IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-11292

UNITED STATES OF AMERICA, 

Plaintiff - Appellee

v.

FRANCISCO BERNABE GONZALES, 

Defendant - Appellant

Appeals from the United States District Court

for the Northern District of Texas

USDC No. 4:13-CR-206-1

Before JONES, SMITH, and PRADO, Circuit Judges.

PER CURIAM:*

Francisco Bernabe Gonzales pled guilty to one count of conspiracy to 

possess with intent to distribute a controlled substance in violation of 21 U.S.C. 

§ 846. He appeals the procedural and substantive reasonableness of his 

sentence. Because we find no reversible error, we AFFIRM. 

 

* 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

December 11, 2017

Lyle W. Cayce

Clerk

 Case: 16-11292 Document: 00514267692 Page: 1 Date Filed: 12/11/2017
No. 16-11292

2

I. BACKGROUND

In December 2013, Gonzales pled guilty to one count of conspiracy to 

possess with intent to distribute a controlled substance in violation of 21 U.S.C. 

§ 846. The presentence report (“PSR”) calculated a total offense level of 311

and a criminal history category of VI. The base offense level was 32. The PSR 

added two levels for possession of a firearm in furtherance of drug-trafficking 

and subtracted three levels for acceptance of responsibility. 

The PSR stated that Gonzales was a career offender under U.S.S.G.

§ 4B1.1(b) for two prior felony convictions for crimes of violence: Burglary of a 

Habitation and Evading Arrest with a Vehicle. This finding did not affect 

Gonzales’s offense level because the offense level was greater than the career 

offender level. However, it did affect his criminal history category. His total 

criminal history score of 8 would have given him a criminal history category of

IV. However, because the PSR found that he was a career offender under 

U.S.S.G. § 4B1.1(b), he had a criminal history category of VI. With a total 

offense level of 31, this meant the sentencing guidelines recommended a range 

of 188 to 235 months imprisonment. Gonzales objected to the career offender 

finding, arguing that evading arrest with a vehicle is not a crime of violence. 

The district court overruled the objection and sentenced Gonzales to 235 

months of imprisonment with a three year term of supervised release. 

Gonzales appealed. This court affirmed the district court judgment in 

March 2015. United States v. Gonzales, 598 Fed. App’x. 311 (5th Cir. 2015)

(cert. granted, judgment vacated, 136 S. Ct. 84 (2015)). Two months later, the 

Supreme Court decided Johnson v. United States, 135 S. Ct. 2551 (2015).

Johnson held that the residual clause of the Armed Career Criminal Act

 

1 In at least one paragraph, the PSR mistakenly stated the total offense level was 32, 

which the court corrected in its ruling.

 Case: 16-11292 Document: 00514267692 Page: 2 Date Filed: 12/11/2017
No. 16-11292

3

(“ACCA”) was unconstitutionally vague. Id. at 2557, 2563. The Supreme Court 

granted certiorari to Gonzales and remanded this case to this court “for further 

consideration in light of Johnson.” Gonzales v. United States, 136 S. Ct. 84 

(2015). This court remanded to the district court, stating only: “IT IS 

ORDERED that appellant’s opposed motion to remand case for resentencing is 

GRANTED.”

The third addendum to the PSR concluded that the residual clause to the 

“crime of violence” definition in the guidelines, U.S.S.G. § 4B1.2(a)(2), must be 

invalid because this circuit treated cases involving the residual clauses of the 

ACCA and § 4B1.2(a)(2) interchangeably. See United States v. Moore, 635 F.3d 

774, 776 (5th Cir. 2011). This meant Gonzales could not be a career offender 

and lowered his criminal history category to IV, giving him a guideline 

imprisonment range of 151 to 188 months. The district court disagreed and 

cited this court’s decision, In re Arnick, 826 F.3d 787 (5th Cir. 2016), which 

noted that Johnson did not address the constitutionality of the sentencing 

guidelines. A fourth addendum to the PSR followed the district court’s 

reasoning and found that Gonzales was a career offender with a criminal 

history category of VI, giving him a guidelines imprisonment range of 188 to 

235 months. 

 The Government and Gonzales objected to the third addendum to the 

PSR because it applied the 2013 guidelines (those in effect at the time of 

original sentencing) rather than the 2015 guidelines (those in effect at the time 

of resentencing). Under the 2015 guidelines, Gonzales’ base offense level 

would be 30 instead of 32. This would result in a lower guideline range of 151 

to 188 months. The 2015 guidelines also got rid of the residual clause of 

U.S.S.G. § 4B1.2(a)(2), which would lower Gonzales’ criminal history category 

as noted above. If both amendments were applied to Gonzales, he would have 

a guideline imprisonment range of 121 to 151 months. The fourth addendum 

 Case: 16-11292 Document: 00514267692 Page: 3 Date Filed: 12/11/2017
No. 16-11292

4

to the PSR rejected these arguments and continued to apply the 2013 

guidelines. 

At the sentencing hearing, the district court adopted the PSR as 

amended. The court again sentenced Gonzales to 235 months imprisonment 

and 3 years supervised release. A few months later, the Supreme Court upheld 

the constitutionality of the residual clause in U.S.S.G. § 4B1.2(a)(2). Beckles 

v. United States, 137 S. Ct. 886, 897 (2017). 

II. STANDARD OF REVIEW

We review a district court’s interpretation of the sentencing guidelines 

and our remand orders de novo. United States v. Amieva–Rodriguez, 874 F.3d 

898, 903 (5th Cir. 2017); Janvey v. Alguire, 847 F.3d 231, 245 (5th Cir. 2017). 

We apply a harmless error standard of review to procedural errors in applying 

the guidelines. United States v. Ortiz–Chavira, 873 F.3d 473, 474-75 (5th Cir. 

2017). 

We review arguments not raised to the district court for plain error. 

United States v. Wikkerink, 841 F.3d 327, 331 (5th Cir. 2016). Under this 

standard, “when there was (1) an error below, that was (2) clear and obvious, 

and that (3) affected the defendant's substantial rights, a court of appeals has 

the discretion to correct it but no obligation to do so.” United States v. Galvan 

Escobar, 872 F.3d 316, 319 (5th Cir. 2017) (emphasis in original) (internal 

quotation marks omitted). In order to show that a sentencing error affected 

the defendant’s substantial rights, the defendant must show that “the error 

increased the term of a sentence, such that there is a reasonable probability of 

a lower sentence on remand.” Id. at 319 (internal quotation marks omitted). 

“If the first three prongs are satisfied, we remedy the error ‘only if it seriously 

affected the fairness, integrity or public reputation of the judicial proceedings.’” 

Id. at 320 (citation omitted). 

 Case: 16-11292 Document: 00514267692 Page: 4 Date Filed: 12/11/2017
No. 16-11292

5

III. ANALYSIS

The parties dispute the meaning of this court's remand order following 

the Supreme Court’s remand in light of Johnson. As noted above, this court 

stated only: “IT IS ORDERED that appellant’s opposed motion to remand case 

for resentencing is GRANTED.” Gonzales argues that, taken in combination 

with the Supreme Court’s remand, this mandate implied that the district court 

should have applied Johnson during resentencing. But even if the district 

court erred in interpreting its duty on remand, the error was harmless. 

Because the Supreme Court ruled in Beckles that this guideline is not 

constitutionally infirm, Beckles, 137 S. Ct. at 897, this court will not require 

the district court to resentence under a rule that is now demonstrably 

incorrect, nor could we order the district court to rule at odds with Beckles. 

Therefore, the district court's application of the career offender guideline must 

be affirmed. 

Gonzales contends the sentence on remand was erroneous because the 

court failed to consider his post offense rehabilitation efforts. We reject this 

argument because the third addendum to the PSR specifically referenced 

Gonzales’s educational courses, GED certificate, and the fact that he had no 

disciplinary actions while in custody. The court adopted the findings in the 

PSR. The fact that the court did not explicitly mention specific § 3553(a) 

factors “does not mean that it did not consider them.” United States v. Evans, 

587 F.3d 667, 673 (5th Cir. 2009). 

Gonzales asserts the court erred on remand by failing to apply the 2015 

guidelines. When a sentence is remanded because it violated the law, the 

district court is to apply the same version of the guidelines that was in effect 

at the time of the original sentencing. 18 U.S.C. §§ 3742(g)(1), 3742(f)(1). We 

hold that the district court did not err by reading our mandate as a remand for 

 Case: 16-11292 Document: 00514267692 Page: 5 Date Filed: 12/11/2017
No. 16-11292

6

a sentence “imposed in violation of law.” Consequently, the district court did 

not err by applying the 2013 guidelines.

Gonzales argues that, even if the 2015 guidelines do not apply, the 

district court erred in failing to apply Amendment 798 because it is retroactive. 

Because Gonzales failed to raise this argument to the district court, we review 

for plain error. Amendment 798 struck the residual clause of the crime of 

violence definition in U.S.S.G. § 4B1.2(a)(2). This has none of the 

characteristics of a change that, according to our case law, is retroactive rather 

than substantive and thus prospective. United States v. Solis, 675 F.3d 795, 

797-98 (5th Cir. 2012) (noting that the following are evidence that an 

amendment is clarifying and therefore retroactive: the Sentencing Commission 

has expressly stated it is clarifying, the amendment is listed in U.S.S.G.

§ 1B1.10(c) as being retroactively applicable, and the “amendment alters the 

language of commentary to a guideline rather than the language of the 

guideline itself.” (citation omitted)). Gonzales cannot avail himself of 

Amendment 798. 

Gonzales also argues that the district court erred by not considering 

Amendments 782 or 798 under 18 U.S.C. § 3553. First, these amendments 

were both discussed before the court at the resentencing hearing. In fact, the 

district court took pains to have both parties agree Gonzales could assert 

Amendment 782 in a later motion under 18 U.S.C. § 3582(c)(2). Second, 

Gonzales has failed to point to any caselaw that would require the district court 

to consider subsequent amendments to the guidelines under this section.

Therefore, the district court did not err even if it did not consider these 

amendments under § 3553.

For the foregoing reasons, the judgment of the district court is 

AFFIRMED. 

 Case: 16-11292 Document: 00514267692 Page: 6 Date Filed: 12/11/2017