* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-10205

No. 09-10206

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

DEXTER D WILLIAMS,

Defendant-Appellant

Appeals from the United States District Court 

for the Northern District of Texas

USDC No. 4:08-CR-151-A

USDC No. 4:08-CR-57-A

Before GARWOOD, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Appellant Dexter Williams (Williams) appeals from the sentence imposed

upon his conviction for bank robbery and from the sentence revoking his

supervised released for a previous bank robbery. His principal complaint relates

to the sentence received in his latest bank robbery conviction in which the

district court considered facts from his PSR but not included in his charging

United States Court of Appeals

Fifth Circuit

F I L E D

April 12, 2010

Lyle W. Cayce

Clerk
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documents to upwardly depart from the Sentencing Guidelines (“USSG”) based

on prior offenses. The case involves the application of the USSG and federal

statutes to determine if the sentence imposed is procedurally and substantively

unreasonable. Because the district court committed procedural error in

computing the upward departure in this upward departure guideline sentence,

we vacate the sentence and remand for a new sentencing hearing.

FACTUAL AND PROCEDURAL BACKGROUND

Williams was charged in Texas state court with sexually assaulting the

daughters of his ex-girlfriend in 1996. He was taken into custody in November

1996. In March 1999, he pled guilty to two counts of the lesser offense of

indecency with a child-contact. His sentence amounted to time served, and he

was released from prison without parole or supervision.

In 2000, Williams was charged in a three-count indictment with bank

robbery. As part of a plea agreement he pled guilty in federal court to one count

of bank robbery and admitted to the facts of the other two counts in exchange for

the Government dismissing the other two counts. He was sentenced to ninetysix months in prison and three years of supervised release. In May 2007, he was

released from prison and began his supervised release. In the instant case, he

was charged in a one-count federal indictment for bank robbery committed on

August 29, 2008. The Government then moved to revoke his supervised release

for the 2000 bank robbery conviction. 

Due to Williams’s two prior felony convictions in Texas for indecency with

a child-contact, the PSR prepared for the 2008 robbery case recommended that

Williams be considered a career offender for crimes of violence for purposes of §
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1 As indicated, Williams objected to the consideration ofthese facts. He not only did not

admit to the facts contained in the PSR relative to his state conviction, but he disputed the

facts.

3

4B1.1. Williams objected to the PSR’s determination and in a telephone

conference, the district judge stated that regardless of whether Williams was a

career offender or not, “I can disregard all these things and simply impose a

reasonable sentence that would take into account that [Texas child convictions]

conduct.” The Government noted that under Shepard v. United States, 544 U.S.

13, 26 (2005),the districtjudge could not consider facts presented in thePSR but

not also contained in the charging documents or admitted by Williams. Later,

the Government acknowledged at sentencing that the convictions could not be

categorized as crimes of violence using only the documents permitted by

Shepard. The court sustained Williams’s objection but stated it was “ludicrous”

that facts outside the charging documents could not be considered and decided

that “those things have to be taken into account” and would result in a

“significant departure above the top of the guidelines range.” Williams’s offense

level was then set at 21 with a criminal history category of V, which resulted in

a guideline range of 70 to 87 months.

The court imposed a 188-month sentence using § 4A1.3(a)(1) as

justification due to Williams’s criminal history being underrepresented by his

likelihood to commitfuture crimes. The district court explained that paragraphs

43 and 44 of the PSR swayed his decision.1 These paragraphs described facts

underlying the Texas convictions for indecency with a child not covered by the

charging documents. The court also based its departure on Williams’s additional

uncharged bank robberies in 2000 and 2008. The district court determined that
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Williams would have received a guideline range of imprisonment of 151 to 188

months if he had been classified as a career offender. The court determined that

a range of 151 to 188 months would achieve the objectives described in § 3553(a)

and imposed a 188-month prison term followed by three years of supervised

release. The court arrived at this sentence by putting Williams in the criminal

history category of VI pursuant to § 4A1.3(a)(4)(A) and increased the offense

level by 8 levels for a total of 29 under § 4A1.3(a)(4)(B) resulting in a range of

151 to 188 months. As a condition of supervised release, the court ordered

Williams to participate in sex-offender treatment “until successfully discharged.”

Next, the district court held a hearing on the Government’s motion to

revoke Williams’s supervised release, which Williams had admitted to as true.

Williams requested the sentence run concurrently because the court had

upwardly departed from the original 70 to 87 month range with the 188-month

sentence. The court found the release conditions to be violated and imposed a

maximum 24-month sentence to run consecutive to the bank robbery sentence.

The sentence was within the range recommended by §§ 7B1.3(f) and 7B1.4(a)

(Policy Statements). 

STANDARDS OF REVIEW

In deciding if a district court arrived at an appropriate sentence, we first

determine whether the district court committed any procedural errors, including

an improperly calculated range under the guidelines and a sentence based on

clearly erroneous facts. Gall v. United States, 552 U.S. 38, 51 (2007). The

district court’s interpretation and application of the USSG is reviewed de novo.

United States v. Armstrong, 550 F.3d 382, 404 (5th Cir. 2008); United States v.
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Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir. 2006). The district court’s findings

of fact related to sentencing are reviewed for clear error. United States v.

Castillo, 430 F.3d 230, 238-39 (5th Cir. 2005). If the sentence is procedurally

sound, then this Court determines whether the sentence is substantively

reasonable under the factors in 18 U.S.C. § 3553(a). Gall, 552 U.S. at 51.

This Court recognizes three types of sentences: i) a sentence within the

guidelines range, ii) an upward/downward departure as allowed by the USSG,

and iii) a non-guidelines sentence or variance that is outside the guidelines. See

United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006). Upward departures

that are authorized by the guidelines are considered guideline sentences. See

United States v. Tzep-Mejia, 461 F.3d 522, 525 (5th Cir. 2006). 

We apply a presumption of reasonableness to guideline sentences and

review for abuse of discretion sentences that include an upward or downward

departure as provided for in the guidelines. United States v. GutierrezHernandez, 581 F.3d 251, 255 (5th Cir. 2009). Unusually harsh sentences must

be explained with sufficient justifications because the Guidelines are “the

product of careful study based on extensive empirical evidence derived from the

review of thousands of individual sentencing decisions.” Gall, 552 U.S. at 46.

A district court abuses its discretion when it departs for “legally unacceptable

reasons” or when the “degree of the departure is unreasonable.” United States

v. Desselle, 450 F.3d 179, 182 (5th Cir. 2006). 

DISCUSSION
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I. District Court’s Upward Departure

Section 4A1.3(a)(1) authorizes a district courtto upwardly departfrom the

guidelines range when the defendant’s criminal history category “substantially

underrepresents the seriousness of the defendant’s criminal history or the

likelihood that the defendant will commit other crimes.” The court is also

allowed to move to a higher offense level ifthe district courtfinds thatthe extent

and nature of the defendant’s criminal history warrant a departure beyond

category VI. § 4A1.3(a)(4)(B). 

Here, the district court found that Williams’s criminal history category

substantially underrepresented his likelihood to commit future crimes and

upwardly departed based on a USSG provision. Thus, the decision to depart and

extent of departure is considered a within-guidelines sentence, Tzep-Mejia, 461

F.3d at 525, and is reviewed for abuse of discretion. Zuniga-Peralta, 442 F.3d

at 347. 

A. Career-Offender Criteria and Section 994

Williams first contends that UnitedStates v. Gomez-Herrera, 523F.3d 554

(5th Cir. 2008) establishes that only those who meet the career-offender criteria

should receive sentences at or near the statutory maximum. His interpretation

of 28 U.S.C. § 994(h) and § 4B1.1 means that Congress intended to exclude noncareer offenders from receiving similar penalties (sentences at or near the

statutory maximum). However, Williams’s first argument fails. Gomez-Herrera

dealt with a defendant who argued that the district court should be permitted

to consider the sentencing disparities between courts that participated in the

“fasttrack” disposition program for defendants charged with illegal re-entry and
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those courts, like the one he was in, that did not. Gomez-Herrera, 523 F.3d at

557. We noted that Congress had intended to create a sentencing disparity on

the basis of a whether a district participated in the program; thus, a district

court could not deviate from the USSG because of disparity intended by

Congress. Id. at 563. The fast-track program at issue in Gomez-Herrera is

distinguishable because Congress expressed its intent that certain sentencing

benefits would be given to one class of defendants to the exclusion of another.

See id. at 562-63. Section 994(h) does not suggest that only those who meet the

career-offender criteria should receive such a sentence; thus, non-career-offender

defendants may receive similar sentences. 

B. Shepard’s Prohibition on Using Facts Outside the Charging

Document

Next, Williams argues that the district court considered documents

prohibited by Shepard to depart upwardly and sentence him as a career offender

even though he did not qualify for the career-offender sentencing enhancement.

Shepard prohibits a district court from considering facts not contained in the

charging documents. Shepard, 544 U.S. at 26; United States v. Mohr, 554 F.3d

604, 607 (5th Cir. 2009); see United States v. Garza-Lopez, 410 F.3d 268, 273-74

(5th Cir. 2005) (noting that a district court may not rely on a PSR’s

characterization of an offense to support an enhancement). We recently held in

Guiterrez-Hernandez,that a district court could not circumvent the Shepard rule

by supporting its decision to upwardly depart on facts it was prohibited from

considering when determining whether sentencing enhancements were

warranted. Gutierrez-Hernandez, 581 F.3d at 255. In that case, the district
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court stated that it was prohibited from considering a police report in deciding

whether the defendant’s drug crime qualified for a felony drug-trafficking

enhancement under § 2L1.2, but then relied on the facts in the police report to

conclude that the defendant sold cocaine and justified an upward departure

under § 5K2.0 based on these facts. Id. We determined that procedural error

had occurred because no valid basis to support the upward departure existed.

Id.

Here, Shepard controlled which documents the district court could

consider for purposes of using Williams’s prior Texas convictions to enhance his

sentence, and the court relied on these prior Texas convictions to depart upward

under § 4A1.3 after finding inadequate bases to support the enhancement. This

occurred after the district court correctly decided that it could not consider

information outside the charging documents to determine if the Texas

convictions constituted crimes of violence, which would qualify him as a career

offender. Moreover, the district court explicitly noted that paragraphs 43 and

44 of the PSR were taken into consideration. These paragraphs contain facts

aboutthe Texas convictions notincluded in the charging document. Finally, the

district court justified Williams’s greater risk to the community “based on those

things [bank robberies and indecency convictions] mentioned” in the PSR. The

Government correctly points out that Williams’s criminal history of four felony

convictions (the two Texas convictions and the two bank robberies), a

misdemeanor and admitting to four additional bank robberies, supports an

upward departure or a non-Guideline sentence. These bank robberies included

notes that threatened violence to the bank tellers and were committed within a
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2 Notably, (1) the court expressed its displeasure that it could not consider information

outside the charging documents to impose career-offender enhancements throughout the

proceedings, (2) it found it “too risky” to impose the career enhancements under § 4B1.1, (3)

it then imposed the same guideline sentence as a career offender only using § 4A1.3 as

justification, (4) it repeatedly expressed its intent to consider all available information and to

impose a significant upward departure, and (5) the court made reference to the prohibited

findings in the PSR’s detailed description of the charges.

3 We note, without comment, that the district court retains discretion on remand to

make a determination on the propriety of a non-guideline sentence but must first compute a

proper guideline sentence before attempting to make a proper non-guideline sentence or

upward guideline departure otherwise in conformity with the law.

9

short time after his release from prison. However, as previously mentioned, a

look at the whole record shows the district court focused on the indecency

convictions,2 as well as the bank robberies, to upwardly depart as a justification

for its guideline sentence. Because the district court computed the upward

departure by considering facts prohibited by Shepard and this Court’s

subsequent rulings,3it committed procedural error requiring new sentencing

proceedings. 

II. The Consecutive Sentence for Violation of Supervised Release 

Williams’s final argument asks this Court to review the district court’s

decision to impose a 24-month prison term to run consecutively, not

concurrently, to his prison term for the bank robbery conviction. The purpose

of a sentence imposed for violating the terms of supervised release is to punish

the defendant for his breach of trust, and not for any criminal offense resulting

in the revocation of his release. See United States v. Payan, 992 F.2d 1387, 1296-

97 (5th Cir. 1993); U.S. Sentencing Guidelines Manual ch. 7, pt. A(3)(b),

introductory cmt. (2009). The USSG recognizes that the sanction for violation
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of trust should be consecutive (in addition) to the sentence imposed on the basis

of the defendant’s new criminal conduct. See U.S. Sentencing Guidelines

Manual ch. 7, pt. A(3)(b); id. § 7B1.3(f) (requiring that a prison term imposed

pursuant to a supervised release violation “shall be ordered to be served

consecutively to any sentence of imprisonment that the defendant is serving”);

see also United States. v. Zamora-Vallejo, 470 F.3d 592, 596 n.6 (5th Cir. 2006)

(noting that while conduct which results in revocation of a supervised release

might constitute a new criminal offense, that conduct is not being punished

twice if the defendant receives two sentences). Here, Williams received a

sentence for his 2008 bank robbery conviction and a sentence for “breach of

trust” by violating the terms of his supervised release for his 2000 bank robbery

conviction. The 24-month sentence for the supervised-released violation, while

the maximum recommended, is still within the range recommended by the

guideline policy statements. Because the district court followed the policy

mandates of § 7B1.3(f), it did not err for imposing a consecutive sentence for

Williams’s supervised-release violation.

The district court committed procedural error when computing the upward

departure, guideline sentence. Accordingly, the sentence imposed for the later

conviction in appeal number 09-10206 is VACATED, and we REMAND for

resentencing consistent with the opinion. We find no error in the district court’s

decision to impose a consecutive sentence for Williams’s supervised-release

violation. Accordingly, the sentence imposed in the revocation hearing in appeal

number 09-10205 is AFFIRMED.