United States Court of Appeals

for the Fifth Circuit ____________

No. 22-10384 

____________

United States of America, 

Plaintiff—Appellee, 

versus

Vinson Lee Willis, Jr.,

Defendant—Appellant. 

______________________________

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 3:19-CR-488-1 

______________________________

Before Dennis, Engelhardt, and Oldham, Circuit Judges.

Andrew S. Oldham, Circuit Judge: 

Vinson Lee Willis, Jr., pled guilty to three counts of possessing a 

firearm as a felon in violation of 18 U.S.C. § 922(g)(1). He raises various 

issues on appeal. All fail, save for one: Willis’s sentence is impermissibly 

ambiguous. We therefore vacate and remand for further proceedings 

consistent with this opinion. 

I.

Vinson Lee Willis, Jr., is a convicted felon who dealt in guns and 

narcotics. In early August 2019, a confidential informant contacted agents at 

United States Court of Appeals

Fifth Circuit

FILED

August 7, 2023

Lyle W. Cayce

Clerk

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the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) about 

an interaction the informant had with a man named “D.O.” On August 3, 

D.O. sold the informant methamphetamine, called his supplier on the 

informant’s phone, and drove the informant to hissupplier’s house to collect

a load of heroin. D.O. later told the informant that “he had the ability to sell 

large quantities of heroin, ecstasy, and as many guns as [the informant] could 

purchase.” ATF agents searched various law enforcement databases for the 

phone number and house address. They determined that Willis was the likely 

supplier.

Three periods of firearms sales and possession followed. First, from

August 8–23, Willis sold eleven guns to two confidential informants and an 

undercover agent. D.O. served as the intermediary for the transactions.

Then, from August 26–28, the undercover agent and one of the confidential 

informants purchased three more firearms directly from Willis. Finally, on

September 4, the undercover agent and one of the confidential informants 

met Willis to purchase additional firearms. Willis placed one of the guns in 

the undercover agent’s truck. While returning to his car to retrieve the 

others, he saw law enforcement vehicles heading toward him. Willis ran. The 

officers quickly apprehended and arrested him. After Willis waived his 

Miranda rights and consented to the search of his vehicle, the officers found

two loaded guns—one in the trunk, the other in a seatback pocket.

Based on these three periods of possession, Willis was charged with, 

and pled guilty to, three corresponding counts of being a felon in possession 

of a firearm. See 18 U.S.C. § 922(g)(1); see also id. § 924(a)(2) (West 2021)

(providing the sentence for a § 922(g) offense at the time of Willis’s 

violation); id. § 924(a)(8) (West 2022) (providing the current sentence for a 

§ 922(g) offense). The presentence report (“PSR”) calculated Willis’s 

offense level to be 30 and his criminal-history category to be V. This yielded

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a Guidelines range of 151–188 months’ imprisonment and 3 years’ supervised 

release. Willis filed no objections to the PSR.

On April 14, 2022, the district court imposed the following sentence:

[I]t is the judgment of the Court that the defendant, Vinson Lee 

Willis, Jr., is hereby committed to the custody of the Federal 

Bureau of Prisons for a period of 120 months on Counts 1, 2, 

and 3. I’m going to run those consecutively on you. You’ll 

finish one, and then you’ll finish the next, and then you’ll finish 

the next. Only to the extent it produces a total aggregate of 188 

months.

The district court also sentenced Willis to a 3-year term of supervised release. 

The April 19 written judgment tracked the oral pronouncement. Willis timely 

filed a notice of appeal on April 20, 2022.

But on May 31, the district court scheduled a “re-sentencing hearing”

to “address matters . . . raised by the Bureau of Prisons.” Specifically, the 

district court had received “a correspondence . . . from the Federal Bureau 

of Prisons that indicated the sentence could not be executed as intended.”

Because Willis had already noticed his appeal, Willis filed an unopposed 

motion in the Fifth Circuit requesting the appeal be stayed pending the

purported re-sentencing. We granted the motion. But we also clarified that 

the order was “not to be construed as a comment on what authority the 

district court has, at this time, over the sentence.”

At the July 28 re-sentencing hearing, the district court said it was 

“reimposing” the original April sentence—but “with a little tweak.” “With 

the permission of the parties,” the district court sentenced Willis to “180 

months rather than 188 months.” In its words: 

Vinson Lee Willis, Jr., is hereby committed to the custody of 

the Federal Bureau of Prisons for a period of 120 months on 

Counts 1 and 2, to run concurrently with each other. The 

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defendant is further committed to the custody of the Federal 

Bureau of Prisons for a period of 60 months on Count 3, to run 

consecutively to the sentences imposed in Counts 1 and 2. The 

total aggregate sentence is 180 months. . . . It is further ordered 

that upon release from imprisonment, the defendant shall be 

placed on supervised release for a term of three years per count, 

to run concurrently with each other.

The district court did so, it said, “to make clear that [it was] sentencing Mr. 

Willis for his crimes and not his misconduct in court.” The court explained 

that it thought Willis had been a “smart aleck” at the prior hearing. And 

while it continued to think 188 months was an appropriate sentence, the court 

decided to “knock eight months off” to “make clear for the appellate 

record” that it was sentencing Willis for “the crime and not [his] smart 

mouth.” Willis filed another notice of appeal the day after the district court 

entered its amended judgment.

We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

II.

Willis argues his sentence is procedurally and substantively flawed.

Recall, however, that Willis was sentenced twice for the same conviction—

once in April 2022, then again in July 2022. So before we can evaluate 

Willis’s alleged errors, we must begin with the analytically prior question: 

Which sentence do we evaluate? 

Willis argues that the district court lacked jurisdiction to conduct the 

July re-sentencing and to enter the amended judgment imposing a different 

term of imprisonment. The Government agrees. So do we.

Willis timely filed his initial notice of appeal on April 20. This was “an 

event of jurisdictional significance.” Griggs v. Provident Consumer Disc. Co., 

459 U.S. 56, 58 (1982) (per curiam). “It confer[red] jurisdiction on the court 

of appeals and divest[ed] the district court of its control over those aspects of 

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the case involved in the appeal.” Ibid.; see also Ross v. Marshall, 426 F.3d 745, 

751 (5th Cir. 2005) (“[T]he filing of a valid notice of appeal from a final order 

of the district court divests that court of jurisdiction to act on the matters 

involved in the appeal.” (quotation omitted)); United States v. Lucero, 755 F. 

App’x 384, 386–87 (5th Cir. 2018) (per curiam) (“The general rule is that a 

case can exist only in one court at a time, and a notice of appeal permanently 

transfers the case to us until we send it back.”); Griggs, 459 U.S. at 58–60 

(explaining why it would not be “tolerable” to have “a district court and a 

court of appeals . . . simultaneously analyzing the same judgment”). Thus, 

on a straightforward application of the one-court-at-a-time rule, the district 

court lacked the power to re-sentence Willis on July 28. After all, the entirety 

of Willis’s appeal involves the procedural and substantive reasonableness of 

his sentence, so the district court’s re-sentencing necessarily clashed with 

“aspects of the case involved in the appeal.” Griggs, 459 U.S. at 58.

“True, there are exceptions to the general one-court-at-a-time rule.”

Lucero, 755 F. App’x at 386; see, e.g., Fed. R. App. P. 4(b)(3), (5); see also 

16A Charles Alan Wright et al., Federal Practice and 

Procedure § 3949.1 (5th ed. Apr. 2023 update) [hereinafter Wright & 

Miller] (collecting exceptions). But none applies here.

First, Appellate Rule 4(b)(5) instructs that “[t]he filing of a notice of 

appeal . . . does not divest a district court of jurisdiction to correct a sentence 

under Federal Rule of Criminal Procedure 35(a).” Fed. R. App. P. 4(b)(5). 

Rule 35(a), in turn, providesthat “[w]ithin 14 days after sentencing, the court 

may correct a sentence that resulted from arithmetical, technical, or other 

clear error.” Fed. R. Crim. P. 35(a). Even if the July re-sentencing were

best interpreted as correcting “arithmetical, technical, or other clear error,” 

ibid., the district court nevertheless lacked jurisdiction to do so. That’s 

because more than 14 days had passed between the original April judgment 

and the July re-sentencing. And Rule 35(a)’s “time limit is jurisdictional and 

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strictly construed.” United States v. Coe, 482 F. App’x 957, 957 (5th Cir. 

2012) (per curiam); see also United States v. Lopez, 26 F.3d 512, 518–23 (5th 

Cir. 1994) (per curiam) (so holding with respect to an earlier, but 

substantially similar, iteration of Rule 35). Regardless, the district court’s 

decision to “knock eight months off” Willis’s sentence was not in response 

to an “arithmetical, technical, or other clear error.” Fed. R. Crim. P. 

35(a). Rather, the district court did so because, upon reflection, it wished it

“had held [Willis] in contempt rather than giving [him] 188 months,” and 

because it now “want[ed] to make clear for the appellate record” that Willis 

was being sentenced for “the crime and not [his] smart mouth.” This is not 

a qualifying justification under Rule 35. The Rule’s advisory committee notes 

even warn that Rule 35 “is not intended to afford the court the opportunity

. . . to change its mind about the appropriateness of the sentence.” Fed. R. 

Crim. P. 35 advisory committee’s notes to 1991 amendment.

Second, Federal Rule of Criminal Procedure 36 permits the district 

court to “correct a clerical error in a judgment, order, or other part of the 

record.” Fed R. Crim. P. 36. But the changes the district court made to 

Willis’s sentence at the re-sentencing hearing—including reducing the 

prison term from 188 to 180 months—were far more substantial than a 

“clerical” correction. See Lopez, 26 F.3d at 515 n.5 (“Rule 36 does not 

encompass sentence modifications.”); United States v. Buendia-Rangel, 553 

F.3d 378, 379 (5th Cir. 2008) (per curiam) (explaining that “clerical errors” 

exist “when the court intended one thing but by . . . mistake or oversight did 

another” (quotation omitted)). Moreover, even if the prison-term reduction 

somehow qualified as a clerical-error correction, Willis’s April 20 notice of 

appeal nevertheless divested the district court of jurisdiction to act under 

Rule 36. Lucero, 755 F. App’x at 387 (“[A]n effective notice of appeal divests 

the district court of jurisdiction, and a district court cannot use a Rule 36 

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motion to reacquire it.”); accord United States v. Walker, 2022 WL 1652751, 

at *1 (5th Cir. May 24, 2022) (per curiam).

Third, 18 U.S.C. § 3582 allows a district court to modify a sentence in 

certain circumstances notwithstanding an otherwise final judgment. See 18 

U.S.C. § 3582(b)(1), (c). But this exception is also inapplicable. The district 

court may modify a sentence via § 3582(c): (1) upon a motion of either the 

Director of the Bureau of Prisons or the defendant, if there are 

“extraordinary and compelling reasons” warranting a reduction or the 

defendant is 70 years old or older, “has served at least 30 years in prison,”

and is not a danger to another; (2) to the extent a modification is expressly 

permitted by statute or Rule 35 of the Federal Rules of Criminal Procedure; 

and (3) when a defendant has been sentenced to a prison term “based on a 

sentencing range that has subsequently been lowered by the Sentencing 

Commission.” Id. § 3582(c). But neither the director of the Bureau of Prisons

nor Willis filed a motion to modify. The entry of the amended judgment fell 

outside the 14-day window for a Rule 35(a) correction. And no part of this 

case involves a change to the relevant Guidelines. 

Regardless, even if § 3582 did give the district court the authority to

re-sentence Willis in this context, it did not give that court the jurisdiction to 

do so after Willis had already filed his notice of appeal. See Lopez, 26 F.3d at

515 n.3 (distinguishing a district court’s general “authority” to act under 

§ 3582(c) from its “jurisdiction” to do so at a specific time). That’s because

“[n]othing in the language of the [statute] suggests that its drafters intended 

to alter th[e] longstanding jurisdictional principle” that the “entry of a notice 

of appeal divests the district court of jurisdiction to adjudicate any matters 

related to the appeal.” United States v. Distasio, 820 F.2d 20, 23 (1st Cir. 

1987); see also United States v. Maldonado-Rios, 790 F.3d 62, 64 (1st Cir. 2015) 

(per curiam) (holding “that a district court lacks the power to order a 

sentence modification under 18 U.S.C. § 3582(c) while an appeal of that 

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sentence is pending”). Absent a clear statement to the contrary, we decline 

to infer one. See Lopez, 26 F.3d at 515 n.3 (“[Section] 3582(c) does not 

expressly address the jurisdiction of a court to modify an imposed term of 

imprisonment.”); Lucero, 775 F. App’x at 386–87 (requiring a clear 

statement to override the one-court-at-a-time rule).

Fourth and finally, the district court sought and received “the 

permission of the parties” before re-sentencing Willis in July. But it is a 

bedrock pillar of federal law that “subject-matter jurisdiction cannot be 

created by waiver or consent.” Howery v. Allstate Ins. Co., 243 F.3d 912, 919 

(5th Cir. 2001); see also Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583

(1999) (“[S]ubject-matter delineations must be policed by the courts on their 

own initiative even at the highest level.”). That’s doubly true here where the 

district court’s assertion of jurisdiction where it doesn’t exist (that court) 

undermines jurisdiction where it does (our court).

In sum, Willis’s timely notice of appeal transferred the case from the 

district court to ours, which divested the district court of jurisdiction to resentence Willis. Because the district court lacked jurisdiction, the July resentencing is “null and void.” 16A Wright & Miller § 3949.1 (“[O]nce 

jurisdiction passes to the court of appeals, the district court generally lacks 

power to act with respect to matters encompassed within the appeal, and 

actions taken by the district court in violation of this principle are null and 

void.”); accord United States v. Jones, 482 F. App’x 956, 956–57 (5th Cir. 

2012) (“[T]he district court had until 7 September 2011 to correct or modify 

Jones’ original sentence; it lacked jurisdiction to re-sentence him on 3

November 2011. Accordingly, the later-imposed sentence and its 

corresponding entry of judgment are void.”). We therefore confine our 

analysis of Willis’s claims to the April sentencing.

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III.

Willis claims his operative sentence is procedurally and substantively 

flawed in four ways. He argues that the district court (A) imposed a 

multiplicitous sentence and (B) applied the Guidelines incorrectly when 

calculating his criminal-history score. Willis further claims that his sentence 

is (C) substantively unreasonable and (D) impermissibly ambiguous. The 

first three challenges are unavailing. Willis prevails on the fourth. 

A.

Start with multiplicity. “‘Multiplicity’ is spreading a single offense 

over several counts.” 1A Wright & Miller § 143. This can happen in 

two ways. United States v. Vasquez, 899 F.3d 363, 381 (5th Cir. 2018) 

(recognizing “two species of multiplicity challenges” (quotation omitted)). 

“The first type arises when a defendant is charged with violating two 

different statutes, one of which is arguably the lesser included offense of the 

other.” United States v. Woerner, 709 F.3d 527, 539 (5th Cir. 2013). “The 

second type of multiplicity challenge arises when charges for multiple 

violations of the same statute are predicated on arguably the same criminal 

conduct.” Ibid.

This appeal allegedly involves the latter. Namely, Willis argues that 

by charging him with—and sentencing him for—three felon-in-possession 

counts, the district court punished him thrice for what he asserts was a single

ongoing offense. If true, this would violate the Double Jeopardy Clause’s 

prohibition “against multiple punishments for the same offense.” Whalen v. 

United States, 445 U.S. 684, 688 (1980) (quotation omitted); see U.S. 

Const. amend. V (“[N]or shall any person be subject for the same offence 

to be twice put in jeopardy of life or limb.”); United States v. Buchanan, 485 

F.3d 274, 278 (5th Cir. 2007) (“The rule against multiplicity is grounded in 

the Fifth Amendment’s prohibition against double jeopardy.”).

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Willis raises his multiplicity challenge for the first time on appeal, so 

we review it under the four-factor plain-error standard. United States v. 

Njoku, 737 F.3d 55, 67 (5th Cir. 2013). To prevail, Willis must demonstrate

that the district court (1) made an error (2) that was “clear or obvious” and 

(3) that “affected [his] substantial rights.” Puckett v. United States, 556 U.S. 

129, 135 (2009). If Willis satisfies those three prongs, then we (4) have 

“discretion to remedy the error—discretion which ought to be exercised only 

if the error seriously affects the fairness, integrity or public reputation of 

judicial proceedings.” Ibid. (quotation omitted).

Willis cannot meet the plain-error standard because the district court 

didn’t err—plainly or otherwise. Willis was convicted under § 922(g)(1), 

which “has three requirements: (1) that the defendant previously had been 

convicted of a felony; (2) that he possessed a firearm; and (3) that the firearm 

traveled in or affected interstate commerce.” United States v. Daugherty, 264 

F.3d 513, 515 (5th Cir. 2001) (quotation omitted); see also 18 U.S.C. 

§ 924(a)(8). As Willis rightly points out, “[t]he evil Congress sought to 

suppress by section 922 was the arming of felons,” so “the section is based 

on the status of the offender and not the number of guns possessed.” United 

States v. Berry, 977 F.2d 915, 919 (5th Cir. 1992). Accordingly, we have held

that the “simultaneous possession of multiple firearms . . . [i]s a single

[§ 922] offense regardless of the number of weapons involved.” United States 

v. Villegas, 494 F.3d 513, 515 (5th Cir. 2007) (citing United States v. Hodges, 

628 F.2d 350, 351 (5th Cir. 1980)). 

That said, we’ve also made abundantly clear that the “possession of 

different firearms at different times” are “separate and distinct prohibited 

acts.” United States v. Planck, 493 F.3d 501, 503–04 (5th Cir. 2007)

(emphasis added) (quotation omitted). Thus, when different counts 

“involve[] different firearms received and possessed by [the defendant] at 

different times,” those counts permissibly punish independent offenses and 

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thus do not violate the Double Jeopardy Clause. United States v. Harper, 802 

F.2d 115, 118 n.4 (5th Cir. 1986); accord Planck, 493 F.3d at 504 (“[A]

defendant could be charged with multiple violations of [§ 922] for receipt or 

possession of different firearms at different times.”); United States v. Jones, 

601 F.3d 1247, 1259 (11th Cir. 2010) (“[W]here a defendant has possessed 

different weapons at different times or places, the [G]overnment may treat 

them as separate units of prosecution and charge multiple counts.”).

Here, Willis clearly pled guilty to possessing distinct firearms during

three distinct timeframes. And he was convicted of and sentenced for each of 

those distinct units of possession. In particular, Willis possessed 11 firearms 

between August 8 and August 23, 2019 (Count 1); possessed 3 different 

firearms between August 26 and August 28, 2019 (Count 2); and possessed 

3 different firearms on September 4, 2019 (Count 3). Willis’s sentence 

therefore is not multiplicitous. See Planck, 493 F.3d at 503–04 (imposing 

multiple punishments for the “possession of different firearms at different 

times” permissibly punishes “separate and distinct prohibited acts” 

(quotation omitted)).

To all this—and contrary to the indictment, his guilty plea, and the 

PSR—Willis nevertheless asks us to infer that he “was in continuous 

constructive or actual possession of firearms throughout the entire period 

covered by the [i]ndictment.” Why? Because he was a drug dealer (and drug 

dealers, he says, are armed “continuously”); and because one of the guns 

recovered on September 4 was found in the driver’s seat-back pocket (which, 

he says, indicates it was his personal firearm, “not one of the guns he 

intended to sell”). This is a far cry from the “affirmative proof” that Willis 

would need to contravene his indictment and guilty plea, to demonstrate

simultaneous possession, and to prove plain error. United States v. Meza, 701 

F.3d 411, 433 (5th Cir. 2012); see also United States v. Davila, 1995 WL 

295851, at *4 (5th Cir. 1995) (“[A] defendant who pleads guilty to criminal 

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charges may assert a claim of multiple punishments in violation of the Double 

Jeopardy Clause only if the violation is apparent on the face of the indictment 

or record.” (quotation omitted)).

B.

Willis also contends the district court calculated his criminal-history 

score incorrectly when determining his Guidelines range. Specifically, Willis 

argues that the district court plainly erred by counting his 2015 possessionof-a-controlled-substance conviction separately from his 2015 aggravatedassault-with-a-deadly-weapon convictions. He says that if his criminalhistory score were calculated properly, the Guidelines sentence would have 

been 135–168 months in prison instead of 151–188 months. Cf. MolinaMartinez v. United States, 578 U.S. 189, 198–202 (2016). 

The Sentencing Guidelines provide criminal-history points based on 

the defendant’s “prior sentences.” See U.S.S.G. §§ 4A1.1, 4A1.2; see also id. 

Ch. 5, Pt. A (table showing how the applicable criminal-history category 

combines with a defendant’s offense level to define his Guidelines sentence).

A “prior sentence” is “any sentence previously imposed upon adjudication 

of guilt.” Id. § 4A1.2(a)(1). But when there are multiple prior sentences—as 

there are here—courts must determine whether the “sentences [should be]

counted separately or treated as a single sentence.” Id. § 4A1.2(a)(2). “Prior 

sentences always are counted separately if the sentences were imposed for 

offenses that were separated by an intervening arrest (i.e., the defendant is 

arrested for the first offense prior to committing the second offense).” Ibid. 

Yet even absent an intervening arrest, prior sentences are still counted 

separately “unless (A) the sentences resulted from offenses contained in the 

same charging instrument; or (B) the sentences were imposed on the same 

day.” Ibid. If either (A) or (B) applies, the district court should treat those

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prior sentences as a single sentence when assigning criminal-history points. 

Ibid.

Willis claims that his prior sentences for aggravated assault and 

possession of a controlled substance should have been treated as a “single 

sentence” under § 4A1.2(a)(2). That’s so, he says, because the sentences

were not “separated by an intervening arrest,” and were “imposed on the 

same day.” Ibid. Willisraises this argument for the first time on appeal, so we 

review for plain error. See Rosales-Mireles v. United States, 138 S. Ct. 1897, 

1904–05 (2018). 

The district court did not commit “clear or obvious” error. Puckett, 

556 U.S. at 135. Willis was arrested on September 23, 2015, for two 

aggravated-assault offenses and one controlled-substance offense. He was 

then sentenced on December 17, 2015, to four years of deferred-adjudication 

probation for each offense. So far so good for Willis. But on January 19, 2018, 

the Government filed a motion to revoke Willis’s probation for the 

controlled-substance offense, and on March 6, 2018, the district court 

sentenced Willis to one year in state jail on that offense. Willis is therefore 

correct that the offenses were not “separated by an intervening arrest.” 

U.S.S.G. § 4A1.2(a)(2). But the one-year state jail sentence for the 

controlled-substance offense arose from the Government’s January 2018 

motion, not the 2015 indictment. And the district court imposed the one-year 

sentence for the controlled-substance offense in 2018, not the same day in 

2015 when it imposed the sentence for the aggravated assault charges. Thus 

the district court did not err, much less plainly err, in counting the sentences

as separate. 

Indeed, we’ve previously declined to find plain error in a nearly 

identical situation. In United States v. Sustaita-Mata, the defendant had two 

prior theft convictions, one of which included a later-imposed revocation 

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sentence. 728 F. App’x 402 (5th Cir. 2018) (per curiam). The district court 

counted them separately. Id. at 402. Sustaita-Mata argued for the first time 

on appeal that the two theft sentences should have been treated as a single 

sentence because the original sentences were imposed on the same day. Id. at 

403. Instead, we held that Sustaita-Mata had failed to demonstrate “clear or 

obvious” error because he failed to cite any circuit precedent establishing 

that they should have been treated as a single sentence. Id. at 402–03 (citing 

United States v. Carlile, 884 F.3d 554, 558 (5th Cir. 2018)). Nor could he 

otherwise show that the dispute was “settled by a straightforward application 

of the Guidelines.” Id. at 403 (citing United States v. Blocker, 612 F.3d 413, 

416 (5th Cir. 2010), abrogated on other grounds by United States v. MartinezRodriguez, 821 F.3d 659, 664 (5th Cir. 2016)). Consequently, we concluded 

that “the district court could have reasonably interpreted the Guidelines at 

issue as it did” by treating the later-imposed revocation sentence as the 

relevant “sentence” for purposes of U.S.S.G. § 4A1.2(a)(2). Ibid. (quotation 

omitted). So too here.1

C. 

Next, Willis challenges the substantive reasonableness of his withinGuidelines sentence. This is the only challenge Willis preserved. See HolguinHernandez v. United States, 140 S. Ct. 762, 765–67 (2020). We review 

_____________________

1 Willis contends for the first time in his reply brief that, as a factual matter, his 

deferred-adjudication sentence for the controlled-substance offense was not actually

imposed on the revocation date. Willis claims the state court later granted a motion for a 

new trial, which he says “undid” his conviction for the controlled-substance offense. We 

decline to consider this “completely new issue in [Willis’s] reply brief.” Cousin v. Trans 

Union Corp., 246 F.3d 359, 373 n.22 (5th Cir. 2001); see also Cinel v. Connick, 15 F.3d 1338, 

1345 (5th Cir. 1994) (“An appellant abandons all issues not raised and argued in [his] initial

brief on appeal.”). 

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preserved reasonableness challenges for abuse of discretion. United States v. 

Sepulveda, 64 F.4th 700, 709 (5th Cir. 2023).

Why abuse of discretion? We apply such a “highly deferential” 

standard of review “because the sentencing court is in a better position to 

find facts and judge their import under the [18 U.S.C.] § 3553(a) factors with 

respect to a particular defendant.” United States v. Hernandez, 876 F.3d 161, 

166 (5th Cir. 2017)(quotation omitted); see also Gall v. United States, 552 U.S. 

38, 51 (2007) (“The judge sees and hears the evidence, makes credibility 

determinations, has full knowledge of the facts and gains insights not 

conveyed by the record.” (quotation omitted)). Moreover, “withinGuidelines sentences enjoy a presumption of reasonableness,” so our review

of Willis’s 188-month, within-Guidelines sentence is doubly deferential. 

United States v. Scott, 654 F.3d 552, 555 (5th Cir. 2011). He can rebut the 

presumption only by “demonstrat[ing] that the sentence does not account 

for a factor that should receive significant weight, gives significant weight to 

an irrelevant or improper factor, or represents a clear error of judgment in 

balancing sentencing factors.” Hernandez, 876 F.3d at 166 (citing United 

States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009)).

Willis contends that the July re-sentencing transcript and amended 

judgment prove that the district court’s April sentence was “the product of 

a clear error in judgment” and based upon “an improper or irrelevant 

factor.” Specifically, Willis asserts that the district court’s later attempt to 

re-sentence him to 180 months’ imprisonment demonstrates that the district 

court never intended to impose the original 188-month sentence. He further 

claims that the district court admitted to considering an impermissible factor 

when it acknowledged at the re-sentencing that it had punished Willis for his 

“smart mouth” at the April 14 hearing and thus imposed a longer sentence 

than was necessary.

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We disagree. Even if Willis could avail himself of the null-and-void 

July re-hearing to satisfy his burden with respect to the April sentence, we 

are not persuaded by his interpretation of the record. The district court 

explicitly reaffirmed at the July hearing that it had intended to impose “a total 

aggregate sentence of 188 months.” And it did so because that was “the top 

of the advisory guideline range”—which it thought was necessary to reflect 

“the seriousness of the defendant’s criminal history” and to “protect the 

public.” See 18 U.S.C. § 3553(a)(1)–(2). And we are unpersuaded that the 

district court admitted to punishing him for his conduct at the April 14 

hearing. At most, the district court’s reasoning is ambiguous. True, the 

district court did say at one point that in hindsight it wished it had “held 

[Willis] in contempt rather than giving [him] 188 months.” But in the same 

hearing, it also said, “I don’t think that 188 months is inappropriate at all” 

and that it was now “knock[ing] eight months off” merely to preempt any 

“misunderstanding [whether Willis was] being sentenced for the crime and 

the crime only.” See also ROA.347 (“I don’t like how you treated me. I don’t 

like how you talked. And—but that is not why you got this sentence, and I 

want to make that clear to you. You got this sentence because—to protect the 

community because of your violent criminal history.”). Such an ambiguous 

record is not enough to overcome the “presumption of reasonableness” we 

apply to within-Guidelines sentences. Scott, 654 F.3d at 555.

But even if the district court did base Willis’s sentence in part on his 

lack of remorse at the hearing, Willis doesn’t cite any authority for the 

proposition that such conduct is an irrelevant or improper consideration. Cf.

United States v. Douglas, 569 F.3d 523, 527–28 (5th Cir. 2009); United States 

v. Navarro-Jusino, 993 F.3d 360, 362 (5th Cir. 2021); United States v. Kippers, 

685 F.3d 491, 499 (5th Cir. 2012); United States v. Medina-Anicacio, 325 F.3d 

638, 648 (5th Cir. 2003). We therefore hold there was no abuse of discretion.

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D.

Willis’s fourth and final claim is that his sentence is impermissibly 

ambiguous. We review this unpreserved claim for plain error. See United 

States v. Taylor, 973 F.3d 414, 419 (5th Cir. 2020); see also United States v. 

Barber, 865 F.3d 837, 839 (5th Cir. 2017).

The Supreme Court has long held that “[s]entences in criminal cases 

should reveal with fair certainty the intent of the court and exclude any 

serious misapprehensions by those who must execute them.” United States 

v. Daugherty, 269 U.S. 360, 363 (1926). A sentence violates this command 

when it is “ambiguous with respect to the time and manner in which it is to 

be served” or “is internally self-contradictory.” United States v. Setser, 607 

F.3d 128, 132 (5th Cir. 2010), aff’d, 566 U.S. 231 (2012) (quotation omitted); 

see also Taylor, 973 F.3d at 421; United States v. Garza, 448 F.3d 294, 302 (5th 

Cir. 2006); United States v. Story, 439 F.3d 226, 233 (5th Cir. 2006); United 

States v. Juarez, 812 F.3d 432, 437 (5th Cir. 2016).

Willis’s sentence is impermissibly ambiguous. Recall that the district 

court imposed the following sentence:

[I]t is the judgment of the Court that the defendant, Vinson Lee 

Willis, Jr., is hereby committed to the custody of the Federal 

Bureau of Prisons for a period of 120 months on Counts 1, 2, 

and 3. I’m going to run those consecutively on you. You’ll 

finish one, and then you’ll finish the next, and then you’ll finish 

the next. Only to the extent it produces a total aggregate of 188 

months.

This sentence is either “internally self-contradictory” or “ambiguous with 

respect to the time and manner in which it is to be served.” Setser, 607 F.3d 

at 132 (quotation omitted). If we give full effect to the requirement that the

three 120-month terms run consecutively, then we must ignore the 188-

month cap. And if we give full effect to the 188-month cap, then the 

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requirement that the three 120-month terms run consecutively is either 

nonsensical (at worst) or incomplete and indeterminate (at best). As such, 

“[r]easonable minds could differ on the interpretation of the sentence 

imposed.” Taylor, 973 F.3d at 421. The court therefore committed “clear or 

obvious” error, Puckett, 556 U.S. at 135, by imposing this “ambiguous and 

illegal” sentence, United States v. Stark, 811 F. App’x 893, 894 (5th Cir. 

2020) (per curiam); accord Setser, 607 F.3d at 132 (“A sentence may be illegal 

if it is ambiguous. . . .” (quotation omitted)). That satisfies the first two plainerror prongs. 

Willis also satisfies the third prong—i.e., “the error must have 

affected the defendant’s substantial rights.” Molina-Martinez, 578 U.S. at 

194; see also Fed. R. Crim. P. 52(b). “To satisfy this third condition, the 

defendant ordinarily must show a reasonable probability that, but for the 

error, the outcome of the proceeding would have been different.” United 

States v. Randall, 924 F.3d 790, 796 (5th Cir. 2019) (quotation omitted); 

accord Puckett, 556 U.S. at 135; United States v. Olano, 507 U.S. 725, 734 

(1993).

The district court’s ambiguous sentence impacted the “outcome of 

the proceeding” in at least two ways. Randall, 924 F.3d at 796 (quotation 

omitted). First, the Bureau of Prisons decided that the sentence was so 

ambiguous that it “could not be executed.” Cf., e.g., Setser, 607 F.3d at 133 

(“[A]lthough his appeal began as a challenge to the ambiguity regarding how 

the [Bureau of Prisons] might interpret and carry out the district court’s 

sentence, the [Bureau of Prisons] has subsequently interpreted and carried 

out the sentence.”). That obviously would never have happened save for the 

error. Second, after it was made aware of the error, the district court 

attempted to impose a completely different sentence at the null-and-void July 

re-hearing. Rarely do we have such strong evidence “that, but for the error, 

the outcome of the proceeding would have been different.” Randall, 924 F.3d 

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at 796 (quotation omitted); cf. Taylor, 973 F.3d at 420 (“[I]t is not clear 

whether the ambiguous nature of Taylor’s sentence affected his substantial 

rights, so we order a limited remand for the district court to clarify, and state 

on the record, whether it would have imposed the same sentence had it 

known of the ambiguity.”).

Lastly, we find it appropriate to “exercise [our] discretion” to correct 

the district court’s error. Molina-Martinez, 578 U.S. at 194. It would 

“seriously affect[] the fairness, integrity or public reputation of judicial 

proceedings” to let stand such an ambiguous sentence—one that not even 

the Bureau of Prisons could effectuate. Puckett, 556 U.S. at 135 (quotation 

omitted).

* * *

Accordingly, we VACATE the April 2022 sentence and REMAND

for further proceedings consistent with this opinion. See Garza, 448 F.3d at

302 (“[A]mbiguous sentences must be vacated and remanded.”); Juarez, 

812 F.3d at 437 (“Where a sentence is ambiguous, . . . the proper course is to 

vacate [the defendant’s] sentence and remand for resentencing.”).

This might seem like an empty formalism. After all, the district court 

already indicated at the July hearing how it intends to re-sentence Willis. But 

jurisdiction matters. Jurisdiction is the power to say what the law is. “The 

statutory and (especially) constitutional elements of jurisdiction are an 

essential ingredient of separation and equilibration of powers, restraining the 

courts from acting at certain times, and even restraining them from acting 

permanently regarding certain subjects.” Steel Co. v. Citizens for a Better 

Env’t, 523 U.S. 83, 101 (1998). And to act without jurisdiction “is, by very 

definition, for a court to act ultra vires.” Id. at 102. Moreover, the district 

court has already expressed its willingness to change Willis’s sentence once. 

We therefore leave it to the district court on remand to exercise its 

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jurisdiction and discretion to impose any sentence at or below the statutory

maximum. 18 U.S.C. § 3742(f)(1), (g); see also Pepper v. United States, 562 

U.S. 476 (2011).

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