IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-11244

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

KENNETH SAULS, also known as Smurf,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:17-CR-129-3

Before DAVIS, STEWART, and HO, Circuit Judges.

PER CURIAM:*

Kenneth Sauls appeals his sentence of 70 months in prison on a charge 

of conspiracy to interfere with commerce by robbery, 18 U.S.C. § 1951(a), 

following the vacatur of his conviction for using, carrying, or brandishing a 

firearm in connection with a crime of violence, 18 U.S.C. §§ 924(c)(1)(A)(ii) 

and 2. According to Sauls, the district court erred by holding a full 

resentencing on the remaining conviction after vacating the § 924(c) conviction 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

August 17, 2020

Lyle W. Cayce

Clerk

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No. 19-11244

2

rather than simply amending the judgment to excise the vacated conviction 

because, under United States v. Clark, 816 F.3d 350, 360 (5th Cir. 2016), the 

sentences on the two counts of conviction were independent. 

The Government has filed a motion for summary affirmance or, in the 

alternative, an extension of time in which to file a brief. According to the 

Government, this court’s decisions in United States v. Reece, 938 F.3d 630, 636

(5th Cir. 2019), as revised (Sept. 30, 2019), and United States v. Rodriguez, 114 

F.3d 46, 47-48 (5th Cir. 1997), foreclose Sauls’s challenge because each holds 

that, where the vacated conviction has sentencing implications for the

remaining convictions, a full resentencing is appropriate. Because Sauls, 

relying on Clark, does not concede that his issue is foreclosed, we deny the 

Government’s motion for summary affirmance. See Groendyke Transp., Inc. v. 

Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). However, because Sauls is not 

entitled to the relief he seeks, as discussed below, we dispense with further 

briefing and affirm.

In Rodriguez, as in the instant matter, the imposition of a sentence for a 

firearm offense in conjunction with a sentence for an underlying offense

originally prevented consideration of the § 924(c) firearm conduct in 

calculating the sentence for the underlying offense. See Rodriguez, 114 F.3d 

at 47 & n.5; U.S.S.G. § 2K2.4, comment. (n.4). Therefore, the district court did 

not err in resentencing Rodriguez after the elimination of the limitation on 

using the § 924(c) conduct to compute the guidelines range for the underlying 

offense. Rodriguez, 114 F.3d at 47-48. Similarly, this court in Reece, citing 

Clark, concluded that the sentences in that case were interrelated and so 

required resentencing where the reversal of three of Reece’s § 924(c) 

convictions eliminated the basis for the enhancement of the sentence for the 

remaining § 924(c) conviction. See 938 F.3d at 632-36.

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In Clark, by contrast, our reversal of the § 924(c) conviction did not 

implicate Clark’s other sentences because Clark faced statutorily mandated 

life sentences on two of the remaining drug convictions, and the district court 

had imposed concurrent sentences on all of Clark’s remaining non-§ 924(c)

convictions. 816 F.3d at 360. Moreover, in Clark, we reversed the § 924(c) 

conviction but specifically and independently affirmed the remaining 

convictions and sentences. Id. 

In the instant matter, the sentencing implication for the remaining 

conviction after eliminating the § 924(c) conviction indicates that the sentences 

are interrelated as in Reece and Rodriguez and unlike in Clark. Because of the 

aggregated sentences here, the district court set this matter for resentencing 

at the same time that the court vacated the § 924(c) conviction and sentence. 

Sauls fails to show that the district court erred in resentencing him on the 

remaining conviction of conspiracy to interfere with commerce by robbery. See

Reece, 938 F.3d at 636; Clark, 816 F.3d at 360; Rodriguez, 114 F.3d at 47-48.

The judgment of the district court is AFFIRMED. The Government’s 

opposed motion for summary affirmance is DENIED, and its alternative 

unopposed motion for an extension of time to file its brief is DENIED as 

unnecessary.

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