     Case: 09-30296 Document: 00511403190 Page: 1 Date Filed: 03/07/2011




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

                                                 FILED
                                                                            March 7, 2011

                                       No. 09-30296                         Lyle W. Cayce
                                                                                 Clerk

                           UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee
                                              v.

                             DANIEL TRAVIS PHILLIPS

                                                   Defendant-Appellant




                   Appeals from the United States District Court
                       for the Western District of Louisiana
                             USDC Nos. 2:08-CR-108-1


Before KING, DAVIS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Defendant-appellant Daniel Travis Phillips appeals his sentence
contending that the district court erred by imposing a procedurally and
substantively unreasonable sentence. We vacate and remand for resentencing.
                                              I.
       Phillips pled guilty to three counts of transmitting threatening
communications in interstate commerce and one count of unauthorized
possession of 15 or more access devices with the intent to defraud. Using the

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-30296

2008 version of the Sentencing Guidelines, the presentence report (PSR)
assigned a base offense level of 12 and a combined offense level of 17. Phillips
received a 3-level reduction for acceptance of responsibility, resulting in a total
offense level of 14, and he was placed in criminal history Category VI, resulting
in a Guidelines range of 37-46 months. The PSR noted that a departure may be
warranted under § 4A1.3(a)(1) because Phillips’s criminal history was
substantially under-represented. In such case, the PSR instructed the court to
move incrementally down the sentencing table to the next higher offense level
until it found one appropriate to the case. No objections to the PSR were filed.
      At the sentencing hearing, Phillips was sentenced to serve concurrent
terms of 46 months on each count of transmitting threatening communications
and to serve a consecutive term of 46 months for the unlawful possession count,
resulting in a total sentence of 92 months with three years of supervised release.
In explaining the sentence, the district judge stated that she had “considered the
factors contained in 18 U.S.C. § 3553 and the Sentencing Guidelines.” Phillips
did not object at sentencing, and the district court provided a written Statement
of Reasons (SOR) later that day. This appeal followed.
                                         II.
      We generally review the district court’s interpretation of the Guidelines
de novo and its factual findings for clear error. United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). However, we review for plain error
when the appellant, like Philips, fails to raise his procedural objection in district
court. United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009).
Under plain error review, Phillips must show a forfeited error that is clear and
obvious and affects his substantial rights. Puckett v. United States, 129 S.Ct.
1423, 1429 (2009). To show the error affected his substantial rights, Phillips
must demonstrate a reasonable probability that he would have received a lesser
sentence but for the error. United Stated v. Davis, 602 F.3d 643, 647 (5th Cir.

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2010). “Even when these elements are met, we have discretion to correct the
forfeited error only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings.”    Mondragon-Santiago, 564 F.3d at 361
(internal citation and quotation marks omitted).
                                       III.
      Pursuant to Gall v. United States, 552 U.S. 38, 49-51 (2007), this court
engages in a bifurcated review of sentences issued by the district courts. United
States v. Delgado-Martinez, 563 F.3d 750, 752 (5th Cir. 2009). First, we consider
whether the district court committed a “significant procedural error.” Id. We
generally need only proceed to the second step–reviewing the sentence’s
substantive reasonableness–if the procedure was sound. See id. at 752-53.
      Phillips argues that his sentence is procedurally unreasonable because the
district court failed to adequately explain his 92-month sentence, which was
twice the top of the Guidelines advisory range. A sentencing court must state
the “reasons for its imposition of [a] particular sentence.” 18 U.S.C. § 3553(c).
Failure to adequately explain a sentence, particularly any deviation from the
Guidelines range, is a significant procedural error. Gall, 552 U.S. at 51. The
district court must carefully articulate fact-specific reasons consistent with the
§ 3553(a) factors in issuing a non-Guidelines sentence. United States v. Mares,
402 F.3d 511, 519 (5th Cir. 2005).
      In sentencing Phillips, the district court judge cited her consideration of
the Guidelines and the sentencing factors of § 3553(a), but she did not review the
Guidelines calculation or discuss whether the sentence imposed was within the
recommended range. More to the point, she gave no reasons for the upward
departure which doubled the Guidelines maximum. In the written SOR, the
court adopted the PSR without change and stated that it imposed an upward
departure as authorized by the Guidelines under U.S.S.G. § 4A1.3 based on
under representation of Phillips’s criminal history. The court further stated

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that, based on this upward departure, Phillips's offense level was 17, resulting
in a Guidelines range of 51-63 months. Thus, Phillips’s 92-month sentence was
substantially above even the Guidelines range for an offense level of 17.
       The Government argues that this was a typographical error and that the
SOR sufficiently explained the court’s reasoning.1 Contrary to the Government's
argument, the SOR provides absolutely no explanation for the sentence that
Phillips actually received. The court selected an offense level that carried a
Guidelines range of 51-63 months. It is impossible to determine from the record
whether the adjusted Guidelines range is a typographical error or the court
wished to impose a sentence within the range of 51-63 months. Thus, the court
plainly erred in failing to articulate reasons for the 92-month sentence, which
was well above the Guidelines range it selected. See Mondragon-Santiago, 564
F.3d at 364.
       The Government further contends that even if the court plainly erred by
failing to provide reasons, Phillips cannot show that his substantial rights have
been affected because there is no indication he would have received a lesser
sentence. However, there is a reasonable probability that Phillips's substantial
rights have been affected because the court may have wished to impose a
sentence within the range of 51-63 months rather than the 92-month sentence
imposed.
       Our analysis of whether a sentencing error seriously affects the fairness,
integrity, or public reputation of the judicial system is conducted on a case-
specific and fact-intensive basis. United States v. John, 597 F.3d 263, 287 (5th
Cir. 2010). The sentence imposed here is significantly outside the Guidelines



       1
         See United States v. Gore, 298 F.3d 322, 325-26 (5th Cir. 2002) (Although the district
judge did not articulate any reasons for upward departure in open court, there was no plain
error because the written statement of reasons relied on the PSR–which considered an upward
departure based on a Guidelines provision–thus allowing for effective appellate review.).

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range as explained by both the PSR and the SOR.          The above-Guidelines
sentence lacks “the accompanying justification from the district court that the
Supreme Court has recognized is necessary to promote the perception of fair
sentencing” and to allow for meaningful appellate review. Id. at 287 (internal
quotation and citation omitted). Therefore, we conclude that this is a case in
which we shall exercise our discretion to remand for resentencing to promote
the perception of fairness in sentencing.
                                      IV.
      Accordingly, we VACATE Phillips's sentence and REMAND for
resentencing to give the district court an opportunity to clearly articulate the
reasons for imposing any above-Guidelines sentence it may impose.
      VACATED and REMANDED.




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