(g)(6).

31 Id. § 922(g)(2).

32 Id. § 921(a)(15).

33 See Spillane, 913 F.2d at 1083–84 (4th Cir. 1990) (Murnaghan, J., dissenting) (citing

Webster’s New Collegiate Dictionary and Black’s Law Dictionary in support of the

proposition that “to flee” means to depart for the purpose of avoiding something).

34 See To, MERRIAM-WEBSTER COLLEGIATE DICTIONARY (11th ed. 2003) (defining “to”

as “a function word to indicate purpose, intention, tendency, result, or end”).

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requires that it be construed in favor of the defendant. 35 Thus, while § 922(g)(2)

does not itself contain a requirement of knowledge or intent, unlike §§ 922(g)(1)

and (g)(6), it incorporates the definition of fugitive from justice in § 921 which,

by its plain terms, does require intent. 36

A distinction can therefore be drawn between having the status or label

of fugitive from justice on the one hand and the conduct and intent necessary

to obtain that status on the other. By analogy to Dancy and Butler, a defendant

need not have had knowledge of his status or label as a fugitive to be guilty

under § 922(g)(2) and thus be subject to the enhanced base offense level under

U.S.S.G. § 2K2.1(a)(4)(B)(2). 37 Under § 921, however, a defendant cannot be a

fugitive from justice without having fled for the intended purpose of avoiding

prosecution or testimony. 38

35 See Spillane, 913 F.2d at 1082 (Murnaghan, J., dissenting).

36 See Gonzalez, 122 F.3d at 1387 (suggesting that § 922(g)(2) requires evidence that

the defendant “intentionally absented himself—that is, took himself away—from [the

prosecuting state] to avoid prosecution there”); Durcan, 539 F.2d at 31 (“In order to establish

that Durcan was a ‘fugitive from justice’ within the meaning of section 922(g)(2), an

indispensable requisite of the prosecution’s proof was that Durcan had left Florida with the

intent to avoid arrest or prosecution.”).

37 Cf. Ballentine, 4 F.3d at 506 (stating that “knowledge of one’s status as a ‘fugitive’

simply is not an element of 18 U.S.C. § 922(g)(2)” but that “‘fugitive’ status necessarily

involves a defendant’s knowledge that charges are pending against him”).

38 As a practical matter, the difference between fleeing the state with the intent to

avoid charges and fleeing the state knowing that charges are pending (the requirement

adopted by the Seventh and Fourth Circuits) would have little impact in most cases. As the

Third Circuit recognized in United States v. Donahue, intent can be inferred from knowledge.

United States v. Donahue, 681 F. App’x 171, 173 (3d Cir. 2017), cert. denied, No. 16-9418,

2017 WL 2405872 (U.S. Oct. 2, 2017). The primary distinction between an intent standard

and a knowledge standard appears to be how each relates to the timing of the decision to

leave a state. Under a specific-intent standard, based on a literal reading of § 921(a)(15), the

knowledge of the pending charges and the decision to leave a state to avoid those charges

would have to be established as of the time that the defendant actually crossed the state line.

That standard would not apply to a person who left the state for some other reason and then,

with knowledge of pending charges in that state, decided to stay away to avoid those charges.

The word “fled” could be read, however, to encompass staying away, so that one who leaves

a state for some other purpose but then stays away to avoid prosecution could be considered

“fleeing.” See Spillane, 913 F.2d at 1081 (raising this concern and “find[ing] no logical

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b. Evidence Before the District Court

The government did not present sufficient evidence that Soza had such

intent. The evidence before the district court consisted of only a July 2014

warrant for Soza’s arrest based on unidentified probation violations. That

warrant states that the probation officer provided a written statement

outlining Soza’s alleged probation violations, which was apparently attached

to the warrant, but that statement was not in the record before the district

court. The single page of the warrant that was before the district court is

insufficient to establish intent. Without at least the dates on which the

underlying violations occurred and the date Soza left North Carolina, it cannot

be inferred that he left—fled—for the purpose of avoiding prosecution. 39

The government attempts to analogize to United States v. Donahue, in

which the Third Circuit held, in an unpublished opinion, that “[i]ntent to flee

can be established when further prosecution is substantially certain but not

already initiated.” 40 But that is not the case here: Based solely on the single

page of the warrant, the sentencing court would have no information about the

timing and nature of the alleged probation violations. Thus, that court could

not infer that Soza would have known that prosecution was “substantially

certain[.]” 41

The facts of Donahue illuminate this distinction: Authorities found

Donahue in possession of “false identification and utility notices under an

distinction between the person who leaves to avoid prosecution and the person who, once

gone, refuses to return for the same reason”).

39 In fact, this single page of the warrant is unlikely even to establish knowledge of

the pending charges. As noted above, the single page gives no information concerning the

timing and nature of the probation violations giving rise to the warrant. This lack of

information makes it difficult to infer whether Soza could have known that prosecution was

“substantially certain” to follow. See Donahue, 681 F. App’x at 173.

40 Id.

41 See id.

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alias.” 42 There are no similar facts in Soza’s case. It may be true that a

defendant could flee with the intent to avoid prosecution without direct

knowledge of an arrest warrant, but the bare fact that a warrant had been

issued does not itself explain why the defendant fled.

c. Motion to Supplement the Record

The question becomes much closer if the supplemental evidence is

considered. On appeal, the government submitted the sworn statement of the

North Carolina probation officer indicating that Soza engaged in the following

conduct in violation of his conditions of release: (1) failing to attend

appointments with probation; (2) failing to make payments towards his court

indebtedness; (3) failing to make payment towards his probation supervision

fees; (4) being charged with DWI; and (5) failing to obtain a DWI assessment.

Soza contends that, because the government had the burden of

production to establish the applicability of any sentencing enhancement, it

should be restricted to the evidence that it produced at sentencing and should

not be permitted a “second bite at the apple.” 43 In United States v. Dickler, the

Third Circuit stated that “where the government has the burden of production

and persuasion as it does on issues like enhancement of the offense level . . . ,

its case should ordinarily have to stand or fall on the record it makes the first

time around.” 44 But the court in Dickler also “perceive[d] no constitutional or

statutory impediment to the district court’s providing the government with an

additional opportunity to present evidence on remand if it has tendered a

42 Id.

43 Additionally, in a letter pursuant to Federal Rule of Appellate Procedure 28(j), Soza

highlighted United States v. Reynolds, where this court stated that “we are reluctant” to

permit parties to supplement the record on appeal. United States v. Reynolds, 2017 WL

3328154, at *4 (5th Cir. Aug. 3, 2017) (unpublished) (per curiam).

44 United States v. Dickler, 64 F.3d 818, 832 (3d Cir. 1995).

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persuasive reason why fairness so requires.” 45 We follow this prudent approach

and will allow the district court on remand to be the first to determine whether

to consider the additional evidence.

3. Harmless Error

The government further contends that any error is harmless. 46 To show

that an error in calculating the applicable Guidelines range is harmless, the

government must “convincingly demonstrate[] both (1) that the district court

would have imposed the same sentence had it not made the error, and (2) that

it would have done so for the same reasons it gave at the prior sentencing.” 47

In other words, “the government ‘must show that the [sentence] the district

court imposed was not influenced in any way by the erroneous Guideline

calculation.’” 48

Before imposing sentence, the district court expressed several concerns:

[A]s I was reading through this report, one of the things that struck

me is that I didn’t see a connection that you had down here in the

Valley, and I don’t know how you wound up down here. And it is

not clear from the report . . . what else you were . . . doing down

here, but it did trouble me that you come down here and you

purposely engage in this activity. . . . [S]omebody who comes

here . . . [,] to almost immediately engage in this criminal conduct,

I very frankly wonder whether maybe part of the consideration for

coming down here is knowing the kind of opportunities that are

present.

That court also indicated that it was troubled by Soza’s specific offense conduct:

[Y]ou seem to be [the] person sort of behind all of this [criminal

conduct], and . . . the charge is that you obliterate serial

numbers . . . to ensure that these guns are not traced back to you.

45 Id.

46 See United States v. Ibarra-Luna, 628 F.3d 712, 713–14 (5th Cir. 2010) (holding that

“a sentence may be upheld if an error in the calculation is shown to be harmless”).

47 Id. at 714.

48 United States v. Hernandez-Montes, 831 F.3d 284, 295 (5th Cir. 2016) (alteration in

original) (quoting United States v. Ramos, 739 F.3d 250, 253 (5th Cir. 2014)).

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And maybe you don’t have a full understanding of the many

problems that we have here and immediately south of the border

because of this type of criminal activity, but you must have had

some understanding because of the fact that you are purposely

obliterating the serial numbers to ensure that [the firearms] don’t

come back to you, and that is of concern to the Court[.]

The court then reiterated that Soza “purposely engaged . . . in very serious

criminal activity that can cause a lot of harm to our community here, as well

as to our community on the southern part of the border.” The court noted that

Soza’s Guidelines range was “way above” the 60-month statutory maximum

and that the statutory maximum “very frankly . . . trouble[d] [the court]

because of all that we have here.” It then sentenced Soza to the maximum 60

months imprisonment.

The parties agree that, if he were not a fugitive from justice, making the

district court’s application of U.S.S.G. § 2K2.1(a)(4)(B) error, Soza’s revised

offense level would be 23. Because his criminal history category was correct,

then, as explained below, his Guidelines range would be 57 to 71 months,

significantly less than the 108- to 135-month range for an offense level of 29. 49

The district court did not state that it would impose the same sentence

if its application of § 2K2.1(a)(4)(B) were erroneous. 50 And, although it is true

that “[t]he court’s imposition of the maximum allowable sentence . . . favors

finding any error was harmless,” 51 it is not clear, given the significant disparity

49 U.S. SENTENCING GUIDELINES MANUAL ch. 5, pt. A (U.S. SENTENCING COMM’N

2016).

50Although not necessary, such a statement would make it “abundantly clear that

[the court] would have imposed this sentence, regardless of whether it improperly calculated

the appropriate Guidelines range.” United States v. Sanchez, 850 F.3d 767, 769–70 (5th Cir.

2017) (per curiam) (“In imposing a 135-month sentence, the district court stated ‘to the extent

that I erred in the application of the enhancement of plus six, the sentence would still be the

same.’ This court has held that similar statements during sentencing provide sufficient basis

to conclude that any potential error resulting from an improperly calculated Guidelines range

is harmless.” (citation omitted)).

51 United States v. Groce, 784 F.3d 291, 297 (5th Cir. 2015).

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between the two ranges, that “the district court would have imposed the same

sentence had it not made the error.” 52 The fact that the maximum sentence

would be within—as opposed to far below—the correct Guidelines range may

or may not have affected the sentencing judge’s decision. The record does not

clearly demonstrate that Soza’s sentence “was not influenced in any way by

the erroneous Guideline calculation.” 53 We therefore vacate the sentence

imposed and remand for resentencing so that the district court may determine,

in the first instance, whether the supplemental evidence should be considered

and, if so, whether such evidence is sufficient to establish the requisite intent.

B. Soza’s Criminal History Points

Soza also contends that, “[b]ecause the probation violator’s warrant is

insufficient for the government to meet its burden for the USSG

§ 2K2.1(a)(4)(B) enhancement, it was necessarily likewise insufficient evidence

for the district court to calculate Mr. Soza’s criminal history score.” We are

convinced that the district court’s criminal history calculation was not

erroneous.

1. Standard of Review

To repeat, we review the district court’s interpretation and application

of the Sentencing Guidelines de novo and its factual findings, including those

related to the defendant’s criminal history, for clear error. 54 “Failure to object

to either the PSR or the district court’s sentence,” however, “results in review

for plain error.” 55 “Plain error exists if (1) there is an error, (2) the error is

52 Ibarra-Luna, 628 F.3d at 714.

53 Hernandez-Montes, 831 F.3d at 295 (quoting Ramos, 739 F.3d at 253).

54 Olarte-Rojas, 820 F.3d at 801; see United States v. Pesina-Arano, 650 F. App’x 185,

187 (5th Cir. 2016) (per curiam).

55 Ocana, 204 F.3d at 588.

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plain, . . . (3) the error affect[s] substantial rights and (4) the error seriously

affect[s] the fairness, integrity or public reputation of judicial proceedings.” 56

The parties again dispute whether Soza preserved this challenge. Soza

contends that the district court should have assigned only three criminal

history points rather than six, thereby placing him in criminal history category

II. He argues that the record was insufficient to support the (1) one point

assessed in Paragraph 52 of the PSR under U.S.S.G. § 4A1.1(c) for Soza’s 2012

DWI conviction, and (2) two points assessed in Paragraph 54 of the PSR under

§ 4A1.1(d) because he “committed the instant offense while on a term of

probation.”

Soza did not raise this objection before the district court. 57 In his written

objections to the PSR, he “ask[ed] the Court to consider that his criminal

history is less serious than others in his same criminal history category”

because “[h]e has only misdemeanor convictions in his criminal history.” At the

sentencing hearing, Soza’s attorney reiterated this request: “We’re asking the

Court to find that his criminal history might be over-represented.” At no point

did Soza or his counsel object to Paragraphs 52 or 54 in the PSR or challenge

Soza’s criminal history category or the sufficiency of the evidence to support

the criminal history reflected in the PSR. 58 We therefore review this challenge

by Soza for plain error. 59

56 Gordon, 838 F.3d at 604 (alterations in original) (quoting Garcia-Carrillo, 749 F.3d

at 378).

57 See Dallas Gas Partners, 733 F.3d at 157; Kelly, 77 F.3d at 823.

58 For each objection Soza did make to the PSR, he pointed to the specific paragraph

to which he was objecting. By contrast, the heading preceding his request that the court

consider that his criminal history “might be over-represented” refers to the section of the PSR

regarding “factors that may warrant departure.”

59 See United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005); Garcia-Perez, 779

F.3d at 281 (5th Cir. 2015).

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2. Sufficiency of the Evidence

“The presentence report is considered reliable evidence for sentencing

purposes” 60:

In making its factual findings for sentencing, a district court may

adopt the findings of the PSR without additional inquiry if those

facts have an evidentiary basis with sufficient indicia of reliability

and the defendant does not present rebuttal evidence or otherwise

demonstrate that the information is materially unreliable. The

defendant has the burden of showing that the information relied

on by the district court in the PSR is materially unreliable. 61

“Mere objections do not suffice as competent rebuttal evidence.” 62 “At

sentencing, a district court may not consider a bare arrest record contained in

a PSR. However, in the absence of any indication that the information is not

reliable, the court can consider specific information provided in the PSR.” 63

Soza has failed to present any rebuttal evidence, to either the district

court or this court, to demonstrate that the description of his 2012 conviction

or the fact that he was on probation is materially untrue, inaccurate, or

unreliable. 64 The district court was therefore free to adopt the factual findings

in those paragraphs of the PSR without further explanation. 65 We therefore

affirm the district court’s calculation of Soza’s criminal history points.

60 United States v. Reasor, 541 F.3d 366, 369 (5th Cir. 2008) (quoting United States v.

Clark, 139 F.3d 485, 490 (5th Cir. 1998)).

61 United States v. Ford, 558 F.3d 371, 377 (5th Cir. 2009) (internal quotation marks

and citations omitted).

62 Olivares, 833 F.3d at 452 (quoting United States v. Solis, 299 F.3d 420, 455 (5th Cir.

2002)).

63 United States v. Turcios-Rivera, 583 F. App’x 375, 376 (5th Cir. 2014) (per curiam)

(citing United States v. Harris, 702 F.3d 226, 229–31 & n.1 (5th Cir. 2012)).

64 Olivares, 833 F.3d at 452 (“[A]s a general rule, information in the pre-sentence

report is presumed reliable and may be adopted by the district court without further inquiry

if the defendant fails to demonstrate by competent rebuttal evidence that the information is

materially untrue, inaccurate, or unreliable[.]” (quoting United States v. Carbajal, 290 F.3d

277, 287 (5th Cir. 2002))).

65 Reasor, 541 F.3d at 369 (“If no relevant affidavits or other evidence is submitted to

rebut the information contained in the PSR, the court is free to adopt its findings without

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III. CONCLUSION

For the reasons stated above, the district court’s calculation of Soza’s

criminal history points is affirmed, but Soza’s sentence is vacated and the case

remanded for resentencing in accordance with this opinion.

further inquiry or explanation.” (quoting United States v. Jefferson, 258 F.3d 405, 413 (5th

Cir. 2001))).

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