IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-30463

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

JEROME A. WATKINS

Defendant-Appellant

Appeal from the United States District Court

for the Middle District of Louisiana

C.A. 3:09-CR-00081

Before DAVIS, PRADO, and OWEN, Circuit Judges.

PER CURIAM:

*

Jerome A. Watkins pleaded guilty to one count of possession of a firearm

by a felon and one count of possession of cocaine base. The PSR established

Watkins’s criminal history category at II. The district court upwardly departed

and sentenced Watkins to a 33-month term of imprisonment, which was

consistent with a criminal history category of IV. He appeals, claiming that the

court based the sentence on the inappropriate factor of his arrest record. On

plain error review, we vacate Watkins’s sentence and remand for resentencing.

United States Court of Appeals

Fifth Circuit

F I L E D

June 9, 2011

Lyle W. Cayce

Clerk

 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.

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No. 10-30463

I.

The Presentence Report (PSR) assigned Watkins an adjusted offense level

of 14 and a criminal history category of II, resulting in a guideline range of 18-24

months. His criminal history points were assessed based on three convictions:

driving a motor vehicle without a license, possession of cocaine, and possession

of stolen property.

At sentencing, the district court noted that the events giving rise to this

sentence involved Watkins being found in possession of cocaine and a handgun

while fleeing an incident of domestic violence with his minor child in the car.

The district court also concluded that the PSR under represented Watkins’s

criminal history because he had a “fairly long record of criminal conduct” that

included “four prior convictions . . . [for] armed robbery, simple burglary, battery

of a police officer, and resisting a police officer.” However, those four offenses

were actually arrests, not convictions. The judge also mentioned that his record

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reflected “possession of cocaine and prior arrests.”

The district court concluded that Watkins’s criminal history category of II

significantly understated the seriousness of his past conduct and the likelihood

he would engage in violent conduct again because he had an “unusual propensity

towards violence, which [made his] possession of a firearm that much more

frightening,” warranting an upward departure pursuant to U.S.S.G. § 4A1.3.

The court considered that a range of 27-33 months, consistent with a criminal

history of IV, was appropriate. The court then sentenced him to 33 months

imprisonment, a 9-month increase from the top of his guideline range. On

appeal, Watkins argues that the district court erred in imposing an upward

The defendant did not have an arrest for simple burglary, but he did have one for 1

simple battery, which is likely what the district court was referring to when it said “simple

burglary.”

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departure based on his arrests, which the district court erroneously thought

were convictions.

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II.

Because the issue was not raised at sentencing, we review for plain error.

Under the plain error standard, Watkins “must show that (1) there was error,

(2) that was plain, (3) the error affects substantial rights, and (4) the error

seriously affects the fairness, integrity, or public reputation of the judicial

proceedings.” United States v. Blocker, 612 F.3d 413, 415-16 (5th Cir. 2010)

(citing United States v. Jones, 489 F.3d 679, 681 (5th Cir.2007)).

The Government concedes that the district court committed error that was

plain to the extent that it relied on Watkins’s arrest record in departing from the

Guidelines. See U.S.S.G. § 4A1.3(a)(2)(E) (2009) (“A prior arrest record itself

shall not be considered for purposes of an upward departure under this policy

statement.”); United States v. Jones, 444 F.3d 430, 434 (2006) (noting that

arrests may properly be considered at sentencing if there is other reliable

evidence to support a finding that the defendant actually committed the crime(s)

reflected on the arrest record). However, the Government argues that the error

did not affect Watkins’s substantial rights because the district court based its

departure not only on Watkins’s arrest record but also on his prior conviction for

possession of cocaine and the facts surrounding the instant offense (domestic

violence, flight from the scene, and recklessness in driving with his child in a car

that contained a loaded gun and drugs).

A defendant’s substantial rights have been affected if there is a reasonable

probability that, but for the misapplication of the guidelines, he would have

The language the court used at sentencing makes it clear that it was using these

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arrests it believed to be convictions to upwardly depart. It is unclear why the court did not

consider thatthese “convictions” warranted a higher criminal history score so that a departure

may not have been necessary.

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received a lesser sentence. United States v. John, 597 F.3d 263, 285 (5th Cir.

2010). Although the district court did discuss permissible factors, its statements

reflect that it made the upward departure based primarily on the fact that

Watkins had “an unusual propensity towards violence, which [made his]

possession of a firearm that much more frightening.” This apparently led the

court to conclude that a criminal history category of II “did not adequately

address the seriousness of [his] past conduct.” If the court had not considered

the arrests, Watkins’s history would have included the nonviolent crimes of drug

possession, driving without a license, and possession of stolen property. The

court’s statement indicates that it was more concerned with Watkins’s violent

propensities reflected by his arrests for battery, armed robbery, and resisting a

police officer. We therefore conclude that Watkins’s substantial rights were

affected because there is a reasonable probability that, but for the misapplication

of the guidelines, he would have received a lesser sentence. See id.

“In this circuit, ‘whether a sentencing error seriously affects the fairness,

integrity, or public reputation of judicial proceedings is dependent upon the

degree of the error and the particular facts of the case.’” U.S. v. Davis, 602 F.3d

643, 651 (5th Cir. 2010) (quoting John, 597 F.3d at 286).

In United States v. Jones, we found that the fairness, integrity and public

reputation of judicial proceedings were not harmed by the district court’s

consideration of a defendant’s arrest record because it also engaged in a lengthy

discussion of the aggravating circumstances of the case and specifically sought

to align the sentence with that of a similarly-situated defendant. 489 F.3d at

682. We stated that “[o]ur respect for the district court’s diligent effort at

sentencing is not undermined by its unnecessary discussion of [the defendant’s]

arrest record.” Id. Unlike the sentencing court in Jones, the district court here

apparently relied primarily on the defendant’s arrests as justification for the

upward departure. It also erroneously believed the arrests represented

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convictions. Because that incorrect belief casts doubt on the court’s conclusion

that Watkins’s history justified an upward departure, we find that the

sentencing error seriously affected the fairness, integrity, or public reputation

of judicial proceedings.

III.

We therefore VACATE Watkins’s sentence and REMAND for resentencing.

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