“Jurisdiction is the power to say what the law is.”
How later courts described this case
- “Jurisdiction is the power to say what the law is.”
Written by the judges who cited it.
The opinion
Case: 22-10384 Document: 00516848728 Page: 1 Date Filed: 08/07/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
August 7, 2023
No. 22-10384 Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Vinson Lee Willis, Jr.,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:19-CR-488-1
______________________________
Before Dennis, Engelhardt, and Oldham, Circuit Judges.
Andrew S. Oldham, Circuit Judge:
Vinson Lee Willis, Jr., pled guilty to three counts of possessing a
firearm as a felon in violation of 18 U.S.C. § 922(g)(1). He raises various
issues on appeal. All fail, save for one: Willis’s sentence is impermissibly
ambiguous. We therefore vacate and remand for further proceedings
consistent with this opinion.
I.
Vinson Lee Willis, Jr., is a convicted felon who dealt in guns and
narcotics. In early August 2019, a confidential informant contacted agents at
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No. 22-10384
the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) about
an interaction the informant had with a man named “D.O.” On August 3,
D.O. sold the informant methamphetamine, called his supplier on the
informant’s phone, and drove the informant to his supplier’s house to collect
a load of heroin. D.O. later told the informant that “he had the ability to sell
large quantities of heroin, ecstasy, and as many guns as [the informant] could
purchase.” ATF agents searched various law enforcement databases for the
phone number and house address. They determined that Willis was the likely
supplier.
Three periods of firearms sales and possession followed. First, from
August 8–23, Willis sold eleven guns to two confidential informants and an
undercover agent. D.O. served as the intermediary for the transactions.
Then, from August 26–28, the undercover agent and one of the confidential
informants purchased three more firearms directly from Willis. Finally, on
September 4, the undercover agent and one of the confidential informants
met Willis to purchase additional firearms. Willis placed one of the guns in
the undercover agent’s truck. While returning to his car to retrieve the
others, he saw law enforcement vehicles heading toward him. Willis ran. The
officers quickly apprehended and arrested him. After Willis waived his
Miranda rights and consented to the search of his vehicle, the officers found
two loaded guns—one in the trunk, the other in a seatback pocket.
Based on these three periods of possession, Willis was charged with,
and pled guilty to, three corresponding counts of being a felon in possession
of a firearm. See 18 U.S.C. § 922(g)(1); see also id. § 924(a)(2) (West 2021)
(providing the sentence for a § 922(g) offense at the time of Willis’s
violation); id. § 924(a)(8) (West 2022) (providing the current sentence for a
§ 922(g) offense). The presentence report (“PSR”) calculated Willis’s
offense level to be 30 and his criminal-history category to be V. This yielded
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a Guidelines range of 151–188 months’ imprisonment and 3 years’ supervised
release. Willis filed no objections to the PSR.
On April 14, 2022, the district court imposed the following sentence:
[I]t is the judgment of the Court that the defendant, Vinson Lee
Willis, Jr., is hereby committed to the custody of the Federal
Bureau of Prisons for a period of 120 months on Counts 1, 2,
and 3. I’m going to run those consecutively on you. You’ll
finish one, and then you’ll finish the next, and then you’ll finish
the next. Only to the extent it produces a total aggregate of 188
months.
The district court also sentenced Willis to a 3-year term of supervised release.
The April 19 written judgment tracked the oral pronouncement. Willis timely
filed a notice of appeal on April 20, 2022.
But on May 31, the district court scheduled a “re-sentencing hearing”
to “address matters . . . raised by the Bureau of Prisons.” Specifically, the
district court had received “a correspondence . . . from the Federal Bureau
of Prisons that indicated the sentence could not be executed as intended.”
Because Willis had already noticed his appeal, Willis filed an unopposed
motion in the Fifth Circuit requesting the appeal be stayed pending the
purported re-sentencing. We granted the motion. But we also clarified that
the order was “not to be construed as a comment on what authority the
district court has, at this time, over the sentence.”
At the July 28 re-sentencing hearing, the district court said it was
“reimposing” the original April sentence—but “with a little tweak.” “With
the permission of the parties,” the district court sentenced Willis to “180
months rather than 188 months.” In its words:
Vinson Lee Willis, Jr., is hereby committed to the custody of
the Federal Bureau of Prisons for a period of 120 months on
Counts 1 and 2, to run concurrently with each other. The
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defendant is further committed to the custody of the Federal
Bureau of Prisons for a period of 60 months on Count 3, to run
consecutively to the sentences imposed in Counts 1 and 2. The
total aggregate sentence is 180 months. . . . It is further ordered
that upon release from imprisonment, the defendant shall be
placed on supervised release for a term of three years per count,
to run concurrently with each other.
The district court did so, it said, “to make clear that [it was] sentencing Mr.
Willis for his crimes and not his misconduct in court.” The court explained
that it thought Willis had been a “smart aleck” at the prior hearing. And
while it continued to think 188 months was an appropriate sentence, the court
decided to “knock eight months off” to “make clear for the appellate
record” that it was sentencing Willis for “the crime and not [his] smart
mouth.” Willis filed another notice of appeal the day after the district court
entered its amended judgment.
We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
II.
Willis argues his sentence is procedurally and substantively flawed.
Recall, however, that Willis was sentenced twice for the same conviction—
once in April 2022, then again in July 2022. So before we can evaluate
Willis’s alleged errors, we must begin with the analytically prior question:
Which sentence do we evaluate?
Willis argues that the district court lacked jurisdiction to conduct the
July re-sentencing and to enter the amended judgment imposing a different
term of imprisonment. The Government agrees. So do we.
Willis timely filed his initial notice of appeal on April 20. This was “an
event of jurisdictional significance.” Griggs v. Provident Consumer Disc. Co.,
459 U.S. 56, 58 (1982) (per curiam). “It confer[red] jurisdiction on the court
of appeals and divest[ed] the district court of its control over those aspects of
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the case involved in the appeal.” Ibid.; see also Ross v. Marshall, 426 F.3d 745,
751 (5th Cir. 2005) (“[T]he filing of a valid notice of appeal from a final order
of the district court divests that court of jurisdiction to act on the matters
involved in the appeal.” (quotation omitted)); United States v. Lucero, 755 F.
App’x 384, 386–87 (5th Cir. 2018) (per curiam) (“The general rule is that a
case can exist only in one court at a time, and a notice of appeal permanently
transfers the case to us until we send it back.”); Griggs, 459 U.S. at 58–60
(explaining why it would not be “tolerable” to have “a district court and a
court of appeals . . . simultaneously analyzing the same judgment”). Thus,
on a straightforward application of the one-court-at-a-time rule, the district
court lacked the power to re-sentence Willis on July 28. After all, the entirety
of Willis’s appeal involves the procedural and substantive reasonableness of
his sentence, so the district court’s re-sentencing necessarily clashed with
“aspects of the case involved in the appeal.” Griggs, 459 U.S. at 58.
“True, there are exceptions to the general one-court-at-a-time rule.”
Lucero, 755 F. App’x at 386; see, e.g., Fed. R. App. P. 4(b)(3), (5); see also
16A Charles Alan Wright et al., Federal Practice and
Procedure § 3949.1 (5th ed. Apr. 2023 update) [hereinafter Wright &
Miller] (collecting exceptions). But none applies here.
First, Appellate Rule 4(b)(5) instructs that “[t]he filing of a notice of
appeal . . . does not divest a district court of jurisdiction to correct a sentence
under Federal Rule of Criminal Procedure 35(a).” Fed. R. App. P. 4(b)(5).
Rule 35(a), in turn, provides that “[w]ithin 14 days after sentencing, the court
may correct a sentence that resulted from arithmetical, technical, or other
clear error.” Fed. R. Crim. P. 35(a). Even if the July re-sentencing were
best interpreted as correcting “arithmetical, technical, or other clear error,”
ibid., the district court nevertheless lacked jurisdiction to do so. That’s
because more than 14 days had passed between the original April judgment
and the July re-sentencing. And Rule 35(a)’s “time limit is jurisdictional and
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strictly construed.” United States v. Coe, 482 F. App’x 957, 957 (5th Cir.
2012) (per curiam); see also United States v. Lopez, 26 F.3d 512, 518–23 (5th
Cir. 1994) (per curiam) (so holding with respect to an earlier, but
substantially similar, iteration of Rule 35). Regardless, the district court’s
decision to “knock eight months off” Willis’s sentence was not in response
to an “arithmetical, technical, or other clear error.” Fed. R. Crim. P.
35(a). Rather, the district court did so because, upon reflection, it wished it
“had held [Willis] in contempt rather than giving [him] 188 months,” and
because it now “want[ed] to make clear for the appellate record” that Willis
was being sentenced for “the crime and not [his] smart mouth.” This is not
a qualifying justification under Rule 35. The Rule’s advisory committee notes
even warn that Rule 35 “is not intended to afford the court the opportunity
. . . to change its mind about the appropriateness of the sentence.” Fed. R.
Crim. P. 35 advisory committee’s notes to 1991 amendment.
Second, Federal Rule of Criminal Procedure 36 permits the district
court to “correct a clerical error in a judgment, order, or other part of the
record.” Fed R. Crim. P. 36. But the changes the district court made to
Willis’s sentence at the re-sentencing hearing—including reducing the
prison term from 188 to 180 months—were far more substantial than a
“clerical” correction. See Lopez, 26 F.3d at 515 n.5 (“Rule 36 does not
encompass sentence modifications.”); United States v. Buendia-Rangel, 553
F.3d 378, 379 (5th Cir. 2008) (per curiam) (explaining that “clerical errors”
exist “when the court intended one thing but by . . . mistake or oversight did
another” (quotation omitted)). Moreover, even if the prison-term reduction
somehow qualified as a clerical-error correction, Willis’s April 20 notice of
appeal nevertheless divested the district court of jurisdiction to act under
Rule 36. Lucero, 755 F. App’x at 387 (“[A]n effective notice of appeal divests
the district court of jurisdiction, and a district court cannot use a Rule 36
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motion to reacquire it.”); accord United States v. Walker, 2022 WL 1652751,
at *1 (5th Cir. May 24, 2022) (per curiam).
Third, 18 U.S.C. § 3582 allows a district court to modify a sentence in
certain circumstances notwithstanding an otherwise final judgment. See 18
U.S.C. § 3582(b)(1), (c). But this exception is also inapplicable. The district
court may modify a sentence via § 3582(c): (1) upon a motion of either the
Director of the Bureau of Prisons or the defendant, if there are
“extraordinary and compelling reasons” warranting a reduction or the
defendant is 70 years old or older, “has served at least 30 years in prison,”
and is not a danger to another; (2) to the extent a modification is expressly
permitted by statute or Rule 35 of the Federal Rules of Criminal Procedure;
and (3) when a defendant has been sentenced to a prison term “based on a
sentencing range that has subsequently been lowered by the Sentencing
Commission.” Id. § 3582(c). But neither the director of the Bureau of Prisons
nor Willis filed a motion to modify. The entry of the amended judgment fell
outside the 14-day window for a Rule 35(a) correction. And no part of this
case involves a change to the relevant Guidelines.
Regardless, even if § 3582 did give the district court the authority to
re-sentence Willis in this context, it did not give that court the jurisdiction to
do so after Willis had already filed his notice of appeal. See Lopez, 26 F.3d at
515 n.3 (distinguishing a district court’s general “authority” to act under
§ 3582(c) from its “jurisdiction” to do so at a specific time). That’s because
“[n]othing in the language of the [statute] suggests that its drafters intended
to alter th[e] longstanding jurisdictional principle” that the “entry of a notice
of appeal divests the district court of jurisdiction to adjudicate any matters
related to the appeal.” United States v. Distasio, 820 F.2d 20, 23 (1st Cir.
1987); see also United States v. Maldonado-Rios, 790 F.3d 62, 64 (1st Cir. 2015)
(per curiam) (holding “that a district court lacks the power to order a
sentence modification under 18 U.S.C. § 3582(c) while an appeal of that
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sentence is pending”). Absent a clear statement to the contrary, we decline
to infer one. See Lopez, 26 F.3d at 515 n.3 (“[Section] 3582(c) does not
expressly address the jurisdiction of a court to modify an imposed term of
imprisonment.”); Lucero, 775 F. App’x at 386–87 (requiring a clear
statement to override the one-court-at-a-time rule).
Fourth and finally, the district court sought and received “the
permission of the parties” before re-sentencing Willis in July. But it is a
bedrock pillar of federal law that “subject-matter jurisdiction cannot be
created by waiver or consent.” Howery v. Allstate Ins. Co., 243 F.3d 912, 919
(5th Cir. 2001); see also Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583
(1999) (“[S]ubject-matter delineations must be policed by the courts on their
own initiative even at the highest level.”). That’s doubly true here where the
district court’s assertion of jurisdiction where it doesn’t exist (that court)
undermines jurisdiction where it does (our court).
In sum, Willis’s timely notice of appeal transferred the case from the
district court to ours, which divested the district court of jurisdiction to re-
sentence Willis. Because the district court lacked jurisdiction, the July re-
sentencing is “null and void.” 16A Wright & Miller § 3949.1 (“[O]nce
jurisdiction passes to the court of appeals, the district court generally lacks
power to act with respect to matters encompassed within the appeal, and
actions taken by the district court in violation of this principle are null and
void.”); accord United States v. Jones, 482 F. App’x 956, 956–57 (5th Cir.
2012) (“[T]he district court had until 7 September 2011 to correct or modify
Jones’ original sentence; it lacked jurisdiction to re-sentence him on 3
November 2011. Accordingly, the later-imposed sentence and its
corresponding entry of judgment are void.”). We therefore confine our
analysis of Willis’s claims to the April sentencing.
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III.
Willis claims his operative sentence is procedurally and substantively
flawed in four ways. He argues that the district court (A) imposed a
multiplicitous sentence and (B) applied the Guidelines incorrectly when
calculating his criminal-history score. Willis further claims that his sentence
is (C) substantively unreasonable and (D) impermissibly ambiguous. The
first three challenges are unavailing. Willis prevails on the fourth.
A.
Start with multiplicity. “‘Multiplicity’ is spreading a single offense
over several counts.” 1A Wright & Miller § 143. This can happen in
two ways. United States v. Vasquez, 899 F.3d 363, 381 (5th Cir. 2018)
(recognizing “two species of multiplicity challenges” (quotation omitted)).
“The first type arises when a defendant is charged with violating two
different statutes, one of which is arguably the lesser included offense of the
other.” United States v. Woerner, 709 F.3d 527, 539 (5th Cir. 2013). “The
second type of multiplicity challenge arises when charges for multiple
violations of the same statute are predicated on arguably the same criminal
conduct.” Ibid.
This appeal allegedly involves the latter. Namely, Willis argues that
by charging him with—and sentencing him for—three felon-in-possession
counts, the district court punished him thrice for what he asserts was a single
ongoing offense. If true, this would violate the Double Jeopardy Clause’s
prohibition “against multiple punishments for the same offense.” Whalen v.
United States, 445 U.S. 684, 688 (1980) (quotation omitted); see U.S.
Const. amend. V (“[N]or shall any person be subject for the same offence
to be twice put in jeopardy of life or limb.”); United States v. Buchanan, 485
F.3d 274, 278 (5th Cir. 2007) (“The rule against multiplicity is grounded in
the Fifth Amendment’s prohibition against double jeopardy.”).
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Willis raises his multiplicity challenge for the first time on appeal, so
we review it under the four-factor plain-error standard. United States v.
Njoku, 737 F.3d 55, 67 (5th Cir. 2013). To prevail, Willis must demonstrate
that the district court (1) made an error (2) that was “clear or obvious” and
(3) that “affected [his] substantial rights.” Puckett v. United States, 556 U.S.
129, 135 (2009). If Willis satisfies those three prongs, then we (4) have
“discretion to remedy the error—discretion which ought to be exercised only
if the error seriously affects the fairness, integrity or public reputation of
judicial proceedings.” Ibid. (quotation omitted).
Willis cannot meet the plain-error standard because the district court
didn’t err—plainly or otherwise. Willis was convicted under § 922(g)(1),
which “has three requirements: (1) that the defendant previously had been
convicted of a felony; (2) that he possessed a firearm; and (3) that the firearm
traveled in or affected interstate commerce.” United States v. Daugherty, 264
F.3d 513, 515 (5th Cir. 2001) (quotation omitted); see also 18 U.S.C.
§ 924(a)(8). As Willis rightly points out, “[t]he evil Congress sought to
suppress by section 922 was the arming of felons,” so “the section is based
on the status of the offender and not the number of guns possessed.” United
States v. Berry, 977 F.2d 915, 919 (5th Cir. 1992). Accordingly, we have held
that the “simultaneous possession of multiple firearms . . . [i]s a single
[§ 922] offense regardless of the number of weapons involved.” United States
v. Villegas, 494 F.3d 513, 515 (5th Cir. 2007) (citing United States v. Hodges,
628 F.2d 350, 351 (5th Cir. 1980)).
That said, we’ve also made abundantly clear that the “possession of
different firearms at different times” are “separate and distinct prohibited
acts.” United States v. Planck, 493 F.3d 501, 503–04 (5th Cir. 2007)
(emphasis added) (quotation omitted). Thus, when different counts
“involve[] different firearms received and possessed by [the defendant] at
different times,” those counts permissibly punish independent offenses and
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thus do not violate the Double Jeopardy Clause. United States v. Harper, 802
F.2d 115, 118 n.4 (5th Cir. 1986); accord Planck, 493 F.3d at 504 (“[A]
defendant could be charged with multiple violations of [§ 922] for receipt or
possession of different firearms at different times.”); United States v. Jones,
601 F.3d 1247, 1259 (11th Cir. 2010) (“[W]here a defendant has possessed
different weapons at different times or places, the [G]overnment may treat
them as separate units of prosecution and charge multiple counts.”).
Here, Willis clearly pled guilty to possessing distinct firearms during
three distinct timeframes. And he was convicted of and sentenced for each of
those distinct units of possession. In particular, Willis possessed 11 firearms
between August 8 and August 23, 2019 (Count 1); possessed 3 different
firearms between August 26 and August 28, 2019 (Count 2); and possessed
3 different firearms on September 4, 2019 (Count 3). Willis’s sentence
therefore is not multiplicitous. See Planck, 493 F.3d at 503–04 (imposing
multiple punishments for the “possession of different firearms at different
times” permissibly punishes “separate and distinct prohibited acts”
(quotation omitted)).
To all this—and contrary to the indictment, his guilty plea, and the
PSR—Willis nevertheless asks us to infer that he “was in continuous
constructive or actual possession of firearms throughout the entire period
covered by the [i]ndictment.” Why? Because he was a drug dealer (and drug
dealers, he says, are armed “continuously”); and because one of the guns
recovered on September 4 was found in the driver’s seat-back pocket (which,
he says, indicates it was his personal firearm, “not one of the guns he
intended to sell”). This is a far cry from the “affirmative proof” that Willis
would need to contravene his indictment and guilty plea, to demonstrate
simultaneous possession, and to prove plain error. United States v. Meza, 701
F.3d 411, 433 (5th Cir. 2012); see also United States v. Davila, 1995 WL
295851, at *4 (5th Cir. 1995) (“[A] defendant who pleads guilty to criminal
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charges may assert a claim of multiple punishments in violation of the Double
Jeopardy Clause only if the violation is apparent on the face of the indictment
or record.” (quotation omitted)).
B.
Willis also contends the district court calculated his criminal-history
score incorrectly when determining his Guidelines range. Specifically, Willis
argues that the district court plainly erred by counting his 2015 possession-
of-a-controlled-substance conviction separately from his 2015 aggravated-
assault-with-a-deadly-weapon convictions. He says that if his criminal-
history score were calculated properly, the Guidelines sentence would have
been 135–168 months in prison instead of 151–188 months. Cf. Molina-
Martinez v. United States, 578 U.S. 189, 198–202 (2016).
The Sentencing Guidelines provide criminal-history points based on
the defendant’s “prior sentences.” See U.S.S.G. §§ 4A1.1, 4A1.2; see also id.
Ch. 5, Pt. A (table showing how the applicable criminal-history category
combines with a defendant’s offense level to define his Guidelines sentence).
A “prior sentence” is “any sentence previously imposed upon adjudication
of guilt.” Id. § 4A1.2(a)(1). But when there are multiple prior sentences—as
there are here—courts must determine whether the “sentences [should be]
counted separately or treated as a single sentence.” Id. § 4A1.2(a)(2). “Prior
sentences always are counted separately if the sentences were imposed for
offenses that were separated by an intervening arrest (i.e., the defendant is
arrested for the first offense prior to committing the second offense).” Ibid.
Yet even absent an intervening arrest, prior sentences are still counted
separately “unless (A) the sentences resulted from offenses contained in the
same charging instrument; or (B) the sentences were imposed on the same
day.” Ibid. If either (A) or (B) applies, the district court should treat those
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prior sentences as a single sentence when assigning criminal-history points.
Ibid.
Willis claims that his prior sentences for aggravated assault and
possession of a controlled substance should have been treated as a “single
sentence” under § 4A1.2(a)(2). That’s so, he says, because the sentences
were not “separated by an intervening arrest,” and were “imposed on the
same day.” Ibid. Willis raises this argument for the first time on appeal, so we
review for plain error. See Rosales-Mireles v. United States, 138 S. Ct. 1897,
1904–05 (2018).
The district court did not commit “clear or obvious” error. Puckett,
556 U.S. at 135. Willis was arrested on September 23, 2015, for two
aggravated-assault offenses and one controlled-substance offense. He was
then sentenced on December 17, 2015, to four years of deferred-adjudication
probation for each offense. So far so good for Willis. But on January 19, 2018,
the Government filed a motion to revoke Willis’s probation for the
controlled-substance offense, and on March 6, 2018, the district court
sentenced Willis to one year in state jail on that offense. Willis is therefore
correct that the offenses were not “separated by an intervening arrest.”
U.S.S.G. § 4A1.2(a)(2). But the one-year state jail sentence for the
controlled-substance offense arose from the Government’s January 2018
motion, not the 2015 indictment. And the district court imposed the one-year
sentence for the controlled-substance offense in 2018, not the same day in
2015 when it imposed the sentence for the aggravated assault charges. Thus
the district court did not err, much less plainly err, in counting the sentences
as separate.
Indeed, we’ve previously declined to find plain error in a nearly
identical situation. In United States v. Sustaita-Mata, the defendant had two
prior theft convictions, one of which included a later-imposed revocation
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sentence. 728 F. App’x 402 (5th Cir. 2018) (per curiam). The district court
counted them separately. Id. at 402. Sustaita-Mata argued for the first time
on appeal that the two theft sentences should have been treated as a single
sentence because the original sentences were imposed on the same day. Id. at
403. Instead, we held that Sustaita-Mata had failed to demonstrate “clear or
obvious” error because he failed to cite any circuit precedent establishing
that they should have been treated as a single sentence. Id. at 402–03 (citing
United States v. Carlile, 884 F.3d 554, 558 (5th Cir. 2018)). Nor could he
otherwise show that the dispute was “settled by a straightforward application
of the Guidelines.” Id. at 403 (citing United States v. Blocker, 612 F.3d 413,
416 (5th Cir. 2010), abrogated on other grounds by United States v. Martinez-
Rodriguez, 821 F.3d 659, 664 (5th Cir. 2016)). Consequently, we concluded
that “the district court could have reasonably interpreted the Guidelines at
issue as it did” by treating the later-imposed revocation sentence as the
relevant “sentence” for purposes of U.S.S.G. § 4A1.2(a)(2). Ibid. (quotation
omitted). So too here. 1
C.
Next, Willis challenges the substantive reasonableness of his within-
Guidelines sentence. This is the only challenge Willis preserved. See Holguin-
Hernandez v. United States, 140 S. Ct. 762, 765–67 (2020). We review
_____________________
1
Willis contends for the first time in his reply brief that, as a factual matter, his
deferred-adjudication sentence for the controlled-substance offense was not actually
imposed on the revocation date. Willis claims the state court later granted a motion for a
new trial, which he says “undid” his conviction for the controlled-substance offense. We
decline to consider this “completely new issue in [Willis’s] reply brief.” Cousin v. Trans
Union Corp., 246 F.3d 359, 373 n.22 (5th Cir. 2001); see also Cinel v. Connick, 15 F.3d 1338,
1345 (5th Cir. 1994) (“An appellant abandons all issues not raised and argued in [his] initial
brief on appeal.”).
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preserved reasonableness challenges for abuse of discretion. United States v.
Sepulveda, 64 F.4th 700, 709 (5th Cir. 2023).
Why abuse of discretion? We apply such a “highly deferential”
standard of review “because the sentencing court is in a better position to
find facts and judge their import under the [18 U.S.C.] § 3553(a) factors with
respect to a particular defendant.” United States v. Hernandez, 876 F.3d 161,
166 (5th Cir. 2017) (quotation omitted); see also Gall v. United States, 552 U.S.
38, 51 (2007) (“The judge sees and hears the evidence, makes credibility
determinations, has full knowledge of the facts and gains insights not
conveyed by the record.” (quotation omitted)). Moreover, “within-
Guidelines sentences enjoy a presumption of reasonableness,” so our review
of Willis’s 188-month, within-Guidelines sentence is doubly deferential.
United States v. Scott, 654 F.3d 552, 555 (5th Cir. 2011). He can rebut the
presumption only by “demonstrat[ing] that the sentence does not account
for a factor that should receive significant weight, gives significant weight to
an irrelevant or improper factor, or represents a clear error of judgment in
balancing sentencing factors.” Hernandez, 876 F.3d at 166 (citing United
States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009)).
Willis contends that the July re-sentencing transcript and amended
judgment prove that the district court’s April sentence was “the product of
a clear error in judgment” and based upon “an improper or irrelevant
factor.” Specifically, Willis asserts that the district court’s later attempt to
re-sentence him to 180 months’ imprisonment demonstrates that the district
court never intended to impose the original 188-month sentence. He further
claims that the district court admitted to considering an impermissible factor
when it acknowledged at the re-sentencing that it had punished Willis for his
“smart mouth” at the April 14 hearing and thus imposed a longer sentence
than was necessary.
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We disagree. Even if Willis could avail himself of the null-and-void
July re-hearing to satisfy his burden with respect to the April sentence, we
are not persuaded by his interpretation of the record. The district court
explicitly reaffirmed at the July hearing that it had intended to impose “a total
aggregate sentence of 188 months.” And it did so because that was “the top
of the advisory guideline range”—which it thought was necessary to reflect
“the seriousness of the defendant’s criminal history” and to “protect the
public.” See 18 U.S.C. § 3553(a)(1)–(2). And we are unpersuaded that the
district court admitted to punishing him for his conduct at the April 14
hearing. At most, the district court’s reasoning is ambiguous. True, the
district court did say at one point that in hindsight it wished it had “held
[Willis] in contempt rather than giving [him] 188 months.” But in the same
hearing, it also said, “I don’t think that 188 months is inappropriate at all”
and that it was now “knock[ing] eight months off” merely to preempt any
“misunderstanding [whether Willis was] being sentenced for the crime and
the crime only.” See also ROA.347 (“I don’t like how you treated me. I don’t
like how you talked. And—but that is not why you got this sentence, and I
want to make that clear to you. You got this sentence because—to protect the
community because of your violent criminal history.”). Such an ambiguous
record is not enough to overcome the “presumption of reasonableness” we
apply to within-Guidelines sentences. Scott, 654 F.3d at 555.
But even if the district court did base Willis’s sentence in part on his
lack of remorse at the hearing, Willis doesn’t cite any authority for the
proposition that such conduct is an irrelevant or improper consideration. Cf.
United States v. Douglas, 569 F.3d 523, 527–28 (5th Cir. 2009); United States
v. Navarro-Jusino, 993 F.3d 360, 362 (5th Cir. 2021); United States v. Kippers,
685 F.3d 491, 499 (5th Cir. 2012); United States v. Medina-Anicacio, 325 F.3d
638, 648 (5th Cir. 2003). We therefore hold there was no abuse of discretion.
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D.
Willis’s fourth and final claim is that his sentence is impermissibly
ambiguous. We review this unpreserved claim for plain error. See United
States v. Taylor, 973 F.3d 414, 419 (5th Cir. 2020); see also United States v.
Barber, 865 F.3d 837, 839 (5th Cir. 2017).
The Supreme Court has long held that “[s]entences in criminal cases
should reveal with fair certainty the intent of the court and exclude any
serious misapprehensions by those who must execute them.” United States
v. Daugherty, 269 U.S. 360, 363 (1926). A sentence violates this command
when it is “ambiguous with respect to the time and manner in which it is to
be served” or “is internally self-contradictory.” United States v. Setser, 607
F.3d 128, 132 (5th Cir. 2010), aff’d, 566 U.S. 231 (2012) (quotation omitted);
see also Taylor, 973 F.3d at 421; United States v. Garza, 448 F.3d 294, 302 (5th
Cir. 2006); United States v. Story, 439 F.3d 226, 233 (5th Cir. 2006); United
States v. Juarez, 812 F.3d 432, 437 (5th Cir. 2016).
Willis’s sentence is impermissibly ambiguous. Recall that the district
court imposed the following sentence:
[I]t is the judgment of the Court that the defendant, Vinson Lee
Willis, Jr., is hereby committed to the custody of the Federal
Bureau of Prisons for a period of 120 months on Counts 1, 2,
and 3. I’m going to run those consecutively on you. You’ll
finish one, and then you’ll finish the next, and then you’ll finish
the next. Only to the extent it produces a total aggregate of 188
months.
This sentence is either “internally self-contradictory” or “ambiguous with
respect to the time and manner in which it is to be served.” Setser, 607 F.3d
at 132 (quotation omitted). If we give full effect to the requirement that the
three 120-month terms run consecutively, then we must ignore the 188-
month cap. And if we give full effect to the 188-month cap, then the
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requirement that the three 120-month terms run consecutively is either
nonsensical (at worst) or incomplete and indeterminate (at best). As such,
“[r]easonable minds could differ on the interpretation of the sentence
imposed.” Taylor, 973 F.3d at 421. The court therefore committed “clear or
obvious” error, Puckett, 556 U.S. at 135, by imposing this “ambiguous and
illegal” sentence, United States v. Stark, 811 F. App’x 893, 894 (5th Cir.
2020) (per curiam); accord Setser, 607 F.3d at 132 (“A sentence may be illegal
if it is ambiguous . . . .” (quotation omitted)). That satisfies the first two plain-
error prongs.
Willis also satisfies the third prong—i.e., “the error must have
affected the defendant’s substantial rights.” Molina-Martinez, 578 U.S. at
194; see also Fed. R. Crim. P. 52(b). “To satisfy this third condition, the
defendant ordinarily must show a reasonable probability that, but for the
error, the outcome of the proceeding would have been different.” United
States v. Randall, 924 F.3d 790, 796 (5th Cir. 2019) (quotation omitted);
accord Puckett, 556 U.S. at 135; United States v. Olano, 507 U.S. 725, 734
(1993).
The district court’s ambiguous sentence impacted the “outcome of
the proceeding” in at least two ways. Randall, 924 F.3d at 796 (quotation
omitted). First, the Bureau of Prisons decided that the sentence was so
ambiguous that it “could not be executed.” Cf., e.g., Setser, 607 F.3d at 133
(“[A]lthough his appeal began as a challenge to the ambiguity regarding how
the [Bureau of Prisons] might interpret and carry out the district court’s
sentence, the [Bureau of Prisons] has subsequently interpreted and carried
out the sentence.”). That obviously would never have happened save for the
error. Second, after it was made aware of the error, the district court
attempted to impose a completely different sentence at the null-and-void July
re-hearing. Rarely do we have such strong evidence “that, but for the error,
the outcome of the proceeding would have been different.” Randall, 924 F.3d
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at 796 (quotation omitted); cf. Taylor, 973 F.3d at 420 (“[I]t is not clear
whether the ambiguous nature of Taylor’s sentence affected his substantial
rights, so we order a limited remand for the district court to clarify, and state
on the record, whether it would have imposed the same sentence had it
known of the ambiguity.”).
Lastly, we find it appropriate to “exercise [our] discretion” to correct
the district court’s error. Molina-Martinez, 578 U.S. at 194. It would
“seriously affect[] the fairness, integrity or public reputation of judicial
proceedings” to let stand such an ambiguous sentence—one that not even
the Bureau of Prisons could effectuate. Puckett, 556 U.S. at 135 (quotation
omitted).
* * *
Accordingly, we VACATE the April 2022 sentence and REMAND
for further proceedings consistent with this opinion. See Garza, 448 F.3d at
302 (“[A]mbiguous sentences must be vacated and remanded.”); Juarez,
812 F.3d at 437 (“Where a sentence is ambiguous, . . . the proper course is to
vacate [the defendant’s] sentence and remand for resentencing.”).
This might seem like an empty formalism. After all, the district court
already indicated at the July hearing how it intends to re-sentence Willis. But
jurisdiction matters. Jurisdiction is the power to say what the law is. “The
statutory and (especially) constitutional elements of jurisdiction are an
essential ingredient of separation and equilibration of powers, restraining the
courts from acting at certain times, and even restraining them from acting
permanently regarding certain subjects.” Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 101 (1998). And to act without jurisdiction “is, by very
definition, for a court to act ultra vires.” Id. at 102. Moreover, the district
court has already expressed its willingness to change Willis’s sentence once.
We therefore leave it to the district court on remand to exercise its
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jurisdiction and discretion to impose any sentence at or below the statutory
maximum. 18 U.S.C. § 3742(f)(1), (g); see also Pepper v. United States, 562
U.S. 476 (2011).
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