United States Court of Appeals

for the Fifth Circuit

No. 19-50921

United States of America, 

Plaintiff—Appellee,

versus

Tonya Mims, 

Defendant—Appellant.

Appeal from the United States District Court

for the Western District of Texas

No. 5:19-CR-248-1

Before King, Smith, and Haynes, Circuit Judges.

Jerry E. Smith, Circuit Judge:

Tonya Mims violated her conditions of supervised release (“SR”) by,

inter alia, committing another crime involving financial fraud. She pleaded 

guilty to her substantive charge and pleaded true to violating her conditions 

of SR. The district court considered an incorrect advisory range in sentencing her on revocation. Mims failed to object and appeals her sentence, contending that the court committed plain error. We affirm.

United States Court of Appeals

Fifth Circuit

FILED

April 1, 2021

Lyle W. Cayce

Clerk

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I.

A.

Mims was convicted of mail fraud in 2005 after she abused her role as 

office manager to divert $1,841,276 from customer checks into her own bank 

account. She was convicted again in 2015, this time of ten counts of wire 

fraud under 18 U.S.C. § 1343 after taking advantage of her position as a 

consulting accountant to make numerous withdrawals from various companies’ accounts for her own use. Mims was sentenced to 37 months in 

prison, followed by 3 years of SR, and ordered to pay $1,000,000 in restitution. She was released in December 2016, and in January 2019 she was 

charged yet again, this time for access device fraud under 18 U.S.C. 

§ 1029(a)(2).

On January 29, 2019, Mims’s probation officer petitioned to revoke 

her SR, alleging that Mims violated three conditions of SR. Specifically, the 

probation officer alleged that Mims violated the condition requiring she not 

commit another crime. The petition further asserted that, by accepting a 

position as Director of Accounting, Mims violated two other conditions: She 

failed to notify her probation officer at least ten days before a change of residence or employment, and she worked in an “occupation which puts the 

defendant in direct or indirect control of the assets or funds of others.” The 

petition also recommended the issuance of a warrant, identifying Mims as a 

flight risk.

Mims pleaded guilty to access device fraud and pleaded true to violating her conditions of SR. The probation office prepared a violation worksheet, determining that Mims had a criminal history category of II and that 

she committed a Grade A violation. Under the policy statements in Chapter 7 of the United States Sentencing Guidelines (“U.S.S.G.”), the violation 

worksheet thus calculated a recommended sentence of 15 to 21 months for 

violating her SR. See U.S.S.G. § 7B1.4(a). At Mims’s revocation and senCase: 19-50921 Document: 00515805566 Page: 2 Date Filed: 04/01/2021
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tencing hearing, the district court relied on that calculation of the advisory

range.

The district court revoked SR and sentenced Mims to 21 months in 

prison. The court also sentenced her to 14 months in prison for her accessdevice-fraud conviction and determined the two sentences would run consecutively. At no point during sentencing did Mims object.

The parties now agree that the 15 to 21-month advisory range on 

revocation was incorrect. Because Mims’s most serious violation was a 

Grade B instead of a Grade A violation, the correct range was 6 to 12 months.1 

Mims asserts that, because the district court considered an incorrect advisory 

range, it committed plain error, so we should vacate and remand for 

resentencing.

II.

Because Mims failed to object to the incorrect advisory range, we 

review for plain error. See United States v. Nino-Carreon, 910 F.3d 194, 196 

(5th Cir. 2018). She must overcome “three hurdles before this court may 

exercise its discretion to correct plain error.” Id. “First, there must be an 

error that has not been intentionally relinquished or abandoned. Second, the 

error must be plain—that is to say, clear or obvious. Third, the error must 

have affected the defendant's substantial rights . . . .” Molina-Martinez v. 

1 There are two types of Grade A violations: first, those punishable by a prison term 

exceeding 1 year that are crimes of violence, controlled substance offenses, or involve 

possession of a firearm or destructive device, and, second, violations punishable by 

imprisonment exceeding 20 years. U.S.S.G. § 7B.1.1(a)(1). Grade B violations, on the 

other hand, are punishable by a prison term exceeding 1 year. U.S.S.G. § 7B.1.1(a)(2). The 

maximum term for Mims’s access-device-fraud offense was 10 years because it did not 

occur after a conviction for another offense under 18 U.S.C. § 1029. See 18 U.S.C. 

§ 1029(c)(1)(A)(i). Her most serious violation was, therefore, a Grade B violation.

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United States, 136 S. Ct. 1338, 1343 (2016) (internal citation omitted). 

If Mims can satisfy those three prongs, then we “ha[ve] 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, 556 U.S. 129, 135 (2009) (cleaned up).

III.

A.

The first two prongs are easily satisfied: Mims asserts—and the 

government agrees—that the advisory-range calculation was clear error that 

Mims did not intentionally waive. Mims contends that the error also affected 

her substantial rights, satisfying the third prong.

To establish that the error affected her substantial rights, Mims “must 

show a reasonable probability that, but for the error, the outcome of the proceeding would have been different.” Molina-Martinez, 136 S. Ct. at 1343

(internal quotation marks omitted). Mims “bears the burden of establishing 

reasonable probability.” United States v. Davis, 602 F.3d 643, 648 (5th Cir. 

2010).

“When a defendant is sentenced under an incorrect Guidelines range 

. . . the error itself can, and most often will, be sufficient to show a reasonable 

probability of a different outcome absent the error.” Molina-Martinez, 

136 S. Ct. at 1345. Although Molina-Martinez involved a guidelines sentence 

instead of an advisory range, we have applied it in cases involving revocation 

sentencing. See, e.g., United States v. Waldrip, 783 F. App’x 369, 370 (5th 

Cir.), cert. denied, 140 S. Ct. 667 (2019).

A court’s use of an incorrect range, however, does not always satisfy 

the third prong. “There may be instances when, despite application of an 

erroneous Guidelines range, a reasonable probability of prejudice does not 

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exist.” Molina-Martinez, 136 S. Ct. at 1346. Whether reliance on an incorrect 

range prejudices a defendant is a case-by-case inquiry, and the record may 

show that the court based the sentence “on factors independent of the Guidelines.” Id. at 1346–47.

Mims contends that there is a reasonable probability of a different outcome. She asserts that the district court failed to indicate that it would have 

imposed a 21-month sentence on revocation regardless of the errant range.

The government avers that the record shows the error did not affect 

Mims’s substantial rights. It points out that the court told Mims “you are 

lucky the government is only recommending 35 months. I was going to give 

you 37.” The court further opined that a 35-month sentence is even lower 

than one of her previous sentences. The government also notes that the 

court chastised Mims and emphasized the seriousness of her repeated 

offenses, saying “it appears that you continue stealing and looking for places

of employment where you can steal.” Finally, the government observes that 

the violation worksheet stated that Mims’s offenses raised several “[a]ggravating factors” that could warrant an upward variance.

2

 The government 

thus contends that the record demonstrates there was not a reasonable probability that the district court would have imposed a lower sentence but for the 

errant advisory range.

The government is correct that it is entirely possible that the district 

court would have imposed a 21-month sentence on revocation even if it had 

relied on the correct range. The sentence was lower than the statutory maxi2 Those factors included her previous convictions for financial fraud, her failure to 

report her new employment to the probation office, and her failure to inform her employer 

that she was on SR and of her offense.

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mum.3 On the other hand, despite the court’s opining that Mims got off easy, 

it is also plausible that the court would have accepted an even lower sentence 

had the correct range been considered. Possibly, Mims would have been even 

“luckier” had the correct range been used. 

It is far from clear that the sentence would have been lower but for the 

advisory range error. That is especially so in light of the court’s concern 

about Mims’s past offenses and its view that Mims was “lucky” to receive 

the 35-month sentence. We need not decide whether Mims satisfied the 

third prong, however, because even assuming that arguendo, we decline to 

exercise our discretion to remedy the error. See Davis, 602 F.3d at 650.

B.

Relief under the fourth prong is wholly discretionary. See Puckett, 

556 U.S. at 135. We “respect the sentencing court’s discretion in making 

sentencing decisions” and “do not view the fourth prong as automatic if the 

other three prongs are met.” United States v. Culbertson, 712 F.3d 235, 244 

(5th Cir. 2013) (internal quotation marks omitted). Rather, the “fourth 

prong is meant to be applied on a case-specific and fact-intensive basis.” 

Puckett, 556 U.S. at 142. To that end, we have observed that the fourth prong

is “dependent upon the degree of the error and the particular facts of the 

case.” Davis, 602 F.3d at 651 (quoting United States v. John, 597 F.3d 263, 

288 (5th Cir. 2010)). 

As the district court correctly observed, Mims continued to seek positions of trust to steal from her employers and their customers: Indeed, she 

has now been convicted thrice for crimes involving financial fraud. Similar

circumstances have warranted affirming plain error in the past. Indeed, in 

3 The district court could have sentenced her up to the statutory maximum of two 

years upon revocation. See 18 U.S.C. § 3583(e)(3).

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United States v. Davis, we considered a sentence imposed based on an 

identically miscalculated advisory range but nonetheless affirmed the 

sentence in light of evidence that “strongly suggested that [the defendant]

intended to resume the same activities for which he initially had been 

convicted and imprisoned.” Id. at 649. We also emphasized that the 

disparity between the incorrectly calculated 15- to 21-month advisory range 

and the proper 6- to 12-month range was relatively minor and that the 

defendant had been sentenced within the statutory maximum. Id. at 651. We 

thus refused to vacate such a sentence “well within the statutory maximum 

and . . . rendered after [the defendant] was found violating numerous terms

of his supervised release and apparently planning a return to his prior 

criminal activities.”4Id. at 652. 

Beyond evidencing that Mims merely “intended to resume the same 

activities for which [she] initially had been convicted and imprisoned,” id. at 

651, the record in this case shows that Mims has repeatedly engaged in the 

same types of fraudulent activity after conviction and imprisonment and 

violated her terms of supervised release in an effort to return to such activity. 

Moreover, Mims’s 21-month sentence is “well within the statutory 

maximum.” Id. at 652. Further, as the violation worksheet elucidates, there 

4 Of course, in Rosales-Mireles v. United States, the Supreme Court cautioned courts 

that the “possibility of additional jail time . . . warrants serious consideration” when 

applying the fourth prong and that reliance broadly on a defendant’s criminal history may 

not be sufficient to explain whether an error seriously affects the fairness, integrity, or 

public reputation of judicial proceedings. 138 S. Ct. 1897, 1907, 1910 n.5 (2018). However, 

the Court maintained that the fourth prong inquiry is “case-specific and fact-intensive” 

and that “[t]here may be instances where countervailing factors satisfy the court of appeals 

that the fairness, integrity, and public reputation of the proceedings will be preserved 

absent correction.” Id. at 1909 (cleaned up). Rosales-Mireles did not involve the same 

evidence that the defendant had violated numerous terms of supervised release in an effort 

to return to prior criminal activities. We find that such “countervailing factors” are 

present under these circumstances. Id.

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are several aggravating factors that would justify an upward variance from the 

advisory range. Indeed, the district court weighed the § 3553(a) factors and 

observed that the sentence it imposed was, if anything, lenient. 

Although the district court considered a wrongly calculated advisory 

range, Mims’s sentence on revocation does not undermine the fairness, 

integrity, or public reputation of judicial proceedings. We thus decline to 

exercise our discretion to remand for resentencing.

AFFIRMED.

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Haynes, Circuit Judge, dissenting:

I respectfully dissent. I agree with the reasoning in Section III.A. of 

the majority opinion that the first two prongs of plain error review are “easily 

satisfied.” I conclude that the third prong is also met given that the district 

court did not specifically assert that it would impose the same sentence 

notwithstanding any errors, and its statements indicate only that it wished to 

impose a revocation sentence at the top of the calculated advisory range, 

which was in accord with the Government’s recommendation for the 

imposition of a 21-month sentence for the supervised release revocation. See 

Molina-Martinez v. United States, 136 S. Ct. 1338, 1345 (2016); United States 

v. Campos, 922 F.3d 686, 688-89 (5th Cir. 2019). 

Turning to the fourth prong, I recognize that this prong is 

discretionary, but the Supreme Court has put substantial brakes on that 

discretion in the related Sentencing Guidelines context: “[t]he possibility of 

additional jail time . . . warrants serious consideration” in that arena. RosalesMireles v. United States, 138 S. Ct. 1897, 1907, 1911 (2018) (concluding that 

our court abused its discretion in failing to grant relief in a Sentencing 

Guidelines error case). Here, the district court sentenced Mims to 21 months 

based on an improperly calculated advisory range; the correct range was 6–

12 months. Accordingly, it meets the Rosales-Mireles standard that there is a 

distinct risk that the district court’s error will subject Mims to “unnecessary 

deprivation of liberty.” Id. at 1908. 

The district court plainly erred. Because we cannot confidently say 

that the district court would have imposed the same sentence absent the 

error, I conclude that we should vacate and remand the sentence. See United 

States v. Escalante-Reyes, 689 F.3d 415, 424–25 (5th Cir. 2012) (en banc).

Given the majority opinion’s declination to do so, I respectfully dissent.

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