IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 95-50639
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ANTHONY J. COLEMAN,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________
September 12, 1996
ON PETITION FOR REHEARING
Before KING, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
The petition for rehearing is GRANTED. The second sentence of
the opinion issued on August 9, 1996, is amended to read, "We
vacate and remand for resentencing." Part IV of the opinion is
amended to read as follows:
*
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should not be published and is not precedent except under the limited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.
IV.
Coleman maintains that the district court utilized the wrong
methodology in applying the U.S.S.G. § 5K1.1 two-level downward
departure for "substantial assistance to authorities" by computing
the departure from the cross-referenced offense level rather than
from the statutory maximum sentence. The court first calculated a
base offense level of 43, then granted the government’s U.S.S.G.
§ 3E1.1(a) motion for a three-level reduction for acceptance of
responsibility. This left Coleman with an offense level of 40 and
a corresponding sentencing range of 360-405 months to life.
In granting the government's motion for a downward departure
for cooperation, the court explained that it would "depart downward
three levels . . ., which results in an offense level of 37, a
range of 292 to 365 months." The statutory maximum sentence for
bank robbery, however, is 300 months under 18 U.S.C. § 2113. So,
because his sentencing range exceeded the statutory maximum,
Coleman did not receive any benefit from the § 3E1.1 reduction but,
instead, was sentenced to the statutory maximum.
Coleman failed to raise this issue at sentencing. As a
result, under FED. R. CRIM. P. 52(b), we may not vacate his sentence
unless the sentencing court committed plain error. United States
v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc) (citing
United States v. Olano, 507 U.S. 725, 731-37 (1993)), cert. denied,
2
115 S. Ct. 1266 (1995).
Coleman must show that there is an error, that it is plain,
and that it affects substantial rights. Olano, 507 U.S. at 732.
Even where an appellant carries that burden, "Rule 52(b) is
permissive, not mandatory," id. at 735, and we are not required to
correct the error unless it "seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings," id. at
732 (citation omitted, brackets in original).
Here, the error is plain. Section 5G1.1(a) provides that when
a statutory "maximum sentence is less that the minimum of the
applicable guideline range, the statutor[y] maximum . . . shall be
the guideline sentence." See United States v. Kings, 981 F.2d 790,
797 (5th Cir. 1993). The commentary to § 5G1.1 explains the
correct methodology:
This section describes how the statutorily
authorized maximum sentence . . . may affect the
determination of a sentence under the guidelines. For
example, if the applicable guideline range is 51-63
months and the maximum sentence authorized by statute for
the offense of conviction is 48 months, the sentence
required by the guidelines under subsection (a) is 48
months; a sentence of less than 48 months would be a
guideline departure.
(Emphasis added.) This indicates that the departure is subtracted
from the statutory maximum, not from the guideline range as
otherwise calculated.1 In United States v. Martin, 893 F.2d 73, 76
1
We refer here only to adjustments under chapter 5 of the guidelines and
do not consider what the result would be for a chapter 3 adjustment as informed
by U.S.S.G. § 1B1.5(c).
3
(5th Cir. 1990), we observed that it is, indeed, appropriate for a
district court, in its discretion, to "depart from the guidelines
and sentence below the statutory maximum . . . when the guideline
calculations yield a sentencing range above the statutory maximum."
It is also evident that the error affected Coleman's
substantial rights. This is because he received no benefit from
his cooperation, which was, to him, an important benefit of the
bargain he struck. As we have decided that the error should be
corrected, we need not and therefore do not consider whether it is
so severe as to affect the "fairness, integrity or public
reputation of judicial proceedings."
The judgment of sentence is VACATED and REMANDED for
resentencing. We do not mean to instruct the district court on
what sentence it should impose, or even on whether it should depart
in sentencing. Rather, we remand only in order that the court may
exercise its sentencing discretion under the correct methodology
that we have explained.
4