United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
February 17, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-30313
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAMOLD SMITH,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
Before REAVLEY, GARZA, and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
Smith challenges his non-Guideline sentence of sixty months
imprisonment. He argues that the district court’s sentence based
on his criminal history and parole status was unreasonable under
United States v. Booker, 125 S. Ct. 738 (2005). For the reasons
set forth below, we find that the court’s sentence was reasonable.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On February 11, 2004, two officers of the New Orleans Police
Department were on patrol at the Guste Housing Development in New
Orleans, Louisiana. They observed Jamold Smith (“Smith”) running
toward them, holding what appeared to be a pistol. After realizing
that there were two police officers, Smith tossed the pistol and
tried to flee. The officers recovered the fully loaded firearm
with its handle wrapped in tape.
On October 21, 2004, Smith was indicted on one count of
illegal possession of a firearm as a convicted felon, in violation
of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2000). On December 15, 2004,
Smith pleaded guilty to the indictment. The district court, on
March 16, 2005, sentenced him to sixty months imprisonment. The
court found the presentence report (“PSR”) to be “accurate and
uncontested” and adopted the Guideline range of twenty-one to
twenty-seven months of imprisonment.
Based on its finding that the applicable range did not
adequately reflect Smith’s criminal history or parole status at the
time of the crime, the district court deviated1 from the Guidelines
and sentenced Smith to sixty months imprisonment. Specifically,
the court found that the Guideline range did not adequately take
1
We use the terms “deviate” and “deviation” to describe a
non-Guideline sentence, which is not the result of a Guidelines-
authorized upward or downward departure. In United States v.
Mares, we adopted the phrase “non-Guideline sentence” to express
this distinction. 402 F.3d 519 n.7 (5th Cir. 2005).
2
into account Smith’s (1) release on parole less than one month
before the offense, (2) three narcotics convictions, and (3) three
juvenile convictions—theft at age nine, trespass at age twelve, and
possession of crack cocaine at age fourteen. Smith objected to the
sentence, claiming that it was unreasonable, and timely filed this
appeal.
II. STANDARD OF REVIEW
The district court’s application of the Guidelines, even after
Booker, is reviewed de novo. See United States v. Villegas, 404
F.3d 355, 359 (5th Cir. 2005).2 This Court accepts findings of
fact made in connection with sentencing unless clearly erroneous.
United States v. Creech, 408 F.3d 264, 270 n.2 (5th Cir. 2005); see
United States v. Milton, 147 F.3d 414, 421 (5th Cir. 1998).
Under United States v. Booker, we ultimately review a sentence
for “unreasonableness.” 125 S. Ct. at 765. Though flexible, the
reasonableness standard is not unbounded. Both a district court’s
post-Booker sentencing discretion and the reasonableness inquiry on
appeal must be guided by the sentencing considerations set forth in
18 U.S.C. § 3553(a). Booker, 125 S. Ct. at 766. Those factors
2
Although the district court ultimately decided to impose a
non-Guideline sentence in this case, it was still required to
determine the Guideline range. See p. 5, infra. Villegas’s
holding that we review Guideline interpretations de novo must
apply here. Without a properly-calculated Guideline range, we
cannot ensure that the disparity between Smith’s sentence and the
Guideline range is warranted.
3
include:
(1) the nature and circumstances of the offense and the
history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for
the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the
defendant; and
(D) to provide the defendant with needed . . . medical
care, or other correctional treatment in the most
effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range
established for—
(A) the applicable category of offense committed by the
applicable category of defendant as set forth in the
guidelines . . . ;
(5) any pertinent policy statement . . . ;
(6) the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found
guilty of similar conduct . . . .
18 U.S.C. § 3553(a) (2000).
Our post-Booker case law has recognized three different types
of sentences under the advisory Guidelines regime. First, a
sentencing court may exercise its discretion to impose a sentence
within a properly calculated Guidelines range. In such a
situation, we will “infer that the judge has considered all the
factors for a fair sentence . . . , and it will be rare for a
reviewing court to say such a sentence is ‘unreasonable.’” United
States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). In United
States v. Alonzo, this Court further clarified the deferential
standard for reviewing sentences within a properly calculated
Guideline range. 2006 U.S. App. LEXIS 447, at *7-9, __ F.3d __
4
(5th Cir. Jan. 9, 2005). Alonzo held that such a sentence is
afforded a rebuttable presumption of reasonableness. Id. at *8.
Second, a sentencing court may impose a sentence that includes
an upward or downward departure as allowed by the Guidelines.
Because the court’s authority to depart derives from the Guidelines
themselves, a sentence supported by a departure is also a
“Guideline sentence.” Mares, 402 F.3d at 519 n.7. In evaluating
both a decision to depart and the extent of the departure, we
review for “abuse of discretion.” United States v. Saldana, 427
F.3d 298, 308. In assessing the extent of a departure, we continue
to look to our pre-Booker case law for guidance. See id. at 312;
United States v. Simkanin, 420 F.3d 397, 419 (5th Cir. 2005);
United States v. Smith, 417 F.3d 483, 492–93 (5th Cir. 2005).
The district court in the instant case elected a third option.
After Booker, a court may impose a non-Guideline sentence—a
sentence either higher or lower than the relevant Guideline
sentence. Before imposing a non-Guideline sentence, however, the
court must consider the Sentencing Guidelines. In light of this
duty, “a district court is still required to calculate the
guideline range and consider it advisory.” United States v.
Angeles-Mendoza, 407 F.3d 742, 746 (5th Cir. 2005) (emphasis in
original). Consequently, if it decides to impose a non-Guideline
sentence, the court should utilize the appropriate Guideline range
as a “frame of reference.” See United States v. Fagans, 406 F.3d
5
138, 141 (2d Cir. 2005); United States v. Jackson, 408 F.3d 301,
305 (6th Cir. 2005).
Additionally, the district court must more thoroughly
articulate its reasons when it imposes a non-Guideline sentence
than when it imposes a sentence under authority of the Sentencing
Guidelines. Mares, 402 F.3d at 519. These reasons should be fact-
specific and consistent with the sentencing factors enumerated in
section 3553(a). Id. The farther a sentence varies from the
applicable Guideline sentence, “the more compelling the
justification based on factors in section 3553(a)” must be. United
States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005); see Jackson, 408
F.3d at 305. The court, however, need not engage in “robotic
incantations that each statutory factor has been considered.”
United States v. Lamoreaux, 422 F.3d 750, 756 (8th Cir. 2005)
(internal quotation marks omitted); see United States v. Simpson,
__ F.3d __, 2005 WL 3370060, *7 (D.C. Cir. Dec. 13, 2005) (finding
no requirement for the district court to “specifically refer to
each [section 3553(a)] factor”) (emphasis in original). Congress
never intended sentencing “to become a hyper-technical exercise
devoid of common sense.” United States v. Gonzales, 250 F.3d 923,
930 (5th Cir. 2001). Thus, a checklist recitation of the section
3553(a) factors is neither necessary nor sufficient for a sentence
to be reasonable. See Dean, 414 F.3d at 729.
The purpose of the district court’s statement of reasons is to
6
enable the reviewing court to determine whether, as a matter of
substance, the sentencing factors in section 3553(a) support the
sentence. United States v. Long Soldier, __ F.3d __, 2005 WL
3501337, *2 (8th Cir. Dec. 23, 2005); see Unites States v. McBride,
No. 04-4347, slip op. at 3, __ F.3d __ (6th Cir. Jan. 17, 2006)
(holding that “a sentence should reflect the considerations listed
in § 3553(a)”). We agree with the framework articulated by the
Eighth Circuit in assessing the reasonableness of a court’s
statutory support. See United States v. Haack, 403 F.3d 997, 1004
(8th Cir. 2005). A non-Guideline sentence unreasonably fails to
reflect the statutory sentencing factors where it (1) does not
account for a factor that should have received significant weight,
(2) gives significant weight to an irrelevant or improper factor,
or (3) represents a clear error of judgment in balancing the
sentencing factors. See id.; Long Soldier, __ F.3d at __, 2005 WL
3501337, *3 (applying the “Haack test for reasonableness” to a non-
Guidelines sentence).
III. DISCUSSION
The court properly calculated the Guideline range sentence,
and Smith does not object to that calculation. In addition, the
court used the Guideline range as a frame of reference and
carefully explained why it would impose a non-Guideline sentence:
I’ve looked at your background. You have a 7th grade
education, you’re a convicted felon . . . . [T]he grip
7
of the gun was wrapped with tape. . . . You have three
narcotics convictions . . . , you’re on parole but you’re
on for less than a month when this occurred. You have
three juvenile convictions which were not counted with
respect to your criminal history. Accordingly, pursuant
to the Sentencing Reform Act of 1984, I take into
consideration not only the guidelines but the need to
afford adequate deterrence for criminal conduct and need
to protect the public from further crimes of you, it’s
the judgment of this court that you . . . be imprisoned
for a term of 60 months . . . . Again, I state for the
record that I go above the 27 months [Guideline range for
the previously articulated reasons].
Accordingly, the court properly followed the procedure for imposing
a non-Guideline sentence.3 We turn now to whether the substance of
the sentence reflects the section 3553(a) factors.
Smith makes three claims which fall under the second part of
the Haack reasonableness test.4 He contends that the decision to
deviate from the Guideline range and the degree of variance5 from
3
We treat the sentence at issue here as a non-Guideline
sentence. The court did not make reference to upwardly departing
or utilizing an enhancement, nor did it refer to enhancement
provisions of the Guidelines. Therefore, we do not examine
whether an upward departure or an enhancement was available under
the Guidelines.
4
The court noted during sentencing that the butt of a
revolver generally is taped to prevent law enforcement from
discovering fingerprints. Smith does not challenge this finding,
nor does he claim that the selected sentence gives weight to an
improper factor.
5
“While the mere fact that a . . . sentence exceeds by
several times the guideline maximum is of no independent
consequence in determining whether the sentence is reasonable, it
may indicate the unreasonableness of the departure [or deviation]
viewed against the court’s justification for that departure [or
deviation].” United States v. Campbell, 878 F.2d 164, 166 (5th
Cir. 1989) (internal citation omitted); see also Simkanin, 420
F.3d at 397 (“[T]he mere fact that the upward departure nearly
doubled the Guidelines range does not render it unreasonable”);
Saldana, 427 F.3d at 298, 312 (noting that although the “district
8
that range is unreasonable because the selected sentence gave
significant weight to improper factors.6 First, Smith argues that
the court’s reliance on his criminal history was improper.
Specifically, he claims the court’s statement that he had three
narcotics-related convictions was misleading because Smith is a
drug user, not a dealer. In addition, Smith contends that the
court could not rely on these convictions to deviate from the
Guideline range as they already were accounted for in his Guideline
criminal history. Second, Smith argues that the court improperly
cited his recent release on parole as a reason for deviation
because the Guideline range adopted by the court accounted for his
parole status. Third, relying on Roper v. Simmons, 125 S. Ct. 1183
(2005), Smith claims his “relatively mild transgressions between
the age of 9 and 14” should not have been relied upon by the court.
The sentence as imposed does not take into account an improper
or irrelevant factor. The court evaluated the “nature and
circumstances of the offense and the history and characteristics of
the defendant” and concluded that it would deviate “to afford
adequate deterrence to criminal conduct” and “to protect the public
from further crimes of the defendant.” 18 U.S.C. § 3553(a)(1),
court quadrupled the maximum sentence allowable for [the
defendant] under the Guidelines,” the sentence was reasonable);
Smith, 417 F.3d at 495–93 (finding that a sentence almost three
times the top of the Guideline range was not unreasonable).
6
The district court stated that Smith had a “7th grade
education” when discussing Smith’s background. Smith does not
argue that this represented reliance on an impermissible factor.
Any argument on that basis is therefore waived.
9
(2)(B), (C). A defendant’s criminal history is one of the factors
that a court may consider in imposing a non-Guideline sentence.
Mares, 402 F.3d at 519. Moreover, the sentence reflects juvenile
adjudications not accounted for by the Guideline sentence. The
court also considered Smith’s release on parole less than one month
before the commission of the instant crime. Although the PSR
criminal history calculation recognized his status as a parolee at
the time of the offense, the court relied on Smith not only having
the status of a parolee but also having been released from prison
“less than a month” beforehand—a temporal distinction of some
significance to the court—which relates to the history and
characteristics of Smith. 18 U.S.C. § 3553(a)(1). Furthermore, as
the Government submitted, Roper is inapposite. While Roper may
have found that youth reduces criminal culpability, 125 S. Ct. at
1195, it was a capital punishment case involving the Eighth and
Fourteenth Amendments, not a Booker sentencing case. In sum, the
sentence does not take into account an improper factor.
Additionally, Smith argues that the sentence as imposed fails
to reflect a statutory sentencing factor that should have received
significant weight—the first part of the Haack test. He states
that the court’s selection of a sentence seven increments above the
Guideline range conflicts with the “need to avoid unwarranted
sentence disparity,” 18 U.S.C. § 3553(a)(6), and therefore is
unreasonable. Smith, however, fails to provide the court with
10
evidence, such as average sentences for similarly-situated
defendants or a case in which a similarly-situated defendant
received a lesser sentence, to enable this Court to determine
whether his sentence violated the Sentencing Reform Act provision.
Cf. Saldana, 427 F.3d at 313 (finding that despite the defendant’s
recitation of “numerous cases in which [similarly situated]
individuals . . . received shorter sentences,” the sentence was
reasonable). Furthermore, in this case, the disparity between
Smith’s sentence and other defendants with his Guideline range was
not unwarranted. The district court relied on significant factors
not accounted for by Smith’s Guideline range. Therefore, the
imposed sentence does not produce an unwarranted disparity.7
The district court properly calculated the applicable
7
The concurring opinion faults the district court for not
explicitly addressing the need to avoid unwarranted sentencing
disparity. We hold that the court gave fact-specific
justifications for its sentence sufficient to permit us to review
for reasonableness. Thus, the level of articulation required
under Mares is satisfied. 402 F.3d at 519. Furthermore, the
sentence in this case, at twice the Guideline range, is
reasonably supported by the statutory sentencing factors such
that we will not disturb the district court’s sentencing
decision.
Additionally, Smith did not waive any argument based on
sentencing disparity. The cases cited by the concurrence in
support of waiver are inapposite. See, e.g., Salazar-Regino v.
Trominski, 415 F.3d 436, 452 (5th Cir. 2005) (holding argument
was waived because the petitioners cited only one case, failed
“to explain how the cited opinion should apply to the instant
case,” and also failed “to mention that the opinion is not even
good law”). Here, Smith cites to valid statutory authority and
explains how the statute supports his argument. Smith’s
contention, though ultimately rejected herein, satisfies the
requirements of Federal Rule of Appellate Procedure 28(a)(9)(A)
and therefore was not waived.
11
Guideline range and carefully articulated permissible reasons for
its variance. Therefore, the court committed no legal error in the
sentencing procedure. Accordingly, the sentence must be given
great deference. Additionally, the court’s findings in support of
the upward variance sufficiently demonstrate that the substance of
the sentence is reasonable under § 3553(a).
IV. CONCLUSION
Following the post-Booker reasonableness standard, the
district court did not err in sentencing Smith to sixty months
imprisonment. The court’s reliance on Smith’s criminal history
and recent status as a parolee was not erroneous. Accordingly,
the district court’s judgment is AFFIRMED.
12
EMILIO M. GARZA, Circuit Judge, concurring in part and in the judgment:
I agree with the majority’s adoption of the Eighth Circuit’s United States v. Haack, 403
F.3d 997 (8th Cir. 2005), standard for reviewing non-Guidelines sentences. I disagree, however,
with the majority’s conclusion that the district court adequately considered 18 U.S.C. §
3553(a)(6), “the need to avoid unwarranted sentencing disparity.” The Haack standard requires
us to vacate a sentence and remand when the district court did not consider a factor that should
have received significant weight. Id. at 1004. I would hold that where the district court imposes
a sentence that is more than twice the top of the applicable Guidelines range, sentencing disparity
is a factor that should receive significant weight. Although the district court need not, in most
cases, explicitly discuss each of the § 3553(a) factors, a sentence so far outside the Guidelines
range is not reasonable without consideration of the resulting disparity.
I concur in the judgment, however, because Smith has waived any argument based on
sentencing disparity by failing to adequately brief it. FED.R.APP.P. 28(a)(9)(A); Salazar-Regino v.
Trominski, 415 F.3d 436, 452 (5th Cir. 2005) (argument that consisted solely of a single citation
to a case is waived); L & A Contracting Co. v. S. Concrete Servs., 17 F.3d 106, 113 (5th Cir.
1994) (holding that argument that was one-page in length was waived where appellant cited no
authority). The total of Smith’s argument on point consists of the conclusory assertion that his
sentence conflicts with the need to avoid unwarranted sentencing disparity. The remainder of
Smith’s brief argues that a non-Guidelines sentence is unreasonable when the Guidelines already
take into consideration the reasons given by the district court. Accordingly, I would hold that
Smith has waived the argument and affirm the sentence on that basis.
13