United States v. Coleman , 212 F. App'x 297 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED January 3, 2007
Charles R. Fulbruge III
In the Clerk
United States Court of Appeals
for the Fifth Circuit
_______________
m 06-30197
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ANTHONY QUINN COLEMAN,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Louisiana
m 05-CR-20038
______________________________
Before HIGGINBOTHAM, SMITH, and DEMOSS, Anthony Coleman pleaded guilty to one
Circuit Judges count of possession of a firearm by a convicted
felon. He appeals his sentence, claiming the
PER CURIAM:* district court impermissibly departed from the
* *
Pursuant to 5TH CIR. R. 47.5, the court has de- (...continued)
termined that this opinion should not be published and is not precedent except under the limited cir-
(continued...) cumstances set forth in 5TH CIR. R. 47.5.4.
applicable guideline range. Because the court tory category, the PSR indicated an additional
failed to articulate sufficient reasons to justify eleven prior convictions that had not been in-
an upward departure, we vacate the sentence cluded in the calculation. At sentencing, how-
and remand for resentencing. ever, no mention was made of the criminal
history;1 instead, the court indicated that it
I. considered Coleman’s offense to be a different
Coleman was arrested while walking on a situation from a typical felon-in-possession
street carrying a 12-gauge shotgun. He con- charge:
fessed that the night before his arrest, he had
participated in the burglary of a local gas sta- This incident involved a burglary that Cole-
tion. The 12-gauge shotgun he was carrying man was involved in, and he was found
had been stolen from the house of one of his walking down the street while they were
co-burglars; Coleman claimed he had bought still looking for the people who were in-
it that morning from one of his cohorts, in- volved in the burglary that very same day
tending to pawn it for a profit. His accomplice with a shotgun. And, according to the
denied having stolen the shotgun or having PSR, that shotgun had been stolen from a
sold it to Coleman. home by one of the co-perpetrators in the
burglary that Mr. Coleman was involved in,
Coleman’s presentence investigation report which would lead me to believe that the
(“PSR”), to which he did not object, suggested shotgun was present during the burglary.
a base offense level of 20, pursuant to
U.S.S.G. § 2K2.1(a)(4)(A). Two levels were The court sentenced Coleman to the statutory
added because the weapon was stolen, and maximum of 120 months’ imprisonment, a
three levels were subtracted for acceptance of 54% increase from the high-end of the guide-
responsibility. Coleman was assessed a crim- line range.
inal history score of 17 for numerous felony
and misdemeanor criminal convictions, for II.
committing the offense while on probation, Where a court imposes a sentence that in-
and for committing it within two years of re- cludes an upward departure authorized by the
lease from custody on another offense. His guidelines, we review for “abuse of discre-
score was four points higher than the minimum tion.” United States v. Smith, 440 F.3d 704,
for criminal history category VI; his offense 707 (5th Cir. 2006). We look to our pre-
level and criminal history category yielded a
guideline range of 63-78 months’
imprisonment.
The district court informed both parties be- 1
In the written statement of reasons, the court
fore sentencing that it was considering an up- wrote, “The criminal history category substantially
ward departure from the recommended guide- under represented the seriousness and violence of
line range because of “this defendant’s criminal the defendant’s criminal history. The charged of-
history and the nature of the offense.” Despite fense under represents the seriousness of the con-
the fact that Coleman’s criminal history score duct.” This language merely restates the statutory
placed him in the highest possible criminal his- standard. See U.S.S.G. § 4A1.3(a)(1); 18 U.S.C.
§ 3553(a)(2)(A).
2
Booker caselaw2 for guidance in assessing the tives set forth in 18 U.S.C. § 3553(a)(2),
extent of the departure. Id. at 707. The court should result in a sentence different from that
is entitled to find by a “preponderance of the described.” U.S.S.G. § 5K2.0(a)(1). “The
evidence” all the facts relevant to an upward Guidelines Manual explains that it intends each
departure, United States v. Mares, 402 F.3d guideline to create a heartland of typical cases
511, 519 (5th Cir. 2005), cert. denied, 126 S. and departure is appropriate only if conduct in
Ct. 43 (2005), and we accept findings of fact a given case differs significantly from the norm
made in connection with sentencing unless and such that the crime is outside this
they are clearly erroneous, United States v. heartland.” United States v. Saldana, 427
Creech, 408 F.3d 264, 270 n.2 (5th Cir. F.3d 298, 309 n.43 (5th Cir. 2005) (citing
2005). “There is no abuse of discretion if the United States v. Winters, 174 F.3d 478, 482
judge provides acceptable reasons for (5th Cir. 1999)).
departure and the degree of departure is
reasonable.” United States v. Delgado-Nunez, The district court stated that it was depart-
295 F.3d 494, 497 (5th Cir. 2002) (citing ing from the guidelines because Coleman’s of-
United States v. Nevels, 160 F.3d 226, 229-30 fense presented a “different situation” from a
(5th Cir. 1998)). “Enunciation of an adequate typical felon in possession charge. The court
explanation for departure from the sentencing based this conclusion on its finding that Cole-
guidelines range is a threshold requirement man had possessed the shotgun during a burg-
mandated by statute.” United States v. lary the night before his arrest. This finding
Madison, 990 F.2d 178, 182 (5th Cir. 1993).3 was clearly erroneous.
The sentencing guidelines authorize upward There was no evidence in the PSR or in the
departures if the court finds aggravating factual stipulation that would indicate the shot-
circumstances “of a kind, or to a degree, not gun was present at the burglary. The only
adequately taken into consideration by the government witness at sentencing admitted
Sentencing Commission in formulating the that “we are unable to decide if [the gun was
guidelines that, in order to advance the objec- stolen] prior [to] or after the burglary.” Under
a preponderance of the evidence standard, a
judge could not reasonably have concluded
2
See United States v. Booker, 543 U.S. 220 that the gun was present at the burglary.
(2005).
Other than the erroneous finding that the
3
See, e.g., U.S.S.G. § 5K2.0(e) (“If the court gun was used in a burglary, at sentencing the
departs from the applicable guideline range, it shall court made no other factual finding to justify
state, pursuant to 18 U.S.C. § 3553(c), its specific the upward departure. The government con-
reasons for departure in open court at the time of
tends that, even if Coleman did not possess the
sentencing and, with limited exception in the case
of statements received in camera, shall state those
gun during the burglary, it is undisputed that
reasons with specificity in the written judgment and the two events occurred close in time. The
commitment order.”). Cf. Smith, 440 F.3d at 707 government fails to explain, however, how
(“[T]he district court must more thoroughly temporal proximity distinguishes Coleman’s
articulate its reasons when it imposes a non- case from the heartland of the guidelines
Guideline sentence than when it imposes a sentence range. Even if were to overlook the court’s
under the authority of the guidelines.”).
3
error that resulted from its failure to identify trict court did not indicate why criminal history
any other elements of Coleman’s offense that category VI does not adequately account for
take him out of the heartland, its explanation these convictions, particularly in view of the
that “the charged offense under represents the fact that none of Coleman’s prior felony
seriousness of his conduct” is not an adequate convictions was for violent conduct. Without
ground for departure. specific, stated reasons for the upward depar-
ture, the departure does not survive the abuse-
As for the other asserted reason for depar- of-discretion standard of review.4
ture, that “the criminal history category sub-
stantially under represents the seriousness and It is true that sentencing courts are not re-
violence of the defendant’s criminal history,” quired to give lengthy, rote explanations when
the court made no mention of this factor at the announcing sentences authorized by the guide-
sentencing hearing. We have previously rec- lines. Mares, 402 F.3d at 519. We also note
ognized that “in the event of a conflict be- that the departure in this case is within the
tween an oral pronouncement of judgment and range of departures that have been previously
a written judgment the oral pronouncement upheld under § 4A1.3.5 For us to exercise ap-
controls.” United States v. McDowell, 109 pellate review over an upward departure sen-
F.3d 214, 217 (5th Cir. 1997). We would be tence (even one authorized by the guidelines),
tempted to conclude that the court did not rely however, the court must articulate some fact-
on Coleman’s criminal history in arriving at a
departure. 4
See, e.g., United States v. Martinez-Perez,
Even if we were to consider the explanation 916 F.2d 1020, 1024-25 (5th Cir. 1990) (“We
have repeatedly stated, when a district court relies
in the written judgment, however, we would
on section 4A1.3 to depart from the established
find it inadequate, because the court did not
guidelines, it should articulate its reasons for doing
“specify in writing . . . the specific reasons why so explicitly. The court should identify clearly the
the applicable criminal history category aggravating factors and its reasons for connecting
substantially under-represents the seriousness them to the permissible grounds for departure un-
of the defendant’s criminal history or the likeli- der section 4A1.3. The district court did not do so
hood that the defendant will commit other in this case, and our review of the record has un-
crimes.” U.S.S.G. § 4A1.3(c)(1). In United earthed no reason to believe that the Guidelines did
States v. Zuniga-Peralta, 442 F.3d 345 (5th not adequately consider this defendant’s criminal
Cir. 2006), we upheld a sentence where the history. We therefore conclude that the district
court’s written statement failed to provide spe- court erred in departing from the Guidelines on that
cific factual reasons; we did so because the ground.”) (internal citations omitted).
court had expressly adopted the findings of the 5
See, e.g., United States v. Millsaps, 157 F.3d
PSR, which recommended a departure under
989, 997 (5th Cir. 1998) (approving a departure
§ 4A1.3. from a range of 151-188 months to a sentence of
238 months based on offenses not included in crim-
Coleman’s PSR makes no such recommen- inal history score); United States v. Ashburn, 38
dation. Although Coleman has a number of F.3d 803, 808-10 (5th Cir. 1994) (upward depar-
older convictions that were not considered in ture from a guideline range maximum of 78 months
calculating his criminal history score, the dis- to 180 months where previous robberies were not
included in criminal history score).
4
specific reasons to allow us to conclude that
the sentence was fair and reasonable.6 Where
the court fails to provide any fact-specific rea-
sons to support a departure of 42 months from
the top of the guideline range, it is an abuse of
discretion, at least under the facts and circum-
stances of this case.
The sentence is VACATED, and this matter
is REMANDED for resentencing.
6
See Mares, 402 F.3d at 519 (“Such reasons
are essential to permit this court to review the sen-
tence for reasonableness as directed by Booker.”).
5