USA v. Dexter Williams

Filing 511076548

09-10206

Case: 09-10205

Document: 00511076548

Page: 1

Date Filed: 04/12/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
April 12, 2010 N o . 09-10205 N o . 09-10206 Lyle W. Cayce Clerk

U N I T E D STATES OF AMERICA, P la in tiff-A p p e lle e v. D E X T E R D WILLIAMS, D e fe n d a n t-A p p e lla n t

A p p e a ls from the United States District Court for the Northern District of Texas U S D C No. 4:08-CR-151-A U S D C No. 4:08-CR-57-A

B e fo r e GARWOOD, WIENER, AND BENAVIDES, Circuit Judges. P E R CURIAM:* A p p e lla n t Dexter Williams (Williams) appeals from the sentence imposed u p o n his conviction for bank robbery and from the sentence revoking his s u p e r v is e d released for a previous bank robbery. His principal complaint relates t o the sentence received in his latest bank robbery conviction in which the d is t r ic t court considered facts from his PSR but not included in his charging

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-10205

Document: 00511076548

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Date Filed: 04/12/2010

No. 09-10205 N o . 09-10206 d o c u m e n t s to upwardly depart from the Sentencing Guidelines ("USSG") based o n prior offenses. The case involves the application of the USSG and federal s ta tu te s to determine if the sentence imposed is procedurally and substantively u n r e a s o n a b le . Because the district court committed procedural error in c o m p u t in g the upward departure in this upward departure guideline sentence, w e vacate the sentence and remand for a new sentencing hearing. F ACTUAL AND PROCEDURAL BACKGROUND W illia m s was charged in Texas state court with sexually assaulting the d a u g h t e r s of his ex-girlfriend in 1996. He was taken into custody in November 1 9 9 6 . In March 1999, he pled guilty to two counts of the lesser offense of in d e c e n c y with a child-contact. His sentence amounted to time served, and he w a s released from prison without parole or supervision. I n 2000, Williams was charged in a three-count indictment with bank r o b b e r y . As part of a plea agreement he pled guilty in federal court to one count o f bank robbery and admitted to the facts of the other two counts in exchange for t h e Government dismissing the other two counts. He was sentenced to ninetys ix months in prison and three years of supervised release. In May 2007, he was r e le a s e d from prison and began his supervised release. In the instant case, he w a s charged in a one-count federal indictment for bank robbery committed on A u g u s t 29, 2008. The Government then moved to revoke his supervised release fo r the 2000 bank robbery conviction. Due to Williams's two prior felony convictions in Texas for indecency with a child-contact, the PSR prepared for the 2008 robbery case recommended that W illia m s be considered a career offender for crimes of violence for purposes of §

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Date Filed: 04/12/2010

No. 09-10205 N o . 09-10206 4 B 1 .1 . Williams objected to the PSR's determination and in a telephone c o n f e re n c e , the district judge stated that regardless of whether Williams was a c a r e e r offender or not, "I can disregard all these things and simply impose a r e a s o n a b le sentence that would take into account that [Texas child convictions] c o n d u c t." The Government noted that under Shepard v. United States, 544 U.S. 1 3 , 26 (2005), the district judge could not consider facts presented in the PSR but n o t also contained in the charging documents or admitted by Williams. Later, t h e Government acknowledged at sentencing that the convictions could not be c a te g o r iz e d as crimes of violence using only the documents permitted by S h e p a r d . The court sustained Williams's objection but stated it was "ludicrous" t h a t facts outside the charging documents could not be considered and decided t h a t "those things have to be taken into account" and would result in a " s ig n ific a n t departure above the top of the guidelines range." Williams's offense le v e l was then set at 21 with a criminal history category of V, which resulted in a guideline range of 70 to 87 months. T h e court imposed a 188-month sentence using § 4A1.3(a)(1) as ju s tif i c a t io n due to Williams's criminal history being underrepresented by his lik e lih o o d to commit future crimes. The district court explained that paragraphs 4 3 and 44 of the PSR swayed his decision.1 These paragraphs described facts u n d e r ly in g the Texas convictions for indecency with a child not covered by the c h a r g in g documents. The court also based its departure on Williams's additional

As indicated, Williams objected to the consideration of these facts. He not only did not admit to the facts contained in the PSR relative to his state conviction, but he disputed the facts.

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Case: 09-10205

Document: 00511076548

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Date Filed: 04/12/2010

No. 09-10205 N o . 09-10206 u n c h a r g e d bank robberies in 2000 and 2008. The district court determined that W illia m s would have received a guideline range of imprisonment of 151 to 188 m o n th s if he had been classified as a career offender. The court determined that a range of 151 to 188 months would achieve the objectives described in § 3553(a) a n d imposed a 188-month prison term followed by three years of supervised r e le a s e . The court arrived at this sentence by putting Williams in the criminal h is to r y category of VI pursuant to § 4A1.3(a)(4)(A) and increased the offense le v e l by 8 levels for a total of 29 under § 4A1.3(a)(4)(B) resulting in a range of 1 5 1 to 188 months. As a condition of supervised release, the court ordered W illia m s to participate in sex-offender treatment "until successfully discharged." N e x t , the district court held a hearing on the Government's motion to r e v o k e Williams's supervised release, which Williams had admitted to as true. W i llia m s requested the sentence run concurrently because the court had u p w a r d ly departed from the original 70 to 87 month range with the 188-month s e n te n c e . The court found the release conditions to be violated and imposed a m a x i m u m 24-month sentence to run consecutive to the bank robbery sentence. T h e sentence was within the range recommended by §§ 7B1.3(f) and 7B1.4(a) (P o lic y Statements). STANDARDS OF REVIEW I n deciding if a district court arrived at an appropriate sentence, we first d e t e rm in e whether the district court committed any procedural errors, including a n improperly calculated range under the guidelines and a sentence based on c le a r ly erroneous facts. Gall v. United States, 552 U.S. 38, 51 (2007). The d i s tr ic t court's interpretation and application of the USSG is reviewed de novo.

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Case: 09-10205

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Date Filed: 04/12/2010

No. 09-10205 N o . 09-10206 U n ite d States v. Armstrong, 550 F.3d 382, 404 (5th Cir. 2008); United States v. Z u n ig a -P er a lt a , 442 F.3d 345, 347 (5th Cir. 2006). The district court's findings o f fact related to sentencing are reviewed for clear error. United States v. C a stillo , 430 F.3d 230, 238-39 (5th Cir. 2005). If the sentence is procedurally s o u n d , then this Court determines whether the sentence is substantively r e a s o n a b le under the factors in 18 U.S.C. § 3553(a). Gall, 552 U.S. at 51. T h is Court recognizes three types of sentences: i) a sentence within the g u id e lin e s range, ii) an upward/downward departure as allowed by the USSG, a n d iii) a non-guidelines sentence or variance that is outside the guidelines. See U n ited States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006). Upward departures th a t are authorized by the guidelines are considered guideline sentences. See U n ited States v. Tzep-Mejia, 461 F.3d 522, 525 (5th Cir. 2006). We apply a presumption of reasonableness to guideline sentences and r e v ie w for abuse of discretion sentences that include an upward or downward d e p a r tu r e as provided for in the guidelines. United States v. Gutierrez-

H e r n a n d e z , 581 F.3d 251, 255 (5th Cir. 2009). Unusually harsh sentences must b e explained with sufficient justifications because the Guidelines are "the p r o d u c t of careful study based on extensive empirical evidence derived from the r e v ie w of thousands of individual sentencing decisions." Gall, 552 U.S. at 46. A district court abuses its discretion when it departs for "legally unacceptable r e a s o n s " or when the "degree of the departure is unreasonable." United States v . Desselle, 450 F.3d 179, 182 (5th Cir. 2006).

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Case: 09-10205

Document: 00511076548

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Date Filed: 04/12/2010

No. 09-10205 N o . 09-10206 D I S C U S S IO N I . District Court's Upward Departure S e c t io n 4A1.3(a)(1) authorizes a district court to upwardly depart from the g u id e lin e s range when the defendant's criminal history category "substantially u n d e r r e p r e s e n t s the seriousness of the defendant's criminal history or the lik e l ih o o d that the defendant will commit other crimes." The court is also a llo w e d to move to a higher offense level if the district court finds that the extent a n d nature of the defendant's criminal history warrant a departure beyond c a te g o r y VI. § 4A1.3(a)(4)(B). Here, the district court found that Williams's criminal history category s u b st a n tia lly underrepresented his likelihood to commit future crimes and u p w a r d ly departed based on a USSG provision. Thus, the decision to depart and e x te n t of departure is considered a within-guidelines sentence, Tzep-Mejia, 461 F .3 d at 525, and is reviewed for abuse of discretion. Zuniga-Peralta, 442 F.3d a t 347. A. C a r ee r -O ffe n d e r Criteria and Section 994

W illia m s first contends that United States v. Gomez-Herrera, 523 F.3d 554 (5 th Cir. 2008) establishes that only those who meet the career-offender criteria s h o u ld receive sentences at or near the statutory maximum. His interpretation o f 28 U.S.C. § 994(h) and § 4B1.1 means that Congress intended to exclude nonc a re e r offenders from receiving similar penalties (sentences at or near the s ta tu to r y maximum). However, Williams's first argument fails. Gomez-Herrera d e a l t with a defendant who argued that the district court should be permitted t o consider the sentencing disparities between courts that participated in the 6

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Date Filed: 04/12/2010

No. 09-10205 N o . 09-10206 " fa s t track" disposition program for defendants charged with illegal re-entry and th o s e courts, like the one he was in, that did not. Gomez-Herrera, 523 F.3d at 5 5 7 . We noted that Congress had intended to create a sentencing disparity on t h e basis of a whether a district participated in the program; thus, a district c o u r t could not deviate from the USSG because of disparity intended by C o n g r e s s . Id. at 563. The fast-track program at issue in Gomez-Herrera is d is t in g u is h a b le because Congress expressed its intent that certain sentencing b e n e fit s would be given to one class of defendants to the exclusion of another. S e e id. at 562-63. Section 994(h) does not suggest that only those who meet the career-offen d e r criteria should receive such a sentence; thus, non-career-offender d e fe n d a n ts may receive similar sentences. B. Shepard's Prohibition on Using Facts Outside the Charging D ocu m en t N e x t , Williams argues that the district court considered documents p r o h ib it e d by Shepard to depart upwardly and sentence him as a career offender e v e n though he did not qualify for the career-offender sentencing enhancement. S h e p a rd prohibits a district court from considering facts not contained in the c h a r g in g documents. Shepard, 544 U.S. at 26; United States v. Mohr, 554 F.3d 6 0 4 , 607 (5th Cir. 2009); see United States v. Garza-Lopez, 410 F.3d 268, 273-74 (5 t h Cir. 2005) (noting that a district court may not rely on a PSR's c h a r a c te r iz a tio n of an offense to support an enhancement). We recently held in G u ite r re z -H e r n a n d e z , that a district court could not circumvent the Shepard rule b y supporting its decision to upwardly depart on facts it was prohibited from c o n s id e r in g when determining whether sentencing enhancements were 7

Case: 09-10205

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Date Filed: 04/12/2010

No. 09-10205 N o . 09-10206 w a r r a n te d . Gutierrez-Hernandez, 581 F.3d at 255. In that case, the district c o u r t stated that it was prohibited from considering a police report in deciding w h e t h e r the defendant's drug crime qualified for a felony drug-trafficking e n h a n c e m e n t under § 2L1.2, but then relied on the facts in the police report to c o n c l u d e that the defendant sold cocaine and justified an upward departure u n d e r § 5K2.0 based on these facts. Id. We determined that procedural error h a d occurred because no valid basis to support the upward departure existed. Id . Here, Shepard controlled which documents the district court could c o n s id e r for purposes of using Williams's prior Texas convictions to enhance his s e n t e n c e , and the court relied on these prior Texas convictions to depart upward u n d e r § 4A1.3 after finding inadequate bases to support the enhancement. This o c c u r r e d after the district court correctly decided that it could not consider in f o r m a tio n outside the charging documents to determine if the Texas c o n v i ct io n s constituted crimes of violence, which would qualify him as a career o ffe n d e r . Moreover, the district court explicitly noted that paragraphs 43 and 4 4 of the PSR were taken into consideration. These paragraphs contain facts a b o u t the Texas convictions not included in the charging document. Finally, the d i s tr ic t court justified Williams's greater risk to the community "based on those t h in g s [bank robberies and indecency convictions] mentioned" in the PSR. The G o v e r n m e n t correctly points out that Williams's criminal history of four felony c o n v ic t i o n s (the two Texas convictions and the two bank robberies), a m is d e m e a n o r and admitting to four additional bank robberies, supports an u p w a r d departure or a non-Guideline sentence. These bank robberies included

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Case: 09-10205

Document: 00511076548

Page: 9

Date Filed: 04/12/2010

No. 09-10205 N o . 09-10206 n o t e s that threatened violence to the bank tellers and were committed within a s h o r t time after his release from prison. However, as previously mentioned, a lo o k at the whole record shows the district court focused on the indecency c o n v i ct io n s ,2 as well as the bank robberies, to upwardly depart as a justification fo r its guideline sentence. Because the district court computed the upward d e p a r t u r e by considering facts prohibited by Shepard and this Court's s u b se q u e n t rulings,3 it committed procedural error requiring new sentencing p r o c e e d in g s . II. The Consecutive Sentence for Violation of Supervised Release Williams's final argument asks this Court to review the district court's d e c is io n to impose a 24-month prison term to run consecutively, not c o n c u r r e n t ly , to his prison term for the bank robbery conviction. The purpose o f a sentence imposed for violating the terms of supervised release is to punish t h e defendant for his breach of trust, and not for any criminal offense resulting in the revocation of his release. See United States v. Payan, 992 F.2d 1387, 12969 7 (5th Cir. 1993); U.S. Sentencing Guidelines Manual ch. 7, pt. A(3)(b),

Notably, (1) the court expressed its displeasure that it could not consider information outside the charging documents to impose career-offender enhancements throughout the proceedings, (2) it found it "too risky" to impose the career enhancements under § 4B1.1, (3) it then imposed the same guideline sentence as a career offender only using § 4A1.3 as justification, (4) it repeatedly expressed its intent to consider all available information and to impose a significant upward departure, and (5) the court made reference to the prohibited findings in the PSR's detailed description of the charges. We note, without comment, that the district court retains discretion on remand to make a determination on the propriety of a non-guideline sentence but must first compute a proper guideline sentence before attempting to make a proper non-guideline sentence or upward guideline departure otherwise in conformity with the law.
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Case: 09-10205

Document: 00511076548

Page: 10

Date Filed: 04/12/2010

No. 09-10205 N o . 09-10206 in t r o d u c to r y cmt. (2009). The USSG recognizes that the sanction for violation o f trust should be consecutive (in addition) to the sentence imposed on the basis o f the defendant's new criminal conduct. See U.S. Sentencing Guidelines

M a n u a l ch. 7, pt. A(3)(b); id. § 7B1.3(f) (requiring that a prison term imposed p u r s u a n t to a supervised release violation "shall be ordered to be served co n se cu tiv e ly to any sentence of imprisonment that the defendant is serving"); s e e also United States. v. Zamora-Vallejo, 470 F.3d 592, 596 n.6 (5th Cir. 2006) (n o t in g that while conduct which results in revocation of a supervised release m ig h t constitute a new criminal offense, that conduct is not being punished t w ic e if the defendant receives two sentences). Here, Williams received a

s e n t e n c e for his 2008 bank robbery conviction and a sentence for "breach of t r u s t " by violating the terms of his supervised release for his 2000 bank robbery c o n v ic tio n . The 24-month sentence for the supervised-released violation, while t h e maximum recommended, is still within the range recommended by the g u id e l in e policy statements. Because the district court followed the policy

m a n d a t e s of § 7B1.3(f), it did not err for imposing a consecutive sentence for W illia m s 's supervised-release violation. T h e district court committed procedural error when computing the upward d e p a r t u r e , guideline sentence. Accordingly, the sentence imposed for the later c o n v i c t io n in appeal number 09-10206 is VACATED, and we REMAND for r e s e n t e n c in g consistent with the opinion. We find no error in the district court's d e c is io n to impose a consecutive sentence for Williams's supervised-release v io la tio n . Accordingly, the sentence imposed in the revocation hearing in appeal n u m b e r 09-10205 is AFFIRMED.

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