     Case: 18-20774      Document: 00515187220         Page: 1    Date Filed: 11/05/2019




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

                                      No. 18-20774
                                                                              Fifth Circuit

                                                                            FILED
                                                                     November 5, 2019

UNITED STATES OF AMERICA,                                              Lyle W. Cayce
                                                                            Clerk
              Plaintiff - Appellee

v.

MICHAEL LEE WILLIAMS,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:18-CR-133-1


Before STEWART, CLEMENT, and HO, Circuit Judges.
PER CURIAM:*
       Michael Lee Williams appeals the 90-day prison sentence imposed
following his guilty plea conviction for theft of mail by a postal employee. He
challenges the procedural and substantive reasonableness of his within-
Guidelines sentence, arguing that the district court abused its discretion by
not adequately explaining the reasons for the sentence and relying on
unproven criminal conduct during sentencing. Because the record indicates


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-20774
that the district court did not explain its reasons for the sentence as required
under 18 U.S.C. § 3553(c), we vacate the district court’s sentence and remand
for re-sentencing.
                                       I
      Williams pleaded guilty to one count of theft of mail by a postal
employee, in violation of 18 U.S.C. § 1709. The presentence investigation
report (PSR) indicated that the U.S. Postal Service Office of the Inspector
General (OIG) opened an investigation after receiving a complaint that a postal
customer had not received a gift card that had been mailed to him. The
investigation revealed that the gift card had been used, and video surveillance
footage from the vendor showed Williams using the gift card. The OIG then
initiated a sting operation, which involved placing a test package in Williams’s
post office to catch Williams in the act of stealing. The operation resulted in
agents arresting Williams while he possessed the sting package and another
stolen mail parcel, a greeting card containing cash.       The PSR correctly
calculated an advisory Guidelines range of 0 to 6 months imprisonment but
also noted that a non-custodial sentence of probation was available to
Williams.
      At the sentencing hearing, the government and probation officer
recommended that Williams be sentenced to probation. Williams apologized
to the court, admitted the wrongfulness of his actions, and promised that it
would not happen again. The district court asked Williams what he did with
mail that did not contain “good stuff, like gift cards and cash and things.”
Williams responded, “I delivered all the mail. This was the only time that I
did what I did, and it was a big mistake. I always delivered all my mail on time
to everybody.” The district court challenged him with the two additional thefts


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                                 No. 18-20774
listed in the PSR, and then said, “There’s no way to go back and figure out how
much mail you did not deliver, whether it had gift cards or not.”
      After Williams spoke to the court about mitigating factors supporting a
downward variance including his poor health and successful bond, the district
court—without any explanation—imposed a 90-day term of imprisonment and
one year of supervised release. Williams’s counsel immediately objected that
the sentence was procedurally unreasonable, arguing that the court did not
explain its reasoning and relied on unproven mail thefts during sentencing.
The district court responded, “It’s a guideline sentence. I don’t have to give a
reason for a guideline sentence.” Williams appeals to this court.
                                       II
      This court reviews federal sentences for reasonableness under an abuse-
of-discretion standard. Gall v. United States, 552 U.S. 38, 46 (2007). The
reasonableness inquiry is conducted in two parts: procedural and substantive.
United States v. Rhine, 637 F.3d 525, 527 (5th Cir. 2011).
      This court must first determine whether the district court committed a
significant procedural error. Gall, 552 U.S. at 51. Significant procedural
errors include “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.” Id. Williams argues that the district
court committed a procedural error by failing to adequately explain the chosen
sentence and by basing the sentence on clearly erroneous facts.
      Regarding the lack of an adequate explanation argument, the district
court is required at sentencing to “state in open court the reasons for its
imposition of the particular sentence.” 18 U.S.C. § 3553(c). A sentencing
court’s explanation “allow[s] for meaningful appellate review and . . .
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                                 No. 18-20774
promote[s] the perception of fair sentencing.” Gall, 552 U.S. at 50. A sentence
within the Guidelines requires “little explanation.” United States v. Mares,
402 F.3d 511, 519 (5th Cir. 2005). “However, if the defendant . . . presents
nonfrivolous reasons for imposing a different sentence . . . the judge will
normally go further and explain why he has rejected those arguments.” Rita
v. United States, 551 U.S. 338, 357 (2007). We have previously held that a
district court commits procedural error when it fails to explain its sentencing
decision even though the sentence was within the Guidelines. See United
States v. Mondragon-Santiago, 564 F.3d 357, 362–64 (5th Cir. 2009); United
States v. Tisdale, 264 F. App’x. 403, 412 (5th Cir. 2008).
      Here, the district court received recommendations from the government
and the probation officer for a sentence of probation only and heard
nonfrivolous arguments from Williams and defense counsel in support of a
downward variance.     The district court issued a higher within-Guidelines
sentence than recommended by the government and probation officer. The
district court offered no explanation for the sentence, and even affirmatively
stated that it was not required to provide an explanation. The failure to
provide any explanation as to the reasons for the sentence, especially when the
defendant provided legitimate reasons for a downward variance, is a
significant procedural error and an abuse of discretion.         See Mondragon-
Santiago, 564 F.3d at 363–64.
      When a reviewing court determines that the district court committed a
significant procedural error, the court “must remand unless the proponent of
the sentence establishes that the error ‘did not affect the district court’s
selection of the sentence imposed.’” United States v. Delgado-Martinez, 564
F.3d 750, 753 (5th Cir. 2009) (quoting Williams v. United States, 503 U.S. 193,
203 (1992)). In this instance, the burden is on the government to show that
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                                  No. 18-20774
the error was harmless, but the government does not present any argument
supporting harmlessness. Therefore, this court must vacate the sentence and
remand back to the district court for re-sentencing.
      Because the district court failed to give any explanation for the sentence,
it is impossible for this court to determine whether the district court considered
speculative, unproven thefts during sentencing that would constitute an
additional procedural error. Additionally, because the district court committed
reversible procedural error, this court does not reach the substantive error
inquiry.
      For the above reasons, we vacate the sentence and remand for re-
sentencing.




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