United States of America v. Paul Suarez

A jury convicted Paul Suarez for his involvement in a drug trafficking

conspiracy and for firearms offenses. Suarez appeals contending that the

convictions were not supported by sufficient evidence. He also asserts that the

district court erred in imposing a 120-month (ten year) mandatory minimum

prison sentence for possession of a sawed-off shotgun in furtherance of a drug

trafficking crime. The evidence was sufficient to sustain each of Suarez’s

convictions, and they are affirmed. But that the mandatory minimum sentence

of 120 months of imprisonment was inapplicable, and we therefore vacate the

sentence and remand to the district court for resentencing.

United States Court of Appeals

Fifth Circuit

FILED

January 12, 2018

Lyle W. Cayce

Clerk

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I

After discovering methamphetamine in Timothy Sharp’s truck during

the course of a traffic stop, Cooke County Police obtained a warrant to search

the residence of Erica Gutierrez, from whom Sharp said he purchased the

drugs. When police searched Gutierrez’s home, they found her and Paul

Suarez—who, according to Sharp, acted as “consul or overseer” for Gutierrez’s

drug deals—in the master bedroom. Also found in that room were a

distributable amount of methamphetamine, baggies, scales, security cameras,

a .380 caliber Davis pistol, shotgun shells, body armor, and a .20 gauge

Winchester sawed-off shotgun that, though disassembled, had ammunition in

its chamber. Police also found a .20 gauge Ithaca sawed-off shotgun

underneath a mattress in a second bedroom. During the search, officers

answered a call to Gutierrez’s cell phone from Travis Puckett, who wanted to

buy methamphetamine. Puckett agreed to meet at a local hotel, and he was

arrested when he arrived there to consummate the transaction.

Gutierrez and Puckett were witnesses at Suarez’s trial. Gutierrez

testified that Suarez distributed methamphetamine and split the profits with

her, had stayed at the house the previous night, gave her the pistol, and knew

about the Winchester but not the Ithaca. Puckett testified that Suarez was

often present when he bought methamphetamine from Gutierrez and that

Suarez made the sale if Gutierrez was unavailable. Puckett also testified that

the Ithaca, which he identified by the tape on its handle, was “always” in the

master bedroom when he made purchases there.

Count I of the indictment charged Suarez with conspiracy to possess with

intent to distribute narcotics in violation of 21 U.S.C. § 846. Count II charged

possession of the pistol and Winchester shotgun in furtherance of a drug

trafficking offense in violation of 18 U.S.C. § 924(c). Counts III and IV alleged

possession of the unregistered Winchester and Ithaca shotguns in violation of

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26 U.S.C. § 5861(d). Suarez moved for acquittal on Counts III and IV under

Federal Rule of Criminal Procedure 29, but the district court denied the

motion. The proposed jury charge and verdict form for Count II did not require

the jury to specify which firearm—the pistol or the Winchester—supported

guilt on Count II, and Suarez did not object at trial.

The jury found Suarez guilty on all four counts. The Presentence

Investigation Report (PSR) recommended 60 months of imprisonment for

Counts I, III, and IV and concluded that Count II required a ten-year minimum

prison sentence, to run consecutively to any other counts. The district court

adopted the recommendation and sentenced Suarez to 180 months of

imprisonment, but stated on the record that it would have sentenced Suarez to

a shorter term but for the ten-year mandatory minimum sentence that it had

concluded was applicable. This appeal followed.

II

The standard of review for insufficiency-of-the-evidence claims depends

on whether the claims were preserved. We review claims preserved through a

Rule 29 motion de novo, but “with substantial deference to the jury verdict.”1

We affirm “if a reasonable trier of fact could conclude . . . the elements of the

offense were established beyond a reasonable doubt.”2 Claims not preserved

are reviewed for plain error.3 Suarez must show a clear or obvious legal error

that affects his substantial rights and “seriously affect[s] the fairness,

integrity, or public reputation of the judicial proceedings.”4 In reviewing the

1 United States v. Delgado, 672 F.3d 320, 330-31 (5th Cir. 2012) (en banc).

2 United States v. McDowell, 498 F.3d 308, 312 (5th Cir. 2007) (quoting United States

v. Ragsdale, 426 F.3d 765, 770-71 (5th Cir. 2005)).

3 See Delgado, 672 F.3d at 330.

4 Puckett v. United States, 556 U.S. 129, 135 (2009) (alteration in original) (quoting

United States v. Olano, 507 U.S. 725, 736 (1993)).

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sufficiency of the evidence, an error is “clear or obvious” “only if the record is

‘devoid of evidence pointing to guilt,’ or . . . ‘the evidence on a key element of

the offense [i]s so tenuous that a conviction would be shocking.’”5 Relief is

appropriate under this exacting standard only if the Government’s evidence is

“obviously insufficient”6 and the defendant shows “a manifest miscarriage of

justice.”7 Under both standards, we “view[] the evidence in the light most

favorable to the verdict and draw[] all reasonable inferences from the evidence

to support the verdict.”8

A

We review the conviction under Count I for plain error.9 Count I charged

Suarez with conspiracy to distribute, and possession with intent to distribute,

50 grams or more of a mixture or substance containing a detectable amount of

methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846. Defense

counsel conceded that the evidence supported conviction under this count, and

we agree that the evidence was sufficient.

To prove a drug conspiracy, the Government must prove (1) an

agreement between two or more persons to violate narcotics laws;

(2) knowledge of the agreement; and (3) voluntarily participation in the

agreement.10 Gutierrez’s testimony alone provides sufficient evidence to

establish all three elements. “A conviction, especially one accompanied by an

5 McDowell, 498 F.3d at 312 (alteration in original) (quoting United States v. Knezek,

964 F.2d 394, 400 n.14 (5th Cir. 1992)); see also Delgado, 672 F.3d at 330-31 (reaffirming

these standards as “proper applications of the plain-error test to claims of evidentiary

insufficiency”).

6 Delgado, 672 F.3d at 331 (emphasis in original).

7 McDowell, 498 F.3d at 312; see also Delgado, 672 F.3d at 330-31 (explaining that the

“manifest miscarriage of justice” standard relates to whether the verdict undermines the

fairness, integrity, or reputation of the proceedings).

8 McDowell, 498 F.3d at 312.

9 See Delgado, 672 F.3d at 330.

10 United States v. Gallo, 927 F.2d 815, 820 (5th Cir. 1991).

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accomplice instruction, may be sustained on the uncorroborated testimony of

an accomplice so long as ‘the testimony is not incredible or otherwise

insubstantial on its face.’”11 The district court gave the jury an accomplice

instruction. Gutierrez testified that Suarez assisted her in selling

methamphetamine and divided the proceeds with her. Her testimony is

neither incredible nor insubstantial on its face.

Gutierrez’s testimony was not the only evidence of Suarez’s involvement

in the drug distribution conspiracy. Officers testified that they found Suarez

in the master bedroom with Gutierrez and that the bedroom contained a

distributable quantity of methamphetamine, packing and weighing materials,

security cameras, guns, and body armor. Puckett testified that Suarez was

usually present when he bought drugs from Gutierrez, Suarez had answered

Gutierrez’s phone before, and Puckett went to the hotel where he was arrested

because he assumed the male officer who answered Gutierrez’s phone was

Suarez. Suarez argues that Gutierrez and Puckett are unreliable witnesses,

but we generally “will not disturb (the jury’s) verdict [or] weigh the credibility

of witnesses.”12 The record is not “devoid of evidence pointing to guilt,” nor is

the evidence “so tenuous that a conviction is shocking.”13

B

We also review the conviction on Count II for plain error. Count II

charged Suarez with violating 18 U.S.C. § 924(c) by possessing firearms in

furtherance of a drug trafficking crime. The firearms identified in Count II

11 United States v. Arledge, 553 F.3d 881, 888 (5th Cir. 2008) (quoting United States

v. Osum, 934 F.2d 1394, 1405 (5th Cir. 1991)).

12 Id. (alteration in original) (quoting United States v. Garner, 581 F.2d 481, 485 (5th

Cir. 1978)).

13 See United States v. Phillips, 477 F.3d 215, 219 (5th Cir. 2007) (quoting United

States v. Avants, 367 F.3d 433, 449 (5th Cir. 2004)).

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were the sawed-off Winchester .20 gauge shotgun and the Davis .380 caliber

pistol.

To support a conviction for possession of a firearm in furtherance of a

drug trafficking crime, the Government must prove that Suarez had either

actual or constructive possession of a firearm14 and that the possession

“further[ed], advance[d], or help[ed] forward” the drug trafficking offense.15

The following non-exclusive factors are relevant to determining whether

possession is “in furtherance” of a drug trafficking crime: (1) the type of drug

activity conducted; (2) the accessibility of the firearm; (3) the type of firearm;

(4) whether the firearm is stolen; (5) the legality of the possession; (6) whether

the gun is loaded; (7) the proximity of the weapon to the drugs; and (8) the time

and circumstances under which the firearm is found.16 “The mere presence of

a firearm” is insufficient.17 When evidence of more than one firearm is

presented to the jury to support a single count under 18 U.S.C. § 924(c)(1)(A),

the jury is not required to agree unanimously on which weapon the defendant

possessed.18

On plain error review, we conclude that the record is sufficient to sustain

the conviction under § 924(c)(1)(A), and the consequent imposition of a fiveyear

mandatory minimum sentence under § 924(c)(1)(A)(i). The indictment

alleged that “[o]n or about February 4, 2015,” the date that the search warrant

14 See United States v. Cardenas, 748 F.2d 1015, 1019 (5th Cir. 1984).

15 United States v. Walker, 828 F.3d 352, 354 (5th Cir. 2016) (quoting United States v.

Palmer, 456 F.3d 484, 489-90 (5th Cir. 2006)).

16 Id. at 354-55 (quoting Palmer, 456 F.3d at 490); see also United States v. Smith, __

F.3d __, ___, 2017 WL 6616805, at *3 (5th Cir. 2017).

17 Walker, 828 F.3d at 354.

18 See United States v. Correa-Ventura, 6 F.3d 1070, 1087 (5th Cir. 1993). But see id.

at 1087 n.35 (noting that verdict specificity may be necessary for a court to impose the

appropriate penalty); cf. United States v. Campbell, 775 F.3d 664, 669 (5th Cir. 2014)

(explaining that multiple counts under § 924(c) may require the government to prove, and

the jury to find, that the defendant possessed more than one firearm, but finding no plain

error in not so instructing the jury).

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was executed, Suarez possessed the Winchester shotgun and the Davis .380

caliber pistol in furtherance of a drug trafficking crime.

There is some question as to whether the Winchester shotgun could

function as a firearm at the time it was found in the master bedroom. The

shotgun was partially disassembled and was in three pieces. The stock was

not connected and was lying on the floor under the bed. The portion of the

shotgun that contained a shell was in a black bag under the mattress, and the

top piece of the shotgun was along the bed rail. The testimony at trial was that

in this disassembled condition, the weapon could be fired but that it would not

be safe to do so because “[t]here's not a very good spot to hold onto the shotgun

unless you’re holding near the breach.” There was “a possibility, a very distinct

one” that “if you had made an attempt to fire that weapon, you probably would

have injured yourself.” There was no evidence as to how quickly the

Winchester could have been re-assembled. Nevertheless, we cannot say that

“the record is ‘devoid of evidence pointing to guilt,’ or . . . ‘the evidence on a key

element of the offense [i]s so tenuous that a conviction would be shocking’”19

had the jury based its verdict on the Winchester shotgun.

In any event, both the Winchester and the pistol were in the same room

as, and accessible to, Suarez when the police found him, as were the drugs and

distribution paraphernalia, surveillance equipment, and body armor.

Gutierrez testified that Suarez knew about the Winchester and that he gave

her the pistol. Suarez was an overnight guest at the house. Officer Benavides

testified that Sharp identified Suarez as “consul” for Gutierrez and stated that

19 United States v. McDowell, 498 F.3d 308, 312 (5th Cir. 2007) (alteration in original)

(quoting United States v. Knezek, 964 F.2d 394, 400 n.14 (5th Cir. 1992)); see also United

States v. Delgado, 672 F.3d 320, 330-31 (5th Cir. 2012) (en banc) (reaffirming these standards

as “proper applications of the plain-error test to claims of evidentiary insufficiency”).

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Suarez would sit with a firearm during drug deals. Another officer testified

that Suarez’s role as a “male overseer” to Gutierrez was typical in drug deals.

The jury was entitled to credit this evidence and testimony and find that

Suarez actively assisted Gutierrez in her drug trafficking operations. There is

support for the jury’s conclusion that Suarez possessed at least one of the two

firearms found in the master bedroom and that such possession furthered the

drug trafficking crimes.20

Suarez also challenges his conviction on Count II based on the failure of

the district court to require that the jury unanimously determine which

firearm formed the basis of the conviction. Because he did not object to the

instruction at trial, we review for plain error.21 We have previously approved

of the pattern jury instruction given at trial as a correct statement of the law.22

We have also held that the jury need not unanimously agree on which firearm

supports the conviction for this offense.23 For purposes of a conviction under

18 U.S.C. § 924(c)(1)(A), whether a defendant used a particular firearm

pertains to the means by which the crime was committed, and therefore a jury

is not required to determine unanimously that a particular firearm was used

20 See, e.g., United States v. Zamora, 661 F.3d 200, 210-11 (5th Cir. 2011) (determining

evidence was sufficient to show defendant possessed a handgun in furtherance of a drug

trafficking crime; handgun was found in defendant’s residence, easily accessible, and loaded,

and drugs were found in defendant’s car); United States v. Holley, 831 F.3d 322, 329-30 (5th

Cir. 2016) (determining evidence was sufficient to show defendant possessed a firearm in

furtherance of a drug trafficking crime because the gun was located near the defendant, a

large caliber and semi-automatic, possessed illegally, was near cash, and in the same house

as distributable quantify of drugs).

21 United States v. Fuchs, 467 F.3d 889, 900 (5th Cir. 2006) (“[J]ury instructions that

were not objected to are reviewed for plain error.”).

22 See United States v. Montes, 602 F.3d 381, 386-87 (5th Cir. 2010).

23 United States v. Correa-Ventura, 6 F.3d 1070, 1087 (5th Cir. 1993); see also United

States v. O’Brien, 560 U.S. 218, 235 (2010) (holding that the status of a firearm as a machine

gun is an element, rather than a sentencing factor when used to support an enhanced

sentence, but upholding a guilty plea by the defendants to a violation of § 924(c) that listed

three different firearms).

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when an indictment charges that more than one firearm was possessed.24 This

is distinct from what is required to impose a statutory minimum sentence

under § 924(c)(1)(B)(i), as we will discuss below.25 Possession of a particular

type of firearm is an element of the offense for purposes of the statutory tenyear

minimum sentence but not for a conviction of possession of a firearm in

furtherance of drug trafficking crime.26 The district court therefore did not err

in failing to instruct the jury to specify upon which firearm it based the

conviction under § 924(c)(1)(A). While the jury instruction does not affect the

validity of Suarez’s conviction, it does affect the validity of his sentence, as we

consider in section III.

C

Because Suarez properly preserved his challenge to the verdicts on

Counts III and IV, we review the convictions on those counts de novo.27 On a

sufficiency-of-the-evidence challenge, however, de novo review permits us to

evaluate only the reasonableness of the jury’s verdict, and not whether we

believe that verdict was correct.28 Counts III and IV charged Suarez with

possession of unregistered firearms—the Winchester and the Ithaca—in

violation of 26 U.S.C. § 5861(d). “[P]ossession may be actual or constructive.”29

24 See generally Richardson v. United States, 526 U.S. 813, 817 (1999) (“Where, for

example, an element of robbery is force or the threat of force, some jurors might conclude that

the defendant used a knife to create the threat; others might conclude he used a gun. But

that disagreement—a disagreement about means—would not matter as long as all 12 jurors

unanimously concluded that the Government had proved the necessary related element,

namely, that the defendant had threatened force.”).

25 See generally Alleyne v. United States, 133 S. Ct. 2151, 2160-63 (2013).

26 See id. at 2162 (“[B]ecause the fact of brandishing aggravates the legally prescribed

range of allowable sentences, it constitutes an element of a separate, aggravated offense that

must be found by the jury.”).

27 United States v. Grant, 683 F.3d 639, 642 (5th Cir. 2012).

28 United States v. Redd, 355 F.3d 866, 872 (5th Cir. 2003).

29 United States v. Mergerson, 4 F.3d 337, 348 (5th Cir. 1993).

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Constructive possession is established when the evidence supports “a plausible

inference that the defendant had knowledge of and access to the weapon or

contraband.”30

Police found parts of the Winchester in plain sight and close proximity

to Suarez, who was an overnight guest in the house.31 Gutierrez and

Benavides testified that Suarez knew of the Winchester and sometimes carried

a sawed-off shotgun during drug deals. The Government therefore met its

burden to establish constructive possession.

The evidence is also sufficient to support the conviction as to Count IV,

involving the Ithaca. Puckett testified that Suarez was usually at the house

when Puckett purchased drugs and that the Ithaca shotgun was “always” by

the dresser in the master bedroom. Though Gutierrez testified that neither

she nor Suarez knew the Ithaca shotgun was in the house, a reasonable jury

could have credited Puckett’s testimony over Gutierrez’s.32 Puckett’s

testimony supports an inference of constructive possession.33

III

Congress has determined that if a person possessed “a short-barreled

rifle, short-barreled shotgun, or semiautomatic assault weapon,” in committing

a crime defined in 18 U.S.C. § 924(c), “the person shall be sentenced to a term

of imprisonment of not less than 10 years.”34 Suarez challenges the district

30 Id. at 349.

31 Cf. United States v. Zamora, 661 F.3d 200, 210-11 (5th Cir. 2011) (evidence

sufficient to show defendant possessed a handgun in furtherance of a drug trafficking crime

when handgun was found in defendant’s residence).

32 See United States v. Arledge, 553 F.3d 881, 888 (5th Cir. 2008); see also United States

v. Sinclair, 438 F.2d 50, 52-53 (5th Cir. 1971) (noting that, even when the conviction rests on

“the testimony of convicts,” “the verdict of a jury must be sustained if there is substantial

evidence, taking the view most favorable to the government, to support it” (quoting Glasser

v. United States, 315 U.S. 60, 80 (1942))).

33 See Mergerson, 4 F.3d at 349.

34 18 U.S.C. § 924(c)(1)(B)(i).

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court’s imposition of a consecutive 120-month (ten-year) mandatory minimum

sentence under § 924(c)(1)(B)(i) as to Count II. Because he failed to object to

the imposition of this mandatory minimum sentence in the district court, we

review for plain error.35 A sentencing error is plain if it is contrary to Supreme

Court or circuit precedent.36 The error affects substantial rights if “there is ‘a

reasonable probability that, but for the error, [the defendant] would have

received a lesser sentence.’”37 We may exercise our discretion to remand for

resentencing if “the error ‘seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings.’”38 The Government concedes plain error

and, in its brief, did not oppose remand. At oral argument, the Government

affirmatively urged this court to remand and to take into account its concession

of error.39 Though we must “give the issue independent review,”40 we conclude

that remand is warranted.

The district court’s imposition of the ten-year mandatory minimum

sentence was plain error. The Supreme Court determined in United States v.

O’Brien41 that a court may not impose a thirty-year mandatory minimum

under § 924(c)(1)(B)(ii), unless the jury determines beyond a reasonable doubt

that the firearm at issue was a machine gun.42 Subsequently, in Alleyne v.

United States,43 the Supreme Court held that any fact issue that increases the

35 United States v. Lopez-Velasquez, 526 F.3d 804, 806 (5th Cir. 2008) (per curiam).

36 United States v. Scott, 821 F.3d 562, 570-71 (5th Cir. 2016).

37 United States v. Williams, 821 F.3d 656, 658 (5th Cir. 2016) (quoting United States

v. Hebron, 684 F.3d 554, 559 (5th Cir. 2012)).

38 United States v. Duhon, 541 F.3d 391, 397 (5th Cir. 2008) (alteration in original)

(quoting United States v. Olano, 507 U.S. 725, 732 (1993)).

39 See Scott, 821 F.3d at 571.

40 United States v. Castaneda, 740 F.3d 169, 171 (5th Cir. 2013) (per curiam) (quoting

United States v. Hope, 545 F.3d 293, 295 (5th Cir. 2008)).

41 560 U.S. 218 (2010).

42 Id. at 235.

43 133 S. Ct. 2151 (2013).

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mandatory minimum sentence must be submitted to a jury and found beyond

a reasonable doubt.44 A mandatory minimum sentence of five years is

generally required under 18 U.S.C. § 924(c)(1)(A)(i) for possession of a firearm

in furtherance of a drug crime, but, as earlier noted, the minimum term of

imprisonment increases to ten years if the firearm is a sawed-off shotgun.45

The Supreme Court has held that jury unanimity is required in a federal

criminal trial as to each element of a federal crime.46 Read together, the

Supreme Court’s decisions make clear that the mandatory minimum ten-year

sentence under § 924(c)(1)(B)(i) could not be imposed in the present case unless

the factfinder at trial, which was a jury, unanimously found beyond a

reasonable doubt that Suarez possessed a sawed-off shotgun in furtherance of

a drug trafficking crime. The jury instruction did not require that the jury find

which of the two firearms charged in Count II—the pistol or the sawed-off

Winchester shotgun—formed the basis of its verdict. One or more jurors could

have failed to find that the Winchester sawed-off shotgun was possessed in

furtherance of drug trafficking. In light of Alleyne, the district court’s

sentencing error was plain.47

This error affected Suarez’s substantial rights. Suarez received a

sentence of imprisonment that the district court said it would not have imposed

44 Id. at 2155.

45 See 18 U.S.C. § 924(c)(1)(B)(i).

46 See, e.g., Richardson v. United States, 526 U.S. 813, 817 (1999) (observing “that a

jury in a federal criminal case cannot convict unless it unanimously finds that the

Government has proved each element” of the offense) (citing Johnson v. Louisiana, 406 U.S.

356, 369–371 (1972) (POWELL, J., concurring); Andres v. United States, 333 U.S. 740, 748

(1948); FED. R. CRIM. P. 31(a)); see also Apprendi v. New Jersey, 530 U.S. 466, 477 (2000)

(explaining that “trial by jury has been understood to require that ‘the truth of every

accusation, whether preferred in the shape of indictment, information, or appeal, should

afterwards be confirmed by the unanimous suffrage of twelve of [the defendant's] equals and

neighbours . . . .’”) (quoting 4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF

ENGLAND 343 (1769)).

47 See United States v. Scott, 821 F.3d 562, 570-71 (5th Cir. 2016).

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but for its conclusion that a mandatory minimum ten-year sentence under

§ 924(c)(1)(B)(i) was required. The district court’s statement establishes with

reasonable probability that Suarez would have received a lesser sentence but

for the court’s error.

The error seriously affects the fairness, integrity, and public reputation

of the judicial process for a number of reasons. Principles found in Alleyne

itself support this conclusion. The Court recognized in Alleyne that “[e]levating

the low-end of a sentencing range heightens the loss of liberty associated with

the crime: the defendant’s ‘expected punishment has increased as a result of

the narrowed range’ and ‘the prosecution is empowered, by invoking the

mandatory minimum, to require the judge to impose a higher punishment than

he might wish.’”48 The Supreme Court reasoned that “[t]his reality

demonstrates that the core crime and the fact triggering the mandatory

minimum sentence together constitute a new, aggravated crime, each element

of which must be submitted to the jury.”49 In this same vein, the Court

observed that “[w]hen a finding of fact alters the legally prescribed punishment

so as to aggravate it, the fact necessarily forms a constituent part of a new

offense and must be submitted to the jury.”50 The error here is a Sixth

Amendment violation, not solely a sentencing error. When a court fails to

submit an issue to a jury, in violation of the Sixth Amendment, “the fairness,

integrity, or public reputation of judicial proceedings” is implicated, when, as

here, the consequences for the defendant are an additional five years of

48 Alleyne v. United States, 133 S. Ct. 2151, 2161 (2013) (quoting Apprendi v. New

Jersey, 530 U.S. 466, 522 (2000) (THOMAS, J., concurring)).

49 Id.

50 Id. at 2162.

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imprisonment and the evidence that would have supported a jury’s finding on

the omitted element is not “‘overwhelming’ or ‘essentially uncontroverted.’”51

The Court explained in Alleyne that the Sixth Amendment is violated

because “[i]t is no answer to say that the defendant could have received the

same sentence with or without that fact [that must be found by a jury].”52 That

is because “[i]t is obvious, for example, that a defendant could not be convicted

and sentenced for assault, if the jury only finds the facts for larceny, even if

the punishments prescribed for each crime are identical. One reason is that

each crime has different elements and a defendant can be convicted only if the

jury has found each element of the crime of conviction.”53 The Court explained

that an aggravating fact is “an element of a separate, aggravated offense that

must be found by the jury, regardless of what sentence the defendant might

have received if a different range had been applicable.”54 “Indeed, if a judge

were to find a fact that increased the statutory maximum sentence, such a

finding would violate the Sixth Amendment, even if the defendant ultimately

received a sentence falling within the original sentencing range (i.e., the range

applicable without that aggravating fact).”55 In the present case, if we

permitted the sentence to stand, Suarez would be imprisoned for an offense

that a jury never found he committed. The district court said that it would not

punish Suarez as it did but for the ten-year mandatory minimum sentence,

which the district court erroneously thought applied. A Sixth Amendment

violation seriously affects the fairness, integrity, and public reputation of the

judicial process in this case because it results in the imposition of a sentence

51 United States v. Cotton, 535 U.S. 625, 633 (2002) (quoting Johnson v. United States,

520 U.S. 461, 470 (1997)).

52 133 S. Ct. at 1262.

53 Id.

54 Id. (emphasis in original).

55 Id.

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of an additional five years of imprisonment for a crime for which there was no

conviction, and the evidence that might have supported a conviction under

§924(c)(1)(B)(i) is not strong.

This determination regarding the fourth prong of plain error review is

consistent with prior decisions of this court, even absent a Sixth Amendment

violation.56 Similarly, in United States v. John,57 we held that the fourth prong

was met when the guidelines sentencing range was improperly calculated, and

the sentence imposed exceeded the applicable range by 21 months of

imprisonment.58 We based that determination on a number of considerations,

including the fact that the sentence was reached without consideration of the

correct range and because, were the sentence affirmed, it would be imposed

without any findings that ordinarily must accompany a sentence that is

significantly above the guidelines range.59 We know in the case before us today

that the district court would not have imposed an additional five years of

imprisonment had it known that the mandatory minimum ten-year sentence

was inapplicable.

56 See United States v. Mudekunye, 646 F.3d 281, 290-91 (5th Cir. 2011) (per curiam)

(concluding the plain error standard was satisfied when the sentence of 97 months of

imprisonment was 19 months above the correct range); United States v. Sandlin, 589 F.3d

749, 757-58 (5th Cir. 2009) (concluding, in a case in which the defendant was sentenced to 36

months of imprisonment and the correct guidelines range was 30-36 months, that “the

dramatic increase in sentence satisfies the fourth prong by affecting the fairness of this

proceeding. We therefore exercise our discretion to correct the unobjected-to error”); United

States v. Garza-Lopez, 410 F.3d 268, 275 (5th Cir. 2005) (finding the fourth prong of plain

error satisfied when the applicable range was 33-41 months of imprisonment and the

sentence was 77 months); United States v. Alfaro, 408 F.3d 204, 209-10 (5th Cir. 2005)

(concluding that the fourth prong of plain error was satisfied when the sentence was 50

months and the correct Guidelines range was 15-21 months); United States v. Villegas, 404

F.3d 355, 364-65 (5th Cir. 2005) (per curiam) (vacating and remanding after applying plain

error standard when the sentence was 21 months and the correct advisory range was 10-16

months).

57 597 F.3d 263 (5th Cir. 2010).

58 Id. at 286.

59 Id.

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In a case involving monetary restitution, rather than liberty, this court

vacated a sentence after applying the plain error standard of review when the

defendant was ordered to pay $164,988.98, and “without the error, the court

could not have ordered restitution in an amount greater than $54,384.43.”60

Resentencing was similarly required after plain error review when the award

exceeded the permissible amount of restitution by $70,000.61 It is difficult, if

not impossible, to place a monetary value on one’s liberty. But it is apparent

that being subjected to five additional years of imprisonment without any jury

finding to authorize that punishment is at least as offensive to notions of

fairness as the imposition of restitution that is excessive by $70,000.

We may exercise our discretion to vacate a sentence imposed without the

requisite finding by a jury62 if the evidence of the unproven factual predicate

for a statutory minimum sentence enhancement is not “‘overwhelming’ and

‘essentially uncontroverted.’”63 Here, the evidence regarding the Winchester

shotgun is not overwhelming and essentially uncontroverted.

IV

The dissenting opinion contends that we should not vacate the sentence

or remand for resentencing, advancing several arguments. First, the

dissenting opinion asserts that Suarez failed to address the fourth prong of

plain error review in his briefing in our court.64 We disagree. There is no

requirement that a defendant use the words “fourth prong” in order to raise

sufficiently an issue that is subject to plain error review. Federal Rule of

60 United States v. Maturin, 488 F.3d 657, 663 (5th Cir. 2007).

61 See United States v. Inman, 411 F.3d 591, 595 (5th Cir. 2005).

62 See United States v. Duhon, 541 F.3d 391, 397 (5th Cir. 2008).

63 United States v. Cotton, 535 U.S. 625, 633 (2002) (quoting Johnson v. United States,

520 U.S. 461, 470 (1997)) (finding evidence overwhelming and uncontroverted that a drug

conspiracy involved 50 or more grams of cocaine when evidence showed over a kilogram).

64 Post at 23.

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Appellate Procedure 28(a)(8)(A) requires that an appellant’s brief contain his

or her “contentions and the reasons for them, with citations to the authorities

and parts of the record on which the appellate relies.”65 Under “a prudential

construct that requires the exercise of discretion,” “[f]ailure to satisfy the

requirements of Rule 28 . . . ordinarily constitutes abandonment of the

issue.”66 However, in exercising our discretion on this matter, “we must

liberally construe briefs in determining what issues have been presented for

appeal.”67

Suarez’s brief sufficiently presented his argument. His contentions

regarding the ten-year mandatory minimum sentence are pertinent to his

positions regarding both the Sixth Amendment violation and the sentence of

imprisonment itself, both of which Suarez concedes in his brief are reviewed

under the plain error standard. In contending that the district court plainly

erred when it failed to require the jury to find which specific firearm formed

the basis of the guilty verdict on Count II, Suarez explained that prior to trial,

in the Notice of Penalty issued by the court, he was apprised that Count II

carried a term of imprisonment of not less than 5 years. His brief also recounts

that in his initial appearance, the magistrate judge admonished him that the

minimum sentence for Count II was five years (not ten years) and that no

mention was made of the ten-year minimum. He asserts in his brief that the

failure of the court to require the jury to indicate which firearm or firearms

listed in the indictment was possessed in furtherance of a drug trafficking

crime was not a “minor” omission because if the jury had “attributed the pistol

to Mr. Suarez and not the disassembled Winchester shotgun, the mandatory

minimum would have remained at five years instead of being increased to ten.”

65 FED. R. APP. P. 28(a)(8)(A).

66 United States v. Miranda, 248 F.3d 434, 443 (5th Cir. 2001).

67 Id. at 444.

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Suarez argues that the district court’s “hand was forced into sentencing Mr.

Suarez to an enhanced [ten-year] minimum sentence that nobody was

anticipating.” The brief then quotes the district court’s statement that it had

no discretion regarding the length of the sentence because of its conclusion that

a ten-year mandatory minimum sentence applied. These are facts, not

boilerplate assertions about the fourth prong of plain error, that pertain to the

gravity of the Sixth Amendment violation and corresponding error in

sentencing.

The very next section of Suarez’s brief, challenging the sentence of 180-

months of imprisonment, reflects that Suarez filed a notice of no objections to

the PSR, conceding that his sentencing arguments are subject to plain error

review. The first sub-heading in this section of the brief asserts that “[b]y

judicially fact-finding the enhancement increasing the mandatory minimum

sentence from five year to ten years, the district court removed a required factquestion

[sic] from the province of the jury.” This again reflects the argument

that the Sixth Amendment violation and ten-year minimum sentence are

inextricably related. The brief then discusses Supreme Court decisions which

have held that any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and the brief

asserts that “the finding that Suarez possessed the sawed-off shotgun in

furtherance of drug-trafficking activity was a fact question to be decided by the

jury.” He continues with further argument, including the assertion that his

“sentence of 180 months was procedurally unreasonable because it was based

upon a judicial fact-finding of an issue that was required to be submitted to,

and found by the jury. Appellant’s sentence was increased by five years due to

an enhancement he had no notice of, and that was not proven to the requisite

burden of proof. Therefore, this sentence should be vacated.” These facts

coupled with citations to Supreme Court decisions regarding the Sixth

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Amendment’s requirements are more than adequate to support a conclusion

that the Sixth Amendment error and consequent sentencing error seriously

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

None of the many decisions of our court cited by the dissenting opinion

hold that in order to brief the fourth prong of plain error review adequately,

the words “fairness, integrity or public reputation of judicial proceedings” must

be used.68 To the contrary, the cases cited hold only that there must be a

“showing” regarding the fourth prong.69 A “showing” regarding the fourth

prong has been made by Suarez in his initial brief as to why the sentence

imposed for a crime for which no jury convicted him must be vacated, if the

principles sought to be embodied in the fourth prong have any real meaning

and power. This court evaluates substantive, not formulaic, arguments and

rules accordingly. Suarez explained that his sentence is predicated on a crime

that the jury never found was committed, the district court would not have

imposed the sentence but for its error, and that his sentence of imprisonment

was increased by five years. The fourth prong has not only been adequately

briefed, but satisfied.

The dissenting opinion quotes this court’s unpublished decision in

United States v. Monroe,70 in support of the proposition that “Suarez’s brief

waives any claim to plain-error relief for the reasons we identified” in that

68 Post at 24 (citing United States v. Caravayo, 809 F.3d 269, 273−74 (5th Cir. 2015)

(per curiam); United States v. Rivera, 784 F.3d 1012, 1018 n.3 (5th Cir. 2015); United States

v. Andaverde-Tinoco, 741 F.3d 509, 523 (5th Cir. 2013); United States v. Monroe, 629 F. App’x

634, 637−38 (5th Cir. 2015) (per curiam) (unpublished); United States v. Carrillo-Gonzales,

627 F. App’x 366, 367 (5th Cir. 2015) (per curiam) (unpublished); United States v. Handy,

647 F. App’x 296, 300−01 (5th Cir. 2016) (per curiam) (unpublished); and United States v.

Neria, 628 F. App’x 256, 258 (5th Cir. 2015) (per curiam) (unpublished)).

69 See id.

70 629 F. App’x 634 (5th Cir. 2015) (per curiam) (unpublished).

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case.71 The only error alleged on appeal in Monroe was “that the district court

did not have a sufficient factual basis to accept his plea.”72 The defendant

sought reversal of his conviction. His sentence was not at issue. This court

held with regard to the third prong of the plain error standard of review, that

Monroe had failed to show that his substantial rights were affected because he

failed to “show a reasonable probability that, but for the error, he would not

have entered the plea.”73 With regard to the fourth prong of plain error review,

we explained that the defendant had “pointed to nothing beyond” the alleged

failure to require presentation of a sufficient factual basis to accept Monroe’s

guilty plea to establish that the error impugned the fairness, integrity or public

reputation of the court system.74 We did not hold in Monroe that a defendant’s

brief is inadequate unless it expressly recites the well-known elements of the

fourth prong of plain error review.

Consistent with Monroe, Suarez has pointed to more than the Sixth

Amendment error. He has “pointed to”75 facts. These include the fact that the

district court stated that “if it weren’t for the mandatory minimums, I probably

would go less than [120 months], but I don’t have that power.” He pointed to

the fact that the result of the district court’s error was the imposition of a tenyear

mandatory minimum sentence of imprisonment.

The circumstances of this case involve a “material and substantial” oversentencing,

76 a government concession of plain error, and facts that do not

overwhelming support the conclusion that the disassembled Winchester was

71 Post at 27.

72 Monroe, 629 F. App’x at 635.

73 Id. at 636 (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004)).

74 Id. at 638.

75 Id.

76 United States v. John, 597 F.3d 263, 289 (5th Cir. 2010).

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possessed in furtherance of drug trafficking at the time alleged. The fourth

prong of plain error review is satisfied.

The dissenting opinion argues that the facts in this case do not “seriously

call[] into question the integrity of our judicial system,” and that “[n]o one

should reasonably think that the result here is unfair to this unobjecting

defendant.”77 In determining on plain error review whether Sixth Amendment

error seriously affects the fairness, integrity, or public reputation of judicial

proceedings, courts should consider whether evidence of the element of the

crime that was not submitted to the jury was “‘overwhelming’ and ‘essentially

uncontroverted.’”78 As discussed above regarding the sufficiency of the

evidence to support a conviction under Count II and the consequent five-year

mandatory minimum sentence, we cannot say that there was no evidence to

support a reasonable juror’s conclusion that Suarez possessed the Winchester

shotgun in furtherance of drug trafficking. But that evidence does not

overwhelmingly establish that the disassembled Winchester was possessed in

furtherance of drug trafficking at the time alleged in the indictment.

It is clear that Sixth Amendment error flowing from the failure to submit

an element of a crime to a jury “may be forfeited . . . by the failure to make

timely assertion of the right,” and that when a jury “surely” would have found

the missing element, a defendant should not be permitted to escape the more

severe punishment prescribed by Congress.79 The Supreme Court made plain

in Cotton that “[t]he real threat then to the ‘fairness, integrity, and public

reputation of judicial proceedings’ would be if respondents, despite the

overwhelming and uncontroverted evidence that they were involved in a vast

77 Post at 28.

78 United States v. Cotton, 535 U.S. 625, 633 (2002) (quoting Johnson v. United States,

520 U.S. 461, 470 (1997)).

79 Id. at 634 (quoting Yakus v. United States, 321 U.S. 414, 444 (1944)).

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drug conspiracy, were to receive a sentence prescribed for those committing

less substantial drug offenses because of an error that was never objected to at

trial.”80 But we cannot say, based on the facts of this case, that the jury

“surely” would have found that Suarez possessed the Winchester shotgun in

furtherance of drug trafficking at the time alleged in the indictment. We

therefore exercise the discretion under the plain error standard of review to

remand to the district court for resentencing.

* * *

For the foregoing reasons, Suarez’s convictions on all counts are

AFFIRMED. However, we VACATE the district court’s sentencing order as to

Count II and REMAND for resentencing.

80 Id.

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JERRY E. SMITH, Circuit Judge, dissenting:

Mr. Suarez has plenty of advocacy on his behalf; the rule of law has none.

By advancing all the unbriefed points of plain error, the panel majority takes

up the considerable slack left by counsel’s total failure to argue the fourth

prong, and the government wilts, at best, and begs on Suarez’s behalf, at worst.

Yet at oral argument, the most the Department of Justice could do to support

its confession of error was to say that “it feels like the right thing to do.” Alas.

The panel decision marks a new low in this court’s plain-error jurisprudence,

although it is a bonanza for lawyers who submit inadequate briefs. It

would be malpractice for any Federal Public Defender or criminal defense

counsel in Texas, Louisiana, or Mississippi not to cite the majority opinion for

the proposition that this circuit no longer requires plain error to be briefed on

appeal. The well-intentioned majority opinion is error in so many respects that

it is hard to know where to begin. I agree with affirming the convictions but

respectfully dissent from the inexplicable decision to vacate the sentence.

At its core, the majority opinion overlooks the essential character of the

American system of justice as adversarial, not inquisitorial. We expect a criminal

defendant to raise issues and objections in the trial court and, whether or

not they are articulated there, to bring them again as an appellant. Alert to

this potential deficiency, this panel, before oral argument, sent the lawyers a

notice requesting supplemental briefing.1 In response, the only case the

1 The first two paragraphs of the notice read as follows:

Some decisions of this court suggest that the burden is on the defendant

appellant to show entitlement to plain-error review and that an argument that a

sentence is reversible plain error is waived or abandoned for failure to demonstrate

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government could muster to support fourth-prong relief was the unpublished

(and hence non-precedential) opinion in Neria that was listed in the notice.

Despite having the issue flagged in advance, neither the government nor

Suarez’s attorney is able to point to a single published case in which we have

given plain-error relief where the defendant did not adequately show how each

of the required four prongs was satisfied.

Our published caselaw is unequivocal:

[The defendant’s] statutory challenge cannot succeed on plain error

review because he fails to argue that the alleged error affected the fairness,

integrity, or public reputation of judicial proceedings. “We have

. . . refused to correct plain errors when as here, the complaining party

makes no showing as to the fourth prong.” United States v. Rivera,

784 F.3d 1012, 1018 n.3 (5th Cir. 2015); see United States v. Andaverde-

Tinoco, 741 F.3d 509, 523 (5th Cir. 2013) (“[T]he burden is on the defendant

to demonstrate that the error affects the fairness, integrity, or

public reputation of judicial proceedings.”) . . . .

United States v. Caravayo, 809 F.3d 269, 273−74 (5th Cir. 2015) (per curiam).

satisfaction of each of the four prongs of the plain-error test in the appellant’s opening

brief. More specifically, this precedent suggests that the court will not exercise

its plain-error discretion if the appellant does not specifically show how the alleged

sentencing error seriously affects the fairness, integrity, or public reputation of judicial

proceedings under, e.g., Puckett v. United States, 556 U.S. 129 (2009). Some

precedent suggests also that this court is not bound by the government’s concession

of reversible plain error.

The letter briefs should discuss whether the issue is waived in this case for failure

of adequate briefing. Relevant caselaw includes United States v. Caravayo, 809 F.3d

269, 273−74 (5th Cir. 2015) (per curiam); United States v. Rivera, 784 F.3d 1012,

1018 n.3 (5th Cir. 2015); United States v. Andaverde-Tinoco, 741 F.3d 509, 523 (5th

Cir. 2013); United States v. Monroe, 629 F. App’x 634, 637−38 (5th Cir. 2015) (per

curiam); United States v. Carrillo-Gonzales, 627 F. App’x 366, 367 (5th Cir. 2015)

(per curiam); United States v. Handy, 647 F. App’x 296, 300−01 (5th Cir. 2016) (per

curiam); and United States v. Neria, 628 F. App’x 256, 258 (5th Cir. 2015) (per curiam).

These are only examples, and counsel is free to refer to other relevant

authorities.

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Even showing that the first three prongs are met is not enough. “[T]he defendant

points to nothing beyond the district court’s error and the increase in her

sentence that the error may have caused.” Rivera, 784 F.3d at 1018.

Suarez’s supplemental letter answering the pre-argument inquiry admits

that his briefing on appeal2 falls well short of the above standard. He concedes

that

[t]he only thing the brief failed to do was to go through each prong of

plain-error review analysis step by step but despite failing to do so, it is

clear from the record and the brief each prong has been met . . . . As it

relates to the 4th prong, Appellant met it’s [sic] burden that the error

affected the fairness, integrity, or public reputation of the judicial proceedings.

While Appellant did not use those exact words, the fact

Appellant’s sentence was increased by 5 years contrary to Supreme

Court precedent, it clearly affected the fairness of the proceedings.

The majority’s first shortcoming, therefore, is its refusal to enforce the wellestablished

requirement that to obtain plain-error relief, an appellant must

adequately address the four prongs in his brief. In his supplemental letter, in

attempting to show how his brief sufficiently addressed plain error, Suarez

points to only three pages: “The issue was clearly presented for appeal in pages

26 to 28 of the Appellants [sic] Brief.” Although in its desperate effort to rescue

Suarez from a ditch, the majority ranges far and wide throughout the brief to

find snippets in support of adequate arguments, Suarez directs us only to pages

26 to 28.

I will make it easy for future defense counsel to use the majority’s opinion

as an excuse for inadequate briefing, by setting forth in toto the argument contained

on pages 26−28 of Suarez’s brief. It shows how little this circuit now

2 Suarez filed an opening brief but not a reply brief.

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requires to make a successful fourth-prong argument. I reproduce pages 26−28

in the footnote.3

3 The brief reads as follows:

The District Court plainly erred by not requiring a jury finding on which specific

firearms formed the basis of the guilty verdict reached on Count 2.

In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435

(2000), and Alleyne v. United States, 133 S. Ct. 2151, 2158, 186 L. Ed. 2d 314

(2013), the Supreme Court held that factual determinations that increase

maximum or minimum sentences, other than a prior conviction, must be found by

a jury beyond a reasonable doubt (or admitted by the defendant). The recent Fifth

Circuit opinion in United States v. Haines, further explored this longstanding rule

and found “facts that increase the mandatory minimum sentence are therefore

elements and must be submitted to the jury and found beyond a reasonable doubt.”

United States v. Haines, 803 F.3d 713, 738 (5th Cir. 2015).

In the Indictment returned by the Grand Jury, Count 2 listed two specific

weapons, a short-barreled shotgun and a pistol. ROA.13. In the Notice of

Penalty, Appellant was put on notice that this count carried a term of

imprisonment “of not less than 5 years.” ROA.16. At Mr. Suarez’ initial

appearance, the honorable Don Bush admonished Mr. Suarez and again stated

the minimum sentence for Count 2 was five years. ROA.176 at 12−15. Suarez

was never admonished that the mandatory minimum was, in actuality a ten year

minimum because of the allegation of the sawed-off shotgun. This fact was not

known to him until it was revealed within the Presentence Report. ROA.665.

When the jury verdict was returned, the verdict for Count 2 simply found Mr.

Suarez guilty as to the offense charged, but did not indicate which of the firearms

listed within the indictment (the shotgun or the pistol), this verdict referenced.

This omission is not a minor one. Had the jury attributed the pistol to Mr. Suarez

and not the disassembled Winchester shotgun the mandatory minimum would

have remained at five years instead of being increased to ten. As such, Judge

Mazzant’s hand was forced into sentencing Mr. Suarez to an enhanced minimum

sentence that nobody was anticipating:

THE COURT: I am a judge who tries to look at each person, and because of

the conspiracy and the firearms – usually somebody that has no criminal

history like you have or a Category I would be someone the Court would look

at as a possible variance in terms of fashioning a non-guideline sentence. But

in your case I don’t have that discretion because of the mandatory minimums.

. . .

I’ll follow the recommendation, and if it weren’t for the mandatory

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This brief does nothing more than to use the words “plainly erred” once

in the entire document. In the 32-page brief, there is no mention of any case

that sets forth the test for showing plain error, nor is the test even stated.

There is no listing of the four required prongs, much less a discussion of how

any of them is satisfied. Pages 26−28 do give information that would support

the first three prongs, but without even mentioning that those prongs exist.

As quoted above, however, “the burden is on the defendant to demonstrate that

the error affects the fairness, integrity, or public reputation of judicial

proceedings.” Caravayo, 809 F.3d at 274 (citation omitted).

Suarez’s brief waives any claim to plain-error relief for the reasons we

identified in United States v. Monroe, 629 F. App’x 634 (5th Cir. 2015) (per

curiam). Suarez

makes no specific argument on this court’s exercise of its discretion.

Instead, [he] simply argues for a general reversal based on the district

court’s alleged error. In United States v. Rivera, we rejected a “per se

fourth-prong argument” and declined to remedy a plain error where the

appellant made no showing on why the court should exercise its discretion.

Rivera, 784 F.3d at 1018. Observing that a per se approach would

“collapse the fourth prong into the first three,” we noted that this court

has “refused to correct plain errors when . . . the complaining party

minimums, I probably would go less than that, but I don’t have that power.

ROA.575−76.

The 924(c) charge contained within Count 2 consisted of two distinct firearms,

each with different mandatory minimums. Because the mandatory minimum

was enhanced based upon one, but not both of these firearms, the question of

which firearm was being attribute to the defendant was a fact question that

should have been submitted to the jury in accordance with Apprendi, Alleyne,

and Haines. It was not, and as a result of this clear error, the Appellant’s rights

were directly and substantially effected [sic] by having his sentence increased

by an additional five years.

Appellant’s brief at 26−28 (ellipses in brief).

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makes no showing as to the fourth prong.” Id. at 1018−19 & n.3.

Because [Suarez] has pointed to nothing beyond the district court’s

alleged error to justify reversal, he has failed to show why his conviction

“impugns the fairness, integrity, or public reputation of the court

system.” Id. at 1019.

Monroe, 629 F. App’x at 637−38 (ellipses in original). Suarez’s counsel is guilty

of precisely the same insufficiency that we identified in Rivera, 784 F.3d

at 1018. Yet this panel majority enthusiastically excuses it.

The panel majority turns all of the cited decisions to dust.4 Nowhere

does Suarez’s brief even mention the exercise of “discretion,” much less words

such as “seriously,” “integrity,” “fairness,” or “reputation.” There is little left

of adversarial testing for plain error on appeal, because this inquisitorial panel

has declared it unnecessary.

Even if the fourth prong had been adequately briefed, the facts are far

from what should justify the rare invocation of plain-error relief. No one

should feel sorry for Mr. Suarez, who was caught in the midst of an extensive

and sordid drug operation. As the majority accurately recounts, “police . . .

found . . . Suarez―who . . . acted as ‘consul or overseer . . .―in the master

bedroom [with] a distributable amount of methamphetamine, baggies, scales,

security cameras, a .380 caliber Davis pistol, shotgun shells, body armor, and

a .20 gauge Winchester sawed-off shotgun [and] a .12 gauge Ithaca sawed-off

shotgun . . . in a second bedroom.” No one should reasonably think that the

result here is unfair to this unobjecting defendant, much less that it seriously

4 This circuit’s rule of orderliness may be an impediment to the precedential impact of

the majority’s sweeping pronouncements. To the extent that the decisions I have cited are

binding, this panel majority has no authority to undermine them. No doubt the judges in the

majority believe in good faith that their opinion does not contravene precedent, so for purposes

of showing my disagreement, I treat the majority opinion as though it were binding on

future panels.

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calls into question the integrity of our judicial system, as the plain-error test

requires.

As the majority accurately explains, the unpreserved error is that, as for

the mandatory minimum sentence, the instruction did not require the jury to

find which of the two firearms charged in Count II―the pistol or the

Winchester―formed the basis of its verdict. The jury found that Suarez, in

furtherance of the drug-trafficking offense, possessed either the pistol (with

mandatory minimum of five years) or the Winchester (a sawed-off shotgun

requiring a minimum of ten years). It is easy to conclude, however, that Suarez

could have “possessed” either or both. The Winchester was undeniably there.

Weapons were plainly integral to this drug-trafficking operation. One

witness testified that Suarez “knew about the Winchester.” Another stated

“that Suarez would sit with the shotgun during drug deals.” There is ample

support for the jury’s conclusion that Suarez possessed at least one of the two

guns . . . that . . . furthered the drug-trafficking crimes.

The majority also correctly upholds the verdict for possession (actual or

constructive) of the Winchester and the Ithaca because Suarez “had knowledge

of and access to” them. As the majority candidly recounts, “[p]olice found the

Winchester in plain sight and close proximity to Suarez,” and “Suarez knew of

the Winchester and sometimes carried a sawed-off shotgun during drug deals.”

Under these seedy facts, it is difficult to understand how the majority can conclude

that the failure to ask the jury specifically whether Suarez possessed the

Winchester in furtherance of his crimes affects, much less “seriously” affects,

the integrity of the courts.

In sum, the majority commits numerous errors of law and fact. It evaporates

the requirement that plain error be properly raised or briefed on appeal.

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For the administration of justice, the unhappy consequence is that a defendant

who fails to raise error in the district court is also excused from raising it on

appeal, at least when the government foolishly agrees. Further, the majority

misreads the record in concluding that “the evidence regarding the Winchester

shotgun is not overwhelming.” The evidence, to the contrary, is plain and

abundant, and any supposed error would by no means impugn the integrity of

the judicial system.

The scratchy aspect of plain-error review is that our proper duty is

almost always to let unnoticed error stand. A perfectionist goal of fixing every

prejudicial mistake is inconsistent with plain-error review as the Supreme

Court has explained it.

Reversal of this sentence hardly “feels like the right thing to do,” to quote

government counsel in default. Our adversarial system of justice deserves

better. I respectfully dissent.

Case: 16-41267 Document: 00514306076 Page: 30 Date Filed: 01/12/2018

For the foregoing reasons, Suarez’s convictions on all counts are

AFFIRMED. However, we VACATE the district court’s sentencing order as to

Count II and REMAND for resentencing.