United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 28, 2006
Charles R. Fulbruge III
Clerk
No. 05-30400
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MORRIS I. TAYLOR,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:04-CR-20052-1
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Before JONES, Chief Judge, and WIENER and DeMOSS, Circuit Judges.
PER CURIAM:*
Morris I. Taylor appeals his sentence following a guilty plea
to being a felon in possession of a firearm under
18 U.S.C.§ 922(g)(1). The presentence report (PSR) assigned Taylor
a base offense level of 24. The PSR increased the base offense
level by four because Taylor possessed the firearm in connection
with another felony. The PSR noted that police officers responding
to a complaint of drug activity found Taylor and three other
persons standing outside the address identified in the complaint.
*
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opinion should not be published and is not precedent except under the limited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.
When the officers asked for identification, Taylor fled and was
apprehended after a chase. The officers discovered a revolver and
a plastic bag containing an unspecified quantity of crack cocaine
in Taylor’s jacket pockets. A three-level downward adjustment for
acceptance of responsibility resulted in a total offense level of
25. Based on Taylor’s criminal history category of VI, the PSR
calculated the sentencing range as 110 to 137 months of
imprisonment, subject to the 120-month statutory maximum sentence
provided in 18 U.S.C. § 922(g)(1).
Taylor objected that the increase in offense level based on
his possession of the firearm in connection with another felony
violated Blakely v. Washington, 542 U.S. 296 (2004), because he had
not admitted that his possession of the firearm was related to
possession of the crack cocaine. The district court granted the
objection, which reduced Taylor’s guidelines sentencing range to
77-to-96 months.
At sentencing, the district court stated that it had reviewed
the entire record, had considered the Sentencing Guidelines, and
had considered the sentencing factors set forth in 18 U.S.C.
§ 3553. The court cited the seriousness of the offense, the need
to promote respect for the law, the need to provide just punishment
for the offense, and the possibility of drug rehabilitation and
further education as factors that warranted an increased sentence
under § 3553. The district court cited Taylor’s conduct in fleeing
the scene as evidence that he had known that his possession of the
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firearm was illegal. The court stated that Taylor’s extensive
criminal history required a harsh sentence. For these reasons, the
district court sentenced Taylor to the statutory maximum term of
120 months in prison and ordered that Taylor complete a 500-hour
substance abuse program offered by the Bureau of Prisons.
Taylor argues that the 120-month sentence is unreasonable
because most of his prior convictions were low level drug offenses
related to his substance abuse problems. Following United States
v. Booker, 543 U.S. 220 (2005), this court reviews the application
of the Sentencing Guidelines de novo. United States v. Smith,
440 F.3d 704, 706 (5th Cir. 2006). The court will accept the
district court’s factual findings unless they are clearly
erroneous. Id. The court reviews the sentence imposed for
reasonableness in light of the sentencing factors contained in
§ 3553(a). Id.
Under Smith, three different types of sentences are possible
under advisory Sentencing Guidelines: a sentence within the
properly calculated Guidelines range; a sentence that includes a
departure allowed under the Guidelines; and, as was imposed in this
case, a non-Guidelines sentence that is either higher or lower than
the appropriate Guidelines range. Smith, 440 F.3d at 706-08. In
imposing a non-Guidelines sentence, the district court is required
to calculate the appropriate Guidelines range and use it as a frame
of reference. Id. at 707-08. The district court must also
thoroughly articulate its reasons for imposing the non-Guidelines
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sentence and those reasons must be fact-specific and consistent
with the § 3553(a) sentencing factors. Id.
Taylor does not challenge the district court’s determination
of the appropriate Sentencing Guidelines range. Accordingly, we
will accept the range as appropriate.1 The record shows that the
court considered the Guidelines range and noted that the range was
advisory not mandatory. As noted above, the record also shows that
the district court was thorough and fact specific in its
articulation of the factors warranting the increased sentence under
18 U.S.C. § 3553. Taylor has not shown that the district court’s
imposition of the statutory maximum sentence was unreasonable.
Smith, 404 F.3d at 708-10.
AFFIRMED.
1
This is not to be interpreted as a sanction of the district court’s
rejection of the four-level offense level increase simply because Taylor did not
admit that he had possessed the firearm in relation to the possession of crack
cocaine. In post-Booker decisions, this court has continued to hold that it is
the defendant’s burden to show “that the information in the PSR relied on by the
district court is materially untrue,” United States v. Betancourt, 422 F.3d 240,
248 (5th Cir. 2005), and that, absent rebuttal evidence, the district court is
entitled to rely on the facts stated in the PSR. United States v. De
Jesus-Batres, 410 F.3d 154, 164 (5th Cir. 2005), cert. denied, 126 S. Ct. 1020
(2006).
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