United States Court of Appeals

for the Fifth Circuit

No. 19-11360

United States of America, 

Plaintiff—Appellee,

versus

Buck Gene Brune,

Defendant—Appellant.

Appeal from the United States District Court

for the Northern District of Texas

No. 4:19-CR-159-1

Before Jones, Smith, and Elrod, Circuit Judges.

Jerry E. Smith, Circuit Judge:

Buck Brune is a methamphetamine (“meth”) dealer. In charging him, 

the government accidentally cited the wrong statutory subparagraph. After 

Brune had pleaded guilty, the court copied that error into its order accepting 

his plea but later corrected it. The court applied a sentencing enhancement

on the ground thatsome of Brune’s meth was imported. Brune contends that 

the court’s correction of the erroneous citation amounted to double jeopardy 

and that the enhancement was erroneous. We find no error and affirm.

United States Court of Appeals

Fifth Circuit

FILED

March 22, 2021

Lyle W. Cayce

Clerk

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I.

Brune distributed at least 50–75 pounds of meth over nine months. 

For five months, he sold half a pound of meth to one coconspirator each day. 

His supplier was “a member of the Michoacán Cartel based in Dallas, 

Texas.”1

 Brune concedes that that cartel “borrow[s] its name from a state 

in Mexico.”

The government filed a one-count information based on the conspiracy provision of 21 U.S.C. § 846, charging Brune with conspiracy to violate 

“21 U.S.C[.] §§ 841(a)(l) and (b)(l)(C), namely to possess with intent to distribute a mixture and substance containing more than 50 grams of methamphetamine.” But the information cited the wrong part of § 841(b)(1): Subparagraph B—not C—criminalizes possession of a substance containing 

more than 50 grams of meth. In contrast, subparagraph C provides “the 

baseline statutory penalty for any quantity of methamphetamine.” United 

States v. Doggett, 230 F.3d 160, 166 (5th Cir. 2000) (emphasis added). Subparagraph B’s penalty range is 5 to 40 years, § 841(b)(1)(B); subparagraph C’s is 20 years or less, § 841(b)(1)(C). The parties agree that subparagraph C is a lesser-included offense of subparagraph B.

Despite that initial error and without any plea agreement, Brune 

pleaded guilty to subparagraph B,2 referencing it nine times. For instance, 

Brune’s factual resume cited subparagraph B, twice indicated that Brune was 

subject to its penalty range, and twice parroted its 50-gram threshold. 

Brune’s waiver of indictment also cited subparagraph B. At arraignment, 

1 Although that statement makes it unclear whether the cartel or the member is 

based in Dallas, Brune agrees that “his source was [sic] Michoacán cartel member based in 

Dallas, Texas.”

2 We use “pleaded guilty to subparagraph B” as a shorthand way of denoting his 

guilty plea of conspiracy to violate that provision.

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Brune admitted he understood its elements and penalty range. His lawyer 

admitted that “the intention of the parties was for Mr. Brune to enter a guilty 

plea to that offense, which was in the factual resume, and that would be a five 

to 40 count”—namely subparagraph B.

In recommending that the district court accept Brune’s guilty plea, 

however, the magistrate judge copied the information’s erroneous citation. 

The district court adopted that recommendation, accepted the plea, and 

adjudged Brune guilty. Thus, the presentence investigation report came back 

with subparagraph C’s “maximum term of imprisonment,” namely 

“20 years,” even though it should have been 40 years under subparagraph B. 

The government raised two objections.

First, the government noted that Brune pleaded guilty to subparagraph B—not C. Brune countered, contending, inter alia, that modification 

of the court’s order accepting his plea would violate the prohibition against 

double jeopardy. The district court rejected Brune’s contentions and 

amended its order to reflect that it was accepting Brune’s guilty plea to

subparagraph B.

Second, the government requested a sentencing enhancement for an 

offense involving “importation of . . . methamphetamine,” which would raise 

Brune’s offense level by two.3

 Brune countered that there was insufficient

evidence for that enhancement, because Brune’s supplier was “based in Dallas.” The court found there was sufficient evidence that Brune conspired to 

possess meth that “originated in . . . Mexico.”

3 U.S.S.G. § 2D1.1(b)(5). With that enhancement, the recommended sentence was

360 to 480 months. Without it, the recommended sentence would have been 292 to 365 

months.

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II.

The government contends that jeopardy never attached.4 Our review 

is de novo. United States v. Dugue, 690 F.3d 636, 637–38 (5th Cir. 2012) (per 

curiam). We (A) determine that jeopardy does not always attach upon 

acceptance of a guilty plea, (B) explain the framework for analyzing attachment under Ohio v. Johnson, 467 U.S. 493 (1984), and (C) apply that framework. There was no double-jeopardy violation.

A.

“No person shall be . . . subject for the same offence to be twice put in 

jeopardy of life or limb.” U.S. CONST. amend. V. To violate that clause, 

the initial prosecution must have “put [the defendant] in jeopardy.” Id. 

That inquiry becomes important where the initial prosecution gets derailed.

If a trial gets derailed, it still puts the defendant in jeopardy if jeopardy 

(1) attached and (2) terminated.

5

 Attachment refers to the “point in criminal 

proceedings at which [double-jeopardy] purposes and policies are implicated.” Serfass v. United States, 420 U.S. 377, 388 (1975). For instance, in a 

jury trial, attachment occurs “when the jury is empaneled and sworn.” Crist 

v. Bretz, 437 U.S. 28, 38 (1978). Termination meansthat double jeopardy does 

not bar a second prosecution where “criminal proceedings against an accused 

have not run their full course.” Justs.of Bos. Mun. Ct. v. Lydon, 466 U.S. 294, 

308 (1984) (quotation marks and citation omitted). For instance, a mistrial 

for a deadlocked jury does not terminate jeopardy, see Richardson v. United 

4 At oral argument, the government also said that “[t]his is not a case involving 

successive prosecutions.” We do not decide whether modification of an order accepting a 

guilty plea, which contains a clerical error, constitutes a successive prosecution, because 

Brune’s double-jeopardy theory fails in any event.

5 See Sattazahn v. Pennsylvania, 537 U.S. 101, 106 (2003); 6 Wayne R. LaFave 

et al., Criminal Procedure § 25.1(d)–(e) (4th ed. 2020).

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States, 468 U.S. 317, 323–24 (1984), but an acquittal does, see Lydon, 466 U.S. 

at 308.

Where a guilty plea gets derailed, the Supreme Court has neither identified a precise moment of attachment6 nor applied the concept of termination.7

 That reticence left lower courts to fill in the gaps. Because acceptance 

of a guilty plea is arguably analogous to a jury verdict, courts initially intuited 

that jeopardy attaches upon acceptance of a guilty plea.8 For instance, in our 

first foray into the issue, in United States v. Sanchez, 609 F.2d 761, 762 (5th 

Cir. 1980), we agreed that “[j]eopardy attaches with the acceptance of a 

guilty plea.” Relying solely on a now-abrogated, out-of-circuit case,9 we provided no reasoning for that conclusion.

It is no surprise, then, that four years later, the Supreme Court “effectively reject[ed] the double jeopardy concerns expressed . . . in Sanchez.”10 

In Johnson, 467 U.S. at 494, the government charged the defendant with two 

sets of greater and lesser-included offenses. Johnson pleaded guilty—over 

6 “[J]eopardy attache[s] at least when [a defendant] [is] sentenced.” Ricketts v. 

Adamson, 483 U.S. 1, 8 (1987).

7 We found only one state court that has applied termination to guilty pleas. See 

People v. Cabrera, 932 N.E.2d 528, 538–39 (Ill.App.Ct. 2010). We know of no federal court 

that expressly applied termination to plea proceedings. And, as noted below, Johnson’s test 

does not resemble the test for termination. See Part II.A.2.b, infra. Moreover, neither party 

asks us to apply termination, so we decline to invoke that concept here.

8 See, e.g., United States v. Jerry, 487 F.2d 600, 606 (3d Cir. 1973) (“Jerry must be 

considered to have been convicted by the entry of his plea of guilty just as if a jury had found 

a verdict of guilty against him.”).

9 See Sanchez, 609 F.2d at 762 (citing Jerry, 487 F.2d at 606); see also Gilmore v. 

Zimmerman, 793 F.2d 564, 571 (3d Cir. 1986) (concluding that Jerry “is inconsistent with 

. . . Johnson”).

10 United States v. Foy, 28 F.3d 464, 471 n.13 (5th Cir. 1994). The government 

acknowledges that that statement is dictum.

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the government’s objection—of the two lesser-included offenses, then 

moved to dismiss the greater offenses on double-jeopardy grounds. Id. In 

rejecting that claim, the Court applied two conceptsthat relate to attachment 

and termination.

First, although attachment occurs where double-jeopardy “purposes 

and policies are implicated,” Serfass, 420 U.S. at 388, Johnson, 467 U.S. 

at 501, concluded that no double-jeopardy interest “is implicated” in the 

“acceptance of a guilty plea to lesser included offenses while charges on the 

greater offenses remain pending.” Thus, although Sanchez had suggested 

the opposite,11 double jeopardy did not bar prosecution of a greater offense 

after a plea of a lesser-included offense. 

Second, the Court applied a rationale reminiscent of termination’s 

requirement that proceedings “run their full course” before a defendant can

successfully invoke double jeopardy. Lydon, 466 U.S. at 308 (quotation 

marks and citation omitted). Specifically, in Johnson, 467 U.S. at 502, the 

Court sought to ensure that the government has “one full and fair opportunity to convict those who have violated its laws.”

Thus, instead of expressly determining whether jeopardy attached 

and terminated, the Court analyzed (1) “finality” and (2) “prevention of 

prosecutorial overreaching,” concluding that “[n]o interest . . . protected by 

the Double Jeopardy Clause [was] implicated” in that situation. Id. at 501. 

Although that framework differs from the attachment and termination bookends that the Court employs when examining a trial, Johnson recognized differences between guilty pleas and trials.12 Specifically, guilty pleas provide 

11 See Sanchez, 609 F.2d at 762 (“[A]cceptance of a guilty plea to [a lesser-included] 

charge would bar later prosecution on the [greater] charge.”).

12 Cf. Johnson, 467 U.S. at 500 n.9 (concluding, in the context of a collateralestoppel claim based on the Double Jeopardy Clause, that guilty pleas are “not the same as 

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prosecutors no “opportunity to marshal [their] evidence and resources.” Id. 

A defendant can plead guilty even over the government’s objection. Id. at 

494. That distinction undermines the assumption of lower courts—which 

infected Sanchez—that guilty pleas are relevantly analogous to jury verdicts

and that jeopardy, therefore, attaches upon acceptance of a guilty plea.

Nonetheless, our opinions have continued to recite Sanchez’s rule that 

jeopardy attaches upon acceptance of a guilty plea.13 We must decide whether Johnson abrogated that statement. Brune contends that, under Sanchez,

jeopardy attaches upon acceptance of a guilty plea. The government contends that Johnson rejected Sanchez’s double-jeopardy concerns, so jeopardy 

does not always attach upon acceptance of a guilty plea. We agree because 

(1) Johnson abrogated Sanchez’s statement about attachment, (2) Brune’s 

counterarguments are not persuasive, and (3) the rule of orderliness does not 

preclude that conclusion.

1.

Johnson abrogated Sanchez’s statement regarding attachment. The 

First14 and Third15 Circuits agree that, under Johnson, jeopardy does not 

always attach upon acceptance of a guilty plea. The Second Circuit implies

that jeopardy attaches upon acceptance of a guilty plea16 and treats Johnson

as an exception to that rule, which applies only where (1) the prosecutor 

. . . adjudication[s] on the merits after full trial”).

13 See, e.g., United States v. Jones, 733 F.3d 574, 580 (5th Cir. 2013); see also

Part II.A.3.b, infra.

14 See United States v. Santiago Soto, 825 F.2d 616, 619 (1st Cir. 1987).

15 See Gilmore, 793 F.2d at 571.

16 See Morris v. Reynolds, 264 F.3d 38, 49 (2d Cir. 2001) (“[T]he Supreme Court 

has established that, after a court accepts defendant’s guilty plea to a lesser included 

offense, prosecution for the greater offense violates the Double Jeopardy Clause.”).

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objects to a plea of a lesser-included offense and (2) and the charge on the 

greater offense remains pending.17 The Sixth, Eighth, Ninth, Tenth, and 

Eleventh Circuits either largely ignore Johnson18 or skirt the issue.19 

We conclude that jeopardy does not always attach upon acceptance of 

a guilty plea. Two lines of reasoning support that conclusion.

a.

Sanchez’s rule about attachment is inconsistent with Johnson. Under 

Sanchez, jeopardy attaches upon acceptance of a guilty plea. Sanchez, 

609 F.2d at 762. Moreover, lesser-included and greater offenses constitute 

the “same offense” for double-jeopardy purposes. Brown v. Ohio, 432 U.S. 

161, 166 n.6 (1977). Thus, if Sanchezwere correct that jeopardy attaches upon 

acceptance of a guilty plea of a lesser offense, then—under Supreme Court 

precedent20—a successive prosecution for a greater offense would implicate 

double-jeopardy interests.

21 Consequently, if jeopardy had attached upon 

17 See Morris, 264 F.3d at 49 (“In contrast, the Double Jeopardy Clause is not 

offended when the greater offenses charged in the indictment remain ‘pending’ at the time 

of a guilty plea, and when the prosecution objects to the plea to a lesser included offense.”).

18 See United States v. Bearden, 274 F.3d 1031, 1037–38 (6th Cir. 2001); United 

States v. Baggett, 901 F.2d 1546, 1548 (11th Cir. 1990); United States v. Patterson, 381 F.3d 

859, 864 (9th Cir. 2004); but see United States v. Patterson, 406 F.3d 1095, 1097 (9th Cir. 

2005) (Kozinski, J., dissenting from denial of rehearing en banc).

19 See United States v. Wampler, 624 F.3d 1330, 1341 (10th Cir. 2010); Bally v. 

Kemna, 65 F.3d 104, 108 (8th Cir. 1995).

20 Attachment occurs where double-jeopardy “purposes and policies are implicated.” Serfass, 420 U.S. at 388. It follows that, if jeopardy attaches vis-à-vis a lesserincluded offense, then prosecution of a greater offense would have double-jeopardy 

implications.

21 Sanchez, 609 F.2d at 762 (concluding that, because jeopardy attaches upon 

acceptance of a guilty plea, “acceptance of a guilty plea to [a lesser-included] charge would 

bar later prosecution on the [greater] charge”). Brune likewise contends that, because 

jeopardy allegedly attaches upon acceptance of a guilty plea, “[a]cceptance of a plea to a 

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acceptance of Johnson’s guilty plea to the lesser-included offense, then prosecution of him for the greater offense would have had double-jeopardy consequences.

22

But the government’s prosecution of Johnson for the greater offense 

did not invoke double-jeopardy interests.23 It necessarily follows that jeopardy did not attach upon the court’s acceptance of Johnson’s guilty plea of

the lesser-included offense. Thus, under Johnson and contrary to Sanchez,

jeopardy does not always attach upon acceptance of a guilty plea.

The Third Circuit came to a similar conclusion. Although the court

had previously held that “jeopardy . . . attached with the acceptance of [a] 

guilty plea,” Jerry, 487 F.2d at 606, the court later concluded that Jerry’s 

statement about attachment was “only an assumption,” which “is inconsistent with . . . Johnson,” Gilmore, 793 F.2d at 571. Importantly, Jerry was the 

sole basis for Sanchez’s statement that jeopardy attaches upon acceptance of 

a guilty plea. See Sanchez, 609 F.2d at 762 (citing Jerry, 487 F.2d at 606).

In sum, Sanchez’s rule about attachment is inconsistent with Johnson. 

Moreover, Johnson abrogated Sanchez’s sole buttress—Jerry. It is no surprise, then, that Brune concedes that Sanchez and Johnson are in conflict.

24

lesser-included charge bars later prosecution on the associated greater charge.”

22 See Patterson, 406 F.3d at 1097 (Kozinski, J., dissenting from denial of rehearing 

en banc) (“If jeopardy had attached when [Johnson] pled guilty to the lesser offenses, the 

Double Jeopardy Clause would have barred the state from prosecuting him.”).

23 See Johnson, 467 U.S. at 501 (concluding that “acceptance of a guilty plea to 

lesser included offenses while charges on the greater offenses remain pending” does not 

implicate any “interest . . . protected by the Double Jeopardy Clause”).

24 Brune acknowledges that “Johnson limits . . . or gives some exceptions to 

Sanchez.”

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b.

Johnson’s holding has the hallmarks of attachment, not some other 

facet of double jeopardy. For instance, attachment occurs at the “point in 

criminal proceedings at which [double-jeopardy] purposes and policies are 

implicated.”25 Consistently with that concept, Johnson, 467 U.S. at 501, held 

that “[n]o interest . . . protected by the Double Jeopardy Clause is implicated” in that situation. Johnson’s focus on the threshold inquiry—whether 

double jeopardy is even implicated in the first place—thus sounds in 

attachment.

Conversely, Johnson does not resemble an exception to the doublejeopardy prohibition.

26 For instance, where the Supreme Court applies such 

an exception, it first “assume[s] that jeopardy attached” and then asks 

whether an exceptional circumstance “removed the double jeopardy bar.” 

Ricketts, 483 U.S. at 8. Johnson neither assumed that jeopardy attached nor 

used language about removing the double-jeopardy bar.

Finally, although Johnson’s holding appears to implement the policy 

behind termination, see Part II.A, supra, it does not appear to engraft termination’s legal test onto plea proceedings. For instance, to establish that jeopardy did not terminate after a trial, a prosecutor must show a “manifest necessity” to “retry the defendant.” Richardson, 468 U.S. at 323–24 (quotation 

marks and citation omitted). Johnson did not, however, employ anything akin 

25 Serfass, 420 U.S. at 388; see also United States v. Jorn, 400 U.S. 470, 480 (1971) 

(“Thus the conclusion that ‘jeopardy attaches’ when the trial commences expresses a 

judgment that the constitutional policies underpinning the Fifth Amendment’s guarantee 

are implicated at that point in the proceedings.”).

26 Brune’s counsel suggested at oral argument that Johnson might constitute an 

exception to Sanchez’s rule about attachment—not to the double-jeopardy prohibition in 

general. And, even if he is right in that interpretation of Johnson, we still must apply 

Johnson’s framework to see whether that exception would apply.

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to the manifest-necessity standard.27 In fact, the First and Third Circuits, 

which had attempted to graft that standard onto pleas, concluded that Johnson was inconsistent with those precedents. See Soto, 825 F.2d at 619; Gilmore, 793 F.2d at 571.

In short, Johnson’s holding has more to do with attachment than with 

termination or an exception to the double-jeopardy bar.

2.

Brune raises two counterarguments.28 Neither is persuasive.

a.

The Supreme Court said—about a century ago, in a case that didn’t 

mention double jeopardy—that “[a] plea of guilty . . . is itself a conviction.” 

Kercheval v. United States, 274 U.S. 220, 223 (1927). And double jeopardy 

prohibits “a second prosecution for the same offense after conviction.” 

27 See Johnson, 467 U.S. at 494–502; Soto, 825 F.2d at 619 (concluding that, under 

Johnson, “it becomes unnecessary to demonstrate ‘manifest necessity’ to warrant a judicial 

vacation of a guilty plea”).

28 Additionally, Brune contends, for the first time in his reply brief, that Sanabria 

v. United States, 437 U.S. 54, 69 (1978), stands for the proposition that “final judgment as 

to one substantive charge contained in the single count of the information bars future prosecution of [sic] other charge contained in the same count.” “We ordinarily disregard arguments raised for the first time in a reply brief.” Cotropia v. Chapman, 978 F.3d 282, 289 

n.14 (5th Cir. 2020) (cleaned up). Even if he had properly presented that argument, it 

would fail for two reasons.

First, the trial court acquitted Sanabria after trial had begun, Sanabria, 437 U.S. 

at 59, and the Court concluded that “a verdict of acquittal . . . may not be reviewed . . . 

without putting the defendant twice in jeopardy,” id. at 64 (cleaned up). Here, the court 

accepted Brune’s guilty plea—it did not acquit him. Moreover, the acceptance of a guilty 

plea, at least where a charge remains pending, “has none of the implications” of an 

acquittal after trial has already begun. Johnson, 467 U.S. at 501–02. Second, the acquittal 

in Sanabria constituted a final judgment. Sanabria, 437 U.S. at 72–73. But the court modified its acceptance of Brune’s guilty plea before it sentenced him or entered judgment.

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Johnson, 467 U.S. at 498 (quotation marks and citation omitted). Thus, if we 

myopically weld those precedents together, the argument goes, attachment 

must occur upon the plea of guilty, because that is when the conviction 

occurs. See Morris, 264 F.3d at 49. The Johnson dissenters made that sort of

argument and lost.29 It is no surprise, then, that, besides its cameo in Morris, 

that argument largely inhabits pre-Johnson concurrences30 and student 

notes.31 Brune raises it here, and it fails for three reasons.

First, that theory is inconsistent with Johnson. If Johnson’s guilty plea 

of a lesser-included offense constituted his conviction for double-jeopardy 

purposes, then the government’s subsequent prosecution would have implicated double-jeopardy interests. But the subsequent prosecution did not do 

that. Johnson, 467 U.S. at 501. And, to the extent that Kercheval conflicts 

with Johnson, we must follow Johnson as the Court’s later pronouncement.

Second, Brune cherry-picks Kercheval’s language. In Kercheval, 

274 U.S. at 225, the Court had nothing to say about double jeopardy; it concluded that evidence of a withdrawn guilty plea is inadmissible at trial. In any 

event, a more vigorous examination of Kercheval undermines Brune’s argument. Although Brune notes Kercheval’sstatement that a guilty plea is “conclusive” of guilt, he omits its observation that it would be wrong to “hold [a 

withdrawn] plea conclusive.” Id. at 224. Kercheval even noted that, in some 

29 See Johnson, 467 U.S. at 503 (Stevens, J., dissenting) (concluding that “a plea of 

guilty has the same legal effect as a conviction” and that double jeopardy “prohibits prosecution of a defendant for a greater offense when he has already been convicted on the lesser 

included offense” (cleaned up)). That argument also made a brief appearance in Ninth 

Circuit dictum. See United States v. Smith, 912 F.2d 322, 324–25 (9th Cir. 1990).

30 See United States v. Combs, 634 F.2d 1295, 1300 (10th Cir. 1980) (McKay, J., 

concurring in part and dissenting in part).

31 Andrew Cassady, Comment, No Rest for the Weary: Double Jeopardy Implications 

of Vacating a Defendant’s Guilty Plea, 81 U. Cin. L. Rev. 1539, 1551 (2013).

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circumstances, courts may “vacate a plea of guilty,” “substitute a plea of not 

guilty,” and “have a trial.” Id. Brune does not engage with any of that language. We thus decline to graft Kercheval’s inapposite, cherry-picked statement onto the double-jeopardy context in a manner that undermines Johnson.

Third, Brune’s reasoning places more weight on Kercheval’s use of 

“conviction” than it can bear. See id. at 223. Because a judgment of conviction can occur only after sentencing, Fed. R. Crim. P. 32(k)(1), a “defendant ha[s] not been formally convicted” until “entry of judgment and sentencing on the accepted guilty plea.”32

b.

Some scholars suggest that jeopardy attaches where “the risks of 

injury” are sufficiently great. LaFave et al., supra, § 25.1(d) (quotation 

marks and citation omitted). Moreover, a guilty plea exposes a defendant to 

risks, because it constitutes an admission of material facts along with a waiver 

of myriad rights. Combs, 634 F.2d at 1300 (McKay, J., concurring in part and 

dissenting in part). Thus, Brune contends that, “[w]ith the risk of a determination of guilt, jeopardy attaches.” That argument fails for two reasons.

First, Brune confuses necessary and sufficient conditions. Citing Serfass, 420 U.S. at 391–92, he contends that a risk of a determination of guilt is 

sufficient to show attachment.33 But he shrewdly omits any quotation, 

32 Combs, 634 F.2d at 1298; see also Mitchell v. United States, 526 U.S. 314, 325 

(1999) (rejecting the notion that “incrimination is complete once guilt has been adjudicated,” if a “sentence has yet to be imposed” (quoting Estelle v. Smith, 451 U.S. 454, 462 

(1981)).

33 He also contends that jeopardy attaches whenever a procedure begins before a 

trier of fact who can determine guilt. He is right that double jeopardy “does not come into 

play until a proceeding begins before a trier having jurisdiction to try the question of the 

guilt or innocence of the accused.” Serfass, 420 U.S. at 391 (quotation omitted). But that 

does not mean that identification of a procedure before a trier of fact is sufficient to show 

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because Serfass really says that, “[w]ithout risk of a determination of guilt, 

jeopardy does not attach.” Id. Thus, Serfass said that risk is necessary—not 

sufficient—to show attachment. That makes sense, because, before trial, a 

defendant must conduct motions and jury selection, which “may decide the 

defendant’s case.” Crist, 437 U.S. at 49 (Powell, J., dissenting). Yet, even 

with exposure to those risks, jeopardy does not attach until later. Id. Thus, 

pointing to some risk of a determination of guilt is not enough to show that 

jeopardy attaches.

Second, Brune’s single-minded focus on risks ignores the government’s interest in completing its prosecution. Yet, Johnson, 467 U.S. at 502, 

considered it relevant that “ending prosecution now would deny the State its 

right to one full and fair opportunity to convict those who have violated its 

laws.” A singular focus on risks would allow a defendant to place himself in 

jeopardy—by pleading guilty—and thus “use the Double Jeopardy Clause as 

a sword to prevent the State from completing its prosecution.” Id. Johnson, 

therefore, bars us from focusing on risk to the exclusion of the government’s 

interest in completing its prosecution.

3.

Given those considerations, jeopardy does not always attach upon 

acceptance of a guilty plea.34 We thus join the majority of circuits that have 

analyzed the impact of Johnson and, in doing so, we affirm our only previous 

attachment. For instance, procedures—such as motions and opening statements—occur 

in front of a trier of fact before jeopardy attaches in a bench trial. See Crist, 437 U.S. at 49 

(Powell, J., dissenting).

34 Accord Patterson, 406 F.3d at 1097 (Kozinski, J., dissenting from denial of rehearing en banc); Soto, 825 F.2d at 620; Gilmore, 793 F.2d at 571; LaFave et al., supra, 

§ 25.1(d) (concluding that the rule that jeopardy attaches upon acceptance of a guilty plea 

is “an oversimplification, one that fails to speak to the many situations in which a guilty 

plea will not bar further prosecution”).

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analysis of that issue, namely that Johnson “effectively reject[ed] the double 

jeopardy concerns expressed . . . in Sanchez.” Foy, 28 F.3d at 471 n.13. The 

rule of orderliness does not preclude that conclusion, because (a) Sanchez

made pronouncements about attachment only in now-abrogated dicta, and 

(b) none of our later opinions reciting Sanchez’s rule about attachment grappled with whether Johnson rejected Sanchez’s rule.

a.

Sanchez made conclusions about attachment only in dicta. For instance, although Sanchez, 609 F.2d at 762, stated that “[j]eopardy attaches 

with the acceptance of a guilty plea,” the trial court accepted Sanchez’s 

guilty plea only conditionally, so there was no double-jeopardy violation, id.

at 763. Because any successive prosecution occurred before acceptance of 

the guilty plea, we needed only to conclude—as then-Judge Gorsuch did in 

his analysis of that issue—that jeopardy does not attach at least until 

acceptance of a guilty plea.35 

Because the broader assumption about attachment was unnecessary 

to our decision, that “broad and unnecessary language of [Sanchez] [can]not 

be considered binding authority.”36 Moreover, because Johnson “implicitly 

overrule[d]” Sanchez’s statement about attachment, “we have the . . . obligation to declare and implement this change in the law.” Hines v. Quillivan, 

982 F.3d 266, 271 (5th Cir. 2020) (quotation marks and citation omitted). In 

short, Sanchez’s statements about attachment are abrogated dicta.

35 See Wampler, 624 F.3d at 1341 (“[J]eopardy does not attach at least until the 

guilty plea is accepted, and perhaps not until even later.” (emphasis added)); cf. Ricketts, 

483 U.S. at 8 (“[J]eopardy attache[s] at least when [a defendant] [is] sentenced.” (emphasis added)).

36 Texaco Inc. v. Duhé, 274 F.3d 911, 920 n.13 (5th Cir. 2001) (citing Kastigar v. 

United States, 406 U.S. 441, 454–55 (1972)).

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b.

We have repeated Sanchez’s rule about attachment in three, postJohnson, published cases.37 None of those opinions, however, grappled with 

whether Johnson rejected Sanchez’s rule.

38 And, under the rule of orderliness, “[a]n opinion restating a prior panel’s ruling does not sub silentio hold 

that the prior ruling survived an uncited Supreme Court decision.” Gahagan 

v. United States Citizenship & Immigr. Servs., 911 F.3d 298, 302 (5th Cir. 

2018). Thus, “the rule of orderliness has little persuasive force when the 

prior panel decision at issue conflicts with a Supreme Court case to which the 

subsequent panel decision is faithful.” Kennedy v. Tangipahoa Par. Libr. Bd. 

of Control, 224 F.3d 359, 370 n.13 (5th Cir. 2000). Because our prior opinions 

did not analyze whether Johnson abrogated Sanchez’s rule about attachment, 

we are not bound by their rote recitations of Sanchez’s rule.39

37 See Jones, 733 F.3d at 580; United States v. Kim, 884 F.2d 189, 191 (5th Cir. 1989); 

Fransaw v. Lynaugh, 810 F.2d 518, 523 (5th Cir. 1987).

38 See Jones, 733 F.3d at 580; Kim, 884 F.2d at 191; Fransaw, 810 F.2d at 523.

39 See Gahagan, 911 F.3d at 302. The parties also debate the district court’s statutory power to correct an erroneous citation in an order accepting a guilty plea, but a “court 

may at any time correct a clerical error in a[n] . . . order.” Fed. R. Crim. P. 36. We 

have “used Rule 36 to correct errors in the judgment relating to . . . the offense underlying 

a plea.” United States v. Cooper, 979 F.3d 1084, 1089 (5th Cir. 2020), cert. denied, 2021 WL 

1073631 (U.S. Mar. 22, 2021) (No. 20-7122). 

Specifically, where a “judgment refers to the offense of conviction” as one offense, 

but “the record indicates that [the defendant] pleaded guilty to” another offense, that 

“reflects a clerical error in the written judgment.” United States v. McCoy, 819 F. App’x 

262, 262 (5th Cir. 2020) (per curiam). Given the nine references to subparagraph B, “the 

record indicates that [Brune] pleaded guilty” to it. Id. Moreover, the “transcript of the 

plea hearing makes clear that [Brune] pleaded guilty” of subparagraph B, given its multiple 

references thereto. Cooper, 979 F.3d at 1089. Finally, the district court’s modification of 

its order did not “contradict[] the court’s and the parties’ intentions as to the judgment.” 

United States v. Crawley, 463 F. App’x 418, 421 (5th Cir. 2012) (per curiam). As Brune’s 

counsel frankly admitted, “the intention of the parties was for Mr. Brune to” plead guilty 

to subparagraph B. The district court had statutory authority to correct its clerical error.

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B.

Because jeopardy does not always attach upon acceptance of a guilty 

plea, we next determine the test for ascertaining when it attaches. 

Johnson had to address that same question. Specifically, the Court had 

held that the Double Jeopardy Clause barred prosecution of a greater offense 

after a court accepted a guilty plea and sentenced for a lesser-included 

offense. Brown, 432 U.S. at 169, 162. Because Johnson also involved a successive prosecution of a greater offense after a plea of a lesser-included 

offense, the Court needed to distinguish Brown—which implicated double 

jeopardy—from Johnson—which did not. Johnson, 467 U.S. at 496. To do 

so, the Court determined that “the principles of finality and prevention of 

prosecutorial overreaching applied in Brown” were absent in Johnson. Id.

at 501.

Johnson thus “provided a framework . . . for determining whether 

jeopardy attaches when a defendant pleads guilty.”40 Courts must examine 

“the twin aims of the Double Jeopardy Clause: protecting a defendant’s 

finality interests and preventing prosecutorial overreaching.” Patterson, 

406 F.3d at 1097 (Kozinski, J., dissenting from denial of rehearing en banc).

The Second Circuit disagrees, concluding that the lodestar of Johnson’s analysis was the fact that the greater charge remained pending at the 

time Johnson pleaded guilty of the lesser-included offense.

41 Johnson, however, used “pending” once. Johnson, 467 U.S. at 501. Moreover, it did so 

only within its analysis of finality and prosecutorial overreach. See id. To be 

40 Patterson, 406 F.3d at 1097 (Kozinski, J., dissenting from denial of rehearing 

en banc); see also Soto, 825 F.2d at 620 (examining the potential for prosecutorial overreach 

and a defendant’s finality interests to determine whether jeopardy attached).

41 See Morris, 264 F.3d at 50 (“[T]he only question is whether the felony charge 

was ‘pending.’”).

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sure, whether a charge of a greater offense was pending may prove relevant, 

but that was not the Court’s guiding principle in distinguishing Brown.

C.

To determine whether jeopardy attached, we consider (1) Brune’s 

finality interest and (2) prevention of prosecutorial overreach.

1.

Johnson employed three considerations in ascertaining a defendant’s 

finality interest. None is present here.

First, the Court asked whether the situation before it involved any of 

the “implications of an implied acquittal which results from a verdict . . . rendered by a jury.” Id. at 501–02 (cleaned up). “The mere acceptance of a 

guilty plea,” however, “does not carry the same expectation of finality and 

tranquility that comes with a jury’s verdict.” Soto, 825 F.2d at 620. Moreover, given a court’s ability to correct errors, an erroneous citation in an order 

accepting a plea does not imply an acquittal. Fed. R. Crim. P. 36.

Second, Johnson asked whether “the State had the opportunity to 

marshal its evidence and resources more than once or to hone its presentation 

of its case through a trial.” Johnson, 467 U.S. at 501. The government had 

no opportunity to marshal evidence against Brune, however, because his plea 

proceedings “[did] not involve the ordeal of a trial.” Soto, 825 F.2d at 618.

Third, Johnson, 467 U.S. at 501, noted that the charges of the greater 

offenses were pending, which was relevant presumably because “Johnson 

could have foreseen a prosecution on the pending charges,” Soto, 825 F.2d 

at 619. Evidence abounds that Brune foresaw a subparagraph B prosecution. 

His factual resume referenced subparagraph B five times, reciting its citation, 

penalty range, and 50-gram threshold. His waiver of indictment cited that

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graph’s elements and penalty range. Finally, Brune’s counsel conceded that 

“the intention of the parties was for Mr. Brune to enter a guilty plea” to

subparagraph B. Given that evidence, Brune’s finality interest is even more 

miniscule than that of the defendant in Johnson: Johnson was merely on notice

of his greater offense; Brune intended to plead guilty of his.

In short, Brune intended to plead guilty to subparagraph B. Because 

the government botched its citations, he now seeks “an undeserved windfall 

by shaving” years off his sentence. Patterson, 406 F.3d at 1095 (Kozinski, J., 

dissenting from denial of rehearing en banc). In other words, Brune seeks to 

“use the Double Jeopardy Clause as a sword to prevent the State from completing its prosecution” of subparagraph B—a contingency that Johnson

sought to avoid.42 Brune’s finality interest is nil.

2.

Johnson employed two considerations in identifying prosecutorial 

overreach. First, in Johnson, 467 U.S. at 501–02, there was no overreach 

where the charge for the greater offense remained “pending.” In contrast, 

some authorities suggest there might be overreach where the government 

charges a defendant “with a second crime after getting him to plead guilty”

with a plea agreement.43 The government did not bring new charges against 

Brune. Nor did it dupe him with a plea agreement—there never was one to 

42 Johnson, 467 U.S. at 502. Brune suggests that Johnson is limited to cases in which 

a defendant proactively games the system—not where he passively stumbles across a windfall and then invokes double jeopardy. Johnson, however, did not limit its reasoning to 

defendants who proactively game the system.

43 See Patterson, 406 F.3d at 1099 (Kozinski, J., dissenting from denial of rehearing 

en banc); see also LaFave et al., supra, § 25.1(d) (finding potential for prosecutorial 

overreach where the government prosecutes a greater offense after “enter[ing] into an 

agreement that a greater charge will be dismissed in exchange for the defendant’s plea to a 

lesser charge”).

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begin with.

Second, Johnson, 467 U.S. at 502, considered whether “ending prosecution now would deny the [government] its right to one full and fair opportunity to convict those who have violated its laws.” Because Brune’s case 

has not gone to trial, and the government has not dismissed the charge for 

subparagraph B, the government has not yet had one full opportunity to 

convict him of subparagraph B. And there’s nothing unfair to Brune about 

that result: The government seeks to prosecute him for the only charge to

which Brune himself pleaded guilty.

In sum, the Double Jeopardy Clause “was not written or originally 

understood to pose an insuperable obstacle to the administration of justice in 

cases”—like Brune’s—“where there is no semblance of . . . oppressive practices.” Currier v. Virginia, 138 S. Ct. 2144, 2149 (2018) (quotation marks and 

citation omitted). Correction of a typo isn’t oppressive.

Because Brune’s finality interest is low, and there is no evidence of 

prosecutorial overreach, jeopardy did not attach upon the court’s acceptance 

of Brune’s guilty plea. There is no double-jeopardy violation.

III.

Brune avers that the district court clearly erred in applying an “importation” sentencing enhancement. We disagree.

Under U.S.S.G. § 2D1.1(b)(5), a court can increase a defendant’s 

offense level by two if his offense “involved the importation of . . . methamphetamine.” “We review the district court’s factual determination that an 

offense involved the importation of methamphetamine for clear error.”44 

44 United States v. Nimerfroh, 716 F. App’x 311, 315 (5th Cir. 2018) (per curiam); 

see also United States v. Serfass, 684 F.3d 548, 550 (5th Cir. 2012).

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We will find no clear error so long as the court’s conclusion is “plausible in 

light of the record read as a whole.” United States v. Dinh, 920 F.3d 307, 310 

(5th Cir. 2019) (quotation marks and citation omitted).

Brune sold at least 50–75 pounds of meth over nine months. His supplier was a member of the Michoacán Cartel based in Dallas, and that cartel

borrows its name from a Mexican state. Those facts support the inference 

that some of Brune’s drugs were imported.45 The importation finding is 

“plausible in light of the record read as a whole,” so there is no clear error.46

AFFIRMED.

45 See United States v. Castillo-Curiel, 579 F. App’x 239, 239 (5th Cir. 2014) (per 

curiam) (considering as relevant to application of the importation enhancement the fact 

that “the methamphetamine was associated with two Mexican drug cartels”).

46 Dinh, 920 F.3d at 310 (quotation marks and citation omitted). In an unpublished 

opinion, we concluded that “the mere reference to a cartel is [not] sufficient to prove by a 

preponderance of the evidence that [a defendant] was dealing with imported methamphetamine.” See Nimerfroh, 716 F. App’x at 316. Nimerfroh is distinguishable because the 

cartel had not been identified, but the evidence shows that Brune dealt specifically with the 

Michoacán Cartel. Id.

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