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

                                                                            FILED
                                                                           June 20, 2008

                                     No. 06-30996                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

PEARLIE WARFIELD

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                           USDC No. 6:04-CR-60060-3


 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before DeMOSS, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
       This case is before us on remand from the United States Supreme Court,
which vacated our judgment in United States v. Warfield, 225 F. App’x 241 (5th
Cir. 2007), and remanded the case for further consideration in light of the
Court’s decision in Gall v. United States, 128 S. Ct. 586 (2007). See Warfield v.
United States, 128 S. Ct. 864 (2008).

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                   No. 06-30996

      In the United States District Court for the Western District of Louisiana,
Defendant-Appellant Pearlie Warfield (“Warfield”) pleaded guilty to conspiracy
to commit health care fraud, in violation of 18 U.S.C. § 371. In connection with
her sentencing, Warfield urged the district court to consider her age, health,
family responsibilities, and limited role in the offense as factors warranting a
sentence below the Guidelines range. The district court declined to consider
those factors in imposing sentence, finding that it was bound by this court’s
decision in United States v. Guidry, 462 F.3d 373 (5th Cir. 2006).
      In Guidry, we vacated a non-Guidelines sentence in part because the
sentencing court took into account the defendant’s family circumstances without
giving weight to the policy statement in United States Sentencing Guidelines
Manual § 5H1.6, which states that “family ties and responsibilities are not
ordinarily relevant in determining whether a departure may be warranted.”
Guidry, 462 F.3d at 377.        We found that the sentencing court erred in
considering the defendant’s family ties as a factor without addressing whether
those family ties were “extraordinary.” Id. at 377-78. The district court below
interpreted our opinion in Guidry to mean that it could not consider Warfield’s
age, health, family conditions, or role in the offense unless it found those factors
“extraordinary,” noting that policy statements similar to the one at issue in
Guidry exist for most or all of those factors. Because it did not find the factors
extraordinary with respect to Warfield, it imposed a sentence of fifteen months.1
However, the district court repeatedly stated that its sentence would have been
different had it not been constrained by Guidry, such that it could have
considered those factors. It also expressed hope that the Fifth Circuit or the
Supreme Court would find either that the district court’s reading of Guidry was


      1
         The fifteen-month sentence represented a downward departure from the low-end
Guidelines range of thirty months; it took into account the Government’s motion for an
assistance-related downward departure. See U.S. SENTENCING GUIDELINE MANUAL § 5K1.1

                                          2
                                  No. 06-30996
too broad or that the Fifth Circuit’s standards as expressed in Guidry were
erroneous. Warfield appealed, and this court affirmed Warfield’s sentence, again
relying on Guidry. Warfield, 225 F. App’x at 242. The Supreme Court granted
Warfield’s petition for writ of certiorari, vacated this court’s judgment, and
remanded the case to this court for further consideration in light of its decision
in Gall. Warfield, 128 S. Ct. 864.
      In their supplemental briefs, both parties agree that this case should be
remanded for resentencing in light of Gall.       In Gall, the Supreme Court
expressly rejected “an appellate rule that requires ‘extraordinary’ circumstances
to justify a sentence outside the Guidelines range.” 128 S. Ct. at 595. It
emphasized that a district judge must make an individualized assessment based
on the facts presented and the sentencing factors listed in 18 U.S.C. § 3553(a).
Gall, 128 S. Ct. at 596-97. If the district court decides an outside-Guidelines
sentence is warranted, it should “consider the extent of the deviation and ensure
that the justification is sufficiently compelling to support the degree of the
variance.” Id. at 597. Thus, Gall overruled Guidry to the extent that Guidry
required a court to find that certain factors were extraordinary with respect to
the defendant before deviating from the Guidelines range, instead of merely
making an individualized assessment in light of all of the § 3553(a) sentencing
factors. Because the district court relied on Guidry, we agree with the parties
that remand to the district court for resentencing in this case is appropriate. On
remand, the district court should consider whether Warfield’s age, health, family
responsibilities, and role in the offense are factors that warrant an additional
variance from the Guidelines range.
      In conclusion, we VACATE the sentence of the district court and REMAND
for resentencing consistent with this opinion and with Gall.
      VACATED and REMANDED.



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