                                                                                 United States Court of Appeals

                                                                                           Fifth Circuit

                                                  In the
                                                                                        F I L E D
                         United States Court of Appeals                                   June 19, 2006
                                       for the Fifth Circuit
                                            _______________

                                               m 04-41228                            Charles R. Fulbruge III
                                            Summary Calendar                                 Clerk
                                             ______________




                                   UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                                 VERSUS

                                            JIMMY TAYLOR,

                                                               Defendant-Appellant.



                                     _________________________

                             Appeal from the United States District Court
                                  for the Eastern District of Texas
                                       m 2:03-CR-19-TJW-18
                                   _________________________



Before SMITH, GARZA, and PRADO,                            Jimmy Taylor appeals his sentence for drug
  Circuit Judges.                                      possession and distribution and illegal use of a
                                                       firearm, alleging error under United States v.
PER CURIAM:*                                           Booker, 543 U.S. 220 (2005), and challenging
                                                       the denial of his motion for a downward de-
                                                       parture. Because the record reveals that the
                                                       judge would have imposed a lesser sentence
   *
    Pursuant to 5TH CIR. R. 47.5, the court has de-    under an advisory guidelines system, we va-
termined that this opinion should not be published     cate and remand for resentencing.
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.
                         I.                              doesn’t get us anywhere that I can see, be-
    Taylor pleaded guilty of possession with in-         cause he had a prior drug conviction, and I
tent to distribute and distribution of less than         don’t believe I can do anything about that,
five grams of cocaine base, in violation of 21           and I’m not inclined to do anything about
U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and                it. And, you know, one of these assault
using and carrying a firearm during and in re-           charges, he was under a court order, he vi-
lation to a drug trafficking offense, in violation       olated the court’s order, criminal trespass,
of 18 U.S.C. § 924(c)(1).1 The PSR assigned              and then he had the assault. He didn’t get
a base offense level of 34 under U.S.S.G.                any points for that [sic] violating the court
§ 2D1.1, with a three-level downward depar-              order and it’s just sort of hard for me to
ture for acceptance of responsibility. The PSR           say, wellSSmy problem is I would have to
further determined that Taylor’s prior offenses,         disregard three points, and I can’t find any
which included two misdemeanor assaults and              three pointsSSI can’t find an additional two
one count of indecent exposure, merited six              that this court feels like that would be ap-
criminal history points, with a resulting crimi-         propriate. I will disregard the indecent ex-
nal history category of III, yielding a guideline        posure, but it’s still a Category III.
range of 135 to 168 months’ imprisonment on
the drug trafficking offense and 60 months on            DEFENSE ATTORNEY: And me and Mr.
the firearms offense.                                    Taylor discussed that possibility, but we
                                                         thought that it would be better to go ahead
    Taylor filed a motion for downward depar-            and try than not.
ture under U.S.S.G. § 4A1.3, which permits
the court to assign a lower criminal history             THE COURT: Oh, I understand. I
category where the defendant’s current cate-             thinkSS the Court considered your request,
gory“substantially over-represents the serious-          it is a long sentence. But ISSunless the
ness of the defendant’s criminal history or the          Government wants to stipulate to some-
likelihood that the defendant will commit other          thing, I don’t think there’s much I can do.
crimes.” The following exchange ensued:                  []

   THE COURT: Well, I read your motion                   GOVERNMENT ATTORNEY: []Your
   pretty carefully, [counsel]. The Court                Honor, I agree with the Court’s assess-
   wouldn’t have a problem with dropping the             ment, and certainly agree with the proba-
   one point on indecent exposure, but that              tion officer’s response which the Court has
                                                         pointed out that disregarding that point
                                                         doesn’t make any difference. I justSSas the
   1
                                                         Court and Counsel is well aware, these
      Taylor’s plea agreement contained an appel-
                                                         guidelines in drug cases, what a person’s
late-waiver provision in which he agreed to waive
the right to review of the substance, procedure or
                                                         sentence is determined by two things: The
form of his conviction, except for sentencing            quantity of drugs and the category of the
guidelines determinations. Because, however, the         criminal history points. And this is essen-
government does not seek to enforce the provision,       tially etched in stone, Your Honor, and I
we proceed to consider Taylor’s appeal on the            don’t think aSS
merits. See United States v. Story, 439 F.3d 226,
230-31 (5th Cir. 2006).

                                                     2
   THE COURT: Well, that’s what ISSabsent               405 F.3d 310, 317 (5th Cir.), cert. denied, 126
   a stipulation from the Government that they          S. Ct. 264 (2005). He must point to state-
   are willing to stipulate a departure down to         ments made by the sentencing judge that in-
   Category II, which would get us closer to            dicate he would have provided a lower sen-
   the 15 years total.                                  tence if not bound by the guidelines. See Unit-
                                                        ed States v. Rodriguez-Gutierrez, 428 F.3d
The government declined to stipulate, and the           201, 203-04 (5th Cir. 2005), cert. denied, 126
court sentenced Taylor to the lowest possible           S. Ct. 1383 (2006). We may also consider
guidelines sentence, i.e., 135 months for the           whether the sentence falls at the minimum,
drug charges, concurrently with 60 months for           maximum, or in the middle of the applicable
the firearms charge.                                    guidelines range. See id. at 204-06.

                       II.                                  Taylor has met his burden. The sentencing
   Because Taylor did not preserve his Sixth            judge stated on two occasions that he did not
Amendment claim, we review for plain error.             think he could do anything to lighten Taylor’s
See United States v. Mares, 402 F.3d 511, 512           sentence. He appeared to agree with the
(5th Cir.), cert. denied, 126 S. Ct. 43 (2005).         government’s assertion that the guidelines for
Under plain error review, there must be                 drug cases are “essentially etched in stone.”
(1) error, (2) that was plain and (3) affected          He noted that the guidelines provide for a long
substantial rights. See id. at 520. Further-            sentence, and he invited the government to
more, we will reverse only where the error              stipulate to a downward departure to a crimi-
would “seriouslyaffect[] the fairness, integrity,       nal history category of IISSwhich he indicated
or public reputation of judicial proceedings.”          would have allowed him to sentence Taylor to
Id. (quoting United States v. Cotton, 535 U.S.          around 180 months (i.e., 15 years) instead of
625, 631 (2002)). This last prong is satisfied          the 195 months ultimately imposed.
where the defendant would have received a
lesser sentence than the district court errone-            True, the judge also said that he was not
ously felt compelled to impose.2                        “inclined” to alter Taylor’s sentence and that
                                                        he did not find it “appropriate” for the court to
   A sentence imposed under a mandatory                 deduct two additional criminal history points.
guidelines regime constitutes error that is             He further noted that Taylor could have, but
plain. See id. at 520-21. To affect substantial         did not, receive points for violating a court
rights, however, an error “must have affected           order for criminal trespass. These statements,
the outcome of the district court proceedings.”         however, related to the judge’s opinion of the
Id. at 521 (quoting United States v. Olano,             proper application of the guidelines, not
507 U.S. 725, 734 (5th Cir. 1993)). The de-             whether he would have imposed a lighter sen-
fendant bears the burden of “demonstrating a            tence had he not felt bound by them. The
probability sufficient to undermine confidence          commentary to § 4A1.3 contemplates down-
in the outcome.” United States v. Bringier,             ward departure only for minor past offenses:

                                                           A downward departure from the defen-
   2
     See United States v. Pennell, 409 F.3d 240,           dant’s criminal history category may be
246 (5th Cir. 2005) (citing United States v. Gra-          warranted if, for example, the defendant
cia-Cantu, 302 F.3d 308, 313 (5th Cir. 2002)).

                                                    3
   had two minor misdemeanor convictions                     Our conclusion finds support in the fact that
   close to ten years prior to the instant of-           the court ultimately sentenced Taylor to the
   fense and no other evidence of prior crimi-           absolute minimum of the range. “[S]entences
   nal behavior in the intervening period.               falling at the absolute minimum of the Guide-
                                                         lines provide the strongest support for the
U.S.S.G. § 4A1.3 cmt. n.3.                               argument that the judge would have imposed
                                                         a lesser sentence.” Rodriguez-Gutierrez, 428
   Taylor’s misdemeanor assaults occurred in             F.3d at 205. Though a minimum sentence
1995 and 1996, respectively, only six years be-          alone might be insufficient to establish that
fore the events underlying the instant offense           substantial rights were affected, see Bringier,
in 2002. Also, Taylor was convicted of pos-              405 F.3d at 318, in this context the sentence
session of a controlled substance in the in-             lends credence to our conclusion, based on
tervening period between his misdemeanor                 record testimony, that the judge (a) felt con-
convictions and the present offense. Finally,            strained faithfully apply the guidelines faith-
because he served over 13 months on the drug             fully and (b) attempted to achieve indirectly,
charge, he merited the addition of three crimi-          through government stipulation, what he felt
nal history points under U.S.S.G. § 4A1.1(a).            he could not do directly through guidelines
Therefore, the district court did not believe it         application; i.e., lower the sentence.
could remain faithful to the guidelines if it
forgave the previous assaults or the prior drug             Taylor does not need to prove to a moral
offense.                                                 certitude that he would have received a lighter
                                                         sentence under an advisory regime. Rather, he
    But, merely because a judge strives to cal-          need only raise a “probability sufficient to un-
culate the guidelines range properly does not            dermine confidence in the outcome.” Bring-
mean that he agrees that a given sentence                ier, 405 F.3d at 317. The fact that the court
within that range is proportionate to the of-            indicated it felt powerless to lower the sen-
fense. A judge may attempt to promote parity             tence, and invited a stipulation that would have
among defendants by setting the bar at the               reduced Taylor’s sentence by about 15 months
same level for all of them, even if he thinks as         if accepted, suffices to meet this burden.
an initial matter that the bar was set too high.         Therefore, resentencing is appropriate.4
In short, it is possible for a judge to believe he
is fairly applying the guidelines without believ-
                                                            4
ing that application of the guidelines is fair.3              Resentencing is also consistent with previous
                                                         cases in which we have found Booker error. See
                                                         Pennell, 409 F.3d at 245-46 (finding substantial
                                                         rights affected where judge sentenced at the low
                                                         end of the guidelines range and stated he might
   3
     See, e.g., Rodriguez-Gutierrez, 428 F.3d at         impose a lower sentence in the interest of “fairness
205-06 (stating that “a judge could consider one         and justice” if not “constrained” by the guidelines);
defendant a more serious offender than another de-       United States v. Garcia, 416 F.3d 440, 441 (5th
fendant and thus sentence the former to a higher         Cir. 2005) (finding substantial rights affected
sentence within the range, even while considering        where judge imposed low-end sentence and stated
the entire range to be too high”) (citing United         that he would have sentenced lower if not for
States v. Paladino, 401 F.3d 471, 482 (7th Cir.          guidelines). Cf. Bringier, 405 F.3d at 317-18
2005)).                                                                                         (continued...)

                                                     4
   Taylor also argues that the court erred in
denying his motion for a downward departure
under U.S.S.G. § 4A1.3. Even after Booker,
we review de novo a district court’s interpreta-
tion and application of the guidelines. See
United States v. Villegas, 404 F.3d 355, 359
(5th Cir. 2005). We have jurisdiction to re-
view a refusal to depart downward “only if the
district court based its decision upon an erro-
neous belief that it lacked the authority to de-
part.” United States v. Landerman, 167 F.3d
895, 899 (5th Cir. 1999). There is no evi-
dence that the court thought it lacked that au-
thority; it merely declined to exercise that au-
thority, consistent with the commentary to
§ 4A1.3 and the instructions of § 4A1.1(a).
As explained above, there was no error in the
court’s application of the guidelines, but only
in its misapprehension that it was bound to
apply them, and refrain from issuing a milder
sentence, absent government stipulation.

  The sentence is VACATED and the matter
REMANDED for resentencing.




   4
    (...continued)
(finding low-end sentence insufficient where
defendant provided no record evidence that the
judge had felt compelled by the guidelines).

                                                   5
