# 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 Si ncleair challenges the district court’s reapplication of an enhancemen t 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. F ACTUAL AND P ROCEDURAL B ACKGROUND

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* 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 Case: 22-10452 Document: 00516889050 Page: 1 Date Filed: 09/08/2023No. 22-10452

2 Sincleair pleaded guilty to conspi ring to possess with intent to distribute a mixture and substance cont aining methamphetamine. As part of his plea proceedings, Sincle air 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 tr afficking investigation revealed that Kuhn supplied methamphetamine to Sincle air, who then distributed it to others. On May 18, 2017, during an inve stigation into methamphetamine distribution, officers of the Cooke County Sheriff’s Office (“CCSO”) executed a search warrant at a reside nce owned by Chase Wood (described in the PSR as an “unindicted co-consp irator”). At that residence, officers discovered methamphetamine and detain ed those present: Sincleair, Wood, Amanda Blackman (Sincleair’s girlfr iend), Mahalia Mark ezinis 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 st ated 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 th e living room couch, but the officers did not determine who owned it. In calculating Sincleair’s offense le vel, 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 § Case: 22-10452 Document: 00516889050 Page: 2 Date Filed: 09/08/2023No. 22-10452

3 2D1.1(b)(1) firearm enhancement. He ar gued 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 fi rearm was later confirmed to be owned by and registered to Wood. Sincleair asse rted 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 office r issued an addendum which explained that the May 18, 2017 drug transaction was relevant conduct because Sincleair was Ilczyszyn’s so urce 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 “pro bable.” Based on Sincleair’s total offense level of 35 and Category V cr iminal 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 lis ted as the Guidelines term of imprisonment. At sentencing, the district court tentatively overruled Sincleair’s objection to the § 2D1.1(b)(1) enhancemen t. That court did not make specific fact findings, but instea d adopted the statements of fact made in the PSR “subject to and including changes an d qualifications made” in the PSR addendum, except for the findings on issues related to the sustained objections. The district court calcul ated 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 co urt ultimately sentenced Sincleair to 210 months of imprisonment. He received credit for time served in a related Case: 22-10452 Document: 00516889050 Page: 3 Date Filed: 09/08/2023No. 22-10452

4 state court case, 1 resulting in a net term of imprisonment of 194 months and 24 days. 2 Sincleair appealed, challengin g 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 remand ed the case for resentencing. Id. at 477. We reasoned that “[t]he PSR addendum a ttempts to attribute both methods of possession—personal and co-conspirator—t o 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 attr ibuted to Sincleair). We instructed the district court on remand to “mak e the appropriate findings and state plainly the basis for its decision” if itdetermined 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 pr epared a second addendum to Sincleair’s PSR, reiterating the initia l 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 theyall met on May 18, 2017, so that Ilczyszyn could supply one ounce of methamphetamine to Wood. The

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

2 Sincleair’s projected release date is March 11, 2029. See https://inmate.tdcj. texas.gov/InmateSearch/st art (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. Case: 22-10452 Document: 00516889050 Page: 4 Date Filed: 09/08/2023No. 22-10452

5 addendum further detailed that “a firearm was pres ent 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 ow ned the firearm or brought the firearm to the house, or that Sinc leair actively engaged in an y 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 thateither Sincleair personally possessed the firearm or if the firearm was p ossessed by a coconspirator during the offense.” In a written response, Sincleai r “persist[ed] in his objection” to the firearm enhancement. Prior to resentencing, the district court issued written Findings and Conclusions (“FAC”) to discuss it s application of the § 2D1.1(b)(1) enhancement. The court stated that, on May 18, 2017, officers discovered a Ruger “lying out on a livin g-room table near the couc h, 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 su pplied to [him] and apparently, to join in the smoking of the Sincleai r-supplied methamphetamine while they were there.” The district court determ ined that Sincleair had constructive possession of the firearm while engaging in part of hi s 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 betw een Sincleair and the drug trafficking offense, as he was the “ultimate supplie r” of the methamphetamine involved in the transaction atWood’s house. Case: 22-10452 Document: 00516889050 Page: 5 Date Filed: 09/08/2023No. 22-10452

6 At resentencing, Sincleair objected to the district court’s FAC. He called as a witness Blackman, who testifie d 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 s ee a firearm at the house. Blackman described the house as “a little effici ency” 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 Sincleai r arrived at the house and denied ever seeing a firearm near the sofa. On questioning by the court, Blackman affirmed that it was possibl e a firearm was present, bu t that she did not notice or see it. Sincleair too also offered ev idence 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. S TANDARD OF R EVIEW The district court’s interpretation and application of the Guidelines is subject to de novoreview. 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 Case: 22-10452 Document: 00516889050 Page: 6 Date Filed: 09/08/2023No. 22-10452

7 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 findin g is not clearly erroneous if it is plausible in light of th e record as a whole.” Id .; see also United States v. Hebert , 813 F.3d 551, 560 (5th Cir. 2015) (“[U ]nder clear error re view, even [w]here there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly errone ous.” (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 Sincle air’s challenge concerns only the legal sufficiency of the facts underl ying the § 2D1.1(b)(1) enhancement or whether it also includes the district cour t’s findings of fact. Sincleair does not take a position on the appropriate st andard 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 fi ndings of fact on remand. Rather, he

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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)). Case: 22-10452 Document: 00516889050 Page: 7 Date Filed: 09/08/2023No. 22-10452

8 contends that the district court made no new findings of fact, and that the court’s reliance on the same previous fa cts at resentencing, which this court previously deemed insufficient to su pport 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 th e 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 cour t, 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 resol ve disputed factual issues (and thus

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6 The only finding of fact potentially ma de was that “Sincleair was present for and likely a knowing participant in the drug transa ction 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 findin g 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 th at he assisted in any transactions.” Case: 22-10452 Document: 00516889050 Page: 8 Date Filed: 09/08/2023No. 22-10452

9 make specific fact ual findings) under Fed. R. Crim. P. 32(i)(3)(B), which we review under the plain error standard.
III. A NALYSIS On appeal, Sincleair asserts that th e district court erred in applying the § 2D1.1(b)(1) enhancement. He conten ds 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 regard ing 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 a pplies if a “dangerous weapon (including a firearm) was possessed” du ring 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 prepondera nce of the evidence “that a temporal and spatial relation existed between the weapon, the drug tr afficking activity,

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7 Although Rule 32(i)(3)(B) was likely viol ated, 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 re quired 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 theref ore do not further consider this challenge. Case: 22-10452 Document: 00516889050 Page: 9 Date Filed: 09/08/2023No. 22-10452

10 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 in dividual 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 Ci r. 2015) (internal quotation marks and citation omitted). “If the go vernment satisfies this burden, then the burden shifts and the defendant must show that it is clearly improbable that the weapon was co nnected 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 insuffi cient by the Fifth Circuit in his first appeal and (2) it “incorrectly characte rize[d] facts contained in the PSR and addendum.” He contends that the dist rict court’s FAC “relied on nothing more than the PSR and original adde ndum” and that the second addendum to the PSR “contained no additional facts.” Sincleair also asserts that the district court disregarded this court’s di rective to plainly state its basis for his sentence by merging the theories of co nstructive and personal possession and then imposing the same § 2D1.1(b)(1 ) enhancement without any additional evidence to support it. Si ncleair further alleges that the district court erred by “embellishing those facts contained in the PSR in support of the firearm enhancement, without further evidence co nfirming those facts.” He goes on to assert that the district court ig nored 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 dist rict court did not clearly err in applying the § 2D1.1(b)(1) enhancement atresentencing because it clarified its rationale for applying the enhancemen t, which is supported by the record. The government asserts that the districtcourt, in accordance with this Case: 22-10452 Document: 00516889050 Page: 10 Date Filed: 09/08/2023No. 22-10452

11 court’s mandate, plainly stated that it solely relied on a personal, constructive possession theory in its applicatio n of the enhancement. The government further asserts that the re cord as a whole supports this finding because there was “a temporal and spatial relation ship between Sincleair, his drug trafficking activity, and the Ruger pistol.” Accord ing to the government, although Sincleair was not directly engaged in the methamphetamine sale between Wood and Ilczyszyn, the districtcourt 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 di strict 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 st ate that the enhanc ement was based on constructive or co-conspirator possessi on. Neither did it make any additional findings regarding these theories. It merel y “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 ad dendum to the PSR expressed doubts about applying the enhancement, and th e FAC is based on facts that we previously deemed insufficien t under either theory. In Sincleair’s first appeal, we noted that the key PSR facts included: “Sincleair was Ilczyszyn’s source formethamphetamine, and Sincleair and Ilczyszyn and their girlfriends were present at Wood’s home for a social Case: 22-10452 Document: 00516889050 Page: 11 Date Filed: 09/08/2023No. 22-10452

12 gathering around the time that Ilczys zyn sold an ounce of methamphetamine to Wood.” Sincleair , 16 F.4th at 473. The seco nd addendum to the PSR did not add any new facts to support the § 2D1.1(b)(1) enhancement. Rather, the second addendum expressed doubt ab out applying the enhancement under both the personal and the co-conspir ator possession theories. The second addendum explained that “[t]here wa s 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 menti oned in the Factual Resume. The only individual that Sincleair is known to engage in drug distribution with was Ilczyszyn; however, [a s] the Fifth Circuit noted in United States v. Mata , 491 F.3d 237, 241 (5th Ci r. 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 methamp hetamine transaction between Ilczyszyn or Wood on this occasion. The second addendum noted that if th e court reapplied the enhancement, it would have to do so based on the same fa cts 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 Case: 22-10452 Document: 00516889050 Page: 12 Date Filed: 09/08/2023No. 22-10452

13 plain view on a table near him.” However, we previo usly concluded that the same, PSR-sourced facts were insuffici ent to support personal possession because they do not demonstrate “a temporal and spatial relationship between the gun, the drug traffi cking 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 co nclusion, 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 a dditional 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 exis ted between the weapon, the drug trafficking activity, and the defendan t,” Sincleair offered rebuttal evidence that was not properly considered atresentencing. 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 co nnected with this offense.” During the proceedings, however, Sincleair pres ented the testimony of Blackman, who provided more information and context about the Ruger at issue. Sincleair also offered a portion of the transcript fr om 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 Case: 22-10452 Document: 00516889050 Page: 13 Date Filed: 09/08/2023No. 22-10452

14 3. Instead, the district court chose to apply the § 2D1.1(b)(1) enhancement once more, based on the same facts that we previously de emed insufficient. Assuming that the district cour t 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 conspira cy 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 individua ls present with the defe ndant and the firearm are charged as coconspirators or mention ed 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-se ller relationship is not, by itself, sufficient to support a conviction for cons piracy.” 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 construc tive 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 compli ed with our mandate in Sincleair The mandate rule “provides that a lower court on remand must implement both the letter and the spiritof the appellate co urt’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)). “A bsent exceptional circumstances, the Case: 22-10452 Document: 00516889050 Page: 14 Date Filed: 09/08/2023No. 22-10452

15 mandate rule compels comp liance on remand with th e 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 resentenci ng, this circuit employs a restrictive approach: The resentencing court may co nsider 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 co urt, which could have been brought in the original appeal, are not proper for reconsider ation 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 ev idence 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 r emand, stating that “[i]f, on remand, the district court determines that th e 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 an d its statements at resentencing to determine whether it comp lied 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 ca se, 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: 09/08/2023No. 22-10452

16 constructive possession of that weapon.” The district court further stated that it had adopted as its “final findin gs of fact the statements of fact made in the [PSR], subject to and including ch anges and qualifications made by the addendum to the [PSR] . . . and the [FAC] just announced.” As noted above, the second addendum to the PSR ac tually casts doubt on both the constructive and co-conspirator posse ssion rationales. Moreover, the FAC does not “state plainly” the distri ct court’s basis for applying the enhancement. The FAC does not clearly indicate th at the district court relied solely on the constructive possession theory. The FAC states that “Sincleair had constructive possession over the firear m,” but then continues, in the next paragraph, to state “[w]hile not dire ctly engaged in th e methamphetamine sale between Wood and Ilczyszyn, Si ncleair was present for and likely a knowing participant in the drug tran saction 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) enha ncement. The district court instead merged both theories into its analysis.
Because the district court did no t clearly state its rationale for reapplying the enhancement at resenten cing 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 deci sion” 16 F.4th at 477. Case: 22-10452 Document: 00516889050 Page: 16 Date Filed: 09/08/2023No. 22-10452

17 IV. C ONCLUSION For these reasons, we again VACATE Sincleair’s sentence and REMAND for resentencing in a manner co nsistent 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