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

                                                                            FILED
                                                                            June 4, 2008

                                       No. 07-30585                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

ANTHONY QUINN COLEMAN

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                                 2:05-CR-20038-1


Before KING, HIGGINBOTHAM, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       This is the second time we have considered whether the district court
erred in sentencing Anthony Coleman. On the first go-around, the district court
sentenced Coleman to 120 months’ imprisonment, a 54% upward departure from
the Sentencing Guidelines range. We vacated the sentence and remanded for re-




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                    No. 07-30585

sentencing.1 The district court imposed the same sentence. This time, we affirm.
                                           I
      Coleman pled guilty to one count of possession of a firearm by a convicted
felon in violation of 18 U.S.C. § 922(g)(1). Coleman’s Guidelines range was 63
to 78 months. Prior to sentencing, the district court told the parties that it was
considering an upward departure because of Coleman’s “criminal history and the
nature of the offense.”2 However, at sentencing, the district court made no
mention of Coleman’s history and instead “indicated that it considered
Coleman’s offense to be a different situation from a typical felon-in-possession
charge.”3 The court sentenced Coleman to 120 months’ imprisonment, 42 months
above the top of the Guidelines range.
      On appeal, we held that the district court failed to articulate sufficient
reasons to justify the upward departure. We concluded that the court’s finding
that Coleman’s offense presented a “‘different situation’ from a typical felon in
possession charge” rested upon a clearly erroneous factual finding.4 Turning to
Coleman’s criminal history, we found that it could not support the sentence for
two reasons. First, the district court did not mention it during the sentencing
hearing. Second, assuming we should consider it, we concluded that the district
court failed to explain why Coleman’s criminal history justified an upward
departure:
      Even if we were to consider the explanation in the written
      judgment, however, we would find it inadequate, because the court
      did not “specify in writing . . . the specific reasons why the
      applicable criminal history category substantially under-represents

      1
        See United States v. Coleman, No. 06-30197, 212 Fed. Appx. 297 (5th Cir. Jan. 3,
2007) (per curiam) (unpublished opinion).
      2
          Id. at 298.
      3
          Id.
      4
          Id. at 299.

                                           2
                                 No. 07-30585

      the seriousness of the defendant's criminal history or the likelihood
      that the defendant will commit other crimes.” U.S.S.G. § 4A1.3(c)(1).
      In United States v. Zuniga-Peralta, 442 F.3d 345 (5th Cir. 2006), we
      upheld a sentence where the court’s written statement failed to
      provide specific factual reasons; we did so because the court had
      expressly adopted the findings of the PSR, which recommended a
      departure under § 4A1.3.
            Coleman’s PSR makes no such recommendation. Although
      Coleman has a number of older convictions that were not considered
      in calculating his criminal history score, the district court did not
      indicate why criminal history category VI does not adequately
      account for these convictions, particularly in view of the fact that
      none of Coleman’s prior felony convictions was for violent conduct.
      Without specific, stated reasons for the upward departure, the
      departure does not survive the abuse-of-discretion standard of
      review.5

Accordingly, we vacated and remanded for re-sentencing.
                                       II
      The district court scheduled a re-sentencing hearing. The day of the
hearing, but prior to the hearing, the district court gave the parties a written
memorandum that explained that the court would impose the same sentence as
before. The court stated that “even though the defendant has scored sufficient
criminal history points to place him in category VI, even the highest criminal
category seriously under-represents the seriousness of the defendant’s criminal
history.” The court went on to explain that Coleman’s criminal history score
failed to account for eleven prior felonies and misdemeanors because of the age
of the conviction or the unavailability of offense reports. Nor did the criminal
history score account for five intervening arrests. The court also felt that the
state courts had afforded Coleman “unearned leniency.” The court noted that
Coleman had been convicted of “simple battery,” as well as two convictions for
burglary of an inhabited dwelling—thus, the court found that Coleman’s


      5
          Id. at 300.

                                       3
                                        No. 07-30585

criminal history “is not a violence-free record.” Based on Coleman’s “continuous
criminal involvement for the past 27 years and the fact that his criminal history
score seriously misrepresents his criminal history,” the court stated that it would
impose the same 120 month sentence as before.
      During the sentencing hearing, the court told the parties that its
memorandum ruling laid out reasons for the upward departure. The court then
stated, “Since this is not the initial sentencing, I do not believe there is any right
to allocution. I heard all at the first sentencing, so I don’t thin[k] there is any
need to go through that.” The court then re-imposed the original sentence.
      Coleman’s counsel objected,
      I would object for the record, your Honor, and note the Fifth
      Circuit’s opinion. I just got handed the copy of the memorandum
      ruling, and I note that the Fifth Circuit opinion notes that it did not
      adequately account - - the district court did not indicate why
      criminal history category six does not adequately account for these
      convictions particularly in view of the fact that none of Coleman’s
      prior felony convictions were for violent conduct. And I noted, and
      just briefly when I was able to read the memorandum ruling, it
      appears that some mention was made about that. So just - - because
      I just got it, I need to object again for the record; and for the
      sentence imposed again, for the same reasons I earlier objected to.

The court overruled the objection. This appeal follows.
                                              III
      The Supreme Court has explained that its “explanation of ‘reasonableness’
review in the Booker opinion made it pellucidly clear that the familiar
abuse-of-discretion standard of review now applies to appellate review of
sentencing decisions.”6 This is so “[r]egardless of whether the sentence imposed
is inside or outside the Guidelines range.”7 In conducting this review, we first


      6
          Gall v. United States, 128 S. Ct. 586, 594 (2007).
      7
          Id. at 597.

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                                         No. 07-30585

“ensure that the district court committed no significant procedural error.”8 We
review the district court’s factual findings for clear error, and its interpretation
of the Guidelines de novo.9 We then consider the “substantive reasonableness
of the sentence imposed under an abuse-of-discretion standard.                           When
conducting this review, the court will, of course, take into account the totality of
the circumstances, including the extent of any variance from the Guidelines
range.”10
                                                A
       Coleman first argues that the district court erred by not offering him the
opportunity to allocute at the re-sentencing hearing. The Government does not
challenge Coleman’s contention that the right to allocution extends to re-
sentencing.11 The Government does contend, however, that our review is limited
to plain error because Coleman failed to object.12 We agree. Although Coleman’s
counsel objected during the re-sentencing hearing, the objection did not raise
Coleman’s right to allocute.13
       Pursuant to our en banc decision in United States v. Reyna, the
Government concedes the district court’s error in failing to invite Coleman to




       8
           Id.
       9
           United States v. Griffith, __ F.3d __, 2008 WL 851120, at *3 (5th Cir. Apr. 1, 2008).
       10
            Gall, 128 S. Ct. at 597.
       11
          See United States v. Moree, 928 F.2d 654 (5th Cir. 1991) (holding, in circumstances
similar to those here, that the defendant had a right to allocute at re-sentencing).
       12
          See United States v. Reyna, 358 F.3d 344 (5th Cir. 2004) (en banc) (holding that plain
error review applies where the defendant fails to object to the lack of an opportunity to
allocute).
       13
        See United States v. Burton, 126 F.3d 666, 673 (5th Cir. 1997) (“[T]he touchstone is
whether the objection was specific enough to allow the trial court to take testimony, receive
argument, or otherwise explore the issue raised.”).

                                                5
                                         No. 07-30585

allocute was plain,14 and that it affected Coleman’s substantial rights.15 The
Government urges, however, that we should not exercise our discretion to correct
the error because it does not “‘seriously affect[] the fairness, integrity or public
reputation of judicial proceedings.’”16
       In Reyna, we rejected a “blanket rule that once prejudice is found . . . the
error invariably requires correction.” We explained that “the right to allocution
‘is not a fundamental defect that inherently results in a complete miscarriage of
justice nor an omission inconsistent with the rudimentary demands of fair
procedure.’”17 Thus, we recognized that “[i]n a limited class of cases, a review of
the record may reveal, despite the presence of disputed sentencing issues, that
the violation of a defendant’s right to allocution does not violate the last Olano
prong.”18 There must be a basis in the record for concluding that a reasonable
jurist would have imposed a lesser sentence.19
       We decline to exercise our discretion because Coleman has not pointed to
anything that would have moved a reasonable jurist to impose a lesser sentence.


       14
          See 358 F.3d at 351 (“[W]e find that the district court committed error when it failed
to follow the procedures in Rule 32 and personally address Reyna and allow him to speak in
mitigation of his sentence. Given the clear language of the rule and the Supreme Court case
law outlined previously, this error was obvious or plain.”).
       15
          See id. at 353 (explaining that when “the record reveals that the district court did not
sentence at the bottom of the guideline range or if the court rejected arguments by the defendant
that would have resulted in a lower sentence, we will presume that the defendant suffered
prejudice from the error, i.e. that the error affected the defendant’s substantial rights”
(emphasis added)).
       16
            Id. at 352 (quoting United States v. Olano, 507 U.S. 725, 736 (1993)).
       17
            Id. (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).
       18
            Id.
       19
          Cf. United States v. Magwood, 445 F.3d 826, 830 (5th Cir. 2006) (stating that
“defendants ‘have to show some objective basis that would have moved the trial court to grant
a lower sentence; otherwise, it can hardly be said that a miscarriage of justice has occurred’”
(quoting Reyna, 358 F.3d at 356 (Jones, J., concurring))).

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                                        No. 07-30585

As for explanation, the district court was specific as to why it was re-imposing
the sentence: Coleman’s long and continuous criminal history, which it thought
the criminal history score failed to reflect. Coleman points to nothing that would
have undermined or altered this understanding of his criminal history or the
role of substance abuse. Coleman makes no argument that the list of convictions
and other arrests in the PSR contained conduct for which Coleman was not
responsible or otherwise mis-described the pertinent facts.                 To the extent
Coleman contends that there were disputed fact issues as to the underlying
offense conduct that he might have cleared up, he does not explain why it would
have mattered when the district court unambiguously explained that it was
departing upward based on the under-representation of his criminal history. In
short, Coleman points to nothing that arguably would have impacted the district
court’s thinking. We therefore find no “miscarriage of justice” and decline to
exercise our discretion.
                                               B
       Coleman next argues that the 42 month upward departure is
unreasonable, that the district court abused its discretion. The Guidelines
provide that “[i]f reliable information indicates that the defendant’s criminal
history category substantially under-represents the seriousness of the
defendant’s criminal history or the likelihood that the defendant will commit
other crimes, an upward departure may be warranted.”20 We review the decision
to depart, and the extent of the departure, for abuse of discretion.21 “An upward



       20
          U.S.S.G. § 4A1.3(a). The parties appear in agreement that the district court
upwardly departed under the Guidelines as opposed to imposing a non-Guideline sentence.
Although it is not entirely clear, we also think that the court departed under the Guidelines.
See United States v. Smith, 440 F.3d 704, 708 n.3 (5th Cir. 2006). Even if we were to conclude
the court intended to impose a non-Guidelines sentence, we would affirm for essentially the
same reasons. See id. at 709.
       21
            United States v. Saldana, 427 F.3d 298, 308 (5th Cir. 2005).

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                                         No. 07-30585

departure by a district court is not an abuse of discretion if the court’s reasons
for departing 1) ‘advance the objectives set forth in 18 U.S.C. § 3553(a)(2)’ and
2) ‘are justified by the facts of the case.’”22
       The nub of Coleman’s claim is that his criminal history does not justify the
departure. However, as the district court explained, Coleman had some eleven
other convictions, a mixture of felony and misdemeanors, that were not reflected
in his criminal history score. The district court was particularly concerned with
the continuous nature of Coleman’s criminal acts, that is, he has consistently
broken the law for more than twenty-five years; the court’s concern with
Coleman’s recidivism is justified, as is a conclusion that his recidivism was not
adequately accounted for. Moreover, we cannot say that the district court’s
concern that Coleman received “unearned leniency” from the prior sentencing
courts was unmerited.23 We do not think the district court abused its discretion
in determining that an upward departure was warranted, nor was the extent of
the departure unreasonable. We have previously affirmed departures for similar
reasoning and where the departure was of a similar or greater magnitude.24
       Coleman also argues that the district court improperly relied on five prior
arrests of his that did not lead to convictions to justify the upward departure.
As Coleman explains, U.S.S.G. § 4A1.3(a)(3) provides that “[a] prior arrest record
itself shall not be considered for purposes of an upward departure under this
policy statement.” We need not delve into this purported error deeply, for we
think it is clear that the court would not have imposed a different sentence but




       22
        United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006) (quoting Saldana,
427 F.3d at 310).
       23
            See United States v. Lee, 358 F.3d 315, 328-29 (5th Cir. 2004).
       24
         See, e.g., Zuniga-Peralta, 442 F.3d at 347-48; United States v. Smith, 417 F.3d 483,
490-93 (5th Cir. 2005); Lee, 358 F.3d at 328-29.

                                                8
                                       No. 07-30585

for the alleged error.25 To the extent Coleman argues that the district court
“double counted” his conviction for burglary of an inhabited dwelling—that is,
relied on it to depart upwardly even though it was factored into his criminal
history score—we do not read the district court as counting it twice. Rather, we
understand the court as making the point that it thought that some of
Coleman’s crimes involved what it considered violent conduct. Coleman also
complains about the district court’s recitation of the facts of the underlying
offense in its written reasons; however, Coleman has shown no reversible error
in that discussion, especially given that the district court upwardly departed
because of Coleman’s under-represented criminal history.
       AFFIRMED.




       25
          See United States v. Jones, 489 F.3d 679, 681 (5th Cir. 2007) (“Consideration of prior
arrests by a district court in sentencing is error. If Jones had preserved this error, we would
likely review under the harmless error standard.” (citation omitted)); see also Williams v.
United States, 503 U.S. 193, 202-03 (1992).

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