1. Introduction

United States v. Augillard addresses recurring federal sentencing questions at the intersection of the categorical approach, the Sentencing Guidelines’ “controlled substance offense” definition, and the “realistic probability” test. Julius Augillard pleaded guilty to two counts of being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1). The sentencing court set a base offense level of 22 under U.S.S.G. § 2K2.1(a)(3), relying in part on Augillard’s 2011 Louisiana conviction for possession with intent to distribute cocaine as a “controlled substance offense.” The court also applied the four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for possessing a firearm “in connection with another felony offense” based on contemporaneous drug conduct.

On appeal, Augillard raised four issues:

• whether the district court wrongly used the “realistic probability” test to treat the 2011 Louisiana cocaine statute as a “controlled substance offense” despite facial overbreadth (Ioflupane mismatch);
• whether the § 2K2.1(b)(6)(B) enhancement lacked evidentiary support;
• whether a discretionary drug-treatment supervised release condition in the written judgment conflicted with the oral pronouncement; and
• whether § 922(g)(1) violates the Second Amendment (facially or as applied).

The Fifth Circuit affirmed the Guidelines determinations on the first two issues, rejected the Second Amendment challenge as foreclosed, but vacated in part and remanded to conform the written judgment to the oral pronouncement regarding supervised release.

2. Summary of the Opinion

• Controlled substance offense / realistic probability: The court held that the district court properly applied the “realistic probability” test (including the “actual case” requirement) to Augillard’s 2011 Louisiana conviction, notwithstanding the conceded facial overbreadth stemming from Louisiana’s then-definition of cocaine not expressly excluding Ioflupane while the federal definition does. The panel concluded that neither United States v. Taylor nor Brown v. United States abrogated United States v. Castillo-Rivera.
• § 2K2.1(b)(6)(B) enhancement: The court held the district court did not clearly err in finding Augillard possessed a firearm in connection with another felony, relying on drug quantity, packaging into separate baggies, the context (Mardi Gras), and the presence of loaded firearms across incidents.
• Supervised release condition conflict: The written judgment broadened an orally pronounced discretionary condition by making outpatient treatment mandatory rather than conditional on a positive test. Because discretionary conditions must be pronounced, the conflict required remand to excise the added written terms and conform to the oral sentence.
• Second Amendment: The challenge to § 922(g)(1) was foreclosed by circuit precedent.

3. Analysis

3.1 Precedents Cited

A. Standard of review and burden

• United States v. Abrego: Provided the baseline framework—Guidelines interpretation/application reviewed de novo; factfinding for clear error.
• United States v. Luna- Gonzalez: Confirmed the government’s burden to prove facts supporting an elevated base offense level by a preponderance.

B. “Controlled substance offense,” categorical approach, and the realistic probability test

• United States v. Minor: Set out the operative method: look to U.S.S.G. § 4B1.2(b)’s definition, borrow cues from the CSA where “controlled substance” is undefined in the Guidelines, and apply the categorical approach by comparing elements.
  Augillard attempted to characterize aspects of Minor as dicta, but the panel avoided making its holding depend on that debate.
• United States v. Gomez-Alvarez and United States v. Arayatanon: Supported the court’s practice of anchoring “controlled substance” to the CSA’s scheduling framework when the Guidelines do not supply an independent definition.
• Mathis v. United States: Supplied the categorical-approach principle that a prior conviction fails as a predicate if its elements sweep more broadly than the generic/predicate definition.
• Gonzalez v. Duenas-Alvarez: Originated the “realistic probability” test and the “actual case” requirement—more than theoretical overbreadth is required; a defendant must “at least point to his own case or other cases” where the state applied the statute in the asserted nongeneric manner.
• United States v. Castillo-Rivera (en banc): The controlling Fifth Circuit authority applied Duenas-Alvarez to require actual state cases even where a statute appears broader “on its face,” expressly rejecting a facial-overbreadth exception.
  “In short, without supporting state case law, interpreting a state statute’s text alone is simply not enough to establish the necessary ‘realistic probability.’”
• United States v. Taylor: Augillard’s primary abrogation argument. The panel read Taylor narrowly: it declined to extend the realistic probability test in a federal-to-federal comparison (attempted Hobbs Act robbery vs. § 924(c)), emphasizing the absence of federalism concerns and “no overlap” between the statutes—rather than disavowing Duenas-Alvarez.
• Brown v. United States: Augillard argued Brown undermined Castillo-Rivera. The panel rejected this: Brown addressed ACCA timing of schedule “match” and did not mention Duenas-Alvarez or realistic probability.
• United States v. Kerstetter: Persuasive (unpublished) support the panel expressly embraced for the proposition that Taylor did not overrule Duenas-Alvarez and therefore did not unsettle Castillo-Rivera.
• United States v. Russell, Ponce v. Garland, Alejos-Perez v. Garland, and Khan v. Garland: Post-Taylor Fifth Circuit decisions continuing to apply realistic probability when comparing state statutes to federal definitions, reinforcing that Taylor is context-specific.
• United States Alcantar and United States v. Clark: Panel-stare-decisis guardrails. Abrogation requires an unequivocal intervening change; one panel cannot overrule another absent such change.

C. § 2K2.1(b)(6)(B) (“in connection with another felony offense”)

• United States v. Windless: Reaffirmed due process requirement that sentencing facts be established by a preponderance.
• United States v. Jeffries: The central comparator. Jeffries distinguished drug-trafficking proximity (where commentary creates an “automatic” application) from simple possession (where more is needed to show facilitation/emboldening). The panel used Jeffries to explain why Augillard’s facts—drug quantity and packaging, a loaded firearm, festival context, and later similar conduct—made the district court’s inference of trafficking facilitation plausible.

D. Oral pronouncement vs. written judgment (supervised release conditions)

• United States v. Diggles (en banc): Established that discretionary supervised release conditions must be orally pronounced.
• United States v. Martinez: Supplied abuse-of-discretion review where the defendant lacked an opportunity to object to a new written condition.
• United States v. Mireles: Provided the conflict test—written conditions that “broaden” the oral sentence must yield to the oral pronouncement.
• United States v. Nelson: Restated that the oral pronouncement controls.
• United States v. Currier: Announced the “bright-line” remedial rule: conflicting discretionary conditions must be excised on remand (at minimum).

E. Second Amendment challenges to § 922(g)(1)

• United States v. Diaz: Foreclosed the facial challenge.
• United States v. Kimble: Foreclosed the as-applied challenge.

3.2 Legal Reasoning

A. The opinion’s core holding: “Realistic probability” survives facial overbreadth arguments (in state-to-federal comparisons)

The opinion’s most consequential doctrinal move is its reaffirmation that, in the Fifth Circuit, Castillo-Rivera continues to require an “actual case” showing even when the defendant identifies a facial mismatch between a state drug definition and the CSA schedule language. The parties agreed Louisiana’s 2011 cocaine schedule did not expressly exclude Ioflupane, while federal law does; nevertheless, the panel held Augillard still had to show Louisiana “in fact” applied the statute to Ioflupane (or analogous non-CSA conduct), and he could not.

The panel rejected abrogation by:

• Reading United States v. Taylor as non-transferrable to state-to-federal comparisons. Taylor is framed as a decision about not extending realistic probability in a federal-to-federal setting with “no overlap,” not as an instruction to abandon the test where state statutory breadth is at issue.
• Treating Brown v. United States as orthogonal. Brown answered a timing question for ACCA predicates (schedule match “when the state drug offense was committed”) and did not speak to realistic probability.
• Invoking the Fifth Circuit’s law-of-the-circuit rules (United States v. Clark; United States Alcantar): absent an unequivocal intervening change, Castillo-Rivera controls.

Although the opinion is unpublished, its reasoning is significant because it signals continued panel reliance on Castillo-Rivera in drug-schedule mismatch litigation—an issue that has produced divergent approaches among circuits and persistent defendant challenges after Taylor.

B. Enhancement under § 2K2.1(b)(6)(B): fact-sensitive inference of trafficking facilitation

On the enhancement, the panel applied the familiar Jeffries structure:

• If the “other felony” is drug trafficking and a firearm is in close proximity to drugs or paraphernalia, the commentary supports a presumption (“automatically applies” in the panel’s phrasing, consistent with Jeffries).
• If it is simple possession, proximity alone is insufficient; additional facts must show the firearm facilitated possession (e.g., protection/emboldening).

The panel upheld the district court’s inference that Augillard intended distribution (and thus that the firearm had the potential to facilitate trafficking) based on: (i) drug quantity (notably 28.27 grams of marijuana and 10.46 grams of cocaine during Mardi Gras), (ii) packaging into multiple baggies, (iii) possession of a loaded firearm with substantial ammunition, and (iv) a later arrest with additional packaged narcotics and another loaded firearm. This cumulative-evidence approach distinguishes Jeffries, which involved a single rock of crack cocaine and a firearm, deemed too sparse.

C. Supervised release: the oral sentence controls, and added written restrictions must be removed

The panel’s remedial holding is straightforward but practically important: the sentencing judge orally imposed a condition that treatment may be required after a positive test; the written judgment converted that conditional “may” into a mandatory “shall.” Under United States v. Diggles, discretionary conditions must be pronounced, and under United States v. Mireles any written “broadening” creates a conflict resolved in favor of the oral pronouncement. Applying United States v. Currier, the panel ordered remand to excise the conflicting written portion and conform the judgment to what was actually said in court.

3.3 Impact

A. Sentencing litigation over state drug predicates: a reinforced “actual case” gatekeeping rule

The immediate impact is doctrinal consolidation: defendants challenging Guidelines predicate status based on facial schedule mismatches (like Ioflupane exclusions) remain obligated—at least in the Fifth Circuit—to satisfy Castillo-Rivera’s actual-case requirement unless and until the Supreme Court unmistakably alters Duenas-Alvarez in the state-to-federal setting. Practically, this shifts the contest from textual comparison alone to a more evidentiary, research-intensive inquiry into state charging and appellate decisions (and, potentially, published trial-level materials where available).

B. “In connection with” enhancements: continued reliance on packaging/quantity/context

The decision reinforces that § 2K2.1(b)(6)(B) outcomes will turn on granular indicia of distribution—packaging, amount, ammunition/loadout, and context—rather than on proximity alone. For prosecutors, the case underscores the value of documenting packaging and quantities in the PSR; for defense counsel, it highlights that contesting trafficking inferences requires countervailing facts (personal-use indicators, lack of sales paraphernalia, credible explanations for quantity/packaging, etc.).

C. Supervised release administration: stricter drafting discipline

The remand illustrates continuing Fifth Circuit intolerance for written-judgment “upgrades” to supervised release conditions. It encourages district courts and probation offices to ensure written judgments mirror the oral pronouncement—especially when converting conditional language (“may”) into mandatory language (“shall”).

4. Complex Concepts Simplified

Categorical approach

A method for deciding whether a prior conviction qualifies as a federal “predicate” (here, a “controlled substance offense”) by comparing the statute’s legal elements—rather than the defendant’s real-world conduct—to the federal definition.

“Controlled substance offense” (Guidelines)

A Guidelines term (via U.S.S.G. § 4B1.2(b), used in § 2K2.1) covering certain drug manufacturing/distribution offenses and possession-with-intent offenses, punishable by more than one year. Because the Guidelines do not define “controlled substance,” courts often look to the CSA schedules for reference.

Facial overbreadth (in this context)

A claim that the state statute’s definition covers more substances (or more conduct) than the federal definition—here, because Louisiana’s cocaine schedule did not expressly exclude Ioflupane while federal law does.

“Realistic probability” test and “actual case” requirement

Even if a statute looks broader, a defendant must show the state actually applies it in the broader way (for example, by identifying prosecutions or cases). The Fifth Circuit, following United States v. Castillo-Rivera, applies this requirement even when the statute seems facially overbroad.

Oral pronouncement vs. written judgment

The sentence announced in open court is the legally operative sentence. If the written judgment adds a harsher discretionary supervised-release condition that was not orally imposed, the oral sentence controls and the added written terms must be removed.

5. Conclusion

United States v. Augillard (1) reaffirms that United States v. Castillo-Rivera remains controlling in the Fifth Circuit and that neither United States v. Taylor nor Brown v. United States eliminates the “realistic probability” actual-case requirement for state-to-federal predicate comparisons, even where facial overbreadth is conceded; (2) sustains a § 2K2.1(b)(6)(B) enhancement based on concrete indicia supporting an inference of drug distribution facilitation; and (3) enforces the primacy of the oral pronouncement by requiring excision of broadened discretionary supervised-release conditions added only in the written judgment.