     Case: 12-60841   Document: 00512511135    Page: 1   Date Filed: 01/24/2014




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

                                                                      FILED
                                No. 12-60841                   January 24, 2014
                                                                 Lyle W. Cayce
UNITED STATES OF AMERICA,                                             Clerk


                                          Plaintiff–Appellee
v.

BRIAN ROBINSON,

                                          Defendant–Appellant




                Appeal from the United States District Court
                  for the Northern District of Mississippi


Before SMITH, PRADO, and ELROD, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
      Defendant–Appellant Brian Robinson was convicted of producing,
possessing, and distributing child pornography. He challenges the district
court’s denial of his motion to suppress evidence and his 720-month sentence.
We affirm the denial of his motion to suppress, but vacate his sentence and
remand for resentencing because the district court did not appreciate its
authority to consider evidence of Robinson’s cooperation under 18 U.S.C.
§ 3553(a).
              I. FACTUAL AND PROCEDURAL BACKGROUND
      In 2010, federal investigators discovered images of child pornography in
a suspect’s possession. Two sets of images were sent over the internet in June
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                                No. 12-60841

and July 2010 by a person using the username “lowkey” on the instant
messaging service ICQ. Information embedded within the images indicated
that the sets of images had been taken on May 20, 2008, and January 26, 2009.
Investigators obtained subscriber information and Internet Protocol (“IP”) logs
related to the “lowkey” account. Investigators further determined that the
account had been accessed numerous times from a particular IP address
assigned to Accurate Roofing Company, Inc. (“Accurate Roofing”) in Potts
Camp, Mississippi.
      In March 2011, investigators obtained a search warrant for Accurate
Roofing.   Prior to serving this search warrant at Accurate Roofing,
investigators determined that the child in the images was the young son of
Brian Robinson, who was a vice-president of Accurate Roofing. Based on the
original affidavit and the additional information identifying Robinson’s son,
investigators also obtained a search warrant for Robinson’s home. At Accurate
Roofing, investigators found a computer and a separate thumb drive that
contained a combined 260 images of child pornography and 19 videos of child
pornography.    They also discovered evidence that Robinson’s workplace
computer had been used to access the “lowkey” account. At his residence,
agents found clothing, household items, and furniture that appeared in the
pornographic images.
      Robinson initially agreed to speak with investigators; however, when he
was asked how images of his son had come to be on another person’s computer,
Robinson stopped the interview. He was arrested on state charges of child
exploitation. The next day, after being advised of his rights, Robinson gave a
full recorded confession. He admitted that the “lowkey” account was his and
that he had sent images of his son to other persons using that account.
Robinson was indicted on two counts of production of child pornography (18

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U.S.C. § 2251(a)), two counts of distribution of child pornography (18 U.S.C.
§ 2252A(a)(1)), and one count of possession of child pornography (18 U.S.C.
§ 2252A(a)(5)(B)).
      Robinson moved to suppress the evidence obtained through the searches
of his workplace and home as well as his statement to investigators. He argued
that the affidavit submitted in support of the warrant to search Accurate
Roofing “failed to establish a nexus between the place to be searched and the
evidence sought” because it failed to disclose both that other IP addresses had
accessed the “lowkey” account and that investigators did not know which IP
address had accessed the account at the time the images were transmitted. As
for the affidavit in support of the warrant to search his residence, Robinson
argued that the affidavit failed to assert that the household items seen in the
images were still in the residence when the search warrant was sought in 2011.
Finally, because he had invoked his right to counsel the day before he gave his
incriminating statement to investigators, Robinson argued that his statement
should be suppressed. The district court denied the suppression motions after
an evidentiary hearing.
      Pursuant to a conditional plea agreement, Robinson pleaded guilty to
one count of production of child pornography, one count of distribution of child
pornography, and one count of possession of child pornography. He reserved
the right to appeal the denial of his motions to suppress. See Fed. R. Crim. P.
11(a)(2).
      The presentencing report (“PSR”) calculated a total offense level of 43.
Because Robinson had no criminal history, his criminal history category was I.
These calculations resulted in a guidelines range of imprisonment for life.
However, the sum of the statutory maximum sentences for each count of
conviction was 720 months, making this the guidelines sentence. Robinson

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filed a sentencing memorandum, 1 which, in relevant part, requested a lower
sentence based on his cooperation with investigators in at least two other
cases.
         At sentencing, Robinson urged the district court to consider his
cooperation with authorities when considering the sentencing factors of
18 U.S.C. § 3553(a)(2). The district court adopted the PSR; stated that it had
considered the advisory guidelines range, the statutory ranges, and the
sentencing factors of § 3553(a); and found no reason to depart from the
guidelines range.        Robinson was sentenced to a total of 720 months of
imprisonment. 2 Addressing his cooperation with authorities, the district court
“acknowledge[d]” those efforts, but it stated that “it does you no good for the
purposes of sentencing in that the Court does not have before it a
[U.S.S.G. §] 5K[1.1] motion to consider.” The district court further stated that
it was a “moot question” whether Robinson would have received a reduction
under § 5K1.1 because the Government had chosen not to file such a motion.
The district court represented that it was not considering all the § 3553(a)
factors:
         I represent on the record that if the Court were to consider those
         [§ 3553] factors, it would not have helped Mr. Robinson at all in
         his sentence because when the Court considers the nature and
         circumstances of this offense [it] finds that there is no reason when
         [sic] he would be entitled to any reduction due to this charge of
         molesting his child, his own son, and distributing pornography of
         his son.



         Robinson filed one objection to the guidelines calculations regarding grouping of the
         1

counts, but both he and the probation officer agreed that the resolution of this objection would
not affect the final offense level.
         2An amended judgment was filed several months later, after no victims requested
restitution.
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The district court reiterated this statement: “If I considered all the factors
under [§] 3553 . . . the Court would still be of the opinion that a 720-month
sentence is appropriate in this case.” Robinson unsuccessfully objected that
the sentence imposed was substantively unreasonable. He filed a timely notice
of appeal from the amended judgment.
                              II. DISCUSSION
      Robinson appeals (1) the district court’s denial of his motions to suppress
the evidence seized from Accurate Roofing and from his residence and (2) the
procedural and substantive reasonableness of his sentence. We first address
Robinson’s suppression challenge.
A. Suppression
   1. Standard of Review and Applicable Law
      When reviewing a denial of a motion to suppress evidence, this Court
reviews factual findings for clear error and the ultimate constitutionality of
law enforcement action de novo. United States v. Charles, 469 F.3d 402, 405
(5th Cir. 2006). The clearly erroneous standard is particularly deferential
where, as here, “denial of a suppression motion is based on live oral testimony
. . . because the judge had the opportunity to observe the demeanor of the
witnesses.” United States v. Gibbs, 421 F.3d 352, 357 (5th Cir. 2005) (citation
and internal quotation marks omitted).
      We apply a two-step test to determine whether to suppress evidence
under the exclusionary rule: first, we ask whether the good faith exception to
the rule applies, and second, we ask whether the warrant was supported by
probable cause. United States v. Mays, 466 F.3d 335, 342–43 (5th Cir. 2006)
(citation omitted). The good faith exception to the exclusionary rule provides
“that evidence obtained by law enforcement officials acting in objectively
reasonable good-faith reliance upon a search warrant is admissible” even if the

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affidavit on which the warrant was grounded was insufficient to establish
probable cause. United States v. Shugart, 117 F.3d 838, 843 (5th Cir. 1997)
(citation and internal quotation marks omitted).
      This Court has recognized several circumstances in which the good faith
exception does not apply, including where the judge who issued the warrant
acted after being “misled by information in an affidavit that the affiant knew
was false or would have known was false except for his reckless disregard of
the truth,” or the affidavit upon which the warrant is founded is “so lacking in
indicia of probable cause as to render official belief in its existence entirely
unreasonable.” Mays, 466 F.3d at 343 (citation and internal quotation marks
omitted).
   2. Search Warrant for Accurate Roofing
      Immigration and Customs Enforcement Special Agent Brent Lyons
prepared the affidavit in support of the search warrant for Accurate Roofing.
The affidavit alleged that the IP address assigned to Accurate Roofing “was
utilized to transfer images of child pornography via the Internet by using an
online instant messaging chat program in approximately June and July 2010.”
It also stated that investigators had learned the IP address most recently used
(on December 15, 2010) to log in to the “lowkey” account was assigned to
Accurate Roofing and that IP addresses assigned to Accurate Roofing had been
used to log in to the “lowkey” account on multiple other (unspecified) dates.
      Agent Lyons testified at the suppression hearing.        He stated that
investigators had requested six months of login data for the “lowkey” account,
but the internet service provider could provide only approximately three
months of data. He acknowledged that the records the investigators received
did not include login data for June and July 2010, when the subject images had
been transmitted, and that this fact had not been included in the warrant

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application or supporting affidavit. However, Agent Lyons asserted that, for
the period covered by the records, “almost all” of the logins to the “lowkey”
account had been from IP addresses associated with Accurate Roofing. In
particular, he stated that, of the approximately sixty logins to the “lowkey”
account between October and December 2010, all but “five [or] six” came from
IP addresses associated with Accurate Roofing.
      In rejecting Robinson’s motion to suppress the evidence seized from
Accurate Roofing, the district court found that there were no records available
to show what IP address had logged in to the “lowkey” account at the time the
subject images were transmitted. However, it also noted that the records
provided showed “multiple matches for the log-in to the ICQ Lowkey account
and the IP address assigned to Accurate Roofing during the October through
December time period.” The district court concluded that, at the time the
warrant application was made, the investigators “had sufficient, reliable
information to believe that . . . the IP address assigned to Accurate Roofing was
being utilized for these transmissions” and that, therefore, “there was a
sufficient nexus” between the location and the evidence sought. The district
court also found that, even if the affidavit had included the information that
the “lowkey” account had been accessed from other IP addresses, this “would
not have negated a finding of probable cause” and that there was still
“sufficient evidence to support a finding of probable cause”; it also concluded
that, while the omission of this information may have been negligent, it was
not “intentional or in reckless disregard.”
      Robinson argues that the good faith exception does not apply because the
affidavit in support of the warrant application for Accurate Roofing was
misleading and omitted important information. He asserts that the affidavit
failed to disclose that the available records for the “lowkey” account dated back

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only to October of 2010, several months after the subject images were sent. He
also asserts that the affidavit failed to disclose that these records showed that
the “lowkey” account had been accessed by other IP addresses not associated
with Accurate Roofing. Robinson argues that these “omissions in the affidavit
made it falsely appear” that the evidence showed that an IP address associated
with Accurate Roofing had sent the subject images in June and July 2010. In
response, the Government argues that these omissions were not dispositive. It
notes that the district court found that, even if the information about logins
from other IP addresses had been included in the affidavit, this would not have
negated the finding of probable cause.
      To defeat the good faith exception, a movant must not only show that
there was a knowing or reckless falsehood; he must also show “that without
the falsehood there would not be sufficient matter in the affidavit to support
the issuance of the warrant.” United States v. Davis, 226 F.3d 346, 351 (5th
Cir. 2000).   The omitted material must be “information that is not only
relevant, but dispositive, so that if the omitted fact were included, there would
not be probable cause.” Id.
      The district court did not err in finding that this evidence was not
dispositive, because, even if the omitted information had been included in the
affidavit, there would still have been probable cause for the issuance of a
search warrant. See id. The affidavit stated that the “lowkey” account had
most recently been accessed from an IP address assigned to Accurate Roofing.
Investigators had determined that this same IP address had been used to login
to the “lowkey” account on multiple other occasions. Thus, even if the affidavit
had acknowledged that agents did not have records for the specific dates when
the images were transmitted, these facts would still establish a “fair
probability that contraband or evidence of a crime” would be found at that

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location. See id. (stating that movant must show that, if the omitted fact was
included, there would not have been probable cause). Likewise, the fact that
several logins to the “lowkey” account came from IP addresses not associated
with Accurate Roofing would not be dispositive because most of the logins did
come from that location.
      Accordingly, we affirm the denial of Robinson’s motion to suppress
evidence seized pursuant to the search warrant of Accurate Roofing.
   3. Search Warrant of Residence
      Robinson also appeals the district court’s denial of his motion to suppress
evidence obtained pursuant to the search warrant of his residence.
      Special Agent Lyons also prepared the affidavit in support of the warrant
to search Robinson’s residence. It repeated the statements that an IP address
associated with Accurate Roofing had been used to log in to the “lowkey”
account. It also stated that date stamps on the subject images showed they
had been taken in May 2008 and January 2009 and that investigators had
determined that the child in the images was Robinson’s son. The affidavit
asserted that public records indicated that the home address of Robinson was
the subject premises.      The affidavit concluded that there was therefore
probable cause to believe that the residence would contain evidence of the
creation of the images, such as cameras, computers, and the clothing and
household furnishings seen in the images.
     During a telephonic hearing to consider the warrant application, Agent
Lyons informed the magistrate judge that investigators had traced the subject
images back to an IP address assigned to Accurate Roofing, that the child in
the images had been identified as Robinson’s son, and that Robinson worked
at Accurate Roofing. He also asserted that the images, depicting a bedroom
and a bath tub, appeared to have been taken at a home. Agent Lyons said that

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investigators believed that Robinson’s son lived at the residence with
Robinson. He stated that agents intended to search for any digital media that
could contain child pornography, as well as clothing, bedding, and household
items that were visible in the images. At the subsequent hearing on Robinson’s
motion to suppress, Agent Lyons acknowledged that the affidavit did not
specifically assert that Robinson or his son lived at the residence at the time
the images were taken or that any of the items seen in the image were still at
the residence.
      The district court found that the date that the images were taken, more
than two years prior to the search, did not render them stale information,
unable to support probable cause. In particular, the district court noted that
caselaw suggested that, especially in child pornography cases, older
information still may be reliable because of techniques allowing for the later
electronic retrieval of evidence and the fact that child pornography is usually
carried out in the secrecy of the home. The district court also concluded that,
“once there was a search of the business and an identity that the victim in the
child pornography was the son of Mr. Robinson, then certainly there was
reason to believe that items of clothing and property could be found at the home
that would substantiate the likelihood that the photographs were taken in the
home of the defendant.”
      Challenging the district court’s suppression ruling, Robinson makes two
arguments: first, that the affidavit was “bare bones” because it depended on
dated—i.e., “stale”—information on which an officer could not reasonably rely;
and, second, the affidavit was otherwise lacking in indicia of probable cause
because there was not a sufficient nexus between the place to be searched and
the evidence to be seized, such that the good faith exception should not apply.
Robinson states that the supporting affidavit contained no information

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indicating that he or his son had lived at his current residence when the images
were taken in May 2008 and January 2009. He asserts that the affidavit failed
to establish a nexus between the evidence sought and the place to be searched.
He also asserts that the affidavit contained no information indicating that it
was likely that the clothing or household items visible in the images would be
present more than two years later.
      An officer is not entitled to invoke the good faith exception if the affidavit
upon which the warrant is founded is a “bare bones” affidavit “so lacking in
indicia of probable cause as to render official belief in its existence entirely
unreasonable.” Mays, 466 F.3d at 343 (citation and internal quotation marks
omitted). A “bare bones” affidavit contains “wholly conclusory statements,
which lack the facts and circumstances from which a magistrate can
independently determine probable cause.” United States v. Satterwhite, 980
F.2d 317, 321 (5th Cir. 1992) (citation omitted). Whether an affidavit is a bare
bones affidavit is determined by a totality of the circumstances. United States
v. Fisher, 22 F.3d 574, 578 (5th Cir. 1994).
      Stale information cannot be used to establish probable cause. Marcilis
v. Twp. of Redford, 693 F.3d 589, 601 (6th Cir. 2012). When evaluating the
staleness of information in an affidavit, this Court considers the particular
facts of the case, including the nature of the unlawful activity and of the
evidence sought, especially whether the evidence “is of the sort that can
reasonably be expected to be kept for long periods of time in the place to be
searched.” United States v. Craig, 861 F.2d 818, 822–23 (5th Cir. 1988).
      Here, we hold that the information in the affidavit was not so stale that
it rendered the affidavit a “bare bones” affidavit. In other child pornography
cases, this Court and others have found that similarly old information is not
stale for establishing probable cause. See United States v. Allen, 625 F.3d 830,

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843 (5th Cir. 2010); see also United States v. Paull, 551 F.3d 516, 522–23 (6th
Cir. 2009) (information that the defendant subscribed to child pornography
thirteen months earlier was not stale); United States v. Newsom, 402 F.3d 780,
783 (7th Cir. 2005) (“Information a year old is not necessarily stale as a matter
of law, especiall where child pornography is concerned.” (citations omitted));
United States v. Lacy, 119 F.3d 742, 745 (9th Cir. 1997) (upholding search
warrant in pornography case based on ten-month-old information). Relevant
to this inquiry is the fact that evidence of child pornography often is found in
the secrecy of a defendant’s home and the criminal activity is carried out over
a long period. See Allen, 625 F.3d at 843 (citing United States v. Frechette, 583
F.3d 374, 378 (6th Cir. 2009)).
      In addition, Robinson alleges that there was not a sufficient nexus
connecting the child-pornography activity to his residence.        The requisite
nexus between the location to be searched and the evidence sought can be
shown by “direct observation” or by “normal inferences as to where the articles
sought would be located.” United States v. Payne, 341 F.3d 393, 400 (5th Cir.
2003) (citation and internal quotation marks omitted). The issuing judge may
“draw reasonable inferences from the material he receives,” and the ultimate
determination of the affidavit’s adequacy is entitled to great deference on
review. United States v. May, 819 F.2d 531, 535 (5th Cir. 1987).
      Even though the affidavit failed to assert that Robinson or his son still
lived at the same location as when the images were taken and failed to allege
that any of the items visible in the images were still at his residence several
years later, the information had sufficient indicia of probable cause that an
officer in good faith could rely on it. Even if Robinson could have moved to a
different address after taking the images, it would be a reasonable inference
that evidence of the production, distribution, or possession of child

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pornography might be found at Robinson’s current residence. In addition, it
would be a “normal inference” to conclude that Robinson and his son lived at
the same residence at the time the photographs were taken and that, because
the images appeared to have been taken in a home, the household items visible
in the background, the victim’s clothing, or even the camera used to take the
images, would be located at their current residence even if Robinson and his
family had moved after the images were taken. See Payne, 341 F.3d at 400
(stating that the required nexus may be established by “normal inferences as
to where the articles sought would be located”). Accordingly, we hold that the
district court did not err when it concluded that the information was sufficient
to entitle the officer to invoke the good faith exception.
      In sum, we affirm the district court’s denial of Robinson’s motion to
suppress evidence obtained pursuant to both search warrants. Robinson’s
arguments that the good faith exception does not apply are unavailing.
Robinson is unable to prove that the withheld information regarding IP
addresses was dispositive to the probable cause determination for the Accurate
Roofing search warrant. Robinson is also unable to show that law enforcement
could not reasonably rely on the search warrant for his residence. The district
court did not err in determining that the information used to establish probable
cause was not stale, given the nature of the offense.
B. Sentencing
      Robinson raises two issues with regard to his sentence. First, he
contends that the sentencing court committed procedural error by failing to
appreciate that it had discretion to consider his cooperation with the
Government under 18 U.S.C. § 3553(a). Second, he contends that his sentence
of 720 months is substantively unreasonable.


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   1. Standard of Review
       This Court reviews a district court’s sentencing decision in two steps.
First, we must “ensure that the district court committed no significant
procedural error, such as failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, [or] failing to consider
the § 3553(a) factors.” United States v. Cisneros–Gutierrez, 517 F.3d 751, 764
(5th Cir. 2008) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). This
Court applies harmless error review to any procedural error. United States v.
Neal, 578 F.3d 270, 274 (5th Cir. 2009). Second, if the sentence is procedurally
sound or if the procedural error is harmless, this Court “consider[s] the
substantive reasonableness of the sentence imposed under an abuse-of-
discretion standard.”         Id. at 273 (citation and internal quotation marks
omitted). In applying this two-step review, this Court reviews the sentencing
court’s interpretation or application of the Sentencing Guidelines de novo, and
its factual findings for clear error. Id. 3
       For the reasons below, we hold that the sentencing court’s failure to
appreciate its discretion to consider Robinson’s cooperation was a procedural
error and was not harmless. Therefore, we remand to allow the court to
exercise its discretion to consider evidence of cooperation under § 3553(a). 4



       3   Robinson sufficiently preserved his procedural error issue by arguing in his
sentencing memorandum that the district court should impose a reduced sentence in light of
his cooperation, despite the Government’s decision to not file a § 5K1.1 motion. “To preserve
error, an objection must be sufficiently specific to alert the district court to the nature of the
alleged error and to provide an opportunity for correction.” United States v. Neal, 578 F.3d
270, 272 (5th Cir. 2009). By asserting in his sentencing memorandum that the district court
should consider his cooperation, even in the absence of a § 5K1.1 motion, Robinson preserved
the issue for appeal. See id. at 272–73 (finding defendant’s written objection to PSR
sufficiently preserved that issue for appeal, even if he did not object when district court
misconstrued it).
       4   We do not reach the issue of whether the sentence is substantively unreasonable.
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   2. Procedural Error
      Following the Supreme Court’s decision in United States v. Booker, 543
U.S. 220 (2005), sentencing courts must conduct a two-part process—first
calculating the sentence using the now-advisory Sentencing Guidelines, then
applying an individualized assessment using the factors set out in
18 U.S.C. § 3553(a). See Gall, 552 U.S. at 49–50. The first of the seven
§ 3553(a) factors that a sentencing court must consider is a “broad command
to consider ‘the nature and circumstances of the offense and the history and
characteristics of the defendant.’” Id. at 50 n.6 (quoting 18 U.S.C. § 3553(a)(1)).
      Robinson’s claim, in essence, is that the sentencing court misunderstood
the relationship between this broad command and the Sentencing Guidelines’
policy statement under § 5K1.1. He argues that even though the Government
did not move for a departure under § 5K1.1, the court was not barred from
carrying out its mandated task of considering the § 3553(a) factors, including
his cooperation.
      This court has previously held that, absent a government motion, a
sentencing court does not have discretion to depart on the basis of the
defendant’s cooperation under § 5K1.1. United States v. Solis, 169 F.3d 224,
226–27 (5th Cir. 1999); see also United States v. Arreola–Albarran, 210 F. App’x
441, 443–44 (5th Cir. 2006) (unpublished) (per curiam) (citing Solis for this
proposition post-Booker). This Court has not, however, had the opportunity to
decide whether a sentencing court may nonetheless consider cooperation as
part of the § 3553(a) factors in the absence of a § 5K1.1 motion. We now join
our sister circuits in expressly holding that a sentencing court has the power
to consider a defendant’s cooperation under § 3553(a), irrespective of whether
the Government files a § 5K1.1 motion. We further join our sister circuits in


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holding that a sentencing court’s failure to recognize its discretion to consider
a defendant’s cooperation under § 3553(a)(1) is a significant procedural error.
      There are several persuasive reasons for adopting this rule.         First,
nothing in the text of § 3553(a) suggests that a § 5K1.1 motion should be the
exclusive means for considering cooperation. Section 3553(a)(1) is a broadly
worded provision guiding the sentencing court in its exercise of discretion. See
Gall, 552 U.S. at 49 n.6. Indeed, § 3553(a)(1) “contains no express limitations
as to what ‘history and characteristics of the defendant’ are relevant.” United
States v. Fernandez, 443 F.3d 19, 33 (2d Cir. 2006).
      Second, this Court has presumed that a sentencing court may consider
evidence of cooperation as part of the mandated consideration of § 3553(a)
factors—and, in particular, § 3553(a)(1)—but that it retains discretion as to
whether and what weight to give that cooperation evidence. See United States
v. Fraga, 704 F.3d 432, 440 (5th Cir. 2013) (“No § 3553(a) factor requires the
sentencing judge to take such cooperation into account, and we cannot conclude
that the sentencing judge abused her discretion by considering the testimony
but ultimately declining to place significant weight on that cooperation.”
(footnote omitted)). This approach is consistent with the Second Circuit’s
observation that § 3553(a)(1) is a “sweeping provision [that] presumably
includes the history of a defendant’s cooperation and characteristics evidenced
by cooperation, such as remorse or rehabilitation.” Fernandez, 443 F.3d at 33.
      Third, every other circuit that has examined this issue has expressly
stated that a court may consider evidence of cooperation under §3553(a)(1)
even in the absence of a §5K1.1 motion. See United States v. Landrón–Class,
696 F.3d 62, 77–78 (1st Cir. 2012), cert. denied, 133 S. Ct. 1621 (2013); United
States v. Massey, 663 F.3d 852, 858 (6th Cir. 2011); United States v. Leiskunas,


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656 F.3d 732, 737 (7th Cir. 2011); Fernandez, 443 F.3d at 33; United States v.
Doe, 398 F.3d 1254, 1260–61 (10th Cir. 2005).
      Fourth, permitting a Sentencing Guideline rule regarding departures
from the guidelines to preclude consideration of factors relevant to variances
from the guidelines would conflate two distinct categories under post-Booker
sentencing law.
      A “departure” is typically a change from the final sentencing range
      computed by examining the provisions of the Guidelines
      themselves. It is frequently triggered by a prosecution request to
      reward cooperation . . . or by other factors that take the case
      “outside the heartland” contemplated by the Sentencing
      Commission when it drafted the Guidelines for a typical offense.
      A “variance,” by contrast, occurs when a judge imposes a sentence
      above or below the otherwise properly calculated final sentencing
      range based on application of the other statutory factors in 18
      U.S.C. § 3553(a).
United States v. Rangel, 697 F.3d 795, 801 (9th Cir. 2012) (citation omitted),
cert. denied, 133 S. Ct. 1294 (2013).      These categories have continuing
importance not least because of the sort of review each occasions. Whereas “a
properly granted § 5K1.1 motion would reflect a proper application of the
Sentencing Guidelines, and thus be entitled to an appellate presumption of
reasonableness,” a variance under § 3553(a) “could be granted absent
government motion to effect a ‘reasonable’ sentence, [and] would not be entitled
to the same presumption.” United States v. Blue, 557 F.3d 682, 686 (6th Cir.
2009) (internal quotation marks omitted) (citing Rita v. United States, 551 U.S.
338, 347 (2007)).    We now hold that a court may consider evidence of
cooperation under §3553(a)(1) even in the absence of a §5K1.1 motion.
      Having established that courts may consider cooperation evidence under
the § 3553(a) factors, we must still decide whether the sentencing court
committed a significant procedural error by failing to appreciate its discretion

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                                  No. 12-60841

in the instant case. Under other circumstances, this Court has held that a
sentencing court procedurally erred when it failed to appreciate its discretion
under § 3553(a) due to a misinterpretation of the Sentencing Guidelines. See
United States v. Burns, 526 F.3d 852, 862 (5th Cir. 2008) (holding that
defendant was “entitled to have his sentence set by a judge aware of the
discretion that Kimbrough [v. United States, 552 U.S. 85 (2007),] has
announced”).    The rationale of Burns applies with equal force here: a
sentencing court commits procedural error if it fails to appreciate its discretion
to consider evidence of cooperation under § 3553(a). This is true even though
our opinion marks this Circuit’s first announcement of this rule. See id. at 861
(vacating sentence and remanding to district court to exercise its discretion
correctly under § 3553(a) in light of Kimbrough, which was decided between
the district court’s sentence and the defendant’s appeal).
      Applying this test, we conclude that the sentencing court did fail to
appreciate its discretion to consider evidence of cooperation under § 3553(a).
The sentencing court “acknowledge[d]” the “very valuable” information
Robinson provided in cooperating with law enforcement. In addition, the court
heard extensive argument from defense counsel on Robinson’s cooperation and
indicated that it had read Robinson’s sentencing memorandum. Yet the court
was quite explicit in rejecting its authority to consider the evidence of
Robinson’s cooperation. In the same sentence that the court acknowledged
Robinson’s cooperation, it stated that it “does [Robinson] no good for the
purpose of sentencing in that the Court does not have before it a 5K motion to
consider” (emphasis added). The court went on to construe Robinson’s request
for a variance merely as a request for a departure and therefore “moot”:
      [The § 5K1.1 motion] is certainly within the Government’s
      prerogative to file. They did not in this case. And, so, it’s a moot
      question as to whether or not you have—would have received a
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                                  No. 12-60841

      departure from the 720 months had the Government filed that
      motion. It’s simply not before the Court.
      This is not a case where the court merely evinced doubt or hesitation.
See, e.g., Landrón–Class, 696 F.3d at 78 (finding no error where court initially
expressed doubt it had discretion to consider cooperation absent government
motion). Nor is it a situation in which the court understood its discretion to
consider the defendant’s cooperation, but elected not to give that evidence any
weight in the imposition of the sentence. See, e.g., Fernandez, 443 F.3d at 34
(finding no error where sentencing court appreciated its discretion to consider
cooperation evidence but gave it no weight). The sentencing court here clearly
concluded it did not have the authority, and that conclusion was a significant
procedural error.
   3. Harmless Error
      Not all procedural errors require reversal; the court may affirm the
sentence in spite of a procedural error if that error is harmless—that is, if “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)). “The proponent of the
sentence has the burden of establishing that the error was harmless.” Neal,
578 F.3d at 274. If “a district court is mistaken about its authority to consider
some factor during sentencing . . . then [the court] must remand for
resentencing unless ‘it is clear . . . that the district court would have imposed
the same sentence had it known that it could consider’ that factor.” United
States v. Garcia, 655 F.3d 426, 432 (5th Cir. 2011) (third alteration in original)
(quoting Unites States v. Davis, 316 F. App’x 328, 332 (5th Cir. 2009)
(unpublished) (per curiam)).



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                                      No. 12-60841

       In light of this stringent standard for finding harmless error, we hold
that the sentencing court’s procedural error was not harmless. This Court’s
reasoning in Burns is instructive. In that case, the defendant asked the district
court to exercise its discretion to reduce his sentence based on the then-existing
disparity in treatment of crack cocaine and powder cocaine offenses under the
Sentencing Guidelines. 526 F.3d at 860; see also Garcia, 655 F.3d at 432–33
(discussing Burns). 5 In response, the district court explained that it did not
possess such discretion:
       I recognize what you claim, which is claimed not only by you but
       by others . . . of the disparity between crack cocaine and cocaine
       sentencing. And that argument has been—discussion and debate
       has been going on in circuit courts and in the Congress and among
       the Sentencing Commission, but the guidelines are what the
       guidelines are today. . . . The Court finds that the facts do not
       warrant a downward departure . . . for taking into consideration
       the difference between crack cocaine crimes under the guidelines
       and cocaine offenses under the guidelines as a decision that’s been
       made by the Congress of the United States and the Sentencing
       Commission.
             The Court finds it has no—limited discretion, if any. And if
       I do have discretion, I exercise my discretion not to downward
       depart on that basis.
526 F.3d at 860–61 (alterations in original) (emphasis added). But, in fact, the
district court in Burns did have that discretion according to the Supreme
Court’s subsequent decision in Kimbrough v. United States, 552 U.S. 85, 110
(2007). 6


       5 At the time of Burns’s sentencing, the Sentencing Guidelines reflected a 100:1 ratio
of crack to powder, “meaning that for purposes of sentencing, one gram of crack cocaine was
considered the equivalent of 100 grams of cocaine powder.” Burns, 526 F.3d at 860. Burns
argued that his sentence would have been significantly lower if the court had used the
Guidelines applicable to powder cocaine, rather than crack. Id.
       6The Supreme Court issued Kimbrough in between Burns’s sentencing and his
appeal. Burns, 526 F.3d at 861. Kimbrough held that a sentencing court could “conclude
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                                    No. 12-60841

      On appeal, the Government argued that the district court’s statements—
“the facts do not warrant a downward departure” and “if I do have discretion,
I exercise my discretion not to downward depart”—showed that the error was
harmless. Burns, 526 F.3d at 861. This Court disagreed:
      Read in context, the district court’s statement is that Burns is not
      entitled to a downward departure under the Sentencing
      Guidelines. This would mean that Burns’s case was not atypical
      or unusual and fell within the “heartland” of the Sentencing
      Guidelines. United States v. Winters, 174 F.3d 478, 482 (5th Cir.
      1999) (“a district court cannot depart from the guidelines unless it
      first finds . . . that facts or circumstances remove the case from the
      ‘heartland’ of typical cases encompassed within the guideline.”).
      The Kimbrough issue has a different focus. We cannot tell from
      the record whether, if the judge had known that he could consider
      policy disagreement as an additional factor in the “array of factors
      warranting consideration” in his analysis under 18 U.S.C.
      § 3553(a), it would have affected the ultimate sentence imposed on
      Burns.
Id. at 861–62 (alteration in original). Accordingly, the Court vacated Burns’s
sentence on the basis that he was “entitled to have his sentence set by a judge
aware of the discretion that Kimbrough has announced.” Id. at 862.
      As this Court subsequently explained in Garcia, “Burns sets a high bar.”
655 F.3d at 433. Indeed, “[a] district court’s mistaken belief regarding its
authority under the guidelines is not harmless even where it states that the
modified sentence is appropriate in light of other factors and that even if it had
discretion to analyze the supposedly impermissible factor, that factor would
not affect the sentence.” Id. The Garcia opinion further explained that the
district court’s statements in Burns did not “make it obvious that it would have
imposed the same sentence had it been aware of its authority.” Id.


when sentencing a particular defendant that the crack/powder disparity yields a sentence
‘greater than necessary’ to achieve § 3553(a)’s purposes.” 552 U.S. at 110.
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                                No. 12-60841

      Turning to the present case, we find even stronger reasons for holding
that the error was not harmless. In Burns, the district court included the
caveat that it would have imposed the same sentence even if it had considered
the supposedly impermissible factor.        526 F.3d at 861 (“And if I do have
discretion, I exercise my discretion not to downward depart on that basis.”).
But here, the sentencing court never specifically addressed or weighed
Robinson’s cooperation in its conditional statements about what it might have
done. The sentencing court stated that “if the Court were to consider [the
§ 3553] factors, it would not have helped Mr. Robinson at all in his sentence
because when the Court considers the nature and circumstances of this offense
[it] finds that there is no reason when [sic] he would be entitled to any
reduction.” The sentencing court reiterated, “If I considered all the factors
under [§] 3553 that we might look at to warrant a reduction in your sentence
under Booker, the Court would still be of the opinion that a 720-month sentence
is appropriate in this case.” Although this was a caveat, it was not a caveat
explaining that the court would have reached the same conclusion even
considering Robinson’s cooperation. Thus, because the language in Burns did
not show the error to be harmless, neither do the sentencing court’s statements
in this case.
      Furthermore, as this Court explained in United States v. Ibarra–Luna,
628 F.3d 712 (5th Cir. 2010), the harmless error doctrine places a “heavy
burden” on the proponent of a sentence to convincingly demonstrate that the
sentencing court actually would have followed the very same reasoning absent
the error. Id. at 717. Even though the Government did cite the sentencing
transcript, the Government has not met its heavy burden. Rather, the record
supports vacating Robinson’s sentence and remanding for consideration in
light of the rule we have announced.

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                               No. 12-60841

     Consequently, we remand for resentencing by a sentencing court aware
of its discretion to consider evidence of cooperation under § 3553(a).     We
express no view on what sentencing decisions the district court should make
on remand.
                            III. CONCLUSION
      We AFFIRM the district court’s denial of Robinson’s motion to
suppress, but VACATE and REMAND for resentencing consistent with this
opinion.




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