text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jaime Shakur GARCIA, Defendant-Appellant.
    No. 16-10863
    United States Court of Appeals, Fifth Circuit.
    FILED May 23, 2017

      TimothyW. Funnell, Attorney, U.S. Attorney’s Office, Fort Worth, TX, James Wesley Hendrix, Brian W. McKay, Esq., Assistant U.S. Attorneys, U.S. Attorney’s Office, Dallas, TX, for Plaintiff-Appellee.
    Kevin Joel Page, Federal Public Defender’s Office, Dallas, TX, Sherylynn Ann Kime-Goodwin, Assistant Federal Public, Federal Public Defender’s Office, Lubbock, TX, for Defendant-Appellant.
    Before SMITH, PRADO, and GRAVES, Circuit Judges.
   EDWARD C. PRADO, Circuit Judge:

Jaime Shakur Garcia pleaded guilty to one count of Hobbs Act robbery and one count of possessing and discharging a firearm in furtherance of a crime of violence. In calculating Garcia’s sentence for the Hobbs Act robbery count, the district court applied a sentencing enhancement based on the assessment that Garcia and his codefendants had physically restrained the victims. Garcia contends that this sentencing enhancement was improper. Garcia also claims that his firearm conviction is invalid because the statute of conviction is unconstitutionally vague and therefore violates his due process rights. We AFFIRM Garcia’s firearm conviction, VACATE his sentence for the Hobbs Act robbery count, and REMAND for resentencing.

I. BACKGROUND

In October 2015, Garcia and two other defendants entered a gun store in Lubbock, Texas, wearing ski masks and carrying firearms. One of the defendants held a handgun to a store employee’s head and demanded that the employee get down- on the floor. Due to physical limitations, however, the employee was unable to comply. Meanwhile, another defendant stood near the door holding a firearm, and a third defendant smashed a glass display case that contained firearms. One of the store’s employees was in a back room when he heard glass break. This second employee then rushed to the front of the store, took cover behind a display case, and loaded a pistol. Shortly thereafter, the second employee heard two rounds of shots fired and felt a sharp pain in his ankle. After realizing he had been shot, the employee stood and fired at the defendants. A brief exchange of gunfire ensued. The defendants then fled the scene with nine stolen firearms, while the employee continued to fire at them.

Garcia later pleaded guilty to one count of Hobbs Act robbery under 18 U.S.C. § 1951(a) and one count of possessing and discharging a firearm in furtherance of a crime of violence under 18 U.S.C. § 924(c). Garcia did not waive his right to appeal. A presentence investigation report (“PSR”) calculated Garcia’s sentencing range under the 2015 edition of the U.S. Sentencing Guidelines Commission Manual (the “Guidelines”). The PSR recommended a range of 51 to 63 months for the Hobbs Act robbery count, which included a two-level enhancement for physical restraint of a victim under U.S.S.G. § 2B3.1(b)(4)(B). The PSR also recommended imposing the statutory minimum sentence of 120 months for the firearm count.

The government—-joined by the defense—objected to the physical restraint enhancement, contending that binding Fifth Circuit precedent “likely precludes application of the physical restraint enhancement under this set of facts.” The government’s objection relied on United States v. Hickman, 151 F.3d 446, 460-61 (5th Cir. 1998), unanimously approved of in relevant part on reh’g en banc, 179 F.3d 230 (5th Cir. 1999), a case in which we held that the district court erred in imposing a physical restraint enhancement. The probation office then prepared an addendum to the PSR, which took the position that the physical restraint enhancement was properly applied. The addendum noted that a few facts distinguished Garcia’s case from Hickman: a defendant in the instant case held a gun to the head of a victim and ordered the victim to get on the ground; one of the defendants stood near the exit while holding a firearm; and gunfire was exchanged. Garcia and the government maintained their objections to the enhancement during the sentencing hearing.

The district court adopted the PSR addendum’s reasoning and overruled the objections to the sentencing enhancement. The district court then imposed a sentence of 51 months’ imprisonment for the Hobbs Act robbery count and 120 months’ imprisonment for the firearm count, to be served consecutively. This appeal followed. On appeal, Garcia claims that (A) his conviction under 18 U.S.C. § 924(c) is invalid and (B) the physical restraint enhancement was improperly applied.

II. DISCUSSION

A. Conviction for Possessing a Firearm

Garcia argues that we should reverse his conviction under 18 U.S.C. § 924(c)(1)(A) for possessing, brandishing, or discharging a firearm “during and in relation to any crime of violence.” The term “crime of violence” is defined as any felony that:

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. § 924(c)(3). Garcia contends that Hobbs Act robbery under 18 U.S.C. § 1951(a) does not fall within the definition of a crime of violence.

Garcia first argues that Hobbs Act robbery does not involve “the use, attempted use, or threatened use of physical force” as required by § 924(c)(3)(A). However, even if that argument is correct, Hobbs Act robbery could still constitute a felony that “involves a substantial risk that physical force ... may be used” under § 924(c)(3)(B). Garcia’s only argument with respect to this latter provision is that § 924(c)(3)(B) “is unconstitutionally vague, depriving Mr. Garcia of fair notice as to the content [of] his offense under the due process clause.”

In Johnson v. United States, the Supreme Court held that a somewhat similar provision, the residual clause of 18 U.S.C. § 924(e), was unconstitutionally vague. — U.S. —, 135 S.Ct. 2551, 2555-60, 192 L.Ed.2d 569 (2015). However, our Court subsequently held that 18 U.S.C. § 16(b), which contains wording almost identical to that of § 924(c)(3)(B), is not unconstitutionally vague. United States v. Gonzalez-Longoria, 831 F.3d 670, 674-77 (5th Cir. 2016) (en banc), petition for cert, filed (U.S. Sept. 29, 2016) (No. 16-6259). To preserve this issue for further review, Garcia argues that Gonzalez-Longoria was wrongly decided. But because Garcia concedes that Gonzalez-Longoria is controlling, we affirm his conviction under § 924(c).

B. Physical Restraint Enhancement

Garcia also argues that the district court erred in imposing a sentencing enhancement for physical restraint. Though the government objected to the enhancement below, the government now contends that “this Court’s decision in Hickman and decisions from other circuits support application of the enhancement in these circumstances.” “Where, as here, the defendant objects to a sentencing enhancement in the district court, this court reviews the district court’s interpretation and application of the Guidelines de novo and its factual findings for clear error.” United States v. Johnson, 619 F.3d 469, 472 (5th Cir. 2010).

Section 2B3.1(b)(4)(B) of the Guidelines imposes a two-level enhancement “if any person was physically restrained to facilitate commission of the offense or to facilitate escape.” The Guidelines commentary defines “physically restrained” as “the forcible restraint of the victim such as by being tied, bound, or locked up.” U.S.S.G. §§ 1B1.1 cmt. n.1(K), 2B3.1 cmt. n.1. “By the use of the words ‘such as,’ it is apparent that ‘being tied, bound or locked up’ are listed by way of example rather than limitation.” Hickman, 151 F.3d at 461 (quoting United States v. Stokley, 881 F.2d 114, 116 (4th Cir. 1989)); accord United States v. Wallace, 461 F.3d 15, 33 (1st Cir. 2006); United States v. Thompson, 109 F.3d 639, 641 (9th Cir. 1997). Therefore, “it is possible for a district court to conclude that a defendant physically restrained his victims without evidence that he actually tied, bound, or locked them up.” Hickman, 151 F.3d at 461.

As the Second Circuit has pointed out, however, each of the examples in the Guidelines commentary “involves a restraint of movement by the use of some artifact by which the victim is ‘tied’ or ‘bound’ ... or by the use of a space where the victim is ‘locked up.’ ” United States v. Anglin, 169 F.3d 154, 164 (2d Cir. 1999). The “examples, while not imposing inflexible limitations upon the phrase ‘physical restraint,’ nonetheless are intended as meaningful signposts on the way to understanding the Sentencing Commission’s enhancement purpose.” Id. Consistent with that approach, this Court and others have held that physical restraint enhancements are appropriate in cases where defendants force their victims to move into confined spaces at gunpoint and instruct the victims not to leave. See United States v. Stevens, 580 F.3d 718, 721 (8th Cir. 2009); United States v. Frank, 223 Fed.Appx. 412, 413 (5th Cir. 2007) (per curiam); United States v. Doubet, 969 F.2d 341, 347 (7th Cir. 1992), abrogated on other grounds by United States v. Dunnigan, 507 U.S. 87, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993).

In Stevens, for example, the Eighth Circuit upheld a physical restraint enhancement because the defendant “moved [bank] employees to two distinct locations at gun point and closed them in a vault under circumstances clearly implying they should remain there or risk physical harm.” 580 F.3d at 721. The court explained that “moving the employees ... surely hindered the employees’ ability to alert authorities and prevent the defendants’ escape to a greater degree than merely brandishing a weapon and allowing the victims to stay where they were.” Id. By contrast, in the instant case, none of the defendants’ actions were even remotely similar to tying, binding, or locking up the victims. The defendants entered the store holding firearms, one pointed a firearm at a store employee and instructed the employee to get on the ground, and another stood near the store’s exit. Throughout these events, the defendants allowed the employees to remain where they were and never forced them to move to a confined space.

Some courts have held that blocking an exit while brandishing a gun and instructing victims not to move can constitute physical restraint. United States v. Miera, 539 F.3d 1232, 1233-36 (10th Cir. 2008); Wallace, 461 F.3d at 34-35. In Miera, a bank robber “remained near the bank’s door and pointed a gun around the room, telling ... people not to move in a loud, strong voice,” while his codefendant approached the teller station and demanded money. 539 F.3d at 1233 (internal quotation marks omitted). The Tenth Circuit noted that pointing the gun around the room likely “had the effect of physically-restraining everyone in [the defendant’s] presence.” Id. at 1235. Moreover, by “standing in front of the bank’s door,” the defendant “in all likelihood blocked the bank’s customer exit, and thereby kept the bank’s occupants from even considering an escape.” Id. Based on these facts, the Tenth Circuit held that this conduct “appropriately resulted in a physical restraint enhancement.” Id. at 1236.

However, the Miera court appears to have applied a broader standard than the one this Court has previously endorsed. In Hickman, we held that a defendant did not physically restrain a store employee when he pointed a firearm at the employee during a robbery. 151 F.3d at 461. The government had argued that “this action carried an implicit threat to obey [the defendant’s] command or be shot and was enough to support a finding of physical restraint.” Id. Yet we concluded that “merely brandishing a weapon at a victim cannot support an enhancement under this section of the Guidelines, because, ‘[w]ere it otherwise, enhancement would be warranted every time an armed robber entered a bank, for a threat not to move is implicit in the very nature of armed robbery.’ ” Id. (alteration in original) (quoting Doubet, 969 F.2d at 346). Although the defendant’s actions “permitted no alternative but compliance, he did nothing to restrain his victim that an armed robber would not normally do.” Id. Likewise, as Garcia notes, the defendants’ actions in the present case—standing near a door, holding a firearm, and instructing a victim to get on the ground-—-simply “make explicit what is implicit in all armed robberies: that the victims should not leave the premises.” Such conduct does not differentiate this case in any meaningful way from a typical armed robbery.

We also note that “ ‘restraint’ is a condition capable of being brought about by a number of forces—physical, mental, moral”—but “[i]n the phrase in question, ‘physical’ is an adjective which modifies (and hence limits) the noun ‘restraint.’ ” Anglin, 169 F.3d at 164. In Anglin, the Second Circuit held that “displaying a gun and telling people to get down and not move, without more, is insufficient to trigger the ‘physical restraint’ enhancement.” Id. Though the court had no doubt that the “robber’s conduct caused the ... tellers to feel restraint, they were not subjected to physical restraint.” Id. at 164-65 (emphasis added). Similarly, in the case at hand, we have little doubt that at least one of the employees felt restrained when the barrel of a gun touched the back of his neck. Still, this employee and his coworkers were not subjected to the type of physical restraint that victims experience when they are tied, bound, or locked up.

Finally, the PSR addendum indicated that “gunfire was exchanged, creating an enhanced risk and substantially more limitation for escape.” However, our sister circuits have clearly stated that “the physical restraint of the victims is not the equivalent of the possession, use, or discharge of a firearm.” United States v. Nelson, 137 F.3d 1094, 1112 (9th Cir. 1998) (emphasis added); accord United States v. Pearson, 211 F.3d 524, 527 (10th Cir. 2000). “In other words, those acts alone do not automatically create a situation where physical restraint of an individual occurs. Instead, something more must be done with the gun to physically restrain them.” Pearson, 211 F.3d at 526-27. In the instant case, we conclude that the defendants did not do anything with their firearms that goes beyond what would normally occur during an armed robbery. Thus, we hold that the district court erred in imposing the physical restraint enhancement.

III. CONCLUSION

For the reasons discussed above, we AFFIRM Garcia’s conviction under 18 U.S.C. § 924(c), we VACATE his sentence for the Hobbs Act robbery count, and we REMAND the case for resentencing consistent with this opinion.

      . Without this enhancement, Garcia’s Guidelines range would have been 41 to 51 months. See U.S.S.G. ch. 5, pt. A.

      . The residual clause of § 924(e)(2)(B) defined "violent felony" to mean a felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”

      . Some members of this Court have suggested that a defendant’s "concession should be understood as not establishing a legal precedent beyond the preclusive effect, as law of the case or res judicata, on the parties to that proceeding in the case at hand or subsequent litigation.” United States v. Castillo-Rivera, 853 F.3d 218, 235 (5th Cir. 2017) (Smith, J., dissenting). Because a “party can concede a legal issue for divers reasons,” "he and only he should suffer the consequences—or reap the benefits—of a decision to concede a point of law.” Id. at 234-35.


source: Caselaw Access Project

author: STEPHEN A. HIGGINSON, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee v. Francisco Javier SANCHEZ-VILLARREAL, Defendant-Appellant
    No. 15-41303
    United States Court of Appeals, Fifth Circuit.
    FILED May 23, 2017

      Terri-Lei O’Malley, Eileen K. Wilson, Renata Ann Gowie, Carmen Castillo Mitchell, Assistant U.S. Attorneys, U.S. Attorney’s Office, Houston, TX, for Plaintiff-Appellee.
    Marjorie A. Meyers, Federal Public Defender, Kayla R. Gassmann, Michael Lance Herman, H. Michael Sokolow, Assistant Federal Public Defenders, Federal Public Defender’s Office, Houston, TX, Francisco Javier Sanchez-Villarreal, Pro Se, for Defendanb-Appellant.
    Before PRADO, HIGGINSON, and COSTA, Circuit Judges.
   STEPHEN A. HIGGINSON, Circuit Judge:

Francisco Javier Sanchez-Villarreal pleaded guilty to possession with intent to distribute cocaine. The district court sentenced Sanchez-Villarreal to 155 months’ imprisonment after refusing to apply a mitigating-role adjustment. Sanchez-Villarreal appealed, and we vacate and remand for resentencing.

I

On or about February 10th, 2015, a police officer stopped Sanchez-Villarreal while driving in Texas. The officer discovered five bundles of cocaine weighing approximately 5.95 kilograms, and an additional four plastic baggies of cocaine in the truck. Sanchez-Villarreal stated that he had been hired by a person he knew only as “Chaparro” to transport the cocaine. He admitted that he was paid $1,000 to deliver the cocaine to an unknown person who would be waiting at a convenience store and that he personally intended to sell the four baggies of cocaine. He also admitted that, less than a month earlier, he had delivered approximately the same amount of cocaine for Chaparro. A zippered pouch containing a handgun, a loaded magazine and second magazine clip, and nineteen rounds of ammunition was also found concealed above the truck’s driver’s seat visor. Sanchez-Villarreal stated that “they” had provided him with the firearm for protection, but he did not identify “they.”

On March 4, 2015, a federal grand jury indicted Sanchez-Villarreal for conspiracy to possess with intent to distribute five kilograms or more of cocaine, in violation 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A), and for possession with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) and 18 U.S.C. § 2. Pursuant to a plea agreement, Sanchez-Villarreal pleaded guilty to the second count.

The Probation Officer prepared the pre-sentence report (PSR) using the 2014 edition of the Guidelines Manual, and calculated Sanchez-Villarreal’s total offense level to be 29. That offense level combined with Sanchez-Villarreal’s Category V criminal history yielded a Guidelines sentencing range of 140 to 175 months.

Sanchez-Villarreal filed written objections to the PSR. Relevant here, he objected to the PSR’s failure to recommend a mitigating-role adjustment under U.S.S.G. § 3B1.2. In response, the Probation Office maintained its position that a mitigating-role adjustment was not warranted.

At the sentencing hearing, Sanchez-Villarreal’s counsel urged the court to grant his client a mitigating-role reduction. He argued that Sanchez was a “standard ‘mule’ ” who had been ordered to transport drugs without knowing the end location and without coordinating or initiating the drag trafficking.

The district court judge responded that she understood the argument and the standards for assessing the role, but she ultimately overruled the objection and concluded that Sanchez-Villarreal’s conduct did not warrant a mitigating-role adjustment. In doing so, the judge advised that this was one area where she “probably had some disagreement with the guidelines as well.” The district court explained its reasoning:

[BJecause while it’s true that he kind of may be not the person involved at the high end of the overall conspiracy, he may not be the person organizing everything, he may be not the person gaining the most financially from this, but—but he is—I’m hesitating to use the word “critical,” but I’ll go ahead and use the word “critical.” He is critical to the operation as far as moving the drugs, and— and also, especially here, where by his own admission this was the second time he’d done this—and in that regard I do consider that, his admission—he’s—he’s entrusted, obviously to get this work done. If we didn’t have individuals like Mr. Sanchez willing to get this work done, then the choice from the people that are higher up would be either to stop doing it or to do it themselves, and then we’d be able to at least have those defendants facing the penalties.

After overruling Sanchez-Villarreal’s mitigating-role objection, the district court announced an oral sentence of 135 months’ imprisonment. Several hours later that day, the district court reconvened the sentencing hearing and the judge explained that she had misspoken that morning and meant to sentence Sanchez-Villarreal to 155 months’ imprisonment. Counsel for Sanchez-Villarreal objected to the revised sentence, and the district court overruled the objection. Sanchez-Villarreal timely filed a notice of appeal.

II

We must first decide whether the district court had authority to resentence Sanchez-Villarreal under Rule 35 of the Federal Rules of Criminal Procedure. Rule 35(a) dictates that, “[w]ithin 14 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error.” We review do novo whether the district court had jurisdiction to resentence under Rule 35(a). United States v. Olarte-Rojas, 820 F.3d 798, 804 (5th Cir. 2016).

The question here is whether the district court’s initial 135-month orally pronounced sentence was the result of “clear error,” making it subject to Rule 35 correction. “The narrow authority of the sentencing court to act under Rule 35(a) extends solely to ‘cases in which an obvious error or mistake has occurred in the sentence, that is, errors which would almost certainly result in a remand of the case to the trial court for further action.’ ” Id. at 803-04 (quoting Fed. R. Crim. P. 35, advisory committee’s note to 1991 amendment). “Rule 35(a) is not designed for the court to reconsider the application or interpretation of the Guidelines or to change its mind about the propriety of a sentence, and should not be used to reopen issues previously resolved at sentencing ‘through the exercise of the court’s discretion with regard to the application of the sentencing [Guidelines.’ ” Id. (quoting Fed. R. Crim. P. 35, advisory committee’s note to 1991 amendment).

Here, after calculating the Guidelines range of 140-175 months, affirming, that it was “an appropriate range for sentencing” and that this was not a case where “the low end of that 140 months is appropriate,” the district court then immediately announced a sentence significantly below that range. The district court gave no explanation justifying a downward variance, contrary to the Supreme Court’s instruction in Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), that the district court “must give serious consideration to the extent of any departure from the Guidelines and must explain [its] conclusion that an unusually lenient or an unusually harsh sentence is appropriate in a particular case with sufficient justifications.” Indeed, the district court’s comments all appear aimed at justifying a high-end Guidelines sentence. Further, there is nothing in the record suggesting that—between its initial oral pronouncement of 135 months and its revised sentence of 155 months—the district court “reexamine[d] whether a guideline should be applied, reevaluate[d] the application of a guideline that was subject to interpretation, reconsidered] calculations made under the appropriate guidelines range, [sought] to alter the sentence because of a disagreement with a guideline, or reeonsider[d] whether the sentence was a proper exercise of its discretion.” Olarte-Rojas, 820 F.3d at 805. Rather, after quickly recalling the case,.the district judge explained that the initial sentence was “simply misspoken,” and that she “had specifically referenced that [she] was sentencing [Sanchez-Villarreal] within the guidelines” and “indicated that I didn’t think the low end was sufficient.” Accordingly, because it is facially apparent from the record that this was an “obvious error or mistake that almost certainly would result in a remand,” see id., we hold that the district court had authority to resentence Sanchez-Villarreal under Rule 35.

III

Sanchez-Villarreal argues that the district court erred in denying him the mitigating-role reduction pursuant to U.S.S.G. § 3B1.2. Effective November 1, 2015—sev-eral months after the district court sentenced Sanchez-Villarreal—the Sentencing Commission amended the commentary to § 3B1.2. See U.S.S.G. app. C supp., amend. 794 (Nov. 1, 2015). Sanchez-Villarreal contends on appeal that Amendment 794 is a clarifying amendment and thus retroactively applicable to his sentence. He argues that the district court erred in failing to apply the amendment when determining whether to grant his request for a mitigating-role adjustment.

A

Section 3B1.2 provides a two-level decrease to the defendant’s applicable offense level if the defendant played a “minor” role in the criminal activity or a four-level decrease if the defendant’s role was “minimal.” At the time of Sanehez-Villar-real’s sentencing, the commentary to § 3B1.2 described the mitigating-role adjustment as applying to “a defendant who plays a part in committing the offense that makes him substantially less culpable than the average participant.” § 3B1.2 cmt. n.3 (2014). The commentary also described a “minimal participant” as one who is the least culpable and may lack “knowledge or understanding of the scope and structure of the enterprise and of the activities of others,” while the “minor participant” is one who is less culpable than most other participants “but whose role could not be described as minimal.” § 3B1.2, cmt. nn.4, 5. Further, the commentary noted that “[a] defendant who is accountable under § 1B1.3 (Relevant Conduct) only for the conduct in which the defendant personally was involved and who performs a limited function in concerted criminal activity is not precluded from consideration for an adjustment under this guideline.” § 3B1.2, cmt. n.3. The district court’s decision regarding whether to apply the reduction is “heavily dependent upon the facts of the particular case.” § 3B1.2 cmt. n.3(C).

Amendment 794, which became effective less than two months after Sanchez-Villarreal was sentenced, revised the commentary to § 3B1.2 but not the language of the actual Guidelines provision. See U.S.S.G. app. C supp., amend. 794. The amendment made several revisions, including adding a “non-exhaustive list of factors” that the court should consider in determining whether to apply the adjustment. Id. Importantly for this appeal, the Commission added the following language at the end of Noté 3(C):

The fact that a defendant performs an essential or indispensable role in the criminal activity is not determinative. Such a defendant may receive an adjustment under this guideline if he or she is substantially less culpable than the average participant in the criminal activity.

Id.

As part of its “Reasons for the Amendment,” the Commission cited case law demonstrating that courts had been denying mitigating-role adjustments solely because defendants were integral or indispensable to the criminal activity. Id. The Commission explained that such a construction of the Guideline was inconsistent with the primary criterion of relative culpability. Id. The Commission also explained that the amendment was intended to address a circuit conflict regarding the meaning of “average participant” in the Guidelines provision. The amendment “adopt[ed] the approach of the Seventh and Ninth Circuits, revising the commentary to specify that, when determining mitigating role, the defendant is to be compared with the other participants, ‘in the criminal activity.’ ” Id.

B

This court may consider amendments to the Guidelines that were “not effective at the time of the commission of the offense or at the time of sentencing” if they are “intended only to clarify, rather than effect substantive changes.” United States v. Anderson, 5 F.3d 795, 802 (5th Cir. 1993). In such a case, the amendments are “not controlling, [and this court] eon-sider[s] [them] as evidence of the Sentencing Commission’s intent behind” the Guideline at issue. Id.

At oral argument, the Government conceded that Amendment 794 is clarifying, see also United States v. Quintero-Leyva, 823 F.3d 519, 522 (9th Cir. 2016) (noting the Government’s concession that Amendment 794 applies retroactively), however, our court has not yet itself determined whether Amendment 794 is clarifying. Three other circuit courts—the Sixth, the Ninth, and the Eleventh—have recently held that Amendment 794 is a clarifying amendment and thus retroactively applicable, see Quintero-Leyva, 823 F.3d at 522; United States v. Cruickshank, 837 F.3d 1182, 1194 (11th Cir. 2016); United States v. Carter, 662 Fed.Appx. 342, 349 (6th Cir. 2016) (unpublished), and the parties have not drawn our attention to contrary authority. Cf. United States v. Morosco, 822 F.3d 1, 24 (1st Cir. 2016) (declining to decide whether Amendment 794 is clarifying or substantive).

In determining whether an amendment to the Guidelines is clarifying or substantive, this court looks to several, non-determinative factors: (1) whether the Commission expressly characterizes the amendment as clarifying; (2) whether the amendment is intended to address a circuit split, which generally indicates that the amendment is substantive, not clarifying; (3) whether the amendment is listed in § IB 1.10(d) as being retroactively applicable; and (4) whether the amendment alters the language of the commentary rather than the language of the Guideline itself, which may suggest that it is clarifying. See United States v. Huff, 370 F.3d 454, 465-67 (5th Cir. 2004). Here, two factors suggest that Amendment 794 is clarifying. First, the amendment alters only the text of the commentary and does not change the text of the Guideline itself. U.S.S.G. app. C supp., amend. 794; see also Huff, 370 F.3d at 466. Second, although the Commission did not use the word “clarify” in the text of the amendment, the “Reasons for Amendment” section explains that the amended commentary was issued to better reflect the Commission’s intent and provide “additional guidance to sentencing courts.” See U.S. Sentencing Guidelines Manual app. C, amend. 794. (explaining that the amendment was responsive to a Commission study indicating “that [the] mitigating[-]role [adjustment] is applied inconsistently and more sparingly than the Commission intended”); see also Huff, 370 F.3d at 466.

On the other hand, the amendment is not listed in § 1B1.10(d) as being retroactively applicable, see § 1B1.10(d), and as noted earlier, the amendment resolves a circuit split regarding who qualifies as an “average participant.” U.S.S.G. app. C supp., amend. 794. In Huff, however, we noted that this court has held that a Guidelines amendment was clarifying even though it was not designated as applying retroactively, 370 F.3d at 466; and in United States v. Fitzhugh, this court found a Guidelines amendment to be clarifying even though it resolved a circuit split. 954 F.2d 253, 254-55 (5th Cir. 1992).

On balance, application of the Huff factors supports the conclusion that Amendment 794 is clarifying, especially as we also take note of the unanimity of circuit courts that have ruled on the issue and the Government’s concession that the amendment is clarifying.

C

We review the interpretation and application of the Guidelines de novo and the district court’s factual finding that Sanehez-Villareal was not a minor participant for clear error. See United States v. Vasquez, 839 F.3d 409, 411-12 (5th Cir. 2016); Gomez-Valle, 828 F.3d at 327. “A factual finding is not clearly erroneous if it is plausible in light of the record read as a whole.” United States v. Villanueva, 408 F.3d 193, 203 (5th Cir. 2005). The defendant has the burden to show that he is entitled to the adjustment. See United States v. Angeles-Mendoza, 407 F.3d 742, 753 (5th Cir. 2005). However, “[i]f the district court made a legal error that affected its factual findings, ‘remand is the proper course unless the record permits only one resolution of the factual issue.’ ” Vasquez, 839 F.3d at 411 (quoting Ball v. LeBlanc, 792 F.3d 584, 596 (5th Cir. 2015)).

The district court erred in its interpretation and application of § 3B1.1 by giving conclusive weight to its finding that Sanchez-Villarreal’s role was “critical.” The district court began by stating that it understood the Guidelines “as to what they speak to about the role here,” but then noted that “this is one area where I probably have some disagreement with the guidelines as well.” It then proceeded to deny the mitigating-role adjustment because of the “critical” role played by Sanchez-Villarreal, noting the characteristics of Sanchez-Villarreal’s conduct that made his role “critical.”

Even in light of Amendment 794⅛ clarifying guidance, it is proper for a sentencing court to consider the “critical” or “essential” nature of a defendant’s role when assessing application of § 3B1.2; however, a sentencing court may not deny the adjustment on this ground alone. See § 3B1.2 cmt. 3(C) (“The fact that a defendant performs an essential or indispensable role in the criminal activity is not determinative. Such a defendant may receive an adjustment under this guideline if he or she is substantially less culpable than the average participant in the criminal activity.”); see also Castro, 843 F.3d at 612 (“In short, a court does not err by taking into account a defendant’s integral role in an offense when deciding whether she is entitled to a § 3B1.2 adjustment, as long as her role is not the sole or determinative factor in its decision.”); United States v. Torres-Hernandez, 843 F.3d 203, 209 (5th Cir. 2016) (finding no “indication that the district court relied solely on its view that transporting the marijuana into this country was a critical role in the offense”). Here, the court’s explanation at sentencing for its denial of the mitigating-role reduction strongly suggests that the court made outcome determinative its finding that Sanchez-Villarreal’s role was “critical.”

This error also appears to have preter-mitted the district court’s application of § 3B1.1 and the applicable commentary. The district court made no findings regarding the “average participant” in the criminal activity to assess whether Sanchez-Villarreal was “substantially less culpable than the average participant.” See Castro, 843 F.3d at 612-13; Torres-Hernandez, 843 F.3d at 208-210; cf. Cruickshank, 837 F.3d at 1195 (“While it is possible that the district court did not rely solely on drug quantity in making its minor-role determination, the consequences for Cruickshank’s advisory sentencing range could be significant.... Thus, we think the wisest course of action is to vacate the district court’s decision and remand for resentencing.”).

In these circumstances, where mitigating-role facts are debatable, and where there was an unexpected Rule 35 resen-tencing, we deem that “remand is the proper course unless the record permits only one resolution of the factual issue.” Vasquez, 839 F.3d at 411-12 (quoting Ball, 792 F.3d at 596). The district court may well after deliberate inquiry conclude that Sanchez-Villarreal has not carried his burden to prove that he was substantially less culpable than the average participant, however, because more than one outcome is permissible on these facts, we take as our “wisest course of action” a remand.

IV

For the foregoing reasons, we VACATE the district court’s sentence and REMAND for re-sentencing consistent with this opinion.

      . The Sentencing Commission first published the proposed Amendment 794 on April 30, 2015, several months before Sanchez-Villarreal’s sentencing hearing. See United States v. Gomez-Valle, 828 F.3d 324, 328 (5th Cir. 2016).

      . If the district court had granted the mitigating-role adjustment, the additional two-level reduction would have rendered a total offense level of 27. Combined with Sanchez-Villarreal's criminal history category of V, this would have resulted in a Guidelines range of 120-150 months’ imprisonment.

      . Several recent cases have considered the question and noted that it is one of first impression in this circuit, but none has decided the issue. See United States v. Castro, 843 F.3d 608, 610-11 (5th Cir. 2016) (finding it unnecessary to decide the retroactivity question because, even assuming that the amendment was clarifying and applicable, the district court did not clearly err); United States v. Gomez-Valle, 828 F.3d 324, 330-31 (5th Cir. 2016) (assuming that Amendment 794 applied to the defendant's pre-amendment sentence).

      . The relevant case law references § IB 1.10(c), which was re-designated as § 1B1.10(d) on November 1, 2014. See U.S.S.G. app. C supp, amend. 780 (Nov. 1, 2014).

      . Indeed, the court in Fitzhugh applied the amendment retroactively even though it effectively overruled then-existing Fifth Circuit precedent. Id.; see also Quintero-Leyva, 823 F.3d at 522 (finding that the amendment’s resolution of a circuit split indicates that the amendment is clarifying); Carter, 662 Fed.Appx. at 349 (same).

      . As the Government contends, Sanchez-Villarreal did not specifically argue that the district court should apply the then-pending Amendment 794. In his written objections to the PSR, he argued categorically instead that "his role was limited to that of a transporter” and that "he [was] among the least culpable of those involved as he lacked knowledge of the scope and structure of the enterprise that his unindicted co-participants possessed.” At sentencing, defense counsel similarly contended that Sanchez-Villarreal was a “standard 'mule,' ” who was simply obeying orders and transporting drugs with no knowledge of the "end location.” Adopting our reasoning in United States v. Torres-Perez, 777 F.3d 764 (5th Cir. 2015), we conclude that Sanchez-Villarreal preserved his objection. He “raise[d] a claim of error with the district court in such a manner so that the district court may [have] corrected] itself.” See id. at 767 (alterations in original) (quoting United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009)). Indeed, not only did Sanchez-Villarreal object to the denial of the mitigating-role adjustment, but his arguments before the district court and on appeal are the same: namely, that his role as a mere drug courier, with limited knowledge of the scope and structure of the drug trafficking activity, qualified him for the adjustment. Notably, Sanchez-Villarreal did not make one argument in support of a particular Guidelines application before the district court, and then make a different argument in support of that application on appeal. See, e.g., United States v. St. Junius, 739 F.3d 193, 212 & n.21 (5th Cir. 2013). Rather, Sanchez-Villarreal provided sufficient notice to the district court and to the Government that Sanchez-Villarreal believed his role as a drug courier qualified him for the mitigating-role adjustment under § 3B1.2.

      . The Government argues that because Sanchez-Villarreal was held accountable only for his personal conduct, he cannot claim that his role was minor. This is contradicted by Note 3(A) in the commentary, however. § 3B1.2 cmt. n.3(A) ("A defendant who is accountable under § 1B1.3 (Relevant Conduct) only for the conduct in which the defendant personally was involved and who performs a limited function in concerted criminal activity is not precluded from consideration for an adjustment under this guideline.”). The case on which the government relies predates the 2001 amendment that added this language. See United States v. Garcia, 242 F.3d 593, 598-99 (5th Cir. 2001) (holding that the defendant did not qualify for a mitigating-role adjustment because "his role was not minor, but actually coextensive with the conduct for which he was held accountable”); United States v. Hill, 563 F.3d 572, 577 (7th Cir.. 2009) (noting that the Sentencing Commission added the relevant conduct language in comment n.3(A) in 2001 to resolve a circuit split regarding whether a defendant "sentenced solely for his own criminal conduct ... [is] ineligible for a mitigating role reduction”).


author: JERRY E. SMITH, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Ernesto MORENO, Defendant-Appellant.
    No. 16-30785
    United States Court of Appeals, Fifth Circuit.
    Filed May 23, 2017

      James Stuart Baehr, Kevin G. Boit-mann, Diane Hollenshead Copes, Esq., Assistant U.S. Attorneys, U.S. Attorney’s Office, Jeffrey Ryan McLaren, Eastern District of Louisiana, New Orleans, LA, for Plaintiff-Appellee.
    Carlos A. Zelaya, II, Attorney, Mum-phrey Law Firm, L.L.C., Chalmette, LA, Alexander Hargobind Fuqua, Law Office of Bradley R. Corbett, San Diego, CA, for Defendant-Appellant.
    Before SMITH, PRADO, and GRAVES, Circuit Judges.
   JERRY E. SMITH, Circuit Judge:

Ernesto Moreno was caught violating the conditions of pretrial release set by a federal magistrate judge (“MJ”) in California. A federal MJ in Louisiana held a hearing and ordered that Moreno be detained. The district court a quo affirmed. Moreno challenges the detention order. Finding no error, we affirm.

I.

Moreno is a lifelong resident of California. In October 2015, he was indicted by a federal grand jury in the Eastern District of Louisiana (the “Eastern District”) for conspiring to distribute and possess with •intent to distribute methamphetamine. A warrant was issued in the Eastern District for his arrest. In March 2016, he was arrested in the Central District of California (“CDCA”). An MJ in CDCA denied the government’s motion for detention and released Moreno on a $50,000 bond. The conditions of pretrial release required Moreno to avoid illegal drugs and submit to drug testing.

In April 2016, Moreno tested positive for marihuana, cocaine, and methamphetamine and admitted to using them at a party. CDCA pretrial services increased the frequency of Moreno’s drug testing and placed him in outpatient drug counseling.

The same day that the drug test results came back, a police officer in San Fernando, California, responding to reports of a vehicle break-in, found Moreno sitting in the driver’s seat of a luxury vehicle, apparently intoxicated, and bleeding from his hand. There was blood-stained cash on the passenger’s seat and a clear plastic bag filled with what appeared to be methamphetamine. Moreno’s brother, who also seemed intoxicated, was in the back seat.

The officer arrested Moreno. A search of the car uncovered a backpack full of cash and two bottles containing Promethazine with Codeine (a controlled substance). The officer discovered eighteen prescription Xanax pills in Moreno’s pocket. The substance in the clear plastic bag tested positive for methamphetamine.

Moreno was charged with three California drug crimes and released on a state bond. The government moved in the CDCA to revoke Moreno’s bail in the Eastern District case. The MJ in CDCA issued an arrest warrant for Moreno.

On May 2, before the arrest warrant could be executed, Moreno appeared for a scheduled hearing in the Eastern District, where an MJ accepted his plea of not guilty and heard arguments about whether to detain him. The government noted that since being released from federal custody, Moreno had used drugs and had been charged with drug offenses. The government claimed that detention was necessary because Moreno’s lack of ties to the Eastern District made him a flight risk, and his alleged drug-selling made him a danger to the community. Moreno blamed the California drug arrest on his brother, explained that he had relinquished his passport, noted that he had shown up at the hearing, and suggested that he be placed in an inpatient drug treatment program. The Eastern District MJ determined that there were no conditions or combination of conditions that would reasonably assure Moreno’s appearance in court or the safety of the community. She ordered that Moreno be held without bail pending trial.

On appeal to the district court, Moreno disputed the government’s portrayal of the circumstances surrounding his arrest in San Fernando: He denied breaking into the car and noted that he had a prescription for Xanax and that his brother had claimed ownership of the other drugs found in the car. He also disputed the government’s claim that he was a flight risk and a danger to the community. He noted that he had appeared at the May 2 hearing in the Eastern District, had deep ties to California (where he would reside while on bail), had never been convicted of a felony, and had never been found to be in possession of a firearm. On June 24, the district judge in the Eastern District affirmed the MJ’s detention order and adopted her report and recommendation.

On appeal to this court, Moreno raises four issues. First, he challenges the detention order on the merits. Second, he claims that the district court violated its own local rules. Third, he claims that the district judge violated ethical rules by having his law clerk send out an email about a filing deadline. Finally, he claims that his constitutional rights were violated when he was denied an evidentiary hearing in the CDCA.

II.

Absent an error of law, we review a pretrial detention order under “a deferential standard of review that we equate to the abuse-of-discretion standard.” United States v. Rueben, 974 F.2d 580, 586 (5th Cir. 1992). The question is “whether the evidence as a whole supports the conclusions of the proceedings below.” Id. (citation omitted).

A “judicial officer shall” revoke bail if he (1)finds that there is either (a) “probable cause to believe that the defendant has committed” a crime or (b) “clear and convincing evidence that the person has violated any other condition of release” and (2) finds that either (a) “based on the factors set forth in [18 U.S.C. § 3142(g) ], there is no condition or combination of conditions of release that will assure that the person will not flee or pose a danger to the safety of any other person or the community” or (b) “the person is unlikely to abide by any condition or combinations of conditions of release.” 18 U.S.C. § 3148(b). The factors in § 3142(g) include the nature and circumstances of the offense charged; the weight of the evidence; the defendant’s physical and mental condition; his employment; his ties to the community; his criminal history; and his record of appearing at cpurt proceedings. § 3142(g). If there is probable cause to believe that the defendant has committed a felony while on release, a rebuttable presumption arises that no condition or combination of conditions will assure that he will not pose a danger to another person or the community. § 3148(b)(2)(B).

The evidence as a whole supports the detention order. Moreno was on pretrial release for about a month, during which he tested positive for drugs and was arrested for drug-related crimes. He has four drug convictions, no ties to the Eastern District, and no verifiable legitimate employment. The facts surrounding his arrest in San Fernando establish probable cause that he committed a felony while on release, creating a rebuttable presumption that he is a danger to the community.

Moreno points to his record of showing up for court as evidence that he is not a flight risk. But there is considerable indication that he is a danger to the community even if not a flight risk. The district court did not abuse its discretion by ordering detention.

III.

Moreno claims that the district court violated Eastern District of Louisiana Local Criminal Rule 5.2, which provides in relevant part,

The criminal magistrate judge shall ... [s]et conditions of bail and order release or detention of arrested persons in accordance with 18 USC 3141, except that the magistrate judge who initially sets the conditions of release shall also conduct all subsequent proceedings related to detention or release of the defendant.

Moreno reads this provision to mean that the Eastern District MJ should have deferred to the MJ in the CDCA, who set the initial conditions of release in this case. The government counters that Rule 5.2 only governs the assignment of cases within the Eastern District and does not require cases to be transferred to other districts.

Generally, a district court’s application of its local rules is reviewed for abuse of discretion. But because Moreno did not raise this issue in the district court, it is reviewed only for plain error. See United States v. Cordova-Soto, 804 F.3d 714, 722 (5th Cir. 2015). To demonstrate plain error, “an appellant must show (1) a forfeited error, (2) that is clear or obvious, and (3) that affects [the appellant’s] substantial rights.” Id. (citing Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009)). Even if those prongs of the test are satisfied, reversal is warranted “only if the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings” and this court chooses to exercise its discretion to correct the error. Id. (citation omitted).

The district court’s interpretation of Rule 5.2 did not constitute plain error. The government’s theory that Rule 5.2 applies only locally makes sense given that it is a local rule, and Moreno has presented no authority to the contrary. Even if the district court erred, that error was neither clear nor obvious.

IV.

On June 6, 2016, one of the district judge’s law clerks sent an email to both parties, asking whether they believed oral argument was needed. The email also noted that the government had not filed an opposition to Moreno’s appeal of the Eastern District MJ’s order. The filing deadline had been June 2, but the email indicated that a late filing would be accepted so long as it was filed “ASAP.” Moreno claims that by sending that email, the district court showed “deference” to the government, prejudicing him. Moreno believes that if the email had not been sent, the government would not have filed an opposition to the appeal, and Moreno would have received the relief he sought.

This issue is foreclosed, because the email is not in the record. Moreno never moved to supplement the record with the email; instead, he just included it as an appendix to his appellate brief. “It is appellant’s responsibility to order parts of the record which he contends contain error and his failure to do so prevents us from reviewing this assignment of error.”

V.

Moreno claims that he had a constitutional right to an evidentiary hearing in the CDCA. He says that by denying that, the district court violated his “rights to due process and equal protection under the Fifth and Fourteenth Amendments.” But he does not sufficiently explain his reasoning or cite any caselaw for support. This argument is waived for lack of adequate briefing.

The detention order is AFFIRMED.

      . See United States v. Hale, 685 F.3d 522, 532 (5th Cir. 2012) (per curiam) (citing Macklin v. City of New Orleans, 293 F.3d 237, 240 (5th Cir. 2002)); see also In re Adams, 734 F.2d 1094, 1102 (5th Cir. 1984) ("Courts have broad discretion in interpreting and applying their own local rules adopted to promote efficiency in the court.”).

      . United States v. Narvaez, 38 F.3d 162, 167 (5th Cir. 1994); see also Fed. R. App. P. 10(e). We intend no indication that, if the email were in the record, Moreno’s point would have merit.

      . See United States v. Lindell, 881 F.2d 1313, 1325 (5th Cir. 1989) (stating that a party waives an argument that is inadequately briefed).


author: PER CURIAM: EDITH H. JONES, Circuit Judge,

text:
    UNITED STATES of America, Plaintiff-Appellee v. Laura RAMOS-GONZALES, Defendant-Appellant
    No. 16-41353
    United States Court of Appeals, Fifth Circuit.
    FILED May 24, 2017
    REVISED June 12, 2017

      Lauretta Drake Bahry, Renata Ann Gowie, Carmen Castillo Mitchell, Assistant U.S. Attorneys, U.S. Attorney’s Office, Houston, TX, for Plaintiff-Appellee.
    Marjorie A. Meyers, Federal Public Defender, Timothy William Crooks, Kayla R. Gassmann, Assistant Federal Public Defender, Federal Public Defender’s Office, Houston, TX, for Defendant-Appellant.
    Before STEWART, Chief Judge, and JONES and OWEN, Circuit Judges.
   PER CURIAM:

The dispute in this case arises from the district court’s decision on remand to reimpose a special condition of supervised release on the Defendant-Appellant Ramos-Gonzales. Ramos-Gonzales pleaded guilty to transporting an undocumented alien into the United States. At sentencing, the district court imposed two special conditions of supervised release—a nighttime restriction and drug surveillance. Ramos-Gonzales appealed those conditions to this court, and this court remanded for resen-tencing on the grounds that the district court committed plain error in failing to explain the basis for the special conditions. At the subsequent sentencing hearing, the district court re-imposed the drug surveillance condition based on Ramos-Gonzales’s 2012 conviction for marijuana possession. Ramos-Gonzales now appeals the district court’s second judgment. We vacate the drug surveillance special condition and affirm the sentence as modified.

I. Background

On October 4, 2015, Laura Ramos-Gonzales was arrested during her attempt to transport undocumented individuals into the United States under the rear seat of her vehicle in violation of 8 U.S.C. §§ 1324(a) (1) (A) (ii), 1324(a)(1)(A)(v)(II), and 1324(a)(1)(B)(ii). On October 28, 2015, a Federal Grand Jury indicted Ramos-Gonzales on two counts of transporting an undocumented alien. On November 12, 2015, Ramos-Gonzales pleaded guilty to the first count pursuant to a written plea agreement. Following the plea, a presen-tence investigation report (PSR) was prepared, which recommended a Guidelines sentencing range of 8 to 14 months and a 3-year term of supervised release. Ramos-Gonzales did not object to these calculations. The subsequent sentencing proceedings, which represent the principal focus of this appeal, are divided into two stages, divided by an appeal and order issued by this court.

First Sentencing

On January 26, 2016, the district court adopted the PSR as the findings of the court and sentenced Ramos-Gonzales to 12 months in prison, followed by 3 years of supervised release and accompanied by a $100 Special Assessment. The district court imposed the “[s]tandard terms and conditions of supervision,” and, importantly, imposed a “nighttime restriction of 12 midnight to 6:00 a.m. and drug surveillance.” Ramos-Gonzales registered no objection to these additional conditions of supervised release at the sentencing hearing.

First Appeal

Ramos-Gonzales appealed despite previously failing to register an objection, arguing that the district court committed reversible plain error by imposing the drug surveillance and nighttime restriction conditions of supervised release. See Brief of Appellant, United States v. Ramos-Gonzales, No. 16-40146, 2016 WL 3770852, at *8-14 (July 7, 2016). In particular, she argued that the district court had failed to explain its reasons, and the record itself did not furnish independent evidentiary support for the restrictions. Id. at *9-10. With respect to the drug surveillance condition, Ramos-Gonzales argued that “there [was] absolutely no evidence that [she] currently uses illegal drugs,” and pointed out that the PSR indicated that she first smoked marijuana at 14 years of age and had not engaged in such activity in 25 years. Id. at *9. She also pointed out that the offense charged against her had nothing to do with drug use, nor did any of her prior offenses. Id.

The Government moved to remand the case for reconsideration of the special conditions, agreeing with Ramos-Gonzales that “the district court committed] reversible error by failing to explain the reasons for imposing special conditions of supervised release where the record is silent in support of the special conditions.” The Government also agreed that the record “[did] not indicate how the supervised release special conditions of nighttime restriction and drug surveillance [were] related to the underlying offense of alien transporting or to the relevant statutory considerations under 18 U.S.C. § 3553(a).” Id. at 3. In particular, the Government stated that “[although Ramos has a 2012 conviction for possession of 44 pounds of marijuana and last smoked marijuana 25 years ago, no indication in the record exists that she has an illicit drug problem to warrant drug surveillance requiring periodic urine and/or breath, saliva, and skin tests to detect drug abuse.” Id.

We conducted an independent review of the case, and exercised our discretion to grant plain error relief, summarily remanding the case to the district court for resentencing. Order, United States v. Laura Ramos-Gonzales, No. 16-40146, at 2 (5th Cir. Aug. 17, 2016).

Resentencing

The district court conducted a resen-tencing hearing on September 27, 2016, at which time it reconsidered the special conditions. The district court vacated the nighttime restriction, because Ramos-Gonzales would be living with her children and because there was no evidence that the offense in question occurred at nighttime. The district court decided to maintain the drug surveillance condition, however. Ramos-Gonzales objected on the basis that she “didn’t feel ... the drug restrictions [applied to her] because [she had not] used drugs for many years.” The district court replied: “Well you have a drug conviction. So that’s going to stay and that’s the way that goes.” Counsel for Ramos-Gonzales spoke -to preserve her objection to the drug surveillance condition “as an invasion of privacy and a financial burden.” A colloquy on those topics ensued. The district court concluded the discussion by asking: “Are you denying her drug conviction?” Counsel responded: “Not the conviction, your Honor. Just based on what’s in the PSR is that her drug use is very old in time.” The district court re-imposed the drug surveillance condition and concluded the hearing. Ramos-Gonzales filed this appeal.

II. Standard of Review

Where a defendant objects to special conditions of supervised release we review the district court’s imposition of those conditions for abuse of discretion. See United States v. Miller, 665 F.3d 114, 134 (5th Cir. 2011).

III. Discussion

A.

On appeal, Ramos-Gonzales argues that re-imposition of the drug surveillance condition was improper because the condition is not reasonably related to the relevant statutory factors that govern the imposition of conditions of supervised release, and because the condition is not consistent with the Sentencing Commission’s pertinent policy statements. See United States v. Salazar, 743 F.3d 445, 451 (5th Cir. 2014) (noting that a district court’s ability to impose special conditions of supervised release is limited by statute). In particular, Ramos-Gonzales points out that her prior conviction did not involve personal drug use, so there is no evidence to justify the surveillance condition.

The Government responds that imposition of the drug surveillance condition based on the previous drug conviction addressed the sentencing factors of Ramos- ' Gonzales’s “history and characteristics” as well as “protecting the public and adequately deterring the defendant from committing future criminal conduct.” 18 U.S.C. § 3553(a). The Government also points out that notwithstanding Ramos-Gonzales’s objection to the special drug surveillance condition, she did not object to the standard condition requiring periodic drug testing.

While district courts possess significant discretion in imposing conditions of supervised release, that discretion is nonetheless limited by 18 U.S.C. § 3583(d), which distinguishes between mandatory and special conditions of supervised release, and permits the court to impose -special conditions only in certain circumstances. See United States v. Paul, 274 F.3d 155, 164-65 (5th Cir. 2001). In particular, the special conditions must be “reasonably related” to one of four factors: (1) “the nature and circumstances of the offense and the history and characteristics of the defendant”; (2) “the need ... to afford adequate deterrence to criminal conduct”; (3) “the need ... to protect the public from further crimes of the defendant”; and (4) “the need ... to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.” See 18 U.S.C. §§ 3583(d)(1), 3553(a)(1) and (2)(B)-(D); Paul, 274 F.3d at 165; United States v. Weatherton, 567 F.3d 149, 153 (5th Cir. 2009). Moreover, “the conditions may not impose a ‘greater deprivation of liberty than is reasonably necessary for the purposes set forth in’ § 3553(a).” United States v. Ellis, 720 F.3d 220, 225 (5th Cir. 2013) (quoting 18 U.S.C. § 3583(d)(2)). Lastly, special conditions must be consistent with any pertinent policy statements issued by the Sentencing Commission. 18 U.S.C. § 3583(d)(3).

B.

We agree with Ramos-Gonzales that, on the facts of this case, any reasonable relationship between the drug surveillance special condition and the 2012 drug-related conviction would require evidence that Ramos-Gonzales actually used drugs. We view the more general connection between Ramos-Gonzales’s prior conviction and the special condition imposed—that is, the fact that both have something to do with drugs—as too superficial to justify imposition of the special condition.

Although the Government now attempts to defend the position that the drug surveillance condition is reasonably related to the history and characteristics of Ramos-Gonzales and the nature and circumstances of her prior conviction, this contention contradicts its concession at the first appeal that “[ajlthough Ramos has a 2012 conviction for possession of 44 pounds of marijuana and last smoked marijuana 25 years ago, no indication in the record exists that she has an illicit drug problem to warrant drug surveillance requiring periodic urine and/or breath, saliva, and skin tests to detect drug abuse.” The description of her history and characteristics and the nature of her prior offense have not changed between appeals. The only variation in the record on second appeal is the district court’s statement that the previous conviction was thé basis upon which the special condition was imposed. There is no record evidence that Ramos-Gonzales engages in personal drug use, and so we cannot contemplate any criminal conduct that a surveillance-related special condition would detect or deter. See United States v. Mahanera, 611 Fed.Appx. 201, 204 (5th Cir. 2015) (noting that where “the record reveals no evidence that [the defendant] has or had a drug or alcohol problem, and his offense did not involve drug or alcohol use,” a special condition involving drug testing did not reasonably relate to the history and characteristics of the defendant, to the nature of his offense, or to any need to deter him from future addiction-driven crimes).

In sum, where there is no relevant evidence of drug use, the essential charac-teristie of a defendant that makes surveillance for drug use reasonable and appropriate is absent. Accordingly, we conclude that the district court abused its discretion in imposing the special drug surveillance condition on Ramos-Gonzales. See Miller, 665 F.3d at 134.

C.

Although we hold that the drug surveillance special condition is not supported by the district court’s reasons for its imposition in this case, we conclude that remand is unnecessary because Ramos-Gonzales will be required to undergo drug testing as a mandatory condition of supervised release regardless. 18 U.S.C. § 3583(d); U.S.S.G. § 5D1.3(a)(4). We note the legal distinction between the special and mandatory conditions of supervised release contemplated by the scheme of § 3583(d), yet we are satisfied that on these facts that the drug-related mandatory condition of supervised release addresses any concerns relating to Ramos-Gonzales’s potential drug use. Accordingly, no remand is necessary.

IV. Conclusion

For the reasons stated, we VACATE the special condition of supervised release and otherwise AFFIRM the sentence as modified.

EDITH H. JONES, Circuit Judge,

concurring:

I concur in this opinion and draw attention to its fn. 6, which states that there is no authority for the district court’s conducting the resentencing hearing by telephone conference. From what this court learned at oral argument, a Federal Public Defender was present in court for the defendant, the Judge herself only by telephone, the defendant “participated” from a halfway house somewhere, and appellate counsel was unsure where the AUSA was during the resentencing “hearing.” There is no indication that the defendant consented to this procedure. That no one objected, and all the professional parties to the proceeding found this process convenient does not make it proper.

Perhaps this measure was viewed as a simple extension of the practice of conducting sentencing by videoconferences. In such proceedings, the judge presides from another location, while the defendant, together with his or her family, and the AUSA are present in the court of conviction. The judge’s face is on the two-way screen in the courtroom. Sentencing by videoconference is not an ideal way to run a criminal justice system. It removes the presence of the judge as a visible sign of the community’s conscience and may deprive the judge of the ability to read the attitudes and body language of the defendant at the moment the judge must decide a sentence. Sentencing by videoconference seems even more troubling when, not uncommonly, evidence must be offered and ruled on at the proceeding. Despite these difficulties, videoconference sentencing has been practiced, when the defendant consents, as a measure of necessity in courts that are understaffed or confront a high volume of criminal cases. In a videoconference, at least, the judge wears a robe in a court-like room, and all parties behave as in an ordinary courtroom setting.

But as our opinion specifies, Rule 43(a)(3) mandates the defendant’s “presence” at sentencing, and we have held that the defendant must first consent before the court may conduct sentencing by vi-deoconference. United States v. Navarro, 169 F.3d 228, 235 (5th Cir. 1999) (vacating sentencing where defendant did not consent to video-conference). See also United States v. Lawrence, 248 F.3d 300, 303-04 (4th Cir. 2001). An in-person proceeding allows the judge to “experience those impressions gleaned through ... any personal confrontation in which one attempts to assess the credibility or to evaluate the true moral fiber of another.” United States v. Thompson, 599 F.3d 595, 599 (7th Cir. 2010) (internal quotation marks and citations omitted).

Moreover, in contrast to Rule 43(a)(3), which makes no mention of videoconferencing, Rules 5(f) and 10(c) expressly authorize videoconferencing a defendant’s initial appearance and arraignment only “if the defendant consents.” Fed. R. Crim. Pro. 5(f), 10(c). It is therefore a fair inference that videoconferencing “is the exception to the rule, not the default rule itself.” Thompson, 599 F.3d at 600-01.

Sentencing by telephonic conferencing goes far beyond videoconferencing in its lack of dignity and detachment from the moral drama of the criminal justice system. Transforming criminal sentencing from a formal court hearing into a telephonic conference—even on “minor” matters of subjugation to drug testing and evening curfew—immeasurably reduces the seriousness of the proceeding and threatens to compromise the openness of federal courts.

Not only was there no face to face meeting of the parties here, but even stranger, the defendant was in a halfway house somewhere while her Federal Public Defender attorney was only available to her, remotely, by telephone. Suppose a last-minute question had arisen on which the defendant needed counsel’s advice? Suppose the AUSA had produced a witness for testimony on the matter being sentenced? Suppose one of the parties to this conversation—whether counsel or judge—was trying to multitask while halfway listening to the voice on the other end of the courtroom line? There may be practical answers to these questions, but they do not override one’s commonsense notion that listeners are often inclined to “tune out” audio without corresponding visual stimulation. Nor do practical excuses override the symbolic significance of procedural formality by all participants and the physical proximity of the defendant to her counsel.

There is no provision for telephonic sentencing in the Rules. Conducting resen-tencing, to say nothing of initial sentencing, by telephonic conference reflects poorly on the dignity and integrity of federal court proceedings. The Chief Judge’s admonition for the panel is fn. 6 of this opinion is significant.

      . The drug surveillance condition involves "periodic urine surveillance and/or breath, saliva and skin tests for the detection of drug abuse as directed by the probation officer.” The costs of these "detection efforts” are assessed to the defendant, "based on ability to pay as determined by the probation officer.”

      . The district court was referring to Ramos-Gonzales's previous conviction for possession of 44.2 pounds of marijuana.

      . Ramos-Gonzales offers the alternative argument that the district court’s decision to reimpose the drug surveillance special condition on remand violated the law of the case doctrine and mandate rule insofar as this court's order pursuant to the first appeal rejected the 2012 conviction as a basis for that condition. She also argues that permitting the probation officer to determine the number of drug tests she would be required to undergo constituted an impermissible delegation of Article III authority. In light of our chosen holding in this case, we pretermit discussion of these alternative arguments.

      . Although Mahanera is potentially distinguishable from Ramos-Gonzales’s situation insofar as the defendant's PSR in that case included no prior convictions or arrests for drug-related offenses, id. at 202, that potential distinction has no bearing on the key reason for the court’s decision—lack of evidence showing drug use or abuse. See id.-, cf. Salazar, 743 F.3d at 452 (noting that special condition prohibiting access to sexually stimulating materials not reasonably related to deterrence where there was no evidence that defendant's criminal activities were driven by access to such materials or that defendant had “a high potential for committing future sexual crimes”).

      . A further examination of the policy statements included in the Guidelines supports this view—the policy guidance on substance abuse-related special conditions provides that “[i]f the court has reason to believe that the defendant is an abuser of narcotics, other controlled substances or alcohol,” it is appropriate for the district court to impose:
      (A) a condition requiring the defendant to participate in a program approved by the United States Probation Office for substance abuse, which program may include testing to determine whether the defendant has reverted to the use of drugs or alcohol; and (B) a condition specifying that the defendant shall not use or possess alcohol.
      U.S.S.G. § 5D 1.3(d)(4).

      . We also observe that the sentencing hearing following this court's remand was conducted by telephone, without the physical presence of the defendant. Despite our recognition that the defendant registered no objection to this procedure, we are constrained to note that no authority for such a procedure has been presented, nor have we been able to locate any.
        See Fed. R. Crim. Pro. 43. We take this opportunity to remind district courts of the solemnity of the criminal proceeding and of the contribution that the physical presence of all parties makes to the fairness, integrity, and public function of that proceeding. Cf. United States v. Navarro, 169 F.3d 228, 235-39 (5th Cir. 1999). Accordingly, we advise against conducting future sentencing hearings by telephone.

      . After this opinion issued, we were advised that the AUSA attended the hearing in court. More important, defense counsel initiated the request for a telephonic hearing .to expedite the resentencing. The defendant agreed, albeit not on the record, to this procedure. For reasons stated herein, however, I do not believe these additional facts salvage an unauthorized device.

      . It is possible that the telephonic nature of this proceeding led to the judge's becoming confused about the purpose of resentencing. Although this court had ordered resentencing on the conditions of supervised release without restriction, the judge perfunctorily reimposed the special drug testing condition without any explanation and without any mention of the remand order.

      . Worth noting are the Advisory Committee Notes to the 2002 Amendments to the Federal Rules of Criminal Procedure, appended to Fed. Rule Crim. Pro. 10. The Notes explain in detail how carefully the innovation—permitting videoconferencing only for initial appearance and arraignment “with the defendant’s consent”—must be applied. In particular, the Notes advise courts to adopt standard procedures "for televising the video teleconference ... conducive to the solemnity of a federal criminal proceeding.” Among the recommended measures are a room that reflects "the dignity of a federal courtroom” at the detention facility; ensuring that the judge or a surrogate can carefully assess the defendant’s condition; and insuring that "counsel and the defendant (and even the defendant’s immediate family) are provided an ample opportunity to confer in private.” Conferencing by telephone where the defendant's "presence” is required cannot match these features.


author: JULIA SMITH GIBBONS, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Dominick ANDREWS, Defendant-Appellant.
    No. 16-3130
    United States Court of Appeals, Sixth Circuit.
    Argued: March 9, 2017
    Decided and Filed: May 23, 2017

      ARGUED: Gregory Charles Sassé, Cleveland, Ohio, for Appellant. Kimberly Robinson, UNITED STATES ATTORNEY’S OFFICE, Columbus, Ohio, for Ap-pellee. ON BRIEF: Gregory Charles Sassé, Cleveland, Ohio, for Appellant. Kimberly Robinson, UNITED STATES ATTORNEY’S OFFICE, Columbus, Ohio, for Appellee.
    Before: DAUGHTREY, MOORE, and GIBBONS, Circuit Judges.
   JULIA SMITH GIBBONS, Circuit Judge.

OPINION

After being indicted on drug, robbery, and gun charges, Dominick Andrews sought to have his indictment dismissed on the grounds that the arresting federal agents had engaged in outrageous conduct. When the district court denied his motion to dismiss, Andrews entered into a plea agreement under which he would plead guilty to conspiracy to possess cocaine with intent to distribute and aiding and abetting the possession of a firearm in furtherance of a drug-trafficking crime. After his change-of-plea hearing but prior to sentencing, Andrews sought to withdraw his plea, arguing that he had an absolute right to do so because the court had not yet accepted his plea. The district court refused to allow withdrawal, finding that it had accepted the plea and that Andrews had not shown a “fair and just reason” for doing so. On appeal, Andrews argues that the district court erred in refusing to dismiss the indictment and erred in determining that it had accepted his guilty plea. Because the district court expressly .declined to accept the plea, we reverse the denial of the motion to withdraw and remand for further proceedings consistent with this opinion.

I.

In February 2014, a federal grand jury in the Southern District of Ohio returned a seven-count indictment against Dominick Andrews and three co-conspirators. Andrews was charged with conspiring to possess cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846 (Count 1), conspiracy to interfere with commerce by robbery and threats of physical violence in violation of 18 U.S.C. § 1951 (Count 2), aiding and abetting the possession of firearms in furtherance of a drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) (Counts 3 and 4), and being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) (Count 7).

Andrews filed a motion to dismiss the indictment on the grounds that outrageous government conduct violated his constitutional due process rights. He argued that he was recruited to participate in an “all-too-easy stash-house robbery” by undercover agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). The ATF agents had posed as “disgruntled drug couriers” for a Mexican drug-trafficking organization, presented a comprehensive plan to steal twelve kilograms of cocaine, and offered to help the defendants prepare for the robbery. DE 43, Page ID 182-84. They arrested Andrews and his co-conspirators when they arrived at the prearranged meeting point for the robbery. Id. at 185. Andrews claimed that the agents engineered and directed the criminal activity from start to finish and that he had “no independent role in planning the crime.” Id. at 186-87. He also argued that he was targeted only because a confidential informant (Cl) identified him as someone who “would buy the fantasy ATF was selling.” Id. at 188.

The district court denied the motion to dismiss. It credited an ATF agent’s testimony that one of the defendants first approached the Cl to find “drug dealers he could take down in a robbery” and that ATF had provided the defendants with multiple opportunities to withdraw. DE 64, Page ID 336-37. It applied the test for outrageous government conduct established in United States v. Barger, 931 F.2d 359 (6th Cir. 1991), finding that the first and second factors—the need for police conduct and who provided the impetus for the scheme—weighed against defendants when construing all of the evidence in a light most favorable to the prosecution. Considering the similar issue of entrapment, the court concluded that it was more properly raised as a defense at trial because “the undisputed evidence” did not “demonstrate a patently clear absence of predisposition,” as is required to establish entrapment as a matter of law. DE 64, Page ID 340. The court made clear that it was not deciding the strength of an entrapment defense, only that the conduct was not so extreme as to require pre-trial dismissal.

Andrews subsequently entered into a written plea agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). In exchange for his agreement to plead guilty to Counts 1 and 3, the government agreed to dismiss Counts 2, 4, and 7. Andrews and the government agreed to a sentence of 180 months’ imprisonment and that Andrews could withdraw his guilty plea if the district court refused to accept the agreement or impose the agreed-upon sentence.

When the district court reconvened for a change-of-plea hearing on April 22, 2015, Andrews indicated that he wished to change his plea from not guilty to guilty for Counts 1 and 3. The district court engaged Andrews in a colloquy to establish that he had read the plea agreement, that he understood it, that his attorney had explained the legal ramifications of pleading guilty, and that he was not under the influence of drugs or alcohol. The court also confirmed that Andrews understood both the specific implications of the charges against him and the rights he was giving up with his plea. The government reviewed the terms of the plea agreement and Andrews indicated that he was entering the agreement voluntarily, that he was satisfied with the work of his attorney, and that he agreed with the facts underlying the charges in the indictment. After Andrews pled guilty to Counts 1 and 3, the district court made the following statement:

Based upon my observations of Dominick in court today and the manner in which he has been answering questions I’ve been asking, it’s obvious that he is in full possession of his faculties, he’s not suffering from any apparent physical or mental illnesses, he’s clearly not under the influence of any narcotics or alcohol, and he does understand the proceedings in which we are engaged, and he understands the nature and the meaning of the ehargés set forth in Count One and the consequences as negotiated in the document he’s aware of, which culminated in the suggested sentence to the Court.
Therefore, I find that Dominick is fully competent and capable of entering an informed plea. The plea is a guilty plea, it’s knowing, it’s voluntary, and it’s supported by an independent basis in fact which contains each of the essential elements of the offenses charged in Count One and Count Three, all of which occurred in the Southern District of Ohio.
Normally at this time I would go ahead and accept the plea and make a finding-of guilty, but since it’s a recommended sentence, we have to refer the matter to the Probation Department for a PSI. When that comes back, we’ll come back in court and we’ll go ahead from there. Okay?

DE 88, Page ID 406-07. The district court did not say anything further with respect to Andrews’s plea. The minute entry from the April 22 hearing states: “Counsel present; Guilty Plea entered by Dominick Andrews (3) to Counts 1 and 3 of the Indictment; case to proceed with PSI.” DE 66. The criminal minutes indicate that Andrews pled guilty to Counts 1 and 3 and that his plea was “preliminarily” accepted. DE 66, Page ID 349.

In November 2015, Andrews filed a motion to withdraw his guilty plea. He sought to do so as a matter of absolute right pursuant to Rule 11(d)(1), arguing that the district court did not accept his plea at the April 22 hearing. The district court denied Andrews’s motion to withdraw. It recognized that Rule 11(d)(1) would allow Andrews to withdraw his guilty plea for any reason but held that it had accepted Andrews’s guilty plea at the April 22 hearing and deferred only on accepting the terms of his plea agreement pending the preparation of a pre-sentence investigation report (PSR). Accordingly, the district court applied the higher standard under Rule 11(d)(2) and found that Andrews had failed to show a fair and just reason for requesting the withdrawal.

At his sentencing hearing, Andrews renewed his motion to withdraw. The district court reiterated that Andrews had made a competent, informed, voluntary, and valid plea of guilty and proceeded to sentence Andrews under the terms of the plea agreement—120 months on Count 1 and 60 months on Count 3, to be served consecutively. This was a departure from the Guidelines range of 200 to 235 months. The court dismissed the remaining charges against Andrews and entered judgment. Andrews filed a timely notice of appeal.

II.

A defendant has an “absolute right to withdraw an unaccepted guilty plea.” United States v. Mendez-Santana, 645 F.3d 822, 827 (6th Cir. 2011); see Fed. R. Crim. P. 11(d)(1) (noting that a defendant may withdraw his guilty plea “for any reason or no reason” so long as he does so “before the court accepts the plea”). Between the time that a court accepts the plea and imposes a sentence, a defendant can withdraw only if “the court rejects a plea agreement under Rule 11(c)(5)” or “the defendant can show a fair and just reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2). Andrews does not purport to have a fair and just reason for withdrawal. He argues only that he had an absolute right to withdraw because his plea was never accepted by the district court. Thus, the outcome here turns on whether Andrews’s plea was accepted. This presents us with two questions. First, what must a district court do to indicate that it is accepting a defendant’s guilty plea? Second, under what standard do we review a district court’s determination as to whether it accepted a plea? We address each in turn, noting that both appear to be issues of first impression in our circuit.

A.

We review the denial of a Rule 11(d)(1) motion to withdraw an unaccepted guilty plea de novo but review the denial of a Rule 11(d)(2) motion to withdraw an accepted plea for an abuse of discretion. Mendez-Santana, 645 F.3d at 826-27. However, we have yet to establish the appropriate standard of review for the antecedent question that determines whether (d)(1) or (d)(2) applies: whether the guilty plea was accepted.

Four circuits have addressed this question. Three of the four explicitly or implicitly adopted de novo review. See United States v. Arafat, 789 F.3d 839, 844 (8th Cir. 2015) (purporting to “independently scrutinize the record” to determine whether the district court accepted a plea); United States v. Jones, 472 F.3d 905, 908-09 (D.C. Cir. 2007) (endorsing de novo review and finding that an abuse-of-discretion standard “makes little sense given that [the court is] reviewing the district court’s interpretation of its own words”); United States v. Cessa, 626 Fed.Appx. 464, 467 (5th Cir. 2015) (invoking a policy of de novo review for “any questions of law underlying the district court’s decision”). The Fourth Circuit, however, explicitly avoided this question, finding error under both de novo and abuse-of-discretion review. United States v. Battle, 499 F.3d 315, 320 (4th Cir. 2007).

Here, there is no factual dispute as to what occurred in the course of the proceedings before the district court. The only issue is whether the district court’s words and actions constitute its acceptance of Andrews’s guilty plea. We see this as a decision with legal consequence as it implicates the appropriate standard to apply under Rule 11(d) for the purposes of deciding a motion to withdraw. Additionally, as the D.C. Circuit recognized, a determination that the plea was not accepted eliminates any discretion on the part of the district court with respect to the motion to ' withdraw. Jones, 472 F.3d at 908; see also Fed. R. Crim. P. 11(d)(1); Mendez-Santana, 645 F.3d at 827 (finding that a district court lacks any discretion to deny a motion to withdraw an unaccepted plea). Accordingly, in line with the other circuits to consider this issue, we will treat the evaluation of whether a guilty plea was accepted as a question of law subject to de novo review. See, e.g., Jones, 472 F.3d at 908-09.

B.

Under Rule 11(b), the district court must take a series of steps before it can accept a guilty plea. It must advise the defendant of the consequences of his plea, ensure that the defendant understands theses consequences in open court, and ensure that the defendant is entering the plea voluntarily. Fed. R. Crim. P. 11(b). And before entering judgment, the court must determine that there is a factual basis for the plea. Id. Rule 11 also explicitly allows a district court to accept a guilty plea, but defer on deciding whether it will accept a plea agreement. Fed. R. Crim. P. 11 advisory committee’s note to 2002 amendments; see also United States v. Hyde, 520 U.S. 670, 117 S.Ct. 1630, 137 L.Ed.2d 935 (1997). But the Rules do not specifically state what a district court must do to accept a defendant’s guilty plea. See United States v. Davila-Ruiz, 790 F.3d 249, 252 (1st Cir. 2015); United States v. Battle, 499 F.3d 315, 321 (4th Cir. 2007); Cessa, 626 Fed.Appx. at 468; Arafat, 789 F.3d at 844; United States v. Byrum, 567 F.3d 1255, 1261 (10th Cir. 2009) (“Rule 11 does not specify how a district court must signal its acceptance of a guilty plea; rather it provides an outline of three broad prerequisites.”).

The circuits that have considered what is required to indicate acceptance of a guilty plea appear to agree that the decision to “provisionally” or “conditionally” accept a guilty plea pending the court’s review of the defendant’s PSR is enough to establish acceptance and trigger the “fair and just” standard for withdrawal under Rule 11(d)(2). Byrum, 567 F.3d at 1259-62; see also Battle, 499 F.3d at 320-22; Jones, 472 F.3d at 908.

There also appears to be a consensus that a proper Rule 11 colloquy creates the presumption that a guilty plea was accepted. Battle, 499 F.3d at 321-22; see also Byrum, 567 F.3d at 1260-61; Arafat, 789 F.3d at 844-45. But both the Seventh and Eighth Circuits have found that a guilty plea was not accepted despite a proper Rule 11 colloquy when the district court explicitly deferred acceptance of the plea. United States v. Tyerman, 641 F.3d 936, 938, 940-43 (8th Cir. 2011) (“I’m going to put off accepting your plea because I want the opportunity to review the presentence report.”); United States v. Head, 340 F.3d 628, 630-31 (8th Cir. 2003); United States v. Shaker, 279 F.3d 494, 495-98 (7th Cir. 2002) (“I am deferring my decision on acceptance or rejection of your guilty plea and your Plea Agreement until after I’ve had an opportunity to study the Presen-tence Report. If your plea of guilty and your Plea Agreement are then accepted, I will so advise you.”); see also Arafat, 789 F.3d at 845 (interpreting Tyerman and Head to allow withdrawal when “express language” indicated that it had not been accepted).

Much of the context surrounding Andrews’s change-of-plea hearing certainly indicates that the district court was on a path to, and may have intended to, accept his guilty plea. The district court conducted a Rule 11 colloquy and found that Andrews could make a voluntary, knowing, and intelligent plea. Andrews actually pled guilty to Counts 1 and 3 of the Indictment. And the minutes from the change-of-plea hearing indicate that the plea was preliminarily accepted. Without more, we might have concluded that the district court had accepted Andrews’s plea. See Byrum, 567 F.3d at 1259-62. However, we cannot ignore the following statement by the district court during Andrews’s change-of-plea hearing:

Normally at this time I would go ahead and accept the plea and make a finding of guilty, but since it’s a recommended sentence, we have to refer the matter to the Probation Department for a PSI. When that comes back, we’ll come back in court and we’ll go ahead from there. Okay?

DE 88, Page ID 407. We cannot read this statement in any way other than to set forth an additional step that must occur before the court would accept the plea. And nothing in the transcript indicates that the district court had preliminarily, provisionally, conditionally, or fully accepted the plea on the record at the April 22 hearing. In saying what it did, the district court explicitly deferred its acceptance of the plea. For this reason, we find that the court did not accept Andrews’s guilty plea at the April 22 hearing. See Tyerman, 641 F.3d at 940-43; Head, 340 F.3d at 630-31; Shaker, 279 F.3d at 495.

In reaching this conclusion, we decline to establish specific steps that a district court must take to accept a guilty plea. We also decline to hypothesize as to how our holding would change had the district court conditionally or preliminarily accepted the plea. Instead, we hold only that when a district court, while on the record, explicitly defers any acceptance of a plea until a later point in time, the plea has not been accepted for the purposes of Rule 11(d).

III.

Our determination that Andrews must be allowed to withdraw his guilty plea necessarily calls into question both the judgment against him and his sentence. This is problematic because the lack of a final judgment removes our appellate jurisdiction, at this point, to decide the motion to dismiss the indictment for outrageous government conduct. See Flanagan v. United States, 465 U.S. 259, 263, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984); see also 28 U.S.C. § 1291.

“As a general rule, a pretrial order denying a defendant’s motion to dismiss an indictment is not an appealable ‘final decision’ under [28 U.S.C. § 1291].” United States v. Bilsky, 664 F.2d 613, 615 (6th Cir. 1981). This is subject to a limited exception—the collateral order doctrine. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). We allow for the interlocutory appeal of a collateral order that (1) conclusively decides the disputed issue; (2) resolves an important issue that is separate and independent from the merits of the action; and (3) is effectively unreviewable on appeal from a final judgment. Bilsky, 664 F.2d at 616 (citing Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978)).

We apply this doctrine narrowly in the criminal context. We permit interlocutory appeal “in only two situations])] ... orders denying motions to dismiss on double jeopardy grounds ... [and] orders denying motions to reduce bail before trial.” United States v. Bratcher, 833 F.2d 69, 72 (6th Cir. 1987); see also United States v. Goff, 187 Fed.Appx. 486, 495 (6th Cir. 2006) (dismissing the appeal of an order denying a grand jury abuse motion); United States v. Sisk, 629 F.2d 1174, 1181 (6th Cir. 1980) (refusing interlocutory appeal on a motion to dismiss the indictment for failure to state an offense). And we have expressly refused to apply this exception to due-process claims. United States v. Burgess, 931 F.2d 893 (6th Cir. 1991) (table).

Andrews’s motion to dismiss will still be reviewable after subsequent proceedings in the district court and the question of whether the government induced Andrews and his co-conspirators is not separate and independent from the merits of the charges Andrews faces. Thus, we need not consider the motion to dismiss prior to a final judgment in district court.

IV.

On November 16, 2016, Andrews filed a motion to supplement his appellate brief and add, as an assignment of error, the claim that “crime of violence” as used in 18 U.S.C. § 924(c), is unconstitutionally vague in light of Johnson v. United States, — U.S.-, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Andrews, however, was not indicted for possessing a firearm during and in relation to a crime of violence. He was indicted for firearm possession in relation to a drug-trafficking crime. His plea agreement and judgment similarly reflect that the firearm possession charge involved a drug-trafficking crime, not a crime of violence. We need not decide anything on this issue given our decision to remand the case. Accordingly, we deny the motion to supplement briefing.

V.

For the foregoing reasons, we reverse the decision of the district court and remand this case with the instruction that Andrews be allowed to withdraw his guilty plea pursuant to Federal Rule of Criminal Procedure 11(d)(1) and for further proceedings consistent with this opinion.

      . The government asks us to put great weight on the criminal minutes, which indicate that the plea was preliminarily accepted. Although we recognize that the minutes provide some guidance as to what occurred, we see two problems in giving them controlling weight. First, there is no indication that the minutes were signed or otherwise adopted by the district court judge. Second, and more importantly, the minutes directly contradict the statement that the district court made on the record during the hearing.

      . We note that other courts have found such language acceptable for the purposes of Rule 11(d). See Byrum, 567 F.3d at 1259-62; Battle, 499 F.3d at 320-22; Jones, 472 F.3d at 908.

      . A district court's decision to defer acceptance should not be construed as improper. In fact, when a sentence in a plea agreement is binding, good reason exists to wait to see the PSR before deciding whether to accept the plea. This rule—that explicitly deferring acceptance of a plea cannot constitute acceptance of that plea—preserves flexibility for both local practice and case-specific situations in which a district court may wish to decline any acceptance of a plea prior to reviewing the PSR. In the interests of clarity to all parties, such a decision retains, for the defendant, the absolute right to withdraw his guilty plea until it is otherwise accepted by the court or until a sentence is imposed. And if the district court would like to limit a defendant’s ability to withdraw, it can always explicitly accept the plea at the time it is offered while deferring acceptance of the plea agreement.