                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
              IN THE UNITED STATES COURT OF APPEALS
                                                              July 19, 2006
                      FOR THE FIFTH CIRCUIT
                      _____________________             Charles R. Fulbruge III
                                                                Clerk
                           No. 05-20561
                      _____________________

UNITED STATES OF AMERICA,

                                              Plaintiff - Appellant,

                              versus

HERBERT VANCE GOLDSMITH,

                                            Defendant - Appellee.
_________________________________________________________________

           Appeal from the United States District Court
            for the Southern District of Texas, Houston
                      USDC No. 4:04-CR-268-ALL
_________________________________________________________________

Before JOLLY, PRADO, and OWEN, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:1

     The Government appeals the district court’s post-Booker non-

guideline sentence of Herbert Vance Goldsmith. After review of the

record, based on the analysis set forth in United States v. Smith,

440 F.3d 704, 707-08 (5th Cir. 2006), we hold that the sentence is

unreasonable, and, under the totality of the circumstances, we

vacate Goldsmith’s sentence, and remand for resentencing.

                                  I

     On March 17, 2004, Police from the City of Houston executed a

search warrant on property owned by Goldsmith, but leased by him to


     1
      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this opinion should not be published and is not precedent except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.
a carwash business.2           During the execution of the warrant one of

the officers saw the cylinder of a revolver above Goldsmith’s

waist.     Goldsmith told the officer that he was in possession of a

firearm.    Goldsmith was arrested and a loaded .22 caliber revolver

was   removed     from   his    person.       In    addition   to    the      revolver,

Goldsmith was carrying $7,519 in cash.

      On March 24, 2004, in an interview with an agent from the

Department of Alcohol, Tobacco, and Firearms (ATF), Goldsmith

confirmed that he was a convicted felon, and that he was carrying

the .22 caliber revolver on his person on March 17.                      Additionally,

Goldsmith explained that he was present at the carwash on the day

of the search to purchase a car for his son, and thus, had the

large amount of cash on his person.

      On   June    10,   2004,    Goldsmith        was   charged    as    a   felon   in

possession of a firearm in and affecting interstate or foreign

commerce in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2),

which is a felony offense.          At his initial appearance on June 15,

2004, the magistrate ordered that Goldsmith be temporarily detained



      2
       The search warrant was obtained after multiple complaints
that illegal drugs and narcotics were being sold on the premises.
The execution of the warrant resulted in the seizure of
approximately 21.81 grams of cocaine, 1,845.98 grams of marijuana,
63.9 grams of prescription drugs, including Vicodin, two firearms
(in addition to Goldsmith’s revolver), a scale, and $9,876 in cash
(in addition to that found on Goldsmith). Five individuals were
arrested and charged with various narcotics counts resulting from
the search. Goldsmith was not charged with any drug or narcotic
offenses arising from the March 17, 2004 search.

                                          2
pending his detention hearing.            At the detention hearing on June

18, 2005, bond was posted, and Goldsmith was released.

       On   November   23,   2004,    Goldsmith        pleaded      guilty   to the

indictment without a plea agreement.                 He remained free on bond

pending sentencing.

       Based on the uncontested presentence report, the Guidelines

suggested a range of imprisonment from 27-33 months.                  Arguing that

Goldsmith was in fear of his safety and was thus carrying the gun

for protection, Goldsmith’s counsel at sentencing argued that a

more    appropriate    sentence      would      be   12-18    months.        Citing

Goldsmith’s successful drug treatment, his lack of incident since

posting bond, his “stable job and home life”, and “the unlikely

chance of recidivism”, the district court sentenced Goldsmith to

time served (three days), three years of supervised release,

including    six   months    of   home       confinement     with    absences   for

employment, religious services, medical care, and certain other

events, and a fine of $3,000.                The Government objected to the

sentence as unreasonable, and timely filed this appeal.

                                         II

                                         A

       “The district court’s application of the Guidelines, even

after Booker, is reviewed de novo.”            Smith, 440 F.3d at 706 (citing

United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005)).                  The

district court’s findings of fact relating to sentencing are

accepted unless clearly erroneous.              United States v. Duhon, 440

                                         3
F.3d 711, 714 (5th Cir. 2006) (citing United States v. Creech, 408

F.3d 264, 279 n.2 (5th Cir. 2005)).       Ultimately, under United

States v. Booker, 543 U.S. 220, 260-61 (2005), we review the

sentence for “unreasonableness” in the light of the factors set

forth in 18 U.S.C. § 3553(a).3    Id.

     “Our post-Booker case law has recognized three different types

of sentences under the advisory Guidelines regime.”      Smith, 440

     3
         The factors set forth in 18 U.S.C. § 3553(a) include:

            (1) the nature and circumstances of the
            offense and the history and characteristics of
            the defendant;

            (2) the need for the sentence imposed –
                 (A) to reflect the seriousness of the
            offense, to promote respect for the law, and
            to provide just punishment for the offense;
                 (B) to afford adequate deterrence to
            criminal conduct;
                 (C) to protect the public from further
            crimes of the defendant; and
                 (D) to provide the defendant with needed
            . . . medical care, or other correctional
            treatment in the most effective manner;

            (3) the kinds of sentences available;

            (4) the kinds of sentence and the sentencing
            range established for –
                 (A) the applicable category of offense
            committed by the defendant as set forth in the
            guidelines . . .;

            (5) any pertinent policy statement . . .;

            (6) the need to avoid unwarranted sentence
            disparities among defendants with similar
            records who have been found guilty of similar
            conduct . . . .



                                  4
F.3d    at    706-07    (articulating          the    three     types       of    post-Booker

sentences: (1) a sentence within the Guidelines range; (2) a

sentence      including       a    departure       allowed     or    authorized           by   the

Guidelines; and (3) a “non-Guideline sentence” -- “a sentence

either higher or lower than the relevant Guideline sentence”).

Because the district court’s extreme reduction from the Guideline

range    in    this     case      was    not       authorized       by     the    Guidelines,

Goldsmith’s sentence is a non-Guideline sentence.                             Before a non-

Guideline sentence is imposed, the district court must consider the

Guidelines, “utiliz[ing] the appropriate Guideline range as a

‘frame of reference’.”             Id. at 707 (citing United States v. Fagans,

406 F.3d 138, 141 (2nd Cir. 2005); and United States v. Jackson,

408 F.3d 301, 305 (6th Cir. 2005)).                       In addition, the district

court must “more thoroughly articulate its reasons when it imposes

a   non-Guideline       sentence        than       when   it    imposes”         a    Guideline

sentence.        Id.      “These        reasons      should     be       fact-specific         and

consistent      with    the       sentencing       factors     enumerated            in   section

3553(a).       The     farther      a   sentence      varies        from    the      applicable

Guideline sentence, ‘the more compelling the justification based on

factors in section 3553(a)’ must be.”                     Id. (quoting United States

v. Dean, 414 F.3d 725, 729 (7th Cir. 2005)); see also Duhon, 440

F.3d at 715.

       “In    reviewing       for    reasonableness,           we    assess      whether       the

statutory sentencing factors support the sentence”, recognizing

that the “totality of the relevant statutory factors” must support

                                               5
the sentence.        Duhon, 440 F.3d at 715 (citing United States v.

McBride, 434 F.3d 470, 477 (6th Cir. 2006)) (emphasis in the

original) (finding a probation only sentence unreasonable where the

Guidelines range was 27-33 months).           Adopting the Eighth Circuit’s

standard from United States v. Haak, 403 F. 3d 997 (8th Cir. 2005),

we have made clear that “[a] non-Guideline sentence unreasonably

fails to reflect the statutory sentencing factors where it (1) does

not account for a factor that should have received significant

weight, (2) gives significant weight to an irrelevant or improper

factor, or (3) represents a clear error of judgment in balancing

the sentencing factors.”         Smith, 440 F.3d at 708 (emphasis added).

On review of the record before us, we find that the sentence

imposed   on   Goldsmith       encompasses    each    of    these    errors     and,

consequently, is unreasonable.

                                        B

     In   rejecting     the     Guidelines    range    of    27-33    months     and

sentencing     Goldsmith   to    time    served,     three    years    supervised

release, and     a    modest    fine,   the   district      court    provided    the

following reasoning:

                The defendant is before this Court for
           his first encounter in the judicial – for
           possession of a firearm by a previously
           convicted felon. His first encounter with the
           judicial system was the felony conviction that
           is the basis for his arrest, an aggravated
           robbery when he was 17 years old.

                The defendant has had other arrests since
           that time involving misdemeanor charges,
           generally   involving    the   possession   of

                                        6
          marijuana.    The defendant has acknowledged
          that he smoked marijuana on a daily basis
          since he was 15 years old but has been in
          recovery since he was arrested on this case
          and has not had any problems related to the
          use of drugs or the use of marijuana since he
          began the program associated with this arrest.

               The defendant has not had any problems
          since he has been released and on pretrial
          supervision. The Court also acknowledges that
          the defendant has accepted responsibility for
          his actions, appears to be remorseful for his
          conduct, and indicated, foolishly, the Court
          believes, a need to carry a firearm for
          protection.

               Although the defendant believed he had
          justifiable reasons for carrying a firearm, he
          accepts responsibility for the fact that he
          engaged in criminal conduct, and believes, as
          this Court does, that he understands the
          restrictions that are placed on him from – as
          a result of his earlier mistake, and that he
          can adhere to the law.

                He has maintained stable employment, a
          stable residence and stable family life. The
          Court believes that taking into consideration
          all of the factors including regarding this
          offense, and considering them pursuant to 18
          U.S. Code, Section 3553, as well as taking the
          sentencing guidelines into consideration, the
          Court    has  looked   at   the   nature   and
          circumstances of the offense and the history
          and characteristics of this defendant and has
          determined that the time previously served
          adequately punishes the defendant, promotes
          respect for the law, is sufficient to deter
          any additional criminal conduct from this
          defendant, and will protect the public from
          further crimes of this defendant.

The district court additionally entered a “Statement of Reasons” on

June 16, 2005, that essentially repeats the reasoning provided at




                                7
sentencing as quoted above.4        The reasons articulated fail to

support a finding of reasonableness.

     In view of the record before us, we hold that Goldsmith’s

sentence fails to satisfy each prong of the Haak standard, as

expressed in Smith.    First, the sentence “does not account for . .

. factor[s] that should have received significant weight”, as the

sentence failed to consider:       1) an accurate view of Goldsmith’s

criminal history; 2) the seriousness of the offense, and the

adequacy of the deterrence; and 3) the resulting disparities

between sentences for similar crimes.        Second, the sentence “gives

significant weight to . . . irrelevant or improper factor[s]”, by

both relying on factors already accounted for in the calculation of

the guideline range, and by relying on factors irrelevant to

sentencing.     Finally, the sentence “represents a clear error of

judgment   in   balancing   the   sentencing   factors”   by   allowing   a

defendant with seven prior convictions effectively to avoid a

meaningful term of imprisonment.         We discuss each prong in turn.5

     4
       Specifically, citing the fact that Goldsmith was 17 when he
committed the aggravated robbery, the district court found that
“the characteristics of the defendant[,] and the unlikely chance of
recidivism” supported the sentence given. Additionally, based upon
“the nature of the offense and the circumstances of the defendant”
the Statement of Reasons notes that “a sentence below the guideline
imprisonment range will adequately punish the criminal conduct,
promotes [sic] respect for the law and will serve as a deterrence
[sic] from further criminal activity”.
     5
      In his brief, although generally arguing that the factors of
18 U.S.C. § 3553(a) support his sentence, Goldsmith makes no
specific arguments tying any of the § 3553(a) factors to his
sentence.   Instead, Goldsmith relies primarily on two points:

                                     8
                               (1)

     Goldsmith’s sentence “does not account for [several] factor[s]

that should have received significant weight”.   Smith, 440 F.3d at

708. First, § 3553(a)(1) requires consideration of “the nature and

circumstances of the offense and the history and characteristics of

the defendant.”   18 U.S.C. § 3553(a)(1).   Goldsmith has a fairly

extensive criminal history including seven convictions in twenty-

two years.6   The district court erroneously found that Goldsmith


First, a general discussion of the district court’s discretion
post-Booker; and second, his explanation for carrying the .22
caliber pistol. The former fails to provide specific reasoning
sufficient to support a finding in Goldsmith’s favor. The latter
is irrelevant (and apparently disbelieved by the district court).

     Goldsmith explained his possession of the revolver by noting
that he was victimized in two recent incidents of assault and
robbery while patronizing local nightclubs. Thus, in fear for his
safety, Goldsmith argues he was forced to carry the loaded
revolver. Goldsmith argues that because the statute criminalizing
his possession of a firearm was not aimed at preventing felons from
protecting themselves, the reduction in sentence was appropriate.
The district court expressed little acceptance for this explanation
stating, “Gosh. How does somebody have that much bad luck? Just
– I mean, obviously you can’t help it if somebody – it’s not your
fault if you a [sic] victim of a crime, but there is such a thing
as being in the wrong place at the wrong time. . . . People who
are getting shot are someplace where they’re likely to get shot.”
At sentencing the district court explained that the defendant
“indicated, foolishly, the Court believes, a need to carry a
firearm for protection.” Consequently, it does not appear that
Goldsmith’s proffered justification for the revolver was a factor
in the district court’s decision to sentence him leniently.
     6
       In 1982 Goldsmith was convicted of aggravated robbery,
earning him a sentence of 15 years. Additionally in 1982 Goldsmith
was convicted of theft. In 1992 Goldsmith pleaded guilty to a state
charge involving his second felony, unlawful possession of a
firearm by a felon. Two weeks after his probation ended in 1997 on
the state felon-in-possession charge, Goldsmith was convicted of
deadly conduct and marijuana possession.      Less than two years

                                9
had not been convicted of a felony since he was seventeen, a

conclusion      the   defendant    concedes   ignored    his    1992    felony

conviction.      Based on this error, the district court found that

given the perceived minor nature of the offenses since that time,

Goldsmith presented little risk of recidivism. This finding is not

consistent with the reality of Goldsmith’s criminal history.               Not

only has Goldsmith found himself in a tangle with the law every few

years since he was 17, his record contains an adult conviction for

the state felony equivalent to the conviction now at issue -- felon

in   unlawful    possession   of   a   firearm.   It    seems   ironic    that

Goldsmith’s criminal history would be construed to his benefit at

sentencing, or that it would give any assurance as to recidivism.

Such construction by the district court fails to give Goldsmith’s

criminal history the negative significance it deserved under §

3553(a)(1).

      Second, the district court misapplied § 3553(a)(2)(a) and (b),

requiring the sentence imposed “to reflect the seriousness of the

offense, to promote respect for the law, . . . to provide just

punishment for the offense[,] and to afford adequate deterrence to

criminal conduct.” 18 U.S.C. § 3553(a)(2). The district court

thought that the sentence imposed would deter this defendant and

protect the public from him.           We think this was error.        In 1992


later, Goldsmith was convicted of possession of marijuana and
driving while intoxicated. Finally, in 2004, Goldsmith pleaded
guilty to the federal felon-in-possession charge related to this
appeal.

                                       10
Goldsmith was convicted of the identical state felony and was given

a more severe sentence than the one currently before us.                 Yet, in

2004 Goldsmith committed the identical federal felony.                  This fact

should be sufficient evidence that supervised release alone is not

adequate to     deter    this   conduct    by    this   defendant.       Further,

focusing   on   the   effectiveness       of    the   deterrence   as    to   this

defendant alone does not fulfill the purpose of § 3553(a)(2).                  See

Duhon, 440 F.3d at 721 (Garza, J., concurring) (reasoning that the

district court erred as to § 3553(a)(2) by failing “to explain how

a sentence of probation would discourage others”).

     Finally, the district court omitted any consideration of §

3553(a)(6)’s concern for “unwarranted sentence disparities among

defendants with similar records who have been found guilty of

similar conduct.”       18 U.S.C. § 3553(a)(6).         “Although the district

court need not, in most cases, explicitly discuss each of the §

3553(a) factors, a sentence so far outside the Guidelines range is

not reasonable without consideration of the resulting disparity.”

Smith, 440 F.3d at 710 (Garza, J., concurring).




                                      11
                                      (2)

      The district court also erred when it “g[a]ve significant

weight to . . . irrelevant or improper factor[s].”                   The district

court’s primary justifications for the sentence given were: 1) the

district court’s belief that Goldsmith’s criminal history indicated

no   future    risk   of   recidivism;      2)    Goldsmith’s      acceptance         of

responsibility;       3)   Goldsmith’s      clean     record     while     on     bond,

including     successful    participation        in   drug     treatment;       and   4)

Goldsmith’s     stable     family   and     work       life.      All      of    these

justifications are “irrelevant or improper factor[s]” in this

sentence because each is either based on an incorrect factual

premise, or already considered in the calculation of the Guideline

range.

      First, as discussed above, the district court erred in stating

Goldsmith’s criminal history, saying that he had committed no

felony after his 1982 conviction, and that his criminal history

thus indicated no risk of recidivism.                 By relying on inaccurate

facts, the district court placed significant weight on an improper

factor.     See, e.g., United States v. Castillo, 430 F.3d 230, 244

(5th Cir. 2005) (vacating a sentence where the factual findings and

resulting     conclusions     by    the     district      court     were        clearly

erroneous).

      Second, each of the remaining justifications had already been

accounted for, to the extent they were relevant at all, in the

calculation of the Guidelines range.                  The district court cited

                                      12
Goldsmith’s acceptance of responsibility.           Yet, the Guideline

sentence had accounted for his acceptance by reducing Goldsmith’s

offense level from 20 to 17, resulting in the reduction of the

Guideline range from 37-46 months, to 27-33 months.             See United

States v. Haverstat, 22 F.3d 790, 795 (8th Cir. 1994) (rejecting

the defendant’s argument for a downward departure based on his

guilty plea, and finding that “[a] guilty plea before trial is a

factor to be considered only in the acceptance of responsibility

determination under U.S.S.G. § 3E1.1”).        Next, the district court

again   cited   to    Goldsmith’s   criminal   history,   his   successful

participation in drug rehabilitation “since he was arrested on this

case”, and the fact that “he has not had any problems since being

released on pretrial supervision”, all as indicators of “the

unlikely chance of recidivism.”       As discussed above, we find this

view of Goldsmith’s criminal history unpersuasive.          The district

court’s   reliance     on   post-offense   rehabilitation   is    likewise

misplaced as the reduction for acceptance of responsibility given

Goldsmith accounted for this rehabilitation. See U.S.S.G. § 3E1.1,

comment n.1. (g) (in determining the defendant’s eligibility for an

acceptance of responsibility reduction consideration is given to

“post-offense rehabilitative efforts (e.g., counseling or drug

treatment)”).        While Goldsmith’s efforts at rehabilitation are

commendable, there is nothing extraordinary in good behavior while

on bond, or post-offense drug treatment -- certainly nothing that

merits a sentence so seriously below the Guidelines range as this

                                     13
one. See, e.g., United States v. Rogers, 400 F.3d 640, 641-42 (8th

Cir. 2005) (holding that because post-offense rehabilitation is

accounted   for   in    acceptance    of    responsibility     “a   defendant’s

rehabilitation must be exceptional enough to be atypical” to

warrant further reduction in sentence, and that the defendant’s

“reuniting with family and remaining drug-free, while commendable,

are not extraordinary or atypical”).

     Finally,     the    district    court     cited   Goldsmith’s      “stable

employment, . . . stable residence, and stable family life” as

justification for the very significant decrease in sentence.                Yet

the Guidelines clearly state that “family ties and responsibilities

are not ordinarily relevant in determining whether a departure may

be warranted.”    U.S.S.G. § 5H1.6; see also United States v. Brown,

29 F.3d 953, 961 (5th Cir. 1994) (holding under the mandatory

Guidelines that familial circumstances and responsibilities do not

justify departure from the Guideline range absent “unique or

extraordinary circumstances”).         Consequently, each of the primary

factors   the   district   court     articulated   for   the    non-Guideline

sentence imposed on Goldsmith are improper or inappropriate in this

case, and thus should not have been given “significant weight” by

the district court.      See Smith, 440 F.3d at 708.




                                      III



                                      14
     In   conclusion,   we   do   not    gainsay    the   district   court’s

statutory freedom to consider circumstances it finds inadequately

represented in the Guideline range.        See U.S.S.G. § 5K2.0(a).      Nor

do we intend by this opinion to remove any of the flexibility

provided to sentencing judges by Booker.           However, in the light of

the reasoning stated by the district court and the record in this

case as discussed above, we must conclude that a sentence of time

served plus three years of supervised release where the Guidelines

range was 27-33 months can only be explained as a “clear error of

judgment in balancing the sentencing factors”. See Smith, 440 F.3d

at 708.   We therefore VACATE Goldsmith’s sentence, and REMAND for

resentencing not inconsistent with this opinion and the precedents

cited herein.

                                                     VACATED and REMANDED.




                                    15
