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

                                                                            FILED
                                                                           April 12, 2010

                                       No. 09-10205                        Lyle W. Cayce
                                       No. 09-10206                             Clerk


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee
v.

DEXTER D WILLIAMS,

                                    Defendant-Appellant



                  Appeals from the United States District Court
                       for the Northern District of Texas
                            USDC No. 4:08-CR-151-A
                             USDC No. 4:08-CR-57-A


Before GARWOOD, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Appellant Dexter Williams (Williams) appeals from the sentence imposed
upon his conviction for bank robbery and from the sentence revoking his
supervised released for a previous bank robbery. His principal complaint relates
to the sentence received in his latest bank robbery conviction in which the
district court considered facts from his PSR but not included in his charging


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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documents to upwardly depart from the Sentencing Guidelines (“USSG”) based
on prior 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 error in
computing the upward departure in this upward departure guideline sentence,
we vacate the sentence and remand for a new sentencing hearing.
                   FACTUAL AND PROCEDURAL BACKGROUND
      Williams was charged in Texas state court with sexually assaulting the
daughters of his ex-girlfriend in 1996. He was taken into custody in November
1996. In March 1999, he pled guilty to two counts of the lesser offense of
indecency with a child-contact. His sentence amounted to time served, and he
was released from prison without parole or supervision.
      In 2000, Williams was charged in a three-count indictment with bank
robbery. As part of a plea agreement he pled guilty in federal court to one count
of bank robbery and admitted to the facts of the other two counts in exchange for
the Government dismissing the other two counts. He was sentenced to ninety-
six months in prison and three years of supervised release. In May 2007, he was
released from prison and began his supervised release. In the instant case, he
was charged in a one-count federal indictment for bank robbery committed on
August 29, 2008. The Government then moved to revoke his supervised release
for the 2000 bank robbery conviction.
      Due to Williams’s two prior felony convictions in Texas for indecency with
a child-contact, the PSR prepared for the 2008 robbery case recommended that
Williams be considered a career offender for crimes of violence for purposes of §


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4B1.1. Williams objected to the PSR’s determination and in a telephone
conference, the district judge stated that regardless of whether Williams was a
career offender or not, “I can disregard all these things and simply impose a
reasonable sentence that would take into account that [Texas child convictions]
conduct.” The Government noted that under Shepard v. United States, 544 U.S.
13, 26 (2005), the district judge could not consider facts presented in the PSR but
not also contained in the charging documents or admitted by Williams. Later,
the Government acknowledged at sentencing that the convictions could not be
categorized as crimes of violence using only the documents permitted by
Shepard. The court sustained Williams’s objection but stated it was “ludicrous”
that facts outside the charging documents could not be considered and decided
that “those things have to be taken into account” and would result in a
“significant departure above the top of the guidelines range.” Williams’s offense
level was then set at 21 with a criminal history category of V, which resulted in
a guideline range of 70 to 87 months.
       The court imposed a 188-month sentence using § 4A1.3(a)(1) as
justification due to Williams’s criminal history being underrepresented by his
likelihood to commit future crimes. The district court explained that paragraphs
43 and 44 of the PSR swayed his decision.1 These paragraphs described facts
underlying the Texas convictions for indecency with a child not covered by the
charging documents. The court also based its departure on Williams’s additional
uncharged bank robberies in 2000 and 2008. The district court determined that

       1
        As indicated, Williams objected to the consideration of these facts. He not only did not
admit to the facts contained in the PSR relative to his state conviction, but he disputed the
facts.

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Williams would have received a guideline range of imprisonment of 151 to 188
months if he had been classified as a career offender. The court determined that
a range of 151 to 188 months would achieve the objectives described in § 3553(a)
and imposed a 188-month prison term followed by three years of supervised
release. The court arrived at this sentence by putting Williams in the criminal
history category of VI pursuant to § 4A1.3(a)(4)(A) and increased the offense
level by 8 levels for a total of 29 under § 4A1.3(a)(4)(B) resulting in a range of
151 to 188 months. As a condition of supervised release, the court ordered
Williams to participate in sex-offender treatment “until successfully discharged.”
      Next, the district court held a hearing on the Government’s motion to
revoke Williams’s supervised release, which Williams had admitted to as true.
Williams requested the sentence run concurrently because the court had
upwardly departed from the original 70 to 87 month range with the 188-month
sentence. The court found the release conditions to be violated and imposed a
maximum 24-month sentence to run consecutive to the bank robbery sentence.
The sentence was within the range recommended by §§ 7B1.3(f) and 7B1.4(a)
(Policy Statements).
                             STANDARDS OF REVIEW
      In deciding if a district court arrived at an appropriate sentence, we first
determine whether the district court committed any procedural errors, including
an improperly calculated range under the guidelines and a sentence based on
clearly erroneous facts. Gall v. United States, 552 U.S. 38, 51 (2007). The
district court’s interpretation and application of the USSG is reviewed de novo.
United States v. Armstrong, 550 F.3d 382, 404 (5th Cir. 2008); United States v.


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Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006). 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). If the sentence is procedurally
sound, then this Court determines whether the sentence is substantively
reasonable under the factors in 18 U.S.C. § 3553(a). Gall, 552 U.S. at 51.
      This Court recognizes three types of sentences: i) a sentence within the
guidelines range, ii) an upward/downward departure as allowed by the USSG,
and iii) a non-guidelines sentence or variance that is outside the guidelines. See
United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006). Upward departures
that are authorized by the guidelines are considered guideline sentences. See
United States v. Tzep-Mejia, 461 F.3d 522, 525 (5th Cir. 2006).
      We apply a presumption of reasonableness to guideline sentences and
review for abuse of discretion sentences that include an upward or downward
departure as provided for in the guidelines.        United States v. Gutierrez-
Hernandez, 581 F.3d 251, 255 (5th Cir. 2009). 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.
A district court abuses its discretion when it departs for “legally unacceptable
reasons” or when the “degree of the departure is unreasonable.” United States
v. Desselle, 450 F.3d 179, 182 (5th Cir. 2006).




                                  DISCUSSION

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I. District Court’s Upward Departure
      Section 4A1.3(a)(1) authorizes a district court to upwardly depart from the
guidelines range when the defendant’s criminal history category “substantially
underrepresents the seriousness of the defendant’s criminal history or the
likelihood that the defendant will commit other crimes.” The court is also
allowed to move to a higher offense level if the district court finds that the extent
and nature of the defendant’s criminal history warrant a departure beyond
category VI. § 4A1.3(a)(4)(B).
      Here, the district court found that Williams’s criminal history category
substantially underrepresented his likelihood to commit future crimes and
upwardly departed based on a USSG provision. Thus, the decision to depart and
extent of departure is considered a within-guidelines sentence, Tzep-Mejia, 461
F.3d at 525, and is reviewed for abuse of discretion. Zuniga-Peralta, 442 F.3d
at 347.
      A.     Career-Offender Criteria and Section 994
      Williams first contends that United States v. Gomez-Herrera, 523 F.3d 554
(5th Cir. 2008) establishes that only those who meet the career-offender criteria
should receive sentences at or near the statutory maximum. His interpretation
of 28 U.S.C. § 994(h) and § 4B1.1 means that Congress intended to exclude non-
career offenders from receiving similar penalties (sentences at or near the
statutory maximum). However, Williams’s first argument fails. Gomez-Herrera
dealt with a defendant who argued that the district court should be permitted
to consider the sentencing disparities between courts that participated in the
“fast track” disposition program for defendants charged with illegal re-entry and


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those courts, like the one he was in, that did not. Gomez-Herrera, 523 F.3d at
557. We noted that Congress had intended to create a sentencing disparity on
the basis of a whether a district participated in the program; thus, a district
court could not deviate from the USSG because of disparity intended by
Congress. Id. at 563. The fast-track program at issue in Gomez-Herrera is
distinguishable because Congress expressed its intent that certain sentencing
benefits would be given to one class of defendants to the exclusion of another.
See id. at 562-63. Section 994(h) does not suggest that only those who meet the
career-offender criteria should receive such a sentence; thus, non-career-offender
defendants may receive similar sentences.
      B.    Shepard’s Prohibition on Using Facts Outside the Charging
            Document
      Next, Williams argues that the district court considered documents
prohibited by Shepard to depart upwardly and sentence him as a career offender
even though he did not qualify for the career-offender sentencing enhancement.
Shepard prohibits a district court from considering facts not contained in the
charging documents. Shepard, 544 U.S. at 26; United States v. Mohr, 554 F.3d
604, 607 (5th Cir. 2009); see United States v. Garza-Lopez, 410 F.3d 268, 273-74
(5th Cir. 2005) (noting that a district court may not rely on a PSR’s
characterization of an offense to support an enhancement). We recently held in
Guiterrez-Hernandez, that a district court could not circumvent the Shepard rule
by supporting its decision to upwardly depart on facts it was prohibited from
considering when determining whether sentencing enhancements were
warranted. Gutierrez-Hernandez, 581 F.3d at 255. In that case, the district

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court stated that it was prohibited from considering a police report in deciding
whether the defendant’s drug crime qualified for a felony drug-trafficking
enhancement under § 2L1.2, but then relied on the facts in the police report to
conclude that the defendant sold cocaine and justified an upward departure
under § 5K2.0 based on these facts. Id. We determined that procedural error
had occurred because no valid basis to support the upward departure existed.
Id.
      Here, Shepard controlled which documents the district court could
consider for purposes of using Williams’s prior Texas convictions to enhance his
sentence, and the court relied on these prior Texas convictions to depart upward
under § 4A1.3 after finding inadequate bases to support the enhancement. This
occurred after the district court correctly decided that it could not consider
information outside the charging documents to determine if the Texas
convictions constituted crimes of violence, which would qualify him as a career
offender. Moreover, the district court explicitly noted that paragraphs 43 and
44 of the PSR were taken into consideration. These paragraphs contain facts
about the Texas convictions not included in the charging document. Finally, the
district court justified Williams’s greater risk to the community “based on those
things [bank robberies and indecency convictions] mentioned” in the PSR. The
Government correctly points out that Williams’s criminal history of four felony
convictions (the two Texas convictions and the two bank robberies), a
misdemeanor and admitting to four additional bank robberies, supports an
upward departure or a non-Guideline sentence. These bank robberies included
notes that threatened violence to the bank tellers and were committed within a


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short time after his release from prison. However, as previously mentioned, a
look at the whole record shows the district court focused on the indecency
convictions,2 as well as the bank robberies, to upwardly depart as a justification
for its guideline sentence. Because the district court computed the upward
departure by considering facts prohibited by Shepard and this Court’s
subsequent rulings,3 it committed procedural error requiring new sentencing
proceedings.
II. The Consecutive Sentence for Violation of Supervised Release
       Williams’s final argument asks this Court to review the district court’s
decision to impose a 24-month prison term to run consecutively, not
concurrently, to his prison term for the bank robbery conviction. The purpose
of a sentence imposed for violating the terms of supervised release is to punish
the defendant for his breach of trust, and not for any criminal offense resulting
in the revocation of his release. See United States v. Payan, 992 F.2d 1387, 1296-
97 (5th Cir. 1993); U.S. Sentencing Guidelines Manual ch. 7, pt. A(3)(b),
introductory cmt. (2009). The USSG recognizes that the sanction for violation



       2
          Notably, (1) the court expressed its displeasure that it could not consider information
outside the charging documents to impose career-offender enhancements throughout the
proceedings, (2) it found it “too risky” to impose the career enhancements under § 4B1.1, (3)
it then imposed the same guideline sentence as a career offender only using § 4A1.3 as
justification, (4) it repeatedly expressed its intent to consider all available information and to
impose a significant upward departure, and (5) the court made reference to the prohibited
findings in the PSR’s detailed description of the charges.
       3
        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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of trust should be consecutive (in addition) to the sentence imposed on the basis
of the defendant’s new criminal conduct. See U.S. Sentencing Guidelines
Manual ch. 7, pt. A(3)(b); id. § 7B1.3(f) (requiring that a prison term imposed
pursuant to a supervised release violation “shall be ordered to be served
consecutively to any sentence of imprisonment that the defendant is serving”);
see also United States. v. Zamora-Vallejo, 470 F.3d 592, 596 n.6 (5th Cir. 2006)
(noting that while conduct which results in revocation of a supervised release
might constitute a new criminal offense, that conduct is not being punished
twice if the defendant receives two sentences). Here, Williams received a
sentence for his 2008 bank robbery conviction and a sentence for “breach of
trust” by violating the terms of his supervised release for his 2000 bank robbery
conviction. The 24-month sentence for the supervised-released violation, while
the maximum recommended, is still within the range recommended by the
guideline policy statements. Because the district court followed the policy
mandates of § 7B1.3(f), it did not err for imposing a consecutive sentence for
Williams’s supervised-release violation.
      The district court committed procedural error when computing the upward
departure, guideline sentence. Accordingly, the sentence imposed for the later
conviction in appeal number 09-10206 is VACATED, and we REMAND for
resentencing consistent with the opinion. We find no error in the district court’s
decision to impose a consecutive sentence for Williams’s supervised-release
violation. Accordingly, the sentence imposed in the revocation hearing in appeal
number 09-10205 is AFFIRMED.




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