                                                                                  United States Court of Appeals
                                                                                           Fifth Circuit
                                                                                          F I L E D
                                               REVISED                                    January 3, 2007

                                                                                     Charles R. Fulbruge III
                                                  In the                                     Clerk
                       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,                   Anthony Coleman pleaded guilty to one
  Circuit Judges                                       count of possession of a firearm by a convicted
                                                       felon. He appeals his sentence, claiming the
PER CURIAM:*                                           district court impermissibly departed from the


   *                                                       *
    Pursuant to 5TH CIR. R. 47.5, the court has de-        (...continued)
termined that this opinion should not be published     and is not precedent except under the limited cir-
                                     (continued...)    cumstances set forth in 5TH CIR. R. 47.5.4.
applicable guideline range. Because the court            tory category, the PSR indicated an additional
failed to articulate sufficient reasons to justify       eleven prior convictions that had not been in-
an upward departure, we vacate the sentence              cluded in the calculation. At sentencing, how-
and remand for resentencing.                             ever, no mention was made of the criminal
                                                         history;1 instead, the court indicated that it
                       I.                                considered Coleman’s offense to be a different
    Coleman was arrested while walking on a              situation from a typical felon-in-possession
street carrying a 12-gauge shotgun. He con-              charge:
fessed that the night before his arrest, he had
participated in the burglary of a local gas sta-            This incident involved a burglary that Cole-
tion. The 12-gauge shotgun he was carrying                  man was involved in, and he was found
had been stolen from the house of one of his                walking down the street while they were
co-burglars; Coleman claimed he had bought                  still looking for the people who were in-
it that morning from one of his cohorts, in-                volved in the burglary that very same day
tending to pawn it for a profit. His accomplice             with a shotgun. And, according to the
denied having stolen the shotgun or having                  PSR, that shotgun had been stolen from a
sold it to Coleman.                                         home by one of the co-perpetrators in the
                                                            burglary that Mr. Coleman was involved in,
   Coleman’s presentence investigation report               which would lead me to believe that the
(“PSR”), to which he did not object, suggested              shotgun was present during the burglary.
a base offense level of 20, pursuant to
U.S.S.G. § 2K2.1(a)(4)(A). Two levels were               The court sentenced Coleman to the statutory
added because the weapon was stolen, and                 maximum of 120 months’ imprisonment, a
three levels were subtracted for acceptance of           54% increase from the high-end of the guide-
responsibility. Coleman was assessed a crim-             line range.
inal history score of 17 for numerous felony
and misdemeanor criminal convictions, for                                     II.
committing the offense while on probation,                  Where a court imposes a sentence that in-
and for committing it within two years of re-            cludes an upward departure authorized by the
lease from custody on another offense. His               guidelines, we review for “abuse of discre-
score was four points higher than the minimum            tion.” United States v. Smith, 440 F.3d 704,
for criminal history category VI; his offense            707 (5th Cir. 2006). We look to our pre-
level and criminal history category yielded a
guideline range of 63-78 months’
imprisonment.

    The district court informed both parties be-            1
                                                              In the written statement of reasons, the court
fore sentencing that it was considering an up-           wrote, “The criminal history category substantially
ward departure from the recommended guide-               under represented the seriousness and violence of
line range because of “this defendant’s criminal         the defendant’s criminal history. The charged of-
history and the nature of the offense.” Despite          fense under represents the seriousness of the con-
the fact that Coleman’s criminal history score           duct.” This language merely restates the statutory
placed him in the highest possible criminal his-         standard. See U.S.S.G. § 4A1.3(a)(1); 18 U.S.C.
                                                         § 3553(a)(2)(A).

                                                     2
Booker caselaw2 for guidance in assessing the               tives set forth in 18 U.S.C. § 3553(a)(2),
extent of the departure. Id. at 707. The court              should result in a sentence different from that
is entitled to find by a “preponderance of the              described.” U.S.S.G. § 5K2.0(a)(1). “The
evidence” all the facts relevant to an upward               Guidelines Manual explains that it intends each
departure, United States v. Mares, 402 F.3d                 guideline to create a heartland of typical cases
511, 519 (5th Cir. 2005), cert. denied, 126 S.              and departure is appropriate only if conduct in
Ct. 43 (2005), and we accept findings of fact               a given case differs significantly from the norm
made in connection with sentencing unless                   and such that the crime is outside this
they are clearly erroneous, United States v.                heartland.” United States v. Saldana, 427
Creech, 408 F.3d 264, 270 n.2 (5th Cir.                     F.3d 298, 309 n.43 (5th Cir. 2005) (citing
2005). “There is no abuse of discretion if the              United States v. Winters, 174 F.3d 478, 482
judge provides acceptable reasons for                       (5th Cir. 1999)).
departure and the degree of departure is
reasonable.” United States v. Delgado-Nunez,                   The district court stated that it was depart-
295 F.3d 494, 497 (5th Cir. 2002) (citing                   ing from the guidelines because Coleman’s of-
United States v. Nevels, 160 F.3d 226, 229-30               fense presented a “different situation” from a
(5th Cir. 1998)). “Enunciation of an adequate               typical felon in possession charge. The court
explanation for departure from the sentencing               based this conclusion on its finding that Cole-
guidelines range is a threshold requirement                 man had possessed the shotgun during a burg-
mandated by statute.” United States v.                      lary the night before his arrest. This finding
Madison, 990 F.2d 178, 182 (5th Cir. 1993).3                was clearly erroneous.

   The sentencing guidelines authorize upward                  There was no evidence in the PSR or in the
departures if the court finds aggravating                   factual stipulation that would indicate the shot-
circumstances “of a kind, or to a degree, not               gun was present at the burglary. The only
adequately taken into consideration by the                  government witness at sentencing admitted
Sentencing Commission in formulating the                    that “we are unable to decide if [the gun was
guidelines that, in order to advance the objec-             stolen] prior [to] or after the burglary.” Under
                                                            a preponderance of the evidence standard, a
                                                            judge could not reasonably have concluded
   2
    See United States v. Booker, 543 U.S. 220               that the gun was present at the burglary.
(2005).
                                                               Other than the erroneous finding that the
   3
     See, e.g., U.S.S.G. § 5K2.0(e) (“If the court          gun was used in a burglary, at sentencing the
departs from the applicable guideline range, it shall       court made no other factual finding to justify
state, pursuant to 18 U.S.C. § 3553(c), its specific        the upward departure. The government con-
reasons for departure in open court at the time of
                                                            tends that, even if Coleman did not possess the
sentencing and, with limited exception in the case
of statements received in camera, shall state those
                                                            gun during the burglary, it is undisputed that
reasons with specificity in the written judgment and        the two events occurred close in time. The
commitment order.”). Cf. Smith, 440 F.3d at 707             government fails to explain, however, how
(“[T]he district court must more thoroughly                 temporal proximity distinguishes Coleman’s
articulate its reasons when it imposes a non-               case from the heartland of the guidelines
Guideline sentence than when it imposes a sentence          range. Even if were to overlook the court’s
under the authority of the guidelines.”).

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

                                                     4
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.”).

                                                        5
