United States v. Willis

Case: 22-10384     Document: 00516848728         Page: 1    Date Filed: 08/07/2023




           United States Court of Appeals
                for the Fifth Circuit                                 United States Court of Appeals
                                                                               Fifth Circuit


                                   ____________                              FILED
                                                                        August 7, 2023
                                    No. 22-10384                        Lyle W. Cayce
                                   ____________                              Clerk

   United States of America,

                                                            Plaintiff—Appellee,

                                       versus

   Vinson Lee Willis, Jr.,

                                           Defendant—Appellant.
                  ______________________________

                  Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 3:19-CR-488-1
                  ______________________________

   Before Dennis, Engelhardt, and Oldham, Circuit Judges.
   Andrew S. Oldham, Circuit Judge:
          Vinson Lee Willis, Jr., pled guilty to three counts of possessing a
   firearm as a felon in violation of 

(g)(1). He raises various
   issues on appeal. All fail, save for one: Willis’s sentence is impermissibly
   ambiguous. We therefore vacate and remand for further proceedings
   consistent with this opinion.
                                         I.
          Vinson Lee Willis, Jr., is a convicted felon who dealt in guns and
   narcotics. In early August 2019, a confidential informant contacted agents at
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                                    No. 22-10384


   the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) about
   an interaction the informant had with a man named “D.O.” On August 3,
   D.O. sold the informant methamphetamine, called his supplier on the
   informant’s phone, and drove the informant to his supplier’s house to collect
   a load of heroin. D.O. later told the informant that “he had the ability to sell
   large quantities of heroin, ecstasy, and as many guns as [the informant] could
   purchase.” ATF agents searched various law enforcement databases for the
   phone number and house address. They determined that Willis was the likely
   supplier.
          Three periods of firearms sales and possession followed. First, from
   August 8–23, Willis sold eleven guns to two confidential informants and an
   undercover agent. D.O. served as the intermediary for the transactions.
   Then, from August 26–28, the undercover agent and one of the confidential
   informants purchased three more firearms directly from Willis. Finally, on
   September 4, the undercover agent and one of the confidential informants
   met Willis to purchase additional firearms. Willis placed one of the guns in
   the undercover agent’s truck. While returning to his car to retrieve the
   others, he saw law enforcement vehicles heading toward him. Willis ran. The
   officers quickly apprehended and arrested him. After Willis waived his
   Miranda rights and consented to the search of his vehicle, the officers found
   two loaded guns—one in the trunk, the other in a seatback pocket.
          Based on these three periods of possession, Willis was charged with,
   and pled guilty to, three corresponding counts of being a felon in possession
   of a firearm. See 

(g)(1); see also 

 § 924(a)(2) (West 2021)
   (providing the sentence for a § 922(g) offense at the time of Willis’s
   violation); id. § 924(a)(8) (West 2022) (providing the current sentence for a
   § 922(g) offense). The presentence report (“PSR”) calculated Willis’s
   offense level to be 30 and his criminal-history category to be V. This yielded




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   a Guidelines range of 151–188 months’ imprisonment and 3 years’ supervised
   release. Willis filed no objections to the PSR.
          On April 14, 2022, the district court imposed the following sentence:
          [I]t is the judgment of the Court that the defendant, Vinson Lee
          Willis, Jr., is hereby committed to the custody of the Federal
          Bureau of Prisons for a period of 120 months on Counts 1, 2,
          and 3. I’m going to run those consecutively on you. You’ll
          finish one, and then you’ll finish the next, and then you’ll finish
          the next. Only to the extent it produces a total aggregate of 188
          months.
   The district court also sentenced Willis to a 3-year term of supervised release.
   The April 19 written judgment tracked the oral pronouncement. Willis timely
   filed a notice of appeal on April 20, 2022.
          But on May 31, the district court scheduled a “re-sentencing hearing”
   to “address matters . . . raised by the Bureau of Prisons.” Specifically, the
   district court had received “a correspondence . . . from the Federal Bureau
   of Prisons that indicated the sentence could not be executed as intended.”
   Because Willis had already noticed his appeal, Willis filed an unopposed
   motion in the Fifth Circuit requesting the appeal be stayed pending the
   purported re-sentencing. We granted the motion. But we also clarified that
   the order was “not to be construed as a comment on what authority the
   district court has, at this time, over the sentence.”
          At the July 28 re-sentencing hearing, the district court said it was
   “reimposing” the original April sentence—but “with a little tweak.” “With
   the permission of the parties,” the district court sentenced Willis to “180
   months rather than 188 months.” In its words:
          Vinson Lee Willis, Jr., is hereby committed to the custody of
          the Federal Bureau of Prisons for a period of 120 months on
          Counts 1 and 2, to run concurrently with each other. The




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          defendant is further committed to the custody of the Federal
          Bureau of Prisons for a period of 60 months on Count 3, to run
          consecutively to the sentences imposed in Counts 1 and 2. The
          total aggregate sentence is 180 months. . . . It is further ordered
          that upon release from imprisonment, the defendant shall be
          placed on supervised release for a term of three years per count,
          to run concurrently with each other.
   The district court did so, it said, “to make clear that [it was] sentencing Mr.
   Willis for his crimes and not his misconduct in court.” The court explained
   that it thought Willis had been a “smart aleck” at the prior hearing. And
   while it continued to think 188 months was an appropriate sentence, the court
   decided to “knock eight months off” to “make clear for the appellate
   record” that it was sentencing Willis for “the crime and not [his] smart
   mouth.” Willis filed another notice of appeal the day after the district court
   entered its amended judgment.
          We have jurisdiction under 

 and 

(a).
                                          II.
          Willis argues his sentence is procedurally and substantively flawed.
   Recall, however, that Willis was sentenced twice for the same conviction—
   once in April 2022, then again in July 2022. So before we can evaluate
   Willis’s alleged errors, we must begin with the analytically prior question:
   Which sentence do we evaluate?
          Willis argues that the district court lacked jurisdiction to conduct the
   July re-sentencing and to enter the amended judgment imposing a different
   term of imprisonment. The Government agrees. So do we.
          Willis timely filed his initial notice of appeal on April 20. This was “an
   event of jurisdictional significance.” Griggs v. Provident Consumer Disc. Co.,
   

 (1982) (per curiam). “It confer[red] jurisdiction on the court
   of appeals and divest[ed] the district court of its control over those aspects of




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   the case involved in the appeal.” Ibid.; see also Ross v. Marshall, 

 (5th Cir. 2005) (“[T]he filing of a valid notice of appeal from a final order
   of the district court divests that court of jurisdiction to act on the matters
   involved in the appeal.” (quotation omitted)); United States v. Lucero, 

, 386–87 (5th Cir. 2018) (per curiam) (“The general rule is that a
   case can exist only in one court at a time, and a notice of appeal permanently
   transfers the case to us until we send it back.”); Griggs, 459 U.S. at 58–60
   (explaining why it would not be “tolerable” to have “a district court and a
   court of appeals . . . simultaneously analyzing the same judgment”). Thus,
   on a straightforward application of the one-court-at-a-time rule, the district
   court lacked the power to re-sentence Willis on July 28. After all, the entirety
   of Willis’s appeal involves the procedural and substantive reasonableness of
   his sentence, so the district court’s re-sentencing necessarily clashed with
   “aspects of the case involved in the appeal.” Griggs, 

.
           “True, there are exceptions to the general one-court-at-a-time rule.”
   Lucero, 755 F. App’x at 386; see, e.g., Fed. R. App. P. 4(b)(3), (5); see also
   16A Charles Alan Wright et al., Federal Practice and
   Procedure § 3949.1 (5th ed. Apr. 2023 update) [hereinafter Wright &
   Miller] (collecting exceptions). But none applies here.
          First, Appellate Rule 4(b)(5) instructs that “[t]he filing of a notice of
   appeal . . . does not divest a district court of jurisdiction to correct a sentence
   under Federal Rule of Criminal Procedure 35(a).” Fed. R. App. P. 4(b)(5).
   Rule 35(a), in turn, provides that “[w]ithin 14 days after sentencing, the court
   may correct a sentence that resulted from arithmetical, technical, or other
   clear error.” Fed. R. Crim. P. 35(a). Even if the July re-sentencing were
   best interpreted as correcting “arithmetical, technical, or other clear error,”
   ibid., the district court nevertheless lacked jurisdiction to do so. That’s
   because more than 14 days had passed between the original April judgment
   and the July re-sentencing. And Rule 35(a)’s “time limit is jurisdictional and



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   strictly construed.” United States v. Coe, 

 (5th Cir.
   2012) (per curiam); see also United States v. Lopez, 

, 518–23 (5th
   Cir. 1994) (per curiam) (so holding with respect to an earlier, but
   substantially similar, iteration of Rule 35). Regardless, the district court’s
   decision to “knock eight months off” Willis’s sentence was not in response
   to an “arithmetical, technical, or other clear error.” Fed. R. Crim. P.
   35(a). Rather, the district court did so because, upon reflection, it wished it
   “had held [Willis] in contempt rather than giving [him] 188 months,” and
   because it now “want[ed] to make clear for the appellate record” that Willis
   was being sentenced for “the crime and not [his] smart mouth.” This is not
   a qualifying justification under Rule 35. The Rule’s advisory committee notes
   even warn that Rule 35 “is not intended to afford the court the opportunity
   . . . to change its mind about the appropriateness of the sentence.” Fed. R.
   Crim. P. 35 advisory committee’s notes to 1991 amendment.
          Second, Federal Rule of Criminal Procedure 36 permits the district
   court to “correct a clerical error in a judgment, order, or other part of the
   record.” Fed R. Crim. P. 36. But the changes the district court made to
   Willis’s sentence at the re-sentencing hearing—including reducing the
   prison term from 188 to 180 months—were far more substantial than a
   “clerical” correction. See Lopez, 

 n.5 (“Rule 36 does not
   encompass sentence modifications.”); United States v. Buendia-Rangel, 

 (5th Cir. 2008) (per curiam) (explaining that “clerical errors”
   exist “when the court intended one thing but by . . . mistake or oversight did
   another” (quotation omitted)). Moreover, even if the prison-term reduction
   somehow qualified as a clerical-error correction, Willis’s April 20 notice of
   appeal nevertheless divested the district court of jurisdiction to act under
   Rule 36. Lucero, 755 F. App’x at 387 (“[A]n effective notice of appeal divests
   the district court of jurisdiction, and a district court cannot use a Rule 36




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   motion to reacquire it.”); accord United States v. Walker, 

,
   at *1 (5th Cir. May 24, 2022) (per curiam).
          Third, 

 allows a district court to modify a sentence in
   certain circumstances notwithstanding an otherwise final judgment. See 

(b)(1), (c). But this exception is also inapplicable. The district
   court may modify a sentence via § 3582(c): (1) upon a motion of either the
   Director of the Bureau of Prisons or the defendant, if there are
   “extraordinary and compelling reasons” warranting a reduction or the
   defendant is 70 years old or older, “has served at least 30 years in prison,”
   and is not a danger to another; (2) to the extent a modification is expressly
   permitted by statute or Rule 35 of the Federal Rules of Criminal Procedure;
   and (3) when a defendant has been sentenced to a prison term “based on a
   sentencing range that has subsequently been lowered by the Sentencing
   Commission.” Id. § 3582(c). But neither the director of the Bureau of Prisons
   nor Willis filed a motion to modify. The entry of the amended judgment fell
   outside the 14-day window for a Rule 35(a) correction. And no part of this
   case involves a change to the relevant Guidelines.
          Regardless, even if § 3582 did give the district court the authority to
   re-sentence Willis in this context, it did not give that court the jurisdiction to
   do so after Willis had already filed his notice of appeal. See Lopez, 

 n.3 (distinguishing a district court’s general “authority” to act under
   § 3582(c) from its “jurisdiction” to do so at a specific time). That’s because
   “[n]othing in the language of the [statute] suggests that its drafters intended
   to alter th[e] longstanding jurisdictional principle” that the “entry of a notice
   of appeal divests the district court of jurisdiction to adjudicate any matters
   related to the appeal.” United States v. Distasio, 

 (1st Cir.
   1987); see also United States v. Maldonado-Rios, 

 (1st Cir. 2015)
   (per curiam) (holding “that a district court lacks the power to order a
   sentence modification under 

(c) while an appeal of that



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   sentence is pending”). Absent a clear statement to the contrary, we decline
   to infer one. See Lopez, 

 n.3 (“[Section] 3582(c) does not
   expressly address the jurisdiction of a court to modify an imposed term of
   imprisonment.”); Lucero, 775 F. App’x at 386–87 (requiring a clear
   statement to override the one-court-at-a-time rule).
          Fourth and finally, the district court sought and received “the
   permission of the parties” before re-sentencing Willis in July. But it is a
   bedrock pillar of federal law that “subject-matter jurisdiction cannot be
   created by waiver or consent.” Howery v. Allstate Ins. Co., 

   (5th Cir. 2001); see also Ruhrgas AG v. Marathon Oil Co., 

   (1999) (“[S]ubject-matter delineations must be policed by the courts on their
   own initiative even at the highest level.”). That’s doubly true here where the
   district court’s assertion of jurisdiction where it doesn’t exist (that court)
   undermines jurisdiction where it does (our court).
          In sum, Willis’s timely notice of appeal transferred the case from the
   district court to ours, which divested the district court of jurisdiction to re-
   sentence Willis. Because the district court lacked jurisdiction, the July re-
   sentencing is “null and void.” 16A Wright & Miller § 3949.1 (“[O]nce
   jurisdiction passes to the court of appeals, the district court generally lacks
   power to act with respect to matters encompassed within the appeal, and
   actions taken by the district court in violation of this principle are null and
   void.”); accord United States v. Jones, 

, 956–57 (5th Cir.
   2012) (“[T]he district court had until 7 September 2011 to correct or modify
   Jones’ original sentence; it lacked jurisdiction to re-sentence him on 3
   November 2011. Accordingly, the later-imposed sentence and its
   corresponding entry of judgment are void.”). We therefore confine our
   analysis of Willis’s claims to the April sentencing.




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                                         III.
          Willis claims his operative sentence is procedurally and substantively
   flawed in four ways. He argues that the district court (A) imposed a
   multiplicitous sentence and (B) applied the Guidelines incorrectly when
   calculating his criminal-history score. Willis further claims that his sentence
   is (C) substantively unreasonable and (D) impermissibly ambiguous. The
   first three challenges are unavailing. Willis prevails on the fourth.
                                          A.
          Start with multiplicity. “‘Multiplicity’ is spreading a single offense
   over several counts.” 1A Wright & Miller § 143. This can happen in
   two ways. United States v. Vasquez, 

 (5th Cir. 2018)
   (recognizing “two species of multiplicity challenges” (quotation omitted)).
   “The first type arises when a defendant is charged with violating two
   different statutes, one of which is arguably the lesser included offense of the
   other.” United States v. Woerner, 

 (5th Cir. 2013). “The
   second type of multiplicity challenge arises when charges for multiple
   violations of the same statute are predicated on arguably the same criminal
   conduct.” 

          This appeal allegedly involves the latter. Namely, Willis argues that
   by charging him with—and sentencing him for—three felon-in-possession
   counts, the district court punished him thrice for what he asserts was a single
   ongoing offense. If true, this would violate the Double Jeopardy Clause’s
   prohibition “against multiple punishments for the same offense.” Whalen v.
   United States, 

 (1980) (quotation omitted); see U.S.
   Const. amend. V (“[N]or shall any person be subject for the same offence
   to be twice put in jeopardy of life or limb.”); United States v. Buchanan, 

 (5th Cir. 2007) (“The rule against multiplicity is grounded in
   the Fifth Amendment’s prohibition against double jeopardy.”).




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          Willis raises his multiplicity challenge for the first time on appeal, so
   we review it under the four-factor plain-error standard. United States v.
   Njoku, 

 (5th Cir. 2013). To prevail, Willis must demonstrate
   that the district court (1) made an error (2) that was “clear or obvious” and
   (3) that “affected [his] substantial rights.” Puckett v. United States, 

 (2009). If Willis satisfies those three prongs, then we (4) have
   “discretion to remedy the error—discretion which ought to be exercised only
   if the error seriously affects the fairness, integrity or public reputation of
   judicial proceedings.” 

 (quotation omitted).
          Willis cannot meet the plain-error standard because the district court
   didn’t err—plainly or otherwise. Willis was convicted under § 922(g)(1),
   which “has three requirements: (1) that the defendant previously had been
   convicted of a felony; (2) that he possessed a firearm; and (3) that the firearm
   traveled in or affected interstate commerce.” United States v. Daugherty, 

 (5th Cir. 2001) (quotation omitted); see also 

(a)(8). As Willis rightly points out, “[t]he evil Congress sought to
   suppress by section 922 was the arming of felons,” so “the section is based
   on the status of the offender and not the number of guns possessed.” United
   States v. Berry, 

 (5th Cir. 1992). Accordingly, we have held
   that the “simultaneous possession of multiple firearms . . . [i]s a single
   [§ 922] offense regardless of the number of weapons involved.” United States
   v. Villegas, 

 (5th Cir. 2007) (citing United States v. Hodges,
   

 (5th Cir. 1980)).
          That said, we’ve also made abundantly clear that the “possession of
   different firearms at different times” are “separate and distinct prohibited
   acts.” United States v. Planck, 

, 503–04 (5th Cir. 2007)
   (emphasis added) (quotation omitted). Thus, when different counts
   “involve[] different firearms received and possessed by [the defendant] at
   different times,” those counts permissibly punish independent offenses and



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   thus do not violate the Double Jeopardy Clause. United States v. Harper, 

, 118 n.4 (5th Cir. 1986); accord Planck, 

 (“[A]
   defendant could be charged with multiple violations of [§ 922] for receipt or
   possession of different firearms at different times.”); United States v. Jones,
   

 (11th Cir. 2010) (“[W]here a defendant has possessed
   different weapons at different times or places, the [G]overnment may treat
   them as separate units of prosecution and charge multiple counts.”).
          Here, Willis clearly pled guilty to possessing distinct firearms during
   three distinct timeframes. And he was convicted of and sentenced for each of
   those distinct units of possession. In particular, Willis possessed 11 firearms
   between August 8 and August 23, 2019 (Count 1); possessed 3 different
   firearms between August 26 and August 28, 2019 (Count 2); and possessed
   3 different firearms on September 4, 2019 (Count 3). Willis’s sentence
   therefore is not multiplicitous. See Planck, 493 F.3d at 503–04 (imposing
   multiple punishments for the “possession of different firearms at different
   times” permissibly punishes “separate and distinct prohibited acts”
   (quotation omitted)).
          To all this—and contrary to the indictment, his guilty plea, and the
   PSR—Willis nevertheless asks us to infer that he “was in continuous
   constructive or actual possession of firearms throughout the entire period
   covered by the [i]ndictment.” Why? Because he was a drug dealer (and drug
   dealers, he says, are armed “continuously”); and because one of the guns
   recovered on September 4 was found in the driver’s seat-back pocket (which,
   he says, indicates it was his personal firearm, “not one of the guns he
   intended to sell”). This is a far cry from the “affirmative proof” that Willis
   would need to contravene his indictment and guilty plea, to demonstrate
   simultaneous possession, and to prove plain error. United States v. Meza, 

 (5th Cir. 2012); see also United States v. Davila, 

 (5th Cir. 1995) (“[A] defendant who pleads guilty to criminal



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   charges may assert a claim of multiple punishments in violation of the Double
   Jeopardy Clause only if the violation is apparent on the face of the indictment
   or record.” (quotation omitted)).
                                         B.
          Willis also contends the district court calculated his criminal-history
   score incorrectly when determining his Guidelines range. Specifically, Willis
   argues that the district court plainly erred by counting his 2015 possession-
   of-a-controlled-substance conviction separately from his 2015 aggravated-
   assault-with-a-deadly-weapon convictions. He says that if his criminal-
   history score were calculated properly, the Guidelines sentence would have
   been 135–168 months in prison instead of 151–188 months. Cf. Molina-
   Martinez v. United States, 

, 198–202 (2016).
          The Sentencing Guidelines provide criminal-history points based on
   the defendant’s “prior sentences.” See U.S.S.G. §§ 4A1.1, 4A1.2; see also id.
   Ch. 5, Pt. A (table showing how the applicable criminal-history category
   combines with a defendant’s offense level to define his Guidelines sentence).
   A “prior sentence” is “any sentence previously imposed upon adjudication
   of guilt.” Id. § 4A1.2(a)(1). But when there are multiple prior sentences—as
   there are here—courts must determine whether the “sentences [should be]
   counted separately or treated as a single sentence.” Id. § 4A1.2(a)(2). “Prior
   sentences always are counted separately if the sentences were imposed for
   offenses that were separated by an intervening arrest (i.e., the defendant is
   arrested for the first offense prior to committing the second offense).” Ibid.
   Yet even absent an intervening arrest, prior sentences are still counted
   separately “unless (A) the sentences resulted from offenses contained in the
   same charging instrument; or (B) the sentences were imposed on the same
   day.” Ibid. If either (A) or (B) applies, the district court should treat those




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   prior sentences as a single sentence when assigning criminal-history points.
   Ibid.
           Willis claims that his prior sentences for aggravated assault and
   possession of a controlled substance should have been treated as a “single
   sentence” under § 4A1.2(a)(2). That’s so, he says, because the sentences
   were not “separated by an intervening arrest,” and were “imposed on the
   same day.” Ibid. Willis raises this argument for the first time on appeal, so we
   review for plain error. See Rosales-Mireles v. United States, 

,
   1904–05 (2018).
           The district court did not commit “clear or obvious” error. Puckett,
   

. Willis was arrested on September 23, 2015, for two
   aggravated-assault offenses and one controlled-substance offense. He was
   then sentenced on December 17, 2015, to four years of deferred-adjudication
   probation for each offense. So far so good for Willis. But on January 19, 2018,
   the Government filed a motion to revoke Willis’s probation for the
   controlled-substance offense, and on March 6, 2018, the district court
   sentenced Willis to one year in state jail on that offense. Willis is therefore
   correct that the offenses were not “separated by an intervening arrest.”
   U.S.S.G. § 4A1.2(a)(2). But the one-year state jail sentence for the
   controlled-substance offense arose from the Government’s January 2018
   motion, not the 2015 indictment. And the district court imposed the one-year
   sentence for the controlled-substance offense in 2018, not the same day in
   2015 when it imposed the sentence for the aggravated assault charges. Thus
   the district court did not err, much less plainly err, in counting the sentences
   as separate.
           Indeed, we’ve previously declined to find plain error in a nearly
   identical situation. In United States v. Sustaita-Mata, the defendant had two
   prior theft convictions, one of which included a later-imposed revocation




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   sentence. 

 (5th Cir. 2018) (per curiam). The district court
   counted them separately. 

. Sustaita-Mata argued for the first time
   on appeal that the two theft sentences should have been treated as a single
   sentence because the original sentences were imposed on the same day. 

. Instead, we held that Sustaita-Mata had failed to demonstrate “clear or
   obvious” error because he failed to cite any circuit precedent establishing
   that they should have been treated as a single sentence. 

 at 402–03 (citing
   United States v. Carlile, 

 (5th Cir. 2018)). Nor could he
   otherwise show that the dispute was “settled by a straightforward application
   of the Guidelines.” 

 at 403 (citing United States v. Blocker, 

 (5th Cir. 2010), abrogated on other grounds by United States v. Martinez-
   Rodriguez, 

 (5th Cir. 2016)). Consequently, we concluded
   that “the district court could have reasonably interpreted the Guidelines at
   issue as it did” by treating the later-imposed revocation sentence as the
   relevant “sentence” for purposes of U.S.S.G. § 4A1.2(a)(2). Ibid. (quotation
   omitted). So too here. 1
                                                C.
           Next, Willis challenges the substantive reasonableness of his within-
   Guidelines sentence. This is the only challenge Willis preserved. See Holguin-
   Hernandez v. United States, 

, 765–67 (2020). We review



           _____________________
           1
             Willis contends for the first time in his reply brief that, as a factual matter, his
   deferred-adjudication sentence for the controlled-substance offense was not actually
   imposed on the revocation date. Willis claims the state court later granted a motion for a
   new trial, which he says “undid” his conviction for the controlled-substance offense. We
   decline to consider this “completely new issue in [Willis’s] reply brief.” Cousin v. Trans
   Union Corp., 

, 373 n.22 (5th Cir. 2001); see also Cinel v. Connick, 

 (5th Cir. 1994) (“An appellant abandons all issues not raised and argued in [his] initial
   brief on appeal.”).




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   preserved reasonableness challenges for abuse of discretion. United States v.
   Sepulveda, 

 (5th Cir. 2023).
          Why abuse of discretion? We apply such a “highly deferential”
   standard of review “because the sentencing court is in a better position to
   find facts and judge their import under the [18 U.S.C.] § 3553(a) factors with
   respect to a particular defendant.” United States v. Hernandez, 

 (5th Cir. 2017) (quotation omitted); see also Gall v. United States, 

 (2007) (“The judge sees and hears the evidence, makes credibility
   determinations, has full knowledge of the facts and gains insights not
   conveyed by the record.” (quotation omitted)). Moreover, “within-
   Guidelines sentences enjoy a presumption of reasonableness,” so our review
   of Willis’s 188-month, within-Guidelines sentence is doubly deferential.
   United States v. Scott, 

 (5th Cir. 2011). He can rebut the
   presumption only by “demonstrat[ing] that the sentence does not account
   for a factor that should receive significant weight, gives significant weight to
   an irrelevant or improper factor, or represents a clear error of judgment in
   balancing sentencing factors.” Hernandez, 

 (citing United
   States v. Cooks, 

 (5th Cir. 2009)).
          Willis contends that the July re-sentencing transcript and amended
   judgment prove that the district court’s April sentence was “the product of
   a clear error in judgment” and based upon “an improper or irrelevant
   factor.” Specifically, Willis asserts that the district court’s later attempt to
   re-sentence him to 180 months’ imprisonment demonstrates that the district
   court never intended to impose the original 188-month sentence. He further
   claims that the district court admitted to considering an impermissible factor
   when it acknowledged at the re-sentencing that it had punished Willis for his
   “smart mouth” at the April 14 hearing and thus imposed a longer sentence
   than was necessary.




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                                     No. 22-10384


          We disagree. Even if Willis could avail himself of the null-and-void
   July re-hearing to satisfy his burden with respect to the April sentence, we
   are not persuaded by his interpretation of the record. The district court
   explicitly reaffirmed at the July hearing that it had intended to impose “a total
   aggregate sentence of 188 months.” And it did so because that was “the top
   of the advisory guideline range”—which it thought was necessary to reflect
   “the seriousness of the defendant’s criminal history” and to “protect the
   public.” See 

(a)(1)–(2). And we are unpersuaded that the
   district court admitted to punishing him for his conduct at the April 14
   hearing. At most, the district court’s reasoning is ambiguous. True, the
   district court did say at one point that in hindsight it wished it had “held
   [Willis] in contempt rather than giving [him] 188 months.” But in the same
   hearing, it also said, “I don’t think that 188 months is inappropriate at all”
   and that it was now “knock[ing] eight months off” merely to preempt any
   “misunderstanding [whether Willis was] being sentenced for the crime and
   the crime only.” See also ROA.347 (“I don’t like how you treated me. I don’t
   like how you talked. And—but that is not why you got this sentence, and I
   want to make that clear to you. You got this sentence because—to protect the
   community because of your violent criminal history.”). Such an ambiguous
   record is not enough to overcome the “presumption of reasonableness” we
   apply to within-Guidelines sentences. Scott, 

.
          But even if the district court did base Willis’s sentence in part on his
   lack of remorse at the hearing, Willis doesn’t cite any authority for the
   proposition that such conduct is an irrelevant or improper consideration. Cf.
   United States v. Douglas, 

, 527–28 (5th Cir. 2009); United States
   v. Navarro-Jusino, 

 (5th Cir. 2021); United States v. Kippers,
   

 (5th Cir. 2012); United States v. Medina-Anicacio, 

 (5th Cir. 2003). We therefore hold there was no abuse of discretion.




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                                     No. 22-10384


                                          D.
          Willis’s fourth and final claim is that his sentence is impermissibly
   ambiguous. We review this unpreserved claim for plain error. See United
   States v. Taylor, 

 (5th Cir. 2020); see also United States v.
   Barber, 

 (5th Cir. 2017).
          The Supreme Court has long held that “[s]entences in criminal cases
   should reveal with fair certainty the intent of the court and exclude any
   serious misapprehensions by those who must execute them.” United States
   v. Daugherty, 

 (1926). A sentence violates this command
   when it is “ambiguous with respect to the time and manner in which it is to
   be served” or “is internally self-contradictory.” United States v. Setser, 

 (5th Cir. 2010), aff’d, 

 (2012) (quotation omitted);
   see also Taylor, 

; United States v. Garza, 

 (5th
   Cir. 2006); United States v. Story, 

 (5th Cir. 2006); United
   States v. Juarez, 

 (5th Cir. 2016).
          Willis’s sentence is impermissibly ambiguous. Recall that the district
   court imposed the following sentence:
          [I]t is the judgment of the Court that the defendant, Vinson Lee
          Willis, Jr., is hereby committed to the custody of the Federal
          Bureau of Prisons for a period of 120 months on Counts 1, 2,
          and 3. I’m going to run those consecutively on you. You’ll
          finish one, and then you’ll finish the next, and then you’ll finish
          the next. Only to the extent it produces a total aggregate of 188
          months.
   This sentence is either “internally self-contradictory” or “ambiguous with
   respect to the time and manner in which it is to be served.” Setser, 

 (quotation omitted). If we give full effect to the requirement that the
   three 120-month terms run consecutively, then we must ignore the 188-
   month cap. And if we give full effect to the 188-month cap, then the




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                                       No. 22-10384


   requirement that the three 120-month terms run consecutively is either
   nonsensical (at worst) or incomplete and indeterminate (at best). As such,
   “[r]easonable minds could differ on the interpretation of the sentence
   imposed.” Taylor, 

. The court therefore committed “clear or
   obvious” error, Puckett, 

, by imposing this “ambiguous and
   illegal” sentence, United States v. Stark, 

, 894 (5th Cir.
   2020) (per curiam); accord Setser, 

 (“A sentence may be illegal
   if it is ambiguous . . . .” (quotation omitted)). That satisfies the first two plain-
   error prongs.
          Willis also satisfies the third prong—i.e., “the error must have
   affected the defendant’s substantial rights.” Molina-Martinez, 

; see also Fed. R. Crim. P. 52(b). “To satisfy this third condition, the
   defendant ordinarily must show a reasonable probability that, but for the
   error, the outcome of the proceeding would have been different.” United
   States v. Randall, 

 (5th Cir. 2019) (quotation omitted);
   accord Puckett, 

; United States v. Olano, 

   (1993).
          The district court’s ambiguous sentence impacted the “outcome of
   the proceeding” in at least two ways. Randall, 

 (quotation
   omitted). First, the Bureau of Prisons decided that the sentence was so
   ambiguous that it “could not be executed.” Cf., e.g., Setser, 

   (“[A]lthough his appeal began as a challenge to the ambiguity regarding how
   the [Bureau of Prisons] might interpret and carry out the district court’s
   sentence, the [Bureau of Prisons] has subsequently interpreted and carried
   out the sentence.”). That obviously would never have happened save for the
   error. Second, after it was made aware of the error, the district court
   attempted to impose a completely different sentence at the null-and-void July
   re-hearing. Rarely do we have such strong evidence “that, but for the error,
   the outcome of the proceeding would have been different.” Randall, 

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                                       No. 22-10384


   at 796 (quotation omitted); cf. Taylor, 

 (“[I]t is not clear
   whether the ambiguous nature of Taylor’s sentence affected his substantial
   rights, so we order a limited remand for the district court to clarify, and state
   on the record, whether it would have imposed the same sentence had it
   known of the ambiguity.”).
          Lastly, we find it appropriate to “exercise [our] discretion” to correct
   the district court’s error. Molina-Martinez, 

. It would
   “seriously affect[] the fairness, integrity or public reputation of judicial
   proceedings” to let stand such an ambiguous sentence—one that not even
   the Bureau of Prisons could effectuate. Puckett, 

 (quotation
   omitted).
                                   *        *         *
          Accordingly, we VACATE the April 2022 sentence and REMAND
   for further proceedings consistent with this opinion. See Garza, 

 (“[A]mbiguous sentences must be vacated and remanded.”); Juarez,
   

 (“Where a sentence is ambiguous, . . . the proper course is to
   vacate [the defendant’s] sentence and remand for resentencing.”).
          This might seem like an empty formalism. After all, the district court
   already indicated at the July hearing how it intends to re-sentence Willis. But
   jurisdiction matters. Jurisdiction is the power to say what the law is. “The
   statutory and (especially) constitutional elements of jurisdiction are an
   essential ingredient of separation and equilibration of powers, restraining the
   courts from acting at certain times, and even restraining them from acting
   permanently regarding certain subjects.” Steel Co. v. Citizens for a Better
   Env’t, 

 (1998). And to act without jurisdiction “is, by very
   definition, for a court to act ultra vires.” 

. Moreover, the district
   court has already expressed its willingness to change Willis’s sentence once.
   We therefore leave it to the district court on remand to exercise its




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                                   No. 22-10384


   jurisdiction and discretion to impose any sentence at or below the statutory
   maximum. 

(f)(1), (g); see also Pepper v. United States, 

 (2011).




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