Case: 19-50591      Document: 00515531790         Page: 1    Date Filed: 08/18/2020




         United States Court of Appeals
              for the Fifth Circuit                                     United States Court of Appeals
                                                                                 Fifth Circuit

                                                                               FILED
                                                                         August 18, 2020
                                 No. 19-50591
                                                                          Lyle W. Cayce
                                                                               Clerk

 United States of America,

                                                            Plaintiff—Appellee,

                                     versus

 Corey Reeves Bostic,

                                                        Defendant—Appellant.


                 Appeal from the United States District Court
                      for the Western District of Texas
                           USDC No. 7:19-CR-4-4


 Before Dennis, Southwick, and Ho, Circuit Judges.
 Leslie H. Southwick, Circuit Judge:
        The defendant entered an open plea of guilty. The Guidelines range
 was 21 to 27 months, but the district court imposed a 235-month sentence.
 The defendant here argues both the procedural and substantive
 unreasonableness of his sentence. We conclude that the district court needs
 to explain better its justification for such a sentence or impose a lesser one.
 We VACATE the sentence and REMAND for resentencing.




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Case: 19-50591      Document: 00515531790         Page: 2    Date Filed: 08/18/2020




                                  No. 19-50591


         FACTUAL AND PROCEDURAL BACKGROUND
        Police officers responded to a 911 call of a possible drug overdose in
 Odessa, Texas. When they arrived, they discovered AF, a 24-year old
 female, who was not breathing. According to a witness, AF had been given
 heroin by her boyfriend Braxton Hudgens the previous evening.              AF
 complained of the effects of the heroin, and Hudgens contacted Corey
 Reeves Bostic to obtain methamphetamine. Bostic arrived at the scene, saw
 that AF was in the midst of an overdose, and provided Hudgens with
 methamphetamine.       Hudgens administered the drug to AF.           AF was
 pronounced dead at a hospital.
        At the time of her death, AF was under treatment for an enlarged heart
 and had previously undergone heart surgery. When she died, her heart was
 enlarged to four times its normal size. According to the medical examiner,
 while it was likely that drug use contributed to AF’s death, her preexisting
 health condition prevented a showing of but-for causation. A federal grand
 jury for the Western District of Texas did not charge Bostic with AF’s death,
 but he was indicted for conspiracy to possess with intent to distribute
 methamphetamine pursuant to 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 846.
 Bostic pled guilty without a plea agreement.
        In the Presentence Investigation Report (“PSR”), the probation
 officer calculated an offense level of 10 and a criminal history category of V,
 producing a United States Sentencing Guidelines range of 21 to 27 months.
 The PSR recognized the findings of the medical examiner regarding
 causation, stating there was no identifiable victim as defined in Burrage v.
 United States, 571 U.S. 204 (2014), where the Supreme Court held:

        At least where use of the drug distributed by the defendant is
        not an independently sufficient cause of the victim’s death or
        serious bodily injury, a defendant cannot be liable under the




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                                   No. 19-50591


        penalty enhancement provision of 21 U.S.C. § 841(b)(1)(C)
        unless such use is a but-for cause of the death or injury.
 Id. at 218–19.
        At sentencing, the district court found the PSR accurate and adopted
 it, including the PSR’s Guidelines calculations. Bostic’s counsel argued that
 certain factors courts must consider under 18 U.S.C. § 3553(a) weighed
 against sentencing Bostic outside the Guidelines range. Bostic’s counsel
 focused on the nature and circumstances of the offense and the history and
 characteristics of the defendant, which fall under Section 3553(a)(1).
 According to Bostic’s counsel, because of the drug use and “dark”
 circumstances surrounding the offense, no one involved was thinking clearly,
 and Bostic specifically was “in a period of full use” of heroin, trying to stave
 off withdrawal. Bostic himself stated that he took responsibility for his
 actions and that if he could go back to the night of the events in question, he
 would have called 911.
        The Government’s counsel recognized that although Bostic did not
 cause the circumstances on the night in question, his actions were depraved.
 The Government stated: “It’s not to say that they could have saved the life,
 but they didn’t try. So the government can’t in good faith say [Bostic] caused
 a death, but [Bostic] stood by and watched it and did nothing.” The
 Government argued for a “modest upward departure” given the “horrific
 nature of the circumstances,” and an “upward variance . . . to say that life
 matters.”
        The district court expressly found the PSR’s Guidelines range of 21
 to 27 months was “wanting,” and noted that “if the government had been
 able to charge [Bostic] with distribution of methamphetamine which resulted
 in death, [Bostic] would have faced a mandatory minimum term of
 imprisonment of 20 years and a minimum of ten years of supervised release.”
 The district court sentenced Bostic to 235 months of imprisonment and 3




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                                   No. 19-50591


 years of supervised release. Bostic’s counsel objected to the sentence as
 procedurally and substantively unreasonable.
        The district court incorrectly indicated in Section IV of the Statement
 of Reasons form that Bostic’s sentence was within the Guidelines range, and
 the district court left blank Section VI of the same form, which would provide
 information regarding the reasons for a variance, including which Section
 3553(a) factors were considered in arriving at the sentence.
        Bostic timely appealed.


                               DISCUSSION
        We review criminal sentences for reasonableness. Gall v. United
 States, 552 U.S. 38, 46 (2007). First, we determine whether the district
 court’s sentence was procedurally unreasonable. Id. at 51. If the sentencing
 decision is procedurally sound, we then consider its substantive
 reasonableness, reviewing for abuse of discretion. See id. Though they are
 not the only consideration, “the Guidelines should be the starting point and
 the initial benchmark” for sentencing. Id. at 49. Bostic argues his sentence
 was both procedurally and substantively unreasonable.
        Procedural error includes “failing to calculate (or improperly
 calculating) the Guidelines range, treating the Guidelines as mandatory,
 failing to consider the § 3553(a) factors, selecting a sentence based on clearly
 erroneous facts, or failing to adequately explain the chosen sentence —
 including an explanation for any deviation from the Guidelines range.” Gall,
 552 U.S. at 51 (referring to 18 U.S.C. § 3553(a)). Bostic argues on appeal that
 the district court did not provide an adequate explanation to “support[] the
 court’s 770 percent upward variance from the high end of the Guidelines
 range.” Bostic’s counsel objected to Bostic’s above-Guidelines sentence as
 procedurally unreasonable: “Specifically, we object to the imposition of this
 sentence of the 3553(a)(2) factor as not considering in the nature and




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                                    No. 19-50591


 circumstances of the offense, the health and use of the decedent in this
 particular case.” The district court responded merely, “Noted,” and then
 ended the sentencing proceedings.
          Considerations of the “nature and circumstances of the offense” fall
 under Section 3553(a)(1), not 3553(a)(2). Bostic’s counsel, though, had
 earlier argued against an above-Guidelines sentence under Section 3553(a)(1)
 and cited the nature and circumstances of the offense. Because of that
 argument, we conclude that Bostic’s objection sufficiently alerted the district
 court to the nature of the alleged error such that it had an opportunity for
 correction. United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009); Fed.
 R. Crim. P. 51(b). We thus review for abuse of discretion. Gall, 552 U.S.
 at 51.
          If a district court imposes a sentence outside the Guidelines range, it
 must state on the record “the specific reason for the imposition of a sentence
 different from that described” in subsection (a)(4). § 3553(c)(2). This
 explanation must “allow for meaningful appellate review and . . . promote the
 perception of fair sentencing.” Gall, 552 U.S. at 50. The district court
 “must consider the extent of the deviation and ensure that the justification is
 sufficiently compelling to support the degree of the variance.” Id. Further,
 “a major departure should be supported by a more significant justification
 than a minor one.” Id. For such a non-Guidelines sentence, a district court
 must more thoroughly articulate fact-specific reasons for its sentence, and
 “[t]he farther a sentence varies from the applicable Guideline sentence, the
 more compelling the justification based on factors in section 3553(a) must
 be.” United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006) (quotation
 marks omitted).
          We have held a district court made a procedural error by not
 adequately explaining the chosen sentence where the only supporting reasons
 were a recitation of the Guidelines calculation, accompanied by a brief




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 colloquy with defense counsel that did not squarely address the defendant’s
 sentencing arguments, and where the district court overruled the
 defendant’s objection without explanation. United States v. Mondragon-
 Santiago, 564 F.3d 357, 363–64, 364 n.5 (5th Cir. 2009).           Inadequate
 explanation can include a mere “passing reference” to the Section 3553(a)
 factors at the sentencing hearing and in the statement of reasons if not
 accompanied by some explanation for the selected sentence or the decision
 to depart from the advisory range. United States v. Chon, 713 F.3d 812, 823–
 24 (5th Cir. 2013).
        The district court here adopted the PSR’s Guidelines calculation,
 which provided a sentence of 21 to 27 months. It concluded, though, that
 this range was “wanting.” It based its explanation on Section 3553(a)(2)(A),
 specifically the seriousness of the offense and AF’s death. Beyond that, the
 district court discussed what Bostic’s sentence might have been if Bostic had
 been charged with distribution of methamphetamine which resulted in death:
 240 months of imprisonment. Without further elaborating, the district court
 sentenced Bostic to 5 months less than 20 years of imprisonment. The
 district court did not address Bostic’s argument regarding the factors under
 Section 3553(a)(1), and it offered no explanation as to why it overruled his
 objection to the chosen sentence.
        The Statement of Reasons form incorrectly indicated that Bostic was
 sentenced within the Guidelines range, and offered no explanation as to the
 district court’s reasoning under Section 3553(a). We are not informed of the
 factors that led the district court to impose its sentence or informed whether
 it took into consideration Bostic’s arguments regarding the Section 3553(a)
 factors. The sentence imposed here was nearly eight times longer than the
 Guidelines range and quite similar to an appropriate sentence for someone
 who was responsible for a death in these circumstances. The district court
 “must consider the extent of the deviation and ensure that the justification is




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 sufficiently compelling to support the degree of the variance,” and “a major
 departure should be supported by a more significant justification than a minor
 one.” Gall, 552 U.S. at 50. Such a sentence requires an explanation
 commensurate in thoroughness. Smith, 440 F.3d at 707. The dramatic
 deviation without commensurate explanation causes us to find more is
 needed.
        With respect, the district court procedurally erred by offering an
 inadequate explanation, which was an abuse of its discretion. There is no
 need for us to address Bostic’s arguments regarding substantive
 unreasonableness.
        We recognize that the district court judge is in a “superior position to
 find facts and judge their import under § 3553(a),” and that the judge “sees
 and hears the evidence, [and] makes credibility determinations.” Gall, 552
 U.S. at 51. Our ruling should not be interpreted as taking a position on
 whether this same sentence could be justified by a more fulsome explanation.
 See United States v. Johnson, 648 F.3d 273, 280 (5th Cir. 2011). The
 substantive reasonableness of any sentence will be reviewed based on a
 thorough record that “allow[s] for meaningful appellate review and . . .
 promote[s] the perception of fair sentencing.” Gall, 552 U.S. at 50.
        VACATED and REMANDED for resentencing.




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 James C. Ho, Circuit Judge, dissenting:
        Corey Reeves Bostic is no ordinary drug dealer. When he saw a 24-
 year-old woman overdosing on heroin, he did not try to help save her life. He
 sold her methamphetamine instead. She died shortly thereafter. And the
 medical examiner later stated the obvious: Although there was no conclusive
 proof of but-for causation, it was likely that the meth contributed to her
 death, along with her taking heroin and her underlying heart condition.
        Bostic pleaded guilty to conspiracy to distribute and distributing
 methamphetamine. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846.
 Congress has imposed a mandatory minimum sentence of 5 years and a
 maximum of 40 years for these offenses. 21 U.S.C. § 841(b)(1)(B). The
 Presentence Report, however, calculated only a 21 to 27 months range under
 the United States Sentencing Guidelines.
        Not surprisingly, the district court found that range “wanting”
 considering the “seriousness of the offense and the death.” So the court
 imposed a significant upward variance, sentencing Bostic to 235 months, or
 roughly half the maximum 40-year prison sentence set by Congress.
        The reason for this significant upward variance seems obvious,
 befitting one of the most horrible fact patterns imaginable under the statute.
 At sentencing, the Government highlighted Bostic’s “depravity that . . . is
 not common to human experience.” As the Government explained, an
 “upward variance is appropriate to say life matters. And when you stand by
 and are part of a system, part of a scene where drug use is rampant and it
 ruins people’s lives and you watch people die without lifting a finger to help
 them, that’s something that we take seriously because we value life.”
        The court agreed with the Government and entered an upward
 variance under 18 U.S.C. § 3553(a) in light of “the devastating facts of this
 case.” I find no procedural defect, warranting vacatur and remand, in what


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 the district court did. See, e.g., United States v. Fraga, 704 F.3d 432, 439 (5th
 Cir. 2013) (“[T]he district court need not engage in robotic incantations that
 each statutory factor has been considered . . . . [T]he sentencing judge heard
 and considered the evidence and arguments . . . and gave [the defendant]
 multiple opportunities to speak and present mitigating evidence.”) (cleaned
 up); United States v. Key, 599 F.3d 469, 474 (5th Cir. 2010) (“[T]here is no
 error when examining the full sentencing record reveals the district court’s
 reasons for the chosen sentence and allows for effective review by this
 court.”) (cleaned up). (To the extent a clerical error exists in the judgment
 form, a limited remand is sufficient to allow the district court to fix the error.
 See Fed. R. Crim. P. 36.)
         That said, I take heart in the majority’s invitation to the district court
 to issue precisely the same sentence on remand. After all, there is nothing
 substantively unreasonable about sentencing Bostic to less than half the
 maximum 40-year prison sentence set by Congress. And “[a]ppellate review
 of the substantive reasonableness of a sentence is highly deferential.” United
 States v. Hoffman, 901 F.3d 523, 554 (5th Cir. 2019) (cleaned up). See also,
 e.g., id. at 565–65 (Dennis, J., concurring in part and dissenting in part)
 (collecting cases upholding upward variances higher than 1214% above-
 Guidelines recommendations). 1
                                              ***
         The 235-month sentence is both procedurally and substantively
 reasonable. I respectfully dissent.


         1
          Additionally, I would review Bostic’s asserted procedural violation for plain error,
 rather than for abuse of discretion. See Puckett v. United States, 556 U.S. 129, 135 (2009).
 The defendant did not object to the alleged procedural defect with sufficient specificity
 before the district court, so the claim is not preserved for appeal. See, e.g., Key, 599 F.3d at
 474. In any event, the district court did not abuse its discretion, for the reasons stated here.




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