United States v. Taylor

United States Court of Appeals Fifth Circuit In the F I L E D United States Court of Appeals June 19, 2006 for the Fifth Circuit _______________ m 04-41228 Charles R. Fulbruge III Summary Calendar Clerk ______________ UNITED STATES OF AMERICA, Plaintiff-Appellee, VERSUS JIMMY TAYLOR, Defendant-Appellant. _________________________ Appeal from the United States District Court for the Eastern District of Texas m 2:03-CR-19-TJW-18 _________________________ Before SMITH, GARZA, and PRADO, Jimmy Taylor appeals his sentence for drug Circuit Judges. possession and distribution and illegal use of a firearm, alleging error under United States v. PER CURIAM:* Booker, 543 U.S. 220 (2005), and challenging the denial of his motion for a downward de- parture. Because the record reveals that the judge would have imposed a lesser sentence * Pursuant to 5TH CIR. R. 47.5, the court has de- under an advisory guidelines system, we va- termined that this opinion should not be published cate and remand for resentencing. and is not precedent except under the limited cir- cumstances set forth in 5TH CIR. R. 47.5.4. I. doesn’t get us anywhere that I can see, be- Taylor pleaded guilty of possession with in- cause he had a prior drug conviction, and I tent to distribute and distribution of less than don’t believe I can do anything about that, five grams of cocaine base, in violation of 21 and I’m not inclined to do anything about U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and it. And, you know, one of these assault using and carrying a firearm during and in re- charges, he was under a court order, he vi- lation to a drug trafficking offense, in violation olated the court’s order, criminal trespass, of 18 U.S.C. § 924(c)(1).1 The PSR assigned and then he had the assault. He didn’t get a base offense level of 34 under U.S.S.G. any points for that [sic] violating the court § 2D1.1, with a three-level downward depar- order and it’s just sort of hard for me to ture for acceptance of responsibility. The PSR say, wellSSmy problem is I would have to further determined that Taylor’s prior offenses, disregard three points, and I can’t find any which included two misdemeanor assaults and three pointsSSI can’t find an additional two one count of indecent exposure, merited six that this court feels like that would be ap- criminal history points, with a resulting crimi- propriate. I will disregard the indecent ex- nal history category of III, yielding a guideline posure, but it’s still a Category III. range of 135 to 168 months’ imprisonment on the drug trafficking offense and 60 months on DEFENSE ATTORNEY: And me and Mr. the firearms offense. Taylor discussed that possibility, but we thought that it would be better to go ahead Taylor filed a motion for downward depar- and try than not. ture under U.S.S.G. § 4A1.3, which permits the court to assign a lower criminal history THE COURT: Oh, I understand. I category where the defendant’s current cate- thinkSS the Court considered your request, gory“substantially over-represents the serious- it is a long sentence. But ISSunless the ness of the defendant’s criminal history or the Government wants to stipulate to some- likelihood that the defendant will commit other thing, I don’t think there’s much I can do. crimes.” The following exchange ensued: [] THE COURT: Well, I read your motion GOVERNMENT ATTORNEY: []Your pretty carefully, [counsel]. The Court Honor, I agree with the Court’s assess- wouldn’t have a problem with dropping the ment, and certainly agree with the proba- one point on indecent exposure, but that tion officer’s response which the Court has pointed out that disregarding that point doesn’t make any difference. I justSSas the 1 Court and Counsel is well aware, these Taylor’s plea agreement contained an appel- guidelines in drug cases, what a person’s late-waiver provision in which he agreed to waive the right to review of the substance, procedure or sentence is determined by two things: The form of his conviction, except for sentencing quantity of drugs and the category of the guidelines determinations. Because, however, the criminal history points. And this is essen- government does not seek to enforce the provision, tially etched in stone, Your Honor, and I we proceed to consider Taylor’s appeal on the don’t think aSS merits. See United States v. Story, 439 F.3d 226, 230-31 (5th Cir. 2006). 2 THE COURT: Well, that’s what ISSabsent 405 F.3d 310, 317 (5th Cir.), cert. denied, 126 a stipulation from the Government that they S. Ct. 264 (2005). He must point to state- are willing to stipulate a departure down to ments made by the sentencing judge that in- Category II, which would get us closer to dicate he would have provided a lower sen- the 15 years total. tence if not bound by the guidelines. See Unit- ed States v. Rodriguez-Gutierrez, 428 F.3d The government declined to stipulate, and the 201, 203-04 (5th Cir. 2005), cert. denied, 126 court sentenced Taylor to the lowest possible S. Ct. 1383 (2006). We may also consider guidelines sentence, i.e., 135 months for the whether the sentence falls at the minimum, drug charges, concurrently with 60 months for maximum, or in the middle of the applicable the firearms charge. guidelines range. See id. at 204-06. II. Taylor has met his burden. The sentencing Because Taylor did not preserve his Sixth judge stated on two occasions that he did not Amendment claim, we review for plain error. think he could do anything to lighten Taylor’s See United States v. Mares, 402 F.3d 511, 512 sentence. He appeared to agree with the (5th Cir.), cert. denied, 126 S. Ct. 43 (2005). government’s assertion that the guidelines for Under plain error review, there must be drug cases are “essentially etched in stone.” (1) error, (2) that was plain and (3) affected He noted that the guidelines provide for a long substantial rights. See id. at 520. Further- sentence, and he invited the government to more, we will reverse only where the error stipulate to a downward departure to a crimi- would “seriouslyaffect[] the fairness, integrity, nal history category of IISSwhich he indicated or public reputation of judicial proceedings.” would have allowed him to sentence Taylor to Id. (quoting United States v. Cotton, 535 U.S. around 180 months (i.e., 15 years) instead of 625, 631 (2002)). This last prong is satisfied the 195 months ultimately imposed. where the defendant would have received a lesser sentence than the district court errone- True, the judge also said that he was not ously felt compelled to impose.2 “inclined” to alter Taylor’s sentence and that he did not find it “appropriate” for the court to A sentence imposed under a mandatory deduct two additional criminal history points. guidelines regime constitutes error that is He further noted that Taylor could have, but plain. See id. at 520-21. To affect substantial did not, receive points for violating a court rights, however, an error “must have affected order for criminal trespass. These statements, the outcome of the district court proceedings.” however, related to the judge’s opinion of the Id. at 521 (quoting United States v. Olano, proper application of the guidelines, not 507 U.S. 725, 734 (5th Cir. 1993)). The de- whether he would have imposed a lighter sen- fendant bears the burden of “demonstrating a tence had he not felt bound by them. The probability sufficient to undermine confidence commentary to § 4A1.3 contemplates down- in the outcome.” United States v. Bringier, ward departure only for minor past offenses: A downward departure from the defen- 2 See United States v. Pennell, 409 F.3d 240, dant’s criminal history category may be 246 (5th Cir. 2005) (citing United States v. Gra- warranted if, for example, the defendant cia-Cantu, 302 F.3d 308, 313 (5th Cir. 2002)). 3 had two minor misdemeanor convictions Our conclusion finds support in the fact that close to ten years prior to the instant of- the court ultimately sentenced Taylor to the fense and no other evidence of prior crimi- absolute minimum of the range. “[S]entences nal behavior in the intervening period. falling at the absolute minimum of the Guide- lines provide the strongest support for the U.S.S.G. § 4A1.3 cmt. n.3. argument that the judge would have imposed a lesser sentence.” Rodriguez-Gutierrez, 428 Taylor’s misdemeanor assaults occurred in F.3d at 205. Though a minimum sentence 1995 and 1996, respectively, only six years be- alone might be insufficient to establish that fore the events underlying the instant offense substantial rights were affected, see Bringier, in 2002. Also, Taylor was convicted of pos- 405 F.3d at 318, in this context the sentence session of a controlled substance in the in- lends credence to our conclusion, based on tervening period between his misdemeanor record testimony, that the judge (a) felt con- convictions and the present offense. Finally, strained faithfully apply the guidelines faith- because he served over 13 months on the drug fully and (b) attempted to achieve indirectly, charge, he merited the addition of three crimi- through government stipulation, what he felt nal history points under U.S.S.G. § 4A1.1(a). he could not do directly through guidelines Therefore, the district court did not believe it application; i.e., lower the sentence. could remain faithful to the guidelines if it forgave the previous assaults or the prior drug Taylor does not need to prove to a moral offense. certitude that he would have received a lighter sentence under an advisory regime. Rather, he But, merely because a judge strives to cal- need only raise a “probability sufficient to un- culate the guidelines range properly does not dermine confidence in the outcome.” Bring- mean that he agrees that a given sentence ier, 405 F.3d at 317. The fact that the court within that range is proportionate to the of- indicated it felt powerless to lower the sen- fense. A judge may attempt to promote parity tence, and invited a stipulation that would have among defendants by setting the bar at the reduced Taylor’s sentence by about 15 months same level for all of them, even if he thinks as if accepted, suffices to meet this burden. an initial matter that the bar was set too high. Therefore, resentencing is appropriate.4 In short, it is possible for a judge to believe he is fairly applying the guidelines without believ- 4 ing that application of the guidelines is fair.3 Resentencing is also consistent with previous cases in which we have found Booker error. See Pennell, 409 F.3d at 245-46 (finding substantial rights affected where judge sentenced at the low end of the guidelines range and stated he might 3 See, e.g., Rodriguez-Gutierrez, 428 F.3d at impose a lower sentence in the interest of “fairness 205-06 (stating that “a judge could consider one and justice” if not “constrained” by the guidelines); defendant a more serious offender than another de- United States v. Garcia, 416 F.3d 440, 441 (5th fendant and thus sentence the former to a higher Cir. 2005) (finding substantial rights affected sentence within the range, even while considering where judge imposed low-end sentence and stated the entire range to be too high”) (citing United that he would have sentenced lower if not for States v. Paladino, 401 F.3d 471, 482 (7th Cir. guidelines). Cf. Bringier, 405 F.3d at 317-18 2005)). (continued...) 4 Taylor also argues that the court erred in denying his motion for a downward departure under U.S.S.G. § 4A1.3. Even after Booker, we review de novo a district court’s interpreta- tion and application of the guidelines. See United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005). We have jurisdiction to re- view a refusal to depart downward “only if the district court based its decision upon an erro- neous belief that it lacked the authority to de- part.” United States v. Landerman, 167 F.3d 895, 899 (5th Cir. 1999). There is no evi- dence that the court thought it lacked that au- thority; it merely declined to exercise that au- thority, consistent with the commentary to § 4A1.3 and the instructions of § 4A1.1(a). As explained above, there was no error in the court’s application of the guidelines, but only in its misapprehension that it was bound to apply them, and refrain from issuing a milder sentence, absent government stipulation. The sentence is VACATED and the matter REMANDED for resentencing. 4 (...continued) (finding low-end sentence insufficient where defendant provided no record evidence that the judge had felt compelled by the guidelines). 5