# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 20

- 10222

**United States of America,** Plaintiff

— Appellee **,**

versus **Wiley Raymond Phillips,** Defendant

— Appellant

**.**

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:19

- CR

- 302

- 6

Before **Barksdale, Southwick,** and **Graves,** Circuit Judges

**. Leslie H. Southwick,**  Circuit Judge **:** *
The d efendant pled guilty to conspiracy to possess with intent to distribute a controlled substance. The district court imposed a below

G uidelines sentence

. The d efendant argues that the district court procedurally er red in imposing th e sentence. We **AFFIRM.**

* Pursuant to **5th Circuit Rule** 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Circuit Rule** 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED February 5, 2021

Lyle W. Cayce Clerk Case: 20-10222 Document: 00515734595 Page: 1 Date Filed: 02/05/2021No. 20

- 10222

2 FACTUAL AND PROCEDURAL BACKGROUND Wiley Raymond Phillips ple d guilty to conspiracy to possess with intent to distribute methamphetamine. The presentence investigation report ( “ PSR ” ) calculated a total offense level that included a two

- level enhancement under United States Sentencing Guidelines Section 2D1.1(b)(5) because Phillips’ offense involved import ed methamphetamine (the “importation enhancement”). The total offense level , combined with P hillips’ criminal history category , yielded a Guidelines range of 235 to 2 93 months ’ imprisonment

. B ecause the statutory maximum for the offense was 20 years , s ee 21 U.S.C. § § 846 , 8 41(a)(1) , (b)(1)(C) , the upper limit of the Guidelines range was reduced to 240 months. Phillips moved to vary downward from the Guidelines range

. Among other arguments, Phillips objected to the importation enhancement . Phillips argued that there was no evidence he knew the methamphetamine involved in his offense was imported. Though he conceded that the district court could apply the importation enhancement anyway , he argued that the district court should exercise its discretion not to apply it . In support, Phillips argued that the enhancement was arbitrary because it did not reflect increased culpability. Phillips also argued that the enhancement did not deter the importation of drugs

. At the sentencing hearing, Phillips’ co unsel and the district court engaged in the following colloquy about Phillips’ objection : THE COURT: Who am I, as the Judge, to question the United States Sentencing Commission and their studies that they’ve done and the background behind this importation enhancement, which the Fifth Circuit has told me it’s perfectly appropriate to give in these circumstances? MR. COFER: The Fifth Circuit

— well, Your Honor

— Case: 20-10222 Document: 00515734595 Page: 2 Date Filed: 02/05/2021No. 20

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3 THE COURT: Isn’t that stepping outside of my lane, so

- to

speak? MR. COFER: Absolutely not, You r Honor. Since Booker , Gall , Kimbrough , you can say you wholly disagree with the [G] uidelines and you think that they’re foolish as long as you’ve acknowledged them. THE COURT: I bet I wouldn’t last very long with the Fifth Circuit if I made that type of statement , but go ahead. MR. COFER: Well, Your Honor, that’s

— that’s happened in the purity cases that we have where [G] uidelines are outrageously high. THE COURT: I understand. And I understand what [another judge in th is district’s] position is on those cases. And again, given what I see my role as a judge is, I understand the argument, something I take into consideration in sentencing, but it’s not something wh ere I’m just going to say, [“]You know what, I don’t like these [G] uidelines, I’m not going to follow them.[”] To me that’s stepping outside of the lane. I think it’s something that Congress requires me to consider. But, anyway, go ahead. After briefly arguing that there was no empirical connection between the importation enhancement and culpability, Phillips’ counsel moved on to other sentencing arguments . In concluding his argument s , he stated that he understood “the Court is not inclined to take away the levels for the importation” but urged that “the Court can reasonably consider . . . the distance between [Phillips] and Mexico in the scheme that would support at least a one

- level varia nce.” The district court responded, “You made a very eloquent argument, although a large part of it I do disagree with, particularly when it comes to my consideration of the guidelines. I do think it’s something I can’t just [wholly] jettison.” Case: 20-10222 Document: 00515734595 Page: 3 Date Filed: 02/05/2021No. 20

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4 T he dis trict court continued the hearing and did not announce a sentenc e until a second hearing a week later. At that hearing, the district
court granted a downward departure of ten months from the minimum of the Guidelines range because Phillips had completed a term of imprisonment for a related offense. The district court then imposed a sentence of 225 months. In explaining the sentence, the district court stated that it had considered the Section 3553(a) factors, including the “advisory sentencing [G] uideli nes.” Phillips renewed his object ions to the sentence, including an objection to the court’s treatment of “the [G] uidelines as mandatory as it relates to the importation levels.” The district court overruled those objections. Phillips appealed.

DISCUSS ION Phillips argues that the district court committed procedural error by treating the importation enhancement as mandatory. In this instance, w e review de novo whether the district court committed that procedural error. United States v. Harris , 702 F.3d 226, 229 (5th Cir. 2012).
When sentencing a defendant , a district court must first calculate the Guidelines sentencing range. Gall v. United States , 552 U.S. 38, 49 (2007). Next, the district court must allow “both parties an opportunity to argue for whatever sentence they deem appropriate.” Id

. at 49. Finally, “the district judge should . . . consider all of the § 3553(a) [sentencing] factors to determine whether they support the sentence requested by a party.” Id

. at 49

– 50. In this last step , a district court “may not presume that the Guidelines range is reasonable.” Id

. at 50. Instead, it “must make an individualized assessment based on the facts presented.” Id

. As part of that individualized Case: 20-10222 Document: 00515734595 Page: 4 Date Filed: 02/05/2021No. 20

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5 assessment, the district court has discretion to vary from the Guidelines. The district court may vary because it “finds a particular case outside the heartland to which the Commission intends individual Guidelines to apply.” Kimbrough v. United States , 552 U.S. 85, 109 (2007) (quotation marks omit ted). It may also vary because the Guidelines “fail[] properly to reflect § 3553(a) considerations even in a mine

- run case.” Id

. (quotation marks omitted). A district court commits procedural error when it fails to follow this process for sentencing, i ncluding when it fails to appreciate its discretion under the Guidelines. United States v. Burns , 526 F.3d 852, 861

– 62 (5th Cir. 2008). In reviewing for procedural error s , we have looked for explicit evidence that the district court lacked awareness of i ts discretion under the Guidelines

. In Burns , we vacated and remanded for resentencing where the district court stated that it had “no

- limited discretion, if any , ” to vary from the Guidelines based on a policy disagreement. Id. at 861. Finding error , we held that the defendant was “entitled to have his sentence set by a judge aware of the discretion that Kimbrough has announced.” Id. at 862.
W e also reviewed a d istrict court’s failure to appreciate its discretion under the Guidelines in another case

. T he district court there had erroneously held that it lacked discretion to consider evidence of a defendant’s cooperation in the absence of a motion f rom the govern ment under Section 5K1.1 of the Guidelines. United States v. Robinson , 741 F.3d 588, 599

– 601 (5th Cir. 2014)

. In concluding that the district court had committed procedural error, we emphasized that the district court was “quite explicit in rejecting its authority to consider the evidence of [ the defendant’s] cooperation.” Id. at 601. We distinguished a case where the district court merely “evinced doubt or hesitation” about its discretion. Id. We also distinguished a case where the district court “understood its discretion” but declined to exercise it. Id

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6 Here, t he district court never explicitly disclaimed authority to vary from the Guidelines. To the contrary, the district court referred to the Guidelines as “advi sory.” The district court also acknowledged the position of an other judge who var ie d from the G uidelines based on a policy disagreement , noting that it understood th at judge’s reasoning

. Phillips argues that the district court’s “trepidatio n about a pos sible reversal” is explicit evidence that the district court lacked awareness of its discretion under the Guidelines. To support that argument, Phillips quotes

an exchange where his counsel told the district court it could “ say [ that it] wholly disagree [s ] with the [G] uidelines and

. . . think [s] that they’re foolish as long as [it] acknowledged them.” The district court responded, “I bet I wouldn’t last very long with the Fifth Circuit if I made that type of statement.”
T his exchange does not disclose ignorance of the district court’s discretion to vary from the Guidelines. It instead shows that the district court properly understood it s obligation to give “ respectful consideration to the Guidelines.” Kimbrough , 552 U.S. at 101. While a district court has discretion to vary from the Guidelines, it must “consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance. ” Gall , 552 U.S. at 50

. T he Supreme Court has fo und it “uncontroversial that a major departure should be supported by a more significant justification than a minor one.” Id

. Rather than signaling ignorance of the discretion to vary, w e interpret the district court’s statements, particularly those ab out its “role” and “lane , ” to reflect its hesita tion before exercis ing discretion . We find no error in that hesitancy. A fter all, a district court is “ never required to vary under Kimbrough .” United States v. Malone , 828 F.3d 331, 339 (5th Cir. 2016). Case: 20-10222 Document: 00515734595 Page: 6 Date Filed: 02/05/2021No. 20

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7 Phillips argues that the district court’s hesitance to vary amounts to an abdication of the responsibility to individually assess the facts during sentencing. We acknowledge that i f a district court stated that it categorically refused to vary from the Guidelines under any circumstance , then such a
statement w ould be akin to applying the erroneous presum ption that the Guidelines must be considered reasonable. See Gall , 552 U.S. at 50. Here, though, we do not inter pret the district court’s statements as reflecting such

a n absolute refusal to vary. I nstead , we interpret the district court to say that it would require weighty reasons to do so. We hold that the district court did not procedurally err in imposing Phil lips’ sentence.
**AFFIRMED**

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