     Case: 14-31297      Document: 00513627597         Page: 1    Date Filed: 08/08/2016




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

                                      No. 14-31297                                  FILED
                                                                               August 8, 2016
                                                                               Lyle W. Cayce
UNITED STATES OF AMERICA,                                                           Clerk

                                                 Plaintiff-Appellee,
v.

CHANNING CHRISTOPHER MILLER,

                                                 Defendant-Appellant.



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:13-CR-281-1


Before STEWART, Chief Judge, and JONES and DENNIS, Circuit Judges.
PER CURIAM:*
       We withdraw our previous opinion in United States v. Miller, No. 14-
31297, ___ F. App’x ___, 2016 WL 3549003 (5th Cir. June 29, 2016), and
substitute the following.
       Defendant-Appellant Channing Miller (“Miller”) pleaded guilty to
possession with intent to distribute cocaine, and the district court sentenced
him to 120 months’ imprisonment. He now appeals, arguing that the district




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
     Case: 14-31297      Document: 00513627597         Page: 2    Date Filed: 08/08/2016



                                      No. 14-31297
court plainly erred in sentencing him based on an erroneous Guidelines range.
We VACATE and REMAND for resentencing.
                      FACTS & PROCEDURAL HISTORY
       Miller pleaded guilty to a single-count indictment charging him with
possession with intent to distribute cocaine hydrochloride in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(C). The Presentence Investigation Report (“PSR”)
stated that 3.5 “brick shaped objects wrapped in clear plastic” were seized from
Miller’s person upon arrest and that a subsequent laboratory analysis
determined that the packages contained 4.469 kilograms of cocaine. Based in
part on this amount, 1 the PSR assigned a total offense level of 25 and a criminal
history category of V, which yielded a Guidelines range of 100–125 months’
imprisonment.
       On November 12, 2014, the district court held Miller’s sentencing
hearing. At the beginning of the hearing, the parties alerted the court to a
mistake in the PSR’s cocaine accounting—the 4.469 kilograms referenced in
the PSR was the gross weight of the packages seized from Miller upon arrest,
whereas the laboratory analysis actually reported that the net weight of
cocaine in the packages was only 3.499 kilograms. The parties (and probation)
agreed that the lower, net cocaine quantity was appropriate for purposes of
calculating the Guidelines and that this new quantity reduced Miller’s total
offense level to 23. The parties further agreed that this, in turn, reduced the
applicable Guidelines range to 84–105 months’ imprisonment. The district
court explicitly adopted on the record the revised Guidelines range of 84–105
months as “unopposed by either side” and as supported by the reduced cocaine
quantity.


       1 The PSR reflects that Miller also had 22.5 grams of marijuana and two bottles of a
cutting agent in his possession at the time of his arrest. These substances are not at issue
here.
                                             2
    Case: 14-31297       Document: 00513627597   Page: 3   Date Filed: 08/08/2016



                                  No. 14-31297
      After adopting the revised range, the district court made a number of
statements in reference to the sentence it contemplated for Miller.           For
example, the court informed Miller that what was driving the sentence he was
facing, other than the amount of cocaine that was adjusted to his benefit, was
his extensive recidivism with drug offenses. To that end, the court outlined all
of the prior drug offenses to which Miller pleaded guilty in state court before
noting that, after each conviction, “his adjustment to supervision was poor.”
Referencing the 18 U.S.C. § 3553(a) factors, the court returned to Miller’s
recidivism and discussed how his “repetitive involvement in drug activities”
aggravated his acceptance of responsibility, detracted from his ability to
support his children, and showed a “sense of irresponsibility” and a lack of
respect for the law.
      After making all of these statements, the district court stated that it was
“ready to proceed with sentencing.”         Just before imposing a 120-month
sentence, the court pronounced:
            As indicated earlier, this is the defendant’s fourth
      conviction. This particular conviction is his first federal
      conviction for possession with intent to distribute a quantity
      of cocaine hydrochloride. The prior drug related convictions
      have already been documented and referenced in this
      hearing and in the report that we have here today.
            In this situation, the Court is mindful again of Section
      3553(a), considered all the factors there and finds [] this
      sentence to be a reasonable sentence, hopefully, to meet all
      of the factors, particularly those factors related to safety of
      the public, promoting respect for the law, avoiding recidivist
      behavior and considering the defendant’s personal history
      characteristics as well as the criminal history conduct as
      already noted.
Miller did not object.
      On December 8, 2014, almost one month after sentencing, the district
court entered its Statement of Reasons (“SOR”). The SOR contained a number

                                        3
    Case: 14-31297     Document: 00513627597       Page: 4   Date Filed: 08/08/2016



                                  No. 14-31297
of inaccuracies—it erroneously indicated that the court had adopted the PSR
without change at sentencing; it incorrectly listed Miller’s offense level as 25
and the Guidelines range as 100–125 months’ imprisonment; and it wrongly
indicated that the 120-month sentence was within-Guidelines. The SOR also
unexplainably left blank a section dedicated to explaining the court’s reasons
for imposing a non-Guidelines sentence.
      Miller timely appealed.
                          STANDARD OF REVIEW
      In light of his failure to object, Miller concedes that our review is for plain
error. See, e.g., United States v. Stanford, 805 F.3d 557, 566 (5th Cir. 2015)
(noting that unpreserved errors are reviewed for plain error). To demonstrate
plain error, Miller must show a clear or obvious error that affects his
substantial rights. See United States v. Castaneda-Lozoya, 812 F.3d 457, 459
(5th Cir. 2016). Even if Miller makes this showing, we retain discretion to
remedy the error, which we exercise only if the “error seriously affects the
fairness, integrity or public reputation of judicial proceedings.” Puckett v.
United States, 556 U.S. 129, 135 (2009) (alteration and quotation marks
omitted).
                                 DISCUSSION
      Miller’s sole appellate argument is that the district court mistakenly
imposed his 120-month sentence using the original, erroneous Guidelines
range of 100–125 months despite earlier adopting on the record the revised
Guidelines range of 84–105 months. That said, Miller’s argument is not a
model for clarity. He cites cases such as Gall v. United States, 552 U.S. 38
(2007), not to argue that the district court’s failure to assign reasons for the
above-Guidelines sentence was plain error in and of itself, but rather to argue
that “[t]he court’s silence about a departure or variance . . . demonstrates its
mistaken reliance on the original, uncorrected range when fashioning the 10-
                                         4
       Case: 14-31297     Document: 00513627597          Page: 5     Date Filed: 08/08/2016



                                       No. 14-31297
year sentence.”       Similarly, he cites the inaccuracies in the SOR only as
indicators of the district court’s mistaken belief that the 100–125 months range
governed and that the 120-month sentence was within-Guidelines; notably, he
does not argue that any incongruity between the court’s oral sentencing
pronouncement and the SOR, alone, is reversible plain error. See, e.g., United
States v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001) (per curiam) (“In this
circuit, it is well settled law that where there is any variation between the oral
and written pronouncements of sentence, the oral sentence prevails.” (quoting
United States v. Shaw, 920 F.2d 1225, 1231 (5th Cir. 1991)). On this record,
Miller has shown that the district court plainly erred by sentencing him based
on an erroneous Guidelines range.
        Miller has shown a clear and obvious error. It is undisputed that the
district court adopted at sentencing the revised Guidelines range of 84–105
months and subsequently sentenced Miller to 120 months, i.e., the court
imposed a sentence 15 months above the top end of the correct Guidelines
range but within the original, erroneous range of 100–125 months. The court
did not orally comment that it was imposing an upward variance from the
correct range or explain its reasons for doing so. 2 See, e.g., United States v.
Fraga, 704 F.3d 432, 438–39 (5th Cir. 2013) (“The Supreme Court has



   2  In its brief and at oral argument, the Government zealously pressed the notion that
district courts are not required to use “magic words” or specific terminology when imposing
an above-Guidelines sentence. We agree. See Fraga, 704 F.3d at 438–39 (“[W]e have
previously explained that when imposing a non-Guidelines sentence, the district court need
not engage in robotic incantations that each statutory factor has been considered.” (citation
and internal quotation marks omitted)); United States v. Denny, 653 F.3d 415, 420 (6th Cir.
2011) (“[N]o specific magic words are necessary to render a sentence reasonable.” (citation
and quotation marks omitted)); United States v. Moton, 226 F. App’x 936, 938 (11th Cir. 2007)
(per curiam) (“We have never held that the term ‘variance’ is a magic word that district courts
must utter during sentence hearings.”). However, this overarching principle does not excuse
a sentencing court from its primary obligation to explain its reasons for imposing an above-
Guidelines sentence, which, minimally, would include acknowledging whether the sentence
imposed is in fact within or above the Guidelines range.
                                              5
    Case: 14-31297     Document: 00513627597       Page: 6    Date Filed: 08/08/2016



                                   No. 14-31297
explained that a sentencing judge commits procedural error when []he ‘fail[s]
to adequately explain the chosen sentence—including an explanation for any
deviation from the Guidelines range.’” (second alteration in original) (quoting
Gall, 552 U.S. at 51)). True enough, as the Government argues, the court did
explain why a number of factors related to Miller’s recidivism justified a
lengthy prison sentence; however, after reducing the Guidelines range to 84–
105 months based on the late-breaking cocaine reduction, the court did not
acknowledge that the 120-month sentence ultimately imposed was an above-
Guidelines sentence, see United States v. Nelson, 591 F. App’x 37, 38 (2d Cir.
2015) (“To be sure, the district court provided ample justification for imposing
a sentence with a lengthy term of incarceration.             But the court did not
acknowledge that it was imposing an above-guidelines sentence, so it therefore
could not have satisfied its obligation to explain its reasons for doing so.”), cert.
denied, 136 S. Ct. 237 (2015); it did not “explain on the record why the range
would not serve the goals listed in Section 3553(a),” United States v. Ibarra-
Luna, 628 F.3d 712, 717 (5th Cir. 2010); and it did not “discuss whether the
sentence imposed was within the recommended range,” United States v.
Phillips, 415 F. App’x 557, 559 (5th Cir. 2011) (per curiam). These sentencing
omissions plausibly support the error Miller emphasizes, i.e., the court did not
intend to impose an above-Guidelines sentence and instead sentenced Miller
to 120 months because it erroneously fashioned the sentence using the original
100–125 months range.
      The inaccuracies in the SOR reflect the same error. As briefly mentioned
supra, the SOR indicated that the court had adopted the PSR without change;
listed the Guidelines range as 100–125 months; noted that the court did not
depart or vary from the Guidelines in imposing a 120-month sentence; and left
blank portions dedicated to explaining an above-Guidelines sentence.              Of
course, each of these notations is inconsistent with the sentence Miller actually
                                         6
    Case: 14-31297     Document: 00513627597      Page: 7   Date Filed: 08/08/2016



                                   No. 14-31297
received—the district court did not adopt the PSR without change, instead
reducing the amount of cocaine attributable to Miller and decreasing the
corresponding Guidelines range to 84–105 months; and the 120-month
sentence was 15-months above the revised range, which necessarily required
an explanation in the SOR. These inaccuracies amplify the voids in the district
court’s oral pronouncement and buttress Miller’s argument that the court
mistakenly fashioned his sentence using the erroneous 100–125 months range.
Cf. Phillips, 415 F. App’x at 559 (plain error where the district court failed to
explain an upward departure in open court and failed to sufficiently remedy
the explanation in the SOR); see also United States v. Gore, 298 F.3d 322, 325–
26 (5th Cir. 2006) (no plain error where the district court failed to provide
reasons for an upward departure in open court but explained its reasons for
departing in the written SOR).
      In sum, Miller has shown that the district court relied on an erroneous
Guidelines range in imposing his sentence. Nothing in the district court’s oral
pronouncement or in the written record indicates that the court intended to
impose a sentence above the applicable Guidelines range of 84–105 months,
which was hastily presented by the parties and adopted by the court at
sentencing; rather, on balance, the ambiguous circumstances at sentencing
suggest that the court fashioned Miller’s 120-month sentence using the
original, erroneous 100–125 months range. This was clear and obvious error.
See, e.g., Gall, 552 U.S. at 51.
      Miller has also shown that this error affected his substantial rights. A
defendant may satisfy the third prong of plain error review by showing “a
reasonable probability that, but for the district court’s error, [he] would have
received a lower sentence.” United States v. Davis, 602 F.3d 643, 647 (5th Cir.
2010). More specifically, “in cases where the correct and incorrect Guidelines
ranges overlap, but the court imposes a sentence significantly above the top-
                                        7
    Case: 14-31297    Document: 00513627597    Page: 8     Date Filed: 08/08/2016



                                No. 14-31297
end of the correct Guidelines range, the imposed sentence affects the
defendant’s substantial rights ‘where it is not apparent from the record that
[the defendant] would have received an above-Guidelines sentence.’” United
States v. Hernandez, 690 F.3d 613, 621 (5th Cir. 2012) (alteration in original)
(quoting United States v. Mudekunye, 646 F.3d 281, 290 (5th Cir. 2011) (per
curiam)). We are cognizant of the Supreme Court’s recent instruction that only
in rare cases will a Guidelines error of this magnitude have no impact on a
defendant’s substantial rights— “in the ordinary case a defendant will satisfy
his burden to show prejudice by pointing to the application of an incorrect,
higher Guidelines range and the sentence he received thereunder. Absent
unusual circumstances, he will not be required to show more.”            Molina-
Martinez v. United States, 136 S. Ct. 1338, 1347 (2016).
      Here, the original   (100–125 months) and revised (84–105 months)
Guidelines ranges overlap by five months, and the district court imposed a
sentence fifteen months higher than the top-end of the revised range. We have
previously held that similar disparities affected a defendant’s substantial
rights. See Hernandez, 690 F.3d at 621 (ranges overlapped by eleven months
“and the district court imposed a sentence [twelve] months higher than the top-
end of the correct Guidelines range”); Mudekunye, 646 F.3d at 290 (ranges
overlapped by one month and the district court imposed a sentence nineteen
months above the correct range); United States v. Carrizales-Jaramillo, 303 F.
App’x 215, 217 (5th Cir. 2008) (one month overlap and defendant’s sentence
exceeded the top end of the corrected range by one month). Notwithstanding
its reliance on the now-obviated “additional evidence” test, see Molina-
Martinez, 136 S. Ct. at 1346–47, the Government essentially argues that Miller
cannot show prejudice because the district court’s oral pronouncement shows
that he would have received the same above-guidelines sentence based on his
recidivism. See id. at 1347 (“The Government remains free to point to parts of
                                      8
    Case: 14-31297     Document: 00513627597     Page: 9   Date Filed: 08/08/2016



                                  No. 14-31297
the record—including relevant statements by the judge—to counter any
ostensible showing of prejudice the defendant may make. Where, however, the
record is silent as to what the district court might have done had it considered
the correct Guidelines range, the court’s reliance on an incorrect range in most
instances will suffice to show an effect on the defendant’s substantial rights.”
(internal quotation marks, alteration, and citation           omitted)).     The
Government’s reading of the sentencing transcript in support of this argument
is plausible. However, “in . . . cases in which we have held that the court’s
statements eliminate any reasonable probability of a lesser sentence,” we have
generally required more than a plausible reading of the sentencing colloquy;
rather, “the sentencing court stated explicitly and unequivocally that the
imposed sentence was the correct sentence regardless of the applicable
Guideline ranges.” Mudekunye, 646 F.3d at 290 (citing, inter alia, United
States v. Bonilla, 524 F.3d 647, 656 (5th Cir. 2008) (finding no reasonable
probability of a different sentence despite an erroneous enhancement where
the district court stated, “I believe that I have calculated the guidelines
correctly, but even if I am wrong about the guidelines, this is the sentence that
I would impose in any event”)). That is not the case here. As discussed supra,
the court explained why Miller’s recidivism motivated the sentencing
determination, but nothing explicitly and unequivocally indicates that the
court would have imposed the same sentence as a fifteen-month variance or
otherwise irrespective of the Guidelines range. Miller has thus shown that the
court’s error affected his substantial rights.
      Finally, Miller has shown that the district court’s error seriously affects
the fairness, integrity, or public reputation of judicial proceedings.          A
“substantial disparity between the imposed sentence and the applicable
Guideline range warrants the exercise of our discretion to correct the error.”
Mudekunye, 646 F.3d at 291. Miller’s sentence was fifteen months above the
                                        9
   Case: 14-31297    Document: 00513627597      Page: 10   Date Filed: 08/08/2016



                                 No. 14-31297
top end of the revised Guidelines range. We have vacated sentences involving
errors of a similar scale. See, e.g., United States v. Santacruz-Hernandez, No.
15-40260, ___ F. App’x ___, ___, 2016 WL 2909165, at *2 (5th Cir. May 18, 2016)
(vacating on plain error review a sentence two months above the top end of the
correct Guidelines range); Mudekunye, 646 F.3d at 290 (same; nineteen month
disparity); United States v. John, 597 F.3d 263, 286–87 (5th Cir. 2010) (same;
twenty-one month disparity); United States v. Price, 516 F.3d 285, 290 (5th Cir.
2008) (same; eighteen month disparity); Carrizales-Jaramillo, 303 F. App’x at
217 (same; one-month disparity). We see no reason to do otherwise in this case.
Accordingly, we exercise our discretion to remedy the error with resentencing.
                               CONCLUSION
      For the reasons considered above, we VACATE Miller’s sentence and
REMAND for resentencing.




                                      10
