Unreported / Non-Citable
Background
A jury found Omar Tijerina guilty of possession with intent to distribute cocaine and conspiracy to possess with intent to distribute cocaine. The district court calculated a drug quantity exceeding three kilograms of cocaine and sentenced Tijerina at the top of the resulting advisory guidelines range.
On appeal, Tijerina argued that the calculation improperly included two kilograms of cocaine that were unsupported by the record. Although Tijerina had not preserved the issue in the district court, the government agreed that the calculation was plainly erroneous.
The Court’s Holding
The Fifth Circuit independently reviewed the unpreserved claim under the plain-error standard, notwithstanding the government’s concession. Based on the parties’ arguments and the record as a whole, the court concluded that including the additional two kilograms was a clear and obvious error.
The court further held that the error affected Tijerina’s substantial rights and warranted correction. It vacated his sentence and remanded for resentencing.
Because that error required vacatur, the court declined to address Tijerina’s separate challenge to another component of the drug-quantity calculation.
Key Takeaways
- A sentencing court plainly errs when it attributes a drug quantity to a defendant without support in the record.
- An incorrect drug quantity that produces a higher guidelines range can affect a defendant’s substantial rights, including when the sentence falls at the top of that range.
- The Fifth Circuit vacated only Tijerina’s sentence and remanded for resentencing; the opinion did not disturb his convictions.
Why It Matters
The decision reinforces that guidelines calculations must rest on evidence in the record. Even when a defendant failed to object below, an unsupported drug quantity can justify resentencing if it clearly affected the applicable range and the defendant’s substantial rights.
The opinion also illustrates that the government’s agreement does not eliminate the appellate court’s obligation to conduct its own plain-error analysis.