United States v. Sincleair ( 2023 )

Case: 22-10452 Document: 00516889050 Page: 1 Date Filed: 09/08/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
September 8, 2023
No. 22-10452 Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Phillip Matthew Sincleair,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:19-CR-354-2
______________________________
Before Wiener, Graves, and Douglas, Circuit Judges.
Jacques L. Wiener, Jr., Circuit Judge:*
Defendant-Appellant Phillip Matthew Sincleair challenges the district
court’s reapplication of an enhancement to his 210-month sentence for
conspiring to possess with the intent to distribute a mixture and substance
containing methamphetamine. For the following reasons, we VACATE
Sincleair’s sentence and REMAND for resentencing.
I. FACTUAL AND PROCEDURAL BACKGROUND
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-10452 Document: 00516889050 Page: 2 Date Filed: 09/08/2023
No. 22-10452
Sincleair pleaded guilty to conspiring to possess with intent to
distribute a mixture and substance containing methamphetamine. As part of
his plea proceedings, Sincleair signed a stipulation that, from late 2016 to
June 2017, he conspired with Jade Kuhn and Craig Wilbur to possess
methamphetamine with the intent to distribute it. According to the
presentence report (“PSR”), a drug trafficking investigation revealed that
Kuhn supplied methamphetamine to Sincleair, who then distributed it to
others.
On May 18, 2017, during an investigation into methamphetamine
distribution, officers of the Cooke County Sheriff’s Office (“CCSO”)
executed a search warrant at a residence owned by Chase Wood (described
in the PSR as an “unindicted co-conspirator”). At that residence, officers
discovered methamphetamine and detained those present: Sincleair, Wood,
Amanda Blackman (Sincleair’s girlfriend), Mahalia Markezinis and Mark
Ilczyszyn (also described in the PSR as “unindicted co-conspirators”).
According to the PSR, the CCSO’s investigation revealed that “Sincleair was
the methamphetamine [source of supply] for Ilczyszyn, who was the [source
of supply] for Wood.” The PSR further stated that Sincleair, Ilczyszyn, and
Blackman had met at Wood’s residence so that Ilczyszyn could distribute one
ounce of methamphetamine to Wood. When officers searched the residence,
the occupants were sitting in the living room smoking methamphetamine.
There was a firearm on a table near the living room couch, but the officers
did not determine who owned it.
In calculating Sincleair’s offense level, the PSR included a two-level
enhancement under U.S.S.G. § 2D1.1(b)(1) for possession of a dangerous
weapon. The PSR explained that, during the May 18, 2017 search of the
residence where a drug transaction was in progress, Sincleair was present for
the transaction and a firearm was found on a table in plain view of all present.
Id. Sincleair filed written objections, including an objection to the §
2
Case: 22-10452 Document: 00516889050 Page: 3 Date Filed: 09/08/2023
No. 22-10452
2D1.1(b)(1) firearm enhancement. He argued that his presence at Wood’s
home on the night of May 18, 2017, was not relevant conduct as part of the
alleged drug conspiracy because the firearm was later confirmed to be owned
by and registered to Wood. Sincleair asserted that it is “not foreseeable that
a firearm would be needed in a social setting amongst two couples involved
in recreational drug use.”
In response, the probation officer issued an addendum which
explained that the May 18, 2017 drug transaction was relevant conduct
because Sincleair was Ilczyszyn’s source of methamphetamine and was
present for the drug transaction between Ilczyszyn and Wood. The
addendum further noted that the firearm’s connection to the
methamphetamine transaction was “probable.” Based on Sincleair’s total
offense level of 35 and Category V criminal history, his advisory U.S.
Sentencing Guidelines (“Guidelines”) imprisonment range would typically
be 262 to 327 months. However, his statutory maximum sentence was 240
months, which is what the PSR listed as the Guidelines term of
imprisonment.
At sentencing, the district court tentatively overruled Sincleair’s
objection to the § 2D1.1(b)(1) enhancement. That court did not make specific
fact findings, but instead adopted the statements of fact made in the PSR
“subject to and including changes and qualifications made” in the PSR
addendum, except for the findings on issues related to the sustained
objections. The district court calculated a new offense level of 33 based on
the sustained objections, resulting in a Guidelines imprisonment range of 210
to 262 months of imprisonment. That court ultimately sentenced Sincleair to
210 months of imprisonment. He received credit for time served in a related
3
Case: 22-10452 Document: 00516889050 Page: 4 Date Filed: 09/08/2023
No. 22-10452
state court case,1 resulting in a net term of imprisonment of 194 months and
24 days.2
Sincleair appealed, challenging the § 2D1.1(b)(1) enhancement.3
United States v. Sincleair, 16 F.4th 471, 473 (5th Cir. 2021). This court
vacated his sentence and remanded the case for resentencing. Id. at 477. We
reasoned that “[t]he PSR addendum attempts to attribute both methods of
possession—personal and co-conspirator—to Sincleair, but it is not clear
that either applies.”4 Id. at 475–76 (noting that the district court did not
explain which form of possession it attributed to Sincleair). We instructed
the district court on remand to “make the appropriate findings and state
plainly the basis for its decision” if it determined that the enhancement was
still applicable. Id. at 477 (quoting United States v. Zapata-Lara, 615 F.3d 388,
391 (5th Cir. 2010)).
On remand, the probation officer prepared a second addendum to
Sincleair’s PSR, reiterating the initial PSR’s findings that Sincleair was
identified as a source of supply of methamphetamine for Ilczyszyn, who then
sold the drugs to Wood, and that they all met on May 18, 2017, so that
Ilczyszyn could supply one ounce of methamphetamine to Wood. The
_____________________
1
Case no. CR17-00306 in the 235th Judicial District Court, Cooke County, Texas.
2
Sincleair’s projected release date is March 11, 2029. See https://inmate.tdcj.
texas.gov/InmateSearch/start (TDCJ # 02251300).
3
Without the enhancement, the Guidelines range would have been 168 to 210
months of imprisonment. United States v. Sincleair, 16 F.4th 471, 474 n.5 (5th Cir. 2021).
Sincleair alleges that the firearm enhancement also prohibits him from partaking in certain
programs within the Bureau of Prisons.
4
Judge Oldham dissented in the opinion, asserting that the district court’s
rationale for applying the § 2D1.1(b)(1) enhancement was very clear. Id. at 477–79. Judge
Oldham further asserted that the record supports the enhancement under the personal
possession theory. Id. at 478–79.
4
Case: 22-10452 Document: 00516889050 Page: 5 Date Filed: 09/08/2023
No. 22-10452
addendum further detailed that “a firearm was present in plain view on a
table near the sofa where Sincleair and the others were sitting and smoking
methamphetamine when officers arrived.” As to whether Sincleair
personally possessed the firearm, the second addendum acknowledged that
there was no evidence that Sincleair owned the firearm or brought the firearm
to the house, or that Sincleair actively engaged in any drug transactions while
the firearm was present. The probation officer added that the district court
must determine if § 2D1.1(b)(1) remains applicable and, if so, that the court
“must make the necessary findings that either Sincleair personally possessed
the firearm or if the firearm was possessed by a coconspirator during the
offense.” In a written response, Sincleair “persist[ed] in his objection” to
the firearm enhancement.
Prior to resentencing, the district court issued written Findings and
Conclusions (“FAC”) to discuss its application of the § 2D1.1(b)(1)
enhancement. The court stated that, on May 18, 2017, officers discovered a
Ruger “lying out on a living-room table near the couch, within easy access of
all,” and that Sincleair’s purpose for going to Wood’s house “was to
accompany Ilczyszyn in his distribution of one ounce of the
methamphetamine that Sincleair had supplied to [him] and apparently, to
join in the smoking of the Sincleair-supplied methamphetamine while they
were there.” The district court determined that Sincleair had constructive
possession of the firearm while engaging in part of his drug conspiracy, as he
had knowledge of, and immediate access to, the firearm “lying in plain view
on a table near him.” The court also concluded that the enhancement likely
applies under the co-conspirator possession theory. It stated that there was a
temporal and spatial relationship between Sincleair and the drug trafficking
offense, as he was the “ultimate supplier” of the methamphetamine involved
in the transaction at Wood’s house.
5
Case: 22-10452 Document: 00516889050 Page: 6 Date Filed: 09/08/2023
No. 22-10452
At resentencing, Sincleair objected to the district court’s FAC. He
called as a witness Blackman, who testified that she and Sincleair traveled to
Wood’s house with Ilczyszyn on May 18, 2017, that there was no discussion
of a firearm, and that she did not see a firearm at the house. Blackman
described the house as “a little efficiency” with the bed, living room, and
kitchen all in one small area. Blackman stated that she was looking at her
phone and did not pay attention to what was happening in the house until the
officers arrived. She denied that there was a firearm present on the coffee
table or TV table when she and Sincleair arrived at the house and denied ever
seeing a firearm near the sofa. On questioning by the court, Blackman
affirmed that it was possible a firearm was present, but that she did not notice
or see it. Sincleair too also offered evidence that Wood owned the firearm.
After hearing argument from the parties, the district court overruled
Sincleair’s objection to the written FAC and adopted as its “final findings of
fact the statements of fact made in the [PSR], subject to and including
changes and qualifications made by the addendum to the [PSR] . . . and the
findings and conclusions just announced.”
The district court determined that Sincleair’s total offense level was
33 and that his Guidelines range of imprisonment was 210 to 262 months.
The court sentenced Sincleair to the same term of 210 months of
imprisonment, with credit for time served, to be followed by three years of
supervised release. Sincleair did not make any further objections. He timely
appealed. See Fed. R. App. P. 4(b)(1)(A)(i).
II. STANDARD OF REVIEW
The district court’s interpretation and application of the Guidelines is
subject to de novo review. Its factual findings are reviewed for clear error.
Sincleair, 16 F.4th at 474. In Sincleair’s first appeal, this court reviewed the
district court’s enhancement application de novo because “the district court
6
Case: 22-10452 Document: 00516889050 Page: 7 Date Filed: 09/08/2023
No. 22-10452
did not explain the basis for its decision that the two-level firearm
enhancement applied to Sincleair.” Sincleair, 16 F.4th at 475 (quoting
Zapata-Lara, 615 F.3d at 391). In doing so, we relied on our previous opinion
in Zapata-Lara, in which we reviewed de novo the district court’s application
of the § 2D1.1(b)(1) enhancement.5 Id.
On the other hand, clear error exists “if a review of the record results
in a definite and firm conviction that a mistake has been committed.” United
States v. Zuniga, 720 F.3d 587, 590 (5th Cir. 2013) (internal quotation marks
and citation omitted). “A factual finding is not clearly erroneous if it is
plausible in light of the record as a whole.” Id.; see also United States v. Hebert,
813 F.3d 551, 560 (5th Cir. 2015) (“[U]nder clear error review, even [w]here
there are two permissible views of the evidence, the factfinder’s choice
between them cannot be clearly erroneous.” (internal quotation marks and
citation omitted)). Moreover, “a district court is permitted to draw
reasonable inferences from the facts, and these inferences are fact-findings
reviewed for clear error as well.” United States v. Caldwell, 448 F.3d 287, 290
(5th Cir. 2006) (citation omitted).
The question here is whether Sincleair’s challenge concerns only the
legal sufficiency of the facts underlying the § 2D1.1(b)(1) enhancement or
whether it also includes the district court’s findings of fact. Sincleair does not
take a position on the appropriate standard of review and discusses both de
novo and clear error review in his briefing. He does not, however, expressly
challenge the district court’s specific findings of fact on remand. Rather, he
_____________________
5
In that case, de novo review was appropriate because of “the district court’s purely
legal application of the sentencing guidelines.” Id. at 391. We explained that “Zapata–
Lara’s argument does not concern the specifics of the factfinding, but, rather, whether the
facts found are legally sufficient to support the enhancement.” Id. (quoting United States
v. Hooten, 942 F.2d 878, 881 (5th Cir. 1991)).
7
Case: 22-10452 Document: 00516889050 Page: 8 Date Filed: 09/08/2023
No. 22-10452
contends that the district court made no new findings of fact, and that the
court’s reliance on the same previous facts at resentencing, which this court
previously deemed insufficient to support the enhancement, is error.
Sincleair contends that the record, as it stands, cannot support the
enhancement because there are no facts that sufficiently connect him to the
handgun at issue under the elements of personal or co-conspirator
possession.
The government, on the other hand, contends that this court should
review the enhancement application for clear error. Relying on United States
v. King, 773 F.3d 48, 52 (5th Cir. 2014), the government claims that clear
error review is appropriate because the district court has now explained its
rationale for applying the enhancement: personal, constructive possession.
The government asserts that, as a result, the instant appeal relates only to the
factual findings underpinning the enhancement application.
“It is well-established that our court, not the parties, determines the
appropriate standard of review.” United States v. Suchowolski, 838 F.3d 530,
532 (5th Cir. 2016). As we explain further below, no new factual findings were
presented in the second addendum to the PSR, nor were any made at
resentencing.6 Therefore, Sincleair’s appeal entails a purely legal application
of the Guidelines, warranting de novo review. Sincleair separately contests the
district court’s alleged failure to resolve disputed factual issues (and thus
_____________________
6
The only finding of fact potentially made was that “Sincleair was present for and
likely a knowing participant in the drug transaction between [Ilczyszyn and Wood],” as the
PSR did not mention Sincleair’s “knowledge” or the degree of Sincleair’s participation in
the drug transaction. However, this finding does not pass muster under the clear error
standard because it is unsupported by the record. The second addendum to the PSR
actually contradicts it, stating that there was “no evidence that Sincleair engaged in drug
transactions” at Wood’s residence, “or that he assisted in any transactions.”
8
Case: 22-10452 Document: 00516889050 Page: 9 Date Filed: 09/08/2023
No. 22-10452
make specific factual findings) under Fed. R. Crim. P. 32(i)(3)(B), which
we review under the plain error standard.
III. ANALYSIS
On appeal, Sincleair asserts that the district court erred in applying
the § 2D1.1(b)(1) enhancement. He contends that the district court failed to
follow this court’s mandate on remand because it “relied on the same
information that formed the basis for the firearm enhancement. . . which the
Court found lacking.” Sincleair asserts that, at resentencing, the government
did not present any new facts and that the district court did not consider
Blackman’s testimony regarding the firearm at issue. Sincleair alternatively
argues that the district court failed to comply with Federal Rule of Criminal
Procedure 32(i)(3)(B) because it did not consider or credit Blackman’s
testimony.7
A. Application of the § 2D1.1(b)(1) enhancement
The § 2D1.1(b)(1) enhancement applies if a “dangerous weapon
(including a firearm) was possessed” during the drug offense, § 2D1.1(b)(1),
“unless it is clearly improbable that the weapon was connected with the
offense,” § 2D1.1, cmt. n.11(A). For the enhancement to apply, the
government must show by a preponderance of the evidence “that a temporal
and spatial relation existed between the weapon, the drug trafficking activity,
_____________________
7
Although Rule 32(i)(3)(B) was likely violated, Sincleair’s challenge fails because
he did not appropriately brief it. Sincleair did not raise this issue at resentencing, so plain
error review applies. See Puckett v. United States, 556 U.S. 129, 134-35 (2009); see also United
States v. McMillion, 827 F. App’x 395, 398 (5th Cir. 2020) (unpublished) (applying plain
error review where defendant did not raise his Rule 32(i)(3)(B) objection in the district
court). Under plain error review, Sincleair was required to show forfeited error that is clear
or obvious and that affects his substantial rights. See Puckett, 556 U.S. at 135. Sincleair did
not state how his substantial rights were affected or how he suffered prejudice from the
court’s alleged Rule 32 violation. We therefore do not further consider this challenge.
9
Case: 22-10452 Document: 00516889050 Page: 10 Date Filed: 09/08/2023
No. 22-10452
and the defendant.” United States v. Cisneros-Gutierrez, 517 F.3d 751, 764–65
(5th Cir. 2008) (quoting United States v. Hooten, 942 F.2d 878, 882 (5th Cir.
1991)). “Alternatively, when another individual involved in the commission
of an offense possessed the weapon, the government must show that the
defendant could have reasonably foreseen that possession.” United States v.
Rodriguez-Guerrero, 805 F.3d 192, 195 (5th Cir. 2015) (internal quotation
marks and citation omitted). “If the government satisfies this burden, then
the burden shifts and the defendant must show that it is clearly improbable
that the weapon was connected to the offense.” Id.In the instant appeal, Sincleair argues that the district court
procedurally erred in applying the enhancement at resentencing because (1)
it relied on facts that were deemed insufficient by the Fifth Circuit in his first
appeal and (2) it “incorrectly characterize[d] facts contained in the PSR and
addendum.” He contends that the district court’s FAC “relied on nothing
more than the PSR and original addendum” and that the second addendum
to the PSR “contained no additional facts.” Sincleair also asserts that the
district court disregarded this court’s directive to plainly state its basis for his
sentence by merging the theories of constructive and personal possession and
then imposing the same § 2D1.1(b)(1) enhancement without any additional
evidence to support it. Sincleair further alleges that the district court erred
by “embellishing those facts contained in the PSR in support of the firearm
enhancement, without further evidence confirming those facts.” He goes on
to assert that the district court ignored the testimony of Blackman, who
provided evidence that Sincleair did not exercise personal or co-conspirator
possession of the handgun at issue.
The government counters that the district court did not clearly err in
applying the § 2D1.1(b)(1) enhancement at resentencing because it clarified
its rationale for applying the enhancement, which is supported by the record.
The government asserts that the district court, in accordance with this
10
Case: 22-10452 Document: 00516889050 Page: 11 Date Filed: 09/08/2023
No. 22-10452
court’s mandate, plainly stated that it solely relied on a personal, constructive
possession theory in its application of the enhancement. The government
further asserts that the record as a whole supports this finding because there
was “a temporal and spatial relationship between Sincleair, his drug
trafficking activity, and the Ruger pistol.” According to the government,
although Sincleair was not directly engaged in the methamphetamine sale
between Wood and Ilczyszyn, the district court correctly found that Sincleair
“was present for and likely a knowing participant in the drug transaction”
and “the ultimate supplier of the methamphetamine involved in the
transaction.” Relying on this court’s opinions in United States v. Vital, 68
F.3d 114, 119 (5th Cir. 1995) and King, 773 F.3d 48, the government asserts
that § 2D1.1(b)(1) applies because the handgun was connected to Sincleair’s
relevant conduct.
The record does not support the district court’s application of the §
2D1.1(b)(1) enhancement a second time under either the constructive or the
co-conspirator theories of possession. At resentencing, the government was
unable to demonstrate a temporal and spatial relation between the Ruger,
Wood and Ilczyszyn’s drug trafficking activity, and Sincleair. Moreover, the
district court did not definitively state that the enhancement was based on
constructive or co-conspirator possession. Neither did it make any additional
findings regarding these theories. It merely “adopt[ed] as its final findings of
fact the statements of fact made in the [PSR], subject to and including
changes and qualifications made by the addendum to the [PSR] . . . and the
[FAC] just announced.” The second addendum to the PSR expressed doubts
about applying the enhancement, and the FAC is based on facts that we
previously deemed insufficient under either theory.
In Sincleair’s first appeal, we noted that the key PSR facts included:
“Sincleair was Ilczyszyn’s source for methamphetamine, and Sincleair and
Ilczyszyn and their girlfriends were present at Wood’s home for a social
11
Case: 22-10452 Document: 00516889050 Page: 12 Date Filed: 09/08/2023
No. 22-10452
gathering around the time that Ilczyszyn sold an ounce of methamphetamine
to Wood.” Sincleair, 16 F.4th at 473. The second addendum to the PSR did
not add any new facts to support the § 2D1.1(b)(1) enhancement. Rather, the
second addendum expressed doubt about applying the enhancement under
both the personal and the co-conspirator possession theories. The second
addendum explained that “[t]here was no evidence Sincleair owned the
firearm or brought the weapon to the transaction or was otherwise connected
to the firearm. Additionally, there was no evidence that Sincleair engaged in
any drug transactions while the weapon was present, or that he assisted in
any transactions.”
The second addendum to the PSR also expressed doubts about
applying the enhancement based on co-conspirator possession, stating:
none of the individuals present with the defendant and the firearm are
charged as coconspirators or mentioned in the Factual Resume. The
only individual that Sincleair is known to engage in drug distribution
with was Ilczyszyn; however, [as] the Fifth Circuit noted in United
States v. Mata, 491 F.3d 237, 241 (5th Cir. 2007) it was found that
‘evidence of a buyer-seller relationship is not, by itself, sufficient to
support a conviction for conspiracy.’ Further, there is no evidence the
defendant assisted in a methamphetamine transaction between
Ilczyszyn or Wood on this occasion.
The second addendum noted that if the court reapplied the enhancement, it
would have to do so based on the same facts that it previously relied on, i.e.,
that Sincleair “was near the gun, which was in plain view and smoking
methamphetamine” and “a coconspirator ‘involved in the commission of an
offense’ possessed the weapon and ‘the defendant could have reasonably
foreseen that possession.’”
The FAC relies on the PSR and its second addendum to support the
constructive possession rationale. The FAC asserts that “Sincleair had clear
‘knowledge and access to the weapon’” because “[the firearm] was lying in
12
Case: 22-10452 Document: 00516889050 Page: 13 Date Filed: 09/08/2023
No. 22-10452
plain view on a table near him.” However, we previously concluded that the
same, PSR-sourced facts were insufficient to support personal possession
because they do not demonstrate “a temporal and spatial relationship
between the gun, the drug trafficking activity, and Sincleair.” Sincleair, 16
F.4th at 476. The district court cited United States v. McKnight, 953 F.2d 898,
902 (5th Cir. 1992), in support of its conclusion, asserting that “even if none
of the weapons belonged to [Sincleair], he had immediate access to them.”
However, McKnight involved a situation where five guns were strewn about
the defendant’s home in plain view, with additional evidence connecting the
defendant to these firearms. Id. Here, the Ruger was not located in Sincleair’s
own home, and Sincleair presented compelling evidence that the firearm
belonged to Wood.
Even if the government had met its burden of showing that “a
temporal and spatial relation existed between the weapon, the drug
trafficking activity, and the defendant,” Sincleair offered rebuttal evidence
that was not properly considered at resentencing. Under this circuit’s
burden-shifting framework, once the government makes its showing, “the
burden shifts and the defendant must show that it is clearly improbable that
the weapon was connected to the offense.” Rodriguez-Guerrero, 805 F.3d at
195. At resentencing, the district court stated that, through the FAC, it “has
determined that the facts do not support a finding that it is clearly improbable
that the weapon was counted -- was connected with this offense.” During the
proceedings, however, Sincleair presented the testimony of Blackman, who
provided more information and context about the Ruger at issue. Sincleair
also offered a portion of the transcript from the Texas state court case against
Wood, during which he admitted that he owned the Ruger that was seized on
May 18, 2018. Rather than addressing these factual disputes, the district
court chose not to address them at all, as explained further below under Issue
13
Case: 22-10452 Document: 00516889050 Page: 14 Date Filed: 09/08/2023
No. 22-10452
3. Instead, the district court chose to apply the § 2D1.1(b)(1) enhancement
once more, based on the same facts that we previously deemed insufficient.
Assuming that the district court relied on the co-conspirator
possession theory instead, the record remains deficient to support the
enhancement. In Sincleair, we explained that the PSR and its addendum
“d[id] not provide enough facts to support a finding that Sincleair was
engaged in a drug trafficking conspiracy with Ilczyszyn and Wood” and that
the “temporal connection between the firearm and any drug trafficking by
Sincleair was . . . tenuous at best.” Id. at 477. Moreover, the second
addendum to the PSR casts doubt on the viability of this rationale, explaining
that “none of the individuals present with the defendant and the firearm are
charged as coconspirators or mentioned in the Factual Resume. The only
individual that Sincleair is known to engage in drug distribution with was
Ilczyszyn.” The second addendum cited United States v. Mata, wherein this
court held that “evidence of a buyer-seller relationship is not, by itself,
sufficient to support a conviction for conspiracy.” 491 F.3d 237, 241 (5th Cir.
2007).
We conclude, under the de novo standard of review, that the record
does not support the district court’s reapplication of the § 2D1.1(b)(1)
enhancement under either the constructive or co-conspirator possession
theories. We turn next to the question whether the district court failed to
comply with our mandate in Sincleair.
B. Whether the district court complied with our mandate in Sincleair
The mandate rule “provides that a lower court on remand must
implement both the letter and the spirit of the appellate court’s mandate and
may not disregard the explicit directives of that court.” United States v.
Matthews, 312 F.3d 652, 657 (5th Cir. 2002) (citing United States v. Becerra,
155 F.3d 740, 753 (5th Cir. 1998)). “Absent exceptional circumstances, the
14
Case: 22-10452 Document: 00516889050 Page: 15 Date Filed: 09/08/2023
No. 22-10452
mandate rule compels compliance on remand with the dictates of a superior
court and forecloses relitigation of issues expressly or impliedly decided by
the appellate court.” United States v. Lee, 358 F.3d 315, 321 (5th Cir. 2004).
“In the context of remands for resentencing, this circuit employs a restrictive
approach: The resentencing court may consider only that which we direct—
no more, no less.” United States v. Pineiro, 470 F.3d 200, 205 (5th Cir. 2006).
Additionally, “[a]ll other issues not arising out of this court’s ruling and not
raised before the appeals court, which could have been brought in the original
appeal, are not proper for reconsideration by the district court below.”
United States v. Marmolejo, 139 F.3d 528, 531 (5th Cir. 1998).
We previously remanded this matter because we could not “be sure
what rationale the court had in mind to support the [§ 2D1.1(b)(1)]
enhancement.” Sincleair, 16 F.4th at 475 (quoting Zapata-Lara, 615 F.3d at
391). Although we declined to take a position on the appropriate sentence to
be imposed, we emphasized the lack of evidence in the record to support the
district court’s application of the enhancement under either the personal or
the co-conspirator possession theories. Id. at 477. We then provided specific
instructions to the district court on remand, stating that “[i]f, on remand, the
district court determines that the two-level firearm enhancement is
applicable, it should make the appropriate findings and state plainly the basis
for its decision.” Id. (internal quotation marks and citation omitted). We now
look to the district court’s FAC and its statements at resentencing to
determine whether it complied with our mandate.
The government claims that the district court relied solely on the
constructive possession theory and that it made this clear to the parties at
resentencing. That is not the case, however. At resentencing, the court only
indirectly endorsed the constructive possession theory, stating that “the
facts do not support a finding that it is clearly improbable that the weapon
was counted – was connected with this offense or that you were not in
15
Case: 22-10452 Document: 00516889050 Page: 16 Date Filed: 09/08/2023
No. 22-10452
constructive possession of that weapon.” The district court further stated
that it had adopted as its “final findings of fact the statements of fact made in
the [PSR], subject to and including changes and qualifications made by the
addendum to the [PSR] . . . and the [FAC] just announced.” As noted above,
the second addendum to the PSR actually casts doubt on both the
constructive and co-conspirator possession rationales. Moreover, the FAC
does not “state plainly” the district court’s basis for applying the
enhancement.
The FAC does not clearly indicate that the district court relied solely
on the constructive possession theory. The FAC states that “Sincleair had
constructive possession over the firearm,” but then continues, in the next
paragraph, to state “[w]hile not directly engaged in the methamphetamine
sale between Wood and Ilczyszyn, Sincleair was present for and likely a
knowing participant in the drug transaction between the two.” The next
three pages of the FAC are devoted mostly to a discussion of co-conspirator
possession. During various points in that discussion, however, the FAC
references elements of constructive rather than co-conspirator possession. It
is therefore unclear which rationale the district court relied on for its
application of the § 2D1.1(b)(1) enhancement. The district court instead
merged both theories into its analysis.
Because the district court did not clearly state its rationale for
reapplying the enhancement at resentencing or in the FAC, it did not
“implement both the letter and the spirit of the appellate court’s mandate.”
See Matthews, 312 F.3d at 657. We therefore conclude that the district court
violated our mandate in Sincleair to “make the appropriate findings and state
plainly the basis for its decision” 16 F.4th at 477.
16
Case: 22-10452 Document: 00516889050 Page: 17 Date Filed: 09/08/2023
No. 22-10452
IV. CONCLUSION
For these reasons, we again VACATE Sincleair’s sentence and
REMAND for resentencing in a manner consistent with this opinion and
within the limits of our mandate in Sincleair, 16 F.4th at 477.
17