United States v. Jones

United States Court of Appeals
Fifth Circuit
F I L E D
March 27, 2006

Charles R. Fulbruge III
In the United States Court of Appeals Clerk
for the Fifth Circuit

No. 05-60152

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.

ROBERT JONES,

Defendant - Appellant.

Appeal from the United States District Court
for the Northen District of Mississippi

Before BENAVIDES, STEWART and OWEN, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:

Robert Jones pleaded guilty to possession of child pornography in violation of 18 U.S.C

§ 2252A(a)(5)(B). At sentencing, which occurred after the United States Supreme Court decided

United States v. Booker,1 the district court sentenced Jones to the statutory maximum prison term

of 120 months,2 which was beyond the 46-to-57 month range calculated under the Guidelines. Jones

challenges his sentence on three grounds, claiming, for the first time on appeal, that (1) in violation

of Federal Rule of Criminal Procedure 32(h), he did not receive notice before sentencing that an

1
543 U.S. 220 (2005).
2
18 U.S.C. § 2252A(b)(2).
upward departure was contemplated or notice of the grounds for that departure, (2) the district court

based its decision to depart upwardly on impermissible factors, and (3) the sentence is unreasonable.

Because we conclude that plain error has not been shown, we affirm Jones’s sentence.

I

Jones pleaded guilty to the possession of child pornography that has been transported in

interstate commerce, which constitutes a violation of 18 U.S.C. § 2252A(a)(5)(B). At his plea

hearing, Jones specifically admitted to each element that established this crime, and he also admitted

to all facts contained in the presentence report (“PSR”). Prior to the sentencing hearing, the Supreme

Court decided Booker, which rendered the Sentencing Guidelines effectively advisory.3 The district

court understood the Guidelines to be advisory at the time of sentencing and upwardly departed from

the range calculated under the Guidelines citing several factors including prior arrests that did not

result in convictions and “aggravating circumstances . . . not adequately taken into consideration by

the sentencing commission.” Jones appeals his sentence.

II

Because the issue of whether the district court considered impermissible factors in deciding

to depart upwardly from the Guidelines range informs our consideration of Jones’s other contentions,

we turn to it first. The PSR prepared by United States Probation reflects that Jones was indicted on

February 26, 2004 for allegedly possessing child pornography on January 28, 2004. On February 22,

2004, he was arrested on state charges of two counts of sexual battery based on allegations that he

inserted his penis in the mouth of a five-year-old and in the mouth of a six-year-old while babysitting.

The PSR also reflected that Jones had been charged in 1993 with the rape of his four-year-old niece

3
543 U.S. at 245.
2
but that those charges had been dismissed. The sentencing hearing for Jones’s conviction of the

federal crime at issue in this case was held in March 2005. The two state sexual battery charges were

pending at that time.

United States Probation determined Jones’s base offense level to be 15 pursuant to U.S.S.G.

§ 2G2.4. After certain enhancements4 and a three-point reduction for acceptance of responsibility,

Jones’s total offense level was calculated to be 23. Because Jones had a criminal history category

of I, the Guidelines imprisonment range was 46 to 57 months.5

The district court did not include a written statement in the judgment setting forth the reasons

for the upward departure but did orally state its reasons at the sentencing hearing. It is clear the court

considered the prior arrests in deciding to impose the maximum statutory sentence.6 The Guidelines

expressly provide in a policy statement that “[a] prior arrest record itself shall not be considered for

purposes of an upward departure . . . .”7 While the Guidelines contemplate that a district court may

4
See U.S.S.G. § 2G2.4(b)(1) (2003) (two-level increase in base offense level for possession
of material involving a minor under the age of twelve); § 2G2.4(b)(2) (two-level increase in base
offense level for possession of ten or more items that contain a visual depiction involving the sexual
exploitation of a minor); § 2G2.4(b)(3) (two-level increase in base offense level if possession of
material resulted from the defendant’s use of a computer); § 2G2.4(b)(5)(D) (five-level increase in
base offense level if the offense involved 600 or more images).
5
See U.S.S.G. Ch. 5, pt. A. (Sentencing Table) (2003).
6
The district court stated:

Having looked at the defendant’s criminal history, it is true, as his counsel stated, that
he presently has two state charges against him, separate charges, for sexual battery
of children. One of them is six years of age, and I think the other is five years of age.
Those are two separate events. You also were charged with rape of a child in 1993
and that was dismissed. It turns out it was your four-year-old niece. Those charges
were dismissed against you. I am considering those factors in your sentence.
7
U.S.S.G. § 4A1.3(a)(3) (2003).

3
base an upward departure on “[p]rior similar adult criminal conduct not resulting in a criminal

conviction,”8 they also contemplate that there must be “reliable information” of such conduct.9

Arrests, standing alone, do not constitute reliable information under either the Guidelines or our

precedent pre-dating the Guidelines.10 The district court did not find that Jones actually committed

the rape of a child in 1993 or that Jones committed the sexual batteries of which he had been accused

at the time of sentencing. Had there been such findings, supported by evidence, the district court

could have considered those facts in determining the likelihood that Jones would commit crimes in

the future. But absent such evidence and findings, it was error to take the mere fact of prior arrests

into account. The government’s contentions to the contrary are not well-taken.

III

Had Jones apprised the district court of his objection to consideration of prior arrests, we

would have a roadmap from the Supreme Court, at least prior to the Booker decision. In Williams

v. United States, the district court had erred in relying on prior arrests among other factors in

imposing an upward departure.11 The Supreme Court granted certiorari to decide “whether a

reviewing court may affirm a sentence in which a district court’s departure from the guideline range

8
Id. § 4A1.3(a)(2)(E).
9
See id. § 4A1.3(a)(1) (“If reliable information indicates that the defendant’s criminal history
category substantially under-represents the seriousness of the defendant’s criminal history or the
likelihood that the defendant will commit other crimes, an upward departure may be warranted.”).
10
See United States v. Cantu-Dominguez, 898 F.2d 968, 971 (5th Cir. 1990) (holding that
“arrests that did not result in convictions . . . [are] not the type of ‘reliable information’ that justifies
a departure from the applicable sentencing range”); United States v. Labarbera, 581 F.2d 107, 109
(5th Cir. 1978) (observing that “an arrest, without more, is quite consistent with innocence”).
11
503 U.S. 193, 197 (1992).

4
is based on both valid and invalid factors.”12

The Court explained that in reviewing a departure from a Guidelines range “the reviewing

court is obliged to conduct two separate inquiries.”13 The first is under 18 U.S.C. § 3742(f)(1).14

If the sentence was “imposed either in violation of law or as a result of an incorrect application of the

Guidelines,” a remand is required.15 If remand is not required under that section, the reviewing court

should determine under § 3742(f)(2) if “the resulting sentence [is] an unreasonably high or low

departure from the relevant guideline range.”16 Accordingly, we first consider § 3742(f)(1).

The Williams decision held that a departure from a Guidelines range based on a factor that

the Sentencing Commission has expressly rejected as an appropriate ground for departure “is an

incorrect application of the Guidelines” within the meaning of 18 U.S.C. § 3742(f)(1).17 However,

Williams concluded that because the statute only requires remand “if the sentence was ‘imposed as

a result of an incorrect application,’” remand is not automatic.18 The Court reasoned that if the

district court did not “intend[] to depart from the Guidelines, a sentence is imposed ‘as a result of’

an incorrect application . . . when the error results in the district court selecting a sentence from the

12
Id. at 198.
13
Id. at 202.
14
Id.
15
Id.
16
Id.
17
Id. at 200.
18
Id. at 202-03 (emphasis in original).

5
wrong guideline range.”19 But if the district court intended to depart from the guideline range, “a

sentence is imposed ‘as a result of’ a misapplication of the Guidelines if the sentence would have been

different but for the district court’s error.”20 The Court then said, “in determining whether a remand

is required under § 3742(f)(1), a court of appeals must decide whether the district court would have

imposed the same sentence had it not relied upon the invalid factor or factors.”21

The Supreme Court further held in Williams that the “harmless error” rule applies,22 despite

the dissenting opinion’s assertion that “appellate review of departure sentences under § 3742 does

not accommodate ‘harmless-error’ review.”23 Citing Federal Rule of Criminal Procedure 52(a),

Williams concluded:

[T]he party challenging the sentence on appeal, although it bears the initial burden of
showing that the district court relied upon an invalid factor at sentencing, does not
have the additional burden of proving that the invalid factor was determinative in the
sentencing decision. Rather, once the court of appeals has decided that the district
court misapplied the Guidelines, a remand is appropriate unless the reviewing court
concludes, on the record as a whole, that the error was harmless, i.e., that the error
did not affect the district court’s selection of the sentence imposed.24

19
Id. at 203 (quoting 18 U.S.C. § 3742(f)(1)).
20
Id.
21
Id.; see also Koon v. United States, 518 U.S. 81, 113 (1996) (“When a reviewing court
concludes that a district court based a departure on both valid and invalid factors, a remand is
required unless it determines the district court would have imposed the same sentence absent reliance
on the invalid factors.”). The dissent in Williams advocated that “[w]hen some but not all of the
district court’s reasons for departure are invalid,” the test should be “whether the district court could
have based its departure on the remaining factors, . . . and not on whether it would still have chosen
so to act,” a position the Court’s opinion expressly rejected. 503 U.S. at 216 (White, J., dissenting).
22
Williams, 503 U.S. at 216 n.13.
23
Id.
24
Id. at 203.

6
 The Williams decision did not directly discuss whether the “would-have-been-a-different-

sentence” inquiry is altered when appellate review is for plain error. But based on the Court’s

reliance on Rule 52(a), its discussion of harmless error, and its pointed rejection of the dissenting

opinion’s position, it would seem that a defendant challenging a sentence for the first time on appeal

should have a different burden, consistent with Rule 52(b)’s “subtle but important” difference, as

articulated in the Supreme Court’s decision in United States v. Olano.25

The decision in Olano set forth three “limitation[s] on appellate authority under Rule 52(b),”

which are that there must be error, the error must be plain, and the plain error must affect substantial

rights.26 Even when these elements are present, “the court of appeals has authority to order

correction, but is not required to do so,” and “the standard that should guide the exercise of remedial

discretion under Rule 52(b)” is whether “the error ‘seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings.’”27 We have little difficulty in concluding that consideration of the

mere fact of prior arrests was error and that it was plain. Whether the consideration of prior arrests

in conjunction with other, permissible, factors affected Jones’s substantial rights and whether,

assuming it did, the error “seriously affect[s] the fairness, integrity or public reputation of judicial

proceedings” are more complex questions.

Olano explained that when a defendant has failed to call a complaint to the district court’s

25
507 U.S. 725, 734 (1993).
26
Id. at 732, 734; see also United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005).
27
Olano, 507 U.S. at 735, 736 (quoting United States v. Atkinson, 297 U.S. 157, 160 (1936));
see also Mares, 402 F.3d at 520.

7
attention and review is for plain error, the burden of establishing prejudice is generally shifted.28

“Normally, although perhaps not in every case, the defendant must make a specific showing of

prejudice to satisfy the ‘affecting substantial rights’ prong of Rule 52(b).”29 Prejudicial means “it

must have affected the outcome of the district court proceedings.”30

Pre-Booker, this circuit reviewed a district court’s upward departure in United States v.

Ravitch, and said “where we have concluded that ‘[i]f the case were remanded the trial judge could

reinstate the same sentence,’ we have upheld the defendant’s sentence although the district court’s

stated reasons for departing evidence a mistaken application of the Sentencing Guidelines.”31 Thus,

based on this circuit’s pre-Booker precedent, the inquiry in Williams and Koon under Rule 52(a)

shifts from whether the district court would have imposed the same sentence32 to an inquiry under

Rule 52(b) of whether the district court could have imposed the same sentence.33

Post-Booker, in United States v. Villegas, this circuit articulated the Rule 52(b) standard

somewhat differently in the context of misapplication or misinterpretation of an enhancement under

28
See Olano, 507 U.S. at 734-35.
29
Id. at 735.
30
Id. at 734.
31
128 F.3d 865, 869 (5th Cir. 1997) (quoting United States v. Brunson, 915 F.3d 942, 944
(5th Cir. 1990)).
32
Koon v. United States, 518 U.S. 81, 113 (1996); Williams v. United States, 503 U.S. 193,
203 (1992).
33
But see Williams, 503 U.S. at 204 (rejecting a could-have-departed test when error was
preserved: “the dissent’s position requires the appellate court to consider whether the district court
could have based its departure on the remaining factors . . . and not whether it would still have chosen
so to act”).

8
the Guidelines.34 We said that the inquiry “is whether the defendant can show a reasonable probability

that, but for the district court’s misapplication of the Guidelines, he would have received a lesser

sentence.”35 This seems more consistent with the discussion in Williams of an appellate court’s

authority to affirm a sentence “when the district court, once made aware of the errors in its

interpretation of the Guidelines, may have chosen a different sentence,” and Williams’s admonition

that the selection of a sentence is left to the district court:

In practical effect, therefore, the divergence of the dissent’s interpretation of
the statute [including the could-have-based-its-departure-on-the-remaining-factors
inquiry] from our own is in the degree of an appellate court’s authority to affirm a
sentence when the district court, once made aware of the errors in its interpretation
of the Guidelines, may have chosen a different sentence. Although the Act established
a limited appellate review of sentencing decisions, it did not alter a court of appeals’
traditional deference to a district court’s exercise of its sentencing discretion. The
selection of the appropriate sentence from within the guideline range, as well as the
decision to depart from the range in certain circumstances, are decisions that are left
solely to the sentencing court. . . . The development of the guideline sentencing
regime has not changed our view that, except to the extent specifically directed by
statute, “it is not the role of an appellate court to substitute its judgment for that of
the sentencing court as to the appropriateness of a particular sentence.”36

The inquiry set forth in Ravitch – whether the district court could have imposed the same

sentence – is an objective one. The inquiry under Villegas – whether there is a reasonable probability

that, but for the misapplication of the guidelines, a lesser sentence would have been imposed – is more

subjective. We need not resolve whether the two can be harmonized or which standard governs

34
404 F.3d 355, 364 (5th Cir. 2005).
35
Id. (“[T]he question in the third step of the plain-error test is not the same as it was in
Mares, . . . it is not whether the defendant can show a reasonable probability that the district court
would have imposed a different sentence had the Guidelines been advisory instead of mandatory.
Instead, the proper question here is whether the defendant can show a reasonable probability that, but
for the district court’s misapplication of the Guidelines, he would have received a lesser sentence.”).
36
503 U.S. at 204-05 (citations omitted).

9
because a remand is not required under either.

The record as a whole does not indicate that it is reasonably probable Jones would have

received a lesser sentence if the district court had not considered the prior arrests. At sentencing,

Jones admitted that a file on his computer contained 989 still images and 45 movies involving child

pornography. The Guidelines provide for increasing the level of the offense of possessing child

pornography based on the number of images:

If the offense involved –

(A) at least 10 images, but fewer than 150, increase by 2 levels;

(B) at least 150 images, but fewer than 300, increase by 3 levels;

(C) at least 300 images, but fewer than 600, increase by 4 levels;

(D) 600 or more images, increase by 5 levels.37

The district court stated that “the facts found are . . . of the kind not sufficiently contemplated by the

sentencing commission.” The court stated that it had considered the Guidelines, the factors

enumerated in 18 U.S.C. § 3553, as well as subsection 3553(b)(2), which the court noted dealt with

child crimes and sexual offenses, and the court explained that when it finds “that there exists [sic]

aggravating circumstances of a kind or to a degree not adequately taken into consideration by the

sentencing commission, then I can give a sentence that is greater than that described in the sentencing

guidelines.” The district court acknowledged the prior rape allegation and pending charges against

Jones and said it was considering those factors in the sentence. But the district court also said, “I

believe that in this particular case, under 3553, that this is a very serious offense,” then repeated,

“[t]his is a very serious offense.” The most reasonable interpretation of the references to “offense”

37
U.S.S.G. § 2G.2(b)(7) (2005).

10
means the child pornography offense since the reference is to a single offense. The court continued,

“I don’t know in this defendant’s case whether any sentence will deter him from any future criminal

conduct, but I do know that to the extent I have any authority I’m going to protect the public from

further crimes by this defendant, and that is one of the options I have and one of the responsibilities

I have.” This discussion and the pointed “to the extent I have any authority” statement indicate that

it is not reasonably probable that the district court would have imposed a lesser sentence if it had

ignored the prior arrests.

Consistent with the inquiry in Ravitch, the district court could reinstate the same sentence if

we were to remand because that sentence was not unreasonable for reasons we discuss more fully in

our analysis under 18 U.S.C. § 3742(f)(2).

IV

Having concluded that a remand is not required under 18 U.S.C. § 3742(f)(1), we must

determine whether remand is required under § 3742(f)(2).38 We are persuaded that Booker does not

alter the way in which an upward departure is reviewed under § 3742(f)(2) for plain error. The

remedial opinion in Booker did not sever or excise 18 U.S.C. § 3742(f)(3), which directs that a court

of appeals “shall affirm [a] sentence” unless it is “described in paragraph (1) or (2)” of § 3553(f). We

are to reverse and remand an upward departure from a Guidelines range that was “based on an

impermissible factor” only “if [the court of appeals] determines that the sentence is too high.”39 The

statutory “too high” requirement is the equivalent of the “unreasonableness” standard set forth in

38
See Williams, 503 U.S. at 202 (“If the court concludes that the departure is not the result
of an error in interpreting the Guidelines, it should proceed to the second step: is the resulting
sentence an unreasonably high or low departure from the relevant guideline range?”).
39
18 U.S.C. § 3742(f)(2)(A).

11
Booker. The remedial opinion in Booker expressly recognized that not every appeal in the wake of

that decision would “lead to a new sentencing hearing . . . because we expect reviewing courts to

apply ordinary prudential doctrines, determining, for example, whether the issue was raised below

and whether it fails the ‘plain-error’ test.”40 The requirement in Booker that courts of appeals review

sentences “across the board” for unreasonableness41 does nothing to undercut Rule 52(b)’s burden-

shifting when review is for plain error.

We must determine, therefore, whether the district court could reasonably have imposed the

maximum statutory sentence, 120 months, for Jones’s offense based on the record before it. As

Booker directs,42 we are guided by the factors set forth in 18 U.S.C. § 3553(a),43 and although we

40
Booker, 543 U.S. at 268.
41
Id. at 262.
42
Id. at 243-62.
43
The factors set forth in 18 U.S.C. § 3553(a) 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 educational or vocational
training, 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 . . . the
applicable category of offense committed by the applicable category of
defendant as set forth in the guidelines . . .;
(5) any pertinent [sentencing guidelines] policy statement . . . [;]
(6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of similar

12
are not bound by the Guidelines or policy statements, we consult and take them into account.44 The

policy statement in the Guidelines regarding upward departures in child crimes and sexual offenses

is contained in U.S.S.G. § 5K2.0(a)(1)(B).45

Jones did not object to any of the factual statements in the PSR, and the district court adopted

those statements as its findings of fact. The PSR reflects that Jones was in possession of 989 still

images of child pornography and 42 movies. Since November 2003, the commentary to the

Guidelines has provided that each movie is considered to have 75 images of child pornography.46

Based on that commentary, Jones was in possession of 4,139 images of child pornography. The

Guidelines provide for increasing the level of the offense of possessing child pornography based on

the number of images:

If the offense involved –

conduct; and
(7) the need to provide restitution to any victims of the offense.
44
Booker, 543 U.S. at 264; United States v. Mares, 402 F.3d 511, 518-19 (5th Cir. 2005).
45
The policy statement in U.S.S.G. § 5K2.0(a)(1)(B) provides in pertinent part:

IN GENERAL.– The sentencing court may depart from the applicable guidelines
range if – . . .
(B) in the case of child crimes and sexual offenses, the court finds,
pursuant to 18 U.S.C. § 3553(b)(2)(A)(i), that there exists an
aggravating circumstance,

of a kind or to a degree, not adequately taken into consideration by the Sentencing
Commission in formulating the guidelines that, in order to advance the objectives set
forth in 18 U.S.C. § 3553(a)(2), should result in a sentence different from that
described.
46
U.S.S.G. § 2G2.2 cmt. n.4 (B)(ii) (2005) (“Each video, video-clip, movie, or similar
recording shall be considered to have 75 images. If the length of the recording is substantially more
than 5 minutes, an upward departure may be warranted.”).

13
 (A) at least 10 images, but fewer than 150, increase by 2 levels;

(B) at least 150 images, but fewer than 300, increase by 3 levels;

(C) at least 300 images, but fewer than 600, increase by 4 levels;

(D) 600 or more images, increase by 5 levels.47

These Guidelines are advisory only, and the district court could have reasonably concluded

that the possession of 4,139 images of child pornography was “an aggravating circumstance, of a

kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in

formulating the guidelines that, in order to advance the objectives set forth in 18 U.S.C. § 3553(a)(2),

should result in a sentence different from that described.”48 After considering the factors in

§ 3553(a), the district court could reasonably have concluded that the maximum statutory sentence

was necessary to reflect the nature and seriousness of Jones’s offense and was necessary to protect

the public from further crimes.

It is unclear whether the district court imposed a “Guidelines” sentence within the meaning

of the Court’s recent decisions in United States v. Duhon49 and United States v. Smith,50 which would

include a departure from a sentencing range calculated under the Guidelines based on the factors set

forth in section 5K2.0 of the Guidelines,51 or a “non-Guidelines” sentence within the meaning of those

47
Id. § 2G.2(b)(7).
48
Id. § 5K2.0(a)(1)(B).
49
___ F.3d at ___, No. 05-30387, 2006 WL 367017, at *4 (5th Cir. Feb. 17, 2006).
50
___ F.3d at ___, No. 05-30313, 2006 WL 367011, at *2 (5th Cir. Feb. 17, 2006).
51
U.S.S.G. § 5K2.0.

14
decisions, which would be a departure that is not based on the factors set forth for departures within

the Guidelines themselves.52 In the case before us today, the district court stated that “as I understand

the status of the law at this time, I’m bound by the statute and not the guidelines,” indicating that it

might not have based the sentence on the factors for departure contained in the Guidelines. But the

district court also stated that it intended “to depart from the . . . guidelines” due to “aggravating

circumstances . . . not adequately taken into consideration by the sentencing commission,” a

sentencing factor found in section 5K2.0 of the Guidelines53 as well as in a statute applicable to child

crimes and sexual offenses, 18 U.S.C. § 3553(b)(2)(A)(I).54 We need not determine whether the

sentence Jones received was a Guidelines or non-Guidelines sentence because in either case, under

52
See Duhon, 2006 WL 367017, at *4 (concluding that when a district court announced that
it was using “the discretion granted by Booker to ‘deviate from the United States Sentencing
Commission Guidelines and impose a sentence that . . . is appropriate based on the facts,’” the district
court had imposed a non-Guidelines sentence); Smith, 2006 WL 367011, at *2 (concluding that post-
Booker this Court has recognized “three different types of sentences under the advisory Guidelines
regime,” the first being “a sentence within a properly calculated Guidelines range,” the second “an
upward or downward departure as allowed by the Guidelines,” and the third, “a sentence either higher
or lower than the relevant Guideline sentence”).
53
See supra note 45.
54
The United States Supreme Court specifically severed and excised § 3553(b)(1) in Booker,
543 U.S. at 259. Although it did not sever or excise section (b)(2), in keeping with the substantive
holding of Booker, we assume that the mandatory aspects of § 3553(b)(2) are now advisory only.
Section 3553(b)(2)(A)(i) provides:

(A) In sentencing a defendant convicted of an offense under . . . chapter . . .
110 . . ., the court shall impose a sentence of the kind, and within the range, referred
to in subsection (a)(4) unless –
(i) the court finds that there exists an aggravating circumstance of a
kind or to a degree, not adequately taken into consideration by the Sentencing
Commission in formulating the guidelines that should result in a sentence
greater than that described.

15
the totality of the relevant statutory factors,55 the sentence was not unreasonable. The sentence

adequately takes into account the factors set forth in 18 U.S.C. § 3553(b)(A), and all the factors listed

in § 3553(a),56 which we are to consider under 18 U.S.C. § 3742(e) and Booker in determining if a

sentence is unreasonable.57

Although our review to determine whether the district court could have imposed the sentence

that it did is an objective one, we note that the district court did in fact express permissible factors,

in addition to the impermissible factors of prior arrests, in imposing the maximum statutory

sentence.58 Even post-Booker, a sentencing court must “enumerate particular reasons for a departure

55
See generally Duhon, 2006 WL 367017, at *7 (“Under section 3553(a), however, a
sentence must be supported by the totality of the relevant statutory factors.”).
56
See supra note 43.
57
Booker, 543 U.S. at 259-60 (“We infer appropriate review standards from related statutory
language, the structure of the statute, and the ‘sound administration of justice.’ And in this instance,
those factors, in addition to the two past decades of appellate practice in cases involving departures,
imply a practical standard of review for ‘unreasonable[ness].’ 18 U.S.C. § 3742(e)(3) (1994 ed.).”)
(citations omitted, alteration in original).
58
The trial court stated:

The statutory provisions in this case provide for not more than 10 years incarceration,
and as I understand the status of law at this time, I’m bound by the statute and not the
guidelines. I find in this case that I’m going to depart from the sentence called for by
the application of the guidelines inasmuch as the facts found are not – are of the kind
not sufficiently contemplated by the sentencing commission. . . .

I have considered and given great weight to the sentencing guidelines . . . .
I have further considered the factors enumerated in 18 U.S.C. 3553. I have also
looked at 3553(b)(2) which deals with child crimes and sexual offenses, and it
provides that when the Court finds that there exists aggravating circumstances of a
kind or to a degree not adequately taken into consideration by the sentencing
commission, then I can give a sentence that is greater than that described in the
sentencing guidelines, and I think under the recent U.S. Supreme court [sic] cases,
unless I give a sentence that’s plainly unreasonable outside the statute, that I have not

16
from the sentencing range.”59 The district court could have more particularly enumerated its reasons,

and we again urge district courts to do so when departing from a Guidelines range. And, assuming

that the district court imposed a non-Guidelines sentence, we emphasized in Mares that district courts

should “carefully articulate” the reasons for imposing a non-Guidelines sentence.60

Jones contends that the extent of the departure was unreasonable. Even when the Guidelines

were mandatory, the Supreme Court recognized that “[t]he development of the guidelines sentencing

regime has not changed our view that except to the extent specifically directed by statute, ‘it is not

the role of an appellate court to substitute its judgment for that of the sentencing court as to the

exceeded my authority.

Having looked at the defendant’s criminal history, it is true, as his counsel
stated, that he presently has two state charges against him, separate charges, for
sexual battery of children. One of them is six years of age, and I think the other is five
years of age. Those are two separate events. You also were charged with rape of a
child in 1993 and that was dismissed. It turns out it was your four-year-old niece.
Those charges were dismissed against you. I am considering those factors in your
sentence. I believe that in this particular case, under 3553, that this is a very serious
offense . . ., [and] this defendant needs to have respect for human life and the dignity
of others. This is a very serious offense. I don’t know in this defendant’s case
whether any sentence will deter him from any future criminal conduct, but I do know
that to the extent I have any authority I’m going to protect the public from further
crimes by this defendant, and that is one of the options I have and one of the
responsibilities I have.

So in order to protect the public from further crimes . . . Robert Jones is
hereby committed to the custody of the Bureau of Prisons to be imprisoned for a term
of 10 years . . . .
59
United States v. Saldana, 427 F.3d 298, 310 (5th Cir. 2005).
60
United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005).

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appropriateness of a particular sentence.’”61 This circuit has sustained upward departures from the

Guidelines that were proportionately greater than the departure at issue here and departures of the

magnitude at issue here.62 The same factors that lead us to conclude that a departure was not

unreasonable also lead us to conclude that the extent of the departure was not unreasonable.

Jones has not challenged the district court’s failure to set forth in writing in the judgment and

order of commitment its reasons for the upward departure as required by § 3553(c)(2).63 This

requirement remains binding post-Booker.64 We note that had Jones raised this issue, § 3742(f)(2)

provides that if “the district court failed to provide the required statement of reasons in the order of

judgment and commitment” and the court of appeals “determines that the sentence is too high,” the

court of appeals “shall set aside the sentence and remand.”65 But as discussed above, the sentence

is not “too high.”

61
United States v. Williams, 503 U.S. 193, 205 (1992) (quoting Somel v. Helm, 463 U.S. 277,
290 n.16 (1983)).
62
United States v. Smith, 417 F.3d 483, 492 (5th Cir. 2005) (upholding departure to 120
months from a guideline maximum of 41 months, “an increase of nearly 300%”); United States v.
Daughenbaugh, 49 F.3d 171, 174-75 (5th Cir. 1995) (upholding departure to 240 months from range
of 57 to 71 months (338%)); United States v. Rosogie, 21 F.3d 632, 633 (5th Cir. 1994) (upholding
departure to 150 months from range of 30 to 37 months (405%)).
63
See 18 U.S.C. § 3553(c)(2) (“The court, at the time of sentencing, shall state in open court
the reasons for its imposition of the particular sentence, and, if the sentence . . . is outside the range[]
described in subsection (a)(4), the specific reason for the imposition of a sentence different from that
described, which reasons must also be stated with specificity in the written order of judgment and
commitment . . . .”).
64
See Saldana, 427 F.3d at 310 n.48.
65
18 U.S.C. § 3742(f)(2).

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 V

Finally, Jones contends that his sentence should be reversed because the district court did not

give him notice prior to the sentencing hearing that it was considering an upward departure and that

he had no notice of the grounds for that departure. Our review is for plain error since this issue was

raised for the first time on appeal.

Rule 32(h) provides:

Before the court may depart from the applicable sentencing range on a ground not
identified for departure either in the presentence report or in a party’s rehearing
submission, the court must give the parties reasonable notice that it is contemplating
such a departure. The notice must specify any ground on which the court is
contemplating a departure.66

We will assume, without deciding, that the district court did not comply with this rule.

One of the purposes of Rule 32(h) is to “‘promot[e] focused, adversarial resolution of the

legal and factual issues relevant to fixing Guidelines sentences.’”67 Jones contends that had he

received prior notice, he would have pointed out to the district court that reliance on prior arrests was

prohibited. He offers no other basis to support his contention that he was prejudiced by the lack of

notice. For the reasons already considered, we cannot say that it was reasonably probable that the

district court would have chosen a lesser sentence had it not relied on the prior arrests.68 At best, the

66
FED. R. CRIM. P. 32(h).
67
United States v. Milton, 147 F.3d 414, 421 (5th Cir. 1998) (quoting Burns v. United States,
501 U.S. 129, 137 (1991)).
68
See United States v. Villegas, 404 F.3d 355, 364 (5th Cir. 2005) (holding that when the
district court misinterpreted and misapplied the Guidelines by finding an enhancement was
appropriate for possession of a firearm, “the proper question . . . is whether the defendant can show
a reasonable probability that, but for the district court’s misapplication of the Guidelines, he would
have received a lesser sentence”).

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record indicates that it is equally plausible that the district court would have imposed the same

sentence as it is plausible that the court would not have.69

* * *

For the foregoing reasons, we AFFIRM Jones’s sentence.

69
See United States v. Mares, 402 F.3d 511, 521 (5th Cir. 2005) (“[T]his burden of
proof . . . requires ‘the defendant to show that the error actually did make a difference: if it is equally
plausible that the error worked in favor of the defense, the defendant loses; if the effect of the error
is uncertain so that we do not know which, if either, side it helped the defendant loses.’”) (quoting
United States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005)).

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