United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
July 19, 2006
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 05-20561
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
versus
HERBERT VANCE GOLDSMITH,
Defendant - Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas, Houston
USDC No. 4:04-CR-268-ALL
_________________________________________________________________
Before JOLLY, PRADO, and OWEN, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:1
The Government appeals the district court’s post-Booker non-
guideline sentence of Herbert Vance Goldsmith. After review of the
record, based on the analysis set forth in United States v. Smith,
440 F.3d 704, 707-08 (5th Cir. 2006), we hold that the sentence is
unreasonable, and, under the totality of the circumstances, we
vacate Goldsmith’s sentence, and remand for resentencing.
I
On March 17, 2004, Police from the City of Houston executed a
search warrant on property owned by Goldsmith, but leased by him to
1
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this opinion should not be published and is not precedent except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.
a carwash business.2 During the execution of the warrant one of
the officers saw the cylinder of a revolver above Goldsmith’s
waist. Goldsmith told the officer that he was in possession of a
firearm. Goldsmith was arrested and a loaded .22 caliber revolver
was removed from his person. In addition to the revolver,
Goldsmith was carrying $7,519 in cash.
On March 24, 2004, in an interview with an agent from the
Department of Alcohol, Tobacco, and Firearms (ATF), Goldsmith
confirmed that he was a convicted felon, and that he was carrying
the .22 caliber revolver on his person on March 17. Additionally,
Goldsmith explained that he was present at the carwash on the day
of the search to purchase a car for his son, and thus, had the
large amount of cash on his person.
On June 10, 2004, Goldsmith was charged as a felon in
possession of a firearm in and affecting interstate or foreign
commerce in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2),
which is a felony offense. At his initial appearance on June 15,
2004, the magistrate ordered that Goldsmith be temporarily detained
2
The search warrant was obtained after multiple complaints
that illegal drugs and narcotics were being sold on the premises.
The execution of the warrant resulted in the seizure of
approximately 21.81 grams of cocaine, 1,845.98 grams of marijuana,
63.9 grams of prescription drugs, including Vicodin, two firearms
(in addition to Goldsmith’s revolver), a scale, and $9,876 in cash
(in addition to that found on Goldsmith). Five individuals were
arrested and charged with various narcotics counts resulting from
the search. Goldsmith was not charged with any drug or narcotic
offenses arising from the March 17, 2004 search.
2
pending his detention hearing. At the detention hearing on June
18, 2005, bond was posted, and Goldsmith was released.
On November 23, 2004, Goldsmith pleaded guilty to the
indictment without a plea agreement. He remained free on bond
pending sentencing.
Based on the uncontested presentence report, the Guidelines
suggested a range of imprisonment from 27-33 months. Arguing that
Goldsmith was in fear of his safety and was thus carrying the gun
for protection, Goldsmith’s counsel at sentencing argued that a
more appropriate sentence would be 12-18 months. Citing
Goldsmith’s successful drug treatment, his lack of incident since
posting bond, his “stable job and home life”, and “the unlikely
chance of recidivism”, the district court sentenced Goldsmith to
time served (three days), three years of supervised release,
including six months of home confinement with absences for
employment, religious services, medical care, and certain other
events, and a fine of $3,000. The Government objected to the
sentence as unreasonable, and timely filed this appeal.
II
A
“The district court’s application of the Guidelines, even
after Booker, is reviewed de novo.” Smith, 440 F.3d at 706 (citing
United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005)). The
district court’s findings of fact relating to sentencing are
accepted unless clearly erroneous. United States v. Duhon, 440
3
F.3d 711, 714 (5th Cir. 2006) (citing United States v. Creech, 408
F.3d 264, 279 n.2 (5th Cir. 2005)). Ultimately, under United
States v. Booker, 543 U.S. 220, 260-61 (2005), we review the
sentence for “unreasonableness” in the light of the factors set
forth in 18 U.S.C. § 3553(a).3 Id.
“Our post-Booker case law has recognized three different types
of sentences under the advisory Guidelines regime.” Smith, 440
3
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
. . . 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 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 . . . .
4
F.3d at 706-07 (articulating the three types of post-Booker
sentences: (1) a sentence within the Guidelines range; (2) a
sentence including a departure allowed or authorized by the
Guidelines; and (3) a “non-Guideline sentence” -- “a sentence
either higher or lower than the relevant Guideline sentence”).
Because the district court’s extreme reduction from the Guideline
range in this case was not authorized by the Guidelines,
Goldsmith’s sentence is a non-Guideline sentence. Before a non-
Guideline sentence is imposed, the district court must consider the
Guidelines, “utiliz[ing] the appropriate Guideline range as a
‘frame of reference’.” Id. at 707 (citing United States v. Fagans,
406 F.3d 138, 141 (2nd Cir. 2005); and United States v. Jackson,
408 F.3d 301, 305 (6th Cir. 2005)). In addition, the district
court must “more thoroughly articulate its reasons when it imposes
a non-Guideline sentence than when it imposes” a Guideline
sentence. Id. “These reasons should be fact-specific and
consistent with the sentencing factors enumerated in section
3553(a). The farther a sentence varies from the applicable
Guideline sentence, ‘the more compelling the justification based on
factors in section 3553(a)’ must be.” Id. (quoting United States
v. Dean, 414 F.3d 725, 729 (7th Cir. 2005)); see also Duhon, 440
F.3d at 715.
“In reviewing for reasonableness, we assess whether the
statutory sentencing factors support the sentence”, recognizing
that the “totality of the relevant statutory factors” must support
5
the sentence. Duhon, 440 F.3d at 715 (citing United States v.
McBride, 434 F.3d 470, 477 (6th Cir. 2006)) (emphasis in the
original) (finding a probation only sentence unreasonable where the
Guidelines range was 27-33 months). Adopting the Eighth Circuit’s
standard from United States v. Haak, 403 F. 3d 997 (8th Cir. 2005),
we have made clear that “[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.” Smith, 440 F.3d at 708 (emphasis added).
On review of the record before us, we find that the sentence
imposed on Goldsmith encompasses each of these errors and,
consequently, is unreasonable.
B
In rejecting the Guidelines range of 27-33 months and
sentencing Goldsmith to time served, three years supervised
release, and a modest fine, the district court provided the
following reasoning:
The defendant is before this Court for
his first encounter in the judicial – for
possession of a firearm by a previously
convicted felon. His first encounter with the
judicial system was the felony conviction that
is the basis for his arrest, an aggravated
robbery when he was 17 years old.
The defendant has had other arrests since
that time involving misdemeanor charges,
generally involving the possession of
6
marijuana. The defendant has acknowledged
that he smoked marijuana on a daily basis
since he was 15 years old but has been in
recovery since he was arrested on this case
and has not had any problems related to the
use of drugs or the use of marijuana since he
began the program associated with this arrest.
The defendant has not had any problems
since he has been released and on pretrial
supervision. The Court also acknowledges that
the defendant has accepted responsibility for
his actions, appears to be remorseful for his
conduct, and indicated, foolishly, the Court
believes, a need to carry a firearm for
protection.
Although the defendant believed he had
justifiable reasons for carrying a firearm, he
accepts responsibility for the fact that he
engaged in criminal conduct, and believes, as
this Court does, that he understands the
restrictions that are placed on him from – as
a result of his earlier mistake, and that he
can adhere to the law.
He has maintained stable employment, a
stable residence and stable family life. The
Court believes that taking into consideration
all of the factors including regarding this
offense, and considering them pursuant to 18
U.S. Code, Section 3553, as well as taking the
sentencing guidelines into consideration, the
Court has looked at the nature and
circumstances of the offense and the history
and characteristics of this defendant and has
determined that the time previously served
adequately punishes the defendant, promotes
respect for the law, is sufficient to deter
any additional criminal conduct from this
defendant, and will protect the public from
further crimes of this defendant.
The district court additionally entered a “Statement of Reasons” on
June 16, 2005, that essentially repeats the reasoning provided at
7
sentencing as quoted above.4 The reasons articulated fail to
support a finding of reasonableness.
In view of the record before us, we hold that Goldsmith’s
sentence fails to satisfy each prong of the Haak standard, as
expressed in Smith. First, the sentence “does not account for . .
. factor[s] that should have received significant weight”, as the
sentence failed to consider: 1) an accurate view of Goldsmith’s
criminal history; 2) the seriousness of the offense, and the
adequacy of the deterrence; and 3) the resulting disparities
between sentences for similar crimes. Second, the sentence “gives
significant weight to . . . irrelevant or improper factor[s]”, by
both relying on factors already accounted for in the calculation of
the guideline range, and by relying on factors irrelevant to
sentencing. Finally, the sentence “represents a clear error of
judgment in balancing the sentencing factors” by allowing a
defendant with seven prior convictions effectively to avoid a
meaningful term of imprisonment. We discuss each prong in turn.5
4
Specifically, citing the fact that Goldsmith was 17 when he
committed the aggravated robbery, the district court found that
“the characteristics of the defendant[,] and the unlikely chance of
recidivism” supported the sentence given. Additionally, based upon
“the nature of the offense and the circumstances of the defendant”
the Statement of Reasons notes that “a sentence below the guideline
imprisonment range will adequately punish the criminal conduct,
promotes [sic] respect for the law and will serve as a deterrence
[sic] from further criminal activity”.
5
In his brief, although generally arguing that the factors of
18 U.S.C. § 3553(a) support his sentence, Goldsmith makes no
specific arguments tying any of the § 3553(a) factors to his
sentence. Instead, Goldsmith relies primarily on two points:
8
(1)
Goldsmith’s sentence “does not account for [several] factor[s]
that should have received significant weight”. Smith, 440 F.3d at
708. First, § 3553(a)(1) requires consideration of “the nature and
circumstances of the offense and the history and characteristics of
the defendant.” 18 U.S.C. § 3553(a)(1). Goldsmith has a fairly
extensive criminal history including seven convictions in twenty-
two years.6 The district court erroneously found that Goldsmith
First, a general discussion of the district court’s discretion
post-Booker; and second, his explanation for carrying the .22
caliber pistol. The former fails to provide specific reasoning
sufficient to support a finding in Goldsmith’s favor. The latter
is irrelevant (and apparently disbelieved by the district court).
Goldsmith explained his possession of the revolver by noting
that he was victimized in two recent incidents of assault and
robbery while patronizing local nightclubs. Thus, in fear for his
safety, Goldsmith argues he was forced to carry the loaded
revolver. Goldsmith argues that because the statute criminalizing
his possession of a firearm was not aimed at preventing felons from
protecting themselves, the reduction in sentence was appropriate.
The district court expressed little acceptance for this explanation
stating, “Gosh. How does somebody have that much bad luck? Just
– I mean, obviously you can’t help it if somebody – it’s not your
fault if you a [sic] victim of a crime, but there is such a thing
as being in the wrong place at the wrong time. . . . People who
are getting shot are someplace where they’re likely to get shot.”
At sentencing the district court explained that the defendant
“indicated, foolishly, the Court believes, a need to carry a
firearm for protection.” Consequently, it does not appear that
Goldsmith’s proffered justification for the revolver was a factor
in the district court’s decision to sentence him leniently.
6
In 1982 Goldsmith was convicted of aggravated robbery,
earning him a sentence of 15 years. Additionally in 1982 Goldsmith
was convicted of theft. In 1992 Goldsmith pleaded guilty to a state
charge involving his second felony, unlawful possession of a
firearm by a felon. Two weeks after his probation ended in 1997 on
the state felon-in-possession charge, Goldsmith was convicted of
deadly conduct and marijuana possession. Less than two years
9
had not been convicted of a felony since he was seventeen, a
conclusion the defendant concedes ignored his 1992 felony
conviction. Based on this error, the district court found that
given the perceived minor nature of the offenses since that time,
Goldsmith presented little risk of recidivism. This finding is not
consistent with the reality of Goldsmith’s criminal history. Not
only has Goldsmith found himself in a tangle with the law every few
years since he was 17, his record contains an adult conviction for
the state felony equivalent to the conviction now at issue -- felon
in unlawful possession of a firearm. It seems ironic that
Goldsmith’s criminal history would be construed to his benefit at
sentencing, or that it would give any assurance as to recidivism.
Such construction by the district court fails to give Goldsmith’s
criminal history the negative significance it deserved under §
3553(a)(1).
Second, the district court misapplied § 3553(a)(2)(a) and (b),
requiring the sentence imposed “to reflect the seriousness of the
offense, to promote respect for the law, . . . to provide just
punishment for the offense[,] and to afford adequate deterrence to
criminal conduct.” 18 U.S.C. § 3553(a)(2). The district court
thought that the sentence imposed would deter this defendant and
protect the public from him. We think this was error. In 1992
later, Goldsmith was convicted of possession of marijuana and
driving while intoxicated. Finally, in 2004, Goldsmith pleaded
guilty to the federal felon-in-possession charge related to this
appeal.
10
Goldsmith was convicted of the identical state felony and was given
a more severe sentence than the one currently before us. Yet, in
2004 Goldsmith committed the identical federal felony. This fact
should be sufficient evidence that supervised release alone is not
adequate to deter this conduct by this defendant. Further,
focusing on the effectiveness of the deterrence as to this
defendant alone does not fulfill the purpose of § 3553(a)(2). See
Duhon, 440 F.3d at 721 (Garza, J., concurring) (reasoning that the
district court erred as to § 3553(a)(2) by failing “to explain how
a sentence of probation would discourage others”).
Finally, the district court omitted any consideration of §
3553(a)(6)’s concern for “unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct.” 18 U.S.C. § 3553(a)(6). “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.”
Smith, 440 F.3d at 710 (Garza, J., concurring).
11
(2)
The district court also erred when it “g[a]ve significant
weight to . . . irrelevant or improper factor[s].” The district
court’s primary justifications for the sentence given were: 1) the
district court’s belief that Goldsmith’s criminal history indicated
no future risk of recidivism; 2) Goldsmith’s acceptance of
responsibility; 3) Goldsmith’s clean record while on bond,
including successful participation in drug treatment; and 4)
Goldsmith’s stable family and work life. All of these
justifications are “irrelevant or improper factor[s]” in this
sentence because each is either based on an incorrect factual
premise, or already considered in the calculation of the Guideline
range.
First, as discussed above, the district court erred in stating
Goldsmith’s criminal history, saying that he had committed no
felony after his 1982 conviction, and that his criminal history
thus indicated no risk of recidivism. By relying on inaccurate
facts, the district court placed significant weight on an improper
factor. See, e.g., United States v. Castillo, 430 F.3d 230, 244
(5th Cir. 2005) (vacating a sentence where the factual findings and
resulting conclusions by the district court were clearly
erroneous).
Second, each of the remaining justifications had already been
accounted for, to the extent they were relevant at all, in the
calculation of the Guidelines range. The district court cited
12
Goldsmith’s acceptance of responsibility. Yet, the Guideline
sentence had accounted for his acceptance by reducing Goldsmith’s
offense level from 20 to 17, resulting in the reduction of the
Guideline range from 37-46 months, to 27-33 months. See United
States v. Haverstat, 22 F.3d 790, 795 (8th Cir. 1994) (rejecting
the defendant’s argument for a downward departure based on his
guilty plea, and finding that “[a] guilty plea before trial is a
factor to be considered only in the acceptance of responsibility
determination under U.S.S.G. § 3E1.1”). Next, the district court
again cited to Goldsmith’s criminal history, his successful
participation in drug rehabilitation “since he was arrested on this
case”, and the fact that “he has not had any problems since being
released on pretrial supervision”, all as indicators of “the
unlikely chance of recidivism.” As discussed above, we find this
view of Goldsmith’s criminal history unpersuasive. The district
court’s reliance on post-offense rehabilitation is likewise
misplaced as the reduction for acceptance of responsibility given
Goldsmith accounted for this rehabilitation. See U.S.S.G. § 3E1.1,
comment n.1. (g) (in determining the defendant’s eligibility for an
acceptance of responsibility reduction consideration is given to
“post-offense rehabilitative efforts (e.g., counseling or drug
treatment)”). While Goldsmith’s efforts at rehabilitation are
commendable, there is nothing extraordinary in good behavior while
on bond, or post-offense drug treatment -- certainly nothing that
merits a sentence so seriously below the Guidelines range as this
13
one. See, e.g., United States v. Rogers, 400 F.3d 640, 641-42 (8th
Cir. 2005) (holding that because post-offense rehabilitation is
accounted for in acceptance of responsibility “a defendant’s
rehabilitation must be exceptional enough to be atypical” to
warrant further reduction in sentence, and that the defendant’s
“reuniting with family and remaining drug-free, while commendable,
are not extraordinary or atypical”).
Finally, the district court cited Goldsmith’s “stable
employment, . . . stable residence, and stable family life” as
justification for the very significant decrease in sentence. Yet
the Guidelines clearly state that “family ties and responsibilities
are not ordinarily relevant in determining whether a departure may
be warranted.” U.S.S.G. § 5H1.6; see also United States v. Brown,
29 F.3d 953, 961 (5th Cir. 1994) (holding under the mandatory
Guidelines that familial circumstances and responsibilities do not
justify departure from the Guideline range absent “unique or
extraordinary circumstances”). Consequently, each of the primary
factors the district court articulated for the non-Guideline
sentence imposed on Goldsmith are improper or inappropriate in this
case, and thus should not have been given “significant weight” by
the district court. See Smith, 440 F.3d at 708.
III
14
In conclusion, we do not gainsay the district court’s
statutory freedom to consider circumstances it finds inadequately
represented in the Guideline range. See U.S.S.G. § 5K2.0(a). Nor
do we intend by this opinion to remove any of the flexibility
provided to sentencing judges by Booker. However, in the light of
the reasoning stated by the district court and the record in this
case as discussed above, we must conclude that a sentence of time
served plus three years of supervised release where the Guidelines
range was 27-33 months can only be explained as a “clear error of
judgment in balancing the sentencing factors”. See Smith, 440 F.3d
at 708. We therefore VACATE Goldsmith’s sentence, and REMAND for
resentencing not inconsistent with this opinion and the precedents
cited herein.
VACATED and REMANDED.
15