USA v. Shams Masters

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USA v. Shams Masters

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Case: 09-10192

Document: 00511213421

Page: 1

Date Filed: 08/24/2010

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
United States Court of Appeals Fifth Circuit

N o . 09-10192

FILED
August 24, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, Plaintiff­Appellee v. S H A M S EMIL MASTERS, Defendant­Appellant

A p p e a l from the United States District Court for the Northern District of Texas U S D C No. 4:08-CR-00158

B e fo r e JONES, Chief Judge, PRADO, Circuit Judge, and O'CONNOR,* District Judge. P E R CURIAM:* * S h a m s Emil Masters appeals his sentence, arguing that the district court e r r o n e o u s ly calculated his United States Sentencing Guidelines ("USSG") range a n d unreasonably departed upward from that range. We hold that the erroneous
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District Judge of the Northern District of Texas, sitting by designation.

Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

**

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Case: 09-10192

Document: 00511213421

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Date Filed: 08/24/2010

No. 09-10192 G u id e lin e s range withstands plain error review, and the district court's upward d e p a r t u r e was not unreasonable considering the facts of this case. We therefore a ffir m Masters's sentence. I. FACTUAL AND PROCEDURAL BACKGROUND M a s t e r s pled guilty to a single count of bank robbery. Before sentencing, M a s t e r s stipulated that he participated in four other bank robberies and that in fo u r of the five robberies, he handed the bank teller a threatening note. The Presentence Report ("PSR") contained all five stipulated robberies and c a lc u la t e d his offense level at twenty-five.1 Due to prior offenses, the PSR c a l c u l a t e d Masters's criminal history score as eight, placing him in criminal h is t o r y category IV.2 This combination resulted in a Guidelines range of eightyfo u r to 105 months. However, the PSR recommended that the district court d e p a r t upward from the Guidelines range because of Masters's long criminal h is t o r y and the failure of incarceration or probation to deter his recidivism. T h e district court adopted the facts and recommendations contained in the P S R and Masters did not object to the PSR at sentencing. The district court s e n te n c e d Masters to 210 months' imprisonment, based upon an upward d e p a r t u r e to an offense level thirty and a criminal history category of VI. In so d o in g , the district court explained at the sentencing hearing: [B ]y further explanation of the upward departure, I've c o n s id e r e d the recommended advisory guideline range as well as all o f the factors outlined in 18 United States Code, Section 3553(a), in

The offense level included upward adjustments because Masters took the property of a financial institution and because Masters made "death threats" during the robberies. U.S. SE N T E N C I N G GUIDELINES MANUAL ("USSG") §§ 1B3.1(b)(2)(F), 2B3.1(b)(1). Masters had committed eight prior offenses. All but one of those offenses were misdemeanors. His lone felony was a drug possession charge.
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No. 09-10192 d e t e r m in in g what sentence to impose, and I've concluded that the s e n t e n c e I've imposed is a reasonable sentence that takes into a c c o u n t all of the factors. If viewed from the standpoint of a s e n t e n c e based only on the advisory guidelines, the sentence would b e an appropriate sentence by way of an upward departure under U .S .S .G . Section 4A1.3. T h e defendant is 30 years old and has established a pattern o f habitual criminal behavior. He hasn't been slowed down or d e t e r r e d by probated sentences, jail terms, state prison sentences, o r parole supervision. Since the age of 14 the defendant has had one ju v e n ile adjudication and seven adult convictions. Four of those a d u lt convictions are countable under the advisory guidelines. In a d d it io n , the fifth conviction would have received points if the c o n v ic tio n had not been outside the applicable time period. T h e defendant has continued to have contact with law e n fo r c e m e n t , and the Court concludes that the defendant's Criminal H is t o r y Category IV, as well as his total offense level, u n d e r -r e p r e s e n t s the seriousness of his past criminal conduct or the lik e lih o o d that he will commit further crimes. He has one prior conviction for assault/serious bodily injury t o a family member and a sentence of a six-year term of im p r is o n m e n t for a previous drug conviction. .... The defendant has received numerous periods of incarceration a n d jail imprisonment, as well as probation and community s u p e r v is io n , which has [sic] not deterred him from committing new c r im e s . His past criminal conduct is indicative of his disregard for t h e law, his unwillingness to change his behavior, and the likelihood t h a t he will commit future crimes, especially upon another person. And to whatever extent it's appropriate to do so, in order to e x p la in a Section 4A1.3 departure, so to speak, I've considered the d e fe n d a n t 's criminal history conduct is more like a Criminal History C a t e g o r y VI and that a total offense level of 30 would be more a p p r o p r ia te considering all of his conduct. W h e n you come up with a hypothetical guideline range based o n VI and a 30, you come up with 168 months to 210 months, and I c o n s id e r that the top of that hypothetical range is a reasonable sen ten ce. 3

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No. 09-10192 T h e district court's statements explaining and justifying its sentence mirror the la n g u a g e of the PSR. Masters objected to the reasonableness of the upward d e p a r t u r e at sentencing, and then timely appealed. In his appeal, Masters c h a lle n g e s the calculation of his Guidelines range and the reasonableness of the u p w a r d departure. II. STANDARD OF REVIEW W e apply different standards of review to Masters's challenge to the e r r o n e o u s ly calculated Guidelines range and the reasonableness of the upward d e p a r t u r e . As to the first, we review for plain error because Masters did not o b je c t to the calculation at sentencing. United States v. Simmons, 568 F.3d 564, 5 6 6 (5th Cir. 2009). To satisfy plain error review, Masters must establish four e le m e n ts : F ir s t , there must be an error or defect . . . . Second, the legal error m u s t be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant's substantial r ig h t s , which in the ordinary case means he must demonstrate that it affected the outcome of the district court proceedings. Fourth and fin a lly , if the above three prongs are satisfied, the court of appeals h a s the discretion to remedy the error--discretion which ought to be e x e r c is e d only if the error seriously affects the fairness, integrity or p u b lic reputation of judicial proceedings. P u c k e tt v. United States, 129 S. Ct. 1423, 1429 (2009) (quotations and citations o m itte d ). A s to Masters's challenge to the reasonableness of the district court's s e n t e n c e , we review the district court's decision to depart upward from the G u id e lin e s range, along with the extent of that departure, for an abuse of d is c r e t io n . United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006) (c it in g United States v. Saldana, 427 F.3d 298, 308 (5th Cir. 2005)).

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No. 09-10192 I I I . DISCUSSION A. T h e Guidelines Range T h e Government concedes that the district court plainly erred when it c a lc u la t e d the Guidelines range. The PSR assigns four points for two prior o ffe n s e s , counting the offenses separately; however, Masters was sentenced for t h e s e two offenses on the same day. Under USSG § 4A1.2(a)(2), because Masters c o m m it t e d one of the offenses before the other, but received his sentence for both o n the same day, the district court cannot assign points for each offense. Absent t h is error, Masters's criminal history score would be six, rather than eight. This s lig h t change drops his Guidelines range to seventy to eighty-seven months (r a t h e r than the erroneously calculated eighty-four to 105 months). D e s p ite this error, Masters's challenge fails because his argument is fo r e c lo s e d by the our recent decision in Davis. The Davis district court, in the c o n t e x t of a revocation proceeding, calculated an erroneous Guidelines range, but t h e n departed upward. 602 F.3d at 645­46. The defendant failed to object to the in c o r r e c t range at sentencing and we reviewed the district court's sentence for p la in error. Id. at 647. We rejected the defendant's challenge because we found t h a t the district court "had ample independent bases for imposing the sentence t h a t it did," and the defendant came forward with "no statements in the record t o indicate that the court--which was required only to consider the advisory r a n g e indicated by the policy statement and was permitted to impose any s e n te n c e within the statutory maximum when determining the sentence--relied o n the incorrect advisory range in determining his sentence." Id. at 649. Davis p r o v id e s the applicable outline of our analysis here. A lt h o u g h the district court erroneously calculated the Guidelines range, t h e district court did not rely on the erroneous range when it departed upward 5

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No. 09-10192 a n d there is substantial evidence in the record to support the upward departure. Therefore, Masters cannot show a reasonable probability that he would have r e c e iv e d a lesser sentence. See id. at 650 (A "district court's erroneous selection o f the incorrect Guideline range is not enough to demonstrate that the `s u b s t a n t ia l rights' prong of the plain error test is satisfied.") (internal quotation o m it t e d ). Thus, Masters's challenge fails under plain error review. B. T h e Reasonableness of the Upward Departure M a s t e r s attacks two aspects of the district court's upward departure: first, M a s t e r s contends that the departure was not an appropriate application of U S S G § 4A1.3 or 18 U.S.C. § 3553(a); second, Masters argues that the district c o u r t gave him a substantively unreasonable sentence. In essence, Masters's a p p e a l tracks our review of any challenge to the reasonableness of a sentence: n a m e ly , we first determine whether the district court committed procedural e r r o r , then review the substantive reasonableness of the sentence. See United S ta te s v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). 1. A p p li c a t i o n of USSG § 4A1.3

T h e Government contends that we should review Masters's procedural c h a lle n g e for plain error because Masters's objection did not adequately alert the d is t r ic t court of his contention that USSG § 4A1.3(a)(2) did not authorize an u p w a r d departure based upon his prior criminal history. Masters objected early a t sentencing, stating "we would make an objection for purposes of appeal of the u n r e a s o n a b le n e s s of the sentence." The district court responded, "I haven't fin is h e d yet, but you can go ahead and make your objection now if you would lik e ," and then gave its justification for the sentence and the upward departure. An objection must place the district court "on notice" of the nature of the procedural objection. See United States v. Duhon, 541 F.3d 391, 396 (5th Cir. 6

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No. 09-10192 2 0 0 8 ). When he objected, Masters did not name USSG § 4A1.3(a)(2) or state that t h e district court's use of his prior offenses formed the basis of the objection. We a g r e e with the Government that Masters's objection was insufficient to raise his p r o c e d u r a l objection to the district court's application of USSG § 4A1.3(a)(2). It is well-settled that "[i]f . . . the procedural objection was not presented in the district court, our review is for plain error only." Simmons, 568 F.3d at 5 6 6 . Under the plain error standard, we will reverse only if there is an error t h a t "is plain and affects substantial rights," United States v. Olano, 507 U.S. 7 2 5 , 732 (1993) (internal quotation marks and alteration omitted). If there is s u c h an error, we "may . . . exercise [our] discretion to notice a forfeited error, b u t only if . . . the error seriously affects the fairness, integrity, or public r e p u t a tio n of judicial proceedings." United States v. Cotton, 535 U.S. 625, 631 (2 0 0 2 ) (internal quotation marks and alteration omitted). T h e district court did not plainly err when it applied USSG § 4A1.3(a)(2). The factors listed in USSG § 4A1.3(a)(2) are nonexhaustive. The Guidelines only r e m o v e prior arrests from the district court's consideration when imposing the s e n t e n c e . Id. § 4A1.3(a)(3). Here, the district court stated its reasons for the d e p a r t u r e , including Masters's "pattern of habitual criminal behavior," lack of d e t e r r e n c e from prior sentences, "his disregard for the law, his unwillingness to c h a n g e his behavior, and the likelihood that he will commit future crimes." The d is t r ic t court's reliance on these reasons did not constitute plain error. 2. S u b s t a n t iv e Unreasonableness

M a s t e r s received a sentence of 210 months, a significant departure from t h e correctly-calculated Guidelines range of seventy to eighty-seven months. We r e v i e w the reasonableness of the district court's sentence for an abuse of d is c r e t io n . Gall v. United States, 128 S. Ct. 586, 597 (2007). With regard to his 7

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No. 09-10192 s e n te n c e 's substantive reasonableness, Masters's only argument on appeal is t h a t his sentence differed too much from other bank robbery sentences. Masters a s k s us to consider a statistical compilation of robbery sentences, claiming that t h e Northern District of Texas levies a greater percentage of upward departures t h a n the national average. We are unconvinced by Masters's argument. Section 3353(a)(6) does not mandate that all sentences for similar crimes b e the same; rather, it requires courts to take into account "the need to avoid u n w a r r a n te d sentence disparities among defendants with similar records who h a v e been found guilty of similar conduct." (emphasis added). We have held t h a t , when different treatment is warranted, even different sentences between c o -d e fe n d a n t s are acceptable. Duhon, 541 F.3d at 397. Here, the district court e x p la in e d its reasons for the upward departure and, as addressed above, those r e a s o n s were within its acceptable purview. Furthermore, the non-exhaustive factors of USSG § 4A1.3(a)(2) inform our r e v ie w of the substantive reasonableness of a district court's sentencing to some e x t e n t .3 The district considered Masters's increasingly violent crimes, his

r e c id iv is m , the failure of previous sentences to deter criminal conduct, and his lik e lih o o d of future criminal activity. The district court did not err by

We note that the application of USSG § 4A1.3 is somewhat muddled. For example, in United States v. Holt, we discussed USSG § 4A1.3 and reasonableness separately. 287 F. App'x 384, 384­87 (5th Cir. 2008) (per curiam) (unpublished). However, in the reasonableness analysis, we noted that "the district court complied with § 4A1.3(c) in its Statement of Reasons for the sentence that it imposed and correctly applied § 4A1.3(a)(2)(A)." Id. at 387. This statement implies that the appropriate application of USSG § 4A1.3 is one of the factors to consider when assessing the reasonableness of a sentence. Similarly, in United States v. Luevano-Orozco, we found that the appellant-defendant "ha[d] not shown that the district court's upward departure was an abuse of discretion or unreasonable," because "[t]he district court properly considered factors that are permissible under § 4A1.3(a)(2)." 182 F. App'x 376, 377 (5th Cir. 2006) (per curiam) (unpublished).

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No. 09-10192 c o n s id e r in g these facts, nor did the district court abuse its discretion by relying o n these facts to depart upward. IV. CONCLUSION M a s t e r s 's challenge to the erroneously-calculated Guidelines range does n o t overcome plain error review because he failed to establish that there is a r e a s o n a b le probability that he would receive a lesser sentence. Masters's

c h a lle n g e to the district court's upward departure also fails because the district c o u r t did not plainly err when it relied on aspects of Masters's case outside of the fa c t o r s enumerated in USSG § 4A1.3(a)(2); and because the district court did not a b u s e its discretion when it departed upward based on the facts of this case. We t h e r e fo r e affirm Masters's sentence. A F F IR M E D .

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