                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                         REVISED JULY 5, 2006
                                                              June 5, 2006
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT         Charles R. Fulbruge III
                                                            Clerk


                             No. 05-20427



     UNITED STATES OF AMERICA

                       Plaintiff - Appellant

     v.

     HORACIO ARMENDARIZ

                       Defendant - Appellee



          Appeal from the United States District Court
               for the Southern District of Texas


Before KING, BARKSDALE and DENNIS, Circuit Judges.

KING, Circuit Judge:

     The government appeals the five-year prison sentence of

Horacio Armendariz, who pleaded guilty to the offense of use of

the Internet to attempt to entice a minor between twelve and

fifteen years of age to engage in sexual activity that would

constitute an Aggravated Sexual Assault crime under TEX. PENAL CODE

ANN. § 22.021, in violation of 18 U.S.C. § 2422(b).

Specifically, the government argues that the district court’s

failure to impose supervised release was unreasonable.       For the

following reasons, we VACATE Armendariz’s sentence and REMAND to

the district court for resentencing.
               I. FACTUAL AND PROCEDURAL BACKGROUND

A.   The Offense

     On November 7, 2004, thirty-eight-year-old defendant-

appellee Horacio Armendariz visited the Yahoo “Lil Boys for Older

Men” Internet chat room and began an online conversation with a

person whom he believed to be a thirteen-year-old boy named Toby.

“Toby” was in fact a female undercover law enforcement officer

pretending to be an underage boy.     Following their initial

interaction, Armendariz contacted Toby via the Internet on

November 8, 9, 10, 11, 15, 16, 17, and 18.     During these online

chats, Armendariz described sexual encounters that he would like

to have with Toby, expressing his desire to teach Toby how to “do

it in a bed,” perform oral and anal sex on him, and take a shower

with him.   He also told Toby that he would teach him how to

perform oral sex and how to do other things of a sexual nature.

Armendariz and Toby also exchanged phone numbers, and on November

10, Armendariz called Toby on the telephone, still believing that

the officer who spoke with him was a thirteen-year-old boy.

During that conversation, Armendariz told Toby that he would like

to meet him in person for sex, but acknowledged that it was

illegal for him to “go out” with someone who was underage.      In

subsequent Internet conversations with Toby, Armendariz admitted

that he had masturbated after they had talked on the phone, and

began planning to travel from Marshall, Texas, to Houston, Texas,


                                -2-
for the purpose of having a sexual encounter with the boy.

     Although Armendariz had originally planned to travel to

Houston to meet Toby on November 12, Armendariz had to cancel

because of his work schedule.   They agreed to meet instead on

Friday, November 19, when Armendariz said that he could take the

entire weekend off of work to spend with Toby.   Armendariz booked

a Houston hotel room for that weekend in advance and encouraged

Toby to fabricate a story to explain his whereabouts to his

mother.   They arranged to meet that Friday at 3:30 p.m. in a

parking lot near Toby’s school where Armendariz said that he

would be waiting for him in a red car.

     On November 19, 2004, Houston law enforcement officials

arrested Armendariz in the parking lot where he and the

undercover officer posing as Toby had agreed to meet.    Armendariz

admitted that he knew that Toby was thirteen years old and that,

even though he knew it was wrong, he had traveled to Houston to

meet Toby because he was lonely.   Armendariz also admitted that

he believed that Toby was expecting to have sex with him that

weekend, but Armendariz denied that he was expecting the same.

However, when the police performed a consent search of

Armendariz’s single-bed hotel room, they found a pack of condoms,

lubricant, and two enemas.

     Law enforcement officials also searched Armendariz’s

computer and found that he had corresponded with at least four to

five other males ranging in age from sixteen to twenty-three, but

                                -3-
found no evidence that he attempted to have, or succeeded in

having, sex with a minor other than Toby.   The officers found no

child pornography on Armendariz’s computer or in his possession.

Prior to this arrest, Armendariz had a steady history of gainful

employment and had no convictions or criminal history of any

kind.

     On December 13, 2004, a federal grand jury indicted

Armendariz on one count of use of the Internet to attempt to

entice a minor between twelve and fifteen years of age to engage

in sexual activity that would constitute an Aggravated Sexual

Assault crime under TEX. PENAL CODE ANN. § 22.021, in violation of

18 U.S.C. § 2422(b).   On January 10, 2005, Armendariz pleaded

guilty to the indictment without a plea agreement.

B.   The Sentencing

     A conviction under 18 U.S.C. § 2422(b) carries with it a

sixty-month mandatory minimum prison sentence, which applies even

in situations where the United States Sentencing Guidelines

(“U.S.S.G.” or “the Guidelines”) indicate that a shorter prison

term might be appropriate.   See id.   Although 18 U.S.C. § 2422(b)

does not prescribe a statutory minimum term of supervised

release, 18 U.S.C. § 3583(b) and (k) provides that the penalty

for the offense, a crime involving a minor victim, may include

supervised release for “any term of years or life.”    Further,

§ 5D1.1(a) of the Guidelines states that “[t]he court shall order



                                -4-
a term of supervised release to follow imprisonment when a

sentence of imprisonment of more than one year is imposed, or

when required by statute.”1   Under the Guidelines, the applicable

range of supervised release for a Class B felony is three to five

years and, if the felony is a sex offense, may be up to life.2

See U.S.S.G. § 5D1.2(a)(1), (b)(2).

     In the Presentence Investigation Report (“PSR”), the

probation officer scored Armendariz’s offense at base offense

level 24, recommending a two-level upward adjustment under

U.S.S.G. § 2G1.3(b)(2)(B) for unduly influencing a minor to

engage in prohibited sexual conduct and an additional two-level

increase for the use of a computer or Internet-access device.

The probation officer also recommended a three-level reduction

for acceptance of responsibility under U.S.S.G. § 3E1.1(a) and

(b), for a total offense level of 25.    Given Armendariz’s lack of

criminal history (i.e., a Criminal History Category of I), the

resulting applicable sentencing range, taking into account the




     1
        All references to specific Guidelines provisions are to
the 2004 version of the UNITED STATES SENTENCING GUIDELINES MANUAL,
which applied in this case because it was in effect at the time
of the offense.
     2
        A conviction under 18 U.S.C. § 2422(b) is a Class B
felony because it provides for a thirty-year maximum term of
imprisonment. See 18 U.S.C. § 3559(a)(2) (classifying an offense
for which the term of imprisonment is twenty-five years or more
as a Class B felony).

                                 -5-
sixty-month mandatory minimum, was sixty to seventy-one months.3

Based on this calculation and on the sentencing factors

enumerated in 18 U.S.C. § 3553(a), the probation officer

recommended a sentence of sixty months imprisonment.    The

probation officer also recommended five years of supervised

release to follow Armendariz’s sixty-month term of imprisonment

“to assist the defendant through directive and referral

counseling services in gaining employment and reintegrating back

into the community.”   Neither the government nor Armendariz

lodged any objection to the recommendations contained in the PSR.

     The district court conducted a sentencing hearing on April

11, 2005.   At the hearing, the government acknowledged that “a

sentence at the low-end of the guideline would be appropriate for

Mr. Armendariz, given the facts in this situation, his lack of

criminal history, no pornography was found on his computer that

was at his home in East Texas.”    2 R. 5.   Armendariz’s attorney

further requested “the lowest supervised release you can also

give him.   He’s going to have to register as a sex offender and

deal with all that in the State systems wherever he goes, and

just the additional supervised release is gratuitous, it seems.”

2 R. 6.   The court then engaged in a colloquy with Armendariz,

emphasizing the importance of professional counseling to combat


     3
        Absent the statutory mandatory minimum, the recommended
sentencing range under the Guidelines Sentencing Table would have
been fifty-seven to seventy-one months. See U.S.S.G. § 5A.

                                  -6-
the recidivist tendencies of pedophiles:

     [T]his crime appears, from our current understanding, to
     have a substantial either physiological or certainly
     psychological component, and it has an extraordinarily
     high rate of repeat offense. If for a moment we just
     describe it as a compulsion . . . that in no way of
     course excuses it any more than if Charlie Manson’s
     compulsion with chopping people into small bits at
     parties excuses his. But because you’re going to have a
     long opportunity to exercise your freedom in the future
     . . . this is an area of behavior where counseling can
     help. And I don’t know that it can cure the inclination
     or the interest . . . but somebody you can trust and talk
     to about your feelings, even though you are successfully
     repressing them, may make it easier never to act on them
     again. And that’s the goal here. . . . [T]his is not
     something that you commit, suffer some punishment, and
     then everything goes back to the way it was before if you
     were just a felon. There are all of those complicated
     regulatory things. And while I don’t necessarily agree
     with everything done in the name of our children, there
     are good reasons to have continual supervision for
     pedophiles. There are statistically good reasons. That
     doesn’t mean they necessarily apply in your case. This
     could have been completely aberrational and be no risk of
     your repeating, but public policy is made on averages and
     the average pedophile is a repeat offender.        So in
     addition to what is compelled by the States by way of
     registration and disclosure, you need to think very hard
     about professional assistance.

2 R. 7-8.   In response, Armendariz agreed to seek counseling upon

his release from prison.   The district court then sentenced

Armendariz to sixty months imprisonment and a $100 special

assessment, with zero years of supervised release.   The court

explained that it declined to impose supervised release “because

the statutory minimum [prison sentence] in this case is more than

sufficient for all of the penological purposes of criminal law,

and there will be the secondary effects because of the nature of

the crime,” presumably referring to state sex-offender

                                -7-
registration requirements.   2 R. 10.

     The government objected in open court to the lack of

supervised release, asserting that state sex-offender

registration alone was not an adequate substitute for the

mandatory counseling and monitoring that would be required under

the federal supervised release program.   Noting the advisory

nature of the Guidelines after the Supreme Court’s decision in

United States v. Booker, 543 U.S. 220 (2005), the court then

cited additional reasons for its decision to “impose a sentence

that is slightly distinct from what [the Guidelines] otherwise

would have suggested,” emphasizing its disagreement with the

mandatory minimum prison sentence required under 18 U.S.C.

§ 2422(b):

     [T]he United States Probation Office is not the only
     resource. There are State, County, City programs and
     there are the State registration and monitoring stuff and
     it seems to me . . . it’s redundant and in absence of a
     statutory minimum, this offense probably should bear a
     short prison time and a long period of supervised
     release, if I were making the policy, which I’m not. So
     he gets the five years [of imprisonment].

2 R. 11.

     The district court entered its final judgment on April 15,

2005.   On May 10, 2005, the government timely filed a protective

notice of appeal under 18 U.S.C. § 3742(b) and FED. R. APP. P.

4(b)(1)(B)(i) to challenge the lack of supervised release in the




                                -8-
district court’s sentence.4

                      II. STANDARD OF REVIEW

     In Booker, the Supreme Court struck down the mandatory

Guidelines regime, holding that the mandatory aspect of the

Guidelines sentencing scheme violated a defendant’s Sixth

Amendment right to a jury trial.      Booker, 543 U.S. at 233-34; see

United States v. Mares, 402 F.3d 511, 518 (5th Cir. 2005).

Although the Guidelines are now advisory rather than mandatory,

under Booker, a district court still must calculate the

sentencing range under the Guidelines as a starting point and

consider it as one of many factors when selecting an appropriate

sentence.   Booker, 543 U.S. at 260; Mares, 402 F.3d at 518.      Even

post-Booker, we review the district court’s interpretation and

application of the Guidelines de novo.     United States v.

Villegas, 404 F.3d 355, 359 (5th Cir. 2005).     We will accept

findings of fact made in connection with sentencing unless

     4
        Before prosecuting the appeal of a sentence, the
government must obtain approval from the Attorney General, the
Solicitor General, or a deputy solicitor general. See 18 U.S.C.
§ 3742(b) (“The Government may not further prosecute such appeal
without the personal approval of the Attorney General, the
Solicitor General, or a deputy solicitor general designated by
the Solicitor General.”). To this end, the government has
submitted a memorandum approving this appeal, signed by the
Solicitor General and dated October 12, 2005. Although the
Solicitor General did not authorize this appeal until more than
five months after the government timely filed its notice of
appeal on May 10, 2005, the government has fully complied with
the § 3742(b) requirements. See United States v. Inv. Enters.,
Inc., 10 F.3d 263, 272 n.21 (5th Cir. 1993) (authorizing a
government appeal under § 3742(b) even when the Solicitor General
authorizes the appeal after the notice of appeal was filed).

                                -9-
clearly erroneous.     United States v. Creech, 408 F.3d 264, 270

n.2 (5th Cir. 2005).

     The Court in Booker directed appellate courts ultimately to

review all sentences for “unreasonableness.”     Booker, 543 U.S. at

261; see United States v. Smith, 440 F.3d 704, 706 (5th Cir.

2006); United States v. Duhon, 440 F.3d 711, 714 (5th Cir 2006).

“Both a district court’s post-Booker sentencing discretion and

the reasonableness inquiry on appeal must be guided by the

sentencing considerations set forth in 18 U.S.C. § 3553(a).”

Smith, 440 F.3d at 706 (citing Booker, 543 U.S. at 261).     The

§ 3553(a) factors include:

     (1)   the nature and circumstances of the offense and the
           history and characteristics of the defendant;
     (2)   the need for the sentence imposed--
           (A) to reflect the seriousness of the
                offense, to promote respect for the law,
                and to provide just punishment for the
                offense;
           (B) to afford adequate deterrence to criminal
                conduct;
           (C) to protect the public from further crimes
                of the defendant; and
           (D) to provide the defendant with needed
                . . . medical care, or other correctional
                treatment in the most effective manner;
     (3)   the kinds of sentences available;
     (4)   the kinds of sentence and the sentencing range
           established for--
           (A) the    applicable   category   of  offense
                committed by the applicable category of
                defendant    as   set    forth   in   the
                guidelines . . .;
     (5)   any pertinent policy statement . . .;
     (6)   the need to avoid unwarranted sentence disparities
           among defendants with similar records who have been
           found guilty of similar conduct . . . .

18 U.S.C. § 3553(a) (2000); see Smith, 440 F.3d at 706.

                                 -10-
     Where, as here, a district court imposes a post-Booker non-

Guidelines sentence--that is, one that deviates either above or

below the relevant Guidelines sentence as opposed to departing

with reference to an applicable Guidelines departure provision--

we conduct our reasonableness review through an abuse-of-

discretion lens, paying particular attention to the specific

reasons given for deviating from the Guidelines.5   United States

v. Reinhart, 442 F.3d 857, 862 (5th Cir. 2006) (reasoning that

“if reasonableness review requires an abuse of discretion

standard for guideline sentences, the same should follow for non-

guideline sentences”); see also Mares, 402 F.3d at 519 n.7

(distinguishing a “non-Guidelines” sentence “from a Guidelines

sentence which includes a sentence that has been adjusted by

applying a ‘departure’ as allowed by the Guidelines”).   We have

made clear that a district court imposing a non-Guidelines

sentence “must more thoroughly articulate its reasons” than when

it imposes a sentence authorized by the Guidelines.   Smith, 440

F.3d at 707; Duhon, 440 F.3d at 715.   Not only should these

reasons be “fact specific” to the case at hand, but they should

also be consistent with the totality of the relevant factors


     5
        As in Smith, 440 F.3d at 708 n.3, we treat the sentence
in this case as a non-Guidelines sentence. Because the district
court made reference neither to departing from the Guidelines nor
to the departure provisions of the Guidelines--indeed, as
discussed more fully below, it hardly made reference to the
Guidelines at all--“we do not examine whether [a] . . . departure
. . . was available under the Guidelines.” Id.

                              -11-
enumerated in § 3553(a).    Smith, 440 F.3d at 707.    Although

“[t]he court need not make ‘a checklist recitation of the section

3553(a) factors[,]’ . . . ‘the farther a sentence varies from the

applicable Guideline sentence, the more compelling the

justification based on factors in section 3553(a) must be.’”

Duhon, 440 F.3d at 715 (quoting Smith, 440 F.3d at 707 (internal

quotation marks and citation omitted)).      A non-Guidelines

sentence unreasonably fails to reflect the totality of the

relevant § 3553(a) sentencing factors, and is therefore an abuse

of discretion, if it “(1) does not account for a factor that

should have received significant weight, (2) gives significant

weight to an irrelevant or improper factor, or (3) represents a

clear error of judgment in balancing the sentencing factors.”

Smith, 440 F.3d at 708 (citing United States v. Haack, 403 F.3d

997, 1004 (8th Cir. 2005)); see also Duhon, 440 F.3d at 715.

                           III. DISCUSSION

     The sentencing colloquy reflects that, in imposing the

sentence at issue, the district court took into account

Armendariz’s history and characteristics, specifically his lack

of a criminal record and his steady employment history,

consistent with § 3553(a)(1).   Although such considerations in

some cases might sufficiently support a sentence that does not

include supervised release, given the facts and the nature of the

crime in this case, the district court’s failure to impose



                                -12-
supervised release was unreasonable because it fails to account

for the totality of the relevant § 3553(a) factors.      See Duhon,

440 F.3d at 715 (explaining that “[u]nder § 3553(a) . . . a

sentence must be supported by the totality of the relevant

statutory factors”); see also Reinhart, 442 F.3d at 864

(assessing “the district court’s justification in light of all

the § 3553(a) factors”).

     Specifically, the sentence does not adequately account for

the following factors which should have received significant

weight: (1) the properly calculated sentence under the advisory

Guidelines and the pertinent policy statement in U.S.S.G.

§ 5D1.2(b), see 18 U.S.C. § 3553(a)(4)(A), (5); and (2) the need

for the sentence to afford adequate deterrence, to protect the

public from the defendant, and to provide the defendant with

needed correctional treatment.    See id. § 3553(a)(2)(B)-(D).

A.   Applicable Sentencing Guidelines Range and Pertinent Policy
     Statement

     As an initial matter, the district court did not adequately

consider the recommended Guidelines sentencing range as a factor

in imposing Armendariz’s sentence.      See 18 U.S.C. § 3553(a)(4)

(listing the Guidelines “sentencing range” as a factor to be

considered in sentencing); see also Booker, 543 U.S. at 260

(noting that district courts are required “to take account of the

Guidelines together with other sentencing goals” under

§ 3553(a)); Mares, 402 F.3d at 519.     Although the probation


                                 -13-
officer correctly calculated the Guidelines sentencing range in

the PSR as sixty to seventy-one months imprisonment and a three-

year to life term of supervised release, it is unclear from the

sentencing transcript how much weight, if any, the district court

placed on the Guidelines range.   Indeed, the district court did

not even mention the Guidelines or any provision thereof until

after it had announced Armendariz’s sentence and the government

objected to the lack of supervised release.   Only then did it

note that it had, “after considering the Guidelines and their

advisory capacity, elected to impose a sentence that is slightly

distinct from what they otherwise would have suggested.”    2 R.

13.   It did not, however, give a fact-specific explanation for

its decision to deviate significantly from the Guidelines range

with respect to the term of supervised release; rather, the court

merely imposed the mandatory minimum prison sentence without

reference to the Guidelines.

      Additionally, in imposing zero years of supervised release,

the district court ignored the pertinent policy statement

contained in U.S.S.G. § 5D1.2(b)(2).   See 18 U.S.C. § 3553(a)(5)

(listing “any pertinent policy statement” issued by the

Sentencing Commission as a factor to be considered in

sentencing).   Although U.S.S.G. § 5D1.2(a)(1) notes that the

length of a term of supervised release imposed for a Class B

felony shall be “at least three years but not more than five

years,” § 5D1.2(b)(2) specifies that “the length of the term of

                               -14-
supervised release shall be not less than the minimum term of

years specified for the offense under subdivision[] (a)(1) . . .

and may be up to life, if the offense is . . . a sex offense.”

The policy statement that follows subsection (b)(2) further

suggests that “[i]f the instant offense of conviction is a sex

offense, however, the statutory maximum term of supervised

release is recommended.”   The statutory maximum in Armendariz’s

case is a life term of supervised release.   See 18 U.S.C.

§ 3583(b), (k); see also United States v. Allison, 447 F.3d 402,

407 (5th Cir. 2006) (noting that “the policy statement

recommending a life term of supervised release cannot be read in

a vacuum, as the policy statement is derived from the statutory

authority in 18 U.S.C. § 3583(k) and is consistent with

Congress’s intention to punish [sex offenders] with life terms of

supervised release because of the high rate of recidivism”).

Similar to its treatment of the Guidelines sentencing range, the

district court did not refer to or even acknowledge this policy

statement when it sentenced Armendariz without imposing a term of

supervised release.

     Although “[d]eparture from the guidelines range . . . cannot

alone support a finding of unreasonableness after Booker,”

Reinhart, 442 F.3d at 864, the district court’s failure to

consider the Guidelines as a starting point for a reasonable

sentence is inconsistent with Booker’s directive to “take

account” of the Guidelines as one of many factors in an advisory-

                               -15-
Guidelines sentencing regime.   See Booker, 543 U.S. at 260; see

also Smith, 440 F.3d at 707 (noting that, even under an advisory

regime, the Guidelines range must be a “frame of reference” for a

non-Guidelines sentence); Duhon, 440 F.3d at 716 (holding that

the district court’s miscalculation of the applicable Guidelines

range “deprives the sentence of ‘great deference’ and is a factor

to be considered in assessing the reasonableness of a sentence”).

Particularly because “the farther a sentence varies from the

applicable Guideline sentence, the more compelling the

justification based on factors in section 3553(a) must be,” the

district court’s failure to articulate fact-specific reasons with

reference to the Guidelines for its substantial deviation from

both the Guidelines sentencing range and the § 5D1.2(b)(2) policy

statement militates against a holding that the sentence was

reasonable.   Smith, 440 F.3d at 707 (internal quotation marks and

citation omitted); Duhon, 440 F.3d at 717 (noting that, in

determining the reasonableness of a non-Guidelines sentence, the

district “court’s failure to take into account the Sentencing

Guidelines is significant”).



B.   Need for Sentence to Afford Deterrence, Protect the Public,
     and Provide Correctional Treatment

     In addition to the failure of the district court’s sentence

to account for the Guidelines, the lack of supervised release

does not effectuate the statutory goals enumerated in 18 U.S.C.


                                -16-
§ 3553(a)(2)(B)-(D): the need to deter criminal conduct, protect

the public, and provide correctional treatment to the offender.

The district court addressed these considerations at length

during the sentencing hearing, describing the “statistically good

reasons” for continual supervision of pedophiles because of the

high rate of recidivism associated with child sex crimes.      The

district court also repeatedly emphasized the need for Armendariz

to seek professional counseling after his release from prison to

address the “psychological component” of pedophilia and to help

prevent him from offending again.      After articulating these

concerns, the district court announced that “supervised release

is not being imposed because the statutory minimum is more than

sufficient for all of the penological purposes of criminal law,”

later noting that “in absence of a statutory minimum, this

offense should probably bear a short prison time and a long

period of supervised release, if I were making the policy, which

I’m not.”   2 R. 10, 11.   The district court also indicated that

the state sex-offender registration requirement was a sufficient

substitute for a term of supervised release.      While the district

court correctly identified and was aware of the appropriate

relevant sentencing factors under § 3553(a)(2)(B)-(D), the

sentence that it imposed--five years imprisonment and no

supervised release--does not reflect these considerations.

     Specifically, without federal supervised release, the

sentence provides no mechanism to ensure that Armendariz will

                                -17-
receive the supervision he needs upon his release from prison to

prevent the urge to recidivate and to address the psychological

component of the crime that the district court described.    Under

the federal supervised release program, offenders must comply

with the mandatory reporting and notification provisions set

forth in 18 U.S.C. § 3563(a).   Moreover, the district court would

have the authority to order Armendariz, as conditions of his

release, to undergo counseling, submit to travel restrictions,

report monthly to a probation officer, and permit a probation

officer to visit his home.   18 U.S.C. § 3563(b)(9), (14)-(17).

     Furthermore, imposing some term of federal supervised

release in this case would be consistent with the intent of

Congress, as evidenced in 18 U.S.C. § 3583(k), which provides

that the authorized term of supervised release for a sex offense

involving a minor victim is “any term of years to life.”    The

legislative history of § 3583(k) reveals that the enactment of

this statute providing a longer term of supervised release for

sex offenders was in response to the same concerns regarding the

offender’s potential for recidivism and need for counseling that

the district court voiced in Armendariz’s case:

     This section responds to the long-standing concerns of
     Federal judges and prosecutors regarding the inadequacy
     of the existing supervision periods for sex offenders,
     particularly for the perpetrators of child sexual abuse
     crimes, whose criminal conduct may reflect deep-seated
     aberrant sexual disorders that are not likely to
     disappear within a few years of release from prison. The
     current length of the authorized supervision periods is
     not consistent with the need presented by many of these

                                -18-
     offenders   for    long-term--and   in     some    cases,
     life-long-monitoring and oversight.

H.R. REP. NO. 108-66, at 49-50 (2003) (Conf. Rep.), reprinted in

2003 U.S.C.C.A.N. 683, 684; see also Allison, 447 F.3d at 405-06;

United States v. Moriarty, 429 F.3d 1012, 1025 (11th Cir. 2005).

In light of these well-founded concerns expressed both by the

district court in this case and by Congress, the district court’s

decision not to impose supervised release because, in its

estimation, the mandatory minimum prison sentence served “all of

the penological purposes of criminal law” was unreasonable.      As

the Supreme Court has recognized, “[t]he objectives of supervised

release would be unfulfilled if excess prison time were to offset

and reduce terms of supervised release.   Congress intended

supervised release to assist individuals in their transition to

community life.   Supervised release fulfills rehabilitative ends,

distinct from those served by incarceration.”    United States v.

Johnson, 529 U.S. 53, 59 (2000) (citing S. REP. NO. 98-225, at 124

(1983)).

     Likewise, the district court’s belief that the state sex-

offender registration requirement was a sufficient substitute for

federal supervised release was unreasonable.    In contrast with

federal supervised release, the Texas sex-offender registration

requirement does not provide rehabilitative resources, intensive

monitoring, or publicly funded postconfinement assistance.

Rather, sex offenders subject to the state registration


                               -19-
requirement merely need to provide their name and current address

to state authorities.   See TEX. CODE CRIM. PROC. ANN. arts.

62.051(a),(d), 62.055(a) (West Supp. 2005)); see also Lutz v.

Texas, 184 S.W.3d 366, 367 (Tex. App.--Austin 2006) (“The [Texas]

sex offender registration program requires a person having a

reportable conviction to register with his local law enforcement

authority, periodically verify his registration, and report any

change of address.”).   This registration requirement is not an

adequate substitute for the counseling and monitoring that can be

mandated under federal supervised release, particularly in light

of the heightened concern in sex offense cases with an offender’s

potential for recidivism.6

     Especially in the case of a sex crime--and particularly for

one involving a child--the need for deterrence, protecting the

public, and providing the offender with necessary correctional

treatment are highly relevant factors that should have been


     6
        During the sentencing hearing, Armendariz agreed to seek
counseling on his own after his term of imprisonment; however,
the sentence that the district court imposed does not require him
to do so. Although he had a history of gainful employment, there
is no guarantee that Armendariz will return to a steady job and
have the means to obtain counseling after he is released from
prison. It is precisely this type of offender that supervised
release was designed to rehabilitate. See S. REP. NO. 98-225, at
124 (1983) (“[T]he primary goal [of supervised release] is to
ease the defendant’s transition into the community after the
service of a long prison term for a particularly serious offense,
or to provide rehabilitation to a defendant who has spent a
fairly short period in prison for punishment or other purposes
but still needs supervision and training programs after
release.”).

                                -20-
effectuated in the sentence that the district court imposed.

Because the sentence in this case fails to reflect any of these

statutory goals, and because the district court substantially

deviated from the advisory Guidelines range without articulating

valid, fact-specific reasons for doing so, the sentence is

unreasonable insofar as it lacks a term of supervised release.

See Duhon, 440 F.3d at 721 (holding that a sentence was

unreasonable where “the totality of the statutory sentencing

factors fails to reasonably support the court’s sentence”);

Smith, 440 F.3d at 708 (noting that a sentence is unreasonable

when it “does not account for a factor that should have received

significant weight”).

                         IV. CONCLUSION

     Because the district court abused its discretion by imposing

an unreasonable sentence, we VACATE the sentence and REMAND to

the district court for resentencing consistent with this opinion.




                              -21-
