United States Court of Appeals

for the Fifth Circuit ____________

No. 22-10159 

____________

United States of America, 

Plaintiff—Appellee, 

versus

Victor Manuel Solorzano, 

Defendant—Appellant. 

______________________________

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 3:16-CR-283-1 

______________________________

Before Higginbotham, Smith, and Engelhardt, Circuit Judges.

Per Curiam: 

Victor Solorzano was sentenced to statutory mandatory-minimum 

sentences of 10 and 25 years as part of a total 567 months’ imprisonment. He 

appealed. While his appeal was pending, the First Step Act was signed into 

law. In relevant part, the new law (a) decreased the mandatory minimum of 

25 years in cases, like Solorzano’s, where the predicate convictions were part 

of the same criminal proceeding and (b) retroactively applied that decrease 

to all offenses for which “a sentence for the offense has not been imposed as 

of such date of enactment.” Pub. L. 115–391, § 403(b), 132 Stat. 5221. This 

Circuit affirmed his conviction but vacated his sentence on plain error 

United States Court of Appeals

Fifth Circuit

FILED

April 14, 2023

Lyle W. Cayce

Clerk

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No. 22-10159

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review. See United States v. Solorzano, 832 F. App’x 276, 283 (5th Cir. 2020) 

(“Solorzano I”). On resentencing, the district court declined to retroactively 

apply the decrease and left in place Solorzano’s 25-year sentence for the 

relevant count. This appeal followed.

Factual Background 

Victor Solorzano was a target of a narcotics investigation in Dallas. As 

part of their investigation, law enforcement officers obtained permission to 

place a tracking device on Solorzano’s car. A covert officer placed the 

tracking device on Solorzano’s car and began to leave when Solorzano 

emerged from his residence with his rifle at the ready and shouted at the 

officer. After attempts to verbally engage seemed to fail, the officer ran 

towards his partner’s vehicle and Solorzano opened fire. Solorzano shot the 

officer in the left hand and left ankle, but the officer was able to climb into his 

partner’s vehicle and the two drove off despite gunshot damage to the 

vehicle. Solorzano was subsequently arrested.

Procedural History

In a six-count indictment, Solorzano was charged with: (Count 1) 

possession with intent to distribute a controlled substance, (Count 2) 

possession of a firearm in furtherance of a drug trafficking crime, (Count 3) 

assault on a federal officer (that is, the officer who planted the tracker), 

(Count 4) using carrying, brandishing, and discharging a firearm during and 

in relation to a crime of violence (namely, Count 3), (Count 5) assault on a 

federal officer (that is, the driver), and (Count 6) using carrying, brandishing, 

and discharging a firearm during and in relation to a crime of violence 

(namely, Count 5). After a jury trial, Solorzano was found guilty as to Counts 

1, 3, 4, 5, and 6 and not guilty as to Count 2.

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At sentencing, the district court sentenced Solorzano to 147 months’ 

imprisonment for his convictions on Counts 1, 3, and 5.1 As required by 

statute, Solorzano was sentenced to a consecutive ten years for his conviction 

on Count 4 and a further consecutive 25 years for his conviction on Count 6. 

Solorzano timely appealed.

On appeal, this court affirmed Solorzano’s conviction, holding that he 

had neither demonstrated error on a Fourth Amendment issue nor 

successfully demonstrated that the evidence was insufficient for a finding of 

guilt. See Solorzano I, 832 F. App’x at 279-81. However, the panel held that, 

since Solorzano did not know that he was firing at federal officers, he “was 

not motivated by [their] official status,” and so the district court plainly erred 

in imposing a particular enhancement. Id. at 282. The court “thus vacate[d]

Solorzano’s sentence on Counts 3 and 5 and remand[ed] so that he may be 

resentenced.” Id. at 283. Notably, the court rejected an argument that the 

then-newly-enacted First Step Act applied to nullify the mandatory 25-year 

sentence as to Count 6. Relying on precedent, the court noted that “‘A 

sentence is ‘imposed’ when the district court pronounces it, not when the 

defendant exhausts his appeals.’” Id. at 284 (quoting United States v. Gomez, 

960 F.3d 173, 177 (5th Cir. 2020)). The court therefore “affirm[ed] the 

district court’s sentence on Count 6.” Id. The opinion ended: “Based on the 

foregoing, Solorzano’s conviction is AFFIRMED. Because the district court 

plainly erred in applying the sentence enhancement under § 3A1.2(b) for 

Counts 3 and 5, Solorzano’s sentence is VACATED. We REMAND for 

resentencing consistent with this opinion.” Id.

_____________________

1 The court initially sentenced Solorzano to 156 months on these counts but took 

nine months off that pronouncement in consideration of time spent in state custody.

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On remand, the district court stated that he “believes that the Fifth 

Circuit’s opinion was explicit as to what the Court had to do,” namely 

resentence as to Counts 3 and 5 and leave the rest untouched. So, over 

objections from Solorzano’s counsel, the court decided that it had no 

authority to revisit the 10-year sentence as to Count 4 and the 25-year 

sentence as to Count 6. However, having accounted for the length of time 

encompassed by those two sentences and the defendant’s post-conviction 

rehabilitation efforts, the court varied downwards from the guidelines and 

sentenced Solorzano to 60 months as to Counts 1, 3, and 5.2 Solorzano again 

appealed. 

Discussion

Solorzano challenges the re-imposition of the mandatory-minimum 

sentences on three grounds: first, that the district court misinterpreted the 

mandate of Solorzano I, second, that the district court erred in not applying 

the First Step Act, and third, that the district court erred in not considering 

the First Step Act under the 3553 sentencing factors. As we determine the 

case on the first of these challenges, we do not reach the latter two.3

“We review de novo whether the trial court faithfully and accurately 

applied our instructions on remand.” Sobley v. S. Nat. Gas Co., 302 F.3d 325, 

332 (5th Cir. 2002). Solorzano contends that the district court erred in 

believing that the mandate bound it to maintain the mandatory minimum 

sentences as to Counts 4 and 6. Unfortunately, Solorzano I is less than clear. 

_____________________

2 As the original sentence was bundled as to these three counts, all parties agreed 

that the court had to re-sentence as to all three despite the Fifth Circuit’s language of 

vacating as to Counts 3 and 5 only. See infra, n.4. 

3 To the extent that the argument concerning the 3553(a) factors is independent of 

the other two issues, we find that Solorzano has not shown error, plain or otherwise, in the 

district court’s discussion of the issue.

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In the section which discusses the error, the opinion reads: “[w]e thus vacate 

Solorzano’s sentence on Counts 3 and 5 and remand so that he may be 

resentenced under the appropriate Guidelines.” SolorzanoI, 832 F. App’x at 

283 (emphasis added). In another section, it is stated: “we affirm the district 

court’s sentence on Count 6.” Id. at 284. But the conclusion is more 

sweeping: “Because the district court plainly erred in applying the sentence 

enhancement under § 3A1.2(b) for Counts 3 and 5, Solorzano’s sentence is 

VACATED. We REMAND for resentencing consistent with this opinion.” 

Id. The interpretive challenge is as follows: the body of the opinion suggests 

that only part of the sentence was vacated, while the conclusion suggests that 

it all was.

Solorzano attempts to sidestep the interpretive challenge by 

suggesting that “the intervening law exception” should apply. A district 

court may forgo faithful application of the mandate in one of three 

circumstances: “(1) Introduction of evidence at a subsequent trial that is 

substantially different; (2) an intervening change in controlling authority; 

and (3) a determination that the earlier decision was clearly erroneous and 

would work a manifest injustice.” United States v. Pineiro, 470 F.3d 200, 205-

06 (5th Cir. 2006) (citation omitted). Here, Solorzano claims that the 

enactment of the First Step Act is “an intervening change in controlling 

authority.” Id. at 205. Not so. The intervening change in law must occur 

“between the issuance of our remand mandate . . . and . . . resentencing on 

remand.” Id. at 207. The First Step Act was enacted well before the decision 

in Solorzano I, so it is not an “intervening” change in authority. And while 

Solorzano claims that “there has been a significant change in the overall 

attitude towards the [First Step] Act and its overall applicability to criminal 

defendants” since Solorzano I, his briefing identifies no controlling authority 

by which the district court was bound.

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“This court has adopted a restrictive rule for interpreting the scope of 

the mandate in the criminal resentencing context.” United States v. Matthews, 

312 F.3d 652, 658 (5th Cir. 2002) (citation omitted). This restrictive rule 

mandates that “only those discrete, particular issues identified by the appeals 

court for remand are properly before the resentencing court.” Matthews, 312 

F.3d at 658 (quoting United States v. Marmolejo, 139 F.3d 528, 530 (5th Cir. 

1998)). Moreover: “The only issues on remand properly before the district 

court are those issues arising out of the correction of the sentence ordered by 

this court. In short, the resentencing court can consider whatever this court 

directs – no more, no less. All other issues ... which could have been brought

in the original appeal[] are not proper for reconsideration.” Marmolejo, 139 

F.3d at 531. Solorzano I explicitly identified one “discrete, particular issue[],” 

id. at 530, for the district court to correct: improper application of an 

enhancement to Counts 3 and 5. See Solorzano I, 832 F. App’x at 282-83. 

Despite the inexact language of the conclusion, the district court was thus

correct in determining that the mandate of Solorzano I encompassed only 

Counts 3 and 5.4 Therefore, the district court correctly declined to reach the 

question of whether or not the First Step Act’s retroactivity provision would 

change the mandatory minimums Solorzano faced.

Conclusion 

Accordingly, we AFFIRM the district court’s sentence.

_____________________

4 The district court was also correct to note that it needed to reconsider the 

sentence as to Count 1, even though it was untouched in Solorzano I. This is because 

Solorzano’s sentence was bundled as to Counts 1, 3, and 5. See United States v. Clark, 816 

F.3d 350, 360 (5th Cir. 2016) (citation omitted). Counts 4 and 6, however, ran 

consecutively to any sentence imposed for Counts 1, 3, and 5, and were thus unbundled and 

not part of the mandate.

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