* Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. 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 ClerkNo. 09-10205 No. 09-10206

2 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 ifthe 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.

F ACTUAL 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 ofbank robbery and admitted to the facts ofthe other twocounts in exchange for the Government dismissing the other two counts. He was sentenced to ninetysix months in prison and three years ofsupervised 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 toWilliams’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 ofviolence for purposes of §No. 09-10205 No. 09-10206

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 districtjudge stated that regardless ofwhether 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 S hepard v. United States, 544 U.S. 13, 26 (2005), the districtjudge could not consider facts presented in the PSR 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 ofthe guidelines range.” Williams’s offense level was then set at 21 with a criminal history category ofV, 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 tocommit futurecrimes. 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 2000and 2008. The district court determined thatNo. 09-10205 No. 09-10206

4 Williams would have received a guideline range of imprisonment of 151 to 188 months ifhe had been classified as a career offender. The court determined that
a range of151 to 188 monthswould 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 l evels 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 toparticipate 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 R EVIEW In deciding ifa district court arrived at an appropriate sentence, we first determinewhether thedistrict court committed any procedural errors, including
an improperly calculated range under the guidelines and a sentence based on clearly erroneous facts. G all 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.No. 09-10205 No. 09-10206

5 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. U nited 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. U nited 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 ofcareful study based on extensive empirical evidence derived from the review of thousands of individual sentencing decisions.” G all , 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).

D ISCUSSIONNo. 09-10205 No. 09-10206

6 I. District Court’s Upward Departure Section 4A1.3(a)(1) authorizesa district court toupwardly depart from 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 court finds that the 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 ofdeparture 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 Williamsfirst contends that United Statesv. Gomez-Herrera, 523 F.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 of28 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. G omez-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 “fast track” disposition program for defendantscharged with illegal re-entry andNo. 09-10205 No. 09-10206

7 those courts, like the one he was in, that did not. G omez-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
c ourt could not deviate from the USSG because of disparity intended by Congress. I d. at 563. The fast-track program at issue in G omez-Herrera is distinguishable because Congress expressed its intent that certain sentencing benefits would be given to one class of defendants to the exclusion o f another. See id. at 562-63. Section 994(h) does not suggest that only those who meet the career-offender criteria should receivesuch a sentence; thus, non-career-offender defendants may receive similar sentences. B. Shepard’s Prohibition on Using Fac ts Outside the Charging Document Next, Williams argues that the district court considered documents prohibited by Shepard todepart upwardly and sentence him asa 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. S hepard, 544 U.S. at 26; United States v. Mohr, 554 F.3d 604, 607 (5th Cir. 2009); see United Statesv. Garza-Lopez, 410 F.3d 268, 273-74 (5th Cir. 2005) (noting that a district court may not rely on a PSR’s characterization ofan offense to support an enhancement). We recently held in Guiterrez-Hernandez, that a district court could not circumvent theShepard rule by supporting its decision to upwardly depart on facts it was prohibited from considering when determining whether sentencing enhancements were warranted. G utierrez-Hernandez, 581 F.3d at 255. In that case, the districtNo. 09-10205 No. 09-10206

8 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. I d. We determined that procedural error had occurred because no valid basis to support the upward departure existed. Id. Here, Shepard c ontrolled which documents the district court could consider for purposes ofusing 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 tosupport 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 ofviolence, 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 about theTexas convictions not included in the charging document. Finally, the district courtjustified 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 offour 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 aNo. 09-10205 No. 09-10206

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, 3 it committed proc edural 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 ofsupervised release is to punish the defendant for his breach of trust, and not for any criminal offense resulting in the revocation ofhis release. SeeUnited Statesv. 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 violationNo. 09-10205 No. 09-10206

10 oftrust should be consecutive (in addition) to the sentence imposed on the basis
o f the defendant’s new criminal conduct. See U.S. Sentencing Guidelines Manual ch. 7, pt. A(3)(b); i d. § 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 ofhis 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. Thedistrict court committed pro cedural 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.