United States v. Sevilla-Oyola

We grant the petition for panel rehearing, withdraw our previous opinion in this matter, see 753 F.3d 309 (1st Cir.2014), and substitute the opinion that follows.

The district judge twice conducted plea colloquies and thrice imposed sentences for Carlos Sevilla-Oyola (“Sevilla”), each one shorter than the last. Still dissatisfied, Sevilla asks us for another bite at the *4sentencing apple before a different district judge. To support his claim before this court, Sevilla says the judge lacked authority for actions taken after entry of the first sentence, and flaws in the initial plea colloquy warrant vacation of the first judgment. Alternatively, he says that even if the judge’s later actions were authorized, they were plagued by additional errors.

Standing alone, these imperfections are not enough to justify setting aside the first sentence. But given the peculiar circumstances of this case — particularly the developments at and after oral argument— we ultimately do vacate and remand to the same judge for resentencing. Our reasoning follows. First, some background.

BACKGROUND

On July 14, 2010, Sevilla and 108 codefendants were indicted as part of a vast drug ring operating in and around several public housing projects in Bayamón, Puerto Rico. The indictment charged Sevilla with (1) conspiring to possess narcotics with intent to distribute, in violation of 21 U.S.C. §§ 841(a), 860 (“Count One”), and (2) aiding and abetting his coconspirators in the use and carriage of firearms in relation to a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (“Count Two”). It singled out Sevilla as a leader, manager, and enforcer for the drug-trafficking organization.

A. The First Guilty Plea

On August 9, 2011, Sevilla entered into an agreement with the government, pleading guilty to both counts of the indictment. The parties stipulated that Sevilla was accountable for conspiring to possess at least 2 but less than 3.5 kilograms of cocaine. This amount pegged Sevilla’s base offense level at 28 under the U.S. Sentencing Guidelines (the “Guidelines”). See U.S.S.G. § 2D1.1. The parties further agreed that Sevilla would be subject to a two-level protected-location increase, see id. § 2D1.2(a)(l); a two-level leadership enhancement, see id. § 3Bl.l(e); and a three-level acceptance-of-responsibility reduction, see id. § 3E1.1, resulting in a total offense level of 29. The parties did not come together on Sevilla’s criminal-history category, but they agreed to forgo seeking further adjustments or departures.

In the agreement, Sevilla acknowledged that the district judge retained his sentencing discretion and was not bound by the parties’ accord. Sevilla also waived his right to appeal if the judge “accepted] [the] agreement and sentenced] [him] according to its terms, conditions, and recommendations.”

At the change-of-plea hearing that same day, the district judge advised Sevilla' of the statutory penalties for the charged offenses based on the stipulated drug quantity: (1) a mandatory minimum term of five years and a maximum term of eighty years of imprisonment as to Count One, see 21 U.S.C. §§ 841(b)(l)(ii), 860; and (2) a consecutive minimum term of five years of imprisonment as to Count Two, see 18 U.S.C. § 924(c)(l)(A)(i).1

The judge failed to inform Sevilla that Count Two carried the possibility of a life sentence. See United States v. Ortiz-Garcia, 665 F.3d 279, 282 n. 2, 285 (1st Cir. 2011) (explaining that the maximum penalty for an offense under 18 ■ U.S.C. *5§ 924(c)(1)(A) is life imprisonment and is derived from case law).2 However, he did draw Sevilla’s attention to the penalties mentioned in the plea agreement, which correctly stated that the maximum penalty for Count Two was life imprisonment, and Sevilla said he understood. The judge also neglected to tell Sevilla that he did not qualify for probation, a suspended sentence, or parole.3

B. Pitufo Enters the Scene

The U.S. Probation Office filed Sevilla’s pre-sentence investigation report on November 18, 2011. It applied a four-level leadership enhancement, rather than the two levels agreed upon by the parties, bumping Sevilla’s total offense level up to 31. Based on Sevilla’s five prior convictions — including two violent felonies — it also labeled Sevilla a career offender and set his criminal-history category at VI.4

Shortly thereafter, Sevilla filed objections to the presentence report as well as a memorandum disputing the augmented leadership enhancement and his designation as a career offender. The Probation Office followed up with an addendum standing by its recommendations.

Then, on January 13, 2012, the Probation Office dropped a bombshell on the proceedings. In a second addendum to the presentence report, the Office alleged for the first time that Sevilla had murdered José Manuel Torres-Morales, a.k.a. “Pitufo” (or, in English, “Smurf’), in front of the federal courthouse in Hato Rey, Puerto Rico, on November 9, 2007. Pitufo was a fellow drug-ring member who was then under federal supervision. The’brazen murder of a federal supervisee outside the courthouse rocked the Puerto Rican legal community to its core.

No one has ever been charged with this notorious murder. The Probation Office learned of Sevilla’s alleged involvement from a cooperating witness, Carlos Manuel Burgos Rodriguez (“Burgos”), also a fellow. drug-ring member, who claimed that *6Sevilla admitted to killing Pitufo.5 After reading the allegations in the second addendum, the district judge ordered the government to produce Burgos at Sevilla’s sentencing hearing. Sevilla did not object to this order, did not argue the judge could not consider the Pitufo information, and did not ask for a continuation of the hearing.

C. The First Sentencing Hearing

Sevilla’s first sentencing hearing took place on January 25, 2012. Burgos took the stand to testify about Sevilla’s alleged role in the Pitufo murder. He was questioned by the government and cross-examined by defense counsel. Notably, defense counsel did not argue that Burgos’s testimony was impermissible and instead objected only on the basis that she needed more time to prepare. The district judge denied the objection because the second addendum to the pre-sentence report, filed twelve days prior, provided sufficient notice, and because counsel had not sought a continuance before the hearing. Sevilla subsequently testified on his own behalf, disclaiming any involvement in the Pitufo murder and challenging the trustworthiness of Burgos’s testimony.

At the hearing’s conclusion, the judge made several findings. First, considering Sevilla’s serious criminal past (especially his prior violent felony convictions), the judge confirmed Sevilla’s designation as a career offender who belonged in criminal-history category VI.6 Then, considering Burgos’s testimony about Sevilla’s alleged role in the Pitufo murder, as well as Sevilla’s testimony denying any involvement, the judge found that the career-offender and criminal-history-category-VI labels underrated the seriousness of Sevilla’s criminal past.7 Accordingly, the judge departed upward to offense level 38, which is accompanied by a Guidelines sentence range of 360 months to life. Given the depraved nature and devastating impact of Sevilla’s offenses, the judge determined that the highest available sentence was appropriate. Consequently, he sentenced Sevilla to life imprisonment.

The following day, the judge issued an order apportioning Sevilla’s sentence into 327 months on Count One and life impris*7onment on Count Two, to run consecutively.8 Judgment entered against Sevilla on January 26.

D. Subsequent Proceedings

A few days later, on February 1, 2012, Sevilla moved to set aside the judgment and to correct, reduce, and reconsider his sentence, citing Federal Rule of Criminal Procedure 35(a) (“Rule 35(a)”).9 Sevilla said the district judge had erred at the sentencing hearing by considering the Pitufo murder where (1) that crime had not been included in the indictment, and (2) according to Sevilla, defense counsel had not been given adequate time to prepare to refute the allegations before the hearing.

Soon after filing, Sevilla’s lawyer fell ill and had to undergo emergency surgery. As a result, the district judge could not hold a hearing on Sevilla’s motion before Rule 35(a)’s strict fourteen-day deadline expired.

However, on February 8, one day before the fourteen-day buzzer sounded, the district judge sua sponte issued an order purporting to correct Sevilla’s sentence under Rule 35(a) on different grounds. The order sought to rectify two alleged sentencing mistakes. First, the judge said he had intended to sentence Sevilla to 960 months on Count One, followed by life imprisonment on Count Two, but he had érroneously entered only 327 months on Count One. Second, the judge pointed out that the sentence imposed on Count Two was defective under Federal Rule of Criminal Procedure 11 (“Rule 11”) because he had not informed Sevilla during the plea colloquy that Count Two carried a maximum penalty of life imprisonment. To correct these errors, the judge upped Sevilla’s sentence to 960 months on Count One and reduced it to 60 months on Count Two, to run consecutively for a total of 1020 months (85 years). Amended judgment entered on February 8, 2012.

In the same order, the judge scheduled a hearing a few days later to consider Sevilla’s unresolved Rule 35(a) motion from Fébruary 1. That hearing was subsequently postponed to February 22 at defense counsel’s request.

On February 22, the day of the hearing, Sevilla filed a second motion requesting (1) recusal of the district judge due to bias and personal knowledge; (2) a Santobello hearing to determine whether the govern*8ment had breached the plea agreement;10 and (3) vacation of the February 8 judgment because Rule 11 errors at the change-of-plea hearing could not be corrected in a Rulé 35(a) order. The motion also highlighted a litany of supposed Rule 11 violations in the plea colloquy beyond the judge’s admitted failure to advise Sevilla of Count Two’s maximum penalty.11 Chief among them was that the judge had neglected to inform Sevilla that parole had been abolished from the federal penal system. Sevilla maintained that these additional alleged errors could “only be corrected by an appeal and remand, or by allowing [Sevilla] to withdraw his plea,” and not by the district judge issuing an order under Rule 35(a).12

At the hearing that day, the district judge considered both Sevilla’s February 1 and February 22 motions.13 Afterwards, the judge issued another order under Rule 35(a) — this time purporting to set aside both the original guilty plea and the February 8 amended sentence to remedy his failure at the colloquy to inform Sevilla about the maximum penalty on Count Two and the impossibility of parole.14 The *9judge noted, however, that the plea agreement still stood, and said he would schedule a new change-of-plea hearing after he issued a separate written ruling denying Sevilla’s recusal and Santobello requests.

Later that day, Sevilla filed a notice of appeal from both the amended judgment of February 8 and the February 22 order intended to set aside that judgment.

On February 28, while that appeal was pending, the district judge issued the promised written order denying Sevilla’s recusal and Santobello requests. The judge then scheduled a supplemental plea colloquy and resentencing hearing for March 8. He further announced he would not consider the Pitufo murder at the re-sentencing hearing, as Sevilla had requested in his February 1 motion. To explain his decision, the judge cited such factors as the timing and seriousness of the accusation, the fact that Sevilla had never been charged with that crime, and the judge’s own concerns for justice, fairness, and due process.

On March 3, Sevilla moved to vacate the judge’s order scheduling the supplemental plea colloquy and resentencing hearing, arguing that the judge had no authority to' conduct the colloquy or to further modify his sentence because Rule 35(a) was not an appropriate vehicle for correcting Rule 11 errors.

Thereafter, on March 5, we issued an order deferring our consideration of Sevilla’s appeal until after the newly scheduled plea and resentencing proceedings, so that any subsequent appeal could be consolidated with the pending appeal.

On March 6, the district judge denied Sevilla’s motion to vacate his order scheduling the supplemental plea and resentencing hearings.15 Then, on March 8, over Sevilla’s objection that a full colloquy was required, the district judge conducted a truncated supplemental plea colloquy to ensure Sevilla understood that the maximum possible penalty for Count Two, specifically, was life imprisonment, and that he was ineligible for parole, probation, or a suspended sentence. Although defense counsel requested an entirely new colloquy, the judge did not conduct one because he thought there was “no point in repeating” what had already been said. Instead, the judge advised Sevilla of the information missing from the initial colloquy and asked if Sevilla wanted to abide by the plea agreement. Sevilla said yes.16

Four days later, on March 12, the judge held Sevilla’s resentencing hearing. Even without considering the Pitufo murder, given Sevilla’s extensive criminal history, the judge again applied the career-offender guideline and varied upward. The judge sentenced Sevilla to 345 months on Count One and 60 months on Count Two, to run consecutively for a total of 405 months (33 years and 9 months). Judgment entered on March 13, 2012.

On March 27, Sevilla filed an amended notice of appeal, challenging (1) all three *10judgments (January 26, February 8, and March 13); (2) the February 22 order purporting to vacate the February 8 judgment; and (3) the February 28 order denying his recusal and Santobello requests.

DISCUSSION

Sevilla raises a panoply of issues on appeal. He claims that (1) the district judge lacked authority to issue the February 8 amended judgment, as well as authority to take all subsequent actions; (2) both the initial and supplemental plea proceedings were defective; (3) the final sentence was unreasonable; and (4) the judge erred in rejecting his recusal and Santobello requests. The government counters that the appeal waiver in the plea agreement bars this challenge. But we bypass this issue because Sevilla’s claims, if successful, could invalidate both the plea itself and the waiver of his right to appeal.17 And so we forge ahead with the merits of Sevilla’s appeal.

A. The District Judge’s Authority 1. Rule 35(a)

Sevilla first argues that Rule 35(a) did not empower the district judge to issue the February 8 judgment, which modified the original January 26 judgment by boosting Sevilla’s sentence from 327 months to 960 months on Count One and cutting his sentence from life imprisonment to 60 months on Count Two. Consequently, Sevilla says, the February 8 judgment (and all of the judge’s subsequent actions) was null and-void.

On appeal, the government concedes that Rule 35(a) did not authorize the district judge’s actions on February 8. No matter, the government says — the judge derived his power to take subsequent action from 28 U.S.C. § 2255, a habeas corpus provision.18 But before we tackle the government’s fallback habeas position, we explain why we agree that Rule 35(a) did not empower the judge to act on February 8.

We review issues of law, including the district judge’s interpretation of a Federal Rule of Criminal Procedure, de novo. United States v. Leja, 448 F.3d 86, 92 (1st Cir.2006) (citing United States v. Encamación, 239 F.3d 395, 397 (1st Cir.2001)).

Rule 35(a) empowers a district judge to “correct a sentence that resulted from arithmetical, technical, or other clear error” within fourteen days after sentencing. Fed.R.Crim.P. 35(a). The function of Rule 35(a) is narrowly circumscribed: It “permit[s] correction ... of an illegal sentence,” Hill v. United States, 368 U.S. 424, 430, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962). For Rule 35(a) purposes, a sentence is illegal if “[t]he punishment meted *11out was ... in excess of that prescribed by relevant statutes, multiple terms were ... imposed for the same offense, ... [or] the terms of the sentence itself [were] legally or constitutionally invalid in any respect.” Id. Rule 35(a) does not, on the other hand, enable a judge to fix errors committed at trial or during proceedings prior to the imposition of sentence. Id. As such, Rule 35(a) does not provide a means to revisit possible errors in the plea colloquy. See United States v. Vinyard, 539 F.3d 589, 594 (7th Cir.2008) (finding Rule 35(a) was not an appropriate vehicle for addressing possible Rule 11(b)(1)(H) violation in plea colloquy).

When vacating the January 26 sentence and imposing an amended sentence on February 8, the district judge invoked Rule 35(a) to correct two purported errors: (1) the judge’s self-professed mistaken entry of a sentence of 327 months, rather than 960 months, on Count One; and (2) the judge’s failure to inform Sevilla during the plea colloquy that Count Two carried a maximum penalty of life imprisonment. Because neither of these alleged infirmities resulted in an illegal sentence, Rule 35(a) by its terms does not provide a cure for either.

First, the 327-month sentence that the judge says he entered mistakenly on Count One was not “illegal” in the sights of Rule 35(a). It was not in excess of statutory limits. See 21 U.S.C. §§ 841(b)(1)(h), 860 (setting the maximum penalty at eighty years, or 960 months). It did not impose multiple terms for the same offense. See Hill, 368 U.S. at 430, 82 S.Ct. 468. And no one has argued it was otherwise legally or constitutionally invalid. See id.

Second, the Rule 11 defect diagnosed by the judge in the plea colloquy — namely, the judge’s failure to tell Sevilla that Count Two was punishable by life imprisonment — occurred before sentencing and, thus, is not a sentencing error. It is therefore decidedly outside the bounds of the type of glitch that Rule 35(a) is designed to mend. See id.; Vinyard, 539 F.3d at 594.

Accordingly, like the parties, we conclude that the district judge could not rely on Rule 35(a) for authority to issue the February 8 judgment aiming to remedy mistakes he spotted in the January 26 judgment.

2. Section 2255

The question, then, is whether 28 U.S.C. § 2255 gave the judge power to act on or after February 8.19

Before us, the government argues for the first time that Sevilla’s February 22 motion — requesting recusal, a Santobello hearing, and vacation of the February 8 judgment for lack of authority, as well as alleging a string of Rule 11 errors in the plea colloquy — authorized the judge’s actions on or after February 8 because the motion functioned as a collateral attack on Sevilla’s conviction and sentence under § 2255. Sevilla did not caption the motion under any particular rule or statute, but simply dubbed it an “omnibus motion regarding sentencing.” And the district judge clearly viewed it as another Rule *1235(a) motion.20 Nonetheless, because “a motion’s character depends upon its substance, not its appellation,” United States v. Ortiz, 741 F.3d 288, 291 [1st Cir.2014), the government says we can and should treat the February 22 motion as a § 2255 challenge based on its content, even though it does not wear a § 2255 label.

We begin with a brief § 2255 primer. Section 2255 appears in the chapter devoted to habeas corpus and gives a federal prisoner a means to collaterally attack his sentence. 28 U.S.C. § 2255(a). Specifically, it permits a prisoner to move the court that imposed his sentence “to vacate, set aside, or correct the sentence” because (1) “the sentence was imposed in violation of the Constituti.on or laws of the United States,” (2) “the court was without jurisdiction to impose such sentence,” (3) “the sentence was in excess of the maximum authorized by law,” or (4) the sentence “is otherwise subject to collateral attack.” Id.

Notwithstanding this broad language, a § 2255 motion alleging a violation of federal law is generally cognizable only if it involves “a fundamental defect [that] inherently results in a complete miscarriage of justice, [or] an omission inconsistent with the rudimentary demands of fair procedure.” Hill, 368 U.S. at 428, 82 S.Ct. 468; see also United States v. Vonn, 535 U.S. 55, 63-64, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002) (quoting United States v. Timmreck, 441 U.S. 780, 784, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979)). By this standard, § 2255 relief is not available to remedy “a failure to comply with the formal requirements of a rule of criminal procedure,” absent any evidence of prejudice or other injury to the defendant. See Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974) (internal quotation marks and citation omitted). In particular, a defendant will ‘“rarely,-if ever, be able to obtain relief for Rule 11 violations under § 2255,’ ” United States v. Borrero-Acevedo, 533 F.3d 11, 17 (1st Cir. 2008) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83 n. 9, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004)), because such errors seldom result in the type of “complete miscarriage of justice” or proceeding “inconsistent with the rudimentary demands of fair procedure” that deserves redress under the statute, see Timmreck, 441 U.S. at 784, 99 S.Ct. 2085 (finding the court’s failure to inform defendant of special parole term, in violation of Rule 11, was not a fundamental defect).

Moreover, a defendant usually gets only “one complete round of collateral review” under § 2255. Melton v. United States, 359 F.3d 855, 857 (7th Cir.2004); see Munoz v. United States, 33UF.3d 151, 153 (1st Cir.2003) (per curiam). Second or successive § 2255 motions are severely limited and require certification by the appropriate court of appeals. 28 U.S.C. § 2255(h); see Castro v. United States, 540 U.S. 375, 377, 382, 124 S.Ct. 786, 157 L.Ed.2d 778 (2003); Munoz, 331 F.3d at 153. Accordingly, though we may choose to recharacterize a motion styled otherwise as falling under § 2255 based on its content, Trenkler v. United States, 536 F.3d 85, 97 (1st Cir.2008) (compiling eases), we must be mindful that doing so may deprive a defendant of his chance to bring a second, possibly stronger claim under that statute, see Castro, 540 U.S. at 377, 382, 124 S.Ct. 786; id. at 387, 124 S.Ct. 786 (Scalia, J., concurring).21

*13Against this backdrop, we choose not to recast Sevilla’s February 22 motion in a § 2255 mold. No one below—not Sevilla, not the government, and certainly not the district judge—considered the motion under § 2255. Before us, only the government says we should view the motion under § 2255. This was Sevilla’s motion, not the government’s, and the important concerns outlined above counsel against our recharacterizing the motion under that statute.

Accordingly, we find that the February 22 motion—which we view as decided only pursuant to Rule 35(a)—did not provide the judge with authority for his post-February-8 actions by way of § 2255, and the January 26 order remained the final order of the court.22 We therefore need not reach Sevilla’s arguments that (1) the supplemental plea colloquy was defective; (2) the final sentence imposed was unreasonable; and (3) the district court erred in not granting Sevilla’s February 22 recusal and Santobello requests. Rather, we now turn to Sevilla’s direct appeal of the January 26 judgment.

B. The Initial Guilty Plea

Most curiously, before us, Sevilla seems to have forgotten what brought him here in the first place. At the February 22 hearing, when the district judge asked Sevilla what he wanted to do about alleged Rule 11 defects in the initial plea colloquy, Sevilla insisted he wanted to address those defects on appeal rather than reopen the plea proceedings. However, he says little in his brief about the impact of Rule 11 errors in the initial colloquy on the first judgment, and instead focuses his attacks on purported errors at the supplemental plea level.

Arguments raised in only a perfunctory and undeveloped manner are deemed waived on appeal. Rodríguez v. Municipality of San Juan, 659 F.3d 168, 175 (1st Cir.2011); United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990). Sevilla’s entire argument about the effect of Rule 11 errors in the first colloquy on the first judgment is as follows:

Pursuant to this Court’s opinion in [United States v. Ortiz-Garcia, 665 F.3d *14279, 287-89 (1st Cir.2011),] the District Court’s failure to inform [Sevilla] at the change of plea hearing that the maximum sentence for [Count Two] was life imprisonment instead of the 5 years mentioned mandates setting aside the final judgment entered on [January 26], where a life sentence was imposed on [Count Two].... The Change of Plea transcript does not inform him of a maximum time of life imprisonment and [it] is by no means clear he would have [pleaded] guilty under those circumstances. The case should be remanded for resentencing before a different District Court judge. (Emphasis added.)

Though Sevilla has identified an error and a possible argument — that he might not have pleaded guilty but for the error — he has done so only “in the most skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones.” Zannino, 895 F.2d at 17. This we will not do. Id. As a result, Sevilla’s Rule 11 claims are not merely forfeited and subject to plain error review — as they would be because Sevilla did not object on Rule 11 grounds during the initial colloquy or move to withdraw his plea in the district court.23 See United States v. Anderson, 745 F.3d 593, 598 (1st Cir.2014); United States v. Ortiz-Garcia, 665 F.3d 279, 285 (1st Cir.2011) (reviewing underlying Rule 11 claim for plain error because defendant failed to object to the error or move to withdraw his plea in the district court); Igartúa v. United States, 626 F.3d 592, 603 (1st Cir. 2010) (“[Arguments that are not raised in a timely manner are forfeited,” and “[p]lain error review may be available for forfeited arguments.”). Rather, because Sevilla did not adequately challenge these errors on appeal, his Rule 11 claims are waived entirely. See Anderson, 745 F.3d at 598; Igartúa, 626 F.3d at 603 (explaining that plain error review “is seldom available for claims neither raised below nor on appeal”).

Though we may, on rare occasion, exercise our discretion to address waived arguments — for instance, when they become available only as a result of intervening changes in law — we see no reason to do so here. See Anderson, 745 F.3d at 598; Igartúa, 626 F.3d at 603 (“Review is unavailable for waived arguments unless the court engages in the rare exercise of its power to excuse waiver.” (internal quotation marks and citation omitted)). Furthermore, even if we did exercise our discretion to hear Sevilla’s Rule 11 claims, they would not survive the high hurdle of plain error review. See Anderson, 745 F.3d at 598 (citing United States v. Padilla, 415 F.3d 211, 218-19 (1st Cir.2005) (en banc)).24 Thus, we turn to Sevilla’s first sentence.

*15C. First Sentence

Having found that the district judge lacked authority to do what he did after issuing the original January 26 judgment — with the result being that the initial plea remained intact — we originally remanded with instructions to reinstate the first sentence, a life sentence.25 As we stressed, this was not an unfair result because we had believed counsel had — on our instructions — certified that Sevilla understood this outcome was a risk of pursuing his appeal. At oral argument, we had explicitly asked Sevilla’s counsel if Sevilla understood that this appeal could subject him to an increased sentence. And after counsel submitted an unresponsive motion that did not address whether Sevilla understood the risks, we entered a written order again instructing counsel to inquire whether Sevilla wished to pursue the appeal even though “re-sentencing in this matter presented the risk to [Sevilla] of receiving a sentence greater than his current sentence of 405 months and up to life imprisonment, particularly if the district court were to consider either [Sevilla’s] alleged involvement in the ‘Pitufo’ murder or calculate a base sentencing level and make appropriate upward departures.” (Emphasis in original.) Counsel filed a second motion confirming that Sevilla wanted to proceed despite the risk.

Writing in support of Sevilla’s petition for panel and en banc review, counsel now says he did not appreciate that Sevilla faced the risk that the initial punishment of life imprisonment would be reinstated by this court, and the case remanded. And because he misunderstood our request, counsel only warned Sevilla that remand might result in a higher sentence, not that the initial sentence might be reinstated by us. Given this development, we modify the panel opinion, simply *16vacate the sentence imposed,26 do not ourselves reinstate any sentence, and remand for resentencing by the same judge.27

CONCLUSION

With our work finished, we vacate all judgments and orders of the district court and remand to the same judge for resentencing consistent with this opinion.