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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13306
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
YOANDRY BENITEZ GONZALEZ,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:17-cr-20384-CMA-1
____________________
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2 Opinion of the Court 21-13306
Before ROSENBAUM, BRANCH, and GRANT, Circuit Judges.
PER CURIAM:
Yoandry Benitez Gonzalez (Benitez) challenges his convic-
tions by guilty plea for attempted Hobbs Act robbery, see 18 U.S.C.
§ 1951(a), and brandishing a firearm during and in relation to a
crime of violence, that is, the attempted Hobbs Act robbery, see 18
U.S.C. § 924(c)(1)(A). He argues that his guilty plea was fatally de-
fective because the district court failed to ensure he understood the
legal grounds for his culpability and because the factual basis for
the plea was insufficient. He also contends that his § 924(c) convic-
tion must be vacated because attempted Hobbs Act robbery does
not qualify as a crime of violence.
The Supreme Court recently held that attempted Hobbs Act
robbery is not a crime of violence for purposes of § 924(c), so we
reverse Benitez’s conviction under that statute. But we affirm Be-
nitez’s conviction for attempted Hobbs Act robbery because he has
not shown that the district court plainly erred in accepting his
guilty plea. Nevertheless, because of the error with respect to the
§ 924(c) conviction, we vacate the entire sentence and remand for
resentencing.
I.
Benitez was charged by indictment with three crimes:
(1) conspiracy to commit Hobbs Act robbery, in violation of
§ 1951(a) (Count 1); (2) attempted Hobbs Act robbery, in violation
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21-13306 Opinion of the Court 3
of § 1951(a) and 18 U.S.C. § 2 (Count 2); and (3) brandishing and
discharging a firearm during and in relation to, and in furtherance
of, a crime of violence, in violation of § 924(c)(1)(A) and § 2 (Count
3).
Benitez executed a plea agreement and factual proffer with
the government. In the plea agreement, he agreed to plead guilty
to “attempted Hobbs Act robbery,” as charged in Count 2, and to
“aiding and abetting the knowing use and brandishing of a firearm
during and in relation to a crime of violence, that is, the attempted
Hobbs Act robbery charged in Count 2,” as charged in Count 3, in
exchange for dismissal of Count 1 and the discharge portion of
Count 3. He also signed a detailed “Factual Proffer” setting forth
the facts of the offenses, which he agreed were “sufficient to prove
[his] guilt.”
According to the factual proffer, Benitez and two cocon-
spirators “attempted to commit an armed robbery of a Garda-
World truck” outside a TD Bank in Homestead, Florida, on De-
cember 20, 2016. Benitez was a GardaWorld employee on leave
who used his inside knowledge to help plan the robbery of the ar-
mored truck. On the morning of December 20, Benitez and the
coconspirators followed the route of the truck and discussed the
robbery plans. Benitez also pointed out the location of the TD
Bank where the attempted robbery eventually occurred. Benitez
knew that firearms would be used during the robbery, and he ex-
pected to receive a share of the proceeds. Benitez then left his co-
conspirators, who, later that day, went forward with the attempted
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4 Opinion of the Court 21-13306
robbery without him. The coconspirators confronted a Garda-
World employee at gunpoint as he returned to the truck from the
bank. A gunfight ensued in which all three individuals were shot.
One of the coconspirators died at the scene. The other fled and
was soon apprehended. He identified Benitez as a coconspirator
who helped plan the attempted robbery.
Benitez appeared for a change-of-plea hearing before the dis-
trict court with the assistance of a Spanish interpreter. The court
confirmed that Benitez, who was 32 years old, had a GED, and
spoke some English, was competent to plead guilty. It then ad-
dressed the indictment and the charges. Benitez advised that he
had fully discussed the indictment with counsel, was fully satisfied
with his representation, and understood the charges, which the
court said were “attempted Hobbs Act robbery” and “aiding and
abetting the knowing use and brandishing of a firearm during and
in relation to the attempted Hobbs Act robbery.” The government
then set forth the elements of the offenses, which defense counsel
agreed were accurate. Unlike with the brandishing count, the gov-
ernment’s recitation of the elements for attempted robbery did not
cover aiding-and-abetting liability.
The district court asked defense counsel to state the steps he
had taken to inform Benitez of the charges and evidence against
him, his defenses, his rights, and the consequences of the plea.
Counsel, who was fluent in Spanish, explained that he had thor-
oughly reviewed the indictment, the statute, and the case law with
Benitez. According to counsel, Benitez had difficulty
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21-13306 Opinion of the Court 5
understanding “exactly what he’s pleading to” given that “he was
not present when the actual attempted robbery” took place, and he
had planned to be only the “getaway driver” and did not know the
robbery would happen that day. Counsel stated that he explained
to Benitez in detail that, under “the aiding and abetting theory,” as
set out in Rosemond v. United States, 572 U.S. 65 (2014), “even if .
. . he was not physically present when certain acts took place, if he
had advanced knowledge of what the attempted crime was going
to be and he assisted or aided and abetted . . . in that crime, that he
is just as guilty as the person who actually perpetrated the crime.”
Counsel also told Benitez that he would have had to notify law en-
forcement to be able to “argue that he . . . had withdrawn or he
was not actively involved in the crime.” Benitez agreed with coun-
sel’s explanation and confirmed his understanding. He also said he
was pleading guilty because he was in fact guilty.
Later, the district court read out the factual proffer in open
court and asked Benitez if the facts were true and accurate. De-
fense counsel interjected that the answer was “yes, as far as his cul-
pability” “under an aiding and abetting theory,” but that the indict-
ment and part of the proffer made it seem like “he, himself did
these things,” which was not accurate and had contributed to his
“difficulty in understanding.” Counsel pointed to the factual prof-
fer’s statement that Benitez “attempted to commit an armed rob-
bery,” which was accurate “under the aiding and abetting theory”
but factually misleading. The court said it was clear that Benitez
was not present at the attempted robbery. With that clarification,
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6 Opinion of the Court 21-13306
Benitez agreed that the factual proffer was accurate. The court
then asked counsel if he was satisfied that “there has been a suffi-
cient factual basis for his plea of guilty under an aiding and abetting
theory.” Counsel agreed. Immediately after, Benitez pled guilty.
The district court accepted the guilty plea as knowing and
voluntary and “supported by an independent basis in fact contain-
ing each of the essential elements of the offenses.” The court sen-
tenced Benitez to 57 months on the attempted-robbery count, fol-
lowed by 84 months on the brandishing count. This appeal fol-
lowed. 1
II.
We start with Benitez’s conviction on Count 2 for attempted
Hobbs Act robbery. Benitez contends that the plea colloquy was
fatally defective under Rule 11 and unconstitutional because the
district court failed to ensure he understood the nature of the
charge, including the doctrines of attempt and aiding and abetting.
Relatedly, he asserts that “no factual basis [was] elicited for either
an attempt or an aiding and abetting offense.”
1 The district court originally entered judgment in December 2017. In August
2018, Benitez filed a 28 U.S.C. § 2255 motion alleging, among other deficien-
cies, that counsel failed to file a notice of appeal. The district court granted
relief on that claim and reimposed its judgment so that Benitez could take a
timely appeal. See United States v. Phillips, 225 F.3d 1198, 1201 (11th Cir.
2000) (authorizing this relief in a § 2255 proceeding). This is that appeal.
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21-13306 Opinion of the Court 7
Because Benitez raises these arguments for the first time on
appeal, we review for plain error only. See United States v. Pres-
endieu, 880 F.3d 1228, 1237 (11th Cir. 2018) (reviewing similar con-
stitutional and Rule 11 arguments for plain error); United States v.
Puentes-Hurtado, 794 F.3d 1278, 1285–86 (11th Cir. 2015) (review-
ing a challenge to the sufficiency of the factual basis for plain error).
Under that standard, Benitez “bears the burden of showing that
there is (1) error, (2) that is plain, and (3) that affects substantial
rights.” Presendieu, 880 F.3d at 1237 (quotation marks omitted).
Even then, “we may recognize the forfeited error only if it seriously
affects the fairness, integrity or public reputation of judicial pro-
ceedings.” Id. (cleaned up).
A.
To ensure that guilty pleas are knowing and voluntary, and
therefore constitutionally valid, “Rule 11(b) sets out procedures
that district courts must follow when accepting guilty pleas.” Pres-
endieu, 880 F.3d at 1238; see McCarthy v. United States, 394 U.S.
459, 466 (1969). “These procedures are designed to address the
three ‘core objectives’ necessary for a knowing and voluntary
guilty plea: (1) that the defendant enters his plea free from coercion,
(2) that he understands the nature of the charges, and (3) that he
understands the consequences of his plea.” Presendieu, 880 F.3d at
1238. Although the requirements of Rule 11 are “mandatory,” not
“aspirational,” the adequacy of a plea colloquy is determined by
“matters of substance, not form.” United States v. Monroe, 353
F.3d 1346, 1351 (11th Cir. 2003). And only a “total” or “abject”
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8 Opinion of the Court 21-13306
failure to address a core concern will be enough to warrant relief
on plain-error review. 2 Presendieu, 880 F.3d at 1239.
Regarding the second core objective, the district court must
“inform the defendant of, and determine that the defendant under-
stands,” “the nature of each charge to which the defendant is plead-
ing.” Fed. R. Crim. P. 11(b)(1)(G). There is no exact formula for
determining whether the court adequately informed the defendant
of the nature of the charges. Presendieu, 880 F.3d at 1238. The
court is not necessarily required to list out each element of the of-
fense. Id. Rather, the adequacy of a plea colloquy depends “on the
complexity of the charges and the defendant’s intelligence and so-
phistication.” Id. “District courts must ensure, one way or an-
other, that the defendant knows and understands the nature of the
offenses to which he or she is pleading guilty.” Id. at 1239.
Our task on appeal is to review the record as a whole and
determine whether the defendant “understood what he was admit-
ting and that what he was admitting constituted the crime
charged.” Id. at 1240 (quotation marks omitted). In doing so, we
give deference to the district court’s factual findings that the
2 In addition, the defendant seeking to show plain error usually must demon-
strate that, but for the error during the plea colloquy, “there is a reasonable
probability that he would have gone to trial rather than plead guilty.” Greer
v. United States, 141 S. Ct. 2090, 2098–2100 (2021); Presendieu, 880 F.3d at
1239 n.3. Aside from his bare assertion to that effect, which contradicts his
sworn statements during the plea colloquy and is insufficient on its own, Be-
nitez has not made such a showing.
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21-13306 Opinion of the Court 9
defendant understood the nature of the charges and that the de-
fendant entered a knowing and voluntary plea of guilty, reviewing
them for clear error only. Id.
The district court also must “determine that there is a factual
basis for the plea.” Fed. R. Crim. P. 11(b)(3). This requirement
protects “a defendant who mistakenly believes that his conduct
constitutes the criminal offense to which he is pleading.” United
States v. Frye, 402 F.3d 1123, 1128 (11th Cir. 2005) (quotation
marks omitted). “A factual basis for the plea simply means that
there must be evidence from which a court could reasonably find
that the defendant was guilty, and uncontroverted evidence of guilt
is not required.” United States v. Rodriguez, 751 F.3d 1244, 1255
(11th Cir. 2014) (quotation marks omitted).
B.
Benitez maintains that his guilty plea was fatally defective
because “[n]othing in the plea colloquy . . . adequately covered the
complex interaction between vicarious liability and the inchoate
offense of attempt.” He notes that the plea agreement covered aid-
ing-and-abetting liability for the § 924(c) offense only. So in his
view, “[t]he government did not rely on any theory of vicarious
liability” as to Count 2, but it then failed to reference an essential
element of attempt: that Benitez took “a substantial step in the ac-
tual commission of the offense.” He also contends that defense
counsel’s statements confused aiding-and-abetting liability with
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10 Opinion of the Court 21-13306
coconspirator liability under Pinkerton3 and showed that Benitez
may have been induced to plead guilty based on uncharged or in-
correct theories of vicarious liability. All told, according to Benitez,
he failed to understand the actual crime charged, and he pled guilty
based on uncharged and unexplained, or incorrectly explained, the-
ories of vicarious liability.
Starting with the charge itself, the Hobbs Act makes it a
crime to obstruct, delay, or affect commerce “by robbery” or to
“attempt[] or conspire[] to do so.” 18 U.S.C. § 1951(a). To be con-
victed of an “attempt,” a defendant must (1) have the specific intent
to engage in the criminal conduct with which he is charged; and (2)
have taken a substantial step towards the commission of the of-
fense. United States v. Yost, 479 F.3d 815, 819 (11th Cir. 2007).
The federal aiding-and-abetting statute, 18 U.S.C. § 2, states
that a person who “aids, abets, counsels, commands, induces or
procures” the commission of a federal offense “is punishable as a
principal.” Rosemond v. United States, 572 U.S. 65, 70 (2014). It
reflects the view “that a person may be responsible for a crime he
has not personally carried out if he helps another to complete its
commission.” Id. “[A] person is liable under § 2 for aiding and
abetting a crime if (and only if) he (1) takes an affirmative act in
3 Pinkerton v. United States, 328 U.S. 640 (1946); see United States v. Alvarez,
755 F.2d 830, 847 (11th Cir. 1985) (“Under Pinkerton, each member of a con-
spiracy is criminally liable for any crime committed by a coconspirator during
the course and in furtherance of the conspiracy . . . .”).
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21-13306 Opinion of the Court 11
furtherance of that offense, (2) with the intent of facilitating the of-
fense’s commission.” Id. at 71. The government must also prove
that “the substantive crime was committed by someone.” United
States v. Seabrooks, 839 F.3d 1326, 1333 (11th Cir. 2016).
Aiding-and-abetting liability need not be charged in the in-
dictment. Id. As “merely a theory upon which criminal liability
may be based,” not an essential element of the underlying offense,
United States v. Camacho, 233 F.3d 1308, 1315 (11th Cir. 2000), it
is “an alternative charge in every count, whether explicit or im-
plicit,” United States v. Walker, 621 F.2d 163, 166 (5th Cir. 1980). 4
Nor does the failure to mention aiding-and-abetting liability
during the plea colloquy render a guilty plea based on that theory
of liability invalid. In United States v. DePace, for example, two
defendants challenged their guilty pleas for aiding and abetting a
§ 924(c) offense on the ground that they did not understand the na-
ture of the charges. 120 F.3d 233, 236–37 (11th Cir. 1997). We af-
firmed, even though no explanation of aiding and abetting was pro-
vided in the indictment, in the plea agreement, or during the plea
colloquy. Id. at 236–37. As to one defendant, we found that a lay
person would understand his legal culpability because he was in the
room with his codefendants when they brandished weapons and
assaulted a federal agent. Id. at 237. As to the other defendant,
4 This Court adopted as binding precedent all Fifth Circuit decisions prior to
October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.
1981) (en banc).
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12 Opinion of the Court 21-13306
who was outside in a van when these events took place, we found
that “a lay person might not understand this legal principle without
an explanation.” Id. Still, we affirmed the court’s finding that the
defendant understood the nature of the charges because there was
“nothing in the record to contradict the district court’s conclusion
that [he] adequately comprehended the basis for his plea.” Id. at
238.
Here, Benitez has not demonstrated plain error. Although
the indictment and plea agreement did not expressly allege that Be-
nitez aided and abetted the attempted robbery, in contrast to the
plea agreement’s treatment of Count 3, Count 2 of the indictment
did refer to the aiding-and-abetting statute, § 2, putting Benitez on
notice of that theory of liability. In any event, aiding-and-abetting
liability need not be charged in the indictment and is considered an
alternative charge in every count. See Seabrooks, 839 F.3d at 1333;
Walker, 621 F.2d at 166. So the district court was not prohibited
from accepting Benitez’s guilty plea as to Count 2 under an aiding-
and-abetting theory of liability even though it was not expressly
referenced in the plea agreement.
And the record of the plea colloquy shows that the district
court accepted the guilty plea based on that theory. Defense coun-
sel indicated that his discussions with Benitez about the case cen-
tered on aiding-and-abetting liability as set out in Rosemond,
which Benitez confirmed was accurate. Then, after the district
court read out the factual proffer in open court, which outlined the
assistance Benitez offered to the two individuals who committed
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21-13306 Opinion of the Court 13
the attempted robbery, defense counsel indicated that the facts es-
tablished Benitez’s guilt “under an aiding and abetting theory.” Be-
nitez agreed that the factual proffer was accurate once the court
confirmed he was not present for the attempted robbery. And Be-
nitez pled guilty to Count 2 immediately after defense counsel con-
firmed the court’s statement that there was “a sufficient factual ba-
sis for his plea of guilty under an aiding and abetting theory.” Ac-
cordingly, the record shows that Benitez pled guilty to aiding and
abetting the attempted robbery charged in Count 2.
We agree with the district court that the factual proffer pro-
vided a sufficient factual basis for the guilty plea under an aiding-
and-abetting theory. It is undisputed that an attempted robbery
occurred outside the TD Bank on December 20, 2016. See Sea-
brooks, 839 F.3d at 1333. The factual proffer also shows that Beni-
tez took “an affirmative act in furtherance of that offense . . . with
the intent of facilitating the offense’s commission.” Rosemond, 572
U.S. at 71. He supplied his two coconspirators with his inside
knowledge of the armored truck’s route, discussing the robbery
plans and bringing them to the bank where the attempted robbery
occurred, and he expected to receive a share of the proceeds. Based
on these facts, the court could reasonably conclude that Benitez
was guilty of aiding and abetting the attempted robbery. 5 See Ro-
driguez, 751 F.3d at 1255.
5 Benitez claims that he was cut out of the robbery plan and lacked knowledge
that the robbery would go forward on December 20. But those facts were not
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14 Opinion of the Court 21-13306
The record also supports the district court’s finding that Be-
nitez’s guilty plea was knowing and voluntary and that he under-
stood the nature of the charge and the legal grounds upon which
he was pleading guilty. See Presendieu, 880 F.3d at 1238. Although
the crimes of robbery or attempted robbery are fairly simple to un-
derstand, particularly under the facts set out in the factual proffer,
a lay person might not understand “without an explanation” why
he would be held liable for an attempted robbery and shooting he
was not present for. DePace, 120 F.3d at 237. Indeed, defense
counsel noted that Benitez had some difficulty understanding his
culpability for the attempted robbery and shooting when he was
not at those events.
Despite this added complexity, though, nothing in the plea
colloquy suggests that Benitez’s confusion persisted through the
change-of-plea hearing, such that the district court should have
conducted a more in-depth inquiry or explained aiding-and-abet-
ting liability in more detail. See id. On the contrary, Benitez con-
firmed that he had fully discussed the indictment with counsel and
was fully satisfied with his representation, that he understood the
charges, that the facts in the factual proffer were accurate, and that
he was pleading guilty because he was in fact guilty. He never con-
tradicted counsel’s explanation of their discussions about aiding-
and-abetting liability or sought clarification of the repeated
part of the factual proffer, which provided a sufficient basis for the guilty plea,
and “uncontroverted” evidence of guilt is not required. Rodriguez, 751 F.3d
at 1255.
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21-13306 Opinion of the Court 15
references to that theory of liability. Rather, he pled guilty to
Count 2 immediately after the court described the factual proffer
as providing a “sufficient factual basis for his plea of guilty under
an aiding and abetting theory.” Benitez also possessed a GED and
was represented by an attorney who was fluent in Spanish, which
indicates there was no language barrier to his understanding. In
these circumstances, as in DePace, the failure to provide an expla-
nation about aiding-and-abetting liability does not undermine the
court’s finding that Benitez understood the basis for his plea. See
id.
We are not persuaded that defense counsel’s comments
about “withdrawal” suggest he misled Benitez about aiding-and-
abetting liability by mistakenly referring to Pinkerton liability.
Counsel explained that he informed Benitez about aiding-and-abet-
ting liability based in Rosemond, which does not mention Pinker-
ton liability. And Rosemond refers to a defendant’s “withdraw[al]”
to avoid liability under an aiding-and-abetting theory, which is
broadly consistent with counsel’s comments. See e.g., id. at 78
(“When an accomplice knows beforehand of a confederate’s design
to carry a gun, he can attempt to alter that plan or, if unsuccessful,
withdraw from the enterprise.” (emphasis added)). Counsel’s ar-
guably ambiguous comments do not suggest that any plain or clear
error occurred, particularly where the district court was in the best
position to observe Benitez’s demeanor, intelligence, and under-
standing of the charges. See Presendieu, 880 F.3d at 1240.
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16 Opinion of the Court 21-13306
For these reasons, the plea colloquy was not so deficient that
it resulted in a total or abject failure to address the core principle
that “a defendant understands the nature of the charges against
him.” Id. at 1239. The district court therefore did not plainly err
in accepting his guilty plea. We affirm Benitez’s conviction on
Count 2 for aiding and abetting the attempted Hobbs Act robbery.
III.
But we reverse Benitez’s conviction on Count 3 for aiding
and abetting the use and brandishing of a firearm during and in re-
lation to a crime of violence, namely the attempted Hobbs Act rob-
bery charged in Count 2.
When this appeal was filed, our precedent held that at-
tempted Hobbs Act robbery qualified as a crime of violence for pur-
poses of § 924(c). See United States v. St. Hubert, 909 F.3d 335, 351
(11th Cir. 2018) (“Like completed Hobbs Act robbery, attempted
Hobbs Act robbery qualifies as a crime of violence under
§ 924(c)(3)(A)’s use-of-force clause because that clause expressly in-
cludes ‘attempted use’ of force.”). In June 2022, however, the Su-
preme Court overruled St. Hubert and held that a conviction for
attempted robbery under the Hobbs Act cannot serve as a predicate
offense for a § 924(c) conviction. United States v. Taylor, 142 S. Ct.
2015, 2025 (2022) (“Attempted Hobbs Act robbery does not require
proof of any of the elements § 924(c)(3)(A) demands.”).
Both parties agree that Taylor requires that Benitez’s
§ 924(c) conviction be set aside. Because Taylor makes clear that
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21-13306 Opinion of the Court 17
Benitez lacks an underlying crime of violence for purposes of
§ 924(c), we reverse his conviction on Count 3.
Consistent with our ordinary practice, we also vacate Beni-
tez’s entire sentence and remand for resentencing on Count 2. See
United States v. Fowler, 749 F.3d 1010, 1017 (11th Cir. 2014) (ex-
plaining that, when a conviction is set aside, we presume that “sen-
tences on each count of a multi-count indictment are part of a pack-
age that may . . . be revisited to ensure that the overall sentence on
the surviving counts is consistent with the district court’s inten-
tions, the guidelines, and the § 3553(a) factors”); id. (“[S]entences
that include a mandatory consecutive term of imprisonment . . .
are particularly well suited to being treated as a package because
they are inherently interdependent.” (cleaned up)).
IV.
In sum, we affirm Benitez’s conviction on Count 2. We re-
verse his conviction on Count 3. We vacate the entire sentence
and remand for resentencing.
AFFIRMED IN PART; REVERSED IN PART; VACATED
AND REMANDED IN PART.