                      REVISED August 10, 2007

       IN THE UNITED STATES COURT OF APPEALS
                FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                                 Fifth Circuit
                                                                F I L E D
                                No. 05-51634                    June 21, 2007

                                                            Charles R. Fulbruge III
                                                                    Clerk
THE UNITED STATES OF AMERICA

                                           Plaintiff-Appellee
v.

BRANDON L. WALTERS

                                           Defendant-Appellant



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


Before GARWOOD, SMITH, and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
      Defendant-Appellant, Brandon Walters, appeals his post-Booker, non-
Guideline sentence as unreasonable. Because we find that the district court did
not give adequate explanation justifying the non-Guideline sentence, we
VACATE and REMAND.
                                      I.
      Walters joined the Air Force in 2001, and was stationed at the Lackland
Air Force Base in San Antonio, Texas. Walters began exhibiting inappropriate
behavior towards others on the base, including the personnel manager, First
Sergeant Janet McWilliams. McWilliams recommended Walters be evaluated
                                      No. 05-51634

by a mental health professional to assess his fitness for duty. A military
psychiatrist diagnosed Walters with a narcissistic personality disorder, declared
him to be “potentially dangerous,” and recommended that he be discharged.
McWilliams and another officer met with Walters to give him his discharge
packet, and Walters became irate and threatened McWilliams. Several days
later, Air Force officers escorted Walters to the airport for a one-way flight home,
but he refused to board the plane, escaped from his escort, and checked into a
local hotel.
      Over the following weeks, Walters constructed a home-made bomb. He
placed the bomb in a brown paper package addressed to McWilliams and left the
package on the base. The package was placed in the intra-base mail system and
delivered to McWilliams, who opened it in her office. Upon opening, the bomb
detonated. McWilliams survived, but in addition to losing her left hand and
several fingers on her right hand, she lost her belly button, suffered injury to her
right eye, and sustained second and third degree burns. The bomb also damaged
the building where she worked.
      A jury convicted Walters on five counts related to the bombing.1 The
conviction included two counts (Count 2 and Count 4) under 18 U.S.C. § 924(c)(1)
for use of a destructive device in relation to two crimes of violence, assault on a
federal officer and causing damage to a federal building. Section 924(c)(1) carries
a 30-year mandatory minimum sentence for a first offense, and a mandatory life
sentence for a second offense. 18 U.S.C. § 924(c)(1)(B)(ii) & (c)(1)(C)(ii). Walters
was initially sentenced to life imprisonment, a sentence the district court


      1
       The five counts included:
      Count 1:      Assault on a federal officer with a deadly weapon, 18 U.S.C. § 111(a), (b);
      Count 2:      Use of a destructive device in a crime of violence (for Count 1 - assault),
                    18 U.S.C. § 924(c)(1);
      Count 3:      Damaging a federal building with explosives, 18 U.S.C. § 844(f)(1), (2);
      Count 4:      Use of a destructive device in a crime of violence (for Count 3 - damaging
                    a federal building), 18 U.S.C. § 924(c)(1); and
      Count 5:      Possession of an unregistered destructive device, 26 U.S.C. § 5861(d).

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believed to be mandatory under the statute. On Walters’ first appeal, we
determined that it was error to sentence Walters on two convictions under §
924(c)(1) arising from the single use of one destructive device. United States v.
Walters, 351 F.3d 159, 173 (5th Cir. 2003). This Court vacated the sentence and
remanded for resentencing with instructions that the Government dismiss one
of the two counts under § 924(c)(1).2
      At resentencing, Walters still faced a statutory minimum sentence of 30
years on Count 2, the remaining § 924(c)(1) count, to run consecutive to any term
imposed on Counts 1, 3, and 5. The Sentencing Guidelines recommended that
Walters receive the minimum 30 years for the § 924 (c)(1) count, but the
Government argued for a non-Guideline term of life imprisonment. The district
court ultimately sentenced Walters to concurrent terms of imprisonment of 262
months on Counts 1, 3, and 5, and a consecutive, non-Guideline term of 720
months (60 years) of imprisonment on the remaining § 924(c)(1) count. Walters
appeals to this Court, arguing that this sentence is unreasonable.
                                          II
      A    non-Guideline        sentence       is   “ultimately”     reviewed      for
“‘unreasonableness.’” United States v. Smith, 440 F.3d 704, 706 (5th Cir. 2006)
(quoting United States v. Booker, 543 U.S. 220, 261 (2005)). “Where, as here, a
district court imposes a post-Booker, non-Guideline sentence . . . we conduct our
reasonableness review through an abuse-of-discretion lens, paying particular
attention to the specific reasons given for deviating from the Guidelines.” United
States v. Armendariz, 451 F.3d 352, 358 (5th Cir. 2006).
     At the resentencing hearing, the court indicated that it was “considering
sentencing the defendant outside the advisory guidelines system to reflect the
seriousness of the offense, promote respect for the law, to provide just



      2
         Pursuant to our mandate, the Government dismissed Count 4, which was the count
relating to the use of a destructive device to cause damage to a federal building.

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punishment for the offense, to afford adequate deterrence to criminal conduct,
and to protect the public from further crimes.” After hearing arguments from
counsel and testimony from McWilliams and her husband, the court confirmed
that it was going to impose a non-Guideline sentence because “the guideline
system does not adequately take into consideration the seriousness of the
offense, the just punishment for the offense, and the protection of the public in
this regard.”
      The court briefly mentioned that Walters was treated fairly by the military
and that Walters was given the opportunity to leave the community peacefully.
However, the court primarily focused on the fact that this crime involved the use
of a bomb:
      Though the events in this case did occur before 9/11, the use of a
      bomb or bombs is no less deadlier or no less an act of terror....The
      message in this case and in every case where a bomb is used must
      be extremely clear. It is...[a] clear and specific [] act of terror. There
      is no other way to view the use of a bomb or bombs....The imposition
      of a lengthy sentence needs to be imposed to give adequate notice to
      those persons in this country or elsewhere who are willing to use a
      bomb, [that they] must be willing to serve a long term...sentence.
      There is no tolerance for use of a bomb especially when the use of a
      bomb has the greater potential of great injury.
The court then stated that the combined 982 month prison term was “of specific
sufficient deterrence.”
      It appears from these comments that the district court based the non-
Guideline sentence primarily on the fact that this was a bomb-related crime. The
court at no time pointed to specific facts from the crime, other than the use of a
bomb, to explain why 60 years, as opposed to the Guideline recommendation of
30 years, was appropriate.
      A district court must use the applicable Guideline range as a “frame of
reference” when imposing a non-Guideline sentence. Smith, 440 F.3d at 707.
“Additionally, the district court must more thoroughly articulate its reasons
when it imposes a non-Guideline sentence than when it imposes a sentence

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under authority of the Sentencing Guidelines. These reasons should be
fact-specific and consistent with the sentencing factors enumerated in section
3553(a).”3 Id. (citations omitted).
       “A non-Guideline sentence unreasonably fails to reflect the statutory
sentencing factors where 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.” Id. at 708. We have held that the articulation of a factor
already accounted for by the Sentencing Guidelines did not of itself suffice to
justify a sentence which significantly departed from the Guidelines range. See,
e.g., United States v. Perrin, 478 F.3d 672, 678 (5th Cir. 2007).
       In support of its non-Guideline sentence, the court only articulated factors
that are inherent in all bomb-related crimes, and not specific facts relating to



       3
         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 educational or vocational
                     training , 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).

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this particular defendant and his actions. “The farther a sentence varies from
the applicable Guideline sentence, the more compelling the justification based
on factors in section 3553(a) must be.” Smith, 440 F.3d at 707 (internal quotation
marks omitted).
       We recognize that, post-Booker, courts are given discretion to decide to
depart from the Guidelines, and we do not believe that the court abused its
discretion in deciding to depart. However, the degree of departure in this case
is substantial, and there must be more than mere lip service to the § 3553(a)
factors to justify such a departure.4 We conclude that the court did not
adequately articulate reasons consistent with the sentencing factors to support
the reasonableness of this sentence.
                                              III
       For the foregoing reasons, the sentence is VACATED and the case is
REMANDED for resentencing.




       4
         We call the court’s attention to 18 U.S.C. § 3553(c)(2) which indicates that the reasons
for sentencing must also be stated in the written judgment.

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