United States Court of Appeals

Fifth Circuit

FILED

June 21, 2007

Charles R. Fulbruge III

Clerk

REVISED August 10, 2007

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-51634

THE UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

BRANDON L. WALTERS

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

Before GARWOOD, SMITH, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

Defendant-Appellant, Brandon Walters, appeals his post-Booker, nonGuideline sentence as unreasonable. Because we find that the district court did

not give adequate explanation justifying the non-Guideline sentence, we

VACATE and REMAND. 

I.

Walters joined the Air Force in 2001, and was stationed at the Lackland

Air Force Base in San Antonio, Texas. Walters began exhibiting inappropriate

behavior towards others on the base, including the personnel manager, First

Sergeant Janet McWilliams. McWilliams recommended Walters be evaluated
No. 05-51634

1 The five counts included:

Count 1: Assault on a federal officer with a deadly weapon, 18 U.S.C. § 111(a), (b);

Count 2: Use of a destructive device in a crime of violence (for Count 1 - assault),

18 U.S.C. § 924(c)(1);

Count 3: Damaging a federal building with explosives, 18 U.S.C. § 844(f)(1), (2);

Count 4: Use of a destructive device in a crime of violence (for Count 3 - damaging

a federal building), 18 U.S.C. § 924(c)(1); and

Count 5: Possession of an unregistered destructive device, 26 U.S.C. § 5861(d).

2

by a mental health professional to assess his fitness for duty. A military

psychiatrist diagnosed Walters with a narcissistic personality disorder, declared

him to be “potentially dangerous,” and recommended that he be discharged.

McWilliams and another officer met with Walters to give him his discharge

packet, and Walters became irate and threatened McWilliams. Several days

later, Air Force officers escorted Walters to the airportfor a one-way flight home,

but he refused to board the plane, escaped from his escort, and checked into a

local hotel. 

Over the following weeks, Walters constructed a home-made bomb. He

placed the bomb in a brown paper package addressed to McWilliams and leftthe

package on the base. The package was placed in the intra-base mail system and

delivered to McWilliams, who opened it in her office. Upon opening, the bomb

detonated. McWilliams survived, but in addition to losing her left hand and

several fingers on her right hand, she lost her belly button, suffered injury to her

right eye, and sustained second and third degree burns. The bomb also damaged

the building where she worked.

A jury convicted Walters on five counts related to the bombing.1 The

conviction included two counts (Count 2 and Count 4) under 18 U.S.C. § 924(c)(1)

for use of a destructive device in relation to two crimes of violence, assault on a

federal officer and causing damage to a federal building. Section 924(c)(1) carries

a 30-year mandatory minimum sentence for a first offense, and a mandatory life

sentence for a second offense. 18 U.S.C. § 924(c)(1)(B)(ii) & (c)(1)(C)(ii). Walters

was initially sentenced to life imprisonment, a sentence the district court
No. 05-51634

2 Pursuant to our mandate, the Government dismissed Count 4, which was the count

relating to the use of a destructive device to cause damage to a federal building.

3

believed to be mandatory under the statute. On Walters’ first appeal, we

determined that it was error to sentence Walters on two convictions under §

924(c)(1) arising from the single use of one destructive device. United States v.

Walters, 351 F.3d 159, 173 (5th Cir. 2003). This Court vacated the sentence and

remanded for resentencing with instructions that the Government dismiss one

of the two counts under § 924(c)(1).2

At resentencing, Walters still faced a statutory minimum sentence of 30

years on Count 2,the remaining § 924(c)(1) count,to run consecutive to any term

imposed on Counts 1, 3, and 5. The Sentencing Guidelines recommended that

Walters receive the minimum 30 years for the § 924 (c)(1) count, but the

Government argued for a non-Guideline term of life imprisonment. The district

court ultimately sentenced Walters to concurrent terms of imprisonment of 262

months on Counts 1, 3, and 5, and a consecutive, non-Guideline term of 720

months (60 years) of imprisonment on the remaining § 924(c)(1) count. Walters

appeals to this Court, arguing that this sentence is unreasonable.

II

A non-Guideline sentence is “ultimately” reviewed for

“‘unreasonableness.’” United States v. Smith, 440 F.3d 704, 706 (5th Cir. 2006)

(quoting United States v. Booker, 543 U.S. 220, 261 (2005)). “Where, as here, a

district court imposes a post-Booker, non-Guideline sentence . . . we conduct our

reasonableness review through an abuse-of-discretion lens, paying particular

attention to the specific reasons given for deviating from the Guidelines.” United

States v. Armendariz, 451 F.3d 352, 358 (5th Cir. 2006).

At the resentencing hearing, the court indicated that it was “considering

sentencing the defendant outside the advisory guidelines system to reflect the

seriousness of the offense, promote respect for the law, to provide just
No. 05-51634

4

punishment for the offense, to afford adequate deterrence to criminal conduct,

and to protect the public from further crimes.” After hearing arguments from

counsel and testimony from McWilliams and her husband, the court confirmed

that it was going to impose a non-Guideline sentence because “the guideline

system does not adequately take into consideration the seriousness of the

offense, the just punishment for the offense, and the protection of the public in

this regard.”

The court briefly mentioned that Walters was treated fairly by the military

and that Walters was given the opportunity to leave the community peacefully.

However,the court primarily focused on the factthatthis crime involved the use

of a bomb: 

Though the events in this case did occur before 9/11, the use of a

bomb or bombs is no less deadlier or no less an act of terror....The

message in this case and in every case where a bomb is used must

be extremely clear. It is...[a] clear and specific [] act of terror. There

is no other way to view the use of a bomb or bombs....The imposition

of a lengthy sentence needs to be imposed to give adequate notice to

those persons in this country or elsewhere who are willing to use a

bomb, [that they] must be willing to serve a long term...sentence.

There is no tolerance for use of a bomb especially when the use of a

bomb has the greater potential of great injury.

The court then stated that the combined 982 month prison term was “of specific

sufficient deterrence.” 

It appears from these comments that the district court based the nonGuideline sentence primarily on the factthatthis was a bomb-related crime.The

court at no time pointed to specific facts from the crime, other than the use of a

bomb, to explain why 60 years, as opposed to the Guideline recommendation of

30 years, was appropriate.

A district court must use the applicable Guideline range as a “frame of

reference” when imposing a non-Guideline sentence. Smith, 440 F.3d at 707.

“Additionally, the district court must more thoroughly articulate its reasons

when it imposes a non-Guideline sentence than when it imposes a sentence
No. 05-51634

3 The § 3553(a) factors include:

(1) the nature and circumstances of the offense and the history and

characteristics of the defendant;

(2) the need for the sentence imposed--

(A) to reflect the seriousness of the offense, to promote respect for the

law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational

training , medical care, or other correctional treatment in the

most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range established for--

(A) the applicable category of offense committed by the applicable

category of defendant as set forth in the guidelines . . .;

(5) any pertinent policy statement . . .;

(6) the need to avoid unwarranted sentence disparities among defendants

with similar records who have been found guilty of similar conduct . . .

18 U.S.C. § 3553(a).

5

under authority of the Sentencing Guidelines. These reasons should be

fact-specific and consistent with the sentencing factors enumerated in section

3553(a).”3Id. (citations omitted).

“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.” Id. at 708. We have held that the articulation of a factor

already accounted for by the Sentencing Guidelines did not of itself suffice to

justify a sentence which significantly departed from the Guidelines range. See,

e.g., United States v. Perrin, 478 F.3d 672, 678 (5th Cir. 2007).

In support of its non-Guideline sentence,the court only articulated factors

that are inherent in all bomb-related crimes, and not specific facts relating to
No. 05-51634

4 We callthe court’s attention to 18 U.S.C. § 3553(c)(2) which indicates that the reasons

for sentencing must also be stated in the written judgment. 

6

this particular defendant and his actions. “The farther a sentence varies from

the applicable Guideline sentence, the more compelling the justification based

on factors in section 3553(a) must be.”Smith, 440F.3d at 707 (internal quotation

marks omitted). 

We recognize that, post-Booker, courts are given discretion to decide to

depart from the Guidelines, and we do not believe that the court abused its

discretion in deciding to depart. However, the degree of departure in this case

is substantial, and there must be more than mere lip service to the § 3553(a)

factors to justify such a departure.4 We conclude that the court did not

adequately articulate reasons consistent with the sentencing factors to support

the reasonableness of this sentence.

III

For the foregoing reasons, the sentence is VACATED and the case is

REMANDED for resentencing.