# United States Court of Appeals

f or 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 be gan a shootout, and three of the thirteen involved were shot

— none fatally.
T he 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 p resentence i nvesti

United States Court of Appeals

Fifth Circuit 

### FILED March 21, 2024 Lyle W. Cayce Clerk Case: 23-30149 Document: 85-1 Page: 1 Date Filed: 03/21/2024No. 23

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2 gation r eport ( “ PSR ” ), Santiago moved to withdraw his plea, con tend ing that th e PSR recommended improperly punishing him for attempted first

degree murder. The district court sentenced Santiago to 360 months. The parties dispute whether the court’s oral explanation included a cross

reference 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 sen
tence

. We discern no reversible error related to the plea. But the district
court erred in calculating the g uideline range, so we vacate and remand for resentencing.

I

. Santiago and his coconspirators rented r ooms 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 mari

huana. Ross, his three associates, and two others they invited plan ned to return that night and rob the sellers at gun point. 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 elev ators, 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 in to the elevator , Santiago and the other sellers moved the guns and drugs to 1509 and the n attempted
to abscond before the police could arrive. The hotel ’ s security cameras caught nearly the entirety of th e encounter and its aftermath. Case: 23-30149 Document: 85-1 Page: 2 Date Filed: 03/21/2024No. 23

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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 mari j uana and to store mult iple 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 rela ted to drug traf

ficking and firearms usage. 1 Represented by counsel, he pleaded guilty with

out 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 i t 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 com

mitted attempted first

- degree murder of his six woul d

- 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 g uideline 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. § 9 2 4(o); (2) Use, Carry, Br andish, 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) Maintain ing a Drug

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

2 T he 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 Com

bined 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 Case: 23-30149 Document: 85-1 Page: 3 Date Filed: 03/21/2024No. 23

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4 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 sentenc ing range. Speci

fically, h e took issue with the consideration of attempted first

- degr ee murder in setting the offense level. He asserted that he had never been apprised of the possibility of a sentence enhancement based on an un indicted murder allegation and that , even if such consideration w ere otherwise proper, the factual basis suppor ted a claim of self

- defense. The government responded by characterizing Santiago as merely

“ dis satisfied with his guidelines as determined by the United States Pro

bation Office ” and as attempting to abus e 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 “ re
peat edly discharged their firearms at other rival drug dealers in an attempt to kill them. ” Further, i n the government ’ s v iew, b ecause 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 gov ern
ment 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 ha d no criminal history, the PSR gave him a Criminal History category of I, and his Guideline range was 262 to 327 months. Th at factored in the man

datory, consecutive 120

- month sentence for the § 924(c) firearms offense.

3 The Probation Office ’ s response t o Santiago ’ s challenge suggested that, if the court determined Santiago had not engaged in attempted first

- degree murder, his T otal O ffense L evel would be 33, with a sentencing range of 135

– 168 months for C ounts 1, 3, and 4, along with the mandatory 120

- mo nth consecutive sentence for C ount 2. Santiago char

acteriz es this alternative calculation, and we agree, as still sentencing him for attempted second

- degree murder. Case: 23-30149 Document: 85-1 Page: 4 Date Filed: 03/21/2024No. 23

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5 At sentencing, the court denied Santiago ’ s motion to withdraw his guilty plea, then “ declin[ed] to make a specific finding

. . . as to the rela

tionship 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 t he 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 g uidelines recom

mended imprisonment of 255 to 288 months.
B ecause of the “ shocking and disturbing ” nature of t he crimes, how

ever, the court departed from that range, varying the sentence upward by six years. Specifically, the court imposed 240 months ’ imprisonment for C ounts 1 and 4 and 60 concurrent months for C ount 3. Then the court imposed a con secutive sen tence of 120 months for C ount 2.
O n 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 Pr obation Office ’ s response
. We understand this to mean the district court found that Santiago had committed “ Assault with Intent to Commit Murder ” constitut ing not

- first

degree murder. U.S.S.G § 2A2.1(a). T he 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 ea ch robber under U.S.S.G. § 3D1.2. Finally, it increased the Offense Level by five because of the six groups

. Case: 23-30149 Document: 85-1 Page: 5 Date Filed: 03/21/2024No. 23

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6 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 oppor

tunity for correction. ” 5 Where the “ purposes of the preservation require

ment are met

— namely, the defendants ‘ raised a claim of error with the district court in such a manner so th at 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 the m , 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 th e error only if (4) it “ seri

ously affect [s] the fairness, integrity, or public reputation of judicial pro
ceedings. ” 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. (clea ned 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. Domin

guez Benitez , 542 U.S. 7 4 , 83 n.9 (2004)). Case: 23-30149 Document: 85-1 Page: 6 Date Filed: 03/21/2024No. 23

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7 the district court improperly sentenced Santiago by cross

- referencing at

empted 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 Proce

dure 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 insuffi

cient to prove his guilt on Counts Two a nd Four

. H e 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 indict

ment but did not advise [him] of the elements of any of the offenses to which he was p leading 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 defe ndant 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

_____________________
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)). Case: 23-30149 Document: 85-1 Page: 7 Date Filed: 03/21/2024No. 23

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8 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 fire

arms 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 explain ed the maximum sentences each count car

ried

. Santiago , yet again, confirmed he understood the possible sentences.
T hat 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 tha t the court ’ s colloquy improperly incorporated that ambiguity

. B ecause “ [t]hose two theories of guilt require proof of wholly distinct elements and mandate differ

ent evidentiary showings[,] ” Santiago asserts , he could not have knowingly and voluntarily p leaded guilty to Count 2. We reject that challenge, too.
A iding and abetting is a theory of liability implicit in every federal indictment and is not a distinct substantive crime. 12 Therefore , any ambigu

ity 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)). Case: 23-30149 Document: 85-1 Page: 8 Date Filed: 03/21/2024No. 23

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9 against him , and he offers no caselaw to support his contention that the court was required to distinguish between th ose 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], Bran dish[ing] and Discharg[ing] of Firearms in Furtherance of a Drug Traf

ficking 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 Drug

Involved Premises ” in vio lation of 21 U.S.C. § 856. B ecause 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
— t hat 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

- Ti ñ oco , 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) Case: 23-30149 Document: 85-1 Page: 9 Date Filed: 03/21/2024No. 23

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10 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 establish ed that he

“ knowingly used, carried, and discharged a firearm ‘ during and in relation
to ’ his participation in the mari j uana conspiracy. ” Therefore, under Rule 11(b)(3), the district court must have erred by accepting his plea.

“ W e may consider the entire district court record in assessing whether there was a sufficient factual basis to support [Santiago ’ s] guilty plea. ” 16 T he record must confirm that Santiago (1) was engaged in a drug trafficking crime; (2) (a) “ during and in relation to ” that crime, “ used or

car ried 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 di d , 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 con fed erate would use or carry a gun during the crime ’ s commission ” as re quired by Rosemond v. Unite d States , 572 U.S. 65, 67 (2014).

_____________________
15 S ee 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)). Case: 23-30149 Document: 85-1 Page: 10 Date Filed: 03/21/2024No. 23

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11 None of Santiago’s contentions overcome s the record evidence . T he factual basis to which he admitted stat es that “ [d]uring the attempted rob

bery, the seven occupants of Room 1514 immediately returned gunfire

. ” I t explic itly describes Santiago as one of th ose 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, d uring 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 in to Room 1509. Furthe r , 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 cocon spir a
tors “ used ” the guns “ to protect their drugs and drug proceeds ” and that the occupants of Room 1514 “ fired multi ple times at the assailants. ” Although Santiago may not have expressly stated he fired a weapon, h is admissions certainly came close. When accepting a plea, the court may make common

- sense inferences from the evidence, including the factual basis. 17 Further, c arrying 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 ”
t he sale of marihuana. Whether that was an error is questionable, but o n

_____________________
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)

. Case: 23-30149 Document: 85-1 Page: 11 Date Filed: 03/21/2024No. 23

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12 plain

- error review, it certainly was not a “ clear and obvious error. ” There

f ore, 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 interpre

tation of “maintain” without explaining why “use” does not suffice. For purposes of § 856, the word “‘maintain’ ‘connotes a degree of

con tinuity 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 clarificat ion 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 t he district court com

mitted plain error only if we effectively read out “use” from the statute, giv

ing it the same meaning as “maintain

. ” But “ use ” “ cannot be meaning less, 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 Ref in ., L.L.C. v. EPA , 86 F.4th 1121, 1138 (5th Cir. 2023) (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Inter

pre tation of Legal Texts 174 (2012) ).

20 See Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003 (Protect Act), P ub. L

. No. 108

– 21, § 608, 117 Stat 650 , 691 (2003) Case: 23-30149 Document: 85-1 Page: 12 Date Filed: 03/21/2024No. 23

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13 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 “main

tain” the same meaning. But none bears that weight. First, Guzman

- Reyes dealt with sentencing under a sentencing guide

line, 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 “main tain[],” 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 “main tain” over “use” in every context. Second, in Barnes we unam biguously declined to rule on whether the defendants “maintained” a d rug
- involved premise. See 803 F.3d at 216. Instead, we applied aiding

- and

- abetting liability to uphold the convictions. Id

. 21 That renders Barnes com pletely inapplicable in deter mining the mean

ing of “use.” Third, Dubin ex plains that “‘use’ takes on different meanings de

pend ing 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

su pporting Santi ago’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. Case: 23-30149 Document: 85-1 Page: 13 Date Filed: 03/21/2024No. 23

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14 to understand “use” as akin to, but with a meaning dif ferent from, “ open, lease, rent,

. . . or maintain .” 2 1 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 lan guage 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 th e burden to show the error, and any error is not plain where a possible and plausible interpretation has not been fore

closed by precedent. 22 Thus, the district court’s application of “temporary use” to an overnight hotel

- room
- cum
- storefront cannot be pla in error. 23 Santiago’s Rule 11 challenges fail.

B. Santiago raises three challenges to the district court ’ s calculation of his sentencing g uideline range. First, he avers the court never performed the requisite g uideline calculations, or it at least failed to expla in th em . 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 (5 th Cir. 2012) (citing Puckett , 556 U.S. 129).

23 Even had Santiago established that the district court committed error by accept

ing his plea on Count Four, we have two independent reasons for which we w ould still affirm. First, the error was harmless: Sa ntiago 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 men

tion these only as alternative rationales, Santiago’s failure to overcome either of those bars would also defeat his claim of plain error. Case: 23-30149 Document: 85-1 Page: 14 Date Filed: 03/21/2024No. 23

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15 he contests the factual findings underlying th ose calculation s . Third, he alleges legal error, claiming that the court improperly applied the attempted

mur der cross

- reference and the g uidelines ’ 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 g uidelines 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. Zunig a , 720 F.3d 587, 590 (5th Cir. 2013) (per curiam) (citation omitted)

. If the chal

lenge 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. 200 8 )). The parties dispute how m any of those challenges, if any, Santiago raised in the district court . Santiago contends that, by objecting to the first

degree murder cross

- reference and asking for a downward varia nce, he put the court on notice of his request that “ the court .

. . comply with its obliga

tion to cal culate and consider the correct Guidelines range .

. . . ” 24 The gov

ern ment responds by claiming that, when the district court refused to apply the fi rst

- degree

- murder cross reference, the court fully addressed Santiago ’ s objec tions; 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

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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. Case: 23-30149 Document: 85-1 Page: 15 Date Filed: 03/21/2024No. 23

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16 in its calculation of the g uideline 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 There

fore, Santiago ’ s objection to the attempted

- murder cross

- reference was raised and addressed by the district court

. Yet , when the distri ct 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 insu fficient 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 iden tification and correct ion 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 Stat

es v. Mendiola , 42 F.3d 259, 260 n.2 (5th Cir. 1994) (The purpose of the plain error rule is served whe re “ [t]he essential substance of the objection is obvious and was made known to the district court. ” ); see also id

. (Whe re “ counsel [is] entitled to beli eve 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 dist rict court for further explanation during the sentencing hearing, but did not. ” ). Case: 23-30149 Document: 85-1 Page: 16 Date Filed: 03/21/2024No. 23

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17 Bender v. Brumley , 1 F.3d 271, 277 (5th Cir. 1993))

. But Santiago did not prop
erly object to the court ’ s explanation of its findings and calculations . There

fore , we review (1) Santiago ’ s challenge to the explan ation 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 g uideline range, suggesting that the court made no factu al 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 . T hen , the government explains, the court applied those findings to calculate the offense level and his criminal history category , which generated the g uideline r ange. “[F] ailing to calculate

. . . the Guidelines range ” is a “ signifi cant pro

ce dural error ” that constitute s an abuse of discretion in sentenc ing. Gall v. United States , 552 U.S. 38, 51 (2007). But t he transcript s support the gov

ern ment ’ s position : The district court calculated the range as required. With a caveat about Santiago ’ s objection to the consideration of first

degree murder, t he district court expressly adopted the PSR and its adden

dum as its findings of fact . Then, it applied the recommended Total Offense Level of 33 to craft the g uideline range. Considering that range, the court

e xplained its upward variance , calling “ [t]he facts of this case .

. . stunning and horrific. ” It did all of that in a few brief sentences, and w e agree with Santiago that t he court could have explained its process more clearly . B ut , on plain

- error review, it is not “ clear or obvious ” that the court fell short of Gall ’ s requirements by not explain ing the findings of fact , its application of the g uidelines , 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, w e reject Case: 23-30149 Document: 85-1 Page: 17 Date Filed: 03/21/2024No. 23

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

2

. Santiago preserve d 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. ” Taylor

Travis 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 2 A2.1 of the guidelines defines first

- degree murder by ref er
ence to 18 U.S.C. § 1111. See U.S.S.G. § 2A2.1 cmt. n.1. T hat g uideline does not define non
- first

- degree murde r, 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. 201 1 ) ( citation omitted ); see also United States v. Luna

- Gonzalez , 34 F.4th 479, 480 (5th Cir. 2022) (citing United St ates 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)). Case: 23-30149 Document: 85-1 Page: 18 Date Filed: 03/21/2024No. 23

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19 § 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

. B ranch , 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, immin

ent, and impending threat of such a nature as to induce a well

grounded apprehension of dea th 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 crim inal 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 crim

inal action taken and the avoidance of the threatened harm. [ 30 ] The video and the factual rec ord unequivocally show that Ross and his crew attempted to rob Santiago at gunpoint. Thus, Santiago easily meets the first, third, and fourth criteria.
T he second criterion presents a closer question . That Santiago was selling drugs and carrying significant weaponry might suggest that he had

“ reck lessly or negligently placed himself ” in to that situation. But “ engaging

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

e United States v. Branch , 91 F.3d 699, 714 (5th Cir. 1996) ( “ It is true, as a gen eral 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). Case: 23-30149 Document: 85-1 Page: 19 Date Filed: 03/21/2024No. 23

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20 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 self

defense when that provocation results in a counterattack .

. . . ” Id. at 717 (internal quotation marks and citation omitted). Yet, t he government has pointed to no evidence, and on our independent review, we see no part of the record or of the videos that suggest s Sa ntiago provoke d Ross . Ross and his crew came with guns drawn to rob Santiago and his fellow dealers . Their

reac tion very well might have been self

- defense. Santiago met his burden of production, but the district court never sought, and the government ne ver 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 whe re it cross

referenced attempted murder without considering self

- de fense. 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 harm lessness, 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 cita tion 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, 55 4 (5th Cir. 2015) (The court held a “ de tailed four

day 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 de

clin a tion of that defense if the defendant raises it

. Th is recor d does not.

32 See also United States v. Rebulloza , 16 F.4th 480, 484 (5th Cir. 2021) ( “ A pro ce
dural error during sentencing is harmless if the error did not affect the sentence imposed. ” (cleaned up)). Case: 23-30149 Document: 85-1 Page: 20 Date Filed: 03/21/2024No. 23

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21 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 g u ideline range . That brought the sentence in line with the PSR ’ s recommended sentence for attempted first

- degree murder. A ccording to Santiago, had the court not

con sidered any murder allegation , his properly calculated range would have been 130

– 136 months. T he record does not support any claim

— and we doubt

— that the district court would have imposed a sentence nearly three times greater than the g uideline range, even after an upward variance for the danger posed to unsuspecting hotel guests

. Further, the court never declared it s intention to impose the same sentence regardless of any g uideline

- calcu

lation error. As the burden is on the government to make that harmless

- error show ing, and because it could not convincingly do so on this recor d , we decline to dismiss this error as harmless.

* * * * In summary , t he district court properly accepted Santiago ’ s well

supported and well

- explained plea agreement. It also explained its calcula

tions and application of the g uidelines sufficiently to su rvive plain

- error review. But by applying the attempted

- murder cross

- reference without con

sidering that Santiago acted in self

- defense , the court committed clear error

. The conviction is AFFIRM ED . The sentence is VACATE D , and

we R EMAND for resentencing. We express no view on the sentence that the court should announce on remand. Case: 23-30149 Document: 85-1 Page: 21 Date Filed: 03/21/2024No. 23

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22 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 attempte d 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 re sponse 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 second

degree 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, whe re the district
court denies the defendant’s reques t to withdraw his guilty plea after learning this sentence may be based on uncharged and unadjudicated conduct , y et then does not take, test , and resolve evidence, even to a preponderance Case: 23-30149 Document: 85-1 Page: 22 Date Filed: 03/21/2024No. 23

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23 standard of proof, to confirm that conduct. See United States v. He bert , 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 g uidelines calculations as well as specific, preponderance findings of fact. Case: 23-30149 Document: 85-1 Page: 23 Date Filed: 03/21/2024