United States Court of Appeals

for 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 defendant pled guilty to conspiracy to possess with intent to 

distribute a controlled substance. The district court imposed a belowGuidelines sentence. The defendant argues that the district court 

procedurally erred in imposing the 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opinion should not be published and is not precedent except under the limited 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

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FACTUAL AND PROCEDURAL BACKGROUND

Wiley Raymond Phillips pled 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 imported methamphetamine

(the “importation enhancement”). The total offense level, combined with 

Phillips’ criminal history category, yielded a Guidelines range of 235 to 293

months’ imprisonment. Because the statutory maximum for the offense was 

20 years, see 21 U.S.C. §§ 846, 841(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’ counsel 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 —

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THE COURT: Isn’t that stepping outside of my lane, so-tospeak?

MR. COFER: Absolutely not, Your 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 this 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 where 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 arguments, 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 variance.” 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.” 

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The district court continued the hearing and did not announce a 

sentence 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]uidelines.” Phillips renewed his objections 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.

DISCUSSION

Phillips argues that the district court committed procedural error by 

treating the importation enhancement as mandatory. In this instance, we 

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 

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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 

omitted). 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, including 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 errors, we have looked for explicit 

evidence that the district court lacked awareness of its 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.

We also reviewed a district court’s failure to appreciate its discretion

under the Guidelines in another case. The district court there had 

erroneously held that it lacked discretion to consider evidence of a 

defendant’s cooperation in the absence of a motion from the government 

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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Here, the district court never explicitly disclaimed authority to vary 

from the Guidelines. To the contrary, the district court referred to the 

Guidelines as “advisory.” The district court also acknowledged the position 

of another judge who varied from the Guidelines based on a policy 

disagreement, noting that it understood that judge’s reasoning.

Phillips argues that the district court’s “trepidation about a possible 

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.” 

This 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 its 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. The Supreme 

Court has found 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, we interpret 

the district court’s statements, particularly those about its “role” and 

“lane,” to reflect its hesitation before exercising discretion. We find no error 

in that hesitancy. After all, a district court is “never required to vary under 

Kimbrough.” United States v. Malone, 828 F.3d 331, 339 (5th Cir. 2016). 

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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 if a district court stated that it categorically 

refused to vary from the Guidelines under any circumstance, then such a 

statement would be akin to applying the erroneous presumption that the 

Guidelines must be considered reasonable. See Gall, 552 U.S. at 50. Here, 

though, we do not interpret the district court’s statements as reflecting such 

an absolute refusal to vary. Instead, 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 Phillips’ sentence.

AFFIRMED.

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