IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 29, 2009
No. 07-11007 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
CHUCK LAVON DOUGLAS
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
Before O’CONNOR, Associate Justice (Ret.),* and WIENER and STEWART,
Circuit Judges.
CARL E. STEWART, Circuit Judge:
Chuck Lavon Douglas challenges his 36-month sentence, which was
imposed following his guilty plea to possession of ammunition by a convicted
felon, in violation of 18 U.S.C. § 922(g)(1). Finding no error, we AFFIRM.
I. FACTUAL AND PROCEDURAL HISTORY
Chuck Lavon Douglas pled guilty on June 6, 2007, to a single count of
possession of ammunition by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1). The charge arose after a minor who was at Douglas’s home at the
*
The Honorable Sandra Day O'Connor, Associate Justice of the United States Supreme
Court, (Ret.), sitting by designation, pursuant to 28 U.S.C. Sec § 294(a).
No. 07-11007
time accidentally shot himself in the hand with a loaded handgun that Douglas
had handed to him. After the child was taken to the hospital, police obtained a
search warrant and searched Douglas’s residence. Douglas cooperated in the
search and led police to the handgun and several rounds of ammunition.
Although these events took place in late August 2003, Douglas was not charged
until February 27, 2007, in part because he had been living in Mexico in an
attempt to avoid arrest on other state charges.
The Second Addendum to the Presentence Report (“PSR”) applied the 2006
Sentence Guidelines and assessed a base offense level of 14, which it then
increased by two levels pursuant to U.S.S.G. § 2K2.1(b)(4) because the
handgun’s manufacturer and serial number had been obliterated. The PSR
recommended a two-level reduction for acceptance of responsibility, and the
government moved for an additional one-point reduction on that basis pursuant
to U.S.S.G. § 3E1.1(b). After the total three-level reduction for acceptance of
responsibility, Douglas’s offense level was thirteen, and his criminal history
category was III, yielding a Guidelines range of eighteen to twenty-four months
of imprisonment.
At sentencing, the district court asked Douglas if he had anything to say,
and then had the following exchange with Douglas:
The Defendant: I have nothing to say. I have nothing to say your
honor.
The Court: So you have not learned anything from the offense?
The Defendant: Have I learned anything?
The Court: That’s exactly what I asked.
The Defendant: I should have stayed in Mexico. I shouldn’t have
come back.
The Court: You have no remorse for what happened?
The Defendant: I didn’t do it. He done it to himself.
The Court: Well, you pleaded guilty.
The Defendant: To an ammunition charge.
The Court: I thought the charge was possession of ammunition by
a convicted felon, is that correct?
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The Defendant: That’s correct.
The Court: Well, if the ammunition was not there, it would not
have happened, isn’t that correct?
The Defendant: That’s true; yes, sir.
....
The Court: Okay, what troubles me, you made a statement just
now, a few minutes ago how you should have stayed in Mexico; you
should have never come back. What is that all about?
The Defendant: That’s where I was living.
The Court: So what does that mean?
The Defendant: I should have stayed with my wife and child.
The Court: What’s that?
The Defendant: I should have stayed with my wife and child.
The Court: Were you aware of this charge pending?
The Defendant: This one, I wasn’t, no sir.
The Court: What were you aware of?
The Defendant: Aggravated assault in Hunt County and a couple
of other charges.
The district court found that the Guideline calculations were correct and
adopted the PSR as amended by the two Addenda. However, the district court
concluded that a sentence in the Guidelines range was not “just and reasonable”
in taking into account the 18 U.S.C. § 3553(a) factors, nor would it “promote
respect for the law” in the case before it. The district court determined that a
non-Guidelines sentence was appropriate based on the Guidelines range and the
§ 3553(a) factors, citing Douglas’s lack of remorse, that a child was injured as a
result of his offense, and that he had repeatedly indicated that he should have
stayed in Mexico. The district court sentenced Douglas to thirty-six months of
imprisonment and three years of supervised release.
In response to a question from defense counsel, the district court stated
that the sentence was “a non-Guidelines sentence.” 1 Defense counsel then
1
This court’s post-Booker case law recognizes three types of sentences: (1) one within
a properly calculated Guideline range; (2) one that is an upward or downward departure as
allowed by the Guidelines, which is also a Guideline sentence; or (3) a non-Guideline sentence
which is either higher or lower than the relevant Guideline sentence. United States v.
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No. 07-11007
objected to the court’s non-Guidelines sentence based on the minor’s injury. The
district court clarified that the reasons for the upward departure were Douglas’s
lack of remorse and his statements that he should not have returned from
Mexico, not the injury to the minor. It further explained that a twenty-four
month sentence was not adequate to address the § 3553(a) concerns of promoting
respect for the law and just punishment. Defense counsel maintained the
objection to the upward departure, on grounds that it deprived Douglas of his
credit for acceptance of responsibility and that lack of remorse was not taken
into account by the court in determining the Guidelines range. Douglas appeals.
II. DISCUSSION
A. Standard of Review
Douglas properly objected to his sentence below, and therefore we review
the district court’s sentencing decision for “reasonableness.” United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). Review of a district court’s
sentencing decision for reasonableness is bifurcated. United States v. Duhon,
541 F.3d 391, 395 (5th Cir. 2008). We first ensure that the district court
committed no significant procedural error, such as improperly calculating the
Guidelines range, failing to consider the § 3553(a) factors, or failing to
adequately explain the chosen sentence. Id. We review the district court’s
interpretation of the Guidelines de novo and its findings of fact for clear error.
Id. The Guidelines serve as a frame of reference for non-Guideline sentences,
and the more a sentence varies from the applicable Guideline sentence, the more
compelling the district court’s justification based on the § 3553(a) factors must
be. United States v. Ronquillo, 508 F.3d 744, 751 (5th Cir. 2007). Finally, “an
error in applying the Guidelines is reversible error in cases involving non-
Tzep-Mejia, 461 F.3d 522, 525 (5th Cir. 2006).
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No. 07-11007
Guideline sentences only if the sentence resulted from the error.” Duhon, 541
F.3d at 396.
B. Acceptance of Responsibility
Douglas argues that the district court committed procedural error when
it did not first consider Douglas’s lack of remorse in calculating the applicable
Guidelines range before using that factor to justify a higher, non-Guidelines
sentence. Douglas contends that “lack of remorse” is essentially the same basis
on which it contrarily granted him a three-point reduction from his offense level
pursuant U.S.S.G. § 3E1.1 for “acceptance of responsibility.” 2 The government
responds that the district court properly granted credit for acceptance of
responsibility because Douglas pled guilty, and also properly determined, in
considering the § 3553(a) factors, that Douglas’s statements to the court showed
a lack of remorse for the crime’s consequences.
To support his argument that the district court’s seemingly contrary use
of “acceptance of responsibility” and “lack of remorse” constitutes procedural
error, Douglas largely relies on United States v. Andrews, 390 F.3d 840 (5th Cir.
2004). In Andrews, we found that the district court committed reversible error
by granting the defendant an offense level reduction for acceptance of
responsibility, but then finding his lack of acceptance of responsibility to justify
an upward departure from the Guidelines. Andrews, 390 F.3d at 847-48. This
court instructed that instead of granting an upward departure on the grounds
that Andrews lacked acceptance of responsibility for his actions, the trial court
should have used its discretion to deny the three-level downward adjustment for
2
Douglas also argued that the district court erred by ordering his sentence to run
consecutively to any sentence that might be imposed on pending state charges, acknowledging
that argument was foreclosed by United States v. Brown, 920 F.2d 1212 (5th Cir. 1991),
abrogation on other grounds recognized, United States v. Candia, 454 F.3d 468, 473 (5th Cir.
2006). He has withdrawn that challenge because the state proceedings concluded and the
state court has chosen to run his state sentence concurrently with the time he is serving in
federal custody.
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No. 07-11007
acceptance of responsibility, “which, curiously, the court instead granted.”
Andrews, 390 F.3d at 847-48. Douglas argues that the material facts of this
appeal are indistinguishable from those that led to reversal in Andrews.
Douglas characterizes the district court’s finding of a “lack of remorse” in his
own case as another way of stating a failure to accept responsibility. We
disagree.
We hold that “lack of remorse” and “acceptance of responsibility” can be
separate factors and that a district court may consider each independently of the
other. The district court in Andrews used contrary findings on the very same
factor to grant a downward enhancement and then upwardly depart, while here
the court based its upward variance on “lack of remorse,” an independent factor.
Because lack of remorse is a different consideration from finding acceptance of
responsibility pursuant to § 3E1.1, it need not be addressed during the
Guidelines calculation. The district court here clearly distinguished the two,
first stating that it awarded Douglas the § 3E1.1 offense-level reduction for
acceptance of responsibility because “the court recognize[d] that Mr. Douglas has
pleaded guilty.” However, the court went on to explain that it continued to be
troubled by various statements by Douglas indicating that he “ha[d] no remorse
about what he ha[d] done.” Acceptance of responsibility accounts for the
defendant’s guilty plea, which relieves the government of the burden of being put
to its proof. See § 3E1.1(b), cmt. 2, 3. It is not inconsistent for the district court
to have determined that Douglas accepted and admitted his culpability for the
crime but at the same time demonstrated a lack of remorse for his conduct.
The district court determined that Douglas was not remorseful based on
his comments regretting leaving Mexico, and Douglas does not dispute the
court’s characterization of those comments. Under the advisory Sentencing
Guidelines, the district court must consider various factors in crafting an
individualized sentence and is free to give more or less weight to factors already
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No. 07-11007
accounted for in that advisory range. See United States v. Williams, 517 F.3d
801, 809 (5th Cir. 2008). Other than § 3E1.1, Douglas points to nothing in the
Guidelines that might require the district court to adjust its calculation of the
advisory range for lack of remorse. Therefore, the court did not commit
procedural error by granting him an offense level reduction for the acceptance
of responsibility evidenced by his guilty plea while calculating the Guidelines
and then sentencing him to an above-range non-Guideline sentence based on its
assessment of the § 3553(a) factors, including its finding that the defendant
lacked remorse for his crime.
III. CONCLUSION
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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