     Case: 09-10192         Document: 00511213421         Page: 1     Date Filed: 08/24/2010




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

                                                                                 FILED
                                           No. 09-10192                       August 24, 2010

                                                                               Lyle W. Cayce
UNITED STATES OF AMERICA,                                                           Clerk

                                               Plaintiff–Appellee

v.

SHAMS EMIL MASTERS,

                                               Defendant–Appellant




                       Appeal from the United States District Court
                            for the Northern District of Texas
                                 USDC No. 4:08-CR-00158




Before JONES, Chief Judge, PRADO, Circuit Judge, and O’CONNOR,* District
Judge.
PER CURIAM:**
        Shams Emil Masters appeals his sentence, arguing that the district court
erroneously calculated his United States Sentencing Guidelines (“USSG”) range
and unreasonably departed upward from that range. We hold that the erroneous

        *
             District Judge of the Northern District of Texas, sitting by designation.
        **
         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 R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                     No. 09-10192
Guidelines range withstands plain error review, and the district court’s upward
departure was not unreasonable considering the facts of this case. We therefore
affirm Masters’s sentence.
            I. FACTUAL AND PROCEDURAL BACKGROUND
       Masters pled guilty to a single count of bank robbery. Before sentencing,
Masters stipulated that he participated in four other bank robberies and that in
four of the five robberies, he handed the bank teller a threatening note.
       The Presentence Report (“PSR”) contained all five stipulated robberies and
calculated his offense level at twenty-five.1 Due to prior offenses, the PSR
calculated Masters’s criminal history score as eight, placing him in criminal
history category IV.2 This combination resulted in a Guidelines range of eighty-
four to 105 months. However, the PSR recommended that the district court
depart upward from the Guidelines range because of Masters’s long criminal
history and the failure of incarceration or probation to deter his recidivism.
       The district court adopted the facts and recommendations contained in the
PSR and Masters did not object to the PSR at sentencing. The district court
sentenced Masters to 210 months’ imprisonment, based upon an upward
departure to an offense level thirty and a criminal history category of VI. In so
doing, the district court explained at the sentencing hearing:
              [B]y further explanation of the upward departure, I’ve
       considered the recommended advisory guideline range as well as all
       of the factors outlined in 18 United States Code, Section 3553(a), in


      1
        The offense level included upward adjustments because Masters took the property of
a financial institution and because Masters made “death threats” during the robberies. U.S.
SENTENCING GUIDELINES MANUAL (“USSG”) §§ 1B3.1(b)(2)(F), 2B3.1(b)(1).
      2
       Masters had committed eight prior offenses. All but one of those offenses were
misdemeanors. His lone felony was a drug possession charge.

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                              No. 09-10192
   determining what sentence to impose, and I’ve concluded that the
   sentence I’ve imposed is a reasonable sentence that takes into
   account all of the factors. If viewed from the standpoint of a
   sentence based only on the advisory guidelines, the sentence would
   be an appropriate sentence by way of an upward departure under
   U.S.S.G. Section 4A1.3.
          The defendant is 30 years old and has established a pattern
   of habitual criminal behavior. He hasn’t been slowed down or
   deterred by probated sentences, jail terms, state prison sentences,
   or parole supervision. Since the age of 14 the defendant has had one
   juvenile adjudication and seven adult convictions. Four of those
   adult convictions are countable under the advisory guidelines. In
   addition, the fifth conviction would have received points if the
   conviction had not been outside the applicable time period.
          The defendant has continued to have contact with law
   enforcement, and the Court concludes that the defendant’s Criminal
   History Category IV, as well as his total offense level,
   under-represents the seriousness of his past criminal conduct or the
   likelihood that he will commit further crimes.
          He has one prior conviction for assault/serious bodily injury
   to a family member and a sentence of a six-year term of
   imprisonment for a previous drug conviction.
          ....
          The defendant has received numerous periods of incarceration
   and jail imprisonment, as well as probation and community
   supervision, which has [sic] not deterred him from committing new
   crimes. His past criminal conduct is indicative of his disregard for
   the law, his unwillingness to change his behavior, and the likelihood
   that he will commit future crimes, especially upon another person.
          And to whatever extent it’s appropriate to do so, in order to
   explain a Section 4A1.3 departure, so to speak, I’ve considered the
   defendant’s criminal history conduct is more like a Criminal History
   Category VI and that a total offense level of 30 would be more
   appropriate considering all of his conduct.
          When you come up with a hypothetical guideline range based
   on VI and a 30, you come up with 168 months to 210 months, and I
   consider that the top of that hypothetical range is a reasonable
   sentence.


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                                  No. 09-10192
The district court’s statements explaining and justifying its sentence mirror the
language of the PSR. Masters objected to the reasonableness of the upward
departure at sentencing, and then timely appealed. In his appeal, Masters
challenges the calculation of his Guidelines range and the reasonableness of the
upward departure.
                        II. STANDARD OF REVIEW
      We apply different standards of review to Masters’s challenge to the
erroneously calculated Guidelines range and the reasonableness of the upward
departure. As to the first, we review for plain error because Masters did not
object to the calculation at sentencing. United States v. Simmons, 568 F.3d 564,
566 (5th Cir. 2009). To satisfy plain error review, Masters must establish four
elements:
      First, there must be an error or defect . . . . Second, the legal error
      must be clear or obvious, rather than subject to reasonable dispute.
      Third, the error must have affected the appellant’s substantial
      rights, which in the ordinary case means he must demonstrate that
      it affected the outcome of the district court proceedings. Fourth and
      finally, if the above three prongs are satisfied, the court of appeals
      has the discretion to remedy the error—discretion which ought to be
      exercised only if the error seriously affects the fairness, integrity or
      public reputation of judicial proceedings.
Puckett v. United States, 129 S. Ct. 1423, 1429 (2009) (quotations and citations
omitted).
      As to Masters’s challenge to the reasonableness of the district court’s
sentence, we review the district court’s decision to depart upward from the
Guidelines range, along with the extent of that departure, for an abuse of
discretion. United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006)
(citing United States v. Saldana, 427 F.3d 298, 308 (5th Cir. 2005)).


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                                  No. 09-10192
                               III. DISCUSSION
A.      The Guidelines Range
        The Government concedes that the district court plainly erred when it
calculated the Guidelines range. The PSR assigns four points for two prior
offenses, counting the offenses separately; however, Masters was sentenced for
these two offenses on the same day. Under USSG § 4A1.2(a)(2), because Masters
committed one of the offenses before the other, but received his sentence for both
on the same day, the district court cannot assign points for each offense. Absent
this error, Masters’s criminal history score would be six, rather than eight. This
slight change drops his Guidelines range to seventy to eighty-seven months
(rather than the erroneously calculated eighty-four to 105 months).
        Despite this error, Masters’s challenge fails because his argument is
foreclosed by the our recent decision in Davis. The Davis district court, in the
context of a revocation proceeding, calculated an erroneous Guidelines range, but
then departed upward. 602 F.3d at 645–46. The defendant failed to object to the
incorrect range at sentencing and we reviewed the district court’s sentence for
plain error. Id. at 647. We rejected the defendant’s challenge because we found
that the district court “had ample independent bases for imposing the sentence
that it did,” and the defendant came forward with “no statements in the record
to indicate that the court—which was required only to consider the advisory
range indicated by the policy statement and was permitted to impose any
sentence within the statutory maximum when determining the sentence—relied
on the incorrect advisory range in determining his sentence.” Id. at 649. Davis
provides the applicable outline of our analysis here.
        Although the district court erroneously calculated the Guidelines range,
the district court did not rely on the erroneous range when it departed upward

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                                   No. 09-10192
and there is substantial evidence in the record to support the upward departure.
Therefore, Masters cannot show a reasonable probability that he would have
received a lesser sentence. See id. at 650 (A “district court’s erroneous selection
of the incorrect Guideline range is not enough to demonstrate that the
‘substantial rights’ prong of the plain error test is satisfied.”) (internal quotation
omitted). Thus, Masters’s challenge fails under plain error review.
B.      The Reasonableness of the Upward Departure
        Masters attacks two aspects of the district court’s upward departure: first,
Masters contends that the departure was not an appropriate application of
USSG § 4A1.3 or 18 U.S.C. § 3553(a); second, Masters argues that the district
court gave him a substantively unreasonable sentence. In essence, Masters’s
appeal tracks our review of any challenge to the reasonableness of a sentence:
namely, we first determine whether the district court committed procedural
error, then review the substantive reasonableness of the sentence. See United
States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
        1.    Application of USSG § 4A1.3
        The Government contends that we should review Masters’s procedural
challenge for plain error because Masters’s objection did not adequately alert the
district court of his contention that USSG § 4A1.3(a)(2) did not authorize an
upward departure based upon his prior criminal history. Masters objected early
at sentencing, stating “we would make an objection for purposes of appeal of the
unreasonableness of the sentence.” The district court responded, “I haven’t
finished yet, but you can go ahead and make your objection now if you would
like,” and then gave its justification for the sentence and the upward departure.
        An objection must place the district court “on notice” of the nature of the
procedural objection. See United States v. Duhon, 541 F.3d 391, 396 (5th Cir.

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                                  No. 09-10192
2008). When he objected, Masters did not name USSG § 4A1.3(a)(2) or state that
the district court’s use of his prior offenses formed the basis of the objection. We
agree with the Government that Masters’s objection was insufficient to raise his
procedural objection to the district court’s application of USSG § 4A1.3(a)(2).
      It is well-settled that “[i]f . . . the procedural objection was not presented
in the district court, our review is for plain error only.” Simmons, 568 F.3d at
566. Under the plain error standard, we will reverse only if there is an error
that “is plain and affects substantial rights,” United States v. Olano, 507 U.S.
725, 732 (1993) (internal quotation marks and alteration omitted). If there is
such an error, we “may . . . exercise [our] discretion to notice a forfeited error,
but only if . . . the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Cotton, 535 U.S. 625, 631
(2002) (internal quotation marks and alteration omitted).
      The district court did not plainly err when it applied USSG § 4A1.3(a)(2).
The factors listed in USSG § 4A1.3(a)(2) are nonexhaustive. The Guidelines only
remove prior arrests from the district court’s consideration when imposing the
sentence. Id. § 4A1.3(a)(3). Here, the district court stated its reasons for the
departure, including Masters’s “pattern of habitual criminal behavior,” lack of
deterrence from prior sentences, “his disregard for the law, his unwillingness to
change his behavior, and the likelihood that he will commit future crimes.” The
district court’s reliance on these reasons did not constitute plain error.
      2.    Substantive Unreasonableness
      Masters received a sentence of 210 months, a significant departure from
the correctly-calculated Guidelines range of seventy to eighty-seven months. We
review the reasonableness of the district court’s sentence for an abuse of
discretion. Gall v. United States, 128 S. Ct. 586, 597 (2007). With regard to his

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                                       No. 09-10192
sentence’s substantive reasonableness, Masters’s only argument on appeal is
that his sentence differed too much from other bank robbery sentences. Masters
asks us to consider a statistical compilation of robbery sentences, claiming that
the Northern District of Texas levies a greater percentage of upward departures
than the national average. We are unconvinced by Masters’s argument.
       Section 3353(a)(6) does not mandate that all sentences for similar crimes
be the same; rather, it requires courts to take into account “the need to avoid
unwarranted sentence disparities among defendants with similar records who
have been found guilty of similar conduct.” (emphasis added). We have held
that, when different treatment is warranted, even different sentences between
co-defendants are acceptable. Duhon, 541 F.3d at 397. Here, the district court
explained its reasons for the upward departure and, as addressed above, those
reasons were within its acceptable purview.
       Furthermore, the non-exhaustive factors of USSG § 4A1.3(a)(2) inform our
review of the substantive reasonableness of a district court’s sentencing to some
extent.3    The district considered Masters’s increasingly violent crimes, his
recidivism, the failure of previous sentences to deter criminal conduct, and his
likelihood of future criminal activity.            The district court did not err by



       3
         We note that the application of USSG § 4A1.3 is somewhat muddled. For example,
in United States v. Holt, we discussed USSG § 4A1.3 and reasonableness separately. 287 F.
App’x 384, 384–87 (5th Cir. 2008) (per curiam) (unpublished). However, in the reasonableness
analysis, we noted that “the district court complied with § 4A1.3(c) in its Statement of Reasons
for the sentence that it imposed and correctly applied § 4A1.3(a)(2)(A).” Id. at 387. This
statement implies that the appropriate application of USSG § 4A1.3 is one of the factors to
consider when assessing the reasonableness of a sentence. Similarly, in United States v.
Luevano-Orozco, we found that the appellant-defendant “ha[d] not shown that the district
court’s upward departure was an abuse of discretion or unreasonable,” because “[t]he district
court properly considered factors that are permissible under § 4A1.3(a)(2).” 182 F. App’x 376,
377 (5th Cir. 2006) (per curiam) (unpublished).

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                                   No. 09-10192
considering these facts, nor did the district court abuse its discretion by relying
on these facts to depart upward.
                              IV. CONCLUSION
      Masters’s challenge to the erroneously-calculated Guidelines range does
not overcome plain error review because he failed to establish that there is a
reasonable probability that he would receive a lesser sentence.          Masters’s
challenge to the district court’s upward departure also fails because the district
court did not plainly err when it relied on aspects of Masters’s case outside of the
factors enumerated in USSG § 4A1.3(a)(2); and because the district court did not
abuse its discretion when it departed upward based on the facts of this case. We
therefore affirm Masters’s sentence.
      AFFIRMED.




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