United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
October 23, 2006
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 05-51015
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIAM DUWAYNE DEAN, III,
Defendant - Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas, Waco
USDC No. 6:05-CR-45-1
_________________________________________________________________
Before JOLLY, DAVIS, and BENAVIDES, Circuit Judges.
PER CURIAM:1
William Duwayne Dean, III (“Dean”) pled guilty to possession
of more than five grams of cocaine base. Based on his prior
criminal history, the district court sentenced him to 120 months in
prison and five years of supervised release. Dean timely appealed
the sentence. Finding no error, we affirm.
I
After Dean’s guilty plea, the U.S. Probation Office assigned
him a base offense level of 26 and deducted three points for
acceptance of responsibility, to reach a total offense level of 23.
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this opinion should not be published and is not precedent except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.
Dean’s criminal history level was VI, rendering his Sentencing
Guidelines range 92 to 115 months. At the sentencing hearing, the
district court adopted the probation officer’s recommendations,
listened to Dean’s counsel argue for a more lenient sentence, and
then, “based on [Dean’s] prior criminal history and criminal
history score,” imposed a term of 120 months. In its Statement of
Reasons, the district court indicated it was imposing “a sentence
outside the sentencing guideline system.”
II
The two issues Dean raises on appeal are (1) whether the
district court erred in giving him a sentence longer than the
guideline range and (2) whether the district court erred in not
giving him notice it was considering doing so. Because Dean did
not object below, we review each of these challenges for plain
error. United States v. Jones, 444 F.3d 430, 436 (5th Cir. 2006).
This means that Dean has the burden of showing an error, that is
plain, and that affected his substantial rights. Id.
A
To resolve Dean’s first challenge, we must first determine
whether the 120-month sentence is an upward departure within the
Guidelines system or a non-Guidelines sentence. The parties appear
to have assumed it to be the former but, as noted above, the court
stated that the sentence is “outside the sentencing guidelines
system.” Even if this statement was not clear, however, when a
district court does not clearly state whether it imposed a non-
2
Guidelines sentence or merely departed within the Guidelines, we
assume that the district court imposed a non-Guidelines sentence.
United States v. Smith, 440 F.3d 704, 708 n.3 (5th Cir. 2006);
United States v. Armendariz, 451 F.3d 352, 358 n.5 (5th Cir. 2006).
Therefore we analyze this as a non-Guidelines sentence.
After United States v. Booker,2 we review non-Guidelines
sentences for reasonableness. United States v. Mares, 402 F.3d
511, 520 (5th Cir. 2005). However, “the district court must more
thoroughly articulate its reasons when it imposes a non-Guideline
sentence.” Smith, 440 F.3d at 707. Such “reasons should be fact-
specific and consistent with the sentencing factors in [18 U.S.C.
§] 3553(a).” Id. “The farther a sentence varies from the
applicable Guidelines sentence, the more compelling the
justification ... must be.” Id. (citation omitted). The district
court’s reasons must enable this court “to determine whether, as a
matter of substance, the factors in § 3553(a) support the
sentence.” Id.
In this case, the district court imposed the non-Guidelines
sentence based on Dean’s criminal history. Because a defendant’s
criminal history is one of the factors that a court may properly
consider, Smith, 440 F.3d at 709, and especially in the light of
the fact that the deviation was only five months, we have no
2
543 U.S. 220 (2005).
3
difficulty concluding that Dean’s 120-month sentence was
reasonable.
B
Dean also argues that he was prejudiced by a lack of notice
and opportunity to respond to the sentence outside the Guidelines.
He was first informed that the court was considering his unusually
high number of criminal history points at the sentencing hearing,
just a few seconds before the court imposed the 120-month sentence.
This gave Dean practically no time to formulate arguments against
the longer sentence. As noted, however, Dean did not object on
this basis at the hearing itself. Thus our standard of review is
plain error. Jones, 444 F.3d at 436.
To meet his burden under this standard, Dean must show an
error that is plain (i.e., “clear under current law”3) and that
affected his substantial rights. See id. When imposing a sentence
that is an upward departure within the Guidelines, Federal Rule of
Criminal Procedure 32(h) requires the district court to “give the
parties reasonable notice.”4 FED. R. CRIM. P. 32(h). Four of our
sister circuits have held that Rule 32(h) also applies to non-
3
United States v. Olano, 507 U.S. 725, 734 (1993).
4
In its entirety, the rule states: “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 prehearing 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.” This rule codifies the holding of Burns v. United
States, 501 U.S. 129 (1991).
4
Guidelines sentences.5 Three other circuits, however, have
determined that Rule 32(h) does not apply in non-Guidelines
sentencing circumstances,6 while two others found that the law is
unclear and therefore any error could not be “clear under current
law.” United States v. Mateo, 179 Fed. App’x. 64, 65 (1st Cir. May
5, 2006) (unpublished); see also United States v. Reddick, No. 05-
11363, 2006 WL 1683461, *5 (11th Cir. June 20, 2006) (unpublished).
The Eleventh and First Circuits have observed that given that there
is “no binding or persuasive precedent to the contrary,” Reddick at
*5, the lack of notice is not error that is “clear under current
law.” Therefore we find no plain error as to Dean’s 120-month non-
Guidelines sentence. We need not (and do not) express an opinion
on whether Rule 32(h) applies to non-Guidelines sentences.
III
For the foregoing reasons, the non-Guidelines sentence imposed
by the district court is
AFFIRMED.
5
United States v. Anati, 457 F.3d 233, 234-37 (2d Cir. 2006);
United States v. Evans-Martinez, 448 F.3d 1163, 1167 (9th Cir.
2006); United States v. Davenport, 445 F.3d 366, 371 (4th Cir.
2006); United States v. Dozier, 444 F.3d 1215, 1218 (10th Cir.
2006).
6
See United States v. Vampire Nation, 451 F.3d 189, 197-98 (3d
Cir. 2006); United States v. Walker, 447 F.3d 999, 1005-07 (7th
Cir. 2006); United States v. Sitting Bear, 436 F.3d 929, 932 (8th
Cir. 2006).
5