United States v. Izik Romero

In United States v. Romero, —- F.4th —-, No. 23-50443 (5th Cir. Aug. 12, 2024), the Fifth Circuit affirmed the district court’s decision to allow the Government to present new evidence at a resentencing hearing, which ultimately led to application of an increased base offense level under the Sentencing Guidelines.

Background: In a prior appeal, the Fifth Circuit held that the Government had failed to prove that Romero’s firearm had been “capable of accepting” a high-capacity magazine, which meant his sentence had been improperly enhanced. United States v. Romero, No. 21-50485, 2022 WL 3584873 (5th Cir. Aug. 22, 2022) (unpublished). As a result, the court vacated Romero’s sentence and remanded his case for a resentencing hearing.

At the resentencing, the district court allowed the Government to introduce new evidence about the gun’s ability to accept a high-capacity magazine. An ATF agent testified on that subject, and the district court found the evidence sufficient to support the high-capacity magazine enhancement under USSG § 2K2.1(a)(4)(B), and it resentenced Romero to the same 115-month prison sentence it had previously imposed.

Holding 1: A district court “should consider any new evidence from either party relevant to the issues raised on appeal when a case is remanded for resentencing without specific instructions.” (internal quotation marks and citation omitted) (emphasis in original).

Holding 2: The Government here presented sufficient evidence that Romero’s gun was “capable of accepting a large capacity magazine.”

In this case, officers saw an item being thrown from Romero’s vehicle during a police chase, and they found the firearm near that area. Later that day, they also found a high-capacity magazine about 30 yards away. The officer admitted that he had only seen a single object thrown from the car and that “it was unlikely that the magazine detached from the firearm and was ejected 30 yards after being thrown.” Nevertheless, a district court may draw reasonable inferences, and the court reasonably concluded that both the gun and the magazine had been inside Romero’s vehicle.