United States v. Taylor , 187 F. App'x 362 ( 2006 )

United States Court of Appeals
Fifth Circuit
In the
F I L E D
United States Court of Appeals June 19, 2006
for the Fifth Circuit
_______________
m 04-41228 Charles R. Fulbruge III
Summary Calendar Clerk
______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JIMMY TAYLOR,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Eastern District of Texas
m 2:03-CR-19-TJW-18
_________________________
Before SMITH, GARZA, and PRADO, Jimmy Taylor appeals his sentence for drug
Circuit Judges. possession and distribution and illegal use of a
firearm, alleging error under United States v.
PER CURIAM:* Booker, 543 U.S. 220 (2005), and challenging
the denial of his motion for a downward de-
parture. Because the record reveals that the
judge would have imposed a lesser sentence
*
Pursuant to 5TH CIR. R. 47.5, the court has de- under an advisory guidelines system, we va-
termined that this opinion should not be published cate and remand for resentencing.
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.
I. doesn’t get us anywhere that I can see, be-
Taylor pleaded guilty of possession with in- cause he had a prior drug conviction, and I
tent to distribute and distribution of less than don’t believe I can do anything about that,
five grams of cocaine base, in violation of 21 and I’m not inclined to do anything about
U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and it. And, you know, one of these assault
using and carrying a firearm during and in re- charges, he was under a court order, he vi-
lation to a drug trafficking offense, in violation olated the court’s order, criminal trespass,
of 18 U.S.C. § 924(c)(1).1 The PSR assigned and then he had the assault. He didn’t get
a base offense level of 34 under U.S.S.G. any points for that [sic] violating the court
§ 2D1.1, with a three-level downward depar- order and it’s just sort of hard for me to
ture for acceptance of responsibility. The PSR say, wellSSmy problem is I would have to
further determined that Taylor’s prior offenses, disregard three points, and I can’t find any
which included two misdemeanor assaults and three pointsSSI can’t find an additional two
one count of indecent exposure, merited six that this court feels like that would be ap-
criminal history points, with a resulting crimi- propriate. I will disregard the indecent ex-
nal history category of III, yielding a guideline posure, but it’s still a Category III.
range of 135 to 168 months’ imprisonment on
the drug trafficking offense and 60 months on DEFENSE ATTORNEY: And me and Mr.
the firearms offense. Taylor discussed that possibility, but we
thought that it would be better to go ahead
Taylor filed a motion for downward depar- and try than not.
ture under U.S.S.G. § 4A1.3, which permits
the court to assign a lower criminal history THE COURT: Oh, I understand. I
category where the defendant’s current cate- thinkSS the Court considered your request,
gory“substantially over-represents the serious- it is a long sentence. But ISSunless the
ness of the defendant’s criminal history or the Government wants to stipulate to some-
likelihood that the defendant will commit other thing, I don’t think there’s much I can do.
crimes.” The following exchange ensued: []
THE COURT: Well, I read your motion GOVERNMENT ATTORNEY: []Your
pretty carefully, [counsel]. The Court Honor, I agree with the Court’s assess-
wouldn’t have a problem with dropping the ment, and certainly agree with the proba-
one point on indecent exposure, but that tion officer’s response which the Court has
pointed out that disregarding that point
doesn’t make any difference. I justSSas the
1
Court and Counsel is well aware, these
Taylor’s plea agreement contained an appel-
guidelines in drug cases, what a person’s
late-waiver provision in which he agreed to waive
the right to review of the substance, procedure or
sentence is determined by two things: The
form of his conviction, except for sentencing quantity of drugs and the category of the
guidelines determinations. Because, however, the criminal history points. And this is essen-
government does not seek to enforce the provision, tially etched in stone, Your Honor, and I
we proceed to consider Taylor’s appeal on the don’t think aSS
merits. See United States v. Story, 439 F.3d 226,
230-31 (5th Cir. 2006).
2
THE COURT: Well, that’s what ISSabsent 405 F.3d 310, 317 (5th Cir.), cert. denied, 126
a stipulation from the Government that they S. Ct. 264 (2005). He must point to state-
are willing to stipulate a departure down to ments made by the sentencing judge that in-
Category II, which would get us closer to dicate he would have provided a lower sen-
the 15 years total. tence if not bound by the guidelines. See Unit-
ed States v. Rodriguez-Gutierrez, 428 F.3d
The government declined to stipulate, and the 201, 203-04 (5th Cir. 2005), cert. denied, 126
court sentenced Taylor to the lowest possible S. Ct. 1383 (2006). We may also consider
guidelines sentence, i.e., 135 months for the whether the sentence falls at the minimum,
drug charges, concurrently with 60 months for maximum, or in the middle of the applicable
the firearms charge. guidelines range. See id. at 204-06.
II. Taylor has met his burden. The sentencing
Because Taylor did not preserve his Sixth judge stated on two occasions that he did not
Amendment claim, we review for plain error. think he could do anything to lighten Taylor’s
See United States v. Mares, 402 F.3d 511, 512 sentence. He appeared to agree with the
(5th Cir.), cert. denied, 126 S. Ct. 43 (2005). government’s assertion that the guidelines for
Under plain error review, there must be drug cases are “essentially etched in stone.”
(1) error, (2) that was plain and (3) affected He noted that the guidelines provide for a long
substantial rights. See id. at 520. Further- sentence, and he invited the government to
more, we will reverse only where the error stipulate to a downward departure to a crimi-
would “seriouslyaffect[] the fairness, integrity, nal history category of IISSwhich he indicated
or public reputation of judicial proceedings.” would have allowed him to sentence Taylor to
Id. (quoting United States v. Cotton, 535 U.S. around 180 months (i.e., 15 years) instead of
625, 631 (2002)). This last prong is satisfied the 195 months ultimately imposed.
where the defendant would have received a
lesser sentence than the district court errone- True, the judge also said that he was not
ously felt compelled to impose.2 “inclined” to alter Taylor’s sentence and that
he did not find it “appropriate” for the court to
A sentence imposed under a mandatory deduct two additional criminal history points.
guidelines regime constitutes error that is He further noted that Taylor could have, but
plain. See id. at 520-21. To affect substantial did not, receive points for violating a court
rights, however, an error “must have affected order for criminal trespass. These statements,
the outcome of the district court proceedings.” however, related to the judge’s opinion of the
Id. at 521 (quoting United States v. Olano, proper application of the guidelines, not
507 U.S. 725, 734 (5th Cir. 1993)). The de- whether he would have imposed a lighter sen-
fendant bears the burden of “demonstrating a tence had he not felt bound by them. The
probability sufficient to undermine confidence commentary to § 4A1.3 contemplates down-
in the outcome.” United States v. Bringier, ward departure only for minor past offenses:
A downward departure from the defen-
2
See United States v. Pennell, 409 F.3d 240, dant’s criminal history category may be
246 (5th Cir. 2005) (citing United States v. Gra- warranted if, for example, the defendant
cia-Cantu, 302 F.3d 308, 313 (5th Cir. 2002)).
3
had two minor misdemeanor convictions Our conclusion finds support in the fact that
close to ten years prior to the instant of- the court ultimately sentenced Taylor to the
fense and no other evidence of prior crimi- absolute minimum of the range. “[S]entences
nal behavior in the intervening period. falling at the absolute minimum of the Guide-
lines provide the strongest support for the
U.S.S.G. § 4A1.3 cmt. n.3. argument that the judge would have imposed
a lesser sentence.” Rodriguez-Gutierrez, 428
Taylor’s misdemeanor assaults occurred in F.3d at 205. Though a minimum sentence
1995 and 1996, respectively, only six years be- alone might be insufficient to establish that
fore the events underlying the instant offense substantial rights were affected, see Bringier,
in 2002. Also, Taylor was convicted of pos- 405 F.3d at 318, in this context the sentence
session of a controlled substance in the in- lends credence to our conclusion, based on
tervening period between his misdemeanor record testimony, that the judge (a) felt con-
convictions and the present offense. Finally, strained faithfully apply the guidelines faith-
because he served over 13 months on the drug fully and (b) attempted to achieve indirectly,
charge, he merited the addition of three crimi- through government stipulation, what he felt
nal history points under U.S.S.G. § 4A1.1(a). he could not do directly through guidelines
Therefore, the district court did not believe it application; i.e., lower the sentence.
could remain faithful to the guidelines if it
forgave the previous assaults or the prior drug Taylor does not need to prove to a moral
offense. certitude that he would have received a lighter
sentence under an advisory regime. Rather, he
But, merely because a judge strives to cal- need only raise a “probability sufficient to un-
culate the guidelines range properly does not dermine confidence in the outcome.” Bring-
mean that he agrees that a given sentence ier, 405 F.3d at 317. The fact that the court
within that range is proportionate to the of- indicated it felt powerless to lower the sen-
fense. A judge may attempt to promote parity tence, and invited a stipulation that would have
among defendants by setting the bar at the reduced Taylor’s sentence by about 15 months
same level for all of them, even if he thinks as if accepted, suffices to meet this burden.
an initial matter that the bar was set too high. Therefore, resentencing is appropriate.4
In short, it is possible for a judge to believe he
is fairly applying the guidelines without believ-
4
ing that application of the guidelines is fair.3 Resentencing is also consistent with previous
cases in which we have found Booker error. See
Pennell, 409 F.3d at 245-46 (finding substantial
rights affected where judge sentenced at the low
end of the guidelines range and stated he might
3
See, e.g., Rodriguez-Gutierrez, 428 F.3d at impose a lower sentence in the interest of “fairness
205-06 (stating that “a judge could consider one and justice” if not “constrained” by the guidelines);
defendant a more serious offender than another de- United States v. Garcia, 416 F.3d 440, 441 (5th
fendant and thus sentence the former to a higher Cir. 2005) (finding substantial rights affected
sentence within the range, even while considering where judge imposed low-end sentence and stated
the entire range to be too high”) (citing United that he would have sentenced lower if not for
States v. Paladino, 401 F.3d 471, 482 (7th Cir. guidelines). Cf. Bringier, 405 F.3d at 317-18
2005)). (continued...)
4
Taylor also argues that the court erred in
denying his motion for a downward departure
under U.S.S.G. § 4A1.3. Even after Booker,
we review de novo a district court’s interpreta-
tion and application of the guidelines. See
United States v. Villegas, 404 F.3d 355, 359
(5th Cir. 2005). We have jurisdiction to re-
view a refusal to depart downward “only if the
district court based its decision upon an erro-
neous belief that it lacked the authority to de-
part.” United States v. Landerman, 167 F.3d
895, 899 (5th Cir. 1999). There is no evi-
dence that the court thought it lacked that au-
thority; it merely declined to exercise that au-
thority, consistent with the commentary to
§ 4A1.3 and the instructions of § 4A1.1(a).
As explained above, there was no error in the
court’s application of the guidelines, but only
in its misapprehension that it was bound to
apply them, and refrain from issuing a milder
sentence, absent government stipulation.
The sentence is VACATED and the matter
REMANDED for resentencing.
4
(...continued)
(finding low-end sentence insufficient where
defendant provided no record evidence that the
judge had felt compelled by the guidelines).
5