IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-20181

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

DAVID RODRIGUEZ,

Defendant-Appellant

Appeal from the United States District Court 

for the Southern District of Texas

Before KING, BARKSDALE, and ELROD, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

David Rodriguez challenges a greater sentence imposed on remand by a

different judge from the one who imposed his first sentence. Previously, based

on the Government’s breach of his plea agreement, Rodriguez successfully

appealed his first sentence. In remanding for resentencing, our court ordered

it to be conducted by a different judge because of that breach. United States v.

Rodriguez, 306 F. App’x 135 (5th Cir. 2009) (unpublished). 

Primarily, Rodriguez claims his new sentence was vindictive. For this

point, the principal issue is whether United States v. Floyd, 519 F.2d 1031 (5th

Cir. 1975), has been overruled by Texas v. McCullough, 475 U.S. 134 (1986). In

the alternative, he claims the advisory guidelines sentencing range used in

United States Court of Appeals

Fifth Circuit

F I L E D

March 25, 2010

Charles R. Fulbruge III

Clerk

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imposing his sentence was not supported by the requisite preponderance of the

evidence. Although plain-error review applies to each issue, there was no error.

AFFIRMED.

I.

Rodriguez, a former Houston police officer, operated a private security

company in Houston, Texas, where he employed several illegal aliens as armed

security guards. Rodriguez directed them to apply for commissions to carry

firearms, which required submission of false information. He also purchased

firearms and transferred them to those employees. 

In June 2006, Rodriguez was indicted for conspiracy, making false

statements in the acquisition of firearms, selling firearms to prohibited persons,

and selling firearms without a license. See 18 U.S.C. §§ 371, 922, 924. He

pleaded guilty to conspiracy, in exchange for the Government’s promise to

dismiss the other counts and not to seek any offense-level increases at

sentencing. 

The presentence investigation report (PSR) recommended: a base offense

level of 18 because the offense involved at least 39 firearms; a four-level

aggravating-role increase for Rodriguez’ being a leader or organizer; and, a twolevel increase for obstruction of justice. Rodriguez’ advisory guidelines

sentencing range would have been 51 to 63 months, but the statutory maximum

was 60 months, see 18 U.S.C. § 371; therefore, the range was 51 to 60 months.

 Rodriguez filed sealed objections to the PSR’s recommended offense-level

increases. At sentencing, the Government’s responses to those objections

defended the PSR’s recommended sentencing range. This arguably breached the

Government’s plea-agreement promise not to seek any offense-level increases.

After considering the parties’ contentions, the district judge rejected some

parts of the PSR and ruled: the offense involved 23, rather than the

recommended 39, firearms, reducing the recommended base offense level by two;

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and a three-level aggravating-role enhancement, instead of the recommended

four levels, along with the recommended two-level obstruction-of-justice

enhancement, should be imposed. This resulted in an advisory guidelines

sentencing range of 37 to 46 months. Rodriguez was sentenced to, inter alia, 37

months’ imprisonment. 

Rodriguez appealed his conviction and sentence. Among other things, he

claimed the Government had breached its plea agreement by urging

enhancements at sentencing; the Government conceded it had “arguably” done

so. Rodriguez, 306 F. App’x at 138. Our court affirmed the conviction; but, in

the light of the Government’s concession, it vacated Rodriguez’ sentence and

remanded for resentencing. Id. at 138-39. 

In doing so, our court ruled that, because of the plea-agreement breach, a

different judge would preside at resentencing:

The government . . . conced[es] . . . that Rodriguez is

entitled to be resentenced before a different district

judge. See Santobello v. New York, 404 U.S. 257,

262-63 (1971) (providing for remedy of resentencing

before a different district judge); United States v.

Saling, 205 F.3d 764, 768 (5th Cir. 2000) (same). In

light of this concession, we grant the agreed-upon relief

by vacating Rodriguez’s sentence and remanding for

resentencing before a different district judge. In so

doing, we note that this vacatur is caused not by any

error on the part of the district judge, but rather by the

government’s error. Id.

306 F. App’x at 138-39 (footnotes omitted). Our court also stated: “[R]emand to

a different judge is not a reflection upon the original judge”. Id. at 138 n.3

(citing Santabello, 404 U.S. at 263).

At resentencing, Rodriguez renewed his prior objections to the PSR; they

were denied. Based upon his independent analysis, the second judge ruled,

contrary to the original judge’s ruling, that Rodriguez was responsible for 27

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firearms (instead of 23). The second judge also ruled, as had the first, that

Rodriguez should receive a three-level aggravating-role enhancement (again,

instead of the PSR-recommended four levels) and a two-level obstruction-ofjustice enhancement. The resulting advisory guidelines sentencing range was

46 to 57 months. Rodriguez was sentenced to, inter alia, 46 months’

imprisonment—nine months more than his original sentence.

II.

Rodriguez claims: his sentence on remand was vindictive (either

presumed or actual vindictiveness); and, in the alternative, the advisory

guidelines sentencing range used for imposing his sentence was not supported

by the requisite preponderance of the evidence. For those two claims, this

appeal presents several instances in which we must decide whether to exercise

our discretion to review an issue. In that regard, plain-error review will be

applied to the two claims. (In his opening brief, Rodriguez also claimed he was

not credited for time served; at oral argument, his counsel conceded that issue

is moot.) 

A.

The Fifth and Fourteenth Amendments guarantee due process, which

obviously includes the right to be tried and sentenced absent prosecutorial or

judicial vindictiveness. See, e.g., Thigpen v. Roberts, 468 U.S. 27, 30 (1984)

(citing Blackledge v. Perry, 417 U.S. 21, 27 (1974)) (prosecutorial vindictiveness);

North Carolina v. Pearce, 395 U.S. 711, 723-24 (1969) (judicial vindictiveness),

overruled in part by Alabama v. Smith, 490 U.S. 794 (1989). Of course, because

Rodriguez was convicted of a federal crime, only the Fifth Amendment is in play.

Rodriguez claims the second judge’s sentence violates his right against

vindictiveness. 

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1.

Before reaching the vindictiveness claim, we must determine our standard

of review for it. In contending the claim is unreviewable, the Government

asserts Rodriguez’ counsel either waived or invited this claimed error at

resentencing. 

a.

Waived errors are unreviewable. E.g., United States v. Arviso-Mata, 442

F.3d 382, 384 (5th Cir. 2006) (citing United States v. Musquiz, 45 F.3d 927,

931-32 (5th Cir. 1995)). Review of invited errors is almost similarly precluded;

such errors are reviewed only for “manifest injustice”. United States v. Green,

272 F.3d 748, 754 (5th Cir. 2001) (quoting United States v. Pankhurst, 118 F.3d

345, 359 (5th Cir. 1997)). Forfeited errors are reviewed under the least strict

standard for these three types of error: plain error, as discussed infra. E.g.,

Arviso-Mata, 442 F.3d at 384 (citing United States v. Gracia-Cantu, 302 F.3d

308, 310 (5th Cir. 2002)).

“Forfeiture is the failure to make the timely assertion of a right; waiver is

the intentional relinquishment of a known right.” Id. (citing United States v.

Reveles, 190 F.3d 678, 683 (5th Cir. 1999)). In other words, for waiver,

Rodriguez’ “counsel [must have known] of the . . . issue and . . . consciously

chose[n] to forego it”. Id. For the invited-error doctrine to apply, defendant (or

his counsel) must have induced the error. Green, 272 F.3d at 754. 

 At resentencing, after sentence was imposed, Rodriguez stated he was

confused about that greater sentence. In doing so, he questioned how, in the

light of the Government’s plea-agreement breach at the first sentencing, he could

now receive a greater sentence. In responding, the court explained to Rodriguez

the process it had followed; and, after stating it was within the scope of our

court’s remand mandate as the district court understood it, the court asked

Rodriguez’ counsel if he had “any argument on the mandate”. Counsel replied:

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Judge, he was ordered a re-sentencing. And from the

looks of it, you have done, you have went through that

file extensively. We reurged [prior counsel’s] objections,

which were extensive; and you have just summed up

exactly what you just did. 

The Government maintains counsel’s reply constitutes waiver or invited

error. But, that reply, made after imposition of sentence, does not show counsel

knew of the potential vindictiveness issue and chose intentionally to relinquish

it (waiver). And, certainly, sentence having already been imposed, the reply did

not induce the claimed error (invited error). Accordingly, the claimed error is

reviewable. 

b.

Nevertheless, because Rodriguez failed to object in district court on the

basis of vindictiveness (forfeited error), review is only for plain error. E.g.,

United States v. Scott, 48 F.3d 1389, 1398 (5th Cir. 1995) (citing United States

v. Vontsteen, 950 F.2d 1086, 1089 (5th Cir. 1992) (en banc)). (The Government

states, and in his reply brief Rodriguez acknowledges, that such forfeited error

results in plain-error review. Of course, we, not the parties, determine our

standard of review. E.g., Vontsteen, 950 F.2d at 1091 (“But no party has the

power to control our standard of review. A reviewing court may reject both

parties’ approach to the standard.” (emphasis in original)).)

 To establish reversible plain error, Rodriguez must show: an error was

committed; it was clear or obvious; and, it affected his substantial rights. E.g.,

United States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008) (citing United States

v. Thompson, 454 F.3d 459, 464 (5th Cir. 2006), cert. denied, 129 S. Ct. 962

(2009)). Even if reversible plain error is established, we retain discretion

whether to correct it and, generally, will do so only if it seriously affects the

fairness, integrity, or public reputation of judicial proceedings. Id.

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2. 

In support of his vindictiveness claim, Rodriguez contends: pursuant to

North Carolina v. Pearce, 395 U.S. 711 (1969), a presumption of vindictiveness

applies to his sentence; or, alternatively, there was actual vindictiveness. For

the reasons that follow, there was no error. Accordingly, that ends our plainerror review.

a.

Pearce held a presumption of vindictiveness arises when, after a new trial,

a judge sentences a defendant to a harsher sentence. Id. at 723-24; see also

United States v. Resendez-Mendez, 251 F.3d 514, 517 n.6 (5th Cir. 2001)

(applying Pearce rule to resentencing context, where new sentence imposed by

judge who imposed original sentence (citing United States v. Campbell, 106 F.3d

64, 67 (5th Cir. 1997))). At issue here is whether that presumption applies when

a different judge of the same court imposes the new sentence.

In his opening and reply briefs here, Rodriguez asserted this issue is

controlled by United States v. Floyd, 519 F.2d 1031 (5th Cir. 1975), which held

the presumption applies in this situation. The Government countered that, in

the light of Texas v. McCullough, 475 U.S. 134 (1986), Floyd is no longer good

law. At oral argument, Rodriguez’ counsel conceded McCullough controls, but

urged our criticizing McCullough as having strayed from the principles

announced in Pearce. 

Of course, counsel’s request that we criticize McCullough is rejected;

similarly, we do not rely on counsel’s concession that Floyd has been overruled.

Because our court has never rendered that holding, we must instead undertake

an independent analysis to determine Floyd’s validity vel non. 

As is well known, “a panel of this court can only overrule a prior panel

decision if [, inter alia,] ‘such overruling is unequivocally directed by controlling

Supreme Court precedent’”. Martin v. Medtronic, Inc., 254 F.3d 573, 577 (5th

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Cir. 2001) (quoting United States v. Zuniga-Salinas, 945 F.2d 1302, 1306 (5th

Cir. 1991)). Therefore, at issue is whether McCullough “explicitly or implicitly

overrul[ed]” Floyd. United States v. Short, 181 F.3d 620, 624 (5th Cir. 1999).

For that analysis, a review of the Supreme Court’s extensive judicialvindictiveness jurisprudence is required. The seminal case is North Carolina v.

Pearce, rendered in 1969. There, the Court considered two consolidated cases.

See 395 U.S. at 713. 

In the first, defendant was convicted and sentenced by the trial judge. Id.

He successfully challenged his conviction in a state post-conviction proceeding

and was retried, convicted, and given a greater sentence by the trial judge. Id.

(Of great importance to our analysis, and although it was not mentioned in

Pearce, it was noted 17 years later in Texas v. McCullough, 475 U.S. 134, 140

n.3, is that this first case in Pearce “apparently involved different judges

presiding over the two trials”. As discussed infra, there being two judges in this

first case in Pearce was a basis for this court’s decision in Floyd in 1975, which

predated McCullough (1986). Floyd also involved two judges, and the belowdescribed presumption of vindictiveness adopted in Pearce was imposed in

Floyd.)

In the second case considered in Pearce, defendant pleaded guilty and was

sentenced. Id. at 714. His plea and sentence were set aside in a state postconviction proceeding; he was tried, convicted, and given a greater sentence (the

Pearce Court did not specify whether the judge who accepted the guilty plea was

the judge who subsequently tried and resentenced this defendant). Id. 

Both defendants pursued federal habeas relief, challenging their greater

sentences. Id. at 713-14. The Supreme Court rejected claims that either “the

double jeopardy provision [or] the Equal Protection Clause imposes an absolute

bar to a more severe sentence upon reconviction”. Id. at 723. On the other hand,

it was obvious to the Court that due process of law forbids imposition of “a

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heavier sentence upon every reconvicted defendant for the explicit purpose of

punishing the defendant for his having succeeded in getting his original

conviction set aside”. Id. at 723-24. 

The Court went further, however, and held: not only does actual

vindictiveness violate due process, but also, the “apprehension of such a

retaliatory motivation on the part of the sentencing judge” does so as well,

because “the fear of such vindictiveness may unconstitutionally deter”

defendants from exercising any rights to appeal and collateral attack. Id. at 725.

Therefore, the Court adopted a prophylactic rule, holding a presumption of

vindictiveness applies when defendant receives a greater sentence after a new

trial, unless: the sentencing court affirmatively states objective reasons for that

sentence; and, those reasons are based upon “information concerning identifiable

conduct on the part of the defendant occurring after the time of the original

sentencing proceeding”. Id. at 726.

A few years after Pearce was rendered in 1969, the Supreme Court

narrowed the application of this broad presumption of vindictiveness. Colten v.

Kentucky, 407 U.S. 104 (1972), considered whether the presumption should

apply in the context of Kentucky’s two-tier criminal court system: inferior

courts of limited jurisdiction, which adjudicated misdemeanors; and those of

general criminal jurisdiction. Id. at 112. Kentucky law provided that, if

defendant elected to do so, he could obtain a trial de novo in the latter after

conviction in the former. Id. Defendant in Colten was sentenced to a fine in the

inferior court; he elected to have a trial de novo in the general-jurisdiction court

and received a greater fine. Id. at 108. He claimed, inter alia, his sentence

should be presumed vindictive. Id. 

The Court disagreed. It “not[ed] first the obvious”: the generaljurisdiction court was a different court than the inferior court—“not the court

with whose work [defendant] was sufficiently dissatisfied to seek a different

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result on appeal; and . . . not the court that is asked to do over what it thought

it had already done correctly”. Id. at 116-17. Moreover, the general-jurisdiction

court was not “even asked to find error in another court’s work”. Id. at 117. The

Court also noted: 

It may often be that the superior court will impose a

punishment more severe than that received from the

inferior court. But it no more follows that such a

sentence is a vindictive penalty for seeking a superior

court trial than that the inferior court imposed a

lenient penalty. The trial de novo represents a

completely fresh determination of guilt or innocence.

Id. 

Under those circumstances,“[t]he possibility of vindictiveness, found to

exist in Pearce, [was] not inherent in the Kentucky two-tier system”. Id. at 116

(emphasis added). Therefore, the Pearce prophylactic rule was not required. Id.

at 118-19.

Not long after, in Chaffin v. Stynchcombe, 412 U.S. 17 (1973), the

presumption’s reach was restricted further. Chaffin addressed a circuit split:

whether the vindictiveness presumption applied when, following successful

appeal or collateral attack, a jury, rather than a judge, imposed a greater

sentence after retrial. See id. at 21. In Chaffin, defendant was convicted and

sentenced by a jury; his conviction was affirmed. Id. at 18-19. He received

federal habeas relief (retrial). Id. at 19. On retrial before a new judge and jury,

defendant received a greater sentence from the jury. Id. Defendant appealed

unsuccessfully and then again sought federal habeas relief, claiming his

sentence should be presumed vindictive. Id. at 20.

The Court reasoned that the presumption exists to protect against the

possibility of vindictiveness; therefore, the circumstances of resentencing must

be examined to determine whether they carry such an inherent threat. Id. at 26-

27. If not, there was no reason to apply the presumption. Id. 

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The Court held sentencing by a jury does not carry such a threat of

vindictiveness. It reasoned a jury would not (should not) know of the prior

sentence; would have no institutional interest in discouraging meritless appeals;

and was not the “same judicial authority whose handling of the prior trial was

sufficiently unacceptable to have required a reversal of the conviction. Thus, the

jury, unlike the judge who has been reversed, will have no personal stake in the

prior conviction and no motivation to engage in self-vindication”. Id. at 27. 

Over the next 11 years, the Court considered prosecutorial vindictiveness

several times. See Blackledge v. Perry, 417 U.S. 21 (1974); Bordenkircher v.

Hayes, 434 U.S. 357 (1978); United States v. Goodwin, 457 U.S. 368 (1982);

Thigpen v. Roberts, 468 U.S. 27 (1984) . In Bordenkircher, 434 U.S. at 363, the

Court summarized its vindictiveness precedents through its first prosecutorialvindictiveness decision in Blackledge v. Perry:

The Court has emphasized that the due process

violation in cases such as Pearce and Perry lay not in

the possibility that a defendant might be deterred from

the exercise of a legal right, see Colten v. Kentucky, 407

U.S. 104; Chaffin v. Stynchcombe, 412 U.S. 17, but

rather in the danger that the State might be retaliating

against the accused for lawfully attacking his

conviction. See Blackledge v. Perry, 417 U.S. at 26-28.

Goodwin explained further the reason for the presumption:

Both Pearce and Blackledge involved the defendant’s

exercise of a procedural right that caused a complete

retrial after he had been once tried and convicted. The

decisions in these cases reflect a recognition by the

Court of the institutional bias inherent in the judicial

system against the retrial of issues that have already

been decided. The doctrines of stare decisis, res

judicata, the law of the case, and double jeopardy are

all based, at least in part, on that deep-seated bias.

While none of these doctrines barred the retrials in

Pearce and Blackledge, the same institutional pressure

that supports them might also subconsciously motivate

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a vindictive prosecutorial or judicial response to a

defendant’s exercise of his right to obtain a retrial of a

decided question.

457 U.S. at 376-77 (emphasis added).

In these prosecutorial-vindictiveness decisions, the Court articulated the

reasonable-likelihood-of-vindictiveness standard in play here. For example, 16

months before our court’s 1975 decision in Floyd, the Court stated in Blackledge:

“The lesson that emerges from Pearce, Colten, and Chaffin is that the Due

Process Clause is not offended by all possibilities of increased punishment upon

retrial after appeal, but only by those that pose a realistic likelihood of

‘vindictiveness’”. 417 U.S. at 27 (emphasis added). Similarly, in Goodwin, the

Court stated: “Given the severity of such a presumption [of vindictiveness,] . . .

the Court has [imposed it] only in cases in which a reasonable likelihood of

vindictiveness exists”. 457 U.S. at 373 (emphasis added). And, in Goodwin, the

Court reaffirmed its earlier statement of the law from Blackledge: “As

Blackledge makes clear, ‘the Due Process Clause is not offended by all

possibilities of increased punishment . . . but only by those that pose a realistic

likelihood of vindictiveness’”. 457 U.S. at 384 (quoting Blackledge, 417 U.S. at

27) (omission in Goodwin) (emphasis added). 

Following the 1973 decision in Chaffin, judicial vindictiveness was not

addressed again until Texas v. McCullough, 475 U.S. 134 (1986). As noted, we

must decide whether McCullough overruled our court’s 1975 decision in Floyd,

discussed infra. 

McCullough addressed whether the Pearce presumption applied where:

a jury imposed the initial sentence; because of prosecutorial misconduct,

however, the trial judge granted a new trial; upon retrial before the same judge,

defendant asked that the judge, rather than the jury, impose sentence; and that

judge imposed a greater sentence than had the jury for the first trial. 475 U.S.

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at 136. The judge, on defendant’s motion, made findings of fact on why her

sentence was greater. Id. 

Noting that “vindictiveness of a sentencing judge is the evil the Court [in

Pearce] sought to prevent rather than simply enlarged sentences after a new

trial”, id. at 138, McCullough held the presumption inapplicable for the following

three reasons. First, the trial judge had ordered the new trial; therefore, she

“had ‘no motivation to engage in self-vindication’”, because she had not been

reversed. Id. at 139 (quoting Chaffin, 412 U.S. at 27). Second, it was unlikely

that the greater sentence arose from a desire to dissuade defendants from

requesting new trials. Id. And, third, “different sentencers assessed the varying

sentences”. Id. at 140. 

For this third reason, the Court looked to the two-tier system in Colten, for

which the presumption of vindictiveness had been held not applicable. As

further support, it noted: “Here [in McCullough], the second sentencer

provide[d] an on-the-record, wholly logical, nonvindictive reason for the

sentence. We read Pearce to require no more[,] particularly since trial judges

must be accorded broad discretion in sentencing”. Id. (citing Wasman v. United

States, 468 U.S. 559, 563-64 (1984)).

Moreover, regarding this third reason (different sentencers), the Court

clarified a point that “ha[d] led some courts to conclude by implication that the

presumption of vindictiveness applies even where different sentencing judges are

involved”. Id. at 140 n.3. The Court stated that such conclusion (which was also

reached earlier in Floyd, discussed infra) had resulted from the fact that, as

noted supra, the first case in Pearce “apparently involved different judges

presiding over the two trials”. Id. The Court noted the Pearce opinion had not

addressed that point; accordingly, McCullough “decline[d] to read Pearce as

governing this issue”. Id. 

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The Court last addressed judicial vindictiveness in Alabama v. Smith, 490

U.S. 794 (1989). There, after pleading guilty, defendant was sentenced. Id. at

795-96. He appealed and was granted a trial. Id. at 796. That trial was before

the judge who had accepted the earlier guilty plea. Id. 

At trial, the victim gave graphic testimony. Id. Defendant was convicted,

and the judge imposed a greater sentence. Id. The judge explained that his

doing so was based on evidence at trial of which he had been unaware when

imposing the first sentence (pursuant to the guilty plea). Id. at 796-97.

Defendant appealed, contending his sentence was due the Pearce

vindictiveness presumption. Id. at 797. The state supreme court agreed. Id. 

The Supreme Court granted review “[b]ecause of the conflicting results

reached by the lower courts on the question whether the Pearce presumption of

vindictiveness applies when a sentence imposed after trial is greater than that

previously imposed after a guilty plea”. Id. at 798 (emphasis added). The Court

denied application of the presumption and, in doing so, partially overturned

Pearce. Id. at 801-02. (As noted supra, Pearce consisted of two consolidated

cases. The latter was factually similar to that before the Court; therefore, that

portion of Pearce was overruled.) 

The Court held: where a guilty plea is successfully appealed and followed

by a trial, a higher sentence should not be presumed vindictive, because the

increase is much more likely to be the result of increased information presented

to the judge, rather than based on vindictiveness. Id. Utilizing the reasonablelikelihood standard first announced in Blackledge, 417 U.S. at 27, the Court

emphasized that the Pearce presumption applies only where 

there is a reasonable likelihood that the increase in

sentence is the product of actual vindictiveness on the

part of the sentencing authority. Where there is no such

reasonable likelihood, the burden remains upon the

defendant to prove actual vindictiveness. 

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Id. at 799-800 (internal citations and quotation marks omitted) (emphasis

added).

i.

Against the backdrop of this Supreme Court precedent, we turn to this

court’s split-panel decision in United States v. Floyd, 519 F.2d 1031 (5th Cir.

1975), which pre-dated a great deal of the Court’s vindictiveness decisions,

including McCullough (1986). Floyd considered whether the Pearce presumption

applies when a second judge, after trial, imposes a greater sentence than that

imposed by a first judge, after a guilty plea. Id. at 1032. That issue was joined

by two great, former judges (later, chief judges) on our court: Judge Charles

Clark, writing for the majority; and Judge James Plemon Coleman, in dissent.

Defendant pleaded guilty and was sentenced by the judge who accepted

the plea. Because that judge had not advised defendant about an aspect of the

sentence prior to accepting the plea, however, he granted defendant’s § 2255

motion and withdrew the guilty plea; and defendant received a jury trial before

a different judge. Defendant was found guilty and received a greater sentence

than that imposed on his guilty plea. Id. at 1032.

At sentencing, the second judge stated that, in addition to reviewing the

presentence investigation report, he had talked with counsel and the probation

officer. But, the judge stated he had admonished them that he “did not want to

know anything about the circumstances in connection with [the withdrawn] plea

before another judge in this court”. Id. at 1033 (emphasis added). At sentencing,

the second judge also stated he was basing the sentence, as he had “done in

similar cases in the past”, solely on the offense and evidence. Id. 

In reviewing Supreme Court precedent, Floyd noted correctly that,

“[a]bsent vindictiveness or the possibility of vindictiveness, more severe

sentences imposed following reconviction are constitutionally valid”. Id. (citing

Chaffin, 412 U.S. at 29; Colten, 407 U.S. at 116; Pearce, 395 U.S. at 723)

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(emphasis added). Floyd then noted that, “Blackledge [in 1974] . . . most recently

reaffirmed this principle”; and it next quoted the above-described, resulting

“realistic likelihood of ‘vindictiveness’” standard developed in Pearce, Colten, and

Chaffin. Id. (quoting Blackledge, 417 U.S. at 27).

If such “realistic likelihood” exists, Floyd acknowledged the abovediscussed Pearce standard regarding the sentencing-judge-stated objective

reasons that would permit the greater sentence. Id. Reflecting the extremely

careful analysis employed in Floyd, the majority opinion then addressed the

above-discussed factor not addressed in Pearce: “that the second sentencing

judge . . . was a different judge from the first”. Id. at 1034. (As discussed supra,

this two-judges-in-Pearce point was acknowledged ten years later in

McCullough.)

Floyd contrasted any prior-sentence knowledge of the second judge in

Floyd with that of the second judge in Pearce, noting that, in Floyd, “the second

. . . affirmatively avoided knowledge of the original sentence. Such lack of

knowledge is clearly probative of an absence of actual vindictiveness”. Id.

(emphasis added). Of course, there being no actual vindictiveness did not end

Floyd’s inquiry; it moved to application of the reasonable-likelihood-ofvindictiveness standard. The majority opinion’s painstaking, insightful analysis

is reflected in how it framed the question:

However, the broader question we face is whether, in

and of itself, such intentional insulation (together with

the judge’s independent basis for his more severe

sentence) so negates the possibility of vindictiveness as

to render unnecessary Pearce’s prophylactic showing

that subsequent conduct was the basis for the increase.

Id. at 1034.

After careful analysis of the existing precedent, Floyd held the Pearce

presumption applied. Id. In doing so, ten years before its being noted by the

Supreme Court in McCullough, the Floyd court observed: “The meaning of

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Pearce for today’s case must take into account that the second sentencing judge

in Pearce was a different judge from the first sentencing judge”—a fact not

mentioned in Pearce, but clear from the underlying state court opinion. Id. at

1034 n.5 (citing State v. Pearce, 151 S.E.2d 571 (N.C. 1966)) (emphasis added).

As a result, Floyd focused on “the institutional interests involved and procedures

to be followed”, id. (emphasis added), and concluded that the same threat of

vindictiveness present in Pearce was present in Floyd: “The same sort of hazard

exists that defendants will be deterred in exercising their right to seek review

because of a reasonable apprehension that judges who work together daily and

must preside at each other’s retrials will have a stake in discouraging such

reviews”, id. at 1035 (emphasis added). The majority vacated the sentence,

because the requisite, stated bases for imposing the greater sentence had not

been provided. Id. The matter was “remanded for proceedings consistent with

Pearce”. Id. 

The dissent from applying the Pearce presumption was based on

concluding that “resentencing [had been] affirmatively shown to have been

utterly bereft of any ‘realistic likelihood of vindictiveness’”. Id. at 1036. In that

regard, the dissent was “unwilling to accept as a matter of law the idea

expressed in the majority opinion that there can be ‘a reasonable apprehension

that judges who work together daily and must preside at [each] other’s retrials

will have a stake in discouraging such reviews’”. Id. (emphasis added). It also

found that apprehension “wholly unsupported by the facts in [the] case”. Id. 

Since Floyd was announced in 1975, it has been cited by our court only

four times—most recently in 1983. See United States v. Henry, 709 F.2d 298,

315 n.24 (5th Cir. 1983); Gamble v. Estelle, 551 F.2d 654, 655 (5th Cir. 1977);

Hardwick v. Doolittle, 558 F.2d 292, 299 (5th Cir. 1977); Dan J. Sheehan Co. v.

Occupational Safety and Health Review Comm’n, 520 F.2d 1036, 1041 (5th Cir.

1975). None of these cases relied on Floyd’s holding. 

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Our court is bound not only by the result of an opinion, “but also [by] those

portions of the opinion necessary to that result . . . .” Seminole Tribe v. Florida,

517 U.S. 44, 67 (1996) (citations omitted). McCullough expressly rejected part

of the basis for Floyd’s reasoning—there having been different sentencing judges

in Pearce. Moreover, McCullough held having different sentencers was one of

the primary reasons that the presumption was unnecessary. Restated, the

possible same-court institutional and collegial pressures that were of concern to

Floyd were held in McCullough not to require the presumption. Accordingly, we

hold, as Rodriguez’ counsel conceded at oral argument, that Floyd was overruled

by McCullough. 

In doing so, we join our seven sister circuits that, as discussed below, do

not apply the presumption when different judges preside over the first and

second sentencing. See United States v. Anderson, 440 F.3d 1013, 1016 (8th Cir.

2006) (collecting cases); Gonzalez v. Wolfe, 290 F. App’x 799, 813 (6th Cir. 2008)

(unpublished), cert. denied, 129 S. Ct. 1016 (2009). Some of these circuits,

however, hold the presumption is inapplicable in this different-sentencers

situation only if the second states objective, non-vindictive reasons for imposing

the greater sentence (added condition). See Anderson, 440 F.3d at 1016;

Macomber v. Hannigan, 15 F.3d 155, 156-57 (10th Cir. 1994); Rock v.

Zimmerman, 959 F.2d 1237, 1257 (3d Cir. 1992), overruled on other grounds by

Brecht v. Abrahamson, 507 U.S. 619 (1993); see also United States v. Newman,

6 F.3d 623, 630-31 (9th Cir. 1993) (seeming to impose the added condition). But

see Gonzalez, 290 F. App’x at 813; United States v. Cheek, 3 F.3d 1057, 1064 (7th

Cir. 1993); United States v. Perez, 904 F.2d 142, 146 (2d Cir. 1990). The Third

and Tenth Circuits cite McCullough in support of imposing this added condition.

See Macomber, 15 F.3d at 157; Rock, 959 F.2d at 1257-58. McCullough stated,

as quoted supra: “Here [in McCullough], the second sentencer provide[d] an onthe-record, wholly logical, nonvindictive reason for the sentence. We read Pearce

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to require no more[,] particularly since trial judges must be accorded broad

discretion in sentencing”. 475 U.S. at 140 (citing Wasman, 468 U.S. at 563-64).

It may be that this added-condition difference of opinion in the seven

circuits arises, as can happen, from the Supreme Court’s repeated

summarization and quotation from its vindictiveness decisions. And, none of

these circuits addresses this added-condition difference of opinion. 

Arguably, the evolved reasonable-likelihood-of-vindictiveness standard

negates this added condition. See Alabama v. Smith, 490 U.S. at 798-800.

Neither party, however, has raised this added-condition issue. See Vontsteen,

950 F.2d at 1086 (holding it is within our discretion to decline to consider issues

not raised on appeal). In any event, as discussed infra, because the second judge

stated more than sufficient reasons for the greater sentence, we do not need to

reach the issue. In other words, even assuming the added condition is required,

the record amply demonstrates that the second judge more than fulfilled that

condition. Along that line, regardless of whether the added condition is required,

the second judge should obviously state such reasons. They assist not only in

our reviewing a vindictiveness challenge but also in reviewing other challenges

to the sentence as well. 

ii.

Therefore, we are not bound by Floyd to presume vindictiveness per se.

Nonetheless, as noted above and as addressed, for example, in Alabama v.

Smith, 490 U.S. at 799-800, we must still consider whether there was a

reasonable likelihood that the increase in Rodriguez’ sentence was due to actual

vindictiveness. 

As noted, in remanding this matter, the prior panel required “resentencing

before a different district judge”. Rodriguez, 306 F. App’x at 138-39. In doing

so, it stated: “The remedy of resentencing by a different district judge is not

based on any misstep by the original sentencing judge; instead, it reflects a need

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to remove the taint of the original error by the government”—its breach of the

plea agreement. Id. at 139 n.3 (emphasis added). As support for the differentjudge requirement, our court cited Santobello v. New York, 404 U.S. 257, 263

(1971) (requiring that defendant who seeks to have his sentence vacated for

breach of a plea agreement be resentenced by a different judge, though the

original judge committed no error), and United States v. Saling, 205 F.3d 764,

768 (5th Cir. 2000) (holding such a defendant may choose between “specific

performance [of the plea agreement], which requires that the sentence be

vacated and that the defendant be resentenced by a different judge; or . . .

withdrawal of the guilty plea, and the opportunity to plead anew, which requires

vacation of both the conviction and the sentence” (citing United States v. Palomo,

998 F.2d 253, 256 (5th Cir.1993))). Needless to say, this different-judge

requirement, because of breach of a plea agreement, also decreased greatly the

possibility of vindictiveness.

In addition, there is absolutely no evidence that the second judge was

reasonably likely to impose a vindictive sentence. Rodriguez has not shown, for

example, some relationship between the first and second judges, or a desire to

enforce decisions by their court, that would induce the second judge to act in that

fashion. Nor, as another example, has Rodriguez shown that the second judge

has some sort of bias against him, including because Rodriguez showed breach

of his plea agreement by the Government. Nor, as a final example, has he shown

the second judge seeks to discourage appeals. 

In short, based on this record, there is no reason to think any likelihood

of vindictiveness is inherent in this situation—quite the contrary. The second

judge conducted not only an independent review of the record and PSR, but he

also took the further step of having “the probation officer . . . provide the [judge]

with the underlying ATF reports regarding the weapons purchases” and

independently examining that evidence. There being no reasonable likelihood

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of vindictiveness is reflected in the judge’s response, after imposing sentence,

when Rodriguez, as discussed supra, expressed his confusion to the judge

regarding receiving that greater sentence, even though, as Rodriguez noted, the

Government had breached the plea agreement at the first sentencing. The judge

stated:

I have ruled on the objections your lawyer told me were

extant. I based my own independent recollection of the

evidence. I have read the entire file. I am not basing

my ruling on any statement made to [the first judge]. I

made my own independent assessment of the

evaluations. I reviewed the ATF file. This is clearly

within the scope of the 5th Circuit’s mandate as I

perceive the mandate to read.

In sum, because there is no reasonable likelihood of vindictiveness, the

presumption of vindictiveness does not apply. Again, because there was no

error, our plain-error review ends at this point regarding presumed

vindictiveness.

b.

Of course, as discussed supra, where, as here, that presumption does not

apply, defendant may still show a due-process violation by showing actual

vindictiveness. E.g., McCullough, 475 U.S. at 138 (citing Wasman, 468 U.S. at

569); see Pearce, 395 U.S. at 725. As noted, Rodriguez also claims such

vindictiveness; but, he did not raise this contention until his reply brief here. As

discussed infra, that point, however, was addressed in the Government’s brief.

For obvious reasons, our court generally will not consider an issue raised

for the first time in a reply brief. E.g., United States v. Brown, 305 F.3d 304, 307

n.4 (5th Cir. 2002) (citing United States v. Prince, 868 F.2d 1379, 1386 (5th Cir.

1989)). Adding insult to procedural injury here is that the actual-vindictiveness

issue, not raised until the reply brief, was not even raised in district court. As

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discussed supra, no form of vindictiveness—presumed or actual—was claimed

there.

 Nevertheless, also for obvious reasons, “we ordinarily have the discretion

to decide legal issues that are not timely raised”. Vontsteen, 950 F.2d at 1091

(citing United States v. Giovannetti, 928 F.2d 225 (7th Cir. 1991) (plain-error

review)). Accordingly, that includes “consider[ing] issues not raised in an initial

brief” on appeal. Estate of Lisle v. Comm’r of Internal Revenue, 341 F.3d 364,

384 (5th Cir. 2003), mandate recalled and modified on other grounds by 431 F.3d

439 (5th Cir. 2005); cf. United States v. Whitfield, 590 F.3d 325, 346-47 (5th Cir.

2009) (“As a general rule, a party waives any argument that it fails to brief on

appeal. However, this court has recognized an exception to this rule whereby we

will consider a point of error not raised on appeal when it is necessary to prevent

a miscarriage of justice.” (citation and quotation marks omitted)); Martinez v.

Mukasey, 519 F.3d 532, 545-46 (5th Cir. 2008) (“For obvious reasons, we

generally do not consider contentions raised for the first time at oral argument.

. . . In our discretion, because this is a question of statutory construction, we will

consider it.”). Present here is one of those exceptions to not reviewing an issue

first raised in a reply brief. 

This exception arises out of the Government’s, as noted, addressing actual

vindictiveness in its brief. The general rule against not considering an issue not

raised until the reply brief is 

view[ed] . . . differently when a new issue is raised in

the appellee’s brief and the appellant responds in his

reply brief. Cousin v. Trans Union Corp. 246 F.3d 359,

n.22 (5th Cir. 2001) and Vallecillo v. United States

HUD, 155 F. App’x 764, 766 n.1 (5th Cir. 2005). In that

situation, the court avoids the more unfair scenario that

occurs when “an appellant raises a completely new

issue in its reply brief, disadvantaging the appellee, and

for which the procedural bar concerning initial briefs

was properly developed and utilized.” Cousin, 246 F.3d

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at 373. This situation is not present in this case because

the government raised the issue presented by

[appellant,] eliminating any surprise.

United States v. Ramirez, 557 F.3d 200, 203 (5th Cir. 2009).

Although Rodriguez’ opening brief had not claimed actual vindictiveness,

the Government asserted in its brief that “Rodriguez has not shown any actual

vindictiveness”. Considering this assertion, there is no prejudice to the

Government for our exercising our discretion to consider Rodriguez’ quite

belated actual-vindictiveness claim. 

Because this reply-brief claim was not raised in district court, we will

assume review is for plain error. Arguably an even more strict standard of

review could apply, such as that to prevent a manifest miscarriage of justice. Cf.

United States. v. Miller, 576 F.3d 528, 529-30 & n.2 (5th Cir. 2009) (applying

manifest-miscarriage-of-justice standard where defendant failed in district court

to move for judgment of acquittal; relief is granted only if there has been a

“manifest miscarriage of justice, which is found if the record is devoid of evidence

pointing to guilt”. (quoting United States v. Green, 293 F.3d 886, 895 (5th Cir.

2002)) (internal quotation marks omitted)). We need not decide that question

because the claim fails even under the more lenient review for plain error. 

Along that line, it is well established that there can never be plain error

if the issue is a factual one, which could have been resolved in district court upon

proper objection. E.g., United States v. Lee, No. 09-40099, 2010 WL 742592, at

*3 (5th Cir. 4 March 2010) (quoting United States v. Lopez, 923 F.2d 47, 50 (5th

Cir. 1991)). Although an issue of fact, actual vindictiveness vel non is not,

however, within that category. It is questionable such an actual-vindictiveness

objection could be resolved in district court. Cf. Vontsteen, 950 F.2d at 1090

(presumed vindictiveness). Moreover, it is the reviewing, not the district, court

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that decides whether the district court’s sentence was pursuant to actual

vindictiveness. 

Our exercising our discretion to review this claim is, in large part, to make

absolutely clear that the second judge committed no error. Acting entirely

within our mandate, the second judge conducted an independent, objective

analysis of the PSR and the ATF reports. 

Rodriguez contends the record shows the second judge acted vindictively

because: he summarily overruled Rodriguez’ objections to the PSR; and, he did

not allow the Government to contribute to the sentencing hearing. Neither

matter even remotely suggests vindictiveness. 

 The record reflects that the second judge carefully considered Rodriguez’

objections. Moreover, Rodriguez has offered no authority requiring the second

judge to state his reasons for denying them. Cf. United States v. Rocha, 916

F.2d 219, 239 (5th Cir. 1990) (affirming district court’s having “summarily

overruled [defendant’s] objections to such evidence”). 

Rodriguez does, apparently, recognize the patent absurdity of his

contention that the second judge’s stated intention not to engage the

Government at resentencing somehow evinces vindictiveness. He admits in his

reply brief that his contention creates a Catch-22 for the district court:

according to Rodriguez, the second judge is vindictive for not having engaged the

Government; but, had the judge done so, he would have caused the Government,

once again, to breach its plea agreement. The record shows, as discussed infra,

that the second judge was entitled to rely on other bases, negating any need to

solicit input from the Government. 

Again, there is simply no evidence of actual vindictiveness. Therefore,

there was no error. In sum, our plain-error review for vindictiveness—presumed

or actual—ends.

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B.

In the alternative, Rodriguez claims the advisory guidelines sentencing

range used to impose his sentence was not supported by the requisite

preponderance of the evidence. Although, post-Booker, the Guidelines are

advisory only, and an ultimate sentence is reviewed for reasonableness under an

abuse-of-discretion standard, the district court must still properly calculate the

advisory guidelines sentencing range for use in deciding on the sentence to

impose. Gall v. United States, 552 U.S. 38, 51 (2007). 

In that respect, for properly preserved claims, a sentencing court’s

application of the guidelines is reviewed de novo; its factual findings, only for

clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.

2008) (citing United States v. Juarez Duarte, 513 F.3d 204 (5th Cir.), cert. denied,

128 S. Ct. 2452 (2008)); United States v. Villegas, 404 F.3d 355, 359 (5th Cir.

2005). In that regard, those factual findings must be supported by a

preponderance of the evidence. E.g., United States v. Duhon, 541 F.3d 391, 395

(5th Cir. 2008) (citing United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005)).

Here, however, as Rodriguez acknowledges, review is only for plain error

because, at resentencing, he objected on bases different from those presented

here. Villegas, 404 F.3d at 358. As discussed supra, to establish reversible plain

error, Rodriguez must show a clear or obvious error that affected his substantial

rights. E.g., Baker, 538 F.3d at 332 (citing Thompson, 454 F.3d at 464). Again,

if reversible plain error is established, we still retain discretion whether to

correct such error and, generally, will do so only if it seriously affects the

fairness, integrity, or public reputation of judicial proceedings. Id. 

Rodriguez contends: the district court’s calculations for the base offense

level and the aggravating-role and obstruction-of-justice enhancements were not

supported by a preponderance of the evidence; and, therefore, each claimed error

constitutes reversible plain error for which we should grant relief. Rodriguez

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asserts that the district court’s claimed error for each of these calculations lies

in its relying on the PSR. 

“[A] district court may adopt the facts contained in a PSR without further

inquiry if those facts have an adequate evidentiary basis with sufficient indicia

of reliability and the defendant does not present rebuttal evidence or otherwise

demonstrate that the information in the PSR is unreliable”. United States v.

Cabrera, 288 F.3d 163, 173-74 (5th Cir. 2002). For the following reasons, the

PSR contained sufficient facts to provide an adequate evidentiary basis for

calculating the three belatedly challenged sentencing elements: the base offense

level and the aggravating-role and obstruction-of-justice enhancements to it. 

For the base offense level, the PSR contains numerous details regarding

Rodriguez’s firearms dealings. (Moreover, in addition to considering the PSR,

the second judge considered the ATF reports and, on the record, identified each

of the weapons for which he deemed Rodriguez responsible.) For the

aggravating-role enhancement, the PSR shows Rodriguez was in charge of the

daily operations of this private security company (BCPD) and possessed final

decision-making authority. Finally, for the obstruction-of-justice enhancement,

the PSR shows that, during the raid, federal agents learned that BCPD guards

had received advance warnings from their supervisors that law enforcement

agents were arresting the guards and had been told to vacate their job sites if

their work documents were not in order. 

Rodriguez, however, insists he provided rebuttal evidence that prevented

the district court’s being entitled to rely on the PSR. “If information is presented

to the sentencing judge with which the defendant would take issue, the

defendant bears the burden of demonstrating that the information cannot be

relied upon because it is materially untrue, inaccurate or unreliable.” United

States v. Angulo, 927 F.2d 202, 205 (5th Cir. 1991). Rodriguez maintains he met

this burden by submitting written objections to the PSR. These objections,

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however, are not evidence—they are merely “unsworn assertions”. United States

v. Lghodaro, 967 F.2d 1028, 1030 (5th Cir. 1992) (citing United States v.

Sanders, 942 F.2d 894, 897-98 (5th Cir. 1991)). 

 Because no testimony or other evidence was submitted to rebut the

information in the PSR, the district court was free to adopt the PSR’s findings

without further inquiry or explanation. United States v. Mir, 919 F.2d 940, 943

(5th Cir. 1990) (citing United States v. Mueller, 902 F.2d 336, 346 (5th Cir.

1990)). The district court committed no error. Again, our plain-error review

draws to a close.

III.

For the foregoing reasons, the judgment is AFFIRMED.

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