Case: 18-50635      Document: 00515586062         Page: 1    Date Filed: 10/01/2020




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

                                                                                FILED
                                                                          October 1, 2020
                                   No. 18-50635                            Lyle W. Cayce
                                                                                Clerk

   United States of America,

                                                            Plaintiff—Appellant,

                                       versus

   Samuel Tanel Crittenden,

                                                            Defendant—Appellee.


                   Appeal from the United States District Court
                        for the Western District of Texas
                           USDC No. 3:17-CR-2039-2


   Before Dennis, Elrod, and Costa, Circuit Judges.
   Per Curiam:*
          We WITHDRAW the court’s prior majority and dissenting opinions
   of August 20, 2020, and substitute the following opinion on behalf of the
   entire panel.
          After a jury convicted Samuel Crittenden of possession with intent to



          *
            Pursuant to 5th Circuit Rule 47.5, the court has determined that this
   opinion should not be published and is not precedent except under the limited
   circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 18-50635      Document: 00515586062           Page: 2   Date Filed: 10/01/2020




                                     No. 18-50635

   distribute 500 grams or more of methamphetamine, he moved for a new trial
   under Federal Rule of Criminal Procedure 33(a). The district court granted
   his motion and the United States timely appealed. The panel issued majority
   and dissenting opinions on August 20, 2020. Upon further reflection, the
   panel determines that we should remand the case for the limited purpose of
   clarifying whether the district court held that the evidence was insufficient to
   support a conviction or that, despite its sufficiency, the evidence
   “preponderated heavily against the guilty verdict.” United States v. Herrera,
   

, 302 (5th Cir. 2009).
          There are significant differences between finding that the evidence
   was insufficient to support the verdict and granting a new trial. “In this
   Circuit, the generally accepted standard is that a new trial ordinarily should
   not be granted unless there would be a miscarriage of justice or the weight of
   evidence preponderates against the verdict.” United States v. Wright, 

, 775 (5th Cir. 2011) (quoting United States v. Wall, 

,
   465 (5th Cir. 2004)) (quotation marks omitted). Even where “the evidence
   is sufficient to support a conviction,” the district court may grant a new trial
   if it “cautiously reweighed” the evidence and concluded that it
   “preponderated heavily against the guilty verdict.” 

.
   We review a district court’s decision to grant a new trial for abuse of
   discretion. United States v. Hoffman, 

, 552 (5th Cir. 2018).
          In contrast, there is insufficient evidence only when, taking all
   inferences in favor of the verdict, “no rational juror could have found guilt
   beyond a reasonable doubt.”

(quoting United States v. Sanjar, 

, 744 (5th Cir. 2017)). When a court finds the evidence insufficient,
   the defendant must be acquitted. Burks v. United States, 

, 10–11
   (1978). Acquittal is required even when the defendant moved only for a new
   trial.

We review de novo a district court’s holding that the evidence
   was insufficient to support the jury’s verdict. 

.




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Case: 18-50635      Document: 00515586062             Page: 3   Date Filed: 10/01/2020




                                       No. 18-50635

          Here, the problem is that the district court’s memorandum opinion is
   ambiguous as to whether it held that the evidence was insufficient to support
   a conviction or, alternatively, that the evidence preponderated heavily
   against the guilty verdict despite its sufficiency. The district court’s decision
   to grant a new trial implies that it held that the evidence preponderated
   heavily against the verdict under 

. Yet, the district
   court’s memorandum opinion speaks repeatedly of the insufficiency of the
   evidence against Crittenden, which would require acquittal. See 

–11. On appeal, neither party addressed this issue.
          Because the memorandum opinion is ambiguous, we REMAND for
   the limited purpose of allowing the district court to state whether it ruled the
   evidence insufficient or instead ruled that, while the evidence was sufficient,
   it preponderated heavily against the guilty verdict so as to warrant a new trial.
   The district court shall enter the appropriate order within twenty-one days
   of the issuance of this opinion. We retain jurisdiction over this limited
   remand pending the district court’s response, as is customary for limited
   remands. See, e.g., United States v. Gomez, 

, 356 (5th Cir. 2018).
   This appeal shall return to the same panel.

                                   *        *         *
          This      case      is       REMANDED             FOR        LIMITED
   CONSIDERATION CONSISTENT WITH THIS OPINION.




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