     Case: 19-30406      Document: 00515397463         Page: 1    Date Filed: 04/28/2020




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

                                                                          FILED
                                                                        April 28, 2020
                                      No. 19-30406                     Lyle W. Cayce
                                                                            Clerk

UNITED STATES OF AMERICA,

               Plaintiff–Appellee,

v.

LOUIS JONES,

               Defendant–Appellant.


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 2:18-CR-211-1


Before OWEN, Chief Judge, and HIGGINBOTHAM and WILLETT, Circuit
Judges.
PER CURIAM:*
       When sentencing Louis Jones, the district court ordered the Bureau of
Prisons to give him credit for time served in state custody. But the district
court lacked the authority to order BOP to reduce Jones’s sentence. Jones
appealed, arguing that his sentence should be vacated and the case remanded
so the district court can decrease his sentence by another means. We agree,
VACATE the district court’s sentence, and REMAND for resentencing.



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                         I
      Jones was arrested in June 2018 on state charges of being a felon in
possession of a firearm. He remained in state custody until September 2018
when he pleaded guilty, and the state court deferred sentencing to allow Jones
to attend a treatment program. Before he could begin the program and leave
state custody, a federal court indicted Jones for the same conduct and issued a
writ of habeas corpus ad prosequendum, transferring him to federal custody.
Jones eventually pleaded guilty to these federal charges. Under the federal
sentencing guidelines, his imprisonment range was 27–33 months with a
statutory maximum of 10 years. Neither party objected to this range as
calculated in the pre-sentence report.
      At sentencing, Jones’s counsel requested that Jones receive a sentence
to the same treatment program “where he was sentenced in state court[.]”
Jones’s counsel also requested “about an 11 month adjustment” to Jones’s
sentence because Jones had already been in state and federal custody that
long. The Government objected to a “time served sentence” but was otherwise
amenable to the district court awarding Jones “credit for time that he’s served.”
Jones’s counsel asked the district court to give Jones this credit through a
downward variance from his Guidelines sentence.
      The district court sentenced Jones to 27 months in prison and three years
of supervised release. The court also ordered “that [Jones] receive credit for
time served” since his arrest. But the court’s written judgment did not mention
credit for time served.
      Jones did not object to his sentence when the court pronounced it, but
now appeals. He argues that the district court failed to sentence him in a
format that achieved its intent to give Jones credit for his time spent in state
and federal custody. United States v. Jenkins, 38 F.3d 1143, 1144 (5th Cir.
1994) (holding that a district court does not have jurisdictional authority to
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                                  No. 19-30406
grant credit for time served). Jones argues that the district court could have
accomplished this goal by instead deviating downward from Jones’s Guidelines
range, as his counsel suggested. See U.S. Sentencing Guidelines Manual §
5G1.3 (2016). He asks us to vacate and remand so the district court can
consider reducing his sentence by this alternative means.
      The Government argues that U.S.S.G. § 5G1.3(b), the basis Jones’s
counsel provided at sentencing for a downward variance, does not apply
because Jones has not yet been sentenced for state charges. The Government
concedes that the district court erred by ordering the BOP to credit Jones for
time served, yet asks us to find that Jones’s counsel invited this error by
characterizing Jones’s treatment program as part of his state sentence.
      We must therefore decide whether to allow the district court’s sentence
to stand according to its expressed aims, despite its ineffectual structure.
                                        II
      Interpretation of the Guidelines is a question of law, reviewed de novo.
United States v. Carreon, 11 F.3d 1225, 1230 (5th Cir. 1994). We review timely
raised questions of proper Guidelines application by that standard. But
because Jones failed to timely object to the district court’s orally pronounced
sentence and order of credit for time served, we review his argument about his
sentence’s format for plain error. Puckett v. United States, 556 U.S. 129, 135
(2009). We have discretion to vacate and remand based on plain error when
the appellant shows that the district court clearly or obviously erred in a way
that “affected the appellant’s substantial rights.” Id. We may exercise that
discretion only if the error “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” Id. (citation and quotation marks omitted).
      The Government asks us to review the format of Jones’s sentence for
invited error, “an even higher standard than . . . plain error review” under
which we do not reverse “absent manifest injustice.” United States v. Salazar,
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751 F.3d 326, 332 (5th Cir. 2014). We review for invited error when a party or
their counsel “induced” the district court to commit the error in question.
United States v. Rodriguez, 602 F.3d 346, 351 (5th Cir. 2010). We “narrowly
construe counsel’s statements” when determining whether to employ invited
error review. United States v. Franklin, 838 F.3d 564, 567 n.1 (5th Cir. 2016).
      Though the Government argues that Jones’s counsel invited the district
court’s error by suggesting Jones had already been sentenced, Jones’s counsel
never specifically asked the district court to award Jones credit for time served.
Instead, he asked the court to subtract time from Jones’s sentence before
submitting the matter to BOP. The district court may do the latter, but not the
former. United States v. Wilson, 503 U.S. 329, 335 (1992) (holding that only the
Attorney General and his delegee, BOP, may award credit for prior custody). In
fact, the Government was the first party to bring up “credit for time served.”
And the Government’s counsel mentioned during sentencing that the state
court had deferred Jones’s sentence pending his treatment. The district court
should have understood from the Government’s statement that Jones’s state
sentence had not yet begun. So, Jones’s counsel did not invite the district
court’s error by stating that Jones was “sentenced in state court” to a treatment
program, and plain-error review applies.
      For the purposes of plain-error review, an error is a “[d]eviation from a
legal rule.” United States v. Olano, 507 U.S. 725, 732–33 (1993). The district
court deviated from a legal rule in this case by ordering BOP to give Jones
credit for time served when it lacked the authority to do so. In re U.S. Bureau
of Prisons, 918 F.3d 431, 439 (5th Cir. 2019) (“[T]he district court . . . cannot
simply order the BOP to award credit.”). And this error affected Jones’s
substantial rights because it “affected the outcome of the district court
proceedings.” Olano, 507 U.S. at 734. At sentencing the district court ordered
that Jones “receive credit for time served” and stated it would “make it clear
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                                      No. 19-30406
to the Bureau of Prisons” that Jones should receive a sentence below his
Guidelines’ range.1
       Jones has met his burden to demonstrate plain error. We must therefore
determine whether this error mars the “fairness, integrity or public reputation
of judicial proceedings” such that it should be remanded. Puckett, 556 U.S. at
135. This involves “a highly fact-specific inquiry.” United States v. Avila-
Cortez, 582 F.3d 602, 605 (5th Cir. 2009). After all, not all instances of plain
error deserve remand. United States v. Reyna, 358 F.3d 344, 352 (5th Cir. 2004)
(“We decline to adopt a blanket rule that once prejudice is found . . . the error
invariably requires correction.”).
       “The possibility of additional jail time . . . warrants serious
consideration” when deciding whether to exercise discretion to remand.
Rosales-Mireles v. United States, 138 S. Ct. 1897, 1907 (2018). The Supreme
Court has found that miscalculation of sentence length resulting from a
Guidelines’ error “particularly undermines” our judicial system “because of the
role the district court plays in calculating the range and the relative ease of
correcting the error.” Id. at 1908. Here, the district court sentenced Jones to 27
months based on the assumption that BOP would give Jones credit for time
served per the court’s judgment. But BOP “is not bound by” the district court
when deciding whether to award or deny credit. U.S. Bureau of Prisons, 918
F.3d at 439. So, there is a distinct risk that the district court’s error will subject
Jones to an “unnecessary deprivation of liberty.” Rosales-Mireles, 138 S. Ct. at
1908. And the district court could easily correct the error on remand. Id. at
1908; see also United States v. Randall, 924 F.3d 790, 801 (5th Cir. 2019)
(remanding when “the appropriate remedy is re-sentencing, which can be


       The district court did not mention any reduction in sentence in its written judgment.
       1

ROA.80-85. But when the oral pronouncement of sentence conflicts with the judgment, the
pronouncement controls. United States v. Mireles, 471 F.3d 551, 557–58 (5th Cir. 2006).
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                                       No. 19-30406
accomplish[ed] fairly quickly and without extraordinary expense”). And we see
no countervailing factors that assure us Jones would not receive an overlong
sentence barring remand and resentencing.2
                                       *      *       *
       The district court ordered BOP to reduce Jones’s sentence rather than
departing downward. By doing so, the district court plainly erred, and we
“cannot confidently say that the district court would have imposed the same
[27-month] sentence absent the error[.]” United States v. Escalante-Reyes, 689
F.3d 415, 424–25 (5th Cir. 2012) (en banc) (internal quotation marks and
citation omitted). The district court could fix its mistake easily if given the
chance. We exercise our discretion to VACATE the district court’s sentence and
REMAND for resentencing.




       2 The Government urges us to refrain from remanding because U.S.S.G. § 5G1.3(b)
does not apply, so remand would be futile. This portion of the Guidelines allows the court to
adjust a sentence if “a term of imprisonment resulted from another offense that is relevant
conduct to the instant offense of conviction.” U.S.S.G. § 5G1.3(b). Jones’s counsel asked for a
sentence reduction under § 5G1.3(b) based on time served in state and federal custody, during
which Jones’s state-level sentencing involving the same criminal conduct was deferred.
Because Jones’s state term of imprisonment had not begun when he received his federal
sentence, argues the Government, the district court could not reduce his sentence on remand
through § 5G1.3(b).
       The Government is correct. But the district court could instead order a sentence
running concurrently with Jones’s deferred state sentence. See U.S.S.G. § 5G1.3(c) (allowing
concurrent sentencing when “a state term of imprisonment is anticipated to result from
another offense that is relevant conduct to the instant offense of conviction”). Or, as Jones’s
counsel originally suggested, the court could depart downward from Jones’s within-
Guidelines sentence under 18 U.S.C. § 3553(a), citing Jones’s time in state custody. We have
recognized this route to sentence reduction before. United States v. Benavides-Hernandez,
548 F. App’x 278, 280 (5th Cir. 2013) (unpublished) (holding the district court can account for
time in state custody “by reducing the defendant’s sentence and stating the reasons for the
reduction on the record”). Remand would therefore not be futile.

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