     Case: 14-31297      Document: 00513571828         Page: 1    Date Filed: 06/29/2016




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

                                      No. 14-31297                             FILED
                                                                           June 29, 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


Before STEWART, Chief Judge, and JONES and DENNIS, Circuit Judges.
PER CURIAM:*
           Defendant-Appellant Channing Miller (“Miller”) pleaded guilty to
possession with intent to distribute cocaine, and the district court sentenced
him to 120 months’ imprisonment. Though the 120-month sentence was fifteen
months above the Guidelines range adopted at sentencing, Miller did not
object. He now appeals, arguing that the district court procedurally erred in
imposing his sentence.           Because we conclude that the district court




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                      No. 14-31297
inadequately explained Miller’s above-Guidelines sentence, 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 to 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 district 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, according to the laboratory analysis, 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 to 105 months’ imprisonment.                   The district court
explicitly adopted on the record the revised Guidelines range of 84 to 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.
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      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

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                                  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 to 125 months’ imprisonment; and it wrongly
indicated that the 120-month sentence was within-Guidelines. The SOR also
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 appellate argument is not a model for clarity. He argues that
the district court “forgot” the late-breaking cocaine reduction and coinciding
revised Guidelines range and mistakenly sentenced him within the original,
higher Guidelines range. As evidence of this error, he asserts that the district
court was silent about a variance at sentencing and inadequately explained
that it had imposed an above-Guidelines sentence. He also highlights the
inaccuracies in the SOR, which states, inter alia, that the district court made
no changes to the Guidelines at sentencing and imposed a within-Guidelines
sentence. Minimally, we agree with Miller’s assertion that the district court
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                                       No. 14-31297
erred by inadequately explaining the 120-month sentence—particularly its
decision to impose an above-Guidelines sentence and its reasons for doing so—
as required by Gall v. United States, 552 U.S. 38 (2007), and its progeny.
Accordingly, we vacate and remand for resentencing.
        Miller has shown a clear or obvious error. The Supreme Court has
explained that a district court “commits procedural error when [it] ‘fails to
adequately explain the chosen sentence—including an explanation for any
deviation from the Guidelines range.’” United States v. Fraga, 704 F.3d 432,
438–39 (5th Cir. 2013) (quoting Gall, 552 U.S. at 51); see also Rita v. United
States, 551 U.S. 338, 357 (2007) (“Where the judge imposes a sentence outside
the Guidelines, the judge will explain why he has done so.”). Thus, “when a
district court sentences outside the Guidelines range, it must 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) (citing Gall,
552 U.S. at 51). Miller is correct that the district court failed to satisfy this
sentencing obligation. The district court thoroughly explained why a number
of factors related to Miller’s recidivism justified a lengthy prison sentence.
However, after reducing the applicable Guidelines range to 84 to 105 months’
imprisonment based on the cocaine reduction, the district court did not
acknowledge that the 120-month sentence ultimately imposed was an above-
Guidelines sentence. 2 Though the court cited its consideration of the § 3553(a)


   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
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factors, it did not explain why the Guidelines range would not serve the goals
of § 3553(a), see Ibarra-Luna, 628 F.3d at 717, nor did it “discuss whether the
sentence imposed was within the recommended range.”                    United States v.
Phillips, 415 F. App’x 557, 559 (5th Cir. 2011). This omission was clear and
obvious error. 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); Ibarra-Luna, 628 F.3d 717.
       Miller has also shown that the 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-
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,


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.
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                                  No. 14-31297
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 to 125 months) and revised (84 to 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). And, we emphasize
that nothing in the record indicates that the court would have imposed the
same sentence but for the procedural error. See Molina-Martinez, 136 S. Ct.
at 1347 (“The Government remains free to point to parts of 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)). As discussed supra, the
court    explained   why   Miller’s   recidivism    motivated     the   sentencing
determination, but nothing indicates that the court would have imposed the
same sentence as a fifteen-month variance. See, e.g., Carrizales-Jaramillo, 303
F. App’x at 217 (distinguishing United States v. Bonilla, 524 F.3d 647, 656 (5th
Cir. 2000), and vacating on plain error review where the “district court . . . did
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                                 No. 14-31297
not indicate that it would have imposed the same sentence as an alternative
sentence”).   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
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.




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