United States v. Caldwell

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
October 9, 2008

No. 07-51392 Charles R. Fulbruge III
Clerk

UNITED STATES OF AMERICA

Plaintiff-Appellee
v.

ROBERT THOMAS CALDWELL

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:07-CR-249-3

Before DAVIS, CLEMENT, and ELROD, Circuit Judges.
DAVIS, Circuit Judge:*
Defendant-Appellant Robert Thomas Caldwell appeals from the district
court’s denial of his motion for judgment of acquittal, following his conviction on
one count of attempting to export and aiding and abetting the attempted export
of defense articles in violation of certain export control regulations. In addition,
he appeals from his sentence of 20 months’ imprisonment. Because we find that
the evidence was sufficient to convict and that the sentence imposed was not
unreasonable, we affirm.

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
 No. 07-51392

I. BACKGROUND
This case centers around the attempted unlicensed export of certain
single-use batteries, designed for use in HAWK missile systems, in violation of
the Arms Export Control Act (AECA), 22 U.S.C. § 2778(b)(2) and (c), and the
associated International Traffic in Arms Regulations (ITAR), 22 C.F.R.
§§ 120.1–120.32. It is undisputed that the batteries in question are covered by
the United States Munitions List (USML), 22 C.F.R. §§ 121.1–121.16, as
“defense articles.” The export of USML defense articles must be licensed
pursuant to 22 C.F.R. §§ 123.1–123.17, and failure to do so constitutes a
violation of 22 U.S.C. § 2778 and 22 C.F.R. §§ 127.1–127.12. Collectively, we
refer to the relevant AECA and ITAR provisions as the “export control
regulations.”
This case arose from a sting operation designed and carried out by the
United States Bureau of Immigration and Customs Enforcement (ICE), in which
it established a fake company, Mercury Global, in El Paso, Texas. Chris Tappin,
a British businessman, contacted Mercury Global in December of 2005 through
a representative in the United States, seeking the unlicensed export of a
USML-listed camera and USML-listed HAWK missile batteries, all in violation
of the export control regulations. He agreed to pay $5,000 apiece—$2,000 above
retail price—for 50 batteries. During these negotiations, Tappin and the
undercover agents discussed the specifics of the plot, including the use of double
(i.e., false) invoices.
The undercover agents stopped the first attempted shipment by arresting
one of Tappin’s representatives in the United States. The agents informed
Tappin that the shipment had encountered problems at customs in New York,
necessitating a change of plans for any future shipment. Mercury Global then
contacted Southeast Overseas, another shipping company, regarding possible
participation, but Southeast declined to join in when it learned of the licensing

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issues. At that point, Tappin informed Mercury Global that it would be
contacted by Caldwell, an Oregon fertilizer importer, who would purchase the
batteries on Tappin’s behalf and ship the batteries to Tappin in the United
Kingdom via Murphy Shipping Company located in Houston, Texas.
Here the stories told by Caldwell and the government diverge. Caldwell
asserts that the undercover agents at Mercury Global never clearly discussed the
licensing requirements and illegal plot with him, as they had with Tappin’s
representative, Tappin himself, and Southeast Overseas. Instead, Caldwell
claims, the government agents only referred to the licensing requirements in
boilerplate language on a pro forma invoice and otherwise never explicitly
discussed the illegal nature of what they were doing. Caldwell claims the
government agents assumed Tappin would tell him about the illegality of
shipping without a license, but Tappin never did. In short, Caldwell asserts that
he never really knew about the export control regulations.
The government, however, points to excerpts from various conversations
between Caldwell and undercover agents at Mercury Global, faxes sent by
Caldwell, and the pro forma invoice mentioned above. On December 20, 2006,
an undercover agent asked Caldwell, “[Y]ou do know about the licensing issues
involved with this, correct? Did he explain that to you?” Caldwell replied, “You
know, that’s something I am not quite . . . familiarized with . . . .” The agent
then said that “the biggest issue is the . . . licensing issues” and discussed
structuring the transaction as a domestic sale with subsequent export, provided
“you have a company and . . . you’ve done this in the past where . . . you can . .
. [m]ove things out . . . without it being scrutinized.” Caldwell responded, “Well,
. . . I’m not . . . totally hip on all the . . . issues at hand, but . . . we’ve done things
in the past and it’s just . . . easier to have . . . agents and . . . domestic purchases
and domestic exports . . . for some of our projects.”

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Caldwell then faxed Tappin some questions regarding “other parameters,”
stating, “Such issues could not freely discuss [sic] on the phone.” The
government presented evidence that, during Caldwell’s subsequent phone
conversation with Tappin, he wrote down the words “batteries,” “trucks,” and
“military.” During a December 28, 2006, conversation, an undercover agent
referenced “the sensitivity of the items,” while Caldwell stated that “I want to
protect you and your enterprise . . . from anything.” In the same conversation,
Caldwell later stated, “Yeah, I mean all the paperwork. . . . I understand totally.
I understand.” The two made plans to meet in January of 2007 in San Antonio.
On January 3, 2007, the undercover agent contacted Caldwell regarding
a pro forma invoice that the agent was faxing over. Caldwell was instructed to
maintain double invoices, keeping the “actual one” (i.e., the one with the
USML-listed HAWK missile batteries and true purchase price) for his records
but a false invoice with a “devalued description” “[s]o that it won’t raise any red
flags” in a possible inspection. On January 4, Caldwell received a pro forma
invoice listing five “GAP-4328” “inert zinc/silver oxide reserve batteries” and
containing the following notice:
Export of the commodities described herein is strictly prohibited
without a valid export license issued by the U.S. State Department,
Office of Defense Trade Controls, prescribed in the International
Traffic in Arms Regulations (ITAR), Title 22, Code of Federal
Regulations, Parts 120-130.

This is the same notice Caldwell attacks on appeal. The government showed
that Caldwell faxed the pro forma invoice to Tappin with an asterisk next to it
and a note directing him to “please see detail below.”
On January 8, Caldwell sent a purchase order to Mercury Global for five
batteries, listing Caldwell as the purchaser and directing Mercury Global to ship
the product to Murphy Shipping in Houston, Texas. This false invoice did not

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name the USML-listed batteries but instead listed the batteries as “Tideland
Gap inert non-spillable reserve batteries.”
Caldwell met with the undercover agent in San Antonio on January 25,
2007, and they discussed the plan. Caldwell stated, “I still have a bit of
trepidation about some of the possible liabilities . . . .” The agent asked, “With
these items . . . my biggest concern is . . . now you’re not going to file for an
export license on these, correct?” Caldwell replied, “I hadn’t planned on it.”
Caldwell later mused, “I just don’t feel like I’m completely comfortable with all
of the different features of this thing but . . . I mean it sounds like it’s . . . can be
done pretty easily and . . .[w]ithout . . . , you know, raising too many flags. And
you know, I don’t . . . the thought of, you know, something that is potentially
illegal isn’t cool. But I don’t see it being, I mean . . . .”
The government showed that, later at the same meeting, Caldwell
explained his plans to circumvent the export control regulations by disguising
the USML-listed batteries as non-USML-listed batteries manufactured by
Tideland Signal Corporation, and shipping them overseas to Tappin through
Murphy Shipping. Caldwell then gave the agent a $5,000 check and directed the
agent to send the batteries to Murphy Shipping in Houston, at which point
Murphy would forward the batteries to the United Kingdom. Before the meeting
ended, Caldwell was arrested. In his possession were various documents
relating to the transaction, including the pro forma invoice, faxes, and false
purchase orders for Tideland batteries.
On February 7, 2007, Caldwell was charged with one count of conspiracy
to violate the export control regulations, and one count of attempting to export
and aiding and abetting the same. At trial, a Murphy Shipping representative
testified that both Tappin and Caldwell made shipping arrangements for
“Tideland batteries,” never mentioning Mercury Global and never supplying the
pro forma invoice with the true description of the batteries. Further testimony

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established that the batteries at issue were USML-listed, and Tideland did not
manufacture or sell that type of battery. Caldwell testified and admitted that
Tappin told him of the batteries’ military application; he also admitted to seeing
the “export warning” on the pro forma invoice. At the close of evidence, the
district court denied Caldwell’s motion for judgment of acquittal. The jury
acquitted Caldwell on the conspiracy count and convicted him on the count of
attempting export and aiding and abetting the same.
Prior to sentencing, the Probation Department’s presentence report (PSR)
calculated Caldwell’s criminal history category at I, with a base offense level of
24, based on an original offense level of 26 with a two-level reduction for his
minor role in the offense. The Probation Department declined to amend the PSR
in response to Caldwell’s objection to the description of the offense conduct and
argument that he should receive a four-level reduction for his minimal role. At
sentencing, the district court sustained Caldwell’s objection concerning the
mitigating role adjustment, lowering the relevant offense level to 22 and
calculating the resulting advisory Guidelines range at 37 to 46 months, which
Caldwell admitted was properly calculated.
Caldwell also requested an aberrant behavior departure pursuant to U.S.
SENTENCING GUIDELINES MANUAL § 5K2.20 and sought a significant departure
from the Guidelines range in that he sought probation only. The court declined
to sentence Caldwell to probation only, stating that “even if I were to consider
a sentence outside the guideline range, . . . going to probation would probably
be—that’s too much of a departure. There’s no doubt that it would come back if
the Government appealed it.” However, the court did find that Caldwell was
entitled to the aberrant behavior departure under § 5K2.20, sentencing him to
20 months’ imprisonment, followed by two years of supervised release and 150
hours of community service, as well as imposing a $100 special assessment.

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Caldwell’s appeal focuses on three claims of error concerning the district
court’s denial of his motion for judgment of acquittal, all centering on the
sufficiency of the evidence, and one claim of error regarding the reasonableness
of his sentence.

II. SUFFICIENCY OF THE EVIDENCE CLAIMS
Caldwell’s first three claims of error assert that the district court erred by
not granting his motion for judgment of acquittal because there was insufficient
evidence to show: that he acted with specific intent to violate a known duty, that
he willfully attempted export without a license, or that he aided and abetted the
unlicensed export. These claims center on only two arguments: (1) that the
government presented insufficient evidence that Caldwell possessed the specific
intent to violate a known legal duty, and (2) that the government presented
insufficient evidence that Caldwell actually attempted to export the batteries in
question, because he was arrested before the batteries reached the point of
export.
When an insufficiency-of-the-evidence claim of error is properly
preserved through a motion for judgment of acquittal at trial, it is
reviewed de novo. [United States v. Ragsdale, 426 F.3d 765, 770
(5th Cir. 2005)]. Under that standard, “‘[w]e will affirm . . . if a
reasonable trier of fact could conclude . . . the elements of the
offense were established beyond a reasonable doubt, viewing the
evidence in the light most favorable to the verdict and drawing all
reasonable inferences from the evidence to support the verdict’”. Id.
at 770-71 (quoting United States v. Floyd, 343 F.3d 363, 370 (5th
Cir. 2003)).
***
To preserve de novo review, . . . a defendant must specify at trial
the particular basis on which acquittal is sought so that the
Government and district court are provided notice.
United States v. McDowell, 498 F.3d 308, 312 (5th Cir. 2007). Here, Caldwell did
raise the three specific bases for his insufficient evidence claims at the district

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court. Thus, Caldwell is entitled to de novo review of his motion for judgment
of acquittal.

A. Applicable Law
The count of the indictment on which Caldwell was convicted alleged that
he “attempted to export and aided and abetted the attempted export from the
United States of defense articles . . . in violation of Title 22, United States Code,
Section 2778(b)(2) and 2778(c), and Title 22, United States Code of Federal
Regulations, Sections 121.1, 121.4, 123.1[,] 127.1(a), 127.1(c) and 127.3; Title 18,
United States Code, Section 2.”
Section 2278(b)(2) provides, in relevant part, that “no defense articles or
defense services designated by the President under subsection (a)(1) of this
section may be exported or imported without a license for such export or import,
issued in accordance with this chapter and regulations issued under this
chapter. . . .” 22 U.S.C. § 2778(b)(2). Defense articles are itemized in the USML.
22 C.F.R. § 121.1–121.16. The criminal penalties for violating § 2778(b)(2) are
found in § 2778(c), which provides: “Any person who willfully violates any
provision of this section or section 2779 of this title, or any rule or regulation
issued under either section, . . . shall upon conviction be fined for each violation
not more than $1,000,000 or imprisoned not more than ten years, or both.” 22
U.S.C. § 2778(c).
The general requirements for conviction under these sections are well
established and are not disputed by the parties here.
To sustain a conviction under 22 U.S.C. § 2778, the government
must prove beyond a reasonable doubt that the defendant willfully
exported or attempted to export defense articles that are on the
United States Munitions List without a license. Hence, the statute
requires the government to prove that the defendant acted with
specific intent to violate a known legal duty.

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United States v. Covarrubias, 94 F.3d 172, 175 (5th Cir. 1996) (citations
omitted). “The government may use both direct and circumstantial proof, and
the jury may infer willful violation of a known legal obligation from facts and
circumstances surrounding the case.” United States v. Dien Duc Huynh, 246
F.3d 734, 743 (5th Cir. 2001) (internal quotations and citations omitted).
Caldwell’s indictment raises issues relating to both aiding and abetting as
well as attempt. Aiding and abetting liability comes from 18 U.S.C. § 2, which
provides, in relevant part: “(a) Whoever commits an offense against the United
States or aids, abets, counsels, commands, induces or procures its commission,
is punishable as a principal.”
A conviction for aiding and abetting under 18 U.S.C. § 2(a) requires
the government to establish that the defendant wilfully associated
himself in some way with the criminal venture and wilfully
participated in it as he would in something he wished to bring
about. United States v. Fischel, 686 F.2d 1082, 1087 (5th Cir. 1982).
“Association means that the defendant shared in the criminal intent
of the principal. Participation means that the defendant engaged in
some affirmative conduct designed to aid the venture.” United
States v. Colwell, 764 F.2d 1070, 1072 (5th Cir. 1985). See United
States v. Westbo, 746 F.2d 1022, 1025 (5th Cir. 1984).
United States v. Ortiz-Loya, 777 F.2d 973, 980 (5th Cir. 1985).
Finally,
[t]he crime of attempt requires the Government to prove that the
defendant (1) intended to commit the underlying offense, and (2)
took a ‘substantial step,’ beyond mere preparation, toward
committing that crime. Liability for attempt attaches if the
defendant’s actions have proceeded to the point where, if not
interrupted, [they] would culminate in the commission of the
underlying crime.

United States v. Polk, 118 F.3d 286, 291 (5th Cir. 1997).

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B. Specific Intent
Here, Caldwell asserts that the evidence was insufficient with respect to
his specific intent to violate a known legal duty—and thus to join in the criminal
intent of the principal, Tappin—because the government failed to supply proof
that Caldwell was instructed or informed by anyone that exporting the batteries
without a license would violate the law. Caldwell argues that the government’s
entire case centers on insufficient boilerplate language in an export warning on
a pro forma invoice provided to him by an undercover agent. Significantly,
Caldwell testified at trial to seeing that export warning, and although he now
mentions the asterisk he placed on the fax, he does not state that he faxed the
pro forma invoice to Tappin with a note directing Tappin to “please see detail
below.”
In attacking the sufficiency of the export warning, Caldwell principally
relies on United States v. Adames, 683 F. Supp. 255 (S.D. Fla. 1988), aff’d, 878
F.2d 1374 (11th Cir. 1989), in which the district court granted the defendant’s
Rule 29 motion for judgment of acquittal following her jury conviction on three
counts of violating 22 U.S.C. § 2778—one conspiracy count and two aiding and
abetting counts. FED. R. CRIM. P. 29. Because the defendant had neither been
told of the licensing requirements nor “was an expert or knowledgeable about
licensing and arms shipping requirements,” Adames, 683 F. Supp. at 257, the
government’s proof of specific intent to violate a known legal duty hinged on
written notice—specifically, an export notice stamped on a sales receipt for
firearms, which read in full:
EXPORT NOTICE
Certain Products may not be exported from the U.S.A. without
specific approval from the Dept. of Commerce (Part 370. Export
Administration Regulations) and/or Dept. of State (Title 22, Parts
121-128. (ITAR)). It is the BUYER’S responsibility, not the
SELLER’S, to obtain such licensing unless agreed otherwise.

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Id. at 256–57.
The government contended that this warning at least put the defendant
on inquiry notice of the licensing requirement. Id. at 257. The district court
disagreed, relying on the only other case it could find involving written notice,
United States v. Swarovski, 592 F.2d 131 (2d Cir. 1979). The Swarovski notice
read in full:
ABOVE ITEMS ARE OF U.S.A. ORIGIN AND MANUFACTURE.
ABOVE PHOTOGRAPHIC EQUIPMENT IS UNDER UNITED
STATES DEPARTMENT OF STATE MUNITIONS LIST
CATEGORY NUMBER XIII(a), AND AS SUCH MUST BE EXPORT
LICENSED BY THE U.S. DEPARTMENT OF STATE PRIOR TO
EXPORT FROM THE UNITED STATES.

Id. at 133.
The district court found “major differences” between the Adames warning
and the Swarovski warning: the Adames warning “fails to specify the equipment,
regulation and requirements needed to export the article. In short, it does not
provide the purchaser with knowledge that it was unlawful to export the
handguns outside the United States without State Department approval.”
Adames, 683 F. Supp. at 258. The district court in Adames concluded that the
export warning “does not convey sufficient knowledge to meet the specific intent
requirement,” and the government otherwise had not presented sufficient proof
of specific intent; accordingly, the court granted the defendant’s motion for
judgment of acquittal. Id. The Eleventh Circuit affirmed, without citing or
otherwise discussing Swarovski, finding:
The evidence demonstrates, at most, that Adames was negligent in
not investigating the legal prerequisites to the exportation of
firearms. . . . Though it reasonably could be inferred from Adames’
suspicious conduct that she was aware of the generally unlawful
nature of her actions, that state of mind is insufficient to sustain a
finding of guilt under a statute requiring specific intent.
Adames, 878 F.2d at 1377.

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Here, Caldwell argues that the export warning on the pro forma invoice
is closer to the Adames warning than to the Swarovski warning. We disagree.
The export warning in this case was located on a pro forma invoice itemizing
only USML-listed batteries. Although the pro forma warning itself does not
explicitly refer to the batteries (as the Swarovski warning did with the reference
to “photographic equipment”), the warning here plainly applies to “the
commodities described herein,” and the invoice listed only the batteries in
question. This warning is unlike the Adames warning, which referred only to
“certain products” and did not tie the warning to the specific products on the sale
receipt in any way. Although the pro forma warning does not list the specific
USML category covering the items in question (as did the Swarovski warning),
the warning here does specifically refer to the need for a “valid export license
issued by the U.S. State Department, Office of Defense Trade Controls.” This
is more specific than the Adames warning’s “specific approval from the Dept. of
Commerce . . . and/or Dept. of State” language. Adames, 683 F. Supp. at 256–57.
Ultimately, the export warning in this case is closer to the Swarovski
warning in that it is specific with respect to the items covered and the State
Department export licensing requirement. Although the warning in this case
does not specify the precise USML provision that covers the defense articles at
issue, the warning clearly covers the contents of the invoice and sets out the
regulatory basis for the requirements.
Of course, Adames focuses solely on the written notice because there was
no other evidence to prove specific intent in that case. Here, the written warning
is certainly a major part of the government’s proof, but the government
presented ample other evidence in support of specific intent, such as transcripts
of conversations between Caldwell and undercover agents, and faxes exchanged
between Caldwell and Tappin. It is the totality of the evidence that controls.

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Caldwell points to alleged holes in the government’s evidence: that the
undercover agents did not explicitly tell Caldwell about the batteries and did not
know what Tappin had told him; that the undercover agents were not as explicit
in their dealings with Caldwell as they had been with Tappin, Tappin’s former
U.S. representative, and Overseas Shipping; and that an undercover agent
testified that Caldwell was not going to be told that the items would actually be
exported without an export license. What Caldwell does not address is the
substantial record evidence of his knowledge of the licensing requirement and
the ultimate destination of the batteries.
Under the applicable standard of review, we must affirm the district
court’s denial of the motion for judgment of acquittal if “‘a reasonable trier of fact
could conclude . . . the elements of the offense were established beyond a
reasonable doubt,’” McDowell, 498 F.3d at 312 (quoting United States v.
Ragsdale, 426 F.3d 765, 770–71) (emphasis added). Caldwell’s conviction did not
depend on the export warning alone, although that warning alone is arguably
sufficient, and Caldwell testified to seeing it.
The government presented ample evidence at trial that Caldwell both
knew of the export control regulations’ licensing requirements and chose to
circumvent them. Caldwell’s own communications to undercover agents
revealed that he intended to use double invoices, misleading packaging, and
omissions in his communications with Murphy Shipping to export the batteries
to the United Kingdom without first obtaining the required export license. The
test is not whether the jury could have chosen Caldwell’s account of the
circumstances, but whether their choice to convict was supported by sufficient
evidence, “viewing the evidence in the light most favorable to the verdict and
drawing all reasonable inferences from the evidence to support the verdict.” Id.
Under that standard, we find that there is sufficient evidence for a reasonable

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jury to find that Caldwell possessed the specific intent to violate a known legal
duty—the licensing requirements of the export control regulations.

C. Attempt
Caldwell also argues that there was insufficient evidence to show he
attempted to actually export the batteries. This argument is based on the fact
that the shipment was arranged in two parts, the first to Murphy Shipping in
Houston, the second from Murphy Shipping to the United Kingdom. Caldwell
claims that because he was arrested before the batteries had begun the second
part of the trip, he was arrested before the export licenses were required and
before he gave Murphy Shipping any deceptive instructions regarding shipment
out of the United States.
Again, Caldwell fails to adequately address the substance of the evidence
on which the jury could rely. Caldwell concedes that he took steps to ship the
batteries and stated his intent not to obtain export licenses, although he claims
his statement was made only in reference to the shipment to Houston. The
government, however, presented a great deal of evidence of Caldwell’s plans to
disguise the batteries by means of false documentation and packaging, as well
as evidence that once the batteries were en route to Murphy Shipping in
Houston, Texas, he would need to do nothing else for the batteries to be exported
from the United States to the United Kingdom.
Actual export is not required for a violation of 22 U.S.C. § 2778. See
United States v. Castro-Trevino, 464 F.3d 536, 542 (5th Cir. 2006) (“Indeed, we
have on at least two occasions affirmed convictions of violating section 2778 by
attempted exportation of defense articles on the United States Munitions List
without a license.”(emphasis in original)) (citing Covarrubias, 94 F.3d 172;
Ortiz-Loya, 777 F.2d at 978, 980). In Covarrubias, the defendant was arrested
on the United States side of the border with Mexico and was convicted under §

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2778 for attempting to violate the export control regulations. 94 F.3d at 172–73.
The Fifth Circuit affirmed the defendant’s conviction based on the “ample
evidence” supporting the jury’s verdict, e.g., concealing weapons in the gas tank
of his truck and admitting that he had no intention of declaring the concealed
weapons to authorities in either country because he knew the transport was
illegal. Id. at 175. Ortiz-Loya involved similar facts—concealed weapons and
an arrest on the United States side of the Mexican border—and the same result.
777 F.2d at 980.
These cases under 22 U.S.C. § 2778 conform with the general standards
for attempt, which require only an intent to commit the underlying offense and
a “substantial step” beyond preparation. Polk, 118 F.3d at 291 (citing United
States v. Mandujano, 499 F.2d 370, 376 (5th Cir. 1974)). “Liability for attempt
attaches if the defendant’s actions have proceeded to the point where, if not
interrupted, would culminate in the commission of the underlying crime.” Id.;
see also Ortiz-Loya, 777 F.2d at 980 (“It is not necessary to reach a point of
irrevocable commitment in order to be convicted of attempted exportation in
violation of 22 U.S.C. § 2778.”) (citing Samora v. United States, 406 F.2d 1095,
1096 (5th Cir. 1969)).
We have already found that the evidence supports the jury’s implicit
finding of specific intent, leaving only the “substantial step.” The government
presented evidence and testimony at trial that the plan for Murphy Shipping to
forward the batteries to the United Kingdom was already set, that the division
between the domestic leg of the shipment and the export leg was not the clear
point of division Caldwell asserts, and that Caldwell had reiterated his plans to
circumvent the licensing requirements immediately before paying for the
batteries and directing the undercover agent to send them to Murphy Shipping.
Based on the evidence presented, the jury could conclude, beyond a reasonable
doubt, that Caldwell attempted to violate the export control regulations.

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III. SENTENCING CLAIM
For his final claim of error, Caldwell asserts that the district court erred
by applying an incorrect presumption when sentencing him. In Gall, the
Supreme Court explained the standard of review for sentencing as follows:
Regardless of whether the sentence imposed is inside or outside the
Guidelines range, the appellate court must review the sentence
under an abuse-of-discretion standard. It must first ensure that the
district court committed no significant procedural error, such as
failing to calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the [18
U.S.C.] § 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. Assuming that the district court’s sentencing
decision is procedurally sound, the appellate court should then
consider the substantive reasonableness of the sentence imposed
under an abuse-of-discretion standard. When conducting this
review, the court will, of course, take into account the totality of the
circumstances, including the extent of any variance from the
Guidelines range. If the sentence is within the Guidelines range,
the appellate court may, but is not required to, apply a presumption
of reasonableness. But if the sentence is outside the Guidelines
range, the court may not apply a presumption of unreasonableness.
It may consider the extent of the deviation, but must give due
deference to the district court’s decision that the § 3553(a) factors,
on a whole, justify the extent of the variance.
Gall v. United States, 128 S. Ct. 586, 597 (2007) (citation omitted). Because
Caldwell concedes that the district court’s sentence is procedurally sound, we
review only the substantive reasonableness of the sentence under the abuse of
discretion standard.
Caldwell’s appeal focuses on the fact that, prior to Gall, “certain of [the
Fifth Circuit’s] opinions have arguably supported the view, rejected in Gall, that
we may, at least in certain instances, require district courts to find
extraordinary circumstances before they impose sentences outside of the
guidelines range.” United States v. Rodriguez-Rodriguez, 530 F.3d 381, 388 (5th

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Cir. 2008) (citing United States v. Williams, 517 F.3d 801, 811 (5th Cir. 2008)).
Caldwell argues that the district court relied on this earlier standard, which
resulted in a longer sentence.
In this case, the properly calculated Guidelines range was 37 to 46 months
of incarceration, after the district court sustained one of Caldwell’s objections to
the PSR and lowered the base offense level by two levels, to 22. The district
court also granted Caldwell’s request for an aberrant behavior departure
pursuant to U.S. SENTENCING GUIDELINES MANUAL § 5K2.20, but declined to
impose a probation-only sentence, stating that probation would be “too much of
a departure” and likely overturned on appeal. However, the district court then
imposed a sentence well below the Guidelines range, sentencing Caldwell to 20
months of incarceration.
Caldwell did not object to the final imposition of sentence at the district
court. The posture of this case is thus similar to this court’s recent decision in
Rodriguez-Rodriguez, in which the defendant argued a similar point on appeal
based on this Circuit’s post-Booker, pre-Gall case law. In Rodriguez-Rodriguez,
we explained:
Even if we assume arguendo that Gall has now rendered certain
prior aspects of our post-Booker jurisprudence not only erroneous
but also plainly so, there is absolutely nothing to indicate that any
such state of affairs influenced the sentence imposed in this case,
and certainly affirmance of the instant sentence would not seriously
adversely affect the fairness, integrity or public reputation of
judicial proceedings. Neither the district court, nor the PSR, nor
counsel for the government, nor defense counsel, ever stated or took
the position below that any sentence less than 57 months [at the
bottom of the Guidelines range] would be presumed to be legally
erroneous or that such a sentence could only be imposed if the case
presented extraordinary circumstances, not considered, or
inadequately considered, by the guidelines. . . .

***

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Appellant is not entitled to resentencing under the argument, not
raised below, that his sentencing was under a regime of this court’s
post-Booker jurisprudence that amounted to “essentially a
restatement of the sentencing regime struck down in Booker.”

The district court committed no procedural error under Gall. We
accordingly review the sentence under an abuse-of-discretion
standard for substantive reasonableness.

530 F.3d at 388–89 (footnotes omitted).
Here, the district court made a reference to being reversed if it imposed a
sentence of probation only and prefaced that remark with the clause “even if I
were to consider a sentence outside the guideline range.” Superficially, this
suggests the district court felt constrained in sentencing Caldwell. However, the
district court actually made a significant downward departure from the
Guidelines range, unlike the court in Rodriguez-Rodriguez. This tempers any
strict interpretation of the district court’s lead-in clause, since the court not only
“consider[ed] a sentence outside the guideline range” but actually imposed such
a sentence. Clearly, the district court was not, in fact, constrained by the
advisory Guidelines range.
Also, no one at sentencing referred to “extraordinary circumstances” or
made other statements suggesting that this Circuit’s pre-Gall standards were
the guiding principles under consideration. Importantly, even after Gall,
sentences outside of the Guidelines range are reviewed for reasonableness, and
“appellate courts may therefore take the degree of variance into account and
consider the extent of a deviation from the Guidelines” in making that
determination. Gall, 128 S. Ct. at 595. Thus, the district court’s statement does
not reveal any conflict with Gall.
It is also important to note that Caldwell filed a memorandum at the
district court seeking only a reasonable sentence below the advisory Guidelines
range, because “[a] prison sentence below the guideline range is a significant

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sentence for this type of crime, and is sufficient to provide just punishment while
promoting respect for the law.” At no point in his memo did Caldwell explicitly
seek a sentence of probation, only a lesser period of incarceration than the
Guidelines range. (He did, however, argue for a sentence of probation at
sentencing in open court.) Thus, he is now arguing that a sentence he sought
and did not object to at the district court—a lesser sentence than the advisory
Guidelines range—is unreasonable.
Caldwell concedes that the imposition of his sentence is procedurally
sound, and the record bears that out. We further find that the below-Guidelines
sentence imposed in this case is not unreasonable, particularly in light of
Caldwell’s failure to raise his particular objection at the district court.

CONCLUSION
For the reasons stated above, the district court’s judgment is AFFIRMED.

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