United States v. Solorzano ( 2023 )

Case: 22-10159 Document: 00516712265 Page: 1 Date Filed: 04/14/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
____________ Fifth Circuit
FILED
No. 22-10159 April 14, 2023
____________
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Victor Manuel Solorzano,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:16-CR-283-1
______________________________
Before Higginbotham, Smith, and Engelhardt, Circuit Judges.
Per Curiam:
Victor Solorzano was sentenced to statutory mandatory-minimum
sentences of 10 and 25 years as part of a total 567 months’ imprisonment. He
appealed. While his appeal was pending, the First Step Act was signed into
law. In relevant part, the new law (a) decreased the mandatory minimum of
25 years in cases, like Solorzano’s, where the predicate convictions were part
of the same criminal proceeding and (b) retroactively applied that decrease
to all offenses for which “a sentence for the offense has not been imposed as
of such date of enactment.” Pub. L. 115–391, § 403(b), 132 Stat. 5221. This
Circuit affirmed his conviction but vacated his sentence on plain error
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No. 22-10159
review. See United States v. Solorzano, 832 F. App’x 276, 283 (5th Cir. 2020)
(“Solorzano I”). On resentencing, the district court declined to retroactively
apply the decrease and left in place Solorzano’s 25-year sentence for the
relevant count. This appeal followed.
Factual Background
Victor Solorzano was a target of a narcotics investigation in Dallas. As
part of their investigation, law enforcement officers obtained permission to
place a tracking device on Solorzano’s car. A covert officer placed the
tracking device on Solorzano’s car and began to leave when Solorzano
emerged from his residence with his rifle at the ready and shouted at the
officer. After attempts to verbally engage seemed to fail, the officer ran
towards his partner’s vehicle and Solorzano opened fire. Solorzano shot the
officer in the left hand and left ankle, but the officer was able to climb into his
partner’s vehicle and the two drove off despite gunshot damage to the
vehicle. Solorzano was subsequently arrested.
Procedural History
In a six-count indictment, Solorzano was charged with: (Count 1)
possession with intent to distribute a controlled substance, (Count 2)
possession of a firearm in furtherance of a drug trafficking crime, (Count 3)
assault on a federal officer (that is, the officer who planted the tracker),
(Count 4) using carrying, brandishing, and discharging a firearm during and
in relation to a crime of violence (namely, Count 3), (Count 5) assault on a
federal officer (that is, the driver), and (Count 6) using carrying, brandishing,
and discharging a firearm during and in relation to a crime of violence
(namely, Count 5). After a jury trial, Solorzano was found guilty as to Counts
1, 3, 4, 5, and 6 and not guilty as to Count 2.
2
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At sentencing, the district court sentenced Solorzano to 147 months’
imprisonment for his convictions on Counts 1, 3, and 5. 1 As required by
statute, Solorzano was sentenced to a consecutive ten years for his conviction
on Count 4 and a further consecutive 25 years for his conviction on Count 6.
Solorzano timely appealed.
On appeal, this court affirmed Solorzano’s conviction, holding that he
had neither demonstrated error on a Fourth Amendment issue nor
successfully demonstrated that the evidence was insufficient for a finding of
guilt. See Solorzano I, 832 F. App’x at 279-81. However, the panel held that,
since Solorzano did not know that he was firing at federal officers, he “was
not motivated by [their] official status,” and so the district court plainly erred
in imposing a particular enhancement. Id. at 282. The court “thus vacate[d]
Solorzano’s sentence on Counts 3 and 5 and remand[ed] so that he may be
resentenced.” Id. at 283. Notably, the court rejected an argument that the
then-newly-enacted First Step Act applied to nullify the mandatory 25-year
sentence as to Count 6. Relying on precedent, the court noted that “‘A
sentence is ‘imposed’ when the district court pronounces it, not when the
defendant exhausts his appeals.’” Id. at 284 (quoting United States v. Gomez,
960 F.3d 173, 177 (5th Cir. 2020)). The court therefore “affirm[ed] the
district court’s sentence on Count 6.” Id. The opinion ended: “Based on the
foregoing, Solorzano’s conviction is AFFIRMED. Because the district court
plainly erred in applying the sentence enhancement under § 3A1.2(b) for
Counts 3 and 5, Solorzano’s sentence is VACATED. We REMAND for
resentencing consistent with this opinion.” Id.
_____________________
1
The court initially sentenced Solorzano to 156 months on these counts but took
nine months off that pronouncement in consideration of time spent in state custody.
3
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On remand, the district court stated that he “believes that the Fifth
Circuit’s opinion was explicit as to what the Court had to do,” namely
resentence as to Counts 3 and 5 and leave the rest untouched. So, over
objections from Solorzano’s counsel, the court decided that it had no
authority to revisit the 10-year sentence as to Count 4 and the 25-year
sentence as to Count 6. However, having accounted for the length of time
encompassed by those two sentences and the defendant’s post-conviction
rehabilitation efforts, the court varied downwards from the guidelines and
sentenced Solorzano to 60 months as to Counts 1, 3, and 5. 2 Solorzano again
appealed.
Discussion
Solorzano challenges the re-imposition of the mandatory-minimum
sentences on three grounds: first, that the district court misinterpreted the
mandate of Solorzano I, second, that the district court erred in not applying
the First Step Act, and third, that the district court erred in not considering
the First Step Act under the 3553 sentencing factors. As we determine the
case on the first of these challenges, we do not reach the latter two. 3
“We review de novo whether the trial court faithfully and accurately
applied our instructions on remand.” Sobley v. S. Nat. Gas Co., 302 F.3d 325,
332 (5th Cir. 2002). Solorzano contends that the district court erred in
believing that the mandate bound it to maintain the mandatory minimum
sentences as to Counts 4 and 6. Unfortunately, Solorzano I is less than clear.
_____________________
2
As the original sentence was bundled as to these three counts, all parties agreed
that the court had to re-sentence as to all three despite the Fifth Circuit’s language of
vacating as to Counts 3 and 5 only. See infra, n.4.
3
To the extent that the argument concerning the 3553(a) factors is independent of
the other two issues, we find that Solorzano has not shown error, plain or otherwise, in the
district court’s discussion of the issue.
4
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In the section which discusses the error, the opinion reads: “[w]e thus vacate
Solorzano’s sentence on Counts 3 and 5 and remand so that he may be
resentenced under the appropriate Guidelines.” Solorzano I, 832 F. App’x at
283 (emphasis added). In another section, it is stated: “we affirm the district
court’s sentence on Count 6.” Id. at 284. But the conclusion is more
sweeping: “Because the district court plainly erred in applying the sentence
enhancement under § 3A1.2(b) for Counts 3 and 5, Solorzano’s sentence is
VACATED. We REMAND for resentencing consistent with this opinion.”
Id. The interpretive challenge is as follows: the body of the opinion suggests
that only part of the sentence was vacated, while the conclusion suggests that
it all was.
Solorzano attempts to sidestep the interpretive challenge by
suggesting that “the intervening law exception” should apply. A district
court may forgo faithful application of the mandate in one of three
circumstances: “(1) Introduction of evidence at a subsequent trial that is
substantially different; (2) an intervening change in controlling authority;
and (3) a determination that the earlier decision was clearly erroneous and
would work a manifest injustice.” United States v. Pineiro, 470 F.3d 200, 205-
06 (5th Cir. 2006) (citation omitted). Here, Solorzano claims that the
enactment of the First Step Act is “an intervening change in controlling
authority.” Id. at 205. Not so. The intervening change in law must occur
“between the issuance of our remand mandate . . . and . . . resentencing on
remand.” Id. at 207. The First Step Act was enacted well before the decision
in Solorzano I, so it is not an “intervening” change in authority. And while
Solorzano claims that “there has been a significant change in the overall
attitude towards the [First Step] Act and its overall applicability to criminal
defendants” since Solorzano I, his briefing identifies no controlling authority
by which the district court was bound.
5
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“This court has adopted a restrictive rule for interpreting the scope of
the mandate in the criminal resentencing context.” United States v. Matthews,
312 F.3d 652, 658 (5th Cir. 2002) (citation omitted). This restrictive rule
mandates that “only those discrete, particular issues identified by the appeals
court for remand are properly before the resentencing court.” Matthews, 312
F.3d at 658 (quoting United States v. Marmolejo, 139 F.3d 528, 530 (5th Cir.
1998)). Moreover: “The only issues on remand properly before the district
court are those issues arising out of the correction of the sentence ordered by
this court. In short, the resentencing court can consider whatever this court
directs – no more, no less. All other issues … which could have been brought
in the original appeal[] are not proper for reconsideration.” Marmolejo, 139
F.3d at 531. Solorzano I explicitly identified one “discrete, particular issue[],”
id. at 530, for the district court to correct: improper application of an
enhancement to Counts 3 and 5. See Solorzano I, 832 F. App’x at 282-83.
Despite the inexact language of the conclusion, the district court was thus
correct in determining that the mandate of Solorzano I encompassed only
Counts 3 and 5. 4 Therefore, the district court correctly declined to reach the
question of whether or not the First Step Act’s retroactivity provision would
change the mandatory minimums Solorzano faced.
Conclusion
Accordingly, we AFFIRM the district court’s sentence.
_____________________
4
The district court was also correct to note that it needed to reconsider the
sentence as to Count 1, even though it was untouched in Solorzano I. This is because
Solorzano’s sentence was bundled as to Counts 1, 3, and 5. See United States v. Clark, 816
F.3d 350, 360 (5th Cir. 2016) (citation omitted). Counts 4 and 6, however, ran
consecutively to any sentence imposed for Counts 1, 3, and 5, and were thus unbundled and
not part of the mandate.
6