United States v. Coleman

United States Court of Appeals
Fifth Circuit
F I L E D
January 3, 2007
Charles R. Fulbruge III
Clerk
REVISED
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 06-30197
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ANTHONY QUINN COLEMAN,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Louisiana
m 05-CR-20038
______________________________
Before HIGGINBOTHAM, SMITH, and DEMOSS,
Circuit Judges
PER CURIAM:*
Anthony Coleman pleaded guilty to one
count of possession of a firearm by a convicted
felon. He appeals his sentence, claiming the
district court impermissibly departed from the
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
(continued...)
*(...continued)
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.

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applicable guideline range. Because the court
failed to articulate sufficient reasons to justify
an upward departure, we vacate the sentence
and remand for resentencing.
I.
Coleman was arrested while walking on a
street carrying a 12-gauge shotgun. He con-
fessed that the night before his arrest, he had
participated in the burglary of a local gas sta-
tion. The 12-gauge shotgun he was carrying
had been stolen from the house of one of his
co-burglars; Coleman claimed he had bought
it that morning from one of his cohorts, in-
tending to pawn it for a profit. His accomplice
denied having stolen the shotgun or having
sold it to Coleman.
Coleman’s presentence investigation report
(“PSR”), to which he did not object, suggested
a base offense level of 20, pursuant to
U.S.S.G. § 2K2.1(a)(4)(A). Two levels were
added because the weapon was stolen, and
three levels were subtracted for acceptance of
responsibility. Coleman was assessed a crim-
inal history score of 17 for numerous felony
and misdemeanor criminal convictions, for
committing the offense while on probation,
and for committing it within two years of re-
lease from custody on another offense. His
score was four points higher than the minimum
for criminal history category VI; his offense
level and criminal history category yielded a
guideline range of 63-78 months’
imprisonment.
The district court informed both parties be-
fore sentencing that it was considering an up-
ward departure from the recommended guide-
line range because of “this defendant’s criminal
history and the nature of the offense.” Despite
the fact that Coleman’s criminal history score
placed him in the highest possible criminal his-
tory category, the PSR indicated an additional
eleven prior convictions that had not been in-
cluded in the calculation. At sentencing, how-
ever, no mention was made of the criminal
history;1 instead, the court indicated that it
considered Coleman’s offense to be a different
situation from a typical felon-in-possession
charge:
This incident involved a burglary that Cole-
man was involved in, and he was found
walking down the street while they were
still looking for the people who were in-
volved in the burglary that very same day
with a shotgun. And, according to the
PSR, that shotgun had been stolen from a
home by one of the co-perpetrators in the
burglary that Mr. Coleman was involved in,
which would lead me to believe that the
shotgun was present during the burglary.
The court sentenced Coleman to the statutory
maximum of 120 months’ imprisonment, a
54% increase from the high-end of the guide-
line range.
II.
Where a court imposes a sentence that in-
cludes an upward departure authorized by the
guidelines, we review for “abuse of discre-
tion.” United States v. Smith, 440 F.3d 704,
707 (5th Cir. 2006). We look to our pre-
1 In the written statement of reasons, the court
wrote, “The criminal history category substantially
under represented the seriousness and violence of
the defendant’s criminal history. The charged of-
fense under represents the seriousness of the con-
duct.” This language merely restates the statutory
standard. See U.S.S.G. § 4A1.3(a)(1); 18 U.S.C.
§ 3553(a)(2)(A).

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Booker caselaw2 for guidance in assessing the
extent of the departure. Id. at 707. The court
is entitled to find by a “preponderance of the
evidence” all the facts relevant to an upward
departure, United States v. Mares, 402 F.3d
511, 519 (5th Cir. 2005), cert. denied, 126 S.
Ct. 43 (2005), and we accept findings of fact
made in connection with sentencing unless
they are clearly erroneous, United States v.
Creech, 408 F.3d 264, 270 n.2 (5th Cir.
2005). “There is no abuse of discretion if the
judge provides acceptable reasons for
departure and the degree of departure is
reasonable.” United States v. Delgado-Nunez,
295 F.3d 494, 497 (5th Cir. 2002) (citing
United States v. Nevels, 160 F.3d 226, 229-30
(5th Cir. 1998)). “Enunciation of an adequate
explanation for departure from the sentencing
guidelines range is a threshold requirement
mandated by statute.” United States v.
Madison, 990 F.2d 178, 182 (5th Cir. 1993).3
The sentencing guidelines authorize upward
departures if the court finds aggravating
circumstances “of a kind, or to a degree, not
adequately taken into consideration by the
Sentencing Commission in formulating the
guidelines that, in order to advance the objec-
tives set forth in 18 U.S.C. § 3553(a)(2),
should result in a sentence different from that
described.” U.S.S.G. § 5K2.0(a)(1). “The
Guidelines Manual explains that it intends each
guideline to create a heartland of typical cases
and departure is appropriate only if conduct in
a given case differs significantly from the norm
and such that the crime is outside this
heartland.” United States v. Saldana, 427
F.3d 298, 309 n.43 (5th Cir. 2005) (citing
United States v. Winters, 174 F.3d 478, 482
(5th Cir. 1999)).
The district court stated that it was depart-
ing from the guidelines because Coleman’s of-
fense presented a “different situation” from a
typical felon in possession charge. The court
based this conclusion on its finding that Cole-
man had possessed the shotgun during a burg-
lary the night before his arrest. This finding
was clearly erroneous.
There was no evidence in the PSR or in the
factualstipulation that would indicate the shot-
gun was present at the burglary. The only
government witness at sentencing admitted
that “we are unable to decide if [the gun was
stolen] prior [to] or after the burglary.” Under
a preponderance of the evidence standard, a
judge could not reasonably have concluded
that the gun was present at the burglary.
Other than the erroneous finding that the
gun was used in a burglary, at sentencing the
court made no other factual finding to justify
the upward departure. The government con-
tends that, even if Coleman did not possess the
gun during the burglary, it is undisputed that
the two events occurred close in time. The
government fails to explain, however, how
temporal proximity distinguishes Coleman’s
case from the heartland of the guidelines
range. Even if were to overlook the court’s
2 See United States v. Booker, 543 U.S. 220
(2005).
3 See, e.g., U.S.S.G. § 5K2.0(e) (“If the court
departs from the applicable guideline range, it shall
state, pursuant to 18 U.S.C. § 3553(c), its specific
reasons for departure in open court at the time of
sentencing and, with limited exception in the case
of statements received in camera, shall state those
reasons with specificity in the written judgment and
commitment order.”). Cf. Smith, 440 F.3d at 707
(“[T]he district court must more thoroughly
articulate its reasons when it imposes a non-
Guideline sentence than when it imposes a sentence
under the authority of the guidelines.”).

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error that resulted from its failure to identify
any other elements of Coleman’s offense that
take him out of the heartland, its explanation
that “the charged offense under represents the
seriousness of his conduct” is not an adequate
ground for departure.
As for the other asserted reason for depar-
ture, that “the criminal history category sub-
stantially under represents the seriousness and
violence of the defendant’s criminal history,”
the court made no mention of this factor at the
sentencing hearing. We have previously rec-
ognized that “in the event of a conflict be-
tween an oral pronouncement of judgment and
a written judgment the oral pronouncement
controls.” United States v. McDowell, 109
F.3d 214, 217 (5th Cir. 1997). We would be
tempted to conclude that the court did not rely
on Coleman’s criminal history in arriving at a
departure.
Even if we were to consider the explanation
in the written judgment, however, we would
find it inadequate, because the court did not
“specify in writing . . . the specific reasons why
the applicable criminal history category
substantially under-represents the seriousness
of the defendant’s criminal history or the likeli-
hood that the defendant will commit other
crimes.” U.S.S.G. § 4A1.3(c)(1). In United
States v. Zuniga-Peralta, 442 F.3d 345 (5th
Cir. 2006), we upheld a sentence where the
court’s written statement failed to provide spe-
cific factual reasons; we did so because the
court had expressly adopted the findings of the
PSR, which recommended a departure under
§ 4A1.3.
Coleman’s PSR makes no such recommen-
dation. Although Coleman has a number of
older convictions that were not considered in
calculating his criminal history score, the dis-
trict court did not indicate why criminal history
category VI does not adequately account for
these convictions, particularly in view of the
fact that none of Coleman’s prior felony
convictions was for violent conduct. Without
specific, stated reasons for the upward depar-
ture, the departure does not survive the abuse-
of-discretion standard of review.4
It is true that sentencing courts are not re-
quired to give lengthy, rote explanations when
announcing sentences authorized by the guide-
lines. Mares, 402 F.3d at 519. We also note
that the departure in this case is within the
range of departures that have been previously
upheld under § 4A1.3.5 For us to exercise ap-
pellate review over an upward departure sen-
tence (even one authorized by the guidelines),
however, the court must articulate some fact-
4 See, e.g., United States v. Martinez-Perez,
916 F.2d 1020, 1024-25 (5th Cir. 1990) (“We
have repeatedly stated, when a district court relies
on section 4A1.3 to depart from the established
guidelines, it should articulate its reasons for doing
so explicitly. The court should identify clearly the
aggravating factors and its reasons for connecting
them to the permissible grounds for departure un-
der section 4A1.3. The district court did not do so
in this case, and our review of the record has un-
earthed no reason to believe that the Guidelines did
not adequately consider this defendant’s criminal
history. We therefore conclude that the district
court erred in departing from the Guidelines on that
ground.”) (internal citations omitted).
5 See, e.g., United States v. Millsaps, 157 F.3d
989, 997 (5th Cir. 1998) (approving a departure
from a range of 151-188 months to a sentence of
238 months based on offenses not included in crim-
inal history score); United States v. Ashburn, 38
F.3d 803, 808-10 (5th Cir. 1994) (upward depar-
ture from a guideline range maximum of 78 months
to 180 months where previous robberies were not
included in criminal history score).

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specific reasons to allow us to conclude that
the sentence was fair and reasonable.6 Where
the court fails to provide any fact-specific rea-
sons to support a departure of 42 months from
the top of the guideline range, it is an abuse of
discretion, at least under the facts and circum-
stances of this case.
The sentence is VACATED, and this matter
is REMANDED for resentencing.
6 See Mares, 402 F.3d at 519 (“Such reasons
are essential to permit this court to review the sen-
tence for reasonableness as directed by Booker.”).

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