     Case: 10-30463 Document: 00511503270 Page: 1 Date Filed: 06/09/2011




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

                                                 FILED
                                                                            June 9, 2011

                                       No. 10-30463                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee
v.

JEROME A. WATKINS

                                                   Defendant-Appellant




                    Appeal from the United States District Court
                        for the Middle District of Louisiana
                                C.A. 3:09-CR-00081


Before DAVIS, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Jerome A. Watkins pleaded guilty to one count of possession of a firearm
by a felon and one count of possession of cocaine base. The PSR established
Watkins’s criminal history category at II. The district court upwardly departed
and sentenced Watkins to a 33-month term of imprisonment, which was
consistent with a criminal history category of IV. He appeals, claiming that the
court based the sentence on the inappropriate factor of his arrest record. On
plain error review, we vacate Watkins’s sentence and remand for resentencing.

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                      No. 10-30463



                                             I.
       The Presentence Report (PSR) assigned Watkins an adjusted offense level
of 14 and a criminal history category of II, resulting in a guideline range of 18-24
months. His criminal history points were assessed based on three convictions:
driving a motor vehicle without a license, possession of cocaine, and possession
of stolen property.
       At sentencing, the district court noted that the events giving rise to this
sentence involved Watkins being found in possession of cocaine and a handgun
while fleeing an incident of domestic violence with his minor child in the car.
The district court also concluded that the PSR under represented Watkins’s
criminal history because he had a “fairly long record of criminal conduct” that
included “four prior convictions . . . [for] armed robbery, simple burglary, battery
of a police officer, and resisting a police officer.” However, those four offenses
were actually arrests, not convictions.1 The judge also mentioned that his record
reflected “possession of cocaine and prior arrests.”
       The district court concluded that Watkins’s criminal history category of II
significantly understated the seriousness of his past conduct and the likelihood
he would engage in violent conduct again because he had an “unusual propensity
towards violence, which [made his] possession of a firearm that much more
frightening,” warranting an upward departure pursuant to U.S.S.G. § 4A1.3.
The court considered that a range of 27-33 months, consistent with a criminal
history of IV, was appropriate. The court then sentenced him to 33 months
imprisonment, a 9-month increase from the top of his guideline range. On
appeal, Watkins argues that the district court erred in imposing an upward


       1
        The defendant did not have an arrest for simple burglary, but he did have one for
simple battery, which is likely what the district court was referring to when it said “simple
burglary.”

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                                       No. 10-30463

departure based on his arrests, which the district court erroneously thought
were convictions.2
                                              II.
       Because the issue was not raised at sentencing, we review for plain error.
Under the plain error standard, Watkins “must show that (1) there was error,
(2) that was plain, (3) the error affects substantial rights, and (4) the error
seriously affects the fairness, integrity, or public reputation of the judicial
proceedings.” United States v. Blocker, 612 F.3d 413, 415-16 (5th Cir. 2010)
(citing United States v. Jones, 489 F.3d 679, 681 (5th Cir.2007)).
       The Government concedes that the district court committed error that was
plain to the extent that it relied on Watkins’s arrest record in departing from the
Guidelines. See U.S.S.G. § 4A1.3(a)(2)(E) (2009) (“A prior arrest record itself
shall not be considered for purposes of an upward departure under this policy
statement.”); United States v. Jones, 444 F.3d 430, 434 (2006) (noting that
arrests may properly be considered at sentencing if there is other reliable
evidence to support a finding that the defendant actually committed the crime(s)
reflected on the arrest record). However, the Government argues that the error
did not affect Watkins’s substantial rights because the district court based its
departure not only on Watkins’s arrest record but also on his prior conviction for
possession of cocaine and the facts surrounding the instant offense (domestic
violence, flight from the scene, and recklessness in driving with his child in a car
that contained a loaded gun and drugs).
       A defendant’s substantial rights have been affected if there is a reasonable
probability that, but for the misapplication of the guidelines, he would have



       2
         The language the court used at sentencing makes it clear that it was using these
arrests it believed to be convictions to upwardly depart. It is unclear why the court did not
consider that these “convictions” warranted a higher criminal history score so that a departure
may not have been necessary.

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received a lesser sentence. United States v. John, 597 F.3d 263, 285 (5th Cir.
2010). Although the district court did discuss permissible factors, its statements
reflect that it made the upward departure based primarily on the fact that
Watkins had “an unusual propensity towards violence, which [made his]
possession of a firearm that much more frightening.” This apparently led the
court to conclude that a criminal history category of II “did not adequately
address the seriousness of [his] past conduct.” If the court had not considered
the arrests, Watkins’s history would have included the nonviolent crimes of drug
possession, driving without a license, and possession of stolen property. The
court’s statement indicates that it was more concerned with Watkins’s violent
propensities reflected by his arrests for battery, armed robbery, and resisting a
police officer. We therefore conclude that Watkins’s substantial rights were
affected because there is a reasonable probability that, but for the misapplication
of the guidelines, he would have received a lesser sentence. See id.
      “In this circuit, ‘whether a sentencing error seriously affects the fairness,
integrity, or public reputation of judicial proceedings is dependent upon the
degree of the error and the particular facts of the case.’” U.S. v. Davis, 602 F.3d
643, 651 (5th Cir. 2010) (quoting John, 597 F.3d at 286).
      In United States v. Jones, we found that the fairness, integrity and public
reputation of judicial proceedings were not harmed by the district court’s
consideration of a defendant’s arrest record because it also engaged in a lengthy
discussion of the aggravating circumstances of the case and specifically sought
to align the sentence with that of a similarly-situated defendant. 489 F.3d at
682. We stated that “[o]ur respect for the district court’s diligent effort at
sentencing is not undermined by its unnecessary discussion of [the defendant’s]
arrest record.” Id. Unlike the sentencing court in Jones, the district court here
apparently relied primarily on the defendant’s arrests as justification for the
upward departure.      It also erroneously believed the arrests represented

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                                 No. 10-30463

convictions. Because that incorrect belief casts doubt on the court’s conclusion
that Watkins’s history justified an upward departure, we find that the
sentencing error seriously affected the fairness, integrity, or public reputation
of judicial proceedings.
                                      III.
      We therefore VACATE Watkins’s sentence and REMAND for resentencing.




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