United States Court of Appeals 

for the Fifth Circuit ____________ 

No. 22-10452 

____________ 

United States of America, 

Plaintiff—Appellee, 

versus

Phillip Matthew Sincleair, 

Defendant—Appellant. 

______________________________ 

Appeal from the United States District Court 

for the Northern District of Texas 

USDC No. 4:19-CR-354-2 

______________________________ 

Before Wiener, Graves, and Douglas, Circuit Judges.

Jacques L. Wiener, Jr., Circuit Judge:

*

Defendant-Appellant Phillip Matthew Sincleair challenges the district 

court’s reapplication of an enhancement to his 210-month sentence for 

conspiring to possess with the intent to distribute a mixture and substance 

containing methamphetamine. For the following reasons, we VACATE

Sincleair’s sentence and REMAND for resentencing. 

I. FACTUAL AND PROCEDURAL BACKGROUND

_____________________ 

*

 This opinion is not designated for publication. See 5th Cir. R. 47.5. 

United States Court of Appeals 

Fifth Circuit 

FILED 

September 8, 2023 

Lyle W. Cayce 

Clerk 

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2 

Sincleair pleaded guilty to conspiring to possess with intent to 

distribute a mixture and substance containing methamphetamine. As part of 

his plea proceedings, Sincleair signed a stipulation that, from late 2016 to 

June 2017, he conspired with Jade Kuhn and Craig Wilbur to possess 

methamphetamine with the intent to distribute it. According to the 

presentence report (“PSR”), a drug trafficking investigation revealed that 

Kuhn supplied methamphetamine to Sincleair, who then distributed it to 

others. 

On May 18, 2017, during an investigation into methamphetamine 

distribution, officers of the Cooke County Sheriff’s Office (“CCSO”) 

executed a search warrant at a residence owned by Chase Wood (described 

in the PSR as an “unindicted co-conspirator”). At that residence, officers 

discovered methamphetamine and detained those present: Sincleair, Wood, 

Amanda Blackman (Sincleair’s girlfriend), Mahalia Markezinis and Mark 

Ilczyszyn (also described in the PSR as “unindicted co-conspirators”). 

According to the PSR, the CCSO’s investigation revealed that “Sincleair was 

the methamphetamine [source of supply] for Ilczyszyn, who was the [source 

of supply] for Wood.” The PSR further stated that Sincleair, Ilczyszyn, and 

Blackman had met at Wood’s residence so that Ilczyszyn could distribute one 

ounce of methamphetamine to Wood. When officers searched the residence, 

the occupants were sitting in the living room smoking methamphetamine. 

There was a firearm on a table near the living room couch, but the officers 

did not determine who owned it. 

In calculating Sincleair’s offense level, the PSR included a two-level 

enhancement under U.S.S.G. § 2D1.1(b)(1) for possession of a dangerous 

weapon. The PSR explained that, during the May 18, 2017 search of the 

residence where a drug transaction was in progress, Sincleair was present for 

the transaction and a firearm was found on a table in plain view of all present. 

Id. Sincleair filed written objections, including an objection to the § 

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3 

2D1.1(b)(1) firearm enhancement. He argued that his presence at Wood’s 

home on the night of May 18, 2017, was not relevant conduct as part of the 

alleged drug conspiracy because the firearm was later confirmed to be owned 

by and registered to Wood. Sincleair asserted that it is “not foreseeable that 

a firearm would be needed in a social setting amongst two couples involved 

in recreational drug use.” 

In response, the probation officer issued an addendum which 

explained that the May 18, 2017 drug transaction was relevant conduct 

because Sincleair was Ilczyszyn’s source of methamphetamine and was 

present for the drug transaction between Ilczyszyn and Wood. The 

addendum further noted that the firearm’s connection to the 

methamphetamine transaction was “probable.” Based on Sincleair’s total 

offense level of 35 and Category V criminal history, his advisory U.S. 

Sentencing Guidelines (“Guidelines”) imprisonment range would typically 

be 262 to 327 months. However, his statutory maximum sentence was 240 

months, which is what the PSR listed as the Guidelines term of 

imprisonment. 

At sentencing, the district court tentatively overruled Sincleair’s 

objection to the § 2D1.1(b)(1) enhancement. That court did not make specific 

fact findings, but instead adopted the statements of fact made in the PSR 

“subject to and including changes and qualifications made” in the PSR 

addendum, except for the findings on issues related to the sustained 

objections. The district court calculated a new offense level of 33 based on 

the sustained objections, resulting in a Guidelines imprisonment range of 210 

to 262 months of imprisonment. That court ultimately sentenced Sincleair to 

210 months of imprisonment. He received credit for time served in a related 

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state court case,1 resulting in a net term of imprisonment of 194 months and 

24 days.2 

Sincleair appealed, challenging the § 2D1.1(b)(1) enhancement.3

United States v. Sincleair, 16 F.4th 471, 473 (5th Cir. 2021). This court 

vacated his sentence and remanded the case for resentencing. Id. at 477. We 

reasoned that “[t]he PSR addendum attempts to attribute both methods of 

possession—personal and co-conspirator—to Sincleair, but it is not clear 

that either applies.”4 Id. at 475–76 (noting that the district court did not 

explain which form of possession it attributed to Sincleair). We instructed 

the district court on remand to “make the appropriate findings and state 

plainly the basis for its decision” if it determined that the enhancement was 

still applicable. Id. at 477 (quoting United States v. Zapata-Lara, 615 F.3d 388, 

391 (5th Cir. 2010)). 

On remand, the probation officer prepared a second addendum to 

Sincleair’s PSR, reiterating the initial PSR’s findings that Sincleair was 

identified as a source of supply of methamphetamine for Ilczyszyn, who then 

sold the drugs to Wood, and that they all met on May 18, 2017, so that 

Ilczyszyn could supply one ounce of methamphetamine to Wood. The 

_____________________ 

1

 Case no. CR17-00306 in the 235th Judicial District Court, Cooke County, Texas. 

2

 Sincleair’s projected release date is March 11, 2029. See https://inmate.tdcj. 

texas.gov/InmateSearch/start (TDCJ # 02251300). 

3

 Without the enhancement, the Guidelines range would have been 168 to 210 

months of imprisonment. United States v. Sincleair, 16 F.4th 471, 474 n.5 (5th Cir. 2021). 

Sincleair alleges that the firearm enhancement also prohibits him from partaking in certain 

programs within the Bureau of Prisons. 

4

 Judge Oldham dissented in the opinion, asserting that the district court’s 

rationale for applying the § 2D1.1(b)(1) enhancement was very clear. Id. at 477–79. Judge 

Oldham further asserted that the record supports the enhancement under the personal 

possession theory. Id. at 478–79. 

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addendum further detailed that “a firearm was present in plain view on a 

table near the sofa where Sincleair and the others were sitting and smoking 

methamphetamine when officers arrived.” As to whether Sincleair 

personally possessed the firearm, the second addendum acknowledged that 

there was no evidence that Sincleair owned the firearm or brought the firearm 

to the house, or that Sincleair actively engaged in any drug transactions while 

the firearm was present. The probation officer added that the district court 

must determine if § 2D1.1(b)(1) remains applicable and, if so, that the court 

“must make the necessary findings that either Sincleair personally possessed 

the firearm or if the firearm was possessed by a coconspirator during the 

offense.” In a written response, Sincleair “persist[ed] in his objection” to 

the firearm enhancement. 

Prior to resentencing, the district court issued written Findings and 

Conclusions (“FAC”) to discuss its application of the § 2D1.1(b)(1) 

enhancement. The court stated that, on May 18, 2017, officers discovered a 

Ruger “lying out on a living-room table near the couch, within easy access of 

all,” and that Sincleair’s purpose for going to Wood’s house “was to 

accompany Ilczyszyn in his distribution of one ounce of the 

methamphetamine that Sincleair had supplied to [him] and apparently, to 

join in the smoking of the Sincleair-supplied methamphetamine while they 

were there.” The district court determined that Sincleair had constructive 

possession of the firearm while engaging in part of his drug conspiracy, as he 

had knowledge of, and immediate access to, the firearm “lying in plain view 

on a table near him.” The court also concluded that the enhancement likely 

applies under the co-conspirator possession theory. It stated that there was a 

temporal and spatial relationship between Sincleair and the drug trafficking 

offense, as he was the “ultimate supplier” of the methamphetamine involved 

in the transaction at Wood’s house. 

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At resentencing, Sincleair objected to the district court’s FAC. He 

called as a witness Blackman, who testified that she and Sincleair traveled to 

Wood’s house with Ilczyszyn on May 18, 2017, that there was no discussion 

of a firearm, and that she did not see a firearm at the house. Blackman 

described the house as “a little efficiency” with the bed, living room, and 

kitchen all in one small area. Blackman stated that she was looking at her 

phone and did not pay attention to what was happening in the house until the 

officers arrived. She denied that there was a firearm present on the coffee 

table or TV table when she and Sincleair arrived at the house and denied ever 

seeing a firearm near the sofa. On questioning by the court, Blackman 

affirmed that it was possible a firearm was present, but that she did not notice 

or see it. Sincleair too also offered evidence that Wood owned the firearm. 

After hearing argument from the parties, the district court overruled 

Sincleair’s objection to the written FAC and adopted as its “final findings of 

fact the statements of fact made in the [PSR], subject to and including 

changes and qualifications made by the addendum to the [PSR] . . . and the 

findings and conclusions just announced.” 

The district court determined that Sincleair’s total offense level was 

33 and that his Guidelines range of imprisonment was 210 to 262 months. 

The court sentenced Sincleair to the same term of 210 months of 

imprisonment, with credit for time served, to be followed by three years of 

supervised release. Sincleair did not make any further objections. He timely 

appealed. See Fed. R. App. P. 4(b)(1)(A)(i). 

II. STANDARD OF REVIEW

The district court’s interpretation and application of the Guidelines is 

subject to de novo review. Its factual findings are reviewed for clear error. 

Sincleair, 16 F.4th at 474. In Sincleair’s first appeal, this court reviewed the 

district court’s enhancement application de novo because “the district court 

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did not explain the basis for its decision that the two-level firearm 

enhancement applied to Sincleair.” Sincleair, 16 F.4th at 475 (quoting

Zapata-Lara, 615 F.3d at 391). In doing so, we relied on our previous opinion 

in Zapata-Lara, in which we reviewed de novo the district court’s application 

of the § 2D1.1(b)(1) enhancement.5 Id.

On the other hand, clear error exists “if a review of the record results 

in a definite and firm conviction that a mistake has been committed.” United 

States v. Zuniga, 720 F.3d 587, 590 (5th Cir. 2013) (internal quotation marks 

and citation omitted). “A factual finding is not clearly erroneous if it is 

plausible in light of the record as a whole.” Id.; see also United States v. Hebert, 

813 F.3d 551, 560 (5th Cir. 2015) (“[U]nder clear error review, even [w]here 

there are two permissible views of the evidence, the factfinder’s choice 

between them cannot be clearly erroneous.” (internal quotation marks and 

citation omitted)). Moreover, “a district court is permitted to draw 

reasonable inferences from the facts, and these inferences are fact-findings 

reviewed for clear error as well.” United States v. Caldwell, 448 F.3d 287, 290 

(5th Cir. 2006) (citation omitted). 

The question here is whether Sincleair’s challenge concerns only the 

legal sufficiency of the facts underlying the § 2D1.1(b)(1) enhancement or 

whether it also includes the district court’s findings of fact. Sincleair does not 

take a position on the appropriate standard of review and discusses both de 

novo and clear error review in his briefing. He does not, however, expressly 

challenge the district court’s specific findings of fact on remand. Rather, he 

_____________________ 

5

 In that case, de novo review was appropriate because of “the district court’s purely 

legal application of the sentencing guidelines.” Id. at 391. We explained that “Zapata–

Lara’s argument does not concern the specifics of the factfinding, but, rather, whether the 

facts found are legally sufficient to support the enhancement.” Id. (quoting United States 

v. Hooten, 942 F.2d 878, 881 (5th Cir. 1991)). 

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contends that the district court made no new findings of fact, and that the 

court’s reliance on the same previous facts at resentencing, which this court 

previously deemed insufficient to support the enhancement, is error. 

Sincleair contends that the record, as it stands, cannot support the 

enhancement because there are no facts that sufficiently connect him to the 

handgun at issue under the elements of personal or co-conspirator 

possession. 

The government, on the other hand, contends that this court should 

review the enhancement application for clear error. Relying on United States 

v. King, 773 F.3d 48, 52 (5th Cir. 2014), the government claims that clear 

error review is appropriate because the district court has now explained its 

rationale for applying the enhancement: personal, constructive possession. 

The government asserts that, as a result, the instant appeal relates only to the 

factual findings underpinning the enhancement application. 

“It is well-established that our court, not the parties, determines the 

appropriate standard of review.” United States v. Suchowolski, 838 F.3d 530, 

532 (5th Cir. 2016). As we explain further below, no new factual findings were 

presented in the second addendum to the PSR, nor were any made at 

resentencing.6

 Therefore, Sincleair’s appeal entails a purely legal application 

of the Guidelines, warranting de novo review. Sincleair separately contests the 

district court’s alleged failure to resolve disputed factual issues (and thus 

_____________________ 

6

 The only finding of fact potentially made was that “Sincleair was present for and 

likely a knowing participant in the drug transaction between [Ilczyszyn and Wood],” as the 

PSR did not mention Sincleair’s “knowledge” or the degree of Sincleair’s participation in 

the drug transaction. However, this finding does not pass muster under the clear error 

standard because it is unsupported by the record. The second addendum to the PSR 

actually contradicts it, stating that there was “no evidence that Sincleair engaged in drug 

transactions” at Wood’s residence, “or that he assisted in any transactions.” 

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make specific factual findings) under Fed. R. Crim. P. 32(i)(3)(B), which 

we review under the plain error standard. 

III. ANALYSIS

On appeal, Sincleair asserts that the district court erred in applying 

the § 2D1.1(b)(1) enhancement. He contends that the district court failed to 

follow this court’s mandate on remand because it “relied on the same 

information that formed the basis for the firearm enhancement. . . which the 

Court found lacking.” Sincleair asserts that, at resentencing, the government 

did not present any new facts and that the district court did not consider 

Blackman’s testimony regarding the firearm at issue. Sincleair alternatively 

argues that the district court failed to comply with Federal Rule of Criminal 

Procedure 32(i)(3)(B) because it did not consider or credit Blackman’s 

testimony.7

A. Application of the § 2D1.1(b)(1) enhancement

The § 2D1.1(b)(1) enhancement applies if a “dangerous weapon 

(including a firearm) was possessed” during the drug offense, § 2D1.1(b)(1), 

“unless it is clearly improbable that the weapon was connected with the 

offense,” § 2D1.1, cmt. n.11(A). For the enhancement to apply, the 

government must show by a preponderance of the evidence “that a temporal 

and spatial relation existed between the weapon, the drug trafficking activity, 

_____________________ 

7

 Although Rule 32(i)(3)(B) was likely violated, Sincleair’s challenge fails because 

he did not appropriately brief it. Sincleair did not raise this issue at resentencing, so plain 

error review applies. See Puckett v. United States, 556 U.S. 129, 134-35 (2009); see also United 

States v. McMillion, 827 F. App’x 395, 398 (5th Cir. 2020) (unpublished) (applying plain 

error review where defendant did not raise his Rule 32(i)(3)(B) objection in the district 

court). Under plain error review, Sincleair was required to show forfeited error that is clear 

or obvious and that affects his substantial rights. See Puckett, 556 U.S. at 135. Sincleair did 

not state how his substantial rights were affected or how he suffered prejudice from the 

court’s alleged Rule 32 violation. We therefore do not further consider this challenge. 

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and the defendant.” United States v. Cisneros-Gutierrez, 517 F.3d 751, 764–65 

(5th Cir. 2008) (quoting United States v. Hooten, 942 F.2d 878, 882 (5th Cir. 

1991)). “Alternatively, when another individual involved in the commission 

of an offense possessed the weapon, the government must show that the 

defendant could have reasonably foreseen that possession.” United States v. 

Rodriguez-Guerrero, 805 F.3d 192, 195 (5th Cir. 2015) (internal quotation 

marks and citation omitted). “If the government satisfies this burden, then 

the burden shifts and the defendant must show that it is clearly improbable 

that the weapon was connected to the offense.” Id.

In the instant appeal, Sincleair argues that the district court 

procedurally erred in applying the enhancement at resentencing because (1) 

it relied on facts that were deemed insufficient by the Fifth Circuit in his first 

appeal and (2) it “incorrectly characterize[d] facts contained in the PSR and 

addendum.” He contends that the district court’s FAC “relied on nothing 

more than the PSR and original addendum” and that the second addendum 

to the PSR “contained no additional facts.” Sincleair also asserts that the 

district court disregarded this court’s directive to plainly state its basis for his 

sentence by merging the theories of constructive and personal possession and 

then imposing the same § 2D1.1(b)(1) enhancement without any additional 

evidence to support it. Sincleair further alleges that the district court erred 

by “embellishing those facts contained in the PSR in support of the firearm 

enhancement, without further evidence confirming those facts.” He goes on 

to assert that the district court ignored the testimony of Blackman, who 

provided evidence that Sincleair did not exercise personal or co-conspirator 

possession of the handgun at issue. 

The government counters that the district court did not clearly err in 

applying the § 2D1.1(b)(1) enhancement at resentencing because it clarified 

its rationale for applying the enhancement, which is supported by the record. 

The government asserts that the district court, in accordance with this 

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court’s mandate, plainly stated that it solely relied on a personal, constructive 

possession theory in its application of the enhancement. The government 

further asserts that the record as a whole supports this finding because there 

was “a temporal and spatial relationship between Sincleair, his drug 

trafficking activity, and the Ruger pistol.” According to the government, 

although Sincleair was not directly engaged in the methamphetamine sale 

between Wood and Ilczyszyn, the district court correctly found that Sincleair 

“was present for and likely a knowing participant in the drug transaction” 

and “the ultimate supplier of the methamphetamine involved in the 

transaction.” Relying on this court’s opinions in United States v. Vital, 68 

F.3d 114, 119 (5th Cir. 1995) and King, 773 F.3d 48, the government asserts 

that § 2D1.1(b)(1) applies because the handgun was connected to Sincleair’s 

relevant conduct. 

The record does not support the district court’s application of the § 

2D1.1(b)(1) enhancement a second time under either the constructive or the 

co-conspirator theories of possession. At resentencing, the government was 

unable to demonstrate a temporal and spatial relation between the Ruger, 

Wood and Ilczyszyn’s drug trafficking activity, and Sincleair. Moreover, the 

district court did not definitively state that the enhancement was based on 

constructive or co-conspirator possession. Neither did it make any additional 

findings regarding these theories. It merely “adopt[ed] as its final findings of 

fact the statements of fact made in the [PSR], subject to and including 

changes and qualifications made by the addendum to the [PSR] . . . and the 

[FAC] just announced.” The second addendum to the PSR expressed doubts 

about applying the enhancement, and the FAC is based on facts that we 

previously deemed insufficient under either theory. 

In Sincleair’s first appeal, we noted that the key PSR facts included: 

“Sincleair was Ilczyszyn’s source for methamphetamine, and Sincleair and 

Ilczyszyn and their girlfriends were present at Wood’s home for a social 

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gathering around the time that Ilczyszyn sold an ounce of methamphetamine 

to Wood.” Sincleair, 16 F.4th at 473. The second addendum to the PSR did 

not add any new facts to support the § 2D1.1(b)(1) enhancement. Rather, the 

second addendum expressed doubt about applying the enhancement under 

both the personal and the co-conspirator possession theories. The second 

addendum explained that “[t]here was no evidence Sincleair owned the 

firearm or brought the weapon to the transaction or was otherwise connected 

to the firearm. Additionally, there was no evidence that Sincleair engaged in 

any drug transactions while the weapon was present, or that he assisted in 

any transactions.” 

The second addendum to the PSR also expressed doubts about 

applying the enhancement based on co-conspirator possession, stating: 

none of the individuals present with the defendant and the firearm are 

charged as coconspirators or mentioned in the Factual Resume. The 

only individual that Sincleair is known to engage in drug distribution 

with was Ilczyszyn; however, [as] the Fifth Circuit noted in United 

States v. Mata, 491 F.3d 237, 241 (5th Cir. 2007) it was found that 

‘evidence of a buyer-seller relationship is not, by itself, sufficient to 

support a conviction for conspiracy.’ Further, there is no evidence the 

defendant assisted in a methamphetamine transaction between 

Ilczyszyn or Wood on this occasion. 

The second addendum noted that if the court reapplied the enhancement, it 

would have to do so based on the same facts that it previously relied on, i.e., 

that Sincleair “was near the gun, which was in plain view and smoking 

methamphetamine” and “a coconspirator ‘involved in the commission of an 

offense’ possessed the weapon and ‘the defendant could have reasonably 

foreseen that possession.’” 

The FAC relies on the PSR and its second addendum to support the 

constructive possession rationale. The FAC asserts that “Sincleair had clear 

‘knowledge and access to the weapon’” because “[the firearm] was lying in 

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plain view on a table near him.” However, we previously concluded that the 

same, PSR-sourced facts were insufficient to support personal possession 

because they do not demonstrate “a temporal and spatial relationship 

between the gun, the drug trafficking activity, and Sincleair.” Sincleair, 16 

F.4th at 476. The district court cited United States v. McKnight, 953 F.2d 898, 

902 (5th Cir. 1992), in support of its conclusion, asserting that “even if none 

of the weapons belonged to [Sincleair], he had immediate access to them.” 

However, McKnight involved a situation where five guns were strewn about 

the defendant’s home in plain view, with additional evidence connecting the 

defendant to these firearms. Id. Here, the Ruger was not located in Sincleair’s 

own home, and Sincleair presented compelling evidence that the firearm 

belonged to Wood. 

Even if the government had met its burden of showing that “a 

temporal and spatial relation existed between the weapon, the drug 

trafficking activity, and the defendant,” Sincleair offered rebuttal evidence 

that was not properly considered at resentencing. Under this circuit’s 

burden-shifting framework, once the government makes its showing, “the 

burden shifts and the defendant must show that it is clearly improbable that 

the weapon was connected to the offense.” Rodriguez-Guerrero, 805 F.3d at 

195. At resentencing, the district court stated that, through the FAC, it “has 

determined that the facts do not support a finding that it is clearly improbable 

that the weapon was counted -- was connected with this offense.” During the 

proceedings, however, Sincleair presented the testimony of Blackman, who 

provided more information and context about the Ruger at issue. Sincleair 

also offered a portion of the transcript from the Texas state court case against 

Wood, during which he admitted that he owned the Ruger that was seized on 

May 18, 2018. Rather than addressing these factual disputes, the district 

court chose not to address them at all, as explained further below under Issue 

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3. Instead, the district court chose to apply the § 2D1.1(b)(1) enhancement 

once more, based on the same facts that we previously deemed insufficient. 

Assuming that the district court relied on the co-conspirator 

possession theory instead, the record remains deficient to support the 

enhancement. In Sincleair, we explained that the PSR and its addendum 

“d[id] not provide enough facts to support a finding that Sincleair was 

engaged in a drug trafficking conspiracy with Ilczyszyn and Wood” and that 

the “temporal connection between the firearm and any drug trafficking by 

Sincleair was . . . tenuous at best.” Id. at 477. Moreover, the second 

addendum to the PSR casts doubt on the viability of this rationale, explaining 

that “none of the individuals present with the defendant and the firearm are 

charged as coconspirators or mentioned in the Factual Resume. The only 

individual that Sincleair is known to engage in drug distribution with was 

Ilczyszyn.” The second addendum cited United States v. Mata, wherein this 

court held that “evidence of a buyer-seller relationship is not, by itself, 

sufficient to support a conviction for conspiracy.” 491 F.3d 237, 241 (5th Cir. 

2007). 

We conclude, under the de novo standard of review, that the record 

does not support the district court’s reapplication of the § 2D1.1(b)(1) 

enhancement under either the constructive or co-conspirator possession 

theories. We turn next to the question whether the district court failed to 

comply with our mandate in Sincleair. 

B. Whether the district court complied with our mandate in Sincleair

The mandate rule “provides that a lower court on remand must 

implement both the letter and the spirit of the appellate court’s mandate and 

may not disregard the explicit directives of that court.” United States v. 

Matthews, 312 F.3d 652, 657 (5th Cir. 2002) (citing United States v. Becerra, 

155 F.3d 740, 753 (5th Cir. 1998)). “Absent exceptional circumstances, the 

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mandate rule compels compliance on remand with the dictates of a superior 

court and forecloses relitigation of issues expressly or impliedly decided by 

the appellate court.” United States v. Lee, 358 F.3d 315, 321 (5th Cir. 2004). 

“In the context of remands for resentencing, this circuit employs a restrictive 

approach: The resentencing court may consider only that which we direct—

no more, no less.” United States v. Pineiro, 470 F.3d 200, 205 (5th Cir. 2006). 

Additionally, “[a]ll other issues not arising out of this court’s ruling and not 

raised before the appeals court, which could have been brought in the original 

appeal, are not proper for reconsideration by the district court below.” 

United States v. Marmolejo, 139 F.3d 528, 531 (5th Cir. 1998). 

We previously remanded this matter because we could not “be sure 

what rationale the court had in mind to support the [§ 2D1.1(b)(1)] 

enhancement.” Sincleair, 16 F.4th at 475 (quoting Zapata-Lara, 615 F.3d at 

391). Although we declined to take a position on the appropriate sentence to 

be imposed, we emphasized the lack of evidence in the record to support the 

district court’s application of the enhancement under either the personal or 

the co-conspirator possession theories. Id. at 477. We then provided specific 

instructions to the district court on remand, stating that “[i]f, on remand, the 

district court determines that the two-level firearm enhancement is 

applicable, it should make the appropriate findings and state plainly the basis 

for its decision.” Id. (internal quotation marks and citation omitted). We now 

look to the district court’s FAC and its statements at resentencing to 

determine whether it complied with our mandate. 

The government claims that the district court relied solely on the 

constructive possession theory and that it made this clear to the parties at 

resentencing. That is not the case, however. At resentencing, the court only 

indirectly endorsed the constructive possession theory, stating that “the 

facts do not support a finding that it is clearly improbable that the weapon 

was counted – was connected with this offense or that you were not in 

Case: 22-10452 Document: 00516889050 Page: 15 Date Filed: 09/08/2023
No. 22-10452 

16 

constructive possession of that weapon.” The district court further stated 

that it had adopted as its “final findings of fact the statements of fact made in 

the [PSR], subject to and including changes and qualifications made by the 

addendum to the [PSR] . . . and the [FAC] just announced.” As noted above, 

the second addendum to the PSR actually casts doubt on both the 

constructive and co-conspirator possession rationales. Moreover, the FAC 

does not “state plainly” the district court’s basis for applying the 

enhancement. 

The FAC does not clearly indicate that the district court relied solely 

on the constructive possession theory. The FAC states that “Sincleair had 

constructive possession over the firearm,” but then continues, in the next 

paragraph, to state “[w]hile not directly engaged in the methamphetamine 

sale between Wood and Ilczyszyn, Sincleair was present for and likely a 

knowing participant in the drug transaction between the two.” The next 

three pages of the FAC are devoted mostly to a discussion of co-conspirator 

possession. During various points in that discussion, however, the FAC 

references elements of constructive rather than co-conspirator possession. It 

is therefore unclear which rationale the district court relied on for its 

application of the § 2D1.1(b)(1) enhancement. The district court instead 

merged both theories into its analysis. 

Because the district court did not clearly state its rationale for 

reapplying the enhancement at resentencing or in the FAC, it did not 

“implement both the letter and the spirit of the appellate court’s mandate.” 

See Matthews, 312 F.3d at 657. We therefore conclude that the district court 

violated our mandate in Sincleair to “make the appropriate findings and state 

plainly the basis for its decision” 16 F.4th at 477. 

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IV. CONCLUSION

For these reasons, we again VACATE Sincleair’s sentence and 

REMAND for resentencing in a manner consistent with this opinion and 

within the limits of our mandate in Sincleair, 16 F.4th at 477. 

Case: 22-10452 Document: 00516889050 Page: 17 Date Filed: 09/08/2023