Case: 19-50591 Document: 00515531790 Page: 1 Date Filed: 08/18/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 18, 2020
No. 19-50591
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Corey Reeves Bostic,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:19-CR-4-4
Before Dennis, Southwick, and Ho, Circuit Judges.
Leslie H. Southwick, Circuit Judge:
The defendant entered an open plea of guilty. The Guidelines range
was 21 to 27 months, but the district court imposed a 235-month sentence.
The defendant here argues both the procedural and substantive
unreasonableness of his sentence. We conclude that the district court needs
to explain better its justification for such a sentence or impose a lesser one.
We VACATE the sentence and REMAND for resentencing.
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FACTUAL AND PROCEDURAL BACKGROUND
Police officers responded to a 911 call of a possible drug overdose in
Odessa, Texas. When they arrived, they discovered AF, a 24-year old
female, who was not breathing. According to a witness, AF had been given
heroin by her boyfriend Braxton Hudgens the previous evening. AF
complained of the effects of the heroin, and Hudgens contacted Corey
Reeves Bostic to obtain methamphetamine. Bostic arrived at the scene, saw
that AF was in the midst of an overdose, and provided Hudgens with
methamphetamine. Hudgens administered the drug to AF. AF was
pronounced dead at a hospital.
At the time of her death, AF was under treatment for an enlarged heart
and had previously undergone heart surgery. When she died, her heart was
enlarged to four times its normal size. According to the medical examiner,
while it was likely that drug use contributed to AF’s death, her preexisting
health condition prevented a showing of but-for causation. A federal grand
jury for the Western District of Texas did not charge Bostic with AF’s death,
but he was indicted for conspiracy to possess with intent to distribute
methamphetamine pursuant to 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 846.
Bostic pled guilty without a plea agreement.
In the Presentence Investigation Report (“PSR”), the probation
officer calculated an offense level of 10 and a criminal history category of V,
producing a United States Sentencing Guidelines range of 21 to 27 months.
The PSR recognized the findings of the medical examiner regarding
causation, stating there was no identifiable victim as defined in Burrage v.
United States, 571 U.S. 204 (2014), where the Supreme Court held:
At least where use of the drug distributed by the defendant is
not an independently sufficient cause of the victim’s death or
serious bodily injury, a defendant cannot be liable under the
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penalty enhancement provision of 21 U.S.C. § 841(b)(1)(C)
unless such use is a but-for cause of the death or injury.
Id. at 218–19.
At sentencing, the district court found the PSR accurate and adopted
it, including the PSR’s Guidelines calculations. Bostic’s counsel argued that
certain factors courts must consider under 18 U.S.C. § 3553(a) weighed
against sentencing Bostic outside the Guidelines range. Bostic’s counsel
focused on the nature and circumstances of the offense and the history and
characteristics of the defendant, which fall under Section 3553(a)(1).
According to Bostic’s counsel, because of the drug use and “dark”
circumstances surrounding the offense, no one involved was thinking clearly,
and Bostic specifically was “in a period of full use” of heroin, trying to stave
off withdrawal. Bostic himself stated that he took responsibility for his
actions and that if he could go back to the night of the events in question, he
would have called 911.
The Government’s counsel recognized that although Bostic did not
cause the circumstances on the night in question, his actions were depraved.
The Government stated: “It’s not to say that they could have saved the life,
but they didn’t try. So the government can’t in good faith say [Bostic] caused
a death, but [Bostic] stood by and watched it and did nothing.” The
Government argued for a “modest upward departure” given the “horrific
nature of the circumstances,” and an “upward variance . . . to say that life
matters.”
The district court expressly found the PSR’s Guidelines range of 21
to 27 months was “wanting,” and noted that “if the government had been
able to charge [Bostic] with distribution of methamphetamine which resulted
in death, [Bostic] would have faced a mandatory minimum term of
imprisonment of 20 years and a minimum of ten years of supervised release.”
The district court sentenced Bostic to 235 months of imprisonment and 3
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years of supervised release. Bostic’s counsel objected to the sentence as
procedurally and substantively unreasonable.
The district court incorrectly indicated in Section IV of the Statement
of Reasons form that Bostic’s sentence was within the Guidelines range, and
the district court left blank Section VI of the same form, which would provide
information regarding the reasons for a variance, including which Section
3553(a) factors were considered in arriving at the sentence.
Bostic timely appealed.
DISCUSSION
We review criminal sentences for reasonableness. Gall v. United
States, 552 U.S. 38, 46 (2007). First, we determine whether the district
court’s sentence was procedurally unreasonable. Id. at 51. If the sentencing
decision is procedurally sound, we then consider its substantive
reasonableness, reviewing for abuse of discretion. See id. Though they are
not the only consideration, “the Guidelines should be the starting point and
the initial benchmark” for sentencing. Id. at 49. Bostic argues his sentence
was both procedurally and substantively unreasonable.
Procedural error includes “failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as mandatory,
failing to consider the § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen sentence —
including an explanation for any deviation from the Guidelines range.” Gall,
552 U.S. at 51 (referring to 18 U.S.C. § 3553(a)). Bostic argues on appeal that
the district court did not provide an adequate explanation to “support[] the
court’s 770 percent upward variance from the high end of the Guidelines
range.” Bostic’s counsel objected to Bostic’s above-Guidelines sentence as
procedurally unreasonable: “Specifically, we object to the imposition of this
sentence of the 3553(a)(2) factor as not considering in the nature and
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circumstances of the offense, the health and use of the decedent in this
particular case.” The district court responded merely, “Noted,” and then
ended the sentencing proceedings.
Considerations of the “nature and circumstances of the offense” fall
under Section 3553(a)(1), not 3553(a)(2). Bostic’s counsel, though, had
earlier argued against an above-Guidelines sentence under Section 3553(a)(1)
and cited the nature and circumstances of the offense. Because of that
argument, we conclude that Bostic’s objection sufficiently alerted the district
court to the nature of the alleged error such that it had an opportunity for
correction. United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009); Fed.
R. Crim. P. 51(b). We thus review for abuse of discretion. Gall, 552 U.S.
at 51.
If a district court imposes a sentence outside the Guidelines range, it
must state on the record “the specific reason for the imposition of a sentence
different from that described” in subsection (a)(4). § 3553(c)(2). This
explanation must “allow for meaningful appellate review and . . . promote the
perception of fair sentencing.” Gall, 552 U.S. at 50. The district court
“must consider the extent of the deviation and ensure that the justification is
sufficiently compelling to support the degree of the variance.” Id. Further,
“a major departure should be supported by a more significant justification
than a minor one.” Id. For such a non-Guidelines sentence, a district court
must more thoroughly articulate fact-specific reasons for its sentence, and
“[t]he 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. Smith, 440 F.3d 704, 707 (5th Cir. 2006) (quotation
marks omitted).
We have held a district court made a procedural error by not
adequately explaining the chosen sentence where the only supporting reasons
were a recitation of the Guidelines calculation, accompanied by a brief
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colloquy with defense counsel that did not squarely address the defendant’s
sentencing arguments, and where the district court overruled the
defendant’s objection without explanation. United States v. Mondragon-
Santiago, 564 F.3d 357, 363–64, 364 n.5 (5th Cir. 2009). Inadequate
explanation can include a mere “passing reference” to the Section 3553(a)
factors at the sentencing hearing and in the statement of reasons if not
accompanied by some explanation for the selected sentence or the decision
to depart from the advisory range. United States v. Chon, 713 F.3d 812, 823–
24 (5th Cir. 2013).
The district court here adopted the PSR’s Guidelines calculation,
which provided a sentence of 21 to 27 months. It concluded, though, that
this range was “wanting.” It based its explanation on Section 3553(a)(2)(A),
specifically the seriousness of the offense and AF’s death. Beyond that, the
district court discussed what Bostic’s sentence might have been if Bostic had
been charged with distribution of methamphetamine which resulted in death:
240 months of imprisonment. Without further elaborating, the district court
sentenced Bostic to 5 months less than 20 years of imprisonment. The
district court did not address Bostic’s argument regarding the factors under
Section 3553(a)(1), and it offered no explanation as to why it overruled his
objection to the chosen sentence.
The Statement of Reasons form incorrectly indicated that Bostic was
sentenced within the Guidelines range, and offered no explanation as to the
district court’s reasoning under Section 3553(a). We are not informed of the
factors that led the district court to impose its sentence or informed whether
it took into consideration Bostic’s arguments regarding the Section 3553(a)
factors. The sentence imposed here was nearly eight times longer than the
Guidelines range and quite similar to an appropriate sentence for someone
who was responsible for a death in these circumstances. The district court
“must consider the extent of the deviation and ensure that the justification is
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sufficiently compelling to support the degree of the variance,” and “a major
departure should be supported by a more significant justification than a minor
one.” Gall, 552 U.S. at 50. Such a sentence requires an explanation
commensurate in thoroughness. Smith, 440 F.3d at 707. The dramatic
deviation without commensurate explanation causes us to find more is
needed.
With respect, the district court procedurally erred by offering an
inadequate explanation, which was an abuse of its discretion. There is no
need for us to address Bostic’s arguments regarding substantive
unreasonableness.
We recognize that the district court judge is in a “superior position to
find facts and judge their import under § 3553(a),” and that the judge “sees
and hears the evidence, [and] makes credibility determinations.” Gall, 552
U.S. at 51. Our ruling should not be interpreted as taking a position on
whether this same sentence could be justified by a more fulsome explanation.
See United States v. Johnson, 648 F.3d 273, 280 (5th Cir. 2011). The
substantive reasonableness of any sentence will be reviewed based on a
thorough record that “allow[s] for meaningful appellate review and . . .
promote[s] the perception of fair sentencing.” Gall, 552 U.S. at 50.
VACATED and REMANDED for resentencing.
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James C. Ho, Circuit Judge, dissenting:
Corey Reeves Bostic is no ordinary drug dealer. When he saw a 24-
year-old woman overdosing on heroin, he did not try to help save her life. He
sold her methamphetamine instead. She died shortly thereafter. And the
medical examiner later stated the obvious: Although there was no conclusive
proof of but-for causation, it was likely that the meth contributed to her
death, along with her taking heroin and her underlying heart condition.
Bostic pleaded guilty to conspiracy to distribute and distributing
methamphetamine. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846.
Congress has imposed a mandatory minimum sentence of 5 years and a
maximum of 40 years for these offenses. 21 U.S.C. § 841(b)(1)(B). The
Presentence Report, however, calculated only a 21 to 27 months range under
the United States Sentencing Guidelines.
Not surprisingly, the district court found that range “wanting”
considering the “seriousness of the offense and the death.” So the court
imposed a significant upward variance, sentencing Bostic to 235 months, or
roughly half the maximum 40-year prison sentence set by Congress.
The reason for this significant upward variance seems obvious,
befitting one of the most horrible fact patterns imaginable under the statute.
At sentencing, the Government highlighted Bostic’s “depravity that . . . is
not common to human experience.” As the Government explained, an
“upward variance is appropriate to say life matters. And when you stand by
and are part of a system, part of a scene where drug use is rampant and it
ruins people’s lives and you watch people die without lifting a finger to help
them, that’s something that we take seriously because we value life.”
The court agreed with the Government and entered an upward
variance under 18 U.S.C. § 3553(a) in light of “the devastating facts of this
case.” I find no procedural defect, warranting vacatur and remand, in what
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the district court did. See, e.g., United States v. Fraga, 704 F.3d 432, 439 (5th
Cir. 2013) (“[T]he district court need not engage in robotic incantations that
each statutory factor has been considered . . . . [T]he sentencing judge heard
and considered the evidence and arguments . . . and gave [the defendant]
multiple opportunities to speak and present mitigating evidence.”) (cleaned
up); United States v. Key, 599 F.3d 469, 474 (5th Cir. 2010) (“[T]here is no
error when examining the full sentencing record reveals the district court’s
reasons for the chosen sentence and allows for effective review by this
court.”) (cleaned up). (To the extent a clerical error exists in the judgment
form, a limited remand is sufficient to allow the district court to fix the error.
See Fed. R. Crim. P. 36.)
That said, I take heart in the majority’s invitation to the district court
to issue precisely the same sentence on remand. After all, there is nothing
substantively unreasonable about sentencing Bostic to less than half the
maximum 40-year prison sentence set by Congress. And “[a]ppellate review
of the substantive reasonableness of a sentence is highly deferential.” United
States v. Hoffman, 901 F.3d 523, 554 (5th Cir. 2019) (cleaned up). See also,
e.g., id. at 565–65 (Dennis, J., concurring in part and dissenting in part)
(collecting cases upholding upward variances higher than 1214% above-
Guidelines recommendations). 1
***
The 235-month sentence is both procedurally and substantively
reasonable. I respectfully dissent.
1
Additionally, I would review Bostic’s asserted procedural violation for plain error,
rather than for abuse of discretion. See Puckett v. United States, 556 U.S. 129, 135 (2009).
The defendant did not object to the alleged procedural defect with sufficient specificity
before the district court, so the claim is not preserved for appeal. See, e.g., Key, 599 F.3d at
474. In any event, the district court did not abuse its discretion, for the reasons stated here.
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