United States v. Nickdaniel Clay, 2015 U.S. App. LEXIS 8583

Clay pled guilty to possession with intent to distribute cocaine and was designated a career offender under U.S.S.G. § 4B1.1 based on two prior convictions, producing a Guidelines range of 151–188 months (vs. 30–37 months otherwise).
Clay did not contest the career-offender classification but asked for a downward variance under 18 U.S.C. § 3553(a), arguing his prior convictions did not reflect the type of serious recidivism the career-offender guideline targets.
The district court acknowledged being “troubled” by the large Guidelines increase but declined to vary downward, stating it lacked Fifth Circuit authority to do so when § 4B1.1 applies.
The district court imposed a within-Guidelines sentence at the bottom of the range and (apparently) did not afford Clay an opportunity to allocute before sentencing.
On appeal Clay argued the court procedurally erred by treating the Guidelines as effectively mandatory (failing to appreciate its § 3553(a) discretion) and by not allowing allocution.
The Fifth Circuit vacated and remanded, holding the district court procedurally erred by not recognizing its discretion to vary from the career-offender-based Guidelines range and noting the allocution omission.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court procedurally erred by treating the career-offender Guidelines as effectively mandatory	Clay: court failed to appreciate its § 3553(a) discretion to vary from a career-offender-based Guidelines range	Government: sentence lawful because court applied the Guidelines and imposed a within-Guidelines term	Court: Procedural error—district court did not recognize its authority to vary from § 4B1.1 range; vacated and remanded
Whether the procedural error was harmless	Clay: error affected sentencing because court expressed it was "troubled" and would likely have sentenced differently with authority	Government: must show error was harmless and that sentence would be the same absent error	Court: Government failed to meet heavy burden; error not harmless; remand required
Whether the defendant was afforded allocution before sentencing	Clay: was not given opportunity to allocute	Government/district court: no adequate response recorded	Court: Allocution apparently omitted; remand so Clay can allocute before resentencing
Whether the district court needed circuit precedent to vary from § 4B1.1	Clay: court may rely on § 3553(a) without specific circuit precedent	Government: court cited lack of Fifth Circuit guidance to deny variance	Court: Guidance unnecessary—Booker/Kimbrough allow variance from any advisory Guideline; lack of precedent is not a basis to deny consideration

United States v. Robinson, 741 F.3d 588 (5th Cir. 2014) (procedural-error and harmless-error framework for sentencing review)
Gall v. United States, 552 U.S. 38 (2007) (two-step sentencing: calculate Guidelines, then conduct individualized § 3553(a) inquiry)
United States v. Booker, 543 U.S. 220 (2005) (Guidelines are advisory; courts retain discretion to sentence outside them)
Kimbrough v. United States, 552 U.S. 85 (2007) (district courts may vary based on disagreement with Guidelines, e.g., crack/powder disparity)
United States v. Burns, 526 F.3d 852 (5th Cir. 2008) (error where court failed to recognize discretion announced in Kimbrough)
United States v. Campos-Maldonado, 531 F.3d 337 (5th Cir. 2008) (courts may vary based on policy disagreements with Guidelines)
United States v. Corner, 598 F.3d 411 (7th Cir. 2010) (en banc) (career-offender Guidelines are advisory; judges may disagree categorically)
United States v. Michael, 576 F.3d 323 (6th Cir. 2009) (career-offender provisions are advisory like other Guidelines)
United States v. Boardman, 528 F.3d 86 (1st Cir. 2008) (remand to consider sentencing with Kimbrough latitude)
Green v. United States, 365 U.S. 301 (1961) (defendant must be clearly invited to speak prior to sentencing)
United States v. Eads, 480 F.2d 131 (5th Cir. 1973) (same; allocution requirement emphasized)