United States Court of Appeals For the First Circuit

Nos. 22-1204 22-1205

UNITED STATES OF AMERICA,

Appellee,

v.

YAVIER MOJICA-RAMOS,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Montecalvo, Hamilton,* and Rikelman Circuit Judges.

Kevin E. Lerman, Research & Writing Attorney, with whom Héctor L. Ramos-Vega, Interim Federal Public Defender, Eric Alexander Vos, Federal Public Defender, and Franco L. Pérez-Redondo were on brief, for appellant. E. Giovannie Mercado, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Julia M. Meconiates, Assistant United States Attorney, were on brief, for appellee.

* Of the Seventh Circuit, sitting by designation. June 6, 2024 MONTECALVO, Circuit Judge. In July 2021,

defendant-appellant Yavier Mojica-Ramos ("Mojica") entered into a

plea agreement under which he promised to plead guilty to

unlawfully possessing two machineguns in violation of

(o) while he was serving a five-year term of federal

supervised release. For its part, the government agreed to

recommend a within-guidelines sentence for the § 922(o) charge.

Despite the parties' recommendations, the district court

ultimately imposed two upwardly variant sentences: (1) a

seventy-two-month sentence for Mojica's § 922(o) charge and (2) a

sixty-month statutory maximum revocation sentence to run

consecutively to Mojica's § 922(o) sentence.

For the reasons below, we find that the prosecutor's

sentencing advocacy did not conform to the most meticulous

standards of performance required by Mojica's entrance into the

plea agreement. To remedy the prosecutorial breach, we must vacate

Mojica's § 922(o) and revocation sentences, and we remand the

underlying cases for resentencing before a different judge.

- 3 - I. Background1

In May 2018, Mojica began a five-year term of supervised

release after serving a five-year sentence for possession of a

firearm in furtherance of drug trafficking, a felony under

(c)(1).

On October 23, 2020, undercover Puerto Rico Police

Bureau officers were monitoring for violations of a COVID-19

executive order that required wearing facemasks in public places.

The officers saw Mojica walk into a hair salon without donning a

facemask and called for backup. Multiple officers and a

firearm-sniffing dog arrived at the salon, and the dog positively

alerted to a shoulder bag that the officers saw Mojica carrying.

The officers searched the bag and discovered two Glock pistols

that had been modified to be machineguns, sixty-two rounds of

ammunition, a plastic bag containing marijuana, and a white oval

pill.

On July 28, 2021, Mojica signed a plea agreement under

which he promised to plead guilty to unlawful possession of the

two modified machineguns in violation of

(o). The

plea agreement required the parties to request a sentence within

1 Our recitation of facts is derived from the undisputed portions of the presentence report, the plea agreement, and the transcripts of the § 922(o) and revocation sentencing hearings. See United States v. Colón-Cordero,

(1st Cir. 2024).

- 4 - the guidelines range after Mojica's criminal history category

("CHC") was confirmed. The guidelines range for the § 922(o)

charge was later calculated without dispute as thirty-seven to

forty-six months based on Mojica's CHC category of III. One week

later, on August 5, 2021, Mojica pled guilty to the § 922(o)

charge.

A. The Government's Sentencing Memorandum

Before Mojica's sentencing for the § 922(o) charge, the

government filed its sentencing memorandum requesting an upper-end

guidelines sentence of forty-six months. Notably, the government

attached approximately 250 photos and a video extracted from

Mojica's cellphone as support for its sentencing request. The

photos depicted numerous firearms and large quantities of drugs,

and the video allegedly showed "an individual resembling [Mojica]

. . . recklessly brandishing an assault-style rifle by repeatedly

pointing the barrel at the individual who is recording the video."

The government summarized that these photos and the

video "are additional evidence that [Mojica] has an interest in,

and likely participates in, other criminal behavior beyond the

machinegun count charged." Relying on this "alarming content,"

the government called Mojica "an individual with a penchant for

high-capacity firearms, drugs, and criminal activity." Likewise,

it labeled Mojica as having an "affinity for high-capacity

firearms" and an "apparent infatuation with firearms." The

- 5 - government then urged the court to consider the cellphone content

as "additional information" on Mojica's criminal tendencies at

sentencing.

The government's sentencing memorandum also elaborated

on the dangerousness of machineguns and its belief that the images

from Mojica's phone "suggest" his "participat[ion] in other

criminal activity involving high-capacity, high-powered weapons of

war." The government specifically stated that "[t]he danger to

the community and the serious nature of the offense should be

considered exceptional in this case." Furthermore, the government

highlighted high rates of gun violence in Puerto Rico, the

purported deterrent effect of lengthy sentences for gun offenders,

and the "particularly strong" need to protect the public from

Mojica.

B. Mojica's Motion to Compel Specific Performance

In response to the government's sentencing memorandum,

Mojica filed a motion to compel specific performance of the plea

agreement. Mojica alleged that the government breached the plea

agreement by impliedly advocating for an upwardly variant sentence

through its sentencing memorandum, and he requested that the court

order specific performance and transfer the case to another judge

for sentencing. The government opposed the motion to compel,

arguing that it was required "to share with the [c]ourt information

relevant to the imposition of a sentence," and highlighted the

- 6 - need to "contextualize[] the offense to which [Mojica] recently

pleaded guilty."

After the motion to compel was fully briefed, the

district court issued an opinion and order denying Mojica's motion.

The court rejected Mojica's contention that the government had "no

. . . obligation" to provide the court with his cellphone content.

The court also agreed with the government that the photos and video

demonstrated Mojica's "affinity for the unlawful possession of

firearms and controlled substances," which "suggests a lack of

respect for the law and a threat to public safety." Furthermore,

the court concluded that the government had no duty to authenticate

the images before submitting them as part of its sentencing

memorandum. Lastly, the court did not find the government's

references to the case being "exceptional" to be violative of the

plea agreement.

Mojica filed a motion for reconsideration, which the

court denied on largely the same grounds. But unlike in its

initial order denying the motion to compel, the court's order on

reconsideration suggested its acceptance of the cellphone images

as bearing sufficient indicia of reliability. The court validated

the "inference" that Mojica saved the images on his phone, as

"[t]his evidence did not spontaneously appear on his device," and

concluded that he "does, indeed, have an affinity for firearms."

Moreover, because Mojica pled guilty to the machinegun possession

- 7 - charge, the court adopted the government's position that "it

logically follows that the nature of Mojica's affinity for firearms

is insidious."

C. The § 922(o) Sentencing Hearing

On February 28, 2022, the court held a sentencing hearing

for the § 922(o) charge. Mojica's counsel detailed the pertinent

mitigating factors and requested a thirty-seven-month sentence,

the bottom of the guidelines range.

After Mojica's counsel advocated for a

thirty-seven-month sentence, the government stated that it

"stand[s] by its recommendation made in the plea agreement," and

noted that it "is entitled to request a sentence at the upper end"

of the guidelines range. The government then formally requested

a top-of-guidelines sentence of forty-six months. Immediately

thereafter, the government discussed how Mojica's offense was

"part of a broader problem here in Puerto Rico where, frankly

speaking, armed violent crime is a disease." The government cited

statistics of exceptionally high murder rates in Puerto Rico, and

it specifically commented that Mojica's recidivism and "possession

of loaded machine guns" constituted "an even bigger part of the

problem" than the possession of firearms generally. The government

concluded its argument by reiterating its request for a

forty-six-month sentence.

- 8 - In issuing the sentence, the court rejected the parties'

recommendations for a guidelines sentence and imposed an upwardly

variant seventy-two-month sentence.2 Mojica's counsel objected to

the sentence as procedurally and substantively unreasonable. And

in particular, he incorporated by reference Mojica's prior

objection to prosecutorial breach raised in his motion to compel

specific performance.

D. The Revocation Sentencing

Immediately following the § 922(o) sentencing, the

district court held a supervised release revocation hearing and

issued Mojica's revocation sentence. The guidelines range for the

revocation sentence was calculated without dispute as twenty-four

2 As part of its sentencing explanation, the court described machineguns as "dangerous and unusual weapons." The court then invoked the Supreme Court's decision in Kimbrough v. United States,

(2007), and stated its disagreement "with the Sentencing Commission's low guideline range in machine gun cases" before asserting that the guidelines "do not take into account the amount of ammunition or high-capacity magazines possessed by a defendant" in a § 922(o) case. In addition, the court noted its consideration of "the serious and acute problem of gun violence in Puerto Rico," and statistics purportedly demonstrating that "firearms offenders recidivate at a higher rate and more quickly than non-firearms offenders." Along with summarizing Mojica's background and the offense conduct, the court referenced Mojica's prior offense (which also involved possession of firearms and ammunition), his "total disregard for the law," and lack of rehabilitation as warranting an upwardly variant seventy-two-month sentence. Because we focus on Mojica's prosecutorial breach claim as the primary basis for his challenge to the § 922(o) sentence, we do not address the propriety or sufficiency of the court's explanation for issuing its upwardly variant sentence.

- 9 - to thirty months. Mojica's counsel requested a twenty-four-month

sentence to run concurrently with the seventy-two-month § 922(o)

sentence. The government reiterated the dangerousness of

machineguns and Mojica's "callousness for the rules," requesting

a thirty-month consecutive revocation sentence.

The court revoked Mojica's supervised release and

reexplained the offense conduct. Before issuing the sixty-month

statutory maximum revocation sentence, the court cited "the

seriousness of the violations," Mojica's lack of "respect for the

law," Mojica's failure to "perform[] pro-social activities that

could have had a positive impact on his rehabilitation," and how

"the original sentence did not serve the objective of punishment

or deterrence" as the bases for imposing a significant upward

variance. Mojica's counsel objected to the sentence as

procedurally and substantively unreasonable, specifically

referencing that Mojica opposed the court's decision to upwardly

vary.

In total, the court sentenced Mojica to eleven years of

incarceration -- seventy-two months for the § 922(o) charge,

followed by a sixty-month consecutive revocation sentence. Mojica

then filed these timely appeals.

- 10 - II. Discussion

A. Mojica's Prosecutorial Breach Claim

"If a proper objection is brought before the district

court, breaches of plea agreements present questions of law for

plenary review." United States v. Gonczy,

(1st

Cir. 2004). Mojica has preserved his prosecutorial breach claim

by raising in-depth objections in his motion to compel specific

performance and reraising the objection after the § 922(o)

sentence was issued.3 We thus review his claim de novo.

3 The government agrees that Mojica has preserved his prosecutorial breach claim to challenge his § 922(o) sentence. But Mojica insists that the government's conduct in advocating for a high-end revocation sentence should also be considered as part of its breach of the plea agreement for the § 922(o) charge. The government correctly points out that the plea agreement did not make any mention of the revocation proceedings, and Mojica has not identified any cases suggesting that the government's statements related to the revocation sentence can be imputed as prosecutorial breach of the § 922(o) plea agreement. We therefore cabin our prosecutorial breach analysis to the government's sentencing advocacy for the § 922(o) charge. Relatedly, for the first time in his reply brief, Mojica argues that the plea agreement language bound the parties to advocate for the same within-guidelines sentence for the § 922(o) charge. "[A]rguments raised for the first time in an appellate reply brief [are] ordinarily deemed waived," United States v. Casey,

(1st Cir. 2016), unless the appellant raised the argument in a reply because it was the "earliest point when it was logical to do so," Holmes v. Spencer,

(1st Cir. 2012). Mojica had every opportunity and reason to raise this argument sooner; he also never objected below to the government's repeated representations that the plea agreement allowed it to seek a high-end guidelines sentence. We see no reason to excuse waiver here, and we will not evaluate whether the plea agreement required the parties to request the same § 922(o) sentence.

- 11 - "[W]hen a plea rests in any significant degree on a

promise or agreement of the prosecutor, so that it can be said to

be part of the inducement or consideration, such promise must be

fulfilled." Santobello v. New York,

(1971).

And because "[a] defendant who enters into a plea agreement waives

a panoply of constitutional rights[,] . . . we hold prosecutors to

'the most meticulous standards of both promise and performance.'"

United States v. Almonte-Nuñez,

(1st Cir. 2014)

(quoting United States v. Riggs,

(1st Cir.

2002)). "Such standards require more than lip service to, or

technical compliance with, the terms of a plea agreement."

Where a defendant alleges that a prosecutor breached a plea

agreement, "[w]e consider the totality of the circumstances in

determining whether a prosecutor engaged in impermissible

tactics." Id. at 91.

At the outset, the government heavily relies on its

technical compliance with the plea agreement as assurance that it

did not breach the agreement. To be sure, the government

irrefutably abided by its obligation to ask for a sentence "within

the applicable Guidelines range" and never explicitly requested an

above-guidelines sentence.

Beyond recognizing that the government technically

complied with the agreement by recommending a within-guidelines

sentence, however, we cannot validate the government's "overall

- 12 - conduct" as "reasonably consistent with making such a

recommendation, rather than the reverse." United States v. Canada,

(1st Cir. 1992). Here, the government presented

the court with approximately 250 photos of firearms and drugs and

an unanalyzed video of an individual "resembling" Mojica to offer

"additional evidence" of his "likely" participation in "other

criminal behavior beyond the machinegun count charged." And even

more problematically, the government told the court that the

offense and Mojica's dangerousness "should be considered

exceptional."

To defend its submission of the cellphone content and

its characterization of Mojica's conduct, the government points to

its obligation to provide "relevant facts" for the court's

sentencing considerations. We have acknowledged the difficulty in

"reconcil[ing] competing centrifugal and centripetal forces: the

prosecution's solemn duty to uphold forthrightly its end of any

bargain that it makes in a plea agreement, and its equally solemn

duty to disclose information material to the court's sentencing

determinations." United States v. Saxena,

(1st Cir.

2000) (citations omitted). In that vein, we have consistently

safeguarded the prosecutor's right and obligation to "accurately

answer[] a judge's query by citing objective facts responsive to

the question, or rebut[] factual assertions made by defense

counsel." United States v. Miranda-Martinez,

, 275

- 13 - (1st Cir. 2015). Similarly, where the government becomes aware of

information that has "an easily discernible relationship to the

offense conduct," it must disclose those facts to the sentencing

court. Saxena,

; see also United States v.

Ubiles-Rosario,

(1st Cir. 2017).

But a prosecutor is not free to present this information

to the court in ways that subvert the plea agreement's "limits

[on] the purpose of [their] remarks." Miranda-Martinez,

. For example, "when a prosecutor . . . gratuitously offers

added detail garbed in implicit advocacy, a court might well find

that the prosecutor is actually seeking a result in a manner that

breaches the agreement."

A prosecutor also may not discharge

their plea obligations in an "impermissibly equivocal, apologetic,

or begrudging" manner. United States v. Davis,

(1st Cir. 2019). Put differently, a prosecutor may not use their

duty of candor "as an instrument for thwarting" their plea

agreement obligations. Saxena,

.

Even if we accept the government's contention that its

duty of candor compelled it to disclose the photos and video, it

made several serious and unacceptable missteps in presenting this

information to the court. First, the government's

characterization of the offense and Mojica's dangerousness as

"exceptional" violated the plea agreement's mandate that it

request a within-guidelines sentence. The government did not

- 14 - address its description of the case as "exceptional" in its

briefing before this court. But when asked about this conspicuous

omission at oral argument, the government responded that depicting

the conduct as "remarkable" or "really bad" by using the word

"exceptional" should not be read as implicitly recommending an

upward variance. Instead, the government insisted that calling

Mojica's conduct "exceptional" was appropriate given the

government's request for a high-end guidelines sentence.

We disagree. As the government is well aware, courts

may issue upwardly variant sentences where "the case at hand falls

outside the 'heartland' to which the Commission intends individual

Guidelines to apply." Rita v. United States,

(2007). Where the offense involves "idiosyncratic facts," United

States v. Bruno-Campos,

(1st Cir. 2020), or

"especially heinous" conduct, United States v. Rivera-Morales,

(1st Cir. 2020), a court may impose an upward variance

to account for the fact that the guidelines' "heartland" merely

contemplates a typical or "mine-run" case, see United States v.

Del Valle-Rodríguez,

(1st Cir. 2014). Calling

the offense "exceptional" -- especially in a sentencing memo that

repeatedly underscored Mojica's "penchant" for crime and

"infatuation with firearms" -- implied that the government saw

Mojica's case as falling outside the guidelines' heartland.

Similarly, during the sentencing hearing, the government referred

- 15 - to Mojica's conduct as "a big part of the problem" of violent crime

in Puerto Rico.

Although the government was permitted to explain its

rationale for a high-end guidelines sentence, see United States v.

Irizarry-Rosario,

(1st Cir. 2018), here, the

government went beyond presenting pertinent information in an

objective manner to gratuitously framing Mojica's case as

exceptional or extraordinary. Nor was this information presented

in response to Mojica's sentencing advocacy or the court's

questioning. The government thus impermissibly signaled to the

court that Mojica should be subject to greater punishment than it

had promised in agreeing to recommend a within-guidelines

sentence. See Canada,

(finding breach where "the

government's efforts seemed directed at encouraging a higher

sentence than the one to which it had agreed"); United States v.

Clark,

(1st Cir. 1995) (finding breach where the

government "suggest[ed] that it thought no [sentencing] adjustment

was appropriate" when the plea agreement prohibited it from

opposing the adjustment); United States v. Cortés-López,

(1st Cir. 2024) (finding breach where the

government's "unsolicited statement" indicating that "the plea

agreement included an inaccurate guidelines calculation" was

"tantamount to a repudiation of the agreement").

- 16 - Second, and relatedly, the government was not "merely

drawing facts and law to the court's attention," Clark,

, when it encouraged the court to consider the photos and video

as "additional evidence" of Mojica's "likely" participation in

other unproven criminal conduct. We have repeatedly explained

that "a sentencing court may not rely upon a defendant's prior

arrests or unproven charges in fixing a sentence, unless there is

proof by a preponderance of the evidence that the defendant engaged

in the underlying conduct alleged." United States v. Rivera-Ruiz,

, 181–82 (1st Cir. 2022) (collecting cases).

But if proven by a preponderance of the evidence,

uncharged criminal conduct can be "offered to demonstrate [the

defendant's] under-represented criminal history score . . . or his

history and characteristics, under § 3553(a)," allowing the

sentencing court to "'infer unlawful behavior' from such conduct

to be factored into sentencing." Id. at 182 n.6 (quoting United

States v. Colón-Maldonado,

(1st Cir. 2020)). In

other words, when sufficient proof exists, a sentencing court may

upwardly vary from the guidelines by relying on uncharged conduct.

See, e.g., United States v. Gallardo-Ortiz,

(1st

Cir. 2012); United States v. Rodríguez-Reyes,

(1st Cir. 2019).

The government's duty of candor does not allow it to

goad the court into relying on uncharged conduct without providing

- 17 - any corroborating evidence that Mojica was involved in the alleged

firearm and drug crimes depicted in the cellphone content. Aside

from stating that the images were extracted from Mojica's phone,

the government did not attempt to demonstrate by a preponderance

of evidence that Mojica was involved in the purported crimes. And

none of the images definitively portrayed Mojica as a perpetrator.

In fact, the government concedes that it did "not submit[] evidence

to support" finding that "any [of the] substances depicted in the

photos" were actually illegal drugs, "any guns were used in

connection with drug trafficking or any other crimes," or that

Mojica "physically possessed" any of the pictured drugs or guns.

In addition, during oral argument, the panel pressed the

government on its failure to professionally analyze the cellphone

video to identify Mojica, and the government made no effort to

refute this concern. Rather, the government maintained that it

was proper to suggest to the court that Mojica was depicted in the

video after "multiple people" viewed the video and agreed the

person holding the gun resembled him.4

4 For purposes of assessing prosecutorial breach, we also reject the government's contention that, because the district court did not explicitly indicate its reliance on the cellphone content at sentencing, Mojica's concern over the reliability of the photos and videos is a "red herring." In reviewing a preserved prosecutorial breach claim, "[w]hether or not the sentencing judge was actually influenced by the Assistant United States Attorney's actions is not a material consideration." Canada,

.

- 18 - Therefore, in full context of its sentencing advocacy,

the government's insistence that the court consider unproven

conduct -- seemingly under the guise of identifying public safety

and deterrence issues -- further signaled to the court that the

prosecutor did not genuinely believe the recommended guidelines

sentence was appropriate. Indeed, in so doing, the government

suggested a basis for the court to upwardly vary while neglecting

our sentencing caselaw's limitations on considering uncharged

conduct.

We recognize that the government was undoubtedly

authorized to explain its rationale for a high-end guidelines

sentence without "sugarcoat[ing] the facts." Almonte-Nuñez,

. But despite telling the court that it was requesting

a within-guidelines sentence, under the totality of circumstances

here, "the substance of the prosecutor's argument . . . can only

be understood to have emphasized [Mojica's] wrongdoing . . . ,

advocating for the imposition of a higher sentence than [an]

agreed-upon [guidelines] term." Gonczy,

. By

effectively "urging the court to impose a lengthy sentence within

a context suggesting that [they] had in mind something greater

than" the within-guidelines sentence the parties agreed upon,

Canada,

, the prosecutor wrongfully undermined the

plea agreement. Accordingly, we vacate Mojica's § 922(o) sentence

based on the government's plea agreement breach.

- 19 - B. Remedy for Prosecutorial Breach

Having concluded that the prosecutor breached the plea

agreement, we must consider the appropriate remedy. In addition

to vacating his § 922(o) sentence, Mojica also asks us to vacate

his revocation sentence. He further requests that we order the

district court to reduce both sentences to the low end of the

respective guidelines ranges and mandate that the sentences run

concurrently.

We begin with whether to vacate Mojica's revocation

sentence based on the government's breach. Here, the revocation

proceedings began immediately after the § 922(o) sentencing

concluded. Mojica contends that but for the government's breach

of the § 922(o) plea agreement, the district court would not have

been predisposed to believe "that [Mojica] was somehow linked to

violent crime and drug trafficking" when it commenced the

revocation proceedings. And indeed, after Mojica's counsel

reraised his objection to the reliability of the cellphone data at

the start of the revocation sentencing, the government continued

to insist on the propriety of submitting the cellphone content.

In particular, the government informed the court that it had timely

produced the extraction metadata to Mojica's counsel and the video

purporting to show Mojica brandishing the gun was taken

approximately one month before Mojica was arrested for the § 922(o)

charge.

- 20 - The government is correct that it did not agree to

recommend any particular sentence at the revocation sentencing.

We also recognize that the revocation sentencing constituted a

separate proceeding implicating different punitive concerns than

Mojica's § 922(o) sentence. But at bottom, we "really cannot

calculate how the government's error and breach may have affected

the perceptions of the sentencing judge." United States v.

Alcala-Sanchez,

(9th Cir. 2012). Here, the same

sentencing judge imposed a statutory-maximum revocation sentence

on the heels of the § 922(o) sentencing. Though we do not

"question the fairness of the sentencing judge," as "the fault

here rests on the prosecutor," we must craft a remedy that properly

corrects the government's error. Santobello,

.

Given our broad discretion to shape remedies for prosecutorial

breach, Clark,

, we thus vacate Mojica's revocation

sentence.

Although we have vacated and remanded a sentence "with

instructions to impose a specific sentence in order to achieve

specific performance of [a plea] agreement," we have cautioned

that such a "remedy is extraordinary, however, depriving the trial

court of its discretion in sentencing." United States v.

Kurkculer,

(1st Cir. 1990). Mojica's preferred

remedy does not bind us. See Canada,

("The choice

of remedy rests with the court and not the defendant."). We

- 21 - decline to remand with orders to impose particular sentences, but

rather, "in accordance with our normal practice" upon finding

prosecutorial breach, we remand the § 922(o) and revocation

sentences for resentencing before a different judge. United States

v. Mercedes-Amparo,

(1st Cir. 1992); accord Clark,

; United States v. Velez Carrero,

(1st

Cir. 1996); Canada,

.

III. Conclusion

For the foregoing reasons, we vacate Mojica's § 922(o)

sentence and revocation sentence. We remand his cases for

resentencing in both matters before a different judge.5

5 At oral argument and in a Rule 28(j) letter, Mojica's counsel identified that the guidelines were recently amended, and such changes took effect on November 1, 2023. Mojica's counsel suggests that based on Amendment 821 (which the Commission has designated as applying retroactively starting on February 1, 2024, see U.S. Sent'g Guidelines Manual § 1B1.10(a), (d) (U.S. Sent'g Comm'n 2023)), Mojica's CHC should be lowered; and correspondingly, the guidelines range for the § 922(o) charge should be reduced to thirty-three to forty-one months. We do not purport to recalculate Mojica's CHC or guidelines range on appeal, but we respectfully advise the district court tasked with resentencing to consider the effect of any pertinent retroactive amendments on Mojica's guidelines ranges.

- 22 -