IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-60222

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

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 

United States Court of Appeals

Fifth Circuit

FILED

April 10, 2015

Lyle W. Cayce

Clerk

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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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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 exgirlfriends, 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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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 factfindings 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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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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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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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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Guidelines.” Smith, 440 F.3d at 707. While these reasons “should be factspecific 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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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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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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 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: 15 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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 Case: 14-60222 Document: 00513000702 Page: 16 Date Filed: 04/10/2015