United States v. Gomez

• Citation: 960 F.3d 173
• Decision Date: 19 May 2020
• Docket Number: No. 18-11578,18-11578
• Parties: UNITED STATES of America, Plaintiff - Appellee v. Gilberto GOMEZ, Defendant - Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

960 F.3d 173

UNITED STATES of America, Plaintiff - Appellee

v.Gilberto GOMEZ, Defendant - Appellant

No. 18-11578

United States Court of Appeals, Fifth Circuit.

FILED May 19, 2020

Gail A. Hayworth, Leigha Amy Simonton, Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Dallas, TX, for Plaintiff-Appellee.

Kevin Blake Ross, Law Office of Kevin B. Ross, P.C., Dallas, TX, for Defendant-Appellant.

Before HIGGINBOTHAM, STEWART, and ENGELHARDT, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

In 2017, a jury convicted Appellant Gilberto Gomez of drug-trafficking and firearms offenses. His first appeal to this Court resulted in a resentencing proceeding at which his term of imprisonment was reduced by nearly 200 months. Gomez now raises two challenges to his revised sentence. First, he argues that the First Step Act of 2018 invalidated the 25-year mandatory-minimum sentence he received for one of his firearms offenses. Second, he contends that the district court erred by failing to orally pronounce the special conditions of supervised release that it later imposed in his written judgment. Finding no error, we affirm.

I.

On a tip from a confidential informant in November 2015, the Dallas Police Department initiated an undercover investigation of Appellant Gilberto Gomez and his co-defendant Felix Cantu. The investigation revealed evidence that Cantu was selling methamphetamine at Gomez’s direction, and that Gomez was distributing other drugs, including cocaine and marijuana, in addition to methamphetamine. A March 2016 search of Gomez’s residence turned up large amounts of cash, drug paraphernalia, "bags of marijuana, cocaine, methamphetamine, [and] alprazolam pills," and seven firearms. Gomez was indicted on six offenses: conspiracy to possess with intent to distribute methamphetamine (count one); possession with intent to distribute methamphetamine, cocaine, and marijuana (counts two, four, and seven, respectively); and two counts of possession of a firearm in furtherance of a drug trafficking crime (counts three and five).

The two firearm counts were charged under separate subsections of 18 U.S.C. § 924(c)(1), which prohibits the use, carry, or possession of a firearm in furtherance of a drug trafficking crime or a crime of violence. Count three was charged under § 924(c)(1)(A)(i), which imposes a five-year mandatory-minimum sentence for a first-time offense. Count five was charged under § 924(c)(1)(C)(i), which, at the time, imposed a 25-year mandatory-minimum sentence for any "second or subsequent conviction under this section."¹ Gomez had not been convicted of a weapons offense in any prior prosecution. Instead, the Government used Gomez’s simultaneous conviction on count three as the predicate for imposing § 924(c)(1)(C)(i) ’s repeat-offender enhancement on count five. At the time, it was common practice to "stack" simultaneous § 924(c)(1) offenses by charging one as a first-time offense and all others as successive. In fact, this approach had been endorsed by the Supreme Court in 1993 when it held that a defendant charged simultaneously with multiple § 924(c)(1) offenses was subject to the enhanced repeat-offender minimum on all but the first count.²

Gomez proceeded to trial and was convicted on all counts in March 2017. The district court sentenced him to a total of 652 months’ imprisonment. The court also imposed a five-year term of supervised release ("TSR") "subject to the standard conditions provided by the Sentencing Commission as well as the mandatory conditions." However, Gomez’s written judgment also included four special conditions of supervised release that had not been mentioned at sentencing or in his presentence investigation report ("PSR").

Gomez appealed, arguing that the district court had sentenced him under the erroneous belief that it could not vary downward on the drug counts despite considering his Guidelines range "excessive." We agreed, and in September 2018 we issued a limited remand for the district court to reconsider Gomez’s sentence.³ On November 26, 2018, the district court resentenced Gomez to the statutory minimum term of 480 months’ imprisonment. In addition to reduced terms on the drug charges, this sentence included the mandatory minimum of 60 months on Gomez’s first firearm count and a consecutive mandatory-minimum sentence of 300 months on the second. The court also re-imposed a five-year TSR "subject to the same terms and conditions as previously stated" in Gomez’s first judgment. Gomez’s revised judgment listed the same four special conditions as the original.

Gomez filed this appeal on December 5, 2018, raising two objections to his revised sentence. First, he argues that the First Step Act of 2018 invalidated the 25-year mandatory-minimum sentence he received for the successive firearm violation. Second, Gomez argues that the district court erred by imposing special conditions of supervised release in his written judgment without orally pronouncing them at sentencing.

II.

A.

The First Step Act of 2018 (the "Act") was signed into law on December 21, 2018, "introducing a number of criminal justice reforms."⁴ Among those reforms, § 403 of the Act amended 18 U.S.C. § 924(c)(1)(C)(i), the provision that imposes a 25-year minimum sentence for repeat firearms offenders, to reduce the severity of "stacked" charges. Before the Act, the 25-year minimum was triggered by any "second or subsequent conviction under this subsection."⁵ Now, it is triggered only by a repeat "violation ... that occurs after a prior conviction under this subsection has become final."⁶ In other words, the 25-year repeat-offender minimum no longer applies where a defendant is charged simultaneously with multiple § 924(c)(1) offenses. Now, to trigger the 25-year minimum, the defendant must have been convicted of a § 924(c)(1) offense in a prior, separate prosecution.⁷

Although § 403 of the Act is not retroactive, Gomez urges us to construe it as applying to defendants who, like him, were sentenced before December 21, 2018 but whose cases remained pending on direct appeal on that date.⁸ Because this is "a question of pure statutory construction," our review is de novo .⁹

B.

It is undisputed that if Gomez were charged with the same offenses today as he was in 2016, he would not face the enhanced minimum sentence for repeat firearm offenders. Instead, his two weapons counts would each carry a mandatory minimum of five years.¹⁰ While we recognize the grave effect of this infelicitous timing, we find no support in the statute or the case law for applying § 403 retroactively to cases pending on direct appeal on the First Step Act’s effective date.

First and most importantly, the Act itself plainly states that § 403 is not retroactive: It applies to an offense committed before its December 21, 2018 effective date only "if a sentence for the offense ha[d] not been imposed as of such date."¹¹ A sentence is "imposed" when the district court pronounces it, not when the defendant exhausts his appeals.¹² Second, all other circuit courts to consider Gomez’s argument—six at the time of this writing—have rejected it, "uniformly support[ing]" our reading of the statute.¹³

Finally, we see no merit in Gomez’s claim that § 403 is "analogous to ... a clarifying amendment to the United States Sentencing Guidelines," which "may be considered on direct appeal even when [it was] not effective at the time of sentencing."¹⁴ To state the obvious, § 924(c)(1) is a statute, not a Sentencing Guideline, and Gomez cites no authority for extending conventions of Guidelines interpretation to statutes. Instead, he relies on the fact that § 403 is titled "Clarification of Section 924(c) of Title 18, United States Code."¹⁵ In his view, the word "clarification" evinces congressional intent to make § 403, like clarifying Guidelines amendments, retroactive to cases on direct appeal. However, it is well established that "the heading of a section cannot limit the plain meaning of the text," which in this case refutes any implication of retroactivity.¹⁶ Despite its title, § 403 did more than clarify existing law; it abrogated Supreme Court precedent that had endorsed the stacking of § 924(c)(1)(C)(i) sentences.¹⁷

For all these reasons, we reject Gomez’s reading of the statute and instead join our sister circuits in holding that § 403 of the Act affords no relief to defendants whose cases were pending on direct appeal on the law’s December 21, 2018 effective date. The date that matters in the § 403 inquiry is when the district court imposed the defendant’s sentence—not when the defendant exhausted his appeals.

III.

A.

Gomez next argues that the district court erred by imposing special conditions of supervised release in his written judgment without orally pronouncing them at his resentencing hearing. The district court’s obligation to orally pronounce its sentence is grounded in the defendant’s right to be present at sentencing, which in turn is derived from the Fifth Amendment’s Due Process Clause.¹⁸ We have long recognized that the oral-pronouncement requirement applies to certain conditions of supervised release as well as to custodial sentences.¹⁹ Our notice-based method for determining the appropriate standard of review has also remained consistent. If the defendant had no opportunity to object to the unpronounced conditions in the district court, we review for abuse of discretion;²⁰ if he had the opportunity but failed to object, plain error review applies.²¹

Just recently, however, our en banc Court in United States v. Diggles established a new framework for determining which conditions of supervised release require oral pronouncement and what counts as notice to the defendant.²² Formerly, only "special" conditions of supervised release had to be pronounced; all others—including mandatory conditions, standard conditions, and a hybrid category known as "recommended" conditions—were exempt.²³ Although nominally pegged to...