United States v. Taylor

United States Court of Appeals
Fifth Circuit
F I L E D
June 19, 2006
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 04-41228
Summary Calendar
______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JIMMY TAYLOR,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Eastern District of Texas
m 2:03-CR-19-TJW-18
_________________________
Before SMITH, GARZA, and PRADO,
Circuit Judges.
PER CURIAM:*
Jimmy Taylor appeals his sentence for drug
possession and distribution and illegal use of a
firearm, alleging error under United States v.
Booker, 543 U.S. 220 (2005), and challenging
the denial of his motion for a downward de-
parture. Because the record reveals that the
judge would have imposed a lesser sentence
under an advisory guidelines system, we va-
cate and remand for resentencing.
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.

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I.
Taylor pleaded guilty of possession with in-
tent to distribute and distribution of less than
five grams of cocaine base, in violation of 21
U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and
using and carrying a firearm during and in re-
lation to a drug trafficking offense, in violation
of 18 U.S.C. § 924(c)(1).1 The PSR assigned
a base offense level of 34 under U.S.S.G.
§ 2D1.1, with a three-level downward depar-
ture for acceptance of responsibility. The PSR
further determined that Taylor’s prior offenses,
which included two misdemeanor assaults and
one count of indecent exposure, merited six
criminal history points, with a resulting crimi-
nal history category of III, yielding a guideline
range of 135 to 168 months’ imprisonment on
the drug trafficking offense and 60 months on
the firearms offense.
Taylor filed a motion for downward depar-
ture under U.S.S.G. § 4A1.3, which permits
the court to assign a lower criminal history
category where the defendant’s current cate-
gory“substantially over-represents the serious-
ness of the defendant’s criminal history or the
likelihood that the defendant will commit other
crimes.” The following exchange ensued:
THE COURT: Well, I read your motion
pretty carefully, [counsel]. The Court
wouldn’t have a problem with dropping the
one point on indecent exposure, but that
doesn’t get us anywhere that I can see, be-
cause he had a prior drug conviction, and I
don’t believe I can do anything about that,
and I’m not inclined to do anything about
it. And, you know, one of these assault
charges, he was under a court order, he vi-
olated the court’s order, criminal trespass,
and then he had the assault. He didn’t get
any points for that [sic] violating the court
order and it’s just sort of hard for me to
say, wellSSmy problem is I would have to
disregard three points, and I can’t find any
three pointsSSI can’t find an additional two
that this court feels like that would be ap-
propriate. I will disregard the indecent ex-
posure, but it’s still a Category III.
DEFENSE ATTORNEY: And me and Mr.
Taylor discussed that possibility, but we
thought that it would be better to go ahead
and try than not.
THE COURT: Oh, I understand. I
thinkSS the Court considered your request,
it is a long sentence. But ISSunless the
Government wants to stipulate to some-
thing, I don’t think there’s much I can do.
[]
GOVERNMENT ATTORNEY: []Your
Honor, I agree with the Court’s assess-
ment, and certainly agree with the proba-
tion officer’s response which the Court has
pointed out that disregarding that point
doesn’t make any difference. I justSSas the
Court and Counsel is well aware, these
guidelines in drug cases, what a person’s
sentence is determined by two things: The
quantity of drugs and the category of the
criminal history points. And this is essen-
tially etched in stone, Your Honor, and I
don’t think aSS
1 Taylor’s plea agreement contained an appel-
late-waiver provision in which he agreed to waive
the right to review of the substance, procedure or
form of his conviction, except for sentencing
guidelines determinations. Because, however, the
government does not seek to enforce the provision,
we proceed to consider Taylor’s appeal on the
merits. See United States v. Story, 439 F.3d 226,
230-31 (5th Cir. 2006).

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THE COURT: Well, that’s what ISSabsent
a stipulation from the Government that they
are willing to stipulate a departure down to
Category II, which would get us closer to
the 15 years total.
The government declined to stipulate, and the
court sentenced Taylor to the lowest possible
guidelines sentence, i.e., 135 months for the
drug charges, concurrently with 60 months for
the firearms charge.
II.
Because Taylor did not preserve his Sixth
Amendment claim, we review for plain error.
See United States v. Mares, 402 F.3d 511, 512
(5th Cir.), cert. denied, 126 S. Ct. 43 (2005).
Under plain error review, there must be
(1) error, (2) that was plain and (3) affected
substantial rights. See id. at 520. Further-
more, we will reverse only where the error
would “seriouslyaffect[] the fairness, integrity,
or public reputation of judicial proceedings.”
Id. (quoting United States v. Cotton, 535 U.S.
625, 631 (2002)). This last prong is satisfied
where the defendant would have received a
lesser sentence than the district court errone-
ously felt compelled to impose.2
A sentence imposed under a mandatory
guidelines regime constitutes error that is
plain. See id. at 520-21. To affect substantial
rights, however, an error “must have affected
the outcome of the district court proceedings.”
Id. at 521 (quoting United States v. Olano,
507 U.S. 725, 734 (5th Cir. 1993)). The de-
fendant bears the burden of “demonstrating a
probability sufficient to undermine confidence
in the outcome.” United States v. Bringier,
405 F.3d 310, 317 (5th Cir.), cert. denied, 126
S. Ct. 264 (2005). He must point to state-
ments made by the sentencing judge that in-
dicate he would have provided a lower sen-
tence if not bound by the guidelines. See Unit-
ed States v. Rodriguez-Gutierrez, 428 F.3d
201, 203-04 (5th Cir. 2005), cert. denied, 126
S. Ct. 1383 (2006). We may also consider
whether the sentence falls at the minimum,
maximum, or in the middle of the applicable
guidelines range. See id. at 204-06.
Taylor has met his burden. The sentencing
judge stated on two occasions that he did not
think he could do anything to lighten Taylor’s
sentence. He appeared to agree with the
government’s assertion that the guidelines for
drug cases are “essentially etched in stone.”
He noted that the guidelines provide for a long
sentence, and he invited the government to
stipulate to a downward departure to a crimi-
nal history category of IISSwhich he indicated
would have allowed him to sentence Taylor to
around 180 months (i.e., 15 years) instead of
the 195 months ultimately imposed.
True, the judge also said that he was not
“inclined” to alter Taylor’s sentence and that
he did not find it “appropriate” for the court to
deduct two additional criminal history points.
He further noted that Taylor could have, but
did not, receive points for violating a court
order for criminal trespass. These statements,
however, related to the judge’s opinion of the
proper application of the guidelines, not
whether he would have imposed a lighter sen-
tence had he not felt bound by them. The
commentary to § 4A1.3 contemplates down-
ward departure only for minor past offenses:
A downward departure from the defen-
dant’s criminal history category may be
warranted if, for example, the defendant
2 See United States v. Pennell, 409 F.3d 240,
246 (5th Cir. 2005) (citing United States v. Gra-
cia-Cantu, 302 F.3d 308, 313 (5th Cir. 2002)).

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had two minor misdemeanor convictions
close to ten years prior to the instant of-
fense and no other evidence of prior crimi-
nal behavior in the intervening period.
U.S.S.G. § 4A1.3 cmt. n.3.
Taylor’s misdemeanor assaults occurred in
1995 and 1996, respectively, only six years be-
fore the events underlying the instant offense
in 2002. Also, Taylor was convicted of pos-
session of a controlled substance in the in-
tervening period between his misdemeanor
convictions and the present offense. Finally,
because he served over 13 months on the drug
charge, he merited the addition of three crimi-
nal history points under U.S.S.G. § 4A1.1(a).
Therefore, the district court did not believe it
could remain faithful to the guidelines if it
forgave the previous assaults or the prior drug
offense.
But, merely because a judge strives to cal-
culate the guidelines range properly does not
mean that he agrees that a given sentence
within that range is proportionate to the of-
fense. A judge may attempt to promote parity
among defendants by setting the bar at the
same level for all of them, even if he thinks as
an initial matter that the bar was set too high.
In short, it is possible for a judge to believe he
is fairly applying the guidelines without believ-
ing that application of the guidelines is fair.3
Our conclusion finds support in the fact that
the court ultimately sentenced Taylor to the
absolute minimum of the range. “[S]entences
falling at the absolute minimum of the Guide-
lines provide the strongest support for the
argument that the judge would have imposed
a lesser sentence.” Rodriguez-Gutierrez, 428
F.3d at 205. Though a minimum sentence
alone might be insufficient to establish that
substantial rights were affected, see Bringier,
405 F.3d at 318, in this context the sentence
lends credence to our conclusion, based on
record testimony, that the judge (a) felt con-
strained faithfully apply the guidelines faith-
fully and (b) attempted to achieve indirectly,
through government stipulation, what he felt
he could not do directly through guidelines
application; i.e., lower the sentence.
Taylor does not need to prove to a moral
certitude that he would have received a lighter
sentence under an advisory regime. Rather, he
need only raise a “probability sufficient to un-
dermine confidence in the outcome.” Bring-
ier, 405 F.3d at 317. The fact that the court
indicated it felt powerless to lower the sen-
tence, and invited a stipulation that would have
reduced Taylor’s sentence by about 15 months
if accepted, suffices to meet this burden.
Therefore, resentencing is appropriate.4
3 See, e.g., Rodriguez-Gutierrez, 428 F.3d at
205-06 (stating that “a judge could consider one
defendant a more serious offender than another de-
fendant and thus sentence the former to a higher
sentence within the range, even while considering
the entire range to be too high”) (citing United
States v. Paladino, 401 F.3d 471, 482 (7th Cir.
2005)).
4 Resentencing is also consistent with previous
cases in which we have found Booker error. See
Pennell, 409 F.3d at 245-46 (finding substantial
rights affected where judge sentenced at the low
end of the guidelines range and stated he might
impose a lower sentence in the interest of “fairness
and justice” if not “constrained” by the guidelines);
United States v. Garcia, 416 F.3d 440, 441 (5th
Cir. 2005) (finding substantial rights affected
where judge imposed low-end sentence and stated
that he would have sentenced lower if not for
guidelines). Cf. Bringier, 405 F.3d at 317-18
(continued...)

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Taylor also argues that the court erred in
denying his motion for a downward departure
under U.S.S.G. § 4A1.3. Even after Booker,
we review de novo a district court’s interpreta-
tion and application of the guidelines. See
United States v. Villegas, 404 F.3d 355, 359
(5th Cir. 2005). We have jurisdiction to re-
view a refusal to depart downward “only if the
district court based its decision upon an erro-
neous belief that it lacked the authority to de-
part.” United States v. Landerman, 167 F.3d
895, 899 (5th Cir. 1999). There is no evi-
dence that the court thought it lacked that au-
thority; it merely declined to exercise that au-
thority, consistent with the commentary to
§ 4A1.3 and the instructions of § 4A1.1(a).
As explained above, there was no error in the
court’s application of the guidelines, but only
in its misapprehension that it was bound to
apply them, and refrain from issuing a milder
sentence, absent government stipulation.
The sentence is VACATED and the matter
REMANDED for resentencing.
4(...continued)
(finding low-end sentence insufficient where
defendant provided no record evidence that the
judge had felt compelled by the guidelines).

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