     Case: 14-60283   Document: 00513053365        Page: 1   Date Filed: 05/22/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                    No. 14-60283                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
UNITED STATES OF AMERICA,                                            May 22, 2015
                                                                    Lyle W. Cayce
             Plaintiff - Appellee                                        Clerk

v.

NICKDANIEL DEWAYNE CLAY,

             Defendant - Appellant




                Appeal from the United States District Court
                  for the Northern District of Mississippi


Before JOLLY, HIGGINSON, and COSTA, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
      Defendant Nickdaniel Clay appeals a within-guidelines sentence,
arguing that the district court failed to appreciate that 18 U.S.C. § 3553(a)
provided it with discretion to vary from the advisory sentencing range under
the U.S. Sentencing Guidelines. Because the district court did not understand
the breadth of its discretion in confecting the sentence, we vacate Clay’s
sentence and remand for resentencing.

                            I. BACKGROUND

      Clay pled guilty to possession with intent to distribute cocaine, which,
when combined with prior convictions, qualified Clay as a career offender
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under § 4B1.1 of the U.S. Sentencing Guidelines. 1              Clay’s career-offender
status resulted in a guidelines range of 151 to 188 months of imprisonment;
his guidelines range only would have been 30 to 37 months of imprisonment
except for the guidelines applicable to career offenders.
      At sentencing, Clay did not challenge the application of the career-
offender guidelines. Instead, he argued that a downward variance under 18
U.S.C. § 3553(a) was appropriate because (1) the circumstances of his prior
convictions showed that he was not the type of serious repeat offender to whom
the career-offender provision in U.S.S.G. § 4B1.1 was intended to apply and
(2) therefore, a sentence within the career-offender-guideline range would be
greater than necessary to meet the goals set forth in § 3553(a).
      The district court acknowledged that the career-offender enhancement
significantly increased Clay’s guidelines sentence and stated that it was
“troubled” by that result. Nevertheless, the district court imposed a sentence
at the bottom of the guidelines range, refusing to vary downwardly because
there was no “Fifth Circuit guidance” related to variances when a defendant is
subject to the career-offender provision in U.S.S.G. § 4B1.1. The district court
stated, if it had “Fifth Circuit authority” to vary, Clay’s sentence likely “would
have been different.”
      On appeal, Clay contends that the district court procedurally erred by
failing to appreciate its discretion to vary from the advisory guidelines range.
Clay further asserts that the district court erred by not allowing him to allocute
before imposing sentence.




      1 Clay’s two qualifying offenses are strong armed robbery and sale of one-tenth of a
gram of crack cocaine within 1,000 feet of a church.
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                                 No. 14-60283
                            II. DISCUSSION

      When reviewing a sentence, we must “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, [or] failing to consider the § 3553(a) factors.” United States v.
Robinson, 741 F.3d 588, 598 (5th Cir. 2014) (quotation marks omitted); see also
Gall v. United States, 552 U.S. 38, 51 (2007). If procedural error occurs,
harmless error review applies. Robinson, 741 F.3d at 598. In conducting this
review, we review the district court’s interpretation or application of the
sentencing guidelines de novo and its factual findings for clear error. Id. at
598-99.

A.   Procedural Error

      Following the Supreme Court’s decision in United States v. Booker, 543
U.S. 220 (2005), sentencing “courts must conduct a two-part process—first
calculating the sentence using the now-advisory Sentencing Guidelines, then
applying an individualized assessment using the factors set out in 18 U.S.C.
§ 3553(a).” Robinson, 741 F.3d at 599 (citing Gall, 552 U.S. at 49-50).
      There is no question that the district court aptly applied the sentencing
guidelines to Clay’s crime; nor is there any argument that the district court
miscalculated the recommended sentence under the guidelines. The question
on appeal is whether—after calculating Clay’s advisory sentencing range—the
district court failed to “apply[] an individualized assessment using the factors
set out in 18 U.S.C. § 3553(a)” to determine the appropriate sentence in this
case. Id.
      Section 3553(a)(1) issues a “broad command,” requiring the district court
to “consider the nature and circumstances of the offense and the history and
characteristics of the defendant.” Id. (quotation marks omitted); see also id. at
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600 (stating that “§ 3553(a)(1) contains no express limitations as to what
history and characteristics of the defendant are relevant.” (quotation marks
omitted)). Other § 3553(a) factors have similarly broad concerns that a district
court must assess, in an individualized manner, before imposing its sentence.
E.g., 18 U.S.C. § 3553(a)(2)(B) (requiring consideration of the need for the
sentence “to afford adequate deterrence”); id. § 3553(a)(2)(C) (requiring
consideration of the need for the sentence “to protect the public from further
crimes of the defendant”).
      When determining the appropriate sentence, the district court further
considers the sentence recommended by the U.S. Sentencing Guidelines. The
sentencing guidelines, however, are only advisory; they “serve as one factor
among several” that must be considered when “determining an appropriate
sentence.”   Kimbrough v. United States, 552 U.S. 85, 90-91, 101 (2007)
(“[W]hile [§ 3553] still requires a court to give respectful consideration to the
Guidelines, . . . Booker permits the court to tailor the sentence in [the] light of
other statutory concerns as well.”). To be sure, the Supreme Court has applied
this general rule to a particular guidelines enhancement—one that increases
the recommended sentence for offenses dealing with crack cocaine (as opposed
to powder cocaine). Id. at 91. In so doing, the Supreme Court held that the
district court may, after considering the factors in § 3553(a), determine “that,
in the particular case, a within-Guidelines sentence is ‘greater than necessary’
to serve the objectives of sentencing.” Id. In such case, the district court can
vary from the guidelines. The Supreme Court’s holding results from a sort of
a fortiori rationale:    After considering all of the § 3553 factors, it is
undisputable that a district court has discretion to vary from the advisory
guidelines sentence. So, within this broad authority, a district court, a fortiori,
has discretion to vary from a particular guideline enhancement.


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       This reasoning applies here. That is, given the advisory nature of the
sentencing guidelines and the district court’s discretion generally to vary from
the recommended guidelines sentence after conducting an individualized
assessment of the § 3553(a) factors, a district court, a fortiori, has discretion to
vary from a guidelines sentencing range irrespective of whether that particular
sentencing recommendation arises under the career-offender provision in
U.S.S.G. § 4B1.1. In short, a district court’s sentencing discretion is no more
burdened when a defendant is characterized as a career offender under § 4B1.1
than it would be in other sentencing decisions. 2                     Accord United States v.
Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008) (“[A] sentencing court
may vary from the Guidelines based solely on policy considerations, including
disagreements with the Guidelines, if the court feels that the guidelines
sentence fails properly to reflect § 3553(a) considerations.”). Furthermore, it
is not necessary to identify a court of appeals decision that has directly
addressed the guidelines provision at issue as Booker provides that discretion
across the board with the statutory sentencing factors serving as the
guideposts.
       A district court’s failure to recognize its discretion to vary in this context
constitutes procedural error.               Accord Robinson, 741 F.3d at 601 (“[A]
sentencing court commits procedural error if it fails to appreciate its discretion



       2  Other circuits appear to agree. See, e.g., United States v. Corner, 598 F.3d 411, 416
(7th Cir. 2010) (en banc) (“[A] judge who understands what the [U.S. Sentencing] Commission
recommends, and takes account of the multiple criteria in § 3553(a), may disagree with the
Commission’s recommendation categorically, as well as in a particular case. Because § 4B1.1
is just a Guideline, judges are . . . free to disagree with it . . . . No judge is required to sentence
at variance with a Guideline, but every judge is at liberty to do so.”); United States v. Michael,
576 F.3d 323, 327 (6th Cir. 2009) (“[T]he Supreme Court has consistently reaffirmed that all
of the sentencing guidelines are advisory. . . . That holds true for the career-offender
provisions just as it does any other provisions of the Guidelines.”); United States v.
Boardman, 528 F.3d 86, 88 (1st Cir. 2008) (remanding for the district court to “consider
[sentencing] issues with the additional latitude furnished by Kimbrough”).
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                                  No. 14-60283
to consider evidence of cooperation under § 3553(a).”); United States v. Burns,
526 F.3d 852, 862 (5th Cir. 2008) (holding that defendant was “entitled to have
his sentence set by a judge aware of the discretion that Kimbrough has
announced”). That is precisely what the district court did here: It treated
Clay’s guidelines sentence as effectively mandatory because the recommended
sentence was predicated on the career-offender-guideline enhancement. The
district court did not recognize its discretion to vary from the guidelines range.
This failure was procedural error. The question now is whether such error
requires reversal.

B.   Harmless Error

      “Not all procedural errors require reversal; the court may affirm the
sentence in spite of a procedural error if that error is harmless—that is, if the
error did not affect the district court’s selection of the sentence imposed.”
Robinson, 741 F.3d at 601 (quotation marks omitted). “The proponent of the
sentence has the burden of establishing that the error was harmless.” Id.
(quotation marks omitted). “If a district court is mistaken about its authority
to consider some factor during sentencing then the court must remand for
resentencing unless it is clear that the district court would have imposed the
same sentence had it known that it could consider that factor.” Id. (quotation
marks omitted).
      Here, the district court’s mistake likely affected the sentence it imposed.
During the sentencing hearing, the district court was “troubled” by the vast
increase in the guidelines range created by the career-offender enhancement.
And, the court stated that, if it had “Fifth Circuit guidance” and “authority” to
vary, “the outcome [likely] would have been different.”         The government
concedes that the district court made these statements.


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                                    No. 14-60283
      Because it was the government’s “heavy burden” to “convincingly
demonstrate that the sentencing court actually would have followed the very
same reasoning absent the error,” id. at 603—and because the government
failed to do so here—we hold that the district court’s procedural error was not
harmless and thus requires vacatur of the sentence. 3

C.   Allocution

      Finally, we note that, during the course of a lengthy sentencing hearing,
the district court apparently overlooked the fact that Clay was not provided an
opportunity to allocute before his sentence was imposed. Clay brings this
omission to our attention on appeal, and we are confident that the district court
will allow Clay an opportunity to allocute prior to resentencing. See Fed. R.
Crim. P. 32(i)(4)(A)(ii) (“Before imposing sentence, the court must . . . address
the defendant personally in order to permit the defendant to speak or present
any information to mitigate the sentence.”); see also Green v. United States,
365 U.S. 301, 305 (1961) (“[T]rial judges should leave no room for doubt that
the defendant has been issued a personal invitation to speak prior to
sentencing.”); United States v. Eads, 480 F.2d 131, 133 (5th Cir. 1973) (same).

                             III. CONCLUSION

      Accordingly,     we    VACATE       Clay’s    sentence    and    REMAND        for
resentencing to allow Clay to allocute and to allow the district court to exercise
its discretion under § 3553(a) to vary, if appropriate, from the advisory
sentencing range calculated by application of the U.S. Sentencing Guidelines.
We express no view on what sentencing decisions the district court should
make on remand.


      3 Because we find procedural error that was not harmless, we do not reach the issue
of whether Clay’s sentence is substantively unreasonable.
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                          No. 14-60283
                                         VACATED and REMANDED.




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