United States Court of Appeals

for the Fifth Circuit

____________

No. 23-30149

____________

United States of America, 

Plaintiff—Appellee,

versus

Clarence Santiago, 

Defendant—Appellant.

______________________________

Appeal from the United States District Court 

for the Eastern District of Louisiana

USDC No. 2:21-CR-31-1

______________________________

Before Higginbotham, Smith, and Higginson, Circuit Judges.

Jerry E. Smith, Circuit Judge:

Clarence Santiago and his coconspirators were selling marihuana out 

of a hotel room. Late one night, a few of their recent buyers decided to come 

back with guns and rob them. But the sellers were armed too. So, when the 

buyers returned to the hotel room, they began a shootout, and three of the 

thirteen involved were shot—none fatally.

The police arrived,stopped Santiago, and arrested him. He confessed 

to his involvement and eventually pleaded guilty to four separate charges. 

After obtaining new counsel and reviewing the presentence investiUnited States Court of Appeals

Fifth Circuit

FILED

March 21, 2024

Lyle W. Cayce

Clerk

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No. 23-30149

2

gation report (“PSR”), Santiago moved to withdraw his plea, contending 

that the PSR recommended improperly punishing him for attempted firstdegree murder. The district court sentenced Santiago to 360 months. The 

parties dispute whether the court’s oral explanation included a crossreference to attempted second-degree murder under U.S.S.G. § 2A2.1(a)(2), 

but they agree that the court upwardly varied the sentence because of the 

shooter’s danger to hotel guests. 

On appeal, Santiago raises a bevy of challenges to his plea and sentence. We discern no reversible error related to the plea. But the district 

court erred in calculating the guideline range, so we vacate and remand for 

resentencing.

I.

Santiago and his coconspirators rented rooms 1514 and 1509 of the 

Jung Hotel in New Orleans to sell and store marihuana, respectively. Late at 

night, Chris Ross and his three associates came to 1514 and bought marihuana. Ross, his three associates, and two others they invited planned to 

return that night and rob the sellers at gunpoint. Either they did not know,

or they did not care, that the sellers too were armed. 

After midnight, Ross and the others arrived back at the hotel with 

semi-automatic handguns, and, when the door to 1514 opened, a shootout 

began. Ross and the would-be robbers fled down the hall to the elevators, 

continuing to fire back erratically. During that firefight, three of the thirteen 

participants were shot, one by friendly fire, but none fatally.

Once the would-be robbers had escaped into the elevator, Santiago 

and the other sellers moved the guns and drugs to 1509 and then attempted 

to abscond before the police could arrive. The hotel’s security cameras 

caught nearly the entirety of the encounter and its aftermath. 

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3

Shortly thereafter, Santiago, as the last to leave, was accosted by the 

police at the front of the hotel and arrested after a brief foot chase. In custody, 

he waived his rights and admitted that he had been using the hotel rooms “to 

illegally store and package marijuana and to store multiple firearms.” When 

the police later examined the scene, they determined that the two groups had 

fired over 80 shots inside the hotel. Luckily, though, not a single shot hit an

innocent hotel guest. 

The government indicted Santiago on four counts related to drug trafficking and firearms usage.1

 Represented by counsel, he pleaded guilty without a plea agreement. During his rearraignment, Santiago confirmed that he 

(1) understood the charges against him and (2) had read, reviewed, and 

understood the factual basis and that it accurately described his actions.

In computing Santiago’s offense level, the PSR considered not only 

the crimes of which he had pleaded guilty; it also asserted that he had committed attempted first-degree murder of his six would-be robbers. With that, 

the U.S.S.G. § 2A2.1 first-degree murder cross-reference applied through 

U.S.S.G. § 2K2.1 and § 2X1.1(c), and Santiago’s guideline range increased 

by several years.2

_____________________

1

(1) Conspiracy to Possess Firearms in Furtherance of a Drug Trafficking Crime, 

in violation of 18 U.S.C. § 924(o); (2) Use, Carry, Brandish, and Discharge of Firearms in 

Furtherance of a Drug Trafficking Crime, in violation of 18 U.S.C. § 924(c)(1)(A) and (2); 

(3) Conspiracy to Possess with the intent to Distribute a Controlled Dangerous Substance, 

to wit: marihuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D) and § 846; and 

(4) Maintaining a Drug-Involved Premises, in violation of 21 U.S.C. § 856(a).

2 The PSR applied U.S.S.G. § 2A2.1 and § 3D1.2 to give Santiago 33 Base Offense 

Level points for shooting at each of his would-be robbers and an additional four points 

because a bullet hit one of them—though the PSR never confirmed that Santiago had fired 

that bullet. Then, the PSR added five more points under U.S.S.G. § 3D1.4 for the other 

groups (attempted murder of each of his five uninjured would-be robbers). Thus, the Combined Adjusted Offense Level was 42. The court also granted a three-point downward 

adjustment for acceptance of responsibility. So, the PSR calculated Santiago’s Total 

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With his new counsel, Santiago moved to withdraw his guilty plea, 

claiming he had been unaware that unindicted crimes and alleged crimes not 

admitted to in the factual basis would enhance his sentencing range. Specifically, he took issue with the consideration of attempted first-degree murder 

in setting the offense level. He asserted that he had never been apprised of 

the possibility of a sentence enhancement based on an unindicted murder 

allegation and that, even if such consideration were otherwise proper, the 

factual basis supported a claim of self-defense.

The government responded by characterizing Santiago as merely 

“dissatisfied with his guidelines as determined by the United States Probation Office” and as attempting to abuse the system by moving to withdraw

“only after he had an opportunity to review and consider his guidelines.” 

The government focused on Santiago’s and his coconspirators’ having “repeatedly discharged their firearms at other rival drug dealers in an attempt to 

kill them.” Further, in the government’s view, because there were injuries, 

Santiago was responsible for everything that might have happened, not just 

for defending himself. Similarly, had a hotel guest been killed, the government could have charged Santiago and his associates with violating 18 U.S.C. 

§ 924(j)(1)—a death-penalty-eligible crime—so the PSR properly counted 

firing the weapons as attempted first-degree murder.3

_____________________

Offense Level at 39. As he had no criminal history, the PSR gave him a Criminal History 

category of I, and his Guideline range was 262 to 327 months. That factored in the mandatory, consecutive 120-month sentence for the § 924(c) firearms offense.

3 The Probation Office’s response to Santiago’s challenge suggested that, if the 

court determined Santiago had not engaged in attempted first-degree murder, his Total 

Offense Level would be 33, with a sentencing range of 135–168 months for Counts 1, 3, and 

4, along with the mandatory 120-month consecutive sentence for Count 2. Santiago characterizes this alternative calculation, and we agree, as still sentencing him for attempted 

second-degree murder.

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At sentencing, the court denied Santiago’s motion to withdraw his 

guilty plea, then “declin[ed] to make a specific finding . . . as to the relationship between the firearm cited in the indictment and the other offense of 

attempted first-degree murder.” In other words, the district court accepted 

some of Santiago’s objection to the PSR. But, as the court’s statement of 

reasons explained, the court still applied U.S.S.G. § 2A2.1(a)(2) and only 

“changed [the] base offense level” to 27.4 Thus, the guidelines recommended imprisonment of 255 to 288 months.

Because of the “shocking and disturbing” nature of the crimes, however, the court departed from that range, varying the sentence upward by six 

years. Specifically, the court imposed 240 months’ imprisonment for 

Counts 1 and 4 and 60 concurrent months for Count 3. Then the court 

imposed a consecutive sentence of 120 months for Count 2.

On appeal, Santiago challenges the court’s acceptance of his plea, its 

sentencing procedures, and his sentence.

II.

Santiago’s flock of challenges implicates several different standards of 

review, depending on whether he has preserved the objection. The most 

relevant standard we will apply is plain error. 

Where a party has not preserved an alleged error, we review for plain 

_____________________

4 The “base offense level of 27” with a Total Offense Level of 33 appears to match 

the Probation Office’s response. We understand this to mean the district court found that 

Santiago had committed “Assault with Intent to Commit Murder” constituting not-firstdegree murder. U.S.S.G § 2A2.1(a). The court must have also found that the injury to 

Ross’s associate Everson’s arm and shoulder was “permanent or life-threatening” instead 

of “serious” or between serious and life-threatening. U.S.S.G § 2A2.1(b)(1). Further, the 

district court must have declined to group the assaults against each robber under U.S.S.G. 

§ 3D1.2. Finally, it increased the Offense Level by five because of the six groups.

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error. “To preserve error, an objection must be sufficiently specific to alert 

the district court to the nature of the alleged error and to provide an opportunity for correction.”5

 Where the “purposes of the preservation requirement are met—namely, the defendants ‘raised a claim of error with the 

district court in such a manner so that the district court may have corrected 

itself and thus, obviated the need for our review,’ we conclude that the issue 

has been sufficiently preserved.”6

If, though, a party raises objections for the first time on appeal or did 

not otherwise preserve them, we review for plain error.7 To prove plain 

error, Santiago must show “that (1) there is an error; (2) the error is clear 

and obvious; and (3) the error affects his substantial rights.”8 Then, once he 

has shown that error, we may choose to correct the error only if (4) it “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.”9

 “Meeting all four prongs is difficult, ‘as it should be.’”10

III.

Santiago appeals (1) the acceptance of his guilty plea as Rule 11 error, 

(2) the district court’s sentencing procedures, and (3) his sentence. Because 

_____________________

5 United States v. Torres-Perez, 777 F.3d 764, 767 (5th Cir. 2015) (quoting United 

States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009)).

6

Id. (cleaned up) (quoting United States v. Mondragon-Santiago, 564 F.3d 357, 361 

(5th Cir. 2009)).

7 United States v. Alvarado-Casas, 715 F.3d 945, 953 (5th Cir. 2013) (citing United 

States v. Oliver, 630 F.3d 397, 411 (5th Cir. 2011)).

8 United States v. Castro-Trevino, 464 F.3d 536, 541 (5th Cir. 2006) (citing United 

States v. Marek, 238 F.3d 310, 315 (5th Cir. 2001) (en banc)).

9 United States v. Olano, 507 U.S. 725, 736 (1993) (alteration in original) (internal 

quotation and citation omitted).

10 Puckett v. United States, 556 U.S. 129, 135 (2009) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83 n.9 (2004)).

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the district court improperly sentenced Santiago by cross-referencing atempted murder under U.S.S.G. § 2A2.1, we reach only the first two claims.

A.

Santiago alleges two errors under Federal Rule of Criminal Procedure 11: (1) that the district court failed to explain the elements of the four 

offenses of which he pleaded guilty and (2) that the factual basis was insufficient to prove his guilt on Counts Two and Four. He raises both claims for 

the first time on appeal, so we review only for plain error. See Marek, 

238 F.3d at 315. 

To prevail on a Rule 11 plain-error claim, Santiago must satisfy the 

four prongs of Olano. On both challenges, Santiago cannot clear that high 

bar. Therefore, we affirm his conviction.

1.

Santiago asserts that, when “the district court summarized the indictment but did not advise [him] of the elements of any of the offenses to which 

he was pleading guilty,” the court committed “clear, obvious error.” But 

Rule 11 does not require the district court to explicate the specific elements 

of each charge. The court must only “inform the defendant of . . . the nature

of each charge to which the defendant is pleading.” Fed. R. Crim. P.

11(b)(1)(G) (emphasis added). Although “there are no precise guidelines as 

to what is sufficient to meet this standard, ‘the court must have a colloquy 

with the defendant that would lead a reasonable person to believe that the 

defendant understood the nature of the charge.’”11

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11 United States v. Rivas, No. 21-50921, 2022 WL 3226622, at *1 (5th Cir. Aug. 10, 

2022) (per curiam) (unpublished) (quoting United States v. Reyes, 300 F.3d 555, 559 (5th 

Cir. 2002)).

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At Santiago’s rearraignment, where he was represented by counsel, 

the court explicitly broke down each charge to which he was pleading guilty. 

It explained that “Count 1 . . . charges you with conspiracy to possess firearms in furtherance of a drug trafficking crime”; that “Count 2 . . . charges 

you with carrying, brandishing, and discharging firearms in furtherance of a 

drug trafficking crime”; that “Count 3 . . . charges you with conspiracy to 

possess with the intent to distribute a controlled dangerous substance”; and 

that “Count 4 . . . charges you with maintaining a drug-involved premises.” 

Santiago responded that he understood each charge. Further, after it stated 

each count in plain English, the court laid out the basic facts underlying that 

count. Then, the court explained the maximum sentences each count carried. Santiago, yet again, confirmed he understood the possible sentences.

That colloquy was sufficient for any “reasonable person to believe 

that the defendant understood the nature of those charges.” Rivas, 2022 WL 

3226622, at *1 (cleaned up). Therefore, Santiago has not shown any Rule 11 

error, much less plain error.

Santiago also asserts that Count 2 was ambiguous as to whether he had 

been indicted as a principal or as an aider and abettor and that the court’s 

colloquy improperly incorporated that ambiguity. Because “[t]hose two 

theories of guilt require proof of wholly distinct elements and mandate different evidentiary showings[,]” Santiago asserts, he could not have knowingly 

and voluntarily pleaded guilty to Count 2. We reject that challenge, too.

Aiding and abetting is a theory of liability implicit in every federal 

indictment and is not a distinct substantive crime.12 Therefore, any ambiguity in Santiago’s plea colloquy is irrelevant. Santiago knew the charges 

_____________________

12 United States v. Diaz, 941 F.3d 729, 741 (5th Cir. 2019) (quoting United States v. 

Turner, 674 F.3d 420, 442 (5th Cir. 2012)).

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against him, and he offers no caselaw to support his contention that the court 

was required to distinguish between those two possible theories of liability. 

Nor does he suggest he would not have pleaded guilty had the court clarified 

which theory applied to him. Santiago’s failure along either path of this fork 

would suffice for us to reject his plain-error challenge. 13 Instead of picking a 

tine, we “take it.”14

2.

We turn to Santiago’s challenge to the factual basis underlying his 

guilty plea to Counts Two and Four. 

For Count Two, Santiago pleaded guilty of “Us[ing], Carry[ing], 

Brandish[ing] and Discharg[ing] of Firearms in Furtherance of a Drug Trafficking Crime” in violation of 18 U.S.C. § 924(c). He contends that because 

the factual basis did not establish that he fired any weapons, his plea to Count 

Two was insufficient. 

For Count Four, Santiago pleaded guilty of “Maintaining a DrugInvolved Premises” in violation of 21 U.S.C. § 856. Because the record is 

unclear as to who rented rooms 1514 and 1509, or for how long they had 

rented them, he asserts he had not “maintained” a premise as required for 

Count Four.

Well-established law confirms common sense—that a defendant 

“pleaded guilty . . . is not itself sufficient to support [a] guilty plea.” Marek, 

238 F.3d at 314. Instead, Rule 11 “requires the district court to determine 

that the factual conduct to which the defendant admits is sufficient as a matter 

_____________________

13 See United States v. Baez-Adriano, 74 F.4th 292, 302 (5th Cir. 2023) (quoting 

United States v. Andaverde-Tiñoco, 741 F.3d 509, 523 (5th Cir. 2013)). 

14 See United States v. Castillo-Rivera, 853 F.3d 218, 232 & n.1 (5th Cir. 2017) (en 

banc) (Smith, J., dissenting)

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of law to constitute a violation of the statute.” Id.15 Thus, we must review 

the facts underlying each count.

a. Count Two

Santiago advocates that the factual basis never established that he 

“knowingly used, carried, and discharged a firearm ‘during and in relation 

to’ his participation in the marijuana conspiracy.” Therefore, under 

Rule 11(b)(3), the district court must have erred by accepting his plea. 

“We may consider the entire district court record in assessing 

whether there was a sufficient factual basis to support [Santiago’s] guilty 

plea.”16 The record must confirm that Santiago (1) was engaged in a drug 

trafficking crime; (2) (a) “during and in relation to” that crime, “used or 

carried a firearm, or (b) in furtherance of that crime, possessed a firearm”; 

and (3) “discharged” the firearm. 18 U.S.C. § 924(c)(1)(A)(iii) (cleaned 

up). That he was engaged in a drug trafficking crime is not in question, so 

the dispute turns on only the two remaining elements.

First, Santiago suggests the factual basis does not support an inference 

that he ever discharged a firearm. Second, he submits that even if he did, the 

record does not prove that he did so “in relation to” the conspiracy. Third, 

he avers that, on the theory of aiding and abetting, the factual basis does not 

establish that he had “advance knowledge that a confederate would use or 

carry a gun during the crime’s commission” as required by Rosemond v. 

United States, 572 U.S. 65, 67 (2014).

_____________________

15 See also Fed. R. Crim. P. 11(b)(3) (“Before entering judgment on a guilty plea, 

the court must determine that there is a factual basis for the plea.”). 

16 United States v. Hicks, 958 F.3d 399, 401 (5th Cir. 2020) (citing United States v. 

Ortiz, 927 F.3d 868, 873 (5th Cir. 2019)); see also Trejo, 610 F.3d at 313 (citing United States 

v. Tullos, 356 F. App’x 727, 727–28 (5th Cir. 2009)).

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None of Santiago’s contentions overcomes the record evidence. The 

factual basis to which he admitted states that “[d]uring the attempted robbery, the seven occupants of Room 1514 immediately returned gunfire.” It 

explicitly describes Santiago as one of those occupants. Then, it explains that 

“[a] shootout between the six individuals [i.e., Ross et al.] and the occupants

of the room [i.e., Santiago and his coconspirators] began.” Additionally, it 

explains that, during the shootout, “the occupants of Room 1514 continued to 

discharge their firearms . . . .” Then, the hotel videos of the encounter show 

Santiago making several trips between Rooms 1514 and 1509, putting several 

bags and a rifle into Room 1509. Further, the police concluded that the two 

groups fired over 80 shots during the shootout. Finally, and most damningly, 

the factual basis ends with Santiago’s admitting that he and his coconspirators “used” the guns “to protect their drugs and drug proceeds” and that 

the occupants of Room 1514 “fired multiple times at the assailants.”

Although Santiago may not have expressly stated he fired a weapon, 

his admissions certainly came close. When accepting a plea, the court may 

make common-sense inferences from the evidence, including the factual 

basis.17 Further, carrying a gun “for protection . . . honors the Congressional 

concerns manifested by the ‘in relation to’ element.”18 Thus, Santiago 

presents no reason to contradict the district court’s implicit inferences that 

(1) as an occupant, Santiago was one of the “occupants” returning fire; 

(2) that when over 80 shots were fired, each person involved in that shootout 

fired a weapon; and (3) that they did all of that “during and in relation to”

the sale of marihuana. Whether that was an error is questionable, but on 

_____________________

17 See United States v. Jones, 75 F.4th 502, 508 (5th Cir.) (“The supporting facts 

may include . . . ‘fairly drawn inferences from the evidence . . . .’” (quoting United States 

v. Trejo, 610 F.3d 308, 319 (5th Cir. 2010)), cert. denied, 144 S. Ct. 515 (2023).

18 United States v. Harris, 477 F.3d 241, 245 (5th Cir. 2007).

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plain-error review, it certainly was not a “clear and obvious error.” Therefore, we decline to disturb Santiago’s plea to Count Two.

b. Count Four

Santiago raises a stronger theory about the meaning of the law on 

Count Four. He contends that “rent[s], use[s], or maintain[s]” in 21 U.S.C. 

§ 856(a)(1) requires more than mere presence for one night and involvement 

in a drug trafficking crime. But he relies entirely on the established interpretation of “maintain” without explaining why “use” does not suffice.

For purposes of § 856, the word “‘maintain’ ‘connotes a degree of 

continuity and duration.’” United States v. Barnes, 803 F.3d 209, 216 (5th 

Cir. 2015) (quoting United States v. Morgan, 117 F.3d 849, 857 (5th Cir. 

1997)). Santiago correctly asserts that the factual basis does not support a 

charge of “maintaining” the hotel rooms, as it proves nothing more than that 

he occupied the rooms for one night, with no clarification of whether he had 

any kind of dominion over them. See id. (citing United States v. Soto-Silva, 

129 F.3d 340, 346 (5th Cir. 1997)).

But Santiago’s factual basis includes an admission that he “used” the 

hotel rooms. Therefore, we could determine that the district court committed plain error only if we effectively read out “use” from the statute, giving it the same meaning as “maintain.” But “use” “cannot be meaningless, 

else [it] would not have been used.”19 Further, reading out “use” would 

make a mockery of Congress’s decision to add it to a statute that already 

included “maintain.”20 Such an action would not comport with our limited 

_____________________

19 Calumet Shreveport Refin., L.L.C. v. EPA, 86 F.4th 1121, 1138 (5th Cir. 2023) 

(quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 174 (2012)).

20 See Prosecutorial Remedies and Tools Against the Exploitation of Children 

Today Act of 2003 (Protect Act), Pub. L. No. 108–21, § 608, 117 Stat 650, 691 (2003) 

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judicial role, and we decline to rewrite the statute.

Santiago points to three cases—United States v. Guzman-Reyes, 853 

F.3d 260 (5th Cir. 2017), Barnes, and Dubin v. United States, 599 U.S. 110 

(2023)—that allegedly support his position that we give “use” and “maintain” the same meaning. But none bears that weight.

First, Guzman-Reyes dealt with sentencing under a sentencing guideline, not 21 U.S.C. § 856. See 853 F.3d at 263–64. And the guideline with 

which it dealt, U.S.S.G. § 2D1.1(b)(12), employs the word “maintain[],” not 

“use.” We could plausibly extend its thoughtful analysis of “maintain” to 

another case in which the meaning of that word was at issue, but we cannot—

and do not—read that case to express a preference for “maintain” over 

“use” in every context. 

Second, in Barnes we unambiguously declined to rule on whether the 

defendants “maintained” a drug-involved premise. See 803 F.3d at 216. 

Instead, we applied aiding-and-abetting liability to uphold the convictions. 

Id.

21

 That renders Barnes completely inapplicable in determining the meaning of “use.” 

Third, Dubin explains that “‘use’ takes on different meanings depending on context.” 599 U.S. at 118 (cleaned up). So, we must “look not 

only to the word itself, but also to the statute and the surrounding scheme, to 

determine the meaning Congress intended.” Id. (cleaned up). Instead of 

supporting Santiago’s recommendation that we give “use” no meaning, 

Dubin contradicts it. As the Court instructs, we must apply noscitur a sociis

_____________________

(updating 21 U.S.C. § 856).

21 Though we do not base our ruling on this similarity, the district court could have 

found that Santiago aided and abetted whichever of his coconspirators rented the rooms—

thereby meeting § 856’s “renting” element. See Barnes, 803 F.3d at 216–17.

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to understand “use” as akin to, but with a meaning different from, “open, 

lease, rent, . . . or maintain.” 21 U.S.C. § 856(a)(1); see Dubin, 599 U.S.

at 124–27. Using a hotel room for the night as a storefront for illegal drugs is 

precisely the type of “use” Congress included in that language that would 

not already be covered by “open,” “lease,” “rent,” or “maintain.”

In conclusion, Santiago offers no on-point caselaw on “use,” and we 

have not, nor has the government, found any precedent applying “use” or 

explaining how long-term a “temporary” “use” must be under § 856(a)(1) 

to qualify. Yet, Santiago has the burden to show the error, and any error is 

not plain where a possible and plausible interpretation has not been foreclosed by precedent.22

 Thus, the district court’s application of “temporary 

use” to an overnight hotel-room-cum-storefront cannot be plain error.23 

Santiago’s Rule 11 challenges fail.

B.

Santiago raises three challenges to the district court’s calculation of 

his sentencing guideline range. First, he avers the court never performed the 

requisite guideline calculations, or it at least failed to explain them. Second, 

_____________________

22 See Puckett, 556 U.S. at 135 (Plain error requires “some sort of deviation from a 

legal rule.” (cleaned up)); Trejo, 610 F.3d at 319 (“An error is not plain under current law 

if a defendant’s theory requires the extension of precedent.” (internal quotation marks and 

citation omitted)); United States v. Broussard, 669 F.3d 537, 550 (5th Cir. 2012) (citing 

Puckett, 556 U.S. 129).

23 Even had Santiago established that the district court committed error by accepting his plea on Count Four, we have two independent reasons for which we would still 

affirm. First, the error was harmless: Santiago received an identical, concurrent sentence 

on Count One. See United States v. Valdez, 726 F.3d 684, 697–98 (5th Cir. 2013). Second, 

Santiago has not shown that he would not have pleaded guilty had the agreed-upon factual 

basis been clearer or had the court made the desired additional findings. Though we mention these only as alternative rationales, Santiago’s failure to overcome either of those bars 

would also defeat his claim of plain error.

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he contests the factual findings underlying those calculations. Third, he 

alleges legal error, claiming that the court improperly applied the attemptedmurder cross-reference and the guidelines’ grouping rules. We disagree with 

his first challenge but agree with the second, so we do not reach the third.

We review preserved objections to a district court’s calculation and 

application of the guidelines de novo and its findings of fact for clear error. See 

Torres-Perez, 777 F.3d at 768 (citing United States v. Cisneros-Gutierrez, 

517 F.3d 751, 764 (5th Cir. 2008)). “A factual finding is not clearly erroneous 

if it is plausible in light of the record as a whole.” United States v. Zuniga, 

720 F.3d 587, 590 (5th Cir. 2013) (per curiam) (citation omitted). If the challenge is raised for the first time on appeal, though, we review for plain error. 

United States v. Johnson, 943 F.3d 735, 737 (5th Cir. 2019) (citing United 

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

The parties dispute how many of those challenges, if any, Santiago 

raised in the district court. Santiago contends that, by objecting to the firstdegree murder cross-reference and asking for a downward variance, he put 

the court on notice of his request that “the court . . . comply with its obligation to calculate and consider the correct Guidelines range . . . .”24

 The government responds by claiming that, when the district court refused to apply 

the first-degree-murder cross reference, the court fully addressed Santiago’s 

objections; thus, he needed to raise additional objections to preserve any 

issue for appeal.

At sentencing, the court denied Santiago’s motion to withdraw his

guilty plea. The court explained that it had already considered his objections 

_____________________

24 Indeed, Santiago objected to “any mention of murder or attempted murder” and 

specifically raised that “the factual basis . . . provides for a self defense argument of an 

attempted murder charge” in his motion to withdraw his guilty plea.

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in its calculation of the guideline range and that its calculations did not 

include a finding that Santiago had attempted first-degree murder. At that 

point, the court was aware of, and had overruled, Santiago’s objection to the 

characterization of his actions as attempted murder of any degree.

25

 Therefore, Santiago’s objection to the attempted-murder cross-reference was 

raised and addressed by the district court. 

Yet, when the district court later queried whether either party had 

anything further to ask, Santiago declined to object to the court’s explanation 

of its findings and calculation. Without an objection, the court had no inkling 

that Santiago believed the explanation was insufficient or that the court had 

not made the requisite factual findings. Thus, Santiago failed to alert the 

court to that potential issue with the necessary specificity required for the 

identification and correction of the alleged error. United States v. Salazar, 

743 F.3d 445, 448 (5th Cir. 2014) (citing Mondragon-Santiago, 564 F.3d 

at 361).26

We agree that Santiago properly presented the “crux of his objection”

regarding attempted murder to the district court. United States v. Bravo, 

852 F. App’x 790, 794 (5th Cir. 2021) (per curiam) (quoting United States v. 

Nesmith, 866 F.3d 677, 679 (5th Cir. 2017)). And, insofar as he raised his 

objection in writing, he did not also need to object orally to that error. See 

United States v. Medina-Anicacio, 325 F.3d 638, 642 (5th Cir. 2003) (citing 

_____________________

25 See United States v. Mendiola, 42 F.3d 259, 260 n.2 (5th Cir. 1994) (The purpose 

of the plain error rule is served where “[t]he essential substance of the objection is obvious 

and was made known to the district court.”); see also id. (Where “counsel [is] entitled to 

believe that further explanation would not be welcomed or entertained by the district 

court . . ., the objection was adequate to preserve the issues for review.” (citation 

omitted)).

26 See also Mondragon-Santiago, 564 F.3d at 361 (“He could have asked the district 

court for further explanation during the sentencing hearing, but did not.”).

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Bender v. Brumley, 1 F.3d 271, 277 (5th Cir. 1993)). But Santiago did not properly object to the court’s explanation of its findings and calculations. Therefore, we review (1) Santiago’s challenge to the explanation for plain error and 

(2) his challenge to the cross-referencing for clear error as a factual finding.

1.

Santiago characterizes the district court as having neither considered 

nor determined the guideline range, suggesting that the court made no factual 

findings at all before sentencing him. The government retorts that Santiago 

has taken the court’s statements out of context and that the court explicitly 

adopted the PSR and its addendum for the court’s findings of fact. Then, the 

government explains, the court applied those findings to calculate the offense 

level and his criminal history category, which generated the guideline range.

“[F]ailing to calculate . . . the Guidelines range” is a “significant procedural error” that constitutes an abuse of discretion in sentencing. Gall v. 

United States, 552 U.S. 38, 51 (2007). But the transcripts support the government’s position: The district court calculated the range as required.

With a caveat about Santiago’s objection to the consideration of firstdegree murder, the district court expressly adopted the PSR and its addendum as its findings of fact. Then, it applied the recommended Total Offense 

Level of 33 to craft the guideline range. Considering that range, the court 

explained its upward variance, calling “[t]he facts of this case . . . stunning 

and horrific.” It did all of that in a few brief sentences, and we agree with 

Santiago that the court could have explained its process more clearly. But,

on plain-error review, it is not “clear or obvious” that the court fell short of 

Gall’s requirements by not explaining the findings of fact, its application of 

the guidelines, or its calculation of the range. Further, Santiago has made no 

showing that that limited discussion would seriously affect the fairness, 

integrity, or public reputation of judicial proceedings. Therefore, we reject 

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Santiago’s challenge to the explanation of the sentence and its calculation.

2.

Santiago preserved his challenge to the district court’s determination 

that he attempted second-degree murder. So, we review, for clear error, the 

district court’s application of the U.S.S.G. § 2K2.1(c)(1)(A) cross-reference 

to U.S.S.G. § 2A2.1. 

On clear-error review, we accept the “trial court’s factual findings if 

they are plausible in light of the record, even though we might have weighed 

the evidence differently if we had been sitting as a trier of fact.” TaylorTravis v. Jackson State Univ., 984 F.3d 1107, 1116 (5th Cir. 2021) (cleaned 

up). But “sentencing facts must be established by a preponderance of the 

evidence.”27 An error is clear “if a review of the record results in a ‘definite 

and firm conviction that a mistake has been made.’”28

Section 2A2.1 of the guidelines defines first-degree murder by reference to 18 U.S.C. § 1111. See U.S.S.G. § 2A2.1 cmt. n.1. That guideline does 

not define non-first-degree murder, though. Without clearer guidance, we 

continue to look to § 1111, which defines “[a]ny other murder” that was not, 

inter alia, “deliberate, malicious, [or] premeditated” or committed as part of 

other specified crimes, as “murder in the second degree.” 18 U.S.C. 

§ 1111(a).

Self-defense is an affirmative defense to a charge of murder under 

_____________________

27 United States v. Johnson, 648 F.3d 273, 277 (5th Cir. 2011) (citation omitted); see 

also United States v. Luna-Gonzalez, 34 F.4th 479, 480 (5th Cir. 2022) (citing United States 

v. Abrego, 997 F.3d 309, 312 (5th Cir. 2021)). 

28 Zuniga, 720 F.3d at 590 (quoting United States v. Rodriguez, 630 F.3d 377, 380 

(5th Cir. 2011)).

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§ 1111 that “negates the[] elements of criminal behavior.”29 The initial 

burden of production rests on the defendant asserting self-defense, but once 

the defendant has met that burden, the government must then provide proof 

to “negate” it. Branch, 91 F.3d at 714 n.1 (citation omitted).

To meet that burden of production, Santiago must present

evidence that (1) he was under an unlawful and present, imminent, and impending threat of such a nature as to induce a wellgrounded apprehension of death or serious bodily injury; (2) he 

had not recklessly or negligently placed himself in a situation in 

which it was probable that he would be forced to choose the 

criminal conduct; (3) he had no reasonable, legal alternative to 

violating the law, a chance both to refuse to do the criminal act 

and also to avoid the threatened harm; and (4) a direct causal 

relationship may be reasonably anticipated between the criminal action taken and the avoidance of the threatened harm.[

30]

The video and the factual record unequivocally show that Ross and his 

crew attempted to rob Santiago at gunpoint. Thus, Santiago easily meets the 

first, third, and fourth criteria.

The second criterion presents a closer question. That Santiago was 

selling drugs and carrying significant weaponry might suggest that he had 

“recklessly or negligently placed himself” into that situation. But “engaging 

_____________________

29 Moran v. Ohio, 469 U.S. 948, 955 (1984) (Brennan, J., dissenting from denial of 

certiorari); see United States v. Branch, 91 F.3d 699, 714 (5th Cir. 1996) (“It is true, as a 

general proposition, that self-defense . . . [is an] affirmative defense[] to both murder and 

voluntary manslaughter.”); see also McDonald v. City of Chicago, 561 U.S. 742, 767 (2010) 

(“Self-defense is a basic right, recognized by many legal systems from ancient times to the 

present . . . .”).

30 United States v. McGee, No. 93-7503, 29 F.3d 625 (table), 1994 WL 395111, at *6

(5th Cir. July 8, 1994) (unpublished but precedential per 5th Cir. R. 47.5.3) (cleaned 

up). See also Andersen v. United States, 170 U.S. 481, 508 (1898) (collecting cases).

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in unlawful conduct . . . does not, by itself, constitute provocation . . . .”

Branch, 91 F.3d at 718. Thus, we treat the second criterion more akin to a 

prohibition against “provok[ing] a fight and then rely[ing] on a claim of selfdefense when that provocation results in a counterattack . . . .” Id. at 717 

(internal quotation marks and citation omitted). Yet, the government has 

pointed to no evidence, and on our independent review, we see no part of the 

record or of the videos that suggests Santiago provoked Ross. Ross and his 

crew came with guns drawn to rob Santiago and his fellow dealers. Their 

reaction very well might have been self-defense.

Santiago met his burden of production, but the district court never 

sought, and the government never attempted to provide, proof to rebut his 

self-defense claim. From this review, we find ourselves with a “definite and 

firm conviction that a mistake was made” by the district court where it crossreferenced attempted murder without considering self-defense. Zuniga, 

720 F.3d at 590 (cleaned up). Therefore, that was clear error.

31

Further, the district court’s error was not harmless. “To establish 

harmlessness, the government must convincingly demonstrate that the court 

would have imposed the very same sentence if it had not made an erroneous 

calculation.” Torres-Perez, 777 F.3d at 768 (internal quotation marks and 

citation omitted).32 But harmless error is a “heavy burden” that the govern-

_____________________

31 We do not suggest that every time a defendant asserts self-defense as an objection 

to a sentence, the district court must hold an evidentiary hearing before ruling on it. Cf. 

United States v. Hebert, 813 F.3d 551, 554 (5th Cir. 2015) (The court held a “detailed fourday hearing where it found that Hebert had committed second degree murder in connection 

with the bank fraud counts.”). But the record must, in some way, support the court’s declination of that defense if the defendant raises it. This record does not.

32 See also United States v. Rebulloza, 16 F.4th 480, 484 (5th Cir. 2021) (“A procedural error during sentencing is harmless if the error did not affect the sentence imposed.”

(cleaned up)).

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ment cannot carry here. United States v. Richardson, 676 F.3d 491, 511 (5th 

Cir. 2012) (citation omitted). 

First, the government has not alleged harmlessness. Second, even had

it done so, we would reject the claim. The district court varied Santiago’s 

sentence upward by six years from the top of the guideline range. That 

brought the sentence in line with the PSR’s recommended sentence for 

attempted first-degree murder. According to Santiago, had the court not 

considered any murder allegation, his properly calculated range would have 

been 130–136 months. The record does not support any claim—and we 

doubt—that the district court would have imposed a sentence nearly three 

times greater than the guideline range, even after an upward variance for the 

danger posed to unsuspecting hotel guests. Further, the court never declared 

its intention to impose the same sentence regardless of any guideline-calculation error. As the burden is on the government to make that harmless-error 

showing, and because it could not convincingly do so on this record, we 

decline to dismiss this error as harmless.

* * * *

In summary, the district court properly accepted Santiago’s wellsupported and well-explained plea agreement. It also explained its calculations and application of the guidelines sufficiently to survive plain-error 

review. But by applying the attempted-murder cross-reference without considering that Santiago acted in self-defense, the court committed clear error.

The conviction is AFFIRMED. The sentence is VACATED, and

we REMAND for resentencing. We express no view on the sentence that 

the court should announce on remand.

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Stephen A. Higginson, Circuit Judge, concurring:

I concur in all but Part III(B)(1) of the opinion. Respectfully, I read 

the record differently with regard to the district court’s explanation and 

guidelines calculation. At sentencing, the district court stated that Santiago 

“objected to the final presentence investigation report arguing that the 

calculations should not cross-reference to the charge of attempted murder

because the acts alleged do not and would not constitute first degree 

murder.” Hr’g Tr. at 6:24-7:5, United States v. Santiago, 21-00031, ECF 156 

(E.D. La. Mar. 7, 2023). The district court then explained that, while it had 

“reviewed both the response of the probation officer and that of the 

Government,” the “sentence was crafted . . . without making that finding,” 

and “declin[ed] to make a specific finding at this time as to . . . attempted 

first degree murder” because it did not “find it to be necessary to the decision 

[it] made with reference to the defendant’s sentence today.” Id. at 7:4-14. 

In response to Santiago’s objection to the attempted murder cross-reference 

in the presentence investigation report, the district court stated, “I'm not

going to make that determination; but in effect, your objection is moot based 

upon the way I've crafted defendant's sentence, okay.” Id. at 7:17-20. But in 

the written statement of reasons that followed, the district court did the 

opposite and expressly relied on a cross-reference to attempted seconddegree murder, albeit with a typo in the referenced guidelines provision. 

Statement of Reasons, United States v. Santiago, 21-00031, ECF 133 (E.D. La. 

Mar. 14, 2023).

Inconsistencies and failures to explain at sentencing are particularly 

troubling in this context, where a defendant is sentenced for conduct that is 

uncharged and unadjudicated. And even more so here, where the district 

court denies the defendant’s request to withdraw his guilty plea after learning 

this sentence may be based on uncharged and unadjudicated conduct, yet

then does not take, test, and resolve evidence, even to a preponderance 

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standard of proof, to confirm that conduct. See United States v. Hebert, 813 

F.3d 551, 554 (5th Cir. 2015). Notably, the eventual upward variance 

substantially exceeded the sentence recommended by either Probation or the 

Government. Our decision today vacating and remanding for resentencing 

will allow the district court to fully explain the sentence given, based on 

clearly determined guidelines calculations as well as specific, preponderance 

findings of fact.

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