     Case: 09-10179     Document: 00511076459          Page: 1    Date Filed: 04/12/2010




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

                                                  FILED
                                                                            April 12, 2010

                                       No. 09-10179                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee
v.

JAMAL STEPHENS,

                                    Defendant-Appellant




                   Appeals from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:08-CR-161-A
                             USDC No. 4:08-CR-107-A


Before GARWOOD, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
            Appellant Jamal Stephens (Stephens) appeals his criminal sentencing
proceeding that dramatically departed from the Sentencing Guidelines (“USSG”)
based on unprosecuted offenses. The case involves the application of the USSG
and federal statutes to determine if the sentence imposed is procedurally and
substantively unreasonable. Because the district court committed procedural



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-10179

error in computing the upward departure in this upward departure Guidelines
sentence, we vacate the sentence and remand for resentencing.
                    F ACTUAL AND P ROCEDURAL B ACKGROUND
      Stephens was implicated in seven robberies during the months of April-
June in 2008. Stephens first robbed the Security One Bank in Arlington, Texas
on April 14 and subsequently an EZ Money loan store in Arlington on May 2. On
May 9, Stephens robbed both the Compass Bank and Comerica Bank in
Arlington.   After these four robberies, Stephens was arrested during an
unrelated traffic stop on an outstanding warrant for military desertion by the
Rockwall police in Texas. A search of the vehicle in Rockwall uncovered a
suitcase full of drugs, $10,962 in cash (later confirmed by the FBI as cash from
two of the bank robberies), and a black Kel-Tec 9 mm semi-automatic pistol.
Stephens admitted to ownership of the suitcase, but no drug or firearm charges
were filed because Stephens agreed to cooperate as a confidential narcotics
informant. Undeterred, Stephens committed his fifth and sixth robberies on
May 28, robbing both the Guaranty Bank in Fort Worth and Compass Bank in
Arlington. The seventh robbery occurred when Stephens left Texas to join his
aunt in Georgia where he robbed the Wachovia Bank in Columbus, Georgia.
Stephens was eventually arrested in Georgia, and he confessed to the six Texas
robberies and one Georgia robbery. These seven robberies involved the use of a
pellet gun and, allegedly, a handgun. He was charged with a one-count federal
indictment for bank robbery in the Middle District of Georgia and a four-count
federal indictment for bank robbery in the Northern District of Texas. His
Georgia indictment was later transferred to Texas for rearraignment and
sentencing. Stephens pleaded guilty to the federal Georgia indictment without

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                                 No. 09-10179

a written plea agreement. He also pleaded guilty to count four of the Texas
federal indictment (the May 28 robbery of Compass Bank) and stipulated to
count three (the May 28 robbery of Guaranty Bank) in his factual resume in
exchange for dismissal of counts one, two and three in the Texas indictment.
                     The PSR and Sentencing Proceedings
      The PSR calculated Stephens’s combined total offense level to be 26 based
on the May 28th Texas robbery and the June 30th Georgia robbery.1 Stephens’s
criminal history score was calculated at I because he had no prior convictions or
criminal history points. The Guidelines range for imprisonment was 63 to 78
months, but the PSR noted that an upward departure under § 5K2.21 would be
available if the court determined by a preponderance of the evidence that
Stephens’s three additional uncharged bank robberies and use of a semi-
automatic weapon during the May 9 robberies represented a lower Guidelines
range than normally would apply. The PSR hypothesized that conviction or
stipulation of all the bank robberies (excluding the EZ Money robbery), would
have yielded an offense level of 30, not 26, resulting in a range of 97 to 121
months of imprisonment. Neither party objected to the PSR.



      1
        The PSR calculated a base offense level of 20 pursuant to USSG §
2B3.1(a), plus two additional levels because the offense involved taking property
from a financial institution under § 2B3.1(b)(1). Further, three more levels were
added for Stephens’s possessing and brandishing of a dangerous weapon under
§ 2B3.1(b)(2)(E). The Georgia robbery was calculated with the same base levels
and enhancements plus an additional level because the loss involved was greater
than $10,000 but less than $50,000 pursuant to § 2B3.1(b)(7)(B). Then, a
multiple-count adjustment under § 2D1.1 arrived at a combined offense level of
29. This number was reduced by three levels for acceptance of responsibility for
a combined offense level of 26.

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      In its February 5, 2009 order, the district court expressed concern about
accepting the plea agreement because the Government did not plan to prosecute
the additional robberies or resulting gun offenses under 18 U.S.C. § 924(c). The
court theorized that conviction for the § 924(c) offenses would have resulted in
a mandatory 684-month sentence, consecutive to Stephens’s robbery sentence.
Further, the court noted that Stephens could not be required to pay restitution
to the banks and stated the sentence should be “significantly above the top of the
advisory guideline range” to adequately address Stephens’s criminal conduct.
      The Government explained its decision not to pursue § 924(c) charges,
stating it did not believe it could prove the offenses beyond a reasonable doubt
because (1) Stephens only confessed to all the robberies with the use of a pellet
gun, (2) the May 9 tellers were unable to identify Stephens in a photo lineup, (3)
one of these tellers had not mentioned Stephens using a gun, (4) the other teller
mentioned Stephens used a silver gun, and (5) a black, not silver, gun was the
only weapon confiscated during the May 14 arrest. The Government did advise
the court it could depart from the Guidelines if it found by a preponderance of
the evidence that Stephens did use a firearm during the robberies.
      The district court accepted the plea agreement but found that Stephens
had used a firearm in three of the robberies.        The court also found that
Stephens’s use of the firearm during the EZ Money robbery did not result in a
§ 924(c) offense because the robbery could not be federally prosecuted. The
district court determined that the use of the firearm during the April and May
robberies resulted in three § 924(c) gun offenses and that Stephens used a pellet
gun in the later robberies only because his gun had been seized during the May
14 arrest.

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      Stephens objected to these findings and contended that there was not
sufficient evidence to establish his use of a real gun during the May 2 and May
9 robberies by a preponderance of the evidence because of the contradictory gun
descriptions in the offense reports. Stephens further asserted that even if the
court could find that a real gun was used during those robberies, that the court
could not use the mandatory minimums under § 924(c) to justify an upward
departure because the Guidelines already accounted for the use of any firearms
through Guideline enhancements.
      The district court sentenced Stephens to 240 months on each count, to be
served concurrently, followed by a three-year term of supervised release and
ordered $21,908 in restitution to be paid. The court based its upward departure
on § 5K2.21 to reflect the seriousness of the conduct and for charges dismissed
or not pursued as part of the plea agreement. 2       The court emphasized the
following additional factors: i) Stephens’s propensity to violence, as evidence by
use of pellet and/or firearms during the robberies, ii) the inability to order
restitution, and iii) Stephens’s commission of three additional robberies following
his May 14 arrest and release.
      In addition to the oral reasons given during the sentencing proceedings,
the district court also provided a written Statement of Reasons (“SOR”) for
Stephens’s sentence. The court provided many of the same reasons given at
sentencing as well as two additional considerations. The SOR reiterated that




      2
       The court relied on the charges from the PSR and those admitted by
Stephens “to the extent those other robberies also involved gun offenses, the gun
offenses were not taken into account in the guideline calculations.”

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                                  No. 09-10179

the court departed upwardly pursuant to § 5K2.21 to reflect the seriousness of
the crimes, the uncharged robberies, and the uncharged § 924(c) offenses.
      The court calculated that convictions on seven robberies would have
resulted in a Guideline range of 97 to 121 months and three § 924(c) offenses
would have resulted in a consecutive 684-month term. Moreover, the court noted
that the banks suffered combined losses of over $44,000, which could not be
corrected by restitution, and concluded that the restitution portion of Stephens’s
sentence did not adequately reflect the actual losses resulting from his criminal
conduct.
      For the first time, the court also stated that it had upwardly departed
under § 4A1.3 because Stephens’s criminal history category substantially under-
represented the seriousness of his criminal past and the likelihood that he would
commit future crimes. Furthermore, the court indicated that it was basing its
departure from the Guidelines on a hypothetical Guideline calculation
determined by the court. This hypothetical guideline was calculated by using,
without explanation, an offense level of 31 and criminal history score of VI. The
resulting hypothetical yielded a range of 188 to 235 months of imprisonment.
Lastly, the court stated that under the advisory Guidelines range, §§ 4A1.3 and
5K2.21, and § 3553(a) factors, a sentence of 240 months, while “a rather
significant upward departure, [was] necessary to reflect the seriousness of the
defendant’s actual offense behavior, afford adequate deterrence to criminal
conduct, and protect the public from further crimes of the defendant.”
                             S TANDARDS OF R EVIEW
      The district court’s findings of fact related to sentencing are reviewed for
clear error. United States v. Castillo, 430 F.3d 230, 238-39 (5th Cir. 2005). We

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review de novo whether the sentence imposed is procedurally sound, including
the accuracy of the advisory Guideline calculations and explanations for
deviations from the Guideline’s range. Gall v. United States, 552 U.S. 38, 46
(2007); United States v. Armstrong, 550 F.3d 382, 404 (5th Cir. 2008).
      Upward departures that are authorized by the Guidelines are considered
a Guideline sentence. See United States v. Tzep-Mejia, 461 F.3d 522, 525 (5th
Cir. 2006).   Unusually harsh sentences must be explained with sufficient
justifications because the Guidelines are “the product of careful study based on
extensive empirical evidence derived from the review of thousands of individual
sentencing decisions.” Gall, 552 U.S. at 46. Because we find procedural errors,
we do not consider the second step of the substantive reasonableness of the
sentence under the factors in 18 U.S.C. § 3553(a). Id.
                                  D ISCUSSION
I. Upward departures for the same conduct under Sections 4A1.3 and 5K2.21
      Stephens challenges the district court’s sentencing calculation.3            He
maintains that § 4A1.3 is a permissible basis for departure on its own or as a
potential alternative to vertical departure under § 5K2.21, but contends that the
same uncharged conduct cannot serve as a basis for both offense-level departure
under § 5K2.21 and criminal-history departure under § 4A1.3.




      3
        Specifically, the lack of explanation in calculating its hypothetical
guideline range of 128 to 235 months on an offense level of 31 and criminal
history category of VI when the PSR found the range for the six robberies that
involved the use of firearms in some of the crimes to be 97 to 121 months, based
on a total offense level of 30 and criminal history category of I.

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      In United States v. Gutierrez-Hernandez, 581 F.3d 251, 254 (5th Cir. 2009),
we held that an upward departure under § 4A1.3 and § 5K2.0 was error.
Although the lower court could use § 4A1.3 as a proper basis under the facts for
allowing criminal-history enhancements, § 4A1.3 was not a proper basis to
increase the offense level. See id. Also, § 5K2.0 could not justify a departure of
offense levels based on the culpability of a prior conviction. See id. at 255. In
United States v. Cade, 279 F.3d 265, 272 (5th Cir. 2002), we held that a
defendant’s prior state sentences could not be used as the basis for an upward
departure under § 4A1.3 when it was already considered in the calculation of his
offense level under § 1B1.1. In Cade, the district court considered Cade’s state
sentences as relevant conduct to the instant offense. We noted that the district
court could not then use these state sentences in Cade’s criminal history score
because they were used as relevant conduct, which is considered “part of the
instant offense,” and not prior sentences as defined by § 4A1.2. We analyzed the
case of United States v. Hunerlach, 258 F.3d 1282 (11th Cir. 2001), and adopted
the reasoning of the Hunderlach court that once a district court determines a
sentence as relevant conduct to the instant offense to adjust the offense level, it
cannot then be used as a basis for a criminal history category departure under
§ 4A1.3(a).4




      4
        See Cade, 279 F.3d at 271 (citing Hunderlach, 258 F.3d at 1286-87;
United States v. Baird, 109 F.3d 856, 863 n.4 (3d Cir. 1997); United States v.
Washburn, 5 F.3d 1072 (6th Cir. 1995) (unpublished); United States v. Jones, 948
F.2d 732, 737 n. 11 (D.C. Cir. 1991); United States v. Kim, 896 F.2d 678, 683 (2d
Cir. 1990)).

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                                   No. 09-10179

      Here, there is no dispute between the parties that the district court
attempted an upward departure guideline sentence. However, when a court
uses relevant conduct (uncharged offenses) to upwardly depart by offense levels,
it should not then use this conduct to add to the criminal history category.
Gutierrez-Hernandez dealt with the district judge’s procedural error of trying to
change the offense level when the Guideline justifications only allowed for a
change in the criminal history category. See 581 F.3d at 254-55. In the instant
case, the district court committed procedural error under the first step in Gall
in attempting a departure under a Guidelines sentence by increasing Stephens’s
offense level from 26 to 31 and criminal history category from I to VI while
justifying such a departure under the Guidelines based on the same uncharged
conduct under § 4A1.3 and § 5K2.21.
II. Section 924(c) Offenses and Mandatory Minimum Sentences
      A. Factual Findings on Gun Usage
      Stephens contends that the district court’s determination that Stephens
used a real firearm and not a pellet gun in the May 2nd and May 9th robberies
constitutes error. As stated previously, factual findings are reviewed for clear
error. See Armstrong, 550 F.3d at 404. The PSR stated that Stephens used a
firearm in the May 2nd and May 9th robberies. Stephens did not object to the
PSR; instead, he objected to the sentencing findings on grounds of insufficient
evidence. A district court may consider all relevant, even inadmissible, evidence
in making factual findings. See United States v. Patterson, 962 F.2d 409, 415
(5th Cir. 1992).    A district court may adopt findings in the PSR without
additional inquiry if a sufficient indicia of reliability exists and if the defendant
does not present rebuttal evidence or otherwise demonstrate that the

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information is materially unreliable. United States v. Ford, 558 F.3d 371, 377
(5th Cir. 2009).
      Stephens furnished the witnesses’ statements from the robberies that
indicated that the robber carried “a silver handgun, possibly a revolver,” that he
was brandishing a pistol, and that he had a silver semi-automatic handgun.
These statements corroborated the findings of the PSR that a handgun and not
a pellet rifle were used.   While Stephens points out that the arrest report
mentions that a black pistol was confiscated, this error is insufficient to
demonstrate clear error as to the finding that Stephens used a firearm during
the robberies. The district court’s determination that Stephens used a firearm
during the May 2nd and May 9th robberies is plausible in light of the record as
a whole, and therefore, not clearly erroneous.
      B. Uncharged 924(c) Offenses in Calculation of Sentence
      Stephens also complains of the district court’s calculation inasmuch as it
used uncharged § 924(c) offenses as the basis for a § 5K2.21 departure when it
also applied an offense level enhancement under § 2B3.1(b)(2). We find this
calculation goes against the policy behind § 2K2.4.
      Section 2B3.1(b)(2) lays out differing offense level increases based on the
usage of the firearm from adding 2 levels up to 7 additional offense levels.
Moreover, § 2B3.1(b)(2) can only be applied if a defendant is not convicted of a
§ 924(c) offense, but if the Government charges and proves a § 924(c) violation,
§ 2K2.4 prohibits application of this separate offense enhancement. Here, the
district court applied an offense level enhancement in the instant case under §
2B3.1(b)(2)(E). By finding § 924(c) violations and then attempting to stack those
enhancements under § 5K2.21, the district court committed procedural error.

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                                No. 09-10179

      The district court did not properly compute an upward departure
Guideline sentence.5 Accordingly, the sentence is VACATED, and we REMAND
for resentencing consistent with our opinion.




      5
       We note, without comment, that the district court retains discretion on
remand to make a determination on the propriety of a non-guideline sentence
but must first compute a proper guideline sentence before attempting to make
a proper non-guideline sentence or upward guideline departure otherwise in
conformity with the law.

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