     Case: 14-60222   Document: 00513000702        Page: 1   Date Filed: 04/10/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                    No. 14-60222                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
UNITED STATES OF AMERICA,                                            April 10, 2015
                                                                    Lyle W. Cayce
             Plaintiff - Appellee                                        Clerk

v.

JOSHUA BRANDON PILLAULT,

             Defendant - Appellant




                Appeal from the United States District Court
                  for the Northern District of Mississippi


Before DENNIS, PRADO, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      Defendant-Appellant Joshua Pillault pleaded guilty to knowingly and
willfully communicating a threat by means of the internet, an instrument of
interstate and foreign commerce, concerning an attempt to kill and injure
individuals and unlawfully damage and destroy buildings by means of fire and
explosives, in violation of 18 U.S.C. § 844(e). At sentencing, the district court
imposed a six-level enhancement, pursuant to Section 2A6.1(b)(1) of the U.S.
Sentencing Guidelines Manual (“U.S.S.G.”), for conduct evidencing an intent
to carry out the threat. The district court upwardly varied from the Sentencing
Guidelines and sentenced Pillault to seventy-two months imprisonment.
Pillault now appeals his sentence, challenging the district court’s application
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                                 No. 14-60222
of the enhancement as well as the reasonableness of the sentence. For the
reasons that follow, we AFFIRM.
                         FACTUAL BACKGROUND
      On October 4, 2012, while playing the online video game “Runescape,”
Pillault communicated violent threats to other players. Runescape is a fantasy
role-playing game that is played online. Players can communicate with each
other by typing comments, which appear above the players’ characters as well
as in a chat box at the bottom of the screen. In response to provocative
comments made by another player, Pillault stated that he was going to acquire
guns, Molotov cocktails, and pipe bombs in order to reenact the Columbine
school shooting at Oxford High School. Pillault threatened to “level [O]xford
hi[g]h school” and turn it to “gravel.” Pillault also stated that “[i]ts always a
good time to talk about columbine” and that he could not “wait to blow brains
out of skulls.”
      The Oxford Police Department (“OPD”) received two phone calls, one
from a man in Virginia and the other from an employee of the company that
owns and operates Runescape, both reporting Pillault’s statements.          The
gaming company sent Pillault’s account details to the OPD, which, after
enlisting the help of the FBI, traced the offending account’s IP address to a
computer registered to Pillault’s mother. The FBI obtained an arrest warrant
and arrested Pillault in their home on October 8, 2014. The FBI also obtained
a search warrant for electronic devices, which it executed that same day. The
FBI’s forensic examiner, who testified at Pillault’s sentencing, performed an
examination of Pillault’s computer and found numerous documents pertaining
to the creation of bombs and other explosive devices. Pillault’s computer also
had folders entitled “columbine” and “serialkiller,” which contained pictures
relating to the Columbine shooting and other high-profile serial killers. The
forensic examiner also found evidence that Pillault had searched on
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                                  No. 14-60222
YouTube.com for “Super Columbine Massacre RPG,” a game that recreated the
Columbine Massacre. In addition, Pillault had searched on YouTube and
Google for instructions on how to make a sawed-off shotgun and information
about Molotov cocktails.
      Pillault was indicted and pleaded guilty to Count Two of a two-count
indictment, which charged him with knowingly and willfully communicating,
over the internet, a threat to attempt to kill and injure individuals and
unlawfully damage and destroy buildings and other real and personal property
by means of fire and explosives, in violation of 18 U.S.C. § 844(e).           At
sentencing, the district court heard testimony from several witnesses. The
first witness was Dr. Heather Ross, a forensic psychologist who was ordered by
the district court to complete a psychiatric examination of Pillault and to report
on mental illness, treatment options, and risk assessment. Dr. Ross testified
that Pillault started using drugs and alcohol at the age of fourteen and that
prior to his arrest he smoked marijuana and drank vodka every day. Dr. Ross
discussed Pillault’s mental history and explained that Pillault had previously
attempted suicide and was hospitalized for aggression and depression. Dr.
Ross concluded that “should Mr. Pillault continue to abuse substances his risk
for future dangerousness . . . is moderate to high risk; but would be much lower
if he was to be able to avoid using substances in the future.”
      The district court also heard testimony from two of Pillault’s ex-
girlfriends, whom we will refer to as GF1 and GF2. GF1, who started spending
a significant amount of time with Pillault in the eleventh grade, testified about
his aggressive tendencies and described him as a bully who frequently got into
fights. She testified that Pillault was obsessed with Columbine and that he
admired Dylan Klebold, one of the shooters involved in the Columbine
massacre. According to GF1, Pillault planned to attack Oxford High School
and drew specific plans in a notebook detailing how he would carry out the
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                                 No. 14-60222
attack. GF1 claimed that Pillault warned her not to go to school on April 20,
the anniversary of the Columbine shooting. GF1 also testified that on one
occasion, Pillault asked her to take him to Home Depot, where he purchased a
long copper pipe that he said he later used to make a pipe bomb.
      GF2 testified that she had known Pillault since the fifth grade and that
she was dating him during the months surrounding his arrest. GF2 agreed
that Pillault was obsessed with Columbine and claimed that he frequently
threatened to reenact Columbine at Oxford High School. She believed that
Pillault’s threats were serious and that he truly wanted to go through with the
attack. According to GF2, Pillault had a few specific plans for how he would
initiate his attack, one of which involved breaking through the glass walls of
the school’s cafeteria using pipe bombs and smoke bombs. GF2 claimed that
Pillault planned to save up money to buy guns and that she and Pillault went
to Wal-Mart to look at gun prices. GF2 testified that on one occasion, Pillault
tried to make a bomb out of a glass Sprite bottle, which he filled with kerosene.
      The last person to testify at the sentencing hearing was Pillault. Before
Pillault took the stand, the parties stipulated to the fact that no weapons,
bombs, incendiary substances, materials that could be used to make bombs, or
drawings of attack plans were found in Pillault’s house. Pillault denied ever
having drafted or drawn a plan to attack Oxford High School and claimed that
GF1’s testimony was untruthful. Pillault also denied GF1’s account of the
Home Depot visit and claimed that while he did possess a copper pipe, he found
it in a park and did not ever make, or plan to make, a bomb with it. Pillault
also denied ever having made Molotov cocktails out of Sprite bottles, as GF2
claimed. Pillault discussed at length the harsh culture of online gaming as
well as the specific circumstances surrounding his threatening comments,
including the fact that he and another player had been “trolling” each other,


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which Pillault defined as following someone and “saying random things to
upset” them.
       The Presentence Investigation Report (“PSR”), prepared by the United
States Probation Service prior to sentencing, applied a six-level enhancement
for    “conduct   evidencing   an   intent   to    carry    out   [the]   threat.”
U.S.S.G. § 2A6.1(b)(1). Specifically, the PSR cited Pillault’s trip to Home Depot
to obtain a copper pipe for the purpose of making a pipe bomb as well as his
“testing” of Molotov cocktails. Pillault objected to this enhancement, but the
district court overruled the objection. The court concluded that “the testimony
of the Government is much more believable than the testimony of the
defendant on the objections raised by the defendant.” The court found GF1’s
and GF2’s testimony to be credible and determined that Pillault did have the
intent to carry out his threats. The court sentenced Pillault to seventy-two
months imprisonment, forty-eight months longer than the advisory guideline
range.
                                DISCUSSION
       On appeal, Pillault claims that the district court erred in applying the
six-level enhancement under § 2A6.1(b)(1) because, Pillault contends, he did
not commit an overt act that was substantially and directly connected to the
offensive threat. See United State v. Goynes, 175 F.3d 350, 355 (5th Cir. 1999)
(requiring “some form of overt act” to sustain an enhancement under
§ 2A6.1(b)(1)); U.S.S.G. § 2A6.1 app. n.1 (“[C]onduct that occurred prior to the
offense must be substantially and directly connected to the offense, under the
facts of the case taken as a whole.”). Second, Pillault claims that the district
court’s sentence was unreasonable because it did not account for the nature
and circumstances of the offense, as mandated by 18 U.S.C. § 3553(a)(1), and
because the court gave significant weight to Pillault’s need for treatment, in
violation of Tapia v. United States, 131 S. Ct. 2382 (2011).
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      A. Sentencing Enhancement
      We review the “district court’s legal interpretation and application of the
sentencing guidelines de novo and its factual findings for clear error.” United
States v. Cabrera, 288 F.3d 163, 168 (5th Cir. 2002) (per curiam).             “[I]n
determining whether an enhancement applies, a district court is permitted to
draw reasonable inferences from the facts, and these inferences are fact-
findings reviewed for clear error as well.” United States v. Ramos–Delgado,
763 F.3d 398, 400 (5th Cir. 2014) (citation and internal quotation marks
omitted). In the present case, the district court’s determination that Pillault’s
conduct evidenced an intent to carry out the underlying threat is a factual
finding, reviewed for clear error. See Goynes, 175 F.3d at 353. The district
court’s factual finding “is not clearly erroneous if it is plausible in light of the
record read as a whole.” United States v. Cooper, 274 F.3d 230, 238 (5th Cir.
2001). Stated another way, “we will deem the district court’s factual findings
clearly erroneous only if, based ‘on the entire evidence,’ we are ‘left with the
definite and firm conviction that a mistake has been committed.’” Cabrera,
288 F.3d at 168 (quoting Cooper, 274 F.3d at 238).
      Section 2A6.1(b)(1) provides: “If the offense involved any conduct
evidencing an intent to carry out such threat, increase by 6 levels.” In order to
determine whether the enhancement applies, the court should “consider both
conduct that occurred prior to the offense and conduct that occurred during the
offense; however, conduct that occurred prior to the offense must be
substantially and directly connected to the offense, under the facts of the case
taken as a whole.” U.S.S.G. §2A6.1 app. n.1. This court requires “some form
of overt act to sustain a § 2A6.1(b)(1) enhancement.” Goynes, 175 F.3d at 355.
Violent threats alone are not sufficient to justify the enhancement. See id.
      At the sentencing hearing, the district court heard testimony from two
ex-girlfriends regarding Pillault’s obsession with Columbine, his specific plans
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                                       No. 14-60222
to recreate the Columbine attack, and his efforts to research and acquire
materials that would be necessary to achieve his plans. The district court also
heard testimony about two specific instances when Pillault made, or attempted
to make, bombs. While Pillault denied any actual intent to carry out his threat
and denied ever making, or trying to make, a bomb, the district court,
presented with conflicting testimony, made a necessary and valid credibility
determination. See United States v. Davis, 754 F.3d 278, 285 (5th Cir. 2014)
(explaining that credibility determinations “in sentencing hearings are
peculiarly within the province of the trier-of-fact” (quoting United States v.
Sotelo, 97 F.3d 782, 799 (5th Cir. 1996))). The district court explicitly stated
that it found GF1 and GF2 “more believable” than Pillault and emphasized
that Pillault’s testimony “was self-serving.” 1 In light of the court’s credibility
determinations, as well as the record as a whole, it is plausible that Pillault
intended to carry out his threat to obtain guns, “backup clips, [Molotov]
cocktails, [and] pipe bombs” and “level oxford hi[g]h school.”                  The district
court’s findings that Pillault actually obtained a copper pipe to make a pipe
bomb and tested a home-made Molotov cocktail, and that these overt acts
evidenced an intent to carry out the threat, were not clearly erroneous.
Pillault’s actions could properly be considered actual steps toward the



       1  Pillault claims that the district court’s credibility finding as to GF2 was erroneous
“given the impeachment of her testimony with respect to her text messaging with Mr.
Pillault’s mother after his arrest.” The “impeachment” that Pillault refers to involved the
following exchange:
                [Defense Attorney]: You texted with [Pillault’s mother]
                extensively, didn’t you?
                [GF2]: I don’t know about extensively. We talked a few times,
                maybe three or four texts.         I don’t remember any long
                conversation.
Pillault’s attorney then introduced “pages and pages” of text messages sent from GF2 to
Pillault’s mother. While we are not convinced that this exchange constitutes “impeachment,”
given the inherent ambiguity in the word “extensively,” the point does not change our
analysis because, regardless, the district court still assessed GF2 to be “credible.”
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realization of his threat. See Goynes, 175 F.3d at 355 (finding enhancement
unwarranted where the defendant’s act was “not in any way an actual step
toward the realization” of his threat).     Accordingly, we affirm the district
court’s application of the six-level enhancement.
      B. Reasonableness
      In Gall v. United States, the Supreme Court developed a two-step process
for appellate review of a sentence. 552 U.S. 38 (2007). First, this court must
determine whether the district court committed a procedural error, “such as
failing to calculate (or improperly calculating) the Guidelines range, treating
the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting
a sentence based on clearly erroneous facts, or failing to adequately explain
the chosen sentence . . . .” Id. at 51. If the sentence is procedurally sound, this
court then determines whether the sentence is substantively reasonable,
applying a deferential abuse-of-discretion standard. Id. at 41, 51. “Appellate
review for substantive reasonableness is ‘highly deferential,’ because the
sentencing court is in a better position to find facts and judge their import
under the § 3553(a) factors with respect to a particular defendant.” United
States v. Hernandez, 633 F.3d 370, 375 (5th Cir. 2011). When a sentence is
outside the Guidelines range, this court “may consider the extent of the
deviation, but must give due deference to the district court’s decision that the
§ 3553(a) factors, on a whole, justify the extent of the variance.” Gall, 552 U.S.
at 51. With respect to the § 3553(a) factors, “‘[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.’” United States v. Fraga,
704 F.3d 432, 440 (5th Cir. 2013) (quoting United States v. Smith, 440 F.3d
704, 708 (5th Cir. 2006)).
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                                 No. 14-60222
            1. The Nature and Circumstances of the Offense
      Pillault argues that the sentence imposed is substantively unreasonable
because it fails to account for a sentencing factor that should have received
significant weight, namely “the nature and circumstances of the offense.” See
18 U.S.C. § 3553(a)(1). Pillault emphasizes that his offensive, threatening
comments were made while he was playing a video game and were part of a
conversation between Pillault and another player, who were both purposefully
“provoking and goading one another.”          Pillault claims that purposeful
provocation of others with deliberately offensive comments is a common
occurrence in online video games. Pillault describes the “circumstances of the
offense” as “two hotheads playing an online fantasy video game deliberately
provoking one another with the most offensive comments they can muster” and
claims that these circumstances were “wholly unaccounted for in the district
court’s 72-month sentence . . . .” Pillault concludes that because the sentence
does not account for this mitigating factor, the sentence is substantively
unreasonable. We disagree.
      Before the district court announced its sentence, Pillault’s counsel made
a similar argument, urging the court to find that the circumstances of the
offense warranted leniency.     By contrast, the government focused on the
content of the threats, emphasizing that a threat to reenact Columbine is “so
horrific that it’s hard for civilized people to even imagine that.” After hearing
both arguments, the district court responded that it had “to take very seriously
[Pillault’s] threats” and emphasized that “[t]he offense conduct in this case
could have been extremely severe had [Pillault] acted upon the threats.” The
court concluded that an above-guideline sentence was warranted “because of
the nature and circumstances of this offense and the history and
characteristics of this defendant . . . .” The court ultimately explained that it
chose the given sentence because it was “trying to protect the public.”
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                                  No. 14-60222
      The district court heard each party’s description and characterization of
the offense and ultimately embraced the government’s argument that the
nature and circumstances of the offense, specifically the extreme content of the
threats, was an aggravating factor rather than a mitigating factor. The forum
in which the threats were made was not the only circumstance of the offense,
and the court did not abuse its discretion when it found that the nature of the
threatened conduct outweighed the fact that the comments were made in an
online context. Further, the district court gave significant weight to Pillault’s
potential future dangerousness and the court’s duty to protect the public. See
18 U.S.C. § 3553(a)(2)(C). Giving due deference to the district court’s balancing
of the § 3553(a) factors, see United States v. Gutierrez, 635 F.3d 148, 154 (5th
Cir. 2011), we conclude that the district court did not abuse its discretion by
declining to place significant weight on the forum in which the comments were
made and, instead, focusing on the nature of the threatened conduct and the
court’s need to protect the public. Accordingly, we find that the district court’s
upward variance from the Guidelines was substantively reasonable.
      Within his argument regarding the substantive reasonableness of the
sentence, Pillault states that the “court did not articulate, with the fact-specific
reasons that are required when imposing an above-guidelines sentence, the
particular offense circumstances on which the court was relying and how those
circumstances support an above-guidelines sentence.” This seems to be an
attack on the procedural reasonableness of the sentence, rather than the
substantive reasonableness. See Gall, 552 U.S. at 51 (explaining that a district
court commits a procedural error when it “fail[s] to adequately explain the
chosen sentence—including an explanation for any deviation from the
Guidelines range”). This court has stated that “the district court must more
thoroughly articulate its reasons when it imposes a non-Guideline sentence
than when it imposes a sentence under authority of the Sentencing
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                                 No. 14-60222
Guidelines.” Smith, 440 F.3d at 707. While these reasons “should be fact-
specific and consistent with the sentencing factors enumerated in section
3553(a),” the district court does not need to “engage in ‘robotic incantations
that each statutory factor has been considered.’” Id. (quoting United States v.
Lamoreaux, 422 F.3d 750, 756 (8th Cir. 2005)). Here, the district court did
articulate fact-specific reasons for its imposed sentence. Above all, the court
focused on its “duty to protect the public.” See 18 U.S.C. 3553(a)(2)(C). Having
elaborated on this public protection concern, the court was not obligated to
detail the “particular offense circumstances . . . justifying a sentence outside
the guideline range,” as Pillault contends. Accordingly, we find that to the
extent Pillault claims that the district court procedurally erred by not
adequately explaining its reasons for the chosen sentence, that claim fails.
            2. Tapia v. United States, 131 S. Ct. 2382 (2011)
      Pillault’s final contention is that the district court violated Tapia v.
United States, by giving significant weight to Pillault’s need for mental health
and drug and alcohol treatment when choosing the given sentence. In Tapia,
the Supreme Court held that “a court may not impose or lengthen a prison
sentence to enable an offender to complete a treatment program or otherwise
to promote rehabilitation.” 131 S. Ct. at 2393. Post-Tapia, this court has
explained that “a sentencing court errs if a defendant’s rehabilitative needs are
‘a “dominant factor” . . . [that] inform[s] the district court’s [sentencing]
decision.’” United States v. Walker, 742 F.3d 614, 616 (5th Cir. 2014) (quoting
United States v. Garza, 706 F.3d 655, 660 (5th Cir. 2013)); see also United
States v. Wooley, 740 F.3d 359, 366 (5th. Cir. 2014) (“[W]e have held that Tapia
error occurs when rehabilitation is a dominant factor in the court’s sentencing
decision, and we have never required the appellant to establish that the court’s
improper reliance on rehabilitation considerations was the sole factor in
sentencing.”). On the other hand, the district court does not violate Tapia if
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the need for rehabilitation is only a “secondary concern” or an “additional
justification” for the sentence. Walker, 742 F.3d at 616; see also Garza, 706
F.3d at 660 (“Our limited precedent post-Tapia has described the distinction
between legitimate commentary and inappropriate consideration as whether
rehabilitation is a ‘secondary concern’ or an ‘additional justification’
(permissible) as opposed to a ‘dominant factor’ (impermissible) informing the
district court’s decision.”). Notably, “[a] court commits no error by discussing
the opportunities for rehabilitation within prison or the benefits of specific
treatment or training programs.” Tapia, 131 S. Ct. at 2392.
      In the present case, the district court discussed the defendant’s history,
including his lack of meaningful work history, his extensive disciplinary record
in school, and his self-proclaimed ability to “con [his] way back into [his] family
members’ hearts.” The court then stated:
            . . . I have a great responsibility not to make one
            mistake. . . . And what I’ve seen of your history does
            not warrant this Court making a mistake for you.
            Now, the sentence to be imposed will be above the
            advisory guidelines range because of the nature and
            circumstances of this offense and the history and
            characteristics of this defendant pursuant to 18 USC
            Section 3553(a)(2) [sic]. . . .
                   The sentence should reflect the seriousness of
            the offense, should promote respect for the law and
            provide just punishment. I also have a duty to protect
            the public. And in the letters that I read, which I want
            to make part of this proceeding, there was very little
            concerns about protecting the public. The public
            deserves to be protected.
                   Now, I will agree it also needs to be protected
            from further crimes by you. You also do need any
            educational or vocational training or medical care that
            you can get. And to the extent I can get that for you
            while you’re incarcerated, I will.
                   But I think a sentence above the advisory
            guideline range is appropriate in this case, first, to
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                                  No. 14-60222
            protect the public from further crimes from this
            defendant; second, I have considered the nature and
            characteristics of this defendant. His mental health
            history is of concern to the Court.
                   And what I read from the statement was to the
            effect “as long as he stays sober.” But otherwise, he is
            a possible high threat to someone, not necessarily
            school children, but to anyone who might cross his
            path.
                   He has undergone multiple mental evaluations
            outlining his need for mental health treatment. The
            offense conduct in this case could have been extremely
            severe had he acted upon the threats. I need to
            address his abuse of alcohol and narcotics.
                   So I find that a sentence above the advisory
            guidelines range is appropriate.

The court sentenced Pillault to seventy-two months in prison and
recommended that “he participate in a residential drug-abuse-treatment
program while confined, if deemed appropriate by the Bureau of Prisons.”
After the court announced the sentence, Pillault’s counsel objected, stating
that “to the extent that Your Honor has imposed this particular sentence as a
means, even in part, of affording the defendant drug treatment rehabilitation,
we believe that is an improper reason to impose or determine the length of the
sentence.” The court replied, explicitly stating: “I didn’t impose the length for
that reason. I’m trying to protect the public. . . . I think I made that clear. But
you had requested that he get treatment, so I am going along with that.” After
the sentencing hearing, the court issued its written statement of reasons. The
court stated:
                  Pursuant to the factors enumerated under 18
            U.S.C. § 3553(a), a sentence above the advisory
            guideline range is appropriate in this case for a
            number of reasons. First and foremost, the need to
            protect the public from further crimes from the
            defendant. Second, the court considers the nature and

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                                  No. 14-60222
            characteristics of the defendant. The defendant’s
            mental health history is of a concern to the court and
            the defendant [sic] need for ongoing mental health
            treatment. The defendant has undergone multiple
            mental evaluations which outline the defendant’s
            needs for continued mental health treatment. The
            offense conduct in this case could have been extremely
            severe had the defendant acted upon the threats he
            admitted making. The defendant’s abuse of alcohol
            and narcotics also need to be addressed and a sentence
            of additional custody will provide the defendant with
            the needed mental health, drug, and alcohol
            treatment. Therefore, the court finds a sentence above
            the advisory guideline range is appropriate in this
            case.

      The district court’s statements, both oral and written, make clear that
the dominant factor motivating the court’s sentencing decision was the goal to
protect the public. The court referred to this motivation, as well as, relatedly,
Pillault’s potential future dangerousness, throughout its explanation for the
sentence. The court began by highlighting that it had “a great responsibility
not to make one mistake” and that “[t]he public deserves to be protected.” The
court concluded that an above-Guidelines sentence was appropriate “to protect
the public from further crimes from this defendant” and emphasized that the
“offense conduct could have been extremely severe had [Pillault] acted upon
the threats.” While the court acknowledged Pillault’s mental health history
and the “need to address his abuse of alcohol and narcotics,” it did so
immediately after referring to the testimony that it had just heard from Dr.
Ross—that Pillault’s risk of future dangerous was much higher if he continued
to abuse substances. Most significant, in response to Pillault’s objection, the
court denied having imposed the given sentence in order to promote
rehabilitation and clarified, instead, that it was “trying to protect the public.”



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                                         No. 14-60222
           Pillault highlights that in the subsequent written statement of
reasons, the court noted that “a sentence of additional custody will provide the
defendant with the needed mental health, drug, and alcohol treatment.” We
decline to consider this statement in isolation. 2 In light of the rest of the court’s
explanation, including the court’s explicit rejection of the notion that it was
motivated by a desire to give Pillault access to treatment, this written
statement indicates, at most, that rehabilitation was a secondary factor or
merely an additional justification that the court gave for its sentence. See


       2  At oral argument, the government urged this court to disregard the written
statement of reasons in light of the “unambiguous” oral pronouncement. The government
cited this circuit’s “well settled law that where there is any variation between the oral and
written pronouncements of sentence, the oral sentence prevails.” United States v. Shaw, 920
F.2d 1225, 1231 (5th Cir. 1991). In one of the earliest cases in which we applied that rule,
this court explained that Federal Rule of Criminal Procedure 43 “requires that the defendant
be present when sentence is announced by the court, and Rule 32(b) requires that the
judgment of conviction shall set forth the sentence. It follows that where there is a
discrepancy between the oral pronouncement and the written judgment and commitment,
the former must control.” Henley v. Heritage, 337 F.2d 847, 848 (5th Cir. 1964). The present
case does not involve an oral pronouncement of sentence that conflicts with a written
judgment and commitment, however. Instead, we are reviewing the court’s oral explanation
of the chosen sentence along with its subsequent written statement of reasons. The
government cites no cases that apply the oral-trumps-written rule to a statement of reasons.
Title 18 U.S.C. § 3553(c), entitled “[s]tatement of reasons for imposing a sentence,” states:
“The court, at the time of sentencing, shall state in open court the reasons for its imposition
of the particular sentence, and, if the sentence . . . is not of the kind, or is outside the range,
described in subsection (a)(4), the specific reason for the imposition of a sentence different
from that described, which reasons must also be stated with specificity in a statement of
reasons form issued under section 994(w)(1)(B) of title 28 . . . .” (emphasis added). Title 28
U.S.C. § 994(w)(1) provides that “[t]he Chief Judge of each district court shall ensure that,
within 30 days following entry of judgment in every criminal case, the sentencing court
submits to the Commission . . . the judgment and commitment order [and] the written
statement of reasons for the sentence imposed (which shall include the reason for any
departure from the otherwise applicable guidelines range . . .)[.]” The Sixth Circuit,
elaborating on this requirement, has concluded that the written statement of reasons “was
not intended as a procedural safeguard for any particular defendant; rather, ‘[t]he ostensible
purpose of § 994(w) is to make the courts report information and sentences and departures
to ensure a measure of consistency in sentencing throughout the country.’” United States v.
Denny, 653 F.3d 415, 422 (6th Cir. 2011) (quoting United States v. Ray, 273 F. Supp. 2d 1160,
1164 (D. Mont. 2003)). The Sixth Circuit reasoned that “[b]ecause it was merely intended to
serve a record-keeping function, courts’ written statement of reasons have not always been
crafted with the same precision that judges heed during the oral sentence.” Id.
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   Case: 14-60222     Document: 00513000702      Page: 16   Date Filed: 04/10/2015



                                  No. 14-60222
Walker, 742 F.3d at 617 (finding no Tapia error where the district court
referred to rehabilitation only after addressing § 3553(a) factors that supported
the sentence). Accordingly, we find that the district court did not violate Tapia.
                                CONCLUSION
      For the reasons above, we AFFIRM the district court’s sentence.




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