IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-10192

UNITED STATES OF AMERICA,

Plaintiff–Appellee

v.

SHAMS EMIL MASTERS,

Defendant–Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:08-CR-00158

Before JONES, Chief Judge, PRADO, Circuit Judge, and O’CONNOR, District

*

Judge.

PER CURIAM:

**

Shams Emil Masters appeals his sentence, arguing that the district court

erroneously calculated his United States Sentencing Guidelines (“USSG”) range

and unreasonably departed upward from that range. We hold that the erroneous

United States Court of Appeals

Fifth Circuit

F I L E D

August 24, 2010

Lyle W. Cayce

Clerk

 District Judge of the Northern District of Texas, sitting by designation. *

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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Guidelines range withstands plain error review, and the district court’s upward

departure was not unreasonable considering the facts of this case. We therefore

affirm Masters’s sentence.

I. FACTUAL AND PROCEDURAL BACKGROUND

Masters pled guilty to a single count of bank robbery. Before sentencing,

Masters stipulated that he participated in four other bank robberies and that in

four of the five robberies, he handed the bank teller a threatening note.

The Presentence Report (“PSR”) contained all five stipulated robberies and

calculated his offense level at twenty-five. Due to prior offenses, the PSR

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calculated Masters’s criminal history score as eight, placing him in criminal

history category IV. This combination resulted in a Guidelines range of eighty2

four to 105 months. However, the PSR recommended that the district court

depart upward from the Guidelines range because of Masters’s long criminal

history and the failure of incarceration or probation to deter his recidivism.

The district court adopted the facts and recommendations contained in the

PSR and Masters did not object to the PSR at sentencing. The district court

sentenced Masters to 210 months’ imprisonment, based upon an upward

departure to an offense level thirty and a criminal history category of VI. In so

doing, the district court explained at the sentencing hearing:

[B]y further explanation of the upward departure, I’ve

considered the recommended advisory guideline range as well as all

of the factors outlined in 18 United States Code, Section 3553(a), in

The offense level included upward adjustments because Masters took the property of 1

a financial institution and because Masters made “death threats” during the robberies. U.S.

SENTENCING GUIDELINES MANUAL (“USSG”) §§ 1B3.1(b)(2)(F), 2B3.1(b)(1). 

Masters had committed eight prior offenses. All but one of those offenses were 2

misdemeanors. His lone felony was a drug possession charge.

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determining what sentence to impose, and I’ve concluded that the

sentence I’ve imposed is a reasonable sentence that takes into

account all of the factors. If viewed from the standpoint of a

sentence based only on the advisory guidelines, the sentence would

be an appropriate sentence by way of an upward departure under

U.S.S.G. Section 4A1.3.

The defendant is 30 years old and has established a pattern

of habitual criminal behavior. He hasn’t been slowed down or

deterred by probated sentences, jail terms, state prison sentences,

or parole supervision. Since the age of 14 the defendant has had one

juvenile adjudication and seven adult convictions. Four of those

adult convictions are countable under the advisory guidelines. In

addition, the fifth conviction would have received points if the

conviction had not been outside the applicable time period.

The defendant has continued to have contact with law

enforcement, and the Court concludes that the defendant’s Criminal

History Category IV, as well as his total offense level,

under-represents the seriousness of his past criminal conduct or the

likelihood that he will commit further crimes.

He has one prior conviction for assault/serious bodily injury

to a family member and a sentence of a six-year term of

imprisonment for a previous drug conviction.

. . . .

The defendant has received numerous periods of incarceration

and jail imprisonment, as well as probation and community

supervision, which has [sic] not deterred him from committing new

crimes. His past criminal conduct is indicative of his disregard for

the law, his unwillingness to change his behavior, and the likelihood

that he will commit future crimes, especially upon another person.

And to whatever extent it’s appropriate to do so, in order to

explain a Section 4A1.3 departure, so to speak, I’ve considered the

defendant’s criminal history conduct is more like a Criminal History

Category VI and that a total offense level of 30 would be more

appropriate considering all of his conduct.

When you come up with a hypothetical guideline range based

on VI and a 30, you come up with 168 months to 210 months, and I

consider that the top of that hypothetical range is a reasonable

sentence.

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The district court’s statements explaining and justifying its sentence mirror the

language of the PSR. Masters objected to the reasonableness of the upward

departure at sentencing, and then timely appealed. In his appeal, Masters

challenges the calculation of his Guidelines range and the reasonableness of the

upward departure.

II. STANDARD OF REVIEW

We apply different standards of review to Masters’s challenge to the

erroneously calculated Guidelines range and the reasonableness of the upward

departure. As to the first, we review for plain error because Masters did not

object to the calculation at sentencing. United States v. Simmons, 568 F.3d 564,

566 (5th Cir. 2009). To satisfy plain error review, Masters must establish four

elements:

First, there must be an error or defect . . . . Second, the legal error

must be clear or obvious, rather than subject to reasonable dispute.

Third, the error must have affected the appellant’s substantial

rights, which in the ordinary case means he must demonstrate that

it affected the outcome of the district court proceedings. Fourth and

finally, if the above three prongs are satisfied, the court of appeals

has the discretion to remedy the error—discretion which ought to be

exercised only if the error seriously affects the fairness, integrity or

public reputation of judicial proceedings.

Puckett v. United States, 129 S. Ct. 1423, 1429 (2009) (quotations and citations

omitted).

As to Masters’s challenge to the reasonableness of the district court’s

sentence, we review the district court’s decision to depart upward from the

Guidelines range, along with the extent of that departure, for an abuse of

discretion. United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006)

(citing United States v. Saldana, 427 F.3d 298, 308 (5th Cir. 2005)).

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III. DISCUSSION

A. The Guidelines Range

The Government concedes that the district court plainly erred when it

calculated the Guidelines range. The PSR assigns four points for two prior

offenses, counting the offenses separately; however, Masters was sentenced for

these two offenses on the same day. Under USSG § 4A1.2(a)(2), because Masters

committed one of the offenses before the other, but received his sentence for both

on the same day, the district court cannot assign points for each offense. Absent

this error, Masters’s criminal history score would be six, rather than eight. This

slight change drops his Guidelines range to seventy to eighty-seven months

(rather than the erroneously calculated eighty-four to 105 months).

Despite this error, Masters’s challenge fails because his argument is

foreclosed by the our recent decision in Davis. The Davis district court, in the

context of a revocation proceeding, calculated an erroneous Guidelines range, but

then departed upward. 602 F.3d at 645–46. The defendant failed to object to the

incorrect range at sentencing and we reviewed the district court’s sentence for

plain error. Id. at 647. We rejected the defendant’s challenge because we found

that the district court “had ample independent bases for imposing the sentence

that it did,” and the defendant came forward with “no statements in the record

to indicate that the court—which was required only to consider the advisory

range indicated by the policy statement and was permitted to impose any

sentence within the statutory maximum when determining the sentence—relied

on the incorrect advisory range in determining his sentence.” Id. at 649. Davis

provides the applicable outline of our analysis here.

Although the district court erroneously calculated the Guidelines range,

the district court did not rely on the erroneous range when it departed upward

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and there is substantial evidence in the record to support the upward departure.

Therefore, Masters cannot show a reasonable probability that he would have

received a lesser sentence. See id. at 650 (A “district court’s erroneous selection

of the incorrect Guideline range is not enough to demonstrate that the

‘substantial rights’ prong of the plain error test is satisfied.”) (internal quotation

omitted). Thus, Masters’s challenge fails under plain error review.

B. The Reasonableness of the Upward Departure

Masters attacks two aspects of the district court’s upward departure: first,

Masters contends that the departure was not an appropriate application of

USSG § 4A1.3 or 18 U.S.C. § 3553(a); second, Masters argues that the district

court gave him a substantively unreasonable sentence. In essence, Masters’s

appeal tracks our review of any challenge to the reasonableness of a sentence:

namely, we first determine whether the district court committed procedural

error, then review the substantive reasonableness of the sentence. See United

States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).

1. Application of USSG § 4A1.3

The Government contends that we should review Masters’s procedural

challenge for plain error because Masters’s objection did not adequately alert the

district court of his contention that USSG § 4A1.3(a)(2) did not authorize an

upward departure based upon his prior criminal history. Masters objected early

at sentencing, stating “we would make an objection for purposes of appeal of the

unreasonableness of the sentence.” The district court responded, “I haven’t

finished yet, but you can go ahead and make your objection now if you would

like,” and then gave its justification for the sentence and the upward departure.

An objection must place the district court “on notice” of the nature of the

procedural objection. See United States v. Duhon, 541 F.3d 391, 396 (5th Cir.

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2008). When he objected, Masters did not name USSG § 4A1.3(a)(2) or state that

the district court’s use of his prior offenses formed the basis of the objection. We

agree with the Government that Masters’s objection was insufficient to raise his

procedural objection to the district court’s application of USSG § 4A1.3(a)(2).

It is well-settled that “[i]f . . . the procedural objection was not presented

in the district court, our review is for plain error only.” Simmons, 568 F.3d at

566. Under the plain error standard, we will reverse only if there is an error

that “is plain and affects substantial rights,” United States v. Olano, 507 U.S.

725, 732 (1993) (internal quotation marks and alteration omitted). If there is

such an error, we “may . . . exercise [our] discretion to notice a forfeited error,

but only if . . . the error seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” United States v. Cotton, 535 U.S. 625, 631

(2002) (internal quotation marks and alteration omitted).

The district court did not plainly err when it applied USSG § 4A1.3(a)(2).

The factors listed in USSG § 4A1.3(a)(2) are nonexhaustive. The Guidelines only

remove prior arrests from the district court’s consideration when imposing the

sentence. Id. § 4A1.3(a)(3). Here, the district court stated its reasons for the

departure, including Masters’s “pattern of habitual criminal behavior,” lack of

deterrence from prior sentences, “his disregard for the law, his unwillingness to

change his behavior, and the likelihood that he will commit future crimes.” The

district court’s reliance on these reasons did not constitute plain error.

2. Substantive Unreasonableness

Masters received a sentence of 210 months, a significant departure from

the correctly-calculated Guidelines range of seventy to eighty-seven months. We

review the reasonableness of the district court’s sentence for an abuse of

discretion. Gall v. United States, 128 S. Ct. 586, 597 (2007). With regard to his

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sentence’s substantive reasonableness, Masters’s only argument on appeal is

that his sentence differed too much from other bank robbery sentences. Masters

asks us to consider a statistical compilation of robbery sentences, claiming that

the Northern District of Texas levies a greater percentage of upward departures

than the national average. We are unconvinced by Masters’s argument.

Section 3353(a)(6) does not mandate that all sentences for similar crimes

be the same; rather, it requires courts to take into account “the need to avoid

unwarranted sentence disparities among defendants with similar records who

have been found guilty of similar conduct.” (emphasis added). We have held

that, when different treatment is warranted, even different sentences between

co-defendants are acceptable. Duhon, 541 F.3d at 397. Here, the district court

explained its reasons for the upward departure and, as addressed above, those

reasons were within its acceptable purview.

Furthermore, the non-exhaustive factors of USSG § 4A1.3(a)(2) inform our

review of the substantive reasonableness of a district court’s sentencing to some

extent. The district considered Masters’s increasingly violent crimes, his

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recidivism, the failure of previous sentences to deter criminal conduct, and his

likelihood of future criminal activity. The district court did not err by

 We note that the application of USSG § 4A1.3 is somewhat muddled. For example,

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in United States v. Holt, we discussed USSG § 4A1.3 and reasonableness separately. 287 F.

App’x 384, 384–87 (5th Cir. 2008) (per curiam) (unpublished). However, in the reasonableness

analysis, we noted that “the district court complied with § 4A1.3(c) in its Statement of Reasons

for the sentence that it imposed and correctly applied § 4A1.3(a)(2)(A).” Id. at 387. This

statement implies that the appropriate application of USSG § 4A1.3 is one of the factors to

consider when assessing the reasonableness of a sentence. Similarly, in United States v.

Luevano-Orozco, we found that the appellant-defendant “ha[d] not shown that the district

court’s upward departure was an abuse of discretion or unreasonable,” because “[t]he district

court properly considered factors that are permissible under § 4A1.3(a)(2).” 182 F. App’x 376,

377 (5th Cir. 2006) (per curiam) (unpublished).

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considering these facts, nor did the district court abuse its discretion by relying

on these facts to depart upward.

IV. CONCLUSION

Masters’s challenge to the erroneously-calculated Guidelines range does

not overcome plain error review because he failed to establish that there is a

reasonable probability that he would receive a lesser sentence. Masters’s

challenge to the district court’s upward departure also fails because the district

court did not plainly err when it relied on aspects of Masters’s case outside of the

factors enumerated in USSG § 4A1.3(a)(2); and because the district court did not

abuse its discretion when it departed upward based on the facts of this case. We

therefore affirm Masters’s sentence.

AFFIRMED.

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