# United States Court of Appeals **for the Fifth Circuit**

____________ No. 23-50725

____________ United States of America, Plaintiff—Appellee ,

versus James Demoung Williams, Defendant—Appellant

.

______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 7:06-CR-151-3

______________________________ Before Wiener, Elrod, and Wilson, Circuit Judges

. Per Curiam: * James Demoung Williams challenges the above-guidelines sentence imposed upon the revocation of his supe rvised release. Specifically, he contends that the district court commi tted plain error by relying on clearly erroneous facts in arriving at the sent ence. We agree with Williams, vacate his sentence, and remand for re-sentencing.

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* This opinion is not designated for publication. See 5th Cir. R. 47.5. United States Court of Appeals Fifth Circuit 

### FILED August 1, 2024 Lyle W. Cayce Clerk Case: 23-50725 Document: 73-1 Page: 1 Date Filed: 08/01/2024No. 23-50725

2 I. In 2006, Williams pleade d guilty to conspiracy to possess with the intent to distribute cocaine base and was sentenced to 240 months of imprisonment and 10 years of supervised release. His term of supervised release began on Fe bruary 13, 2020. In 2023, his probation officer filed a petition to revoke his supervised release, asserting that Williams violated the conditions requiring him to abstain from alcohol use, maintain re gular employment, and timely notify the probation officer of any ch ange in residence. The probation officer then filed an amended petition to re voke, adding an allegation that Williams violated another condition of his supervised release by committing theft. At the revocation hearing, Williams conceded each violation except the allegation of theft, which the Govern ment then abandoned. The district court imposed an above-guid elines sentence of 36 mo nths’ imprisonment. In giving its reasons for imposing this sentence, the district court stated: He has an extensive history of assault, drug distribution, aggravated robbery, and theft. In the Court’s opinion, he appears to—having seen him once before, he appears to lack motivation, desire to change , while failing to support his children, as required by [the sentencing judge]. And he’s admitted to drinking alcohol on several occasions. Not just one. And so I would say he’s not responded well, even though this case began in 2006. It co uld have been even before that. It’s got a 2006 case number. The court further explained that it considered the policy statements in Chapter 7 of the Sentencing Guidelines as well as the pertinent § 3553(a) factors in determining that Williams ’s repeated noncompliance with the supervised release conditions, breach of the court’s trust, likelihood of Case: 23-50725 Document: 73-1 Page: 2 Date Filed: 08/01/2024No. 23-50725

3 recidivism, and history and characterist ics all warranted an above-guidelines
sentence.
II. On appeal, Williams asserts that the revocation sentence is procedurally and substantively unreasonab le. Specifically, he contends that the district court’s statements falsely im plied that he had been brought before the court for previous violations and that he had failed to pay child support. Williams also asserts that the sentence of 36 months’ imprisonment is substantively unreasonable. As for his first contention, Williams argues that the district court committed procedural and substantive erro r by relying on erroneous facts in imposing the sentence. Because he did not raise these specific arguments in the district court, we revi ew for plain error only. United States v. Whitelaw , 580 F.3d 256, 259–60 (5th Cir. 2009); United States v. Cano , 981 F.3d 422, 425 (5th Cir. 2020). To establish plain error, a defendant must show (1) the district court committed an error that (2) is clear or obvious and (3) that affected his substantial rights. Puckett v. United States , 556 U.S. 129, 135 (2009); see also United States v. Rodriguez-Pena , 957 F.3d 514, 516 (5th Cir. 2020). Even if the defendant makes this showing, this court may exercise its discretion to correct the error only if the error “seriously affect[ed] the fairness, integrity or public reputa tion of judicial proceedings.” Puckett , 556 U.S. at 135. (internal quotation marks and citation omitted). Sentencing courts must “carefu lly articulate the reasons” for revocation sentences outside of the guideline range. United States v. Mares , 402 F.3d 511, 519 (5th Cir. 2005). In the context of a challenge to an aboveguidelines revocation sentence, this cour t will affirm on plain error review if “there is no indication that the distri ct court would impose a lighter sentence on remand” and the record is “sufficient for [this court] to assess the reasons Case: 23-50725 Document: 73-1 Page: 3 Date Filed: 08/01/2024No. 23-50725

4 and reasonableness” of the sentence. Whitelaw , 580 F.3d at 264–65. But if a defendant can show that a clear error affected his substantial rights, we generally “must exercise our discretion to remand.” Rodriguez-Pena , 957 F.3d at 515 (alterations accepted) (internal quotations omitted). In issuing Williams’s revocation se ntence, the district court stated that it “ha[d] seen [Williams] once be fore, he appears to lack motivation [and] desire to change,” and he had “f ail[ed] to support his children.” But as Williams points out, and the Gove rnment acknowledges, his sentence had not been previously revoke d, and no evidence in the record suggests that Williams failed to pay child support. Williams had also not previously appeared before this sentencing judge.
The Government allows that the di strict court’s comments were “inartful,” though it counters that th ere is “reasonable debate” as to the import of the court’s statements. Base d on the record before us, however, the court’s comments were not merely inartful; they plainly evince that the court relied on clearly erroneous facts in sentencing Williams. See United States v. Warren , 720 F.3d 321, 332–33 (5th Cir. 2013). And because the court sentenced Williams to an above-guidelin es sentence, that error affected his substantial rights. Puckett , 556 U.S. at 135. Indeed, the error was such that it “seriously affects the fairness, inte grity or public reputation of judicial proceedings.” Id. With the accurate facts before it, the district court may well “impose a lighter sentence on remand,” Whitelaw , 580 F.3d at 264, or, at the least, clarify its sentence base d on facts and factors applicable to Williams, not mistaken ones.
“On the facts of this case an d under current Supreme Court precedent, we hold that [Williams] has met” his burden to show reversible Case: 23-50725 Document: 73-1 Page: 4 Date Filed: 08/01/2024No. 23-50725

5 plain error. 1 Rodriguez- Pena, 957 F.3d at 516. Accordingly, we vacate the sentence imposed by the district cour t and remand for resentencing. Of course, “[n]othing in this opinion precludes the district court from exercising its discretion to depart from the Guidelines and choose any sentence permitted by 18 U.S.C. § 3553.” Id.
VACATED AND REMANDED.

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1 Because we find that Williams has shown pl ain procedural error due to the district court’s reliance on clearly erroneous facts at sentencing, we need not address his remaining arguments regarding the substantive re asonableness of his sentence. Case: 23-50725 Document: 73-1 Page: 5 Date Filed: 08/01/2024