=========
No. 06-5754
In the Supreme Court of the United States
VICTOR A. RITA, PETITIONER
v.
UNITED STATES OF AMERICA
...See the rest...
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRIEF FOR THE UNITED STATES
PAUL D. CLEMENT
Solicitor General
Counsel of Record
ALICE S. FISHER
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
DAN HIMMELFARB
MATTHEW D. ROBERTS
Assistants to the Solicitor
General
NINA GOODMAN
JEFFREY P. SINGDAHLSEN
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTIONS PRESENTED
1. Was the district court’s choice of within-Guidelines
sentence reasonable?
2. In making that determination, is it consistent with
United States v. Booker, 543 U.S. 220 (2005), to accord a presumption
of reasonableness to within-Guidelines sentences?
3. If so, can that presumption justify a sentence imposed
without an explicit analysis by the district court of the 18
U.S.C. 3553(a) factors and any other factors that might justify
a lesser sentence?
(I)
TABLE OF CONTENTS
Page
Opinion below......................................... 1
Jurisdiction........................................... 1
Constitutional and statutory provisions involved .......... 1
Statement ............................................ 2
Summary of argument ................................. 9
Argument:
I.
A sentence within a properly calculated Guidelines
range is entitled to a rebuttable presumption of
reasonableness on appeal ...................... 11
A.
Booker makes clear that the Guidelines
will continue to play a critical role in
sentencing ............................... 12
B.
A presumption of reasonableness for
Guidelines sentences recognizes that a
sentence within the Guidelines range
will ordinarily reflect a reasonable
application of the factors in 18 U.S.C.
3553(a) .................................. 16
1.
The Guidelines integrate the congressional
sentencing objectives in
18 U.S.C. 3553(a) ...................... 16
2.
The Guidelines reflect the considered
judgment of an expert agency, Congress,
and sentencing judges across
the country ........................... 22
3.
A presumption of reasonableness
helps to prevent unwarranted
sentencing disparities.................. 24
(III)
IV
Table of Contents—Continued:
Page
4.
A Guidelines sentence reflects a joint
determination by the sentencing judge
and the Sentencing Commission that
the sentence complies with the factors
in 18 U.S.C. 3553(a).................... 32
C.
According a presumption of reasonableness
to within-Guidelines sentences does not make
the Guidelines effectively mandatory ........ 34
II.
When a district court imposes a sentence within
the Guidelines range and complies with the
requirement of 18 U.S.C. 3553(c) to state the
reason for the sentence, the court need not
explicitly analyze all of the Section 3553(a) factors
and other factors that might justify a lesser
sentence ..................................... 39
A.
The SRA requires only a general
explanation for a sentence within the
Guidelines range ......................... 39
B.
The district court need not explicitly
address every argument that might
justify a sentence outside the Guidelines
range ................................... 42
III.
Petitioner’s sentence, at the bottom of the
Guidelines range, was reasonable ............... 44
A.
The district court considered the factors
in 18 U.S.C. 3553(a) ....................... 45
B.
The district court adequately explained
its sentence .............................. 48
C.
Petitioner cannot rebut the presumption
that the within-Guidelines sentence was
reasonable ............................... 49
V
Table of Contents—Continued: Page
Conclusion .......................................... 50
Appendix........................................... 1a
TABLE OF AUTHORITIES
Cases:
Blakely v. Washington, 542 U.S. 296 (2004) ...........38
Braxton v. United States, 500 U.S. 344 (1991) .........23
Brecht v. Abrahamson, 507 U.S. 619 (1993) ...........36
Mistretta v. United States, 488 U.S. 361 (1989) .....17, 24
Ring v. Arizona, 536 U.S. 584 (2002) .................41
United States v. Alonzo, 435 F.3d 551 (5th Cir. 2006) ...11
United States v. Booker, 543 U.S. 220 (2005) ..... passim
United States v. Boscarino, 437 F.3d 634 (7th Cir.
2006), petition for cert. pending, No. 05-1379 (filed
Apr. 27, 2006) ..................................11
United States v. Buchanan, 449 F.3d 731 (6th Cir.
2006), petition for cert. pending, No. 06-6155 (filed
Aug. 23, 2006) ...............................23, 33
United States v. Cage, 451 F.3d 585 (10th Cir.
2006) .......................................18, 37
United States v. Candia, 454 F.3d 468 (5th Cir. 2006) ...11
United States v. Cook, 291 F.3d 1297 (11th Cir. 2002) ...15
United States v. Cooper, 437 F.3d 324 (3d Cir.
2006) .......................................12, 43
United States v. Cunningham, 429 F.3d 673 (7th Cir.
2005) .......................................43, 50
United States v. Dean, 414 F.3d 725 (7th Cir. 2005) ....41
United States v. Dixon, 449 F.3d 194 (1st Cir. 2006) ....32
VI
Cases—Continued: Page
United States v. Dorceley, 454 F.3d 366 (D.C. Cir.),
cert. denied, 127 S. Ct. 691 (2006) .................11
United States v. Dragon, 471 F.3d 501 (3d Cir.
2006) .......................................28, 47
United States v. Fernandez, 443 F.3d 19 (2d Cir.),
cert. denied, 127 S. Ct. 192 (2006) ...........12, 43, 50
United States v. Fleming, 397 F.3d 95 (2d Cir.
2005) ....................................10, 40, 41
United States v. Foreman, 436 F.3d 638 (6th Cir.
2006) ..........................................34
United States v. Gama-Gonzales, 469 F.3d 1109 (7th
Cir. 2006) ......................................35
United States v. Green, 436 F.3d 449 (4th Cir.),
cert. denied, 126 S. Ct. 2309 (2006) ...........8, 11, 46
United States v. Hughes, 401 F.3d 540 (4th Cir.
2005) ..........................................40
United States v. Hunt, 459 F.3d 1180 (11th Cir.
2006) ..........................................26
United States v. Jimenez-Beltre, 440 F.3d 514
(1st Cir. 2006), cert. denied, No. 06-5727
(Jan. 8, 2007) ..........................12, 17, 25, 44
United States v. Johnson, 445 F.3d 339 (4th Cir.
2006) .................................17, 22, 23, 42
United States v. Jointer, 457 F.3d 682 (7th Cir. 2006),
petition for cert. pending, No. 06-7600 (filed Oct.
27, 2006) .......................................32
United States v. Jones, 445 F.3d 865 (6th Cir.), cert.
denied, 127 S. Ct. 251 (2006) ......................43
VII
Cases—Continued: Page
United States v. Jordan, 435 F.3d 693 (7th Cir.), cert.
denied, 126 S. Ct. 2050 (2006) .....................34
United States v. Kristl, 437 F.3d 1050 (10th Cir.
2006) ..........................................11
United States v. Lazenby, 439 F.3d 928 (8th Cir.
2006) ..........................................38
United States v. Lewis, 424 F.3d 239 (2d Cir. 2005) .....40
United States v. Lincoln, 413 F.3d 716 (8th Cir.),
cert. denied, 126 S. Ct. 840 (2005) .................11
United States v. Long, 425 F.3d 482 (7th Cir. 2005) .....21
United States v. Lopez-Flores, 444 F.3d 1218 (10th
Cir. 2006), petition for cert. pending, No. 06-5217
(filed July 7, 2006) ...........................40, 44
United States v. Miqbel, 444 F.3d 1173 (9th Cir.
2006) ..........................................40
United States v. Mix, 457 F.3d 806 (9th Cir. 2006) .....32
United States v. Moreland, 437 F.3d 424 (4th Cir.),
cert. denied, 126 S. Ct. 2054 (2006) ................34
United States v. Myers, 439 F.3d 415 (8th Cir.
2006) .......................................34, 37
United States v. Mykytiuk, 415 F.3d 606 (7th Cir.
2005) .......................................11, 23
United States v. Navedo-Concepción, 450 F.3d 54
(1st Cir. 2006) ...............................27, 28
United States v. Olabanji, 268 F.3d 636 (9th Cir.
2001) ..........................................15
United States v. Ramirez-Rivera, 241 F.3d 37
(1st Cir. 2001) ..................................16
VIII
Cases—Continued: Page
United States v. Richardson, 437 F.3d 550 (6th Cir.
2006) ..........................................11
United States v. Rivera, 463 F.3d 598 (7th Cir. 2006) ...11
United States v. Salinas, 365 F.3d 582 (7th Cir.
2004) ..........................................15
United States v. Sam, 467 F.3d 857 (5th Cir.
2006) ....................................10, 40, 48
United States v. Sanchez-Juarez, 446 F.3d 1109
(10th Cir. 2006) .................................43
United States v. Scott, 426 F.3d 1324 (11th Cir.
2005) .......................................41, 42
United States v. Shelton, 400 F.3d 1325 (11th Cir.
2005) ..........................................17
United States v. Smith, No. 06-4358, 2006 WL
3823174 (4th Cir. Dec. 29, 2006) ...................28
United States v. Talley, 431 F.3d 784 (11th Cir. 2005) . . 12
United States v. Taylor, 487 U.S. 326 (1988) ........41, 42
United States v. Terrell, 445 F.3d 1261 (10th Cir.
2006) .......................................22, 33
United States v. Tsosie, 376 F.3d 1210 (10th Cir.
2004), cert. denied, 543 U.S. 1155 (2005) ............15
United States v. Turbides-Leonardo, 468 F.3d 34
(1st Cir. 2006) ..................................43
United States v. Tyra, 454 F.3d 686 (7th Cir.
2006) .......................................40, 48
United States v. Valtierra-Rojas, 468 F.3d 1235
(10th Cir. 2006) .................................34
United States v. White Face, 383 F.3d 733 (8th Cir.
2004) ..........................................15
IX
Cases—Continued: Page
United States v. Williams, 436 F.3d 706 (6th Cir.
2006), petition for cert. pending, No. 06-5275
(filed July 11, 2006) ..........................11, 40
United States v. Williams, 456 F.3d 1353
(11th Cir. 2006), petition for cert. pending,
No. 06-7352 (filed Oct. 19, 2006) ...................32
United States v. Wilson, 350 F. Supp. 2d 910 (D. Utah
2005) ..........................................19
Walton v. Arizona, 497 U.S. 639 (1990), overruled on
other grounds by Ring v. Arizona, 536 U.S. 584
(2002) ........................................ 41
Constitution, statutes and guidelines:
U.S. Const. Amend. VI ...................3, 9, 12, 34, 1a
Act of Oct. 30, 1995, Pub. L. No. 104-38, § 1, 109 Stat.
334 (28 U.S.C. 994 note) .........................18
PROTECT Act, Pub. L. No. 108-21, 117 Stat. 650:
§ 401(b), 117 Stat. 668 ...........................18
§ 401(g), 117 Stat. 671 ...........................18
§ 401(i), 117 Stat. 672 ............................18
Sentencing Reform Act of 1984, 18 U.S.C. 3551
et seq. ..........................................3
18 U.S.C. 3553 (2000 & Supp. IV 2004) ....42, 43, 1a
18 U.S.C. 3553(a) (2000 & Supp. IV 2004) . . . passim
18 U.S.C. 3553(a)(1) ....................17, 20, 49
18 U.S.C. 3553(a)(2) ............4, 20, 26, 27, 42, 48
18 U.S.C. 3553(a)(2)(A) ........................26
18 U.S.C. 3553(a)(4) (Supp. IV 2004) .........30, 32
X
Statutes and guidelines—Continued: Page
18 U.S.C. 3553(a)(4)-(5) (Supp. IV 2004) .........22
18 U.S.C. 3553(a)(4)(A) (Supp. IV 2004) ..........33
18 U.S.C. 3553(a)(5) (Supp. IV 2004) .........30, 32
18 U.S.C. 3553(a)(6) ....................18, 25, 26
18 U.S.C. 3553(b)(1) (Supp. IV
2004) ..........................3, 12, 28, 29, 30
18 U.S.C. 3553(c) (2000 & Supp. IV 2004) . . . passim
18 U.S.C. 3553(c)(1) ...........................40
18 U.S.C. 3553(c)(2) (Supp. IV 2004) ............39
18 U.S.C. 3742(a)(4) ..........................14
18 U.S.C. 3742(b)(4) ..........................14
18 U.S.C. 3742(e) (2000 & Supp. IV 2004) ......4, 12
18 U.S.C. 3742(e)(3) ..........................14
18 U.S.C. 3742(e)(4) ..........................14
Speedy Trial Act of 1974, 18 U.S.C. 3162(a)(2) .........42
18 U.S.C. 922(a)(6) .................................6
18 U.S.C. 1001 .....................................2
18 U.S.C. 1503 .....................................2
18 U.S.C. 1623 .....................................2
21 U.S.C. 841(b) (2000 & Supp. III 2003) ..............32
22 U.S.C. 2778(b)(2) ................................5
26 U.S.C. 5841 .....................................2
26 U.S.C. 5845(a)(6) ................................2
26 U.S.C. 5845(b) ...................................2
26 U.S.C. 5861 .....................................2
28 U.S.C. 991(b)(1)(A) ...........................17, 42
28 U.S.C. 991(b)(1)(B) ..............................17
XI
Statutes and guidelines—Continued: Page
28 U.S.C. 994 (2000 & Supp. IV 2004) ............32, 17a
28 U.S.C. 994(c)-(d) ................................17
28 U.S.C. 994(e) ................................20, 21
28 U.S.C. 994(f) ...................................17
28 U.S.C. 994(m) ..................................17
28 U.S.C. 994(p) ...................................18
28 U.S.C. 994 note .................................18
U.S. Sentencing Guidelines:
Ch. 1:
§ 1B1.3 .....................................31
§ 1B1.10(c) ..................................24
Ch. 2:
§ 2D1.1(a)(3) .................................24
§ 2D1.1(b)(9) .................................24
§ 2D1.1(c) ...................................31
§ 2D1.1(c)(1) .................................24
§ 2J1.2(c) .....................................5
§ 2J1.2(c)(1) .................................47
§ 2J1.3(c) .....................................5
§ 2J1.3(c)(1) .................................47
§ 2M5.2(a)(1) .................................5
§ 2X3.1(a)(1) ..................................5
Ch. 4:
Pt. A, intro. comment. .........................20
§ 4A1.2(e) ....................................6
§ 4B1.1 .....................................31
XII
Guidelines—Continued: Page
Ch. 5:
§§ 5H1.1 to 5H1.6 ............................20
§ 5H1.2 .....................................20
§ 5H1.5 .....................................20
§ 5H1.6 .....................................20
§§ 5H1.11 to 5H1.12 ..........................20
Ch. 6, Pt. B ....................................31
Ch. 7, § 7B1.4 ..................................15
App. C:
Amend. 505 (Nov. 1, 1994) .....................24
Amend. 515 (Nov. 1, 1995) .....................24
Amend. 640 (Nov. 1, 2002) .....................24
Miscellaneous:
124 Cong. Rec. (1978):
pp. 382-383 .....................................28
p. 383 .........................................29
130 Cong. Rec. (1984):
p. 29,685 .......................................27
p. 29,870 .......................................27
H.J. Res. 648, 97th Cong., 2d Sess. (1984) .............27
Memorandum from John Ashcroft, Attorney General,
to All Federal Prosecutors (Sept. 22, 2003)
Ilene H. Nagel,Structuring Sentencing Discretion:
The New Federal Sentencing Guidelines, 80 J.
Crim. L. & Criminology 883 (1990) ................24
XIII
Miscellaneous—Continued: Page
S. 1437, 95th Cong., 1st Sess. (1977) ...............28, 29
S. 1762, 97th Cong., 2d Sess. (1984) ..................27
S. Rep. No. 95-605 (1977) ........................29, 30
S. Rep. No. 98-225 (1983) .....................21, 25, 26
United States Sentencing Comm’n:
Fifteen Years of Guidelines Sentencing:
An Assessment of How Well the Federal
Criminal Justice System Is Achieving the
Goals of Sentencing Reform (2004) ..........31, 32
Measuring Recidivism: The Criminal History
Computation of the Federal Sentencing
Guidelines (2004) ............................20
Supplementary Report on the Initial Sentencing
Guidelines and Policy Statements (1987) .....19, 23
In the Supreme Court of the United States
No. 06-5754
VICTOR A. RITA, PETITIONER
v.
UNITED STATES OF AMERICA
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRIEF FOR THE UNITED STATES
OPINION BELOW
The opinion of the court of appeals (J.A. 112-113) is not
published in the Federal Reporter but is reprinted in 177 Fed.
Appx. 357.
JURISDICTION
The judgment of the court of appeals was entered on May
1, 2006. The petition for a writ of certiorari was filed on July
28, 2006, and was granted on November 3, 2006, limited to the
questions specified by the Court. The jurisdiction of this
Court rests on 28 U.S.C. 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The relevant constitutional and statutory provisions are
reprinted in an appendix to this brief. App., infra, 1a-30a.
(1)
2
STATEMENT
Following a jury trial in the United States District Court
for the Western District of North Carolina, petitioner was
convicted on two counts of making false declarations before a
grand jury, in violation of 18 U.S.C. 1623, two counts of making
false statements, in violation of 18 U.S.C. 1001, and one
count of obstruction of justice, in violation of 18 U.S.C. 1503.
He was sentenced to 33 months of imprisonment, to be followed
by three years of supervised release. The court of appeals
affirmed.
1. In 2003, the Bureau of Alcohol, Tobacco, Firearms and
Explosives (ATF) investigated whether InterOrdnance of
America (InterOrdnance), a licensed firearms dealer in Monroe,
North Carolina, had illegally imported machine-gun parts
kits. The ATF determined that federal law classified certain
items sold by InterOrdnance, including a parts kit that could
be used to assemble a PPSH-41 submachine gun, as machine
guns that could not be possessed legally without registration.
In April 2003, ATF agents began a nationwide recall of the
PPSH-41 parts kits, contacting customers who had purchased
the kits from InterOrdnance and asking the customers to turn
the kits over to the ATF. One of the customers reported that
he had discussed the recall with an InterOrdnance employee,
who had advised him not to turn the kit over to the ATF. J.A.
16-19, 21-22; Sealed J.A. 119; Supp. J.A. 1-2, 11, 13; see 26
U.S.C. 5841, 5845(a)(6) and (b), 5861.
Petitioner had purchased a PPSH-41 parts kit from
InterOrdnance in January 2003. At the time, petitioner was
an asylum officer with the Department of Homeland Security
(DHS). ATF Agent Bonnie Levin subsequently contacted
petitioner and informed him of the recall. During a telephone
conversation on September 4, 2003, petitioner agreed that he
3
would turn the kit over to the agent the following week.
Sealed J.A. 119-120, 128-129; Supp. J.A. 5-8.
After speaking with Agent Levin, petitioner placed a call
to InterOrdnance. Two days later, he mailed the PPSH-41
parts kit to the company. Petitioner did not attend the scheduled
meeting with Agent Levin. Through his attorney, petitioner
subsequently turned over to the ATF a different parts
kit that he had purchased from InterOrdnance, one that was
not the subject of a recall. J.A. 23-24; Sealed J.A. 120; Supp.
J.A. 2-5, 8-10, 13-14.
On October 27, 2003, petitioner testified before a federal
grand jury in the Western District of North Carolina that was
investigating InterOrdnance’s sales of the PPSH-41 parts
kits. Petitioner denied having had any telephone conversation
with InterOrdnance before he returned the kit to the company.
Petitioner also claimed that Agent Levin had not asked
him to turn over the PPSH-41 parts kit to the ATF. J.A. 19;
Sealed J.A. 120-121; Supp. J.A. 11-12.
2. Based on the two false statements before the grand
jury, petitioner was charged in an indictment with two counts
of perjury, two counts of making false statements, and one
count of obstruction of justice. A jury found him guilty of all
five charges. J.A. 7-13, 94, 103; Sealed J.A. 118.
3. After the verdict but before sentencing, see J.A. 2, this
Court decided United States v. Booker, 543 U.S. 220 (2005).
Booker held that the Sixth Amendment right to a jury trial is
violated when a defendant’s sentence is increased based on
judicial factfinding under mandatory federal Sentencing
Guidelines. Id. at 226-244. As a remedy for that constitutional
violation (id. at 244-268), the Court severed two provisions
of the Sentencing Reform Act of 1984 (SRA), 18 U.S.C.
3551 et seq. The first was 18 U.S.C. 3553(b)(1) (Supp. IV
2004), which had required courts to impose a Guidelines sentence.
“So modified, the [SRA] makes the Guidelines effec
4
tively advisory. It requires a sentencing court to consider
Guidelines ranges, but it permits the court to tailor the sentence
in light of other statutory concerns as well.” 543 U.S. at
245-246 (citations omitted). The Court also severed an
appellate-review provision, 18 U.S.C. 3742(e) (2000 & Supp.
IV 2004), which had served to reinforce the mandatory nature
of the Guidelines. The Court replaced that provision with a
general standard of review for “unreasonableness,” under
which courts of appeals determine “whether the sentence ‘is
unreasonable’ with regard to [18 U.S.C.] § 3553(a).” 543 U.S.
at 261.
Section 3553(a) requires courts to “impose a sentence sufficient,
but not greater than necessary, to comply with the
purposes set forth in paragraph (2) of this subsection.” 18
U.S.C. 3553(a) (2000 & Supp. IV 2004). The purposes set
forth in paragraph (2) are that the sentence imposed
(A) “reflect the seriousness of the offense,” “promote
respect for the law,” and “provide just punishment for the
offense”;
(B) “afford adequate deterrence to criminal conduct”;
(C) “protect the public from further crimes of the defendant”;
and
(D) “provide the defendant with needed educational or
vocational training, medical care, or other correctional
treatment in the most effective manner.”
18 U.S.C. 3553(a)(2). Section 3553(a) also provides that, “in
determining the particular sentence to be imposed,” courts
“shall consider” seven factors:
(1) “the nature and circumstances of the offense and the
history and characteristics of the defendant”;
5
(2) “the need for the sentence imposed” to satisfy the purposes
set forth in paragraph (2);
(3) “the kinds of sentences available”;
(4) “the kinds of sentence and the sentencing range established
for * * * the applicable category of offense committed
by the applicable category of defendant as set forth
in the guidelines * * * issued by the Sentencing Commission”;
(5) “any pertinent policy statement * * * issued by the
Sentencing Commission”;
(6) “the need to avoid unwarranted sentence disparities
among defendants with similar records who have been
found guilty of similar conduct”; and
(7) “the need to provide restitution to any victims of the
offense.”
18 U.S.C. 3553(a) (2000 & Supp. IV 2004).
4. a. Because petitioner’s crimes involved obstructing the
investigation of a criminal offense and perjury in respect to a
criminal offense, the Presentence Investigation Report (PSR)
calculated petitioner’s Sentencing Guidelines offense level
using the cross-references in the guidelines for obstruction of
justice and perjury, Sections 2J1.2(c) and 2J1.3(c). The cross-
references required application of the guideline for accessories
after the fact, Section 2X3.1(a)(1), which provides for a
base offense level six levels lower than the offense level for
the underlying offense. The underlying offense in this case
was InterOrdnance’s importation of defense articles without
authorization, in violation of 22 U.S.C. 2778(b)(2). Under the
guideline applicable to that offense, Section 2M5.2(a)(1), the
base offense level is 26. The PSR therefore determined that
6
petitioner’s base offense level was 20. Because there were no
applicable upward or downward adjustments, petitioner’s
total offense level was also determined to be 20. Sealed J.A.
122-125.
In calculating petitioner’s criminal history, the PSR noted
that he had been convicted in 1986 of making false statements
in connection with the purchase of firearms, in violation of 18
U.S.C. 922(a)(6), and had received a probationary sentence.
The conduct that resulted in that conviction involved petitioner’s
providing false addresses on 19 ATF-4473 forms when
he purchased 27 firearms of various types. At the time, petitioner
was a criminal investigator with the Immigration
and Naturalization Service (INS); the INS suspended him
because of the conviction. The PSR determined that the 1986
conviction resulted in no criminal history points, apparently
because, under Section 4A1.2(e) of the Guidelines, the conviction
was too old. Since petitioner had no other prior convictions,
the PSR determined that he was in criminal history
category I. Sealed J.A. 125, 129.
The combination of offense level 20 and criminal history
category I yielded an advisory Guidelines range of 33 to 41
months of imprisonment. Sealed J.A. 132.
Petitioner did not challenge the PSR’s calculation of the
Guidelines range. He did move for a downward departure,
however, on three asserted grounds: (1) his prior military
service (petitioner had been a member of the Marine Corps,
Army, and Army Reserve, had served in the Vietnam War and
Operation Desert Storm, and had received a number of medals
and awards); (2) his medical condition (petitioner had several
health problems, including diabetes, an enlarged prostate,
a herniated disk, excess lipids in his blood, arthritis,
sleep apnea, and skin rashes and infections he claimed were
the result of exposure to Agent Orange); and (3) the possibility
that his prior involvement in criminal cases as an employee
7
of the INS and DHS would make him susceptible to abuse in
prison. J.A. 40-47, 49-73; Sealed J.A. 127-129.
b. At sentencing, the district court held a lengthy colloquy
with petitioner’s counsel about his arguments for a below-
Guidelines sentence and the evidence he submitted. J.A. 5173.
The court also confirmed that petitioner sought “a departure
from the guidelines or a sentence under [18 U.S.C.] 3553
that is lower than the guidelines” based on the three grounds
described above. J.A. 64-65. The court suggested, however,
that petitioner’s military service would not entitle him to
“special treatment” unless it was “extraordinary,” J.A. 65;
noted that “the federal prison system is equipped to handle
people with diabetes and many other difficult situations,” J.A.
71; and questioned the assistance petitioner had provided in
criminal investigations, J.A. 57-58.
The prosecutor urged the district court to impose a sentence
within the Guidelines range. J.A. 74-77. He argued that
a Guidelines sentence was warranted because petitioner had
obstructed an important investigation into the unlawful importation
of machine guns, J.A. 74-75; because petitioner had
previously been convicted of “lying on firearm permit applications,”
J.A. 76; because petitioner’s “history as a law enforcement
officer” makes him particularly undeserving of a lenient
sentence, J.A. 77; and because petitioner’s conviction in this
case might compromise criminal cases in which petitioner had
been involved when he worked for the government, J.A. 76-77.
Petitioner gave a lengthy allocution. J.A. 78-86. He
stated, repeatedly, that he had not provided false testimony
to the grand jury, J.A. 80, 83, 85; that he was “innocent” of the
crimes of which the jury had found him guilty, J.A. 81, 83, 84;
and that Agent Levin had perjured herself at his trial, J.A. 79,
85. Petitioner also claimed that the prosecutor had “purposely
misled” the grand jury and trial jury, J.A. 85, and that
8
petitioner was the “victim” of “a modern day version of the
Inquisition,” J.A. 80.
c. In announcing its sentence, the district court stated
that it had “reviewed the sentencing guidelines with respect
to the charges here,” which it found to be “serious matters.”
J.A. 86. The court then stated that it was “unable to find that
the sentencing guideline range * * * is an inappropriate
guideline range” for the charges. J.A. 87. The court also
stated that, “under [18 U.S.C.] 3553, certainly the public
needs to be protected if [the charges are] true, and I must
accept as true the jury verdict that [petitioner] violated the
laws that he is accused of violating, all five of them.” Ibid.
The court imposed a sentence of 33 months of imprisonment,
the bottom of the advisory Guidelines range. J.A. 87, 103-111.
5. Petitioner appealed. The “sole issue on appeal” was
“whether the sentence imposed by the district court was reasonable.”
J.A. 112. The court of appeals held that it was and
therefore affirmed. J.A. 112-113.
The court of appeals explained that, after Booker, district
courts are “no longer bound by the range prescribed by the
sentencing guidelines” but are “still required to calculate and
consider the guideline range,” together with “the [other] factors
set forth in 18 U.S.C. § 3553(a).” J.A. 112-113. Quoting
one of its prior decisions, the court then stated that “a sentence
imposed within the properly calculated Guidelines range
. . . is presumptively reasonable.” J.A. 113 (quoting United
States v. Green, 436 F.3d 449, 457 (4th Cir.), cert. denied, 126
S. Ct. 2309 (2006)) (internal quotation marks omitted). The
court concluded that the district court in this case had “properly
calculated the guideline range,” “appropriately treated
the guidelines as advisory,” and “sentenced [petitioner] only
after considering the factors set forth in § 3553(a).” Ibid. On
the basis of “these factors,” and because the district court had
“sentenced [petitioner] within the applicable guideline range
9
and the statutory maximum,” the court of appeals found that
“[the] sentence of thirty-three months’ imprisonment is reasonable.”
Ibid.
SUMMARY OF ARGUMENT
I. A sentence within a properly calculated Guidelines
range is entitled to a presumption of reasonableness on appeal.
That conclusion is fully consistent with United States v.
Booker, 543 U.S. 220 (2005). In concluding that district court
consideration of advisory Guidelines, with appellate review for
unreasonableness, would promote uniformity in sentencing
(the principal objective of the SRA), Booker’s remedial holding
emphasized the critical role that the Guidelines would
continue to play in moving sentencing in the direction of
greater uniformity. See 543 U.S. at 263-264. According a
presumption of reasonableness to a sentence within the advisory
Guidelines range also reflects a recognition that a within-
Guidelines sentence will ordinarily represent a reasonable
application of the factors in 18 U.S.C. 3553(a) (2000 & Supp.
IV 2004). That is so for several reasons. The Guidelines are
written and revised by an expert agency, with an intent to
integrate the Section 3553(a) factors and with input from Congress
and sentencing judges across the country. Moreover, a
presumption of reasonableness for Guidelines sentences is the
only practicable way to avoid unwarranted sentencing disparities,
which is itself an enumerated concern under Section
3553(a). In addition, the imposition of a Guidelines sentence
means that two actors occupying different positions in the
system—the sentencing judge and the Sentencing Commission—
have jointly determined that a Guidelines sentence is
appropriate in that case. Presuming that a sentence within
the Guidelines range is reasonable does not make the Guidelines
effectively mandatory, in violation of Booker’s Sixth
Amendment holding. The presumption does not mean that a
10
sentence outside the Guidelines range is presumptively unreasonable,
let alone mandate additional factfinding by the
judge to justify a non-Guidelines sentence.
II. The SRA requires a judge to state the reasons for the
sentence imposed. 18 U.S.C. 3553(c) (2000 & Supp. IV 2004).
When a district court imposes a sentence within the Guidelines
range, and satisfies the requirement of Section 3553(c)
by providing the general reasons for the sentence imposed,
the court is not required to analyze explicitly the Section
3553(a) factors or all of the possible justifications for a lesser
sentence. Because the imposition of a within-Guidelines sentence
reflects agreement with the Sentencing Commission’s
assessment of the Section 3553(a) factors as applied to the
case before the court, Section 3553(c) requires “little explanation”
for a within-Guidelines sentence. E.g., United States v.
Sam, 467 F.3d 857, 864 (5th Cir. 2006). Courts are not required
to furnish “specific verbal formulations” to demonstrate
that the district court considered the Section 3553(a)
factors. United States v. Fleming, 397 F.3d 95, 100 (2d Cir.
2005). Nor is a court required to address every argument
raised by a party for a sentence above or below the Guidelines
range. Sentencing records generally confirm the presumption
that the court has exercised its discretion after considering
the arguments of the parties and the court’s statutory duties.
Rather than vacate such a sentence for a fuller explanation,
a court should proceed to review its substantive reasonableness.
III. Petitioner’s sentence, which was at the bottom of the
advisory Guidelines range, was reasonable. Because the district
court considered the factors in Section 3553(a) and provided
a statement of reasons as required by Section 3553(c),
the within-Guidelines sentence is entitled to a presumption of
reasonableness. Petitioner cannot rebut that presumption.
Petitioner relies on personal mitigating factors, but the judge
11
was entitled to weigh the significant aggravating factors as
well. As the district court found, petitioner’s crimes were
“serious,” J.A. 86; petitioner committed a similar crime in the
past, and committed both the past and the present crimes
while employed as a federal immigration official; and he expressed
no remorse at sentencing. Under these circumstances,
petitioner cannot show that a sentence at the bottom
of the Guidelines range is outside the range of reasonableness.
ARGUMENT
I.
A SENTENCE WITHIN A PROPERLY CALCULATED
GUIDELINES RANGE IS ENTITLED TO A REBUTTABLE
PRESUMPTION OF REASONABLENESS ON APPEAL
Since this Court’s decision in United States v. Booker, 543
U.S. 220 (2005), seven courts of appeals have held that a sentence
within a properly calculated Guidelines range is presumptively
reasonable on appellate review.1 That presumption
means that a within-Guidelines sentence is accorded substantial
deference by the court of appeals. See, e.g., United
States v. Rivera, 463 F.3d 598, 602 (7th Cir. 2006); United
States v. Candia, 454 F.3d 468, 473 (5th Cir. 2006). But it
does not mean that such a sentence is reasonable per se (i.e.,
the presumption is not a conclusive one). See, e.g., United
States v. Boscarino, 437 F.3d 634, 637 (7th Cir. 2006), petition
for cert. pending, No. 05-1379 (filed Apr. 27, 2006); United
See United States v. Dorcely, 454 F.3d 366, 376 (D.C. Cir.), cert. denied,
127 S. Ct. 691 (2006); United States v. Green, 436 F.3d 449, 457 (4th Cir.), cert.
denied, 126 S. Ct. 2309 (2006); United States v. Alonzo, 435 F.3d 551, 554 (5th
Cir. 2006); United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006), petition
for cert. pending, No. 06-5275 (filed July 11, 2006); United States v. Mykytiuk,
415 F.3d 606, 608 (7th Cir. 2005); United States v. Lincoln, 413 F.3d 716, 717
(8th Cir.), cert. denied, 126 S. Ct. 840 (2005); United States v. Kristl, 437 F.3d
1050, 1053-1054 (10th Cir. 2006).
12
States v. Richardson, 437 F.3d 550, 554 n.2 (6th Cir. 2006).
Even a within-Guidelines sentence must be vacated if the
party challenging it can show that, under the facts and circumstances
of the case, the sentence imposed was unreasonable
in light of the factors in 18 U.S.C. 3553(a) (2000 & Supp.
IV 2004).2
Application of a presumption of reasonableness accords
with Booker and with sound principles of appellate review.
A.
Booker Makes Clear That The Guidelines Will Continue
To Play A Critical Role In Sentencing
1. Booker held that the Sixth Amendment is violated
when a defendant’s sentence is increased based on judicial
factfinding under mandatory Guidelines. 543 U.S. at 226-244.
As a remedy for that violation, the Court excised 18 U.S.C.
3553(b)(1) (Supp. IV 2004), which made the Guidelines mandatory,
and 18 U.S.C. 3742(e) (2000 & Supp. IV 2004), an
appellate-review provision that reinforced the Guidelines’
mandatory nature. 543 U.S. at 244-268. As a consequence of
Booker’s remedial holding, the Guidelines are now advisory
and federal sentences are reviewable for unreasonableness.
Booker’s remedial holding rested on the conclusion that “Congress
would likely have preferred the excision of * * * the
Although four circuits have declined to adopt a presumption of reasonableness
for within-Guidelines sentences, those courts agree that a sentence within
a properly calculated advisory Guidelines range will seldom be unreasonable.
See United States v. Jiménez-Beltre, 440 F.3d 514, 518 (1st Cir. 2006) (en banc)
(Guidelines “continue * * * to be an important consideration * * * on
appeal”), cert. denied, No. 06-5727 (Jan. 8, 2007); United States v. Fernandez,
443 F.3d 19, 27 (2d Cir.) (Guidelines sentence will be reasonable “in the overwhelming
majority of cases”), cert. denied, 127 S. Ct. 192 (2006); United States
v. Cooper, 437 F.3d 324, 331 (3d Cir. 2006) (“a within-guidelines range sentence
is more likely to be reasonable than one that lies outside the advisory guidelines
range”); United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005) (Guidelines
sentence is “ordinarily” reasonable).
13
[SRA’s] mandatory language[]” to any other remedy, id. at
249, largely because that excision is most consistent with
“Congress’ basic goal in passing the [SRA],” which was “to
move the sentencing system in the direction of increased uniformity,”
id. at 253; accord id. at 250, 252, 255-256.
In concluding that an advisory Guidelines regime with
appellate review for unreasonableness was most likely to foster
uniformity in sentencing, the Court emphasized that the
Guidelines, although advisory, would continue to play an important
role. For example, responding to the argument that
the reasonableness standard would lead to “excessive sentencing
disparities,” Booker, 543 U.S. at 263 (quoting id. at 311
(Scalia, J., dissenting in part)), the Court observed that the
Sentencing Commission would “continue to collect and study
appellate court decisionmaking,” would “continue to modify
its Guidelines in light of what it learns, thereby encouraging
what it finds to be better sentencing practices,” and would
“thereby promote uniformity in the sentencing process.”
Ibid. Then, in explaining why “the [SRA] without its ‘mandatory’
provision and related language remains consistent with
Congress’ initial and basic sentencing intent,” id. at 264, the
Court said the following:
[T]he Sentencing Commission remains in place, writing
Guidelines, collecting information about actual district
court sentencing decisions, undertaking research, and
revising the Guidelines accordingly. The district courts,
while not bound to apply the Guidelines, must consult
those Guidelines and take them into account when sentencing.
The courts of appeals review sentencing decisions
for unreasonableness. These features of the remaining
system, while not the system Congress enacted, nonetheless
continue to move sentencing in Congress’ preferred
direction, helping to avoid excessive sentencing
14
disparities while maintaining flexibility sufficient to individualize
sentences where necessary.
Id . at 264-265 (citations omitted).
A presumption that a sentence within the advisory Guidelines
range is reasonable is obviously consistent with Booker’s
emphasis on the Guidelines’ continuing importance. Indeed,
given the Court’s recognition of the Guidelines’ critical role in
avoiding unwarranted sentencing disparities and its statement
that appellate review would “tend to iron out sentencing
differences,” 543 U.S. at 263, it is entirely in keeping with
Booker to presume that a sentence within the advisory Guidelines
range is reasonable on appellate review.
2. The Court stated in Booker that the reasonableness
standard of review applies “across the board.” 543 U.S. at
263. Petitioner and a number of his amici contend that it violates
that principle, and therefore conflicts with Booker, to
apply a presumption of reasonableness to sentences within
the Guidelines range but not to sentences outside it. Pet. Br.
6-7, 24-25; Families Against Mandatory Minimums (FAMM)
Br. 23-24; Fed. Publ. & Cmty. Defenders (FPCD) Br. 15.
That is not correct. When the Court said that the standard
applies “across the board,” Booker, 543 U.S. at 263, it meant
only that all sentences are to be reviewed for reasonableness
—not merely, as was the case when the Guidelines were mandatory,
sentences resulting from Guidelines “departures” and
sentences in cases “where there was no applicable Guideline,”
id. at 262 (citing 18 U.S.C. 3742(e)(3) and 18 U.S.C. 3742(a)(4),
(b)(4), and (e)(4)). That remains true whether or not appellate
courts apply a presumption of reasonableness to within-
Guidelines sentences. For all sentences, the standard of review
is the same: whether the sentence is reasonable in light
of the factors in Section 3553(a). See Booker, 543 U.S. at 260265.
The presumption merely recognizes that, when the Sentencing
Commission and the individual district court reach
15
essentially the same conclusion, the resulting within-Guidelines
sentence ordinarily satisfies that standard.
The Court also stated in Booker that it was “fair * * * to
assume judicial familiarity with a ‘reasonableness’ standard,”
because the SRA had long required the application of such
a standard in reviewing departures and sentences with no
guideline. 543 U.S. at 262-263. In support of that proposition,
the Court cited (id. at 262) six court of appeals decisions that
had applied a “reasonableness” standard in reviewing sentences
imposed for a violation of probation or supervised
release—sentences for which the Guidelines recommended
non-binding sentencing ranges in a policy statement, see Sentencing
Guidelines § 7B1.4. Petitioner suggests that a presumption
of reasonableness is inconsistent with Booker because
the decisions cited by the Court “d[id] not afford * * *
a presumption of reasonableness to sentences imposed within
the recommended [Guidelines] range.” Pet. Br. 26. But those
decisions had no occasion to consider whether a within-Guidelines
sentence should be presumed reasonable, because all the
sentences imposed in those cases were outside the Guidelines
range.3 Booker’s citation of those cases therefore lends no
See United States v. White Face, 383 F.3d 733 (8th Cir. 2004) (for one
defendant, Guidelines range was 3 to 9 months and sentence was 12 months; for
two defendants, Guidelines range was 3 to 9 months and sentence was 24
months; for one defendant, Guidelines range was 5 to 11 months and sentence
was 48 months; for one defendant, Guidelines range was 8 to 14 months and
sentence was 18 months); United States v. Tsosie, 376 F.3d 1210 (10th Cir.
2004) (Guidelines range was 3 to 9 months and sentence was 18 months), cert.
denied, 543 U.S. 1155 (2005); United States v. Salinas, 365 F.3d 582 (7th Cir.
2004) (Guidelines range was 3 to 9 months and sentence was 24 months);
United States v. Cook, 291 F.3d 1297 (11th Cir. 2002) (per curiam) (Guidelines
range was 5 to 11 months and sentence was 24 months); United States v.
Olabanji, 268 F.3d 636 (9th Cir. 2001) (Guidelines range was 3 to 9 months and
16
support to the notion that the Court implicitly rejected a presumption
of reasonableness for within-Guidelines sentences.
B.
A Presumption Of Reasonableness For Guidelines Sentences
Recognizes That A Sentence Within The Guidelines
Range Will Ordinarily Reflect A Reasonable Application
Of The Factors In 18 U.S.C. 3553(a)
According a presumption of reasonableness to within-
Guidelines sentences is also consistent with Booker because
it reflects a recognition that a sentence within the Guidelines
range will, in all but the most unusual cases, be within the
range of sentences that a district court, in the exercise of its
discretion, could reasonably determine best satisfies the considerations
in 18 U.S.C. 3553(a) (2000 & Supp. IV 2004). As
explained below, that is true for four related reasons: the
Guidelines integrate the factors in Section 3553(a); they reflect
the Sentencing Commission’s extensive consideration of
past practice and sound policy, including Congress’s directions
regarding appropriate sentences for certain crimes; they
are a critical tool for achieving Congress’s goal of sentencing
uniformity; and, finally, a Guidelines sentence reflects a joint
determination by the sentencing judge and the Sentencing
Commission that a sentence within the Guidelines range complies
with the factors in Section 3553(a).
1.
The Guidelines integrate the congressional sentencing
objectives in 18 U.S.C. 3553(a)
Booker holds that “reasonableness” review requires appellate
courts to determine “whether the sentence ‘is unreasonable’
with regard to [18 U.S.C.] § 3553(a).” 543 U.S. at 261.
It is appropriate to accord a presumption of reasonableness
sentence was 12 months and one day); United States v. Ramirez-Rivera, 241
F.3d 37 (1st Cir. 2001) (Guidelines range was 3 to 9 months and sentence was
24 months).
17
to a sentence within the advisory Guidelines range because,
rather than being “something separate and apart from Congress’s
objectives in § 3553(a),” the Guidelines “embody many
of those objectives.” United States v. Johnson, 445 F.3d 339,
343 (4th Cir. 2006) (Wilkinson, J.). Indeed, the Guidelines
“are the only integration of the multiple factors” in Section
3553(a). United States v. Jiménez-Beltre, 440 F.3d 514, 518
(1st Cir. 2006) (en banc) (Boudin, C.J.), cert. denied, No.
06-5727 (Jan. 8, 2007).
a. In the SRA, Congress provided detailed guidance to
the Sentencing Commission about how to formulate the
Guidelines. See Mistretta v. United States, 488 U.S. 361, 374377
(1989). Congress’s charge to the Commission is “a virtual
mirror image” of the factors sentencing courts are directed to
consider in Section 3553(a). United States v. Shelton, 400
F.3d 1325, 1332 n.9 (11th Cir. 2005).
Congress specifically directed the Commission to formulate
Guidelines that “assure the meeting of the purposes of
sentencing as set forth in section 3553(a)(2).” 28 U.S.C.
991(b)(1)(A); see 28 U.S.C. 994(f) and (m). Congress also required
that, in formulating the Guidelines, the Commission
consider the appropriate role and weight, in light of Congress’s
policy choices, of various factors relating to the nature
and circumstances of the offense and the history and characteristics
of the defendant. See Mistretta, 488 U.S. at 375-376;
compare 28 U.S.C. 994(c)-(d) (directing Commission to consider
“the circumstances under which the offense was committed”
and to determine whether various characteristics of the
offender “have any relevance to * * * an appropriate sentence”)
with 18 U.S.C. 3553(a)(1) (requiring sentencing courts
to consider “the nature and circumstances of the offense and
the history and characteristics of the defendant”). And Congress’s
command in 28 U.S.C. 991(b)(1)(B) that the Commission
establish sentencing practices and policies that “avoid[]
18
unwarranted sentencing disparities among defendants with
similar records who have been found guilty of similar criminal
conduct” is virtually identical to the requirement of 18 U.S.C.
3553(a)(6) that sentencing courts consider “the need to avoid
unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct.”
Congress has also played a direct role in formulating the
Guidelines. Guidelines issued by the Commission must be
submitted to Congress and do not take effect for a period of
180 days, during which time Congress may “modif[y] or disapprove[]”
the proposed guidelines. 28 U.S.C. 994(p). Even
after Guidelines have taken effect, Congress can “revoke or
amend” them “at any time.” Mistretta, 488 U.S. at 393-394.
Congress has in fact exercised that authority, and rejected
proposed guidelines. See Act of Oct. 30, 1995, Pub. L. No.
104-38, § 1, 109 Stat. 334 (28 U.S.C. 994 note). Congress has
also directed the Commission to review and, if appropriate,
amend Guidelines, see 28 U.S.C. 994 note (Provisions for Review,
Promulgation, or Amendment of Federal Sentencing
Guidelines), and has enacted Guidelines amendments itself,
see PROTECT Act, Pub. L. No. 108-21, § 401(b), (g) and (i),
117 Stat. 668, 671 and 672.
Congress’s role in actively influencing the Guidelines
strongly suggests that they are consistent with the sentencing
factors that Congress included in Section 3553(a). “It would
be startling to discover that while Congress had created an
expert agency, approved the agency’s members, directed the
agency to promulgate Guidelines, allowed those Guidelines to
go into effect, and adjusted those Guidelines over a period of
fifteen years, * * * the resulting Guidelines did not well
serve the underlying congressional purposes [behind sentencing].”
United States v. Cage, 451 F.3d 585, 593 (10th Cir.
19
2006) (quoting United States v. Wilson, 350 F. Supp. 2d 910,
915 (D. Utah 2005)).
b. Petitioner and several of his amici claim that, regardless
of whether the Commission was directed to incorporate
the Section 3553(a) factors in formulating the Guidelines, it
did not in fact do so. That claim lacks merit.
To begin with, the Commission has not “disavow[ed] any
adherence to the enumerated purposes of punishment” or
“acknowledg[ed] that [it] was unable to reconcile [the] purposes
of sentencing or apply them directly in crafting the
Guidelines,” as petitioner contends. Br. 13; accord Nat’l Ass’n
of Criminal Def. Lawyers (NACDL) Br. 14-15; N.Y. Council
of Def. Lawyers Br. (NYCDL) Br. 16. Consistent with Congress’s
directive, the Commission sought to “balance all the
objectives of sentencing” described in 18 U.S.C. 3553(a)(2)
in formulating the Guidelines. United States Sentencing
Comm’n, Supplementary Report on the Initial Sentencing
Guidelines and Policy Statements 16 (1987) (Supplementary
Report on the Guidelines). The Commission began by analyzing
current sentencing practices. Id . at 16-17; see 28 U.S.C.
994(m) (requiring Commission, “as a starting point,” to “ascertain
the average sentences imposed” in “particular categories
of cases”). It recognized that its empirical approach
would “help[] [to] resolve its philosophical dilemma” concerning
the purposes of sentencing by “looking to those distinctions
judges and legislators have in fact made over the course
of time.” Supplementary Report on the Guidelines 17. Those
“established distinctions,” the Commission explained, were
ones that the community had concluded were important in
achieving the purposes of criminal punishment. Ibid. The
Commission’s “pragmatic approach,” therefore, did not “imply
that philosophical issues were ignored.” Ibid. Rather, the
Commission attempted to formulate Guidelines that were
20
“consistent with the differing philosophies” of sentencing
represented in Section 3553(a). Ibid .4
Petitioner and his amici are also mistaken in their contention
that the Commission could not have taken the Section
3553(a) factors into account in formulating the Guidelines
because, whereas Section 3553(a)(1) requires sentencing
courts to consider “the history and characteristics of the defendant,”
the Guidelines, see, e.g., Sentencing Guidelines
§§ 5H1.1 to 5H1.6, 5H1.11 to 5H1.12, prohibit or discourage
departures based on certain characteristics of the defendant.
Pet. Br. 13-14, 27; FAMM Br. 20; NACDL Br. 15-16; Nat’l
Veterans Legal Servs. Program (NVLSP) Br. 4-13; NYCDL
Br. 17-18. Consideration of the history and characteristics of
the defendant entails a determination of what, if any, weight
should be given to a particular circumstance; it does not require
that positive weight be given to every circumstance.
The Guidelines reflect the Commission’s considered judgment
that the purposes of sentencing in Section 3553(a)(2) are best
achieved by giving little or no weight to offender characteristics
such as education and vocational skills, employment record,
family ties and responsibilities, and community ties. See
Sentencing Guidelines §§ 5H1.2, 5H1.5, 5H1.6. Congress itself
was of the view that it is “general[ly] inappropriate[]” to
consider those characteristics, 28 U.S.C. 994(e), because of
A good example of the Commission’s accommodation of the variety of
purposes of sentencing is its adoption of the criminal history axis for the
Sentencing Table. The Commission recognized that the SRA “sets forth four
purposes of sentencing,” and designed its criminal history categories to reflect
all of them. Sentencing Guidelines Ch. 4, Pt. A, intro. comment. Thus, rather
than focus on a defendant’s potential for recidivism alone, “[t]he Sentencing
Commission currently uses the criminal history measure as a tool to measure
offender culpability, to deter criminal conduct, and to protect the public from
further crimes of the defendant.” United States Sentencing Comm’n, Measuring
Recidivism: The Criminal History Computation of the Federal Sentencing
Guidelines 1 (2004).
21
the possible “inappropriate use of incarceration for those defendants
who lack education, employment, and stabilizing
ties,” S. Rep. No. 98-225, at 175 (1983). And Congress directed
the Commission to ensure that the Guidelines reflect
that legislative judgment. 28 U.S.C. 994(e).
Petitioner’s amici also err in contending that amendments
to the Guidelines “ha[ve] not been accompanied by empirical
data that tie the [amendments] to the purposes of sentencing.”
NACDL Br. 23; accord Miller Br. 16-18. As the Sentencing
Commission explains in its amicus brief, the use of
sentencing data is reflected in the explanations accompanying
many of the amendments to the Guidelines. United States
Sentencing Comm’n (USSC) Br. 11 n.8 (citing examples).
Finally, in light of Congress’s role in superintending the
Guidelines, see p. 18, supra, it seems difficult to maintain that
the Commission has systematically disregarded Congress’s
direction to consider the Section 3553(a) factors. To the contrary,
experience suggests that Congress knows how to intervene
when it finds a proposed guideline wanting and that Congress
does not intervene frequently. Together those factors
belie the suggestion that the Guidelines generally ignore Congress’s
mandate.
c. Treating a within-Guidelines sentence as presumptively
reasonable because the Guidelines incorporate the Section
3553(a) factors does not mean, as petitioner suggests,
that the Guidelines are a “substitute” for the other Section
3553(a) factors. Br. 10. As Booker makes clear, see 543 U.S.
at 259-261, sentencing courts are required to consider all the
factors in Section 3553(a), including, in light of the Guidelines’
now-advisory status, many factors “that were specifically prohibited
by the guidelines,” United States v. Long, 425 F.3d
482, 488 (7th Cir. 2005). Likewise, on appellate review, if the
appellant can demonstrate that the Section 3553(a) factors as
22
applied to the facts of the case are such that a within-Guidelines
sentence is unreasonable, the sentence will be vacated.
Petitioner is also mistaken in contending that, because the
Guidelines themselves are one of the factors that must be
considered, 18 U.S.C. 3553(a)(4)-(5) (2000 & Supp. IV 2004),
it would render the other considerations in Section 3553(a)
“superfluous” to say that the Guidelines incorporate them.
Pet. Br. 10; accord FAMM Br. 18-19. There is neither inherent
circularity nor incompleteness in the fact that Section
3553(a) refers to the Guidelines. That fact only underscores
the reasonableness of using the Guidelines as a reference
point. The Guidelines are generalities that reflect the relevant
Section 3553(a) factors and are designed to address typical
defendants. The sentencing judge must consider the particular
defendant’s circumstances in light of the statutory
factors. But it remains true that the Guidelines account for
the most important sentencing factors that judges have historically
considered, strive to implement the multiple purposes
of sentencing, and incorporate years of fine-tuning
based on significant research. As a consequence, the Guidelines
ranges ordinarily provide a reliable index of the application
of the Section 3553(a) factors.
2.
The Guidelines reflect the considered judgment of an
expert agency, Congress, and sentencing judges
across the country
The Guidelines do not merely incorporate the factors in
Section 3553(a); they are “the expert attempt of an experienced
body to weigh those factors in a variety of situations.”
United States v. Terrell, 445 F.3d 1261, 1265 (10th Cir. 2006).
As explained in detail in the Commission’s brief (at 6-13), the
Commission’s evaluation of the Section 3553(a) factors is
based on nearly two decades of “close attention to federal
sentencing policy,” Johnson, 445 F.3d at 342, and “careful
23
consideration of the proper sentence for federal offenses,”
United States v. Mykytiuk, 415 F.3d 606, 607 (7th Cir. 2005),
taking into account “the aggregate sentencing experiences of
individual judges” across the country and “the input of Congress”
on what sentences and factors promote the SRA’s objectives,
United States v. Buchanan, 449 F.3d 731, 736 (6th
Cir. 2006) (Sutton, J., concurring), petition for cert. pending,
No. 06-6155 (filed Aug. 24, 2006). In formulating the Guidelines,
the Commission “analyzed and considered detailed data
drawn from more than 10,000 presentence investigations,” as
well as “less detailed data on nearly 100,000 federal convictions
during a two-year period.” Supplementary Report on
the Guidelines 16. As this Court noted in Booker, moreover,
the Commission has continued to “collect[] information about
actual district court sentencing decisions,” to “collect and
study appellate court decisionmaking,” to “undertak[e] research,”
and to “revis[e]” and “modify” the Guidelines “in
light of what it learns.” 543 U.S. at 263-264. Indeed, “Congress
necessarily contemplated that the Commission would
periodically review the work of the courts” and make “revisions
to the Guidelines.” Braxton v. United States, 500 U.S.
344, 348 (1991). “It would be an oddity, to say the least, if a
sentence imposed pursuant to this congressionally sanctioned
and periodically superintended process w[ere] not presumptively
reasonable,” Johnson, 445 F.3d at 342—i.e., if it were
not a “generally * * * accurate application of the factors
listed in § 3553(a),” Terrell, 445 F.3d at 1265.
Petitioner contends that the Guidelines “have developed
largely in response to political concerns,” not empirical ones,
and that Guidelines ranges have therefore moved in only one
direction: upward. Pet. Br. 41. It is not obvious that this
observation—were it accurate—would demonstrate a deviation
from the Section 3553(a) factors or Congress’s underlying
intent. In any event, petitioner’s contention ignores the fact
24
that a number of Guidelines amendments, including several
with broad application, have had the effect of lowering Guidelines
ranges. See Sentencing Guidelines § 1B1.10(c) (listing
24 amendments resulting in lower Guidelines ranges that may
apply retroactively to defendants already serving sentences).
The drug-trafficking guideline, for example, has been
amended by the Commission to reduce the upper limit of the
Drug Quantity Table from offense level 42 to offense level 38,
id. App. C, amend. 505 (Nov. 1, 1994); see id. § 2D1.1(c)(1); to
authorize a two-level reduction in the offense level for defendants
who satisfy the “safety valve” criteria, id. App. C,
amend. 515 (Nov. 1, 1995); see id. § 2D1.1(b)(9); and to reduce
the base offense level for defendants who receive a
mitigating-role adjustment, id. App. C, amend. 640 (Nov. 1,
2002); see id. § 2D1.1(a)(3). Any suggestion that it would be
inappropriate to presume that Guidelines sentences are reasonable
because the Guidelines are too harsh is also undermined
by the fact that, in all of the cases cited in Booker as
exemplifying the type of reasonableness review the Court had
in mind, 543 U.S. at 262, the courts of appeals approved the
decision to impose a sentence above the advisory Guidelines
range, ibid.; see note 3, supra.
3.
A presumption of reasonableness helps to prevent
unwarranted sentencing disparities
a. Before the passage of the SRA, Congress had “delegated
almost unfettered discretion to the sentencing judge”
to sentence a defendant to any term of imprisonment that fell
within a “customarily wide” statutory range. Mistretta, 488
U.S. at 364. Under that system,”[s]erious disparities in sentences
* * * were common,” id. at 365, including disparities
correlated with constitutionally suspect characteristics like
race and sex. See, e.g., Ilene H. Nagel, Structuring Sentencing
Discretion: The New Federal Sentencing Guidelines,
25
80 J. Crim. L. & Criminology 883, 883-887 & n.3, 895-897 &
nn.73-74, 77 & 82 (1990). Congressional concern about the
“shameful disparity in criminal sentences” was a principal
reason for the enactment of the SRA. S. Rep. No. 98-225, at
65. In Booker, this Court noted repeatedly that Congress’s
main objective in enacting the SRA was to diminish sentencing
disparities,5 and dissenting Justices made the same observation,
see 543 U.S. at 292 (Stevens, J., dissenting in part)
(“The elimination of sentencing disparity, which Congress
determined was chiefly the result of a discretionary sentencing
regime, was unquestionably Congress’ principal aim.”).
Indeed, that concern is reflected in the text of Section 3553(a)
itself. See 18 U.S.C. 3553(a)(6). A presumption that a sentence
within the advisory Guidelines range is reasonable on
appeal fosters uniformity, thereby “mov[ing] sentencing in
Congress’ preferred direction,” Booker, 543 U.S. at 264, without
restricting district courts’ discretion to impose sentences
outside the Guidelines range.
The Guidelines are the only numerical benchmarks in selecting
an appropriate sentence; the remaining Section
3553(a) factors have no quantitative values and permit a district
court to consider a wide array of facts. “[C]onstruct[ing]
a reasonable sentence starting from scratch in every case”
would therefore “defeat any chance at rough equality,” which
“remains a congressional objective.” Jiménez-Beltre, 440
See, e.g., 543 U.S. at 250 (“Congress’ basic statutory goal” was “a system
that diminishes sentencing disparity.”); id. at 252 (“[T]he sentencing statute’s
basic aim” was “ensuring similar sentences for those who have committed
similar crimes in similar ways.”); id. at 253 (“Congress’ basic goal in passing
the [SRA] was to move the sentencing system in the direction of increased
uniformity.”); id. at 255 (“Congress enacted the sentencing statutes in major
part to achieve greater uniformity in sentencing.”); id. at 256 (“Congress’ basic
statutory goal” was “uniformity in sentencing.”); id. at 267 (“Congress’ basic
objective” was “promoting uniformity in sentencing.”).
26
F.3d at 519. The only practicable way for sentencing courts
to fulfill Congress’s goal of increasing sentencing uniformity
is to anchor their analysis to the Guidelines, which are “an
indispensable tool in helping courts achieve [that] mandate.”
United States v. Hunt, 459 F.3d 1180, 1184 (11th Cir. 2006);
see Booker, 543 U.S. at 263 (Sentencing Commission “promote[
s] uniformity in the sentencing process”). And when a
district court exercises its discretion to impose a sentence
within the advisory Guidelines range, an appellate presumption
that the sentence is reasonable appropriately recognizes
that sentences within the Guidelines range are more likely to
further Congress’s goal of avoiding unwarranted disparities
than are sentences outside the range.
b. Petitioner acknowledges that “Congress sought to reduce
sentencing disparity overall with passage of the [SRA]”
(Br. 36 n.23) but contends that the goal of uniformity should
be subordinated to other sentencing objectives. That contention
lacks merit.
Petitioner argues that Congress placed primary emphasis
on the purposes of sentencing in 18 U.S.C. 3553(a)(2), which
“d[o] not include uniformity as a purpose worthy of consideration
by the sentencing judge.” Br. 15. But Congress intended
its specification of the purposes of sentencing to help
reduce the disparities that existed under the previous system,
which had left “each judge * * * to apply his own notions of
the purposes of sentencing.” S. Rep. No. 98-225, at 38. Indeed,
considerations of undue disparity are inherent in at
least some of the sentencing purposes specified in Section
3553(a)(2), because a system that permits significant disparity
in sentences imposed on similarly situated offenders fails to
“promote respect for the law” or “provide just punishment.”
18 U.S.C. 3553(a)(2)(A); see S. Rep. No. 98-225, at 75-76. And
18 U.S.C. 3553(a)(6) explicitly requires that, in deciding what
sentence best meets “the purposes * * * in paragraph (2),”
27
courts consider “the need to avoid unwarranted sentence disparities
among defendants with similar records who have
been found guilty of similar conduct.” Avoiding unwarranted
disparities is thus complementary, not subordinate, to the
purposes of sentencing in Section 3553(a)(2).
Petitioner also argues (Br. 12-18) that federal sentencing
must be guided above all by the so-called “parsimony” provision
of Section 3553(a), which directs courts to impose a sentence
“sufficient, but not greater than necessary,” to comply
with the purposes in Section 3553(a)(2). As Chief Judge
Boudin has explained, however, that provision is not “an admonition
to be lenient.” United States v. Navedo-Concepción,
450 F.3d 54, 58 (1st Cir. 2006). It merely requires courts to
impose a sentence that is consistent with the broad purposes
in Section 3553(a)(2), most of which “hardly connote less punishment.”
Ibid.
The history of the provision confirms that point. The
“sufficient, but not greater than necessary” language was a
last-minute amendment to the Senate bill (S. 1762, 97th
Cong., 2d Sess. (1984)), which had been made part of a continuing
appropriations resolution in the House of Representatives
(H.J. Res. 648, 97th Cong., 2d Sess. (1984)). See 130
Cong. Rec. 29,870 (1984). Nothing suggests that the amendment
was intended to alter the bill in any fundamental way.
On the contrary, as Senator Hatch, a sponsor of the bill, observed,
“[t]he language * * * is simply of a clarifying nature.
It does not change in any way the policy already contained
in the Senate-passed bill.” Id. at 29,685. Instead, he
explained, the language merely reinforces the requirement
that sentences “be designed so that they fully meet the various
purposes of sentencing. Those purposes cannot be met by
sentences that are plainly ‘excessive’ or by sentences that are
plainly insufficient.” Ibid . Consistent with the legislative
history, courts of appeals since Booker have uniformly inter
28
preted the parsimony provision merely as a directive that the
sentence imposed be consistent with the general purposes of
sentencing.6
c. Petitioner also contends that placing substantial
weight on the Guidelines is not an appropriate means for sentencing
courts to avoid unwarranted disparities. That contention
is likewise without merit.
i. Petitioner argues that, before adding the language
that became 18 U.S.C. 3553(b)(1) (Supp. IV 2004) (and made
the Guidelines mandatory), Congress expected that the
Guidelines range would be “merely one of several considerations
relevant to sentencing.” Br. 16. He suggests that
Booker’s excision of that language therefore eliminated any
basis for giving the Guidelines greater weight than any other
factor in Section 3553(a). Br. 16-18. Contrary to petitioner’s
claim, and putting to one side the inherent difficulties in ascertaining
the evolution of Congress’s intent, the SRA’s history,
purpose, and structure demonstrate that Congress intended
that substantial weight be given to the Guidelines even
before it added the language that became Section 3553(b)(1).
That language first appeared in a floor amendment to
S. 1437, 95th Cong., 1st Sess. (1977) (entitled “Criminal Code
Reform Act of 1977”), a precursor to the SRA. See 124 Cong.
Rec. 382-383 (1978). The amendment, which was not controversial,
received very limited debate, and was passed by voice
vote. See ibid. It was clearly not intended as a radical change
in the role or weight of the Guidelines. It was intended
See United States v. Smith, No. 06-4358, 2006 WL 3823174, at *2 (4th Cir.
Dec. 29, 2006) (parsimony provision does not require conclusion that sentence
at bottom of Guidelines range is sufficient to satisfy purposes of Section
3553(a)); United States v. Dragon, 471 F.3d 501, 506 (3d Cir. 2006) (parsimony
provision does not require district court to state that sentence imposed is
minimum sentence necessary to satisfy purposes of Section 3553(a)); Navedo-
Concepción, 450 F.3d at 57-58 (same).
29
merely to make more explicit the existing understanding of
the bill, as both Senator Hart, the sponsor of the amendment,
and Senator Kennedy, the principal sponsor of the bill, made
clear. See, e.g., id. at 383 (statement of Sen. Hart) (“all this
amendment does is state the obvious effect of what the entire
purpose of the bill is”); ibid. (statement of Sen. Kennedy) (“it
makes clearer what was the basic understanding of the members
of the committee that support the legislation”).
That Congress always intended the Guidelines to be given
substantial weight in sentencing is confirmed by the Committee
Report on S. 1437. Explaining the version of the bill that
existed before the addition of what became Section 3553(b)(1),
the Report said the following:
[The bill] requires that, if the sentence is outside the
range set out in the sentencing guidelines, the court state
the specific reason that the sentence imposed is outside
the range. [This] requirement would essentially be a
statement of why the court felt that the guidelines did not
adequately take into account all the pertinent circumstances
of the case at hand. If the sentencing court felt
the case was an entirely typical one for the applicable
guideline category, it would have no adequate justification
for deviating from the recommended range. The need for
consistency in sentences for similar offenders committing
similar offenses should be sufficiently important to dissuade
a judge from deviating from a clearly applicable
guideline range simply because it would have promulgated
a different range.
S. Rep. No. 95-605, at 892-893 (1977). The Report also expressed
the Committee’s “expect[ation]” that “most sentences
will fall within the ranges recommended in the sentencing
guidelines.” Id. at 1056.
30
That Congress intended the Guidelines to be given substantial
weight even before the addition of what became Section
3553(b)(1) is confirmed by two additional facts. First,
one of the primary purposes of the legislation was to create a
Sentencing Commission and Sentencing Guidelines. It is unlikely
that Congress would have invested resources in establishing
the Commission and the Guidelines if the Guidelines
were to have no greater weight than the other factors in what
became Section 3553(a). Second, one of the key structural
aspects of the legislation was the establishment of limited
judicial review of sentences and a related requirement that
district courts explain the basis for sentencing defendants
outside the Guidelines range. Those provisions were present
in early bills, before the addition of what became Section
3553(b)(1), and operated to reinforce the role and weight of
the Guidelines under what became Section 3553(a)(4) and (5).
See, e.g., S. Rep. No. 95-605, at 883 (“The [bill] encourages
adherence to the guidelines by requiring that all sentences
outside the guidelines be accompanied by a statement of reasons
justifying the deviation and by requiring that all such
sentences be subject to appellate review.”).
ii. Petitioner and a number of his amici also claim that
the Guidelines as written have not succeeded in fostering uniformity
in sentencing. They argue that defendants who
should be treated similarly are often treated differently, principally
because of regional differences in the application of the
Guidelines, differences in charging and plea-bargaining practices,
differences in the Guidelines’ treatment of crack cocaine
and powder cocaine, and differences between the Guidelines’
treatment of defendants who are classified as “career offenders”
and defendants who are not. Pet. Br. 35-37; Law Professors
Who Study Sentencing Reform (LPWSSR) Br. 15-16;
NACDL Br. 18-21; NYCDL Br. 19-22. As explained at
greater length in the Sentencing Commission’s brief (at 26
31
30), petitioner’s general claim is refuted by “[r]igorous statistical
study both inside and outside the Commission,” which
“confirm[s] that the guidelines have succeeded at the job they
were principally designed to do: reduce unwarranted sentencing
disparity arising from differences among judges.”
United States Sentencing Comm’n, Fifteen Years of Guidelines
Sentencing: An Assessment of How Well the Federal
Criminal Justice System Is Achieving the Goals of Sentencing
Reform 140 (2004) (Fifteen Years of Guidelines Sentencing).
As explained below, petitioner’s more specific arguments
are likewise without merit.
Studies have shown that “legally relevant differences
among cases explain the vast majority of variation among
* * * regions in sentence length.” Fifteen Years of Guidelines
Sentencing 101. And although it is true that disparities
in sentencing may result from differences in charging and
plea-bargaining practices, the Guidelines, as Booker recognized,
“try to move the system in the right direction, i.e., toward
greater sentencing uniformity,” 543 U.S. at 256, by requiring
that sentences be based on “relevant conduct,” not
merely charged conduct, and by helping sentencing judges
decide whether to reject a plea agreement that does not reflect
all relevant conduct, Sentencing Guidelines § 1B1.3; id.
Ch. 6, Pt. B. The Department of Justice has also taken steps
to address disparities that may arise from charging and plea-
bargaining decisions. See Memorandum from John Ashcroft,
Attorney General, to All Federal Prosecutors (Sept. 22, 2003)
disposition of charges, and sentencing).
As for the drug-trafficking guideline’s crack-powder ratio
and the career-offender provision, Sentencing Guidelines
§§ 2D1.1(c) and 4B1.1, each reflects a congressional judgment
32
about appropriate sentencing policy. The former reflects a
“policy decision that crack offenders should be punished more
severely” and a “choice as to how much more severe the punishment
should be,” United States v. Williams, 456 F.3d 1353,
1367 (11th Cir. 2006), petition for cert. pending, No. 06-7352
(filed Oct. 19, 2006); see 21 U.S.C. 841(b) (2000 & Supp. III
2003); the latter reflects a “policy [decision] that repeat drug
offenders receive sentences ‘at or near’ the * * * statutory
maximum[],” Williams, 456 F.3d at 1370; see 28 U.S.C. 994
(2000 & Supp. III 2003). Sentencing disparities that arise
from congressional policy judgments are not “unwarranted.”
Finally, even if the Guidelines have not fully achieved the
sentencing uniformity that Congress intended, according
judges unfettered discretion in sentencing could hardly be
thought a means of reducing unwarranted disparities. On the
contrary, studies have shown that, under the mandatory
Guidelines system, “[w]hen disparity [wa]s found, it [wa]s
more prevalent in cases receiving a departure than in cases
sentenced within the guideline range.” Fifteen Years of
Guidelines Sentencing 118.
4.
A Guidelines sentence reflects a joint determination
by the sentencing judge and the Sentencing Commission
that the sentence complies with the factors in 18
U.S.C. 3553(a)
As Booker emphasized, although the Guidelines are now
advisory, district courts are still required to “consult th[e]
Guidelines and take them into account when sentencing.” 543
U.S. at 264; see 18 U.S.C. 3553(a)(4) and (5) (Supp. IV 2004).
To “consult” the Guidelines, a district court must first correctly
determine the advisory Guidelines range. See, e.g.,
United States v. Mix, 457 F.3d 906, 911 (9th Cir. 2006);
United States v. Jointer, 457 F.3d 682, 686 (7th Cir. 2006),
petition for cert. pending, No. 06-7600 (filed Oct. 27, 2006);
33
United States v. Dixon, 449 F.3d 194, 204 (1st Cir. 2006). The
court must then consider the other sentencing factors in Section
3553(a) and determine, based on the facts and circumstances
of the case, the appropriate sentence for the defendant.
See Booker, 543 U.S. at 245-246.
When a district court decides to impose a sentence within
the Guidelines range, the court has determined that such a
sentence complies with the factors in Section 3553(a). The
sentencing judge’s individualized agreement with the determination
of the Sentencing Commission is significant. It
means that two actors, occupying different positions in the
sentencing system and approaching the question at different
levels of generality, have jointly determined that a Guidelines
sentence is appropriate—both in general, as applied to the
“applicable category of offense committed by the applicable
category of defendant,” 18 U.S.C. 3553(a)(4)(A) (Supp. IV
2004), and in particular, as applied to the individual defendant
in that case. The presumption of reasonableness “respects
the alignment of the[se] views.” Buchanan, 449 F.3d at 736
(Sutton, J., concurring).
Petitioner contends that this rationale “begs the question
of whether the * * * within-Guidelines sentence was
reasonable in light of the other factors * * * in § 3553(a)”
and “produces only one result—affirmance.” Pet. Br. 28. But
the fact that the sentencing judge and the Sentencing Commission
have each determined that the Section 3553(a) factors
warrant a sentence within the Guidelines range does not mean
that the sentence imposed is per se reasonable and must be
affirmed. It means only that the sentence should be presumed
to be reasonable on appeal; the sentence will still be
subject to vacatur if the party challenging it can demonstrate
that it is substantively unreasonable in light of the Section
3553(a) factors as applied to the particular record.
34
C.
According A Presumption Of Reasonableness To Within-
Guidelines Sentences Does Not Make The Guidelines
Effectively Mandatory
1. Booker’s holding that the Sentencing Guidelines violate
the Sixth Amendment “rest[ed] on the premise” that the
Guidelines were “mandatory and impose[d] binding requirements
on all sentencing judges.” 543 U.S. at 233; accord id.
at 259. Applying a presumption of reasonableness to within-
Guidelines sentences does not reinstitute a mandatory Guidelines
regime, in contravention of Booker’s Sixth Amendment
holding. If a sentence within the Guidelines range is treated
as presumptively reasonable, “it does not follow that a sentence
outside the guidelines range [will be] unreasonable.”
United States v. Myers, 439 F.3d 415, 417 (8th Cir. 2006). It
does not even follow that such a sentence will be presumed
unreasonable. On the contrary, “there is no presumption of
unreasonableness that attaches to a sentence that varies from
the [Guidelines] range.” United States v. Jordan, 435 F.3d
693, 698 (7th Cir.) (emphasis omitted), cert. denied, 126 S. Ct.
2050 (2006); accord, e.g., United States v. Valtierra-Rojas, 468
F.3d 1235, 1238-1239 (10th Cir. 2006); United States v. Foreman,
436 F.3d 638, 644 (6th Cir. 2006). Even if that presumption
could be thought to “transform an ‘effectively advisory’
system * * * into an effectively mandatory one,” United
States v. Moreland, 437 F.3d 424, 433 (4th Cir.) (quoting
Booker, 543 U.S. at 245), cert. denied, 126 S. Ct. 2054 (2006),
a presumption that a within-Guidelines sentence is reasonable
is fundamentally different, and has no such effect.
2. One of petitioner’s amici essentially acknowledges that
a presumption of reasonableness for within-Guidelines sentences
does not make the Guidelines mandatory. See NACDL
Br. 7 n.3 (“It may well be that in theory a ‘presumption of reasonableness’
for Guidelines sentences * * * does not raise
35
* * * Sixth Amendment concerns if it does not * * *
equate with a ‘presumption of unreasonableness’ for non-
Guidelines sentences.”). But petitioner himself contends otherwise,
Br. 6-7, 28-35, as do a number of his other amici,
FPCD Br. 28; LPWSSR Br. 13; Miller Br. 10; NYCDL Br. 79,
13-15. Their arguments lack merit.
a. Petitioner argues that presuming a within-Guidelines
sentence to be reasonable “places an additional burden on the
district court to justify [a] non-Guidelines sentence[],” by
requiring “an additional explanation” why the factors considered
by the court are “sufficient” to warrant a non-Guidelines
sentence. Br. 33. Echoing that view, one of petitioner’s amici
argues that a presumption of reasonableness means that district
courts must follow the Guidelines unless “the defendant
can prove that a guidelines sentence is inappropriate.”
NYCDL Br. 13. Another group of amici goes even further,
suggesting that a presumption of reasonableness means that
district courts cannot impose a non-Guidelines sentence unless
there is a ground for a departure. Miller Br. 10.
Those assertions are simply wrong. As Chief Judge
Easterbrook has explained, “[t]o say that a sentence within
the [Guidelines] range presumptively is reasonable is not to
say that district judges ought to impose sentences within the
range.” United States v. Gama-Gonzales, 469 F.3d 1109, 1110
(7th Cir. 2006) (emphasis omitted). “It is only to say that, if
the district judge does use the Guidelines, then the sentence
is unlikely to be problematic.” Ibid.7
Petitioner also argues that the presumption of reasonableness “unduly
burdens” a party appealing a within-Guidelines sentence with “the nearly
impossible task of proving a negative.” Br. 33-34. But whether a Guidelines
sentence is presumed reasonable or not, Booker’s standard of review necessarily
requires an appellant to “prove a negative”—i.e., that the sentence
imposed was not reasonable.
36
b. Noting that appellate courts almost always affirm
within-Guidelines sentences when the defendant appeals and
often vacate below-Guidelines sentences when the government
appeals (Br. 30-32), petitioner argues that those decisions
impose “a de facto restraint on [district] courts” (Br. 7)
by deterring them from sentencing outside the Guidelines
range. It would be astonishing to assume, however, that sentencing
courts will routinely abandon their obligation under
Booker to treat the Guidelines as advisory and consider all the
Section 3553(a) factors, and instead “return to the pre-Booker
mandatory Guidelines,” ibid., simply to minimize the rigor of
appellate review. This Court has previously rejected “any
presumption that a decision of this Court will ‘deter’ lower
federal * * * courts from fully performing their sworn
duty,” Brecht v. Abrahamson, 507 U.S. 619, 636 (1993), and it
should likewise reject any presumption that decisions of
courts of appeals will lead district judges to “ignor[e] their
oath,” ibid., in order to increase their chances of being affirmed.
c. Petitioner nevertheless insists that a district judge
who was “once, or twice, reversed for sentencing outside the
Guidelines” would “reasonably conclude” that the law “all but
require[d] him or her to impose a sentence within the Guidelines”
range. Br. 30. That argument ignores the reality that
—whatever the standard of review—the government does not
reflexively appeal whenever there is a below-Guidelines sentence.
Between February 1, 2005 (the beginning of the first
month after Booker was decided) and September 30, 2006 (the
latest date for which preliminary data have been released),
district courts imposed more than 14,000 below-Guidelines
sentences that were not the result of a government-sponsored
departure. App., infra, 31a. Yet the government appealed
fewer than 300 of those sentences on the ground of unreasonableness,
or approximately 2%. See also FPCD Br. App. A11
37
A17 (identifying 83 decisions on government appeals of below-
Guidelines sentences between December 1, 2005, and November
30, 2006); NYCDL Br. App. 5a-6a (identifying 71 decisions
on government appeals of below-Guidelines sentences between
January 1, 2006, and November 16, 2006). Even if one
indulges the assumption that district judges focus on the likelihood
of an appeal being filed and the relative rigor of appellate
review, a judge would conclude that a below-Guidelines
sentence would not precipitate an appeal, let alone reversal.
Moreover, in the relatively few cases in which the government
has appealed a below-Guidelines sentence, if the sentence
is vacated, the court of appeals has not held that the
district judge acted unreasonably in failing to impose a Guidelines
sentence. In the vast majority of such cases, the basis
for the decision is either that the sentence was too far below
the Guidelines range or that the district court’s explanation
for the below-Guidelines sentence was inadequate. See, e.g.,
Cage, 451 F.3d at 596 (although facts of case might “justify
some discrepancy from the advisory guidelines range,” they
were “not dramatic enough to warrant such an extreme downward
variance”); Myers, 439 F.3d at 419 (remanding for “imposition
of sentence following more explicit and thorough consideration”
of the Section 3553(a) factors, “without expressing
any opinion on the reasonableness of the sentence that should
be imposed”).
d. Even if it were true, as petitioner contends, that the
“consistent affirmance of within-Guidelines sentences” (Br.
30) encouraged district courts to sentence within the Guidelines
range, that phenomenon could not be the result of the
application of a presumption of reasonableness. As petitioner
acknowledges, all the courts of appeals, whether they apply
such a presumption or not, have affirmed almost all within-
Guidelines sentences as reasonable. Br. 30-31; see note 2,
supra. Indeed, petitioner and his amici identify only one
38
court of appeals decision that vacated a within-Guidelines
sentence on the ground that it was “substantively unreasonable,”
Br. 31; see NYCDL Br. 5; NYCDL Br. App. 3a, 156a,
and that decision was issued by a court—the Eighth Circuit—
that applies the presumption. See United States v.
Lazenby, 439 F.3d 928, 933-934 (2006). Rather than being a
product of the presumption of reasonableness, the courts of
appeals’ “consistent affirmance of within-Guidelines sentences”
(Pet. Br. 30) reflects the sensible conclusion that a
sentence within the Guidelines range will virtually always fall
within the range of reasonableness.
Petitioner notes that district courts in circuits that apply
a presumption of reasonableness “impose below-Guidelines
sentences in one-third fewer cases than [district] courts in
other circuits.” Pet. Br. 32; see FPCD Br. 12-13; FPCD Br.
App. A1. But that disparity cannot be attributed to the presumption
either, because it existed long before Booker. Indeed,
the disparity has actually decreased since Booker. During
the four fiscal years preceding this Court’s decision in
Blakely v. Washington, 542 U.S. 296 (2004), district courts in
the five circuits that have not adopted a presumption of reasonableness
imposed below-Guidelines sentences in 10.7% of
cases, compared with 6.9% of cases in circuits that have.
App., infra, 31a. Since Booker, district courts in non-presumption
circuits have imposed below-Guidelines sentences
in 14.5% of cases, compared with 10.8% of cases in presumption
circuits. Ibid. Thus, while district courts in non-presumption
circuits have imposed below-Guidelines sentences
at a rate about one third higher than the rate in presumption
circuits since Booker, district courts in non-presumption circuits
imposed below-Guidelines sentences at a rate about one
half higher than the rate in presumption circuits before
Booker. The higher rate of below-Guidelines sentences in the
non-presumption circuits is traceable, not to their decision not
39
to adopt a presumption of reasonableness for within-Guidelines
sentences, but to the consistently high rate of below-
Guidelines sentencing in the Second and Ninth Circuits, which
together account for well over half the sentences in non-presumption
jurisdictions. See ibid.
Nor do the data suggest that, in circuits that apply a presumption
of reasonableness, more below-Guidelines sentences
were imposed before the adoption of the presumption than
after. On the contrary, data collected by the Sentencing Commission
indicate that the rate of below-Guidelines sentencing
has remained remarkably stable since Booker, both in circuits
that have adopted a presumption of reasonableness and in
those that have not. See USSC Br. App. 2a-13a.
II.
WHEN A DISTRICT COURT IMPOSES A SENTENCE
WITHIN THE GUIDELINES RANGE AND COMPLIES
WITH THE REQUIREMENT OF 18 U.S.C. 3553(c) TO
STATE THE REASON FOR THE SENTENCE, THE
COURT NEED NOT EXPLICITLY ANALYZE ALL OF
THE SECTION 3553(a) FACTORS AND OTHER FACTORS
THAT MIGHT JUSTIFY A LESSER SENTENCE
A.
The SRA Requires Only A General Explanation For A
Sentence Within The Guidelines Range
1. Section 3553(c) of Title 18 directs district courts to
state, at the time of sentencing, the reasons for the sentence
imposed. Although Section 3553(c) requires a statement of
“the reasons for [the] imposition of the particular sentence”
in all cases, 18 U.S.C. 3553(c) (2000 & Supp. IV 2004), it requires
a statement of “the specific reason for the imposition
of [the] sentence” only when the sentence is outside the
Guidelines range, 18 U.S.C. 3553(c)(2) (Supp. IV 2004) (emphasis
added). The statute thus makes clear that a general
statement of reasons is sufficient for within-Guidelines sentences.
Booker did not excise or otherwise alter Section
40
3553(c). See, e.g., United States v. Miqbel, 444 F.3d 1173,
1177 n.6 (9th Cir. 2006); United States v. Lewis, 424 F.3d 239,
244 (2d Cir. 2005); United States v. Hughes, 401 F.3d 540, 546
n.5 (4th Cir. 2005); see also Booker, 543 U.S. at 305 (Scalia, J.,
dissenting in part).8
When a district court imposes a sentence within the
Guidelines range, no detailed statement is necessary to comply
with Section 3553(c)’s directive that the court provide
general reasons for the sentence. The Guidelines generally
reflect an accurate application of the Section 3553(a) factors,
see Point I.B, supra, and a district court’s imposition of a
within-Guidelines sentence indicates that the court agreed
with the Sentencing Commission’s assessment of the statutory
factors as applied to the facts of the case. For that reason,
a Guidelines sentence requires “little explanation.” E.g.,
United States v. Sam, 467 F.3d 857, 864 (5th Cir. 2006);
United States v. Tyra, 454 F.3d 686, 688 (7th Cir. 2006).
2. Nor does the obligation imposed by Section 3553(a) to
“consider” the factors listed there create any independent
obligation to address those factors explicitly or provide a
more specific statement of reasons for a within-Guidelines
sentence. Although a district court may choose to discuss
particular factors, “no specific verbal formulations” are necessary
to “demonstrate the adequate discharge of the duty to
‘consider’ matters relevant to sentencing.” United States v.
Fleming, 397 F.3d 95, 100 (2d Cir. 2005) (Newman, J.).9 That
8 Section 3553(c) also requires that, when the Guidelines range exceeds 24
months, the district court give “the reason for imposing a sentence at a
particular point within the range.” 18 U.S.C. 3553(c)(1). Because petitioner’s
Guidelines range was 33 to 41 months, that provision does not apply here.
9 See, e.g., United States v. Lopez-Flores, 444 F.3d 1218, 1222 (10th Cir.
2006) (no requirement that court “explain on the record how the § 3553(a)
factors justify the sentence”), petition for cert. pending, No. 06-5217 (filed July
7, 2006); United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006) (district
41
is especially true when the district court chooses to sentence
within the Guidelines range.
Indeed, in the absence of contrary indications in the record,
a court of appeals may presume that the district court
understood its obligations and adequately considered the Section
3553(a) factors, since “[t]rial judges are presumed to
know the law and to apply it in making their decisions,”
Walton v. Arizona, 497 U.S. 639, 653 (1990), overruled on
other grounds by Ring v. Arizona, 536 U.S. 584 (2002). As
long as “the [district] judge is aware of both the statutory
requirements and the sentencing range or ranges that are
arguably applicable,” and “nothing in the record indicates
misunderstanding about such materials or misperception
about their relevance,” it is appropriate to conclude that “the
requisite consideration [of the Section 3553(a) factors] has
occurred.” Fleming, 397 F.3d at 100. Accordingly, when a
district court imposes a within-Guidelines sentence and complies
with Section 3553(c)’s requirement that it state “the
reasons for its imposition of the particular sentence,” the
court is ordinarily not required to provide a further explanation
of its weighing of the Section 3553(a) factors to establish
that they have been considered.
Contrary to petitioner’s contention (Br. 42-43, 45-46),
United States v. Taylor, 487 U.S. 326 (1988), does not support
the view that district courts must articulate their consideration
of the Section 3553(a) factors on the record. In Taylor,
the Court addressed the standard for reviewing a district
court’s consideration of Section 3553(a) factors “need not be evidenced
explicitly”), petition for cert. pending, No. 06-5275 (filed July 11, 2006); United
States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005) (“nothing in Booker or
elsewhere requires the district court to state on the record that it has explicitly
considered each of the § 3553(a) factors or to discuss each of the § 3553(a)
factors”); United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005) (Posner, J.)
(“checklist” not required).
42
court’s dismissal of an indictment with prejudice under the
Speedy Trial Act of 1974, 18 U.S.C. 3162(a). The Court held
that, in light of the statute’s text and legislative history, district
courts must articulate on the record how they evaluated
the statutory factors in deciding whether to dismiss a case
with or without prejudice. Taylor, 487 U.S. at 336-337, 342
343. The SRA differs from the Speedy Trial Act, in that the
SRA specifically directed the Sentencing Commission to formulate
Guidelines that “assure the meeting of the purposes of
sentencing as set forth in section 3553(a)(2),” 28 U.S.C.
991(b)(1)(A), and a correctly calculated Guidelines range already
“takes into account” the factors set forth in Section
3553(a), United States v. Scott, 426 F.3d 1324, 1330 (11th Cir.
2005). Because the Section 3553(a) factors are “built into the
Guidelines,” Johnson, 445 F.3d at 343, a district court that
exercises its discretion to impose a sentence within the Guidelines
range need not explicitly discuss those factors.
B.
The District Court Need Not Explicitly Address Every
Argument That Might Justify A Sentence Outside The
Guidelines Range
Section 3553 of Title 18 requires a district court to impose
a sentence “sufficient, but not greater than necessary,” to
comply with the purposes of sentencing in Section 3553(a)(2),
18 U.S.C. 3553(a) (2000 & Supp. IV 2004); to “consider,” in
determining an appropriate sentence, the factors listed in
Section 3553(a), ibid.; and to “state in open court the reasons
for its imposition of the particular sentence,” 18 U.S.C.
3553(c) (2000 & Supp. IV 2004). But neither Section 3553 nor
any other statute requires a district court to address every
argument for a sentence higher or lower than the one imposed.
Accordingly, if a district court decides to impose a
sentence within the Guidelines range, and complies with the
requirements of Section 3553, the court need not consider and
43
reject every argument for a sentence outside the range. A
number of courts of appeals have correctly so held. See, e.g.,
United States v. Turbides-Leonardo, 468 F.3d 34, 40 (1st Cir.
2006); United States v. Jones, 445 F.3d 865, 871 (6th Cir.),
cert. denied, 127 S. Ct. 251 (2006); United States v. Fernandez,
443 F.3d 19, 30 (2d Cir.) (Cabranes, J.), cert. denied, 127
S. Ct. 192 (2006).
Other courts of appeals, however, require district courts
to address any ground for a non-Guidelines sentence that is
not obviously without merit. See United States v. Sanchez-
Juarez, 446 F.3d 1109, 1116-1118 (10th Cir. 2006); United
States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006); United
States v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005). The
apparent justification for that requirement is that sentencing
after Booker is discretionary and that a court of appeals
“ha[s] to satisfy [itself], before [it] can conclude that the [district]
judge did not abuse his discretion, that he exercised his
discretion, that is, that he considered the factors relevant to
that exercise.” Cunningham, 429 F.3d at 679. That requirement,
as a general rule, is unfounded. A general requirement
that a district court must explicitly address every non-frivolous
argument for leniency lacks any basis in the sentencing
statute.
In any event, even the courts that have imposed such a
requirement recognize that district courts need not address
every argument for a higher or lower sentence. As one of
those courts has put it, “[a] sentencing judge has no more
duty than * * * appellate judges do to discuss every argument
made by a litigant; arguments clearly without merit can,
and for the sake of judicial economy should, be passed over in
silence.” Cunningham, 429 F.3d at 678; accord Sanchez-
Juarez, 446 F.3d at 1117; Cooper, 437 F.3d at 329. At least
one of those courts has also recognized that “[a] response by
the district court [i]s not required” when the party seeking a
44
higher or lower sentence “perfunctorily raise[s] only run-ofthe-
mill contentions.” United States v. Lopez-Flores, 444
F.3d 1218, 1223 (10th Cir. 2006), petition for cert. pending,
No. 06-5217 (filed July 7, 2006). And even when a party
makes an argument that those courts would require to be
addressed, it can often be inferred from the record as a whole
that the argument was considered and rejected, despite the
absence of any explicit statement to that effect by the district
court. See Jiménez-Beltre, 440 F.3d at 519 (“a court’s reasoning
can often be inferred by comparing what was argued by
the parties or contained in the pre-sentence report with what
the judge did”).
Accordingly, as long as the record, viewed as a whole, does
not indicate that the district court failed to give independent
consideration to the Section 3553(a) factors, and as long as the
district court provided a general statement of the reasons for
the sentence as required by Section 3553(c), a sentence within
the correctly calculated Guidelines range should not be set
aside as procedurally unreasonable for failure to address explicitly
particular arguments for a lesser sentence. Instead,
the court of appeals should affirm unless the appellant can
show that the facts and circumstances of the case are such
that the Section 3553(a) factors required a sentence outside
the Guidelines range.
III.
PETITIONER’S SENTENCE, AT THE BOTTOM OF THE
GUIDELINES RANGE, WAS REASONABLE
The district court sentenced petitioner to 33 months of
imprisonment, the bottom of the advisory Guidelines range.
Nothing in the record indicates that the court did not exercise
its discretion on the basis of the Section 3553(a) factors, and
the district court provided an adequate statement of reasons
for the sentence under Section 3553(c). Petitioner’s within-
Guidelines sentence, moreover, is entitled to a presumption of
45
reasonableness, and he cannot rebut the presumption. The
sentence should therefore be affirmed.
A.
The District Court Considered The Factors In 18 U.S.C.
3553(a)
There is no “record evidence suggesting” that the district
court did not “faithfully discharge[] [its] duty to consider the
statutory factors” in sentencing petitioner. Fernandez, 443
F.3d at 30. On the contrary, the record affirmatively shows
that the district court considered the factors in Section
3553(a).
At the sentencing hearing, after ascertaining that petitioner
was not challenging the PSR’s calculation of the Guidelines
range, J.A. 49-50, the district court asked petitioner’s
counsel whether he was going to offer evidence to show that,
“under 3553, your client would be entitled to a different sentence
than he should get under sentencing guidelines,” J.A.
52, and it reminded counsel that “under 3553 you * * * have
a right to show why your client should be considered for a
sentence of less than he would get under the guidelines,” J.A.
53. The court then heard from petitioner’s counsel at length
with respect to the considerations that, in petitioner’s view,
warranted a below-Guidelines sentence—namely, his military
service, physical condition, and asserted vulnerability to
abuse in prison. J.A. 51-73. During the course of those remarks,
the court actively questioned counsel about his arguments
and closely examined the evidence he submitted.10 The
court also confirmed the three grounds on which petitioner
10 See J.A. 56-62 (examining records relating to petitioner’s testimony in
other criminal cases and clarifying petitioner’s claim that he “should be treated
differently” because he might be “subject to retribution” in prison); J.A. 63-66
(questioning counsel about petitioner’s military service); J.A. 66-73 (reviewing
medical records and inquiring whether there was “medical evidence” indicating
which of petitioner’s symptoms were caused by exposure to Agent Orange).
46
was relying for “a departure from the guidelines or a sentence
under 3553 that is lower than the guidelines.” J.A. 64-65.
Thus, even without a presumption that a sentencing court has
considered the Section 3553(a) factors, the record demonstrates
that that those factors were considered here. The district
court explicitly recognized its authority to impose a
below-Guidelines sentence based on the factors in Section
3553(a), and gave petitioner a full and fair opportunity to
identify any relevant considerations that would make a below-
Guidelines sentence appropriate. The court then carefully
considered the evidence and arguments that petitioner presented.
The record thus refutes petitioner’s contention that the
district court “considered only * * * the Guidelines range”
(Br. 19) and “ignored” the other factors in Section 3553(a) (Br.
8). Petitioner’s other contentions are mistaken as well.
First, petitioner contends that the district court did not
give consideration to the Section 3553(a) factors other than
the Guidelines range because the court was “compelled by
circuit precedent to view * * * the Guidelines range as presumptively
correct.” Br. 20. The Fourth Circuit has not held,
however, that a Guidelines sentence is presumptively correct
in the district court, in the sense that a court must impose
such a sentence unless the defendant (or the government) can
“justify a sentence outside of the recommended Guidelines
range.” Ibid. It has only held that, if the district court
chooses to impose a Guidelines sentence in the exercise of its
discretion, the sentence is presumptively reasonable in the
court of appeals. And the Fourth Circuit did not adopt even
that presumption until eight months after the sentence in this
case was imposed. See United States v. Green, 436 F.3d 449,
457 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006). There is
thus no Fourth Circuit precedent to support petitioner’s con
47
tention that the district court believed itself bound to consider
only the Guidelines.
Second, petitioner contends (Br. 3, 21-22 & n.11) that the
district court did not properly consider even the Guidelines,
because, according to petitioner, the court should not have
used the accessory-after-the-fact guideline, Section 2X3.1,
which resulted in a higher offense level. That challenge has
been waived, however, because petitioner conceded in the
district court that the Guidelines range was correctly calculated.
J.A. 49-50. In any event, the contention lacks merit.
The district court applied the accessory-after-the-fact guideline,
not because it “found,” without evidence, that petitioner
“was an accessory after the fact” to InterOrdnance’s crime, as
petitioner contends, Br. 22 n.11, but because the perjury and
obstruction-of-justice guidelines each direct the sentencing
court to apply the accessory-after-the-fact guideline when the
perjury or obstruction of justice involved a “criminal offense,”
Sentencing Guidelines §§ 2J1.2(c)(1), 2J1.3(c)(1), and the
crimes of which petitioner was found guilty were committed
in connection with a grand-jury investigation.
Nor did petitioner take the position in the district court
that a below-Guidelines sentence was warranted because the
accessory-after-the-fact guideline overstates the seriousness
of his crimes. And the court’s obligation to consider the Section
3553(a) factors did not require it to “search for grounds
not clearly raised on the record” that might support a sentence
outside the Guidelines range. United States v. Dragon,
471 F.3d 501, 505 (3d Cir. 2006). In any event, the cross-references
to the accessory-after-the-fact guideline reflect the
Sentencing Commission’s reasonable view that perjury or
obstruction of justice that involves a criminal offense should
be punished more severely than perjury or obstruction of
justice that does not, and that the severity of punishment
48
should vary with the gravity of the underlying obstructed
crime.
B. The District Court Adequately Explained Its Sentence
The district court also complied with its obligation to state
“the reasons for the imposition of the particular sentence.” 18
U.S.C. 3553(c) (2000 & Supp. IV 2004). During its colloquy
with petitioner’s counsel, the court questioned the nature and
extent of the assistance petitioner had provided in other investigations.
J.A. 57-58. It likewise questioned whether petitioner
had “performed such good and extraordinary service
for our country that he is entitled to special treatment.” J.A.
65. And the court observed that “the federal prison system is
equipped to handle people with diabetes and many other difficult
[medical conditions].” J.A. 71. Then, in announcing its
sentence, the court stated that the crimes of which petitioner
was convicted were “serious matters” and that, “under 3553,
certainly the public needs to be protected.” J.A. 86-87; see 18
U.S.C. 3553(a)(2) (requiring court to consider need for sentence
to “reflect the seriousness of the offense” and “protect
the public”). Together with the court’s comments in response
to petitioner’s arguments, those statements provided a sufficient
explanation of the court’s conclusion that, in light of the
seriousness of petitioner’s crimes, and despite the mitigating
circumstances that petitioner identified, a sentence within the
Guidelines range was appropriate.
The court’s statement of reasons surely could have been
lengthier, or more detailed. But it did not have to be. The
district court’s decision to impose a Guidelines sentence necessarily
reflected its agreement with the Sentencing Commission’s
application of the Section 3553(a) factors to the case,
and the sentence therefore required “little explanation.” E.g.,
Sam, 467 F.3d at 864; Tyra, 454 F.3d at 688.
49
Petitioner contends that the statement of reasons was
inadequate because the district court “did not resolve open
evidentiary issues in the record, including the nature of Mr.
Rita’s medical conditions or his military and civil service.” Br.
48. But there were no such issues to resolve, inasmuch as the
facts supporting petitioner’s arguments for a below-Guidelines
sentence were undisputed. See, e.g., J.A. 73. The district
court must therefore be understood, not to have disregarded
the facts proffered by petitioner, but to have concluded
that they did not warrant leniency.
C.
Petitioner Cannot Rebut The Presumption That The
Within-Guidelines Sentence Was Reasonable
The district court considered the factors in Section 3553(a)
and provided an adequate statement of reasons under Section
3553(c), and its within-Guidelines sentence is entitled to a
presumption of reasonableness on appeal. Petitioner cannot
rebut that presumption.
As the prosecutor pointed out at sentencing, the essential
“nature and circumstances of the offense” (18 U.S.C.
3553(a)(1)) is that petitioner obstructed an investigation into
the unlawful importation of machine guns. J.A. 74-75. As the
district court explicitly found, that is a “serious” crime. J.A.
86. As the prosecutor also pointed out at sentencing, “the
history and characteristics of the defendant” (18 U.S.C.
3553(a)(1)), in addition to the characteristics identified by
petitioner, are that he was previously convicted of “lying on
firearm permit applications,” J.A. 76, and committed both the
present crimes and the prior crime while working as a federal
immigration official, J.A. 76-77. Moreover, far from accepting
responsibility for his crimes at sentencing, petitioner continued
to insist that he was innocent, J.A. 80-85; accused the
ATF agent of perjury and the prosecutor of intentionally misleading
the grand and petit juries, J.A. 79, 85; and claimed to
50
be the “victim” of “a modern day * * * Inquisition,” J.A. 80.
Under these circumstances, a sentence at the low end of the
advisory Guidelines range was not unreasonable.
Petitioner contends that his personal characteristics
“clearly support a lesser sentence,” Br. 21, but that contention
is not nearly sufficient to rebut the presumption that a
within-Guidelines sentence is reasonable. The fact that certain
considerations “support” a lower sentence does not mean
that they require one. Had the district court been persuaded
by petitioner’s arguments and imposed a lower sentence, its
sentence might well have been reasonable. But the fact that,
in the exercise of its discretion, the district court rejected petitioner’s
arguments and imposed a higher sentence does not
mean that its sentence was unreasonable. As Judge Posner
has explained, “reasonableness is a range, not a point.” Cunningham,
429 F.3d at 679. For the reasons stated in Point
I.B, supra, it would be a rare case in which the Guidelines
range is not within the “broad range of reasonable[ness],”
Fernandez, 443 F.3d at 34, and it would be a rarer case in
which the bottom of the Guidelines range is not within that
range. This is not such a case.
CONCLUSION
The judgment of the court of appeals should be affirmed.
Respectfully submitted.
JANUARY 2007
PAUL D. CLEMENT
Solicitor General
ALICE S. FISHER
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
DAN HIMMELFARB
MATTHEW D. ROBERTS
Assistants to the Solicitor
General
NINA GOODMAN
JEFFREY P. SINGDAHLSEN
Attorneys
APPENDIX
CONSTITUTION AND STATUTORY
PROVISIONS INVOLVED
1. The Sixth Amendment provides:
In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an impartial
jury of the state and district wherein the crime shall
have been committed, which district shall have been
previously ascertained by law, and to be informed of the
nature and cause of the accusation; to be confronted
with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have
the assistance of counsel for his defense.
2. Section 3553 of Title 18 (2000 & Supp. IV 2004) provides:
Imposition of a sentence
(a) FACTORS TO BE CONSIDERED IN IMPOSING A
SENTENCE.—The court shall impose a sentence sufficient,
but not greater than necessary, to comply with the
purposes set forth in paragraph (2) of this subsection.
The court, in determining the particular sentence to be
imposed, shall consider—
(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;
(1a)
2a
(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—
(i) issued by the Sentencing Commission
pursuant to section 994(a)(1) of title 28,
United States Code, subject to any amendments
made to such guidelines by act of Congress
(regardless of whether such amendments
have yet to be incorporated by the
Sentencing Commission into amendments
issued under section 994(p) of title 28); and
(ii) that, except as provided in section 3742
(g), are in effect on the date the defendant is
sentenced; or
(B) in the case of a violation of probation or
supervised release, the applicable guidelines or
policy statements issued by the Sentencing Commission
pursuant to section 994(a)(3) of title 28,
United States Code, taking into account any
amendments made to such guidelines or policy
3a
statements by act of Congress (regardless of
whether such amendments have yet to be incorporated
by the Sentencing Commission into
amendments issued under section 994(p) of title
28);
(5) any pertinent policy statement—
(A) issued by the Sentencing Commission pursuant
to section 994(a)(2) of title 28, United
States Code, subject to any amendments made to
such policy statement by act of Congress (regardless
of whether such amendments have yet to be
incorporated by the Sentencing Commission into
amendments issued under section 994(p) of title
28); and
(B) that, except as provided in section 3742(g),
is in effect on the date the defendant is sentenced.
1
(6) the need to avoid unwarranted sentence
disparities among defendants with similar records
who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims
of the offense.
(b) APPLICATION OF GUIDELINES IN IMPOSING A
SENTENCE.—
(1) In General—Except as provided in paragraph (2),
the court shall impose a sentence of the kind, and within
the range, referred to in subsection (a)(4) unless the
court finds that there exists an aggravating or
mitigating circumstance of a kind, or to a degree, not
So in original. The period probably should be a semicolon.
4a
adequately taken into consideration by the Sentencing
Commission in formulating the guidelines that should
result in a sentence different from that described. In
determining whether a circumstance was adequately
taken into consideration, the court shall consider only
the sentencing guidelines, policy statements, and official
commentary of the Sentencing Commission. In the
absence of an applicable sentencing guideline, the court
shall impose an appropriate sentence, having due regard
for the purposes set forth in subsection (a)(2). In the
absence of an applicable sentencing guideline in the case
of an offense other than a petty offense, the court shall
also have due regard for the relationship of the sentence
imposed to sentences prescribed by guidelines applicable
to similar offenses and offenders, and to the applicable
policy statements of the Sentencing Commission.
(2) Child crimes and sexual offenses—
(A)2 Sentencing—In sentencing a defendant
convicted of an offense under section 1201 involving
a minor victim, an offense under section 1591, or an
offense under chapter 71, 109A, 110, or 117, the court
shall impose a sentence of the kind, and within the
range, referred to in subsection (a)(4) unless—
(i) the court finds that there exists an
aggravating circumstance of a kind, or to a
degree, not adequately taken into consideration
by the Sentencing Commission in formulating
the guidelines that should result in
a sentence greater than that described;
So in original. No subpar. (B) has been enacted.
5a
(ii) the court finds that there exists a
mitigating circumstance of a kind or to a
degree, that—
(I) has been affirmatively and specifically
identified as a permissible ground of
downward departure in the sentencing
guidelines or policy statements issued under
section 994(a) of title 28, taking account
of any amendments to such sentencing
guidelines or policy statements by
Congress;
(II) has not been taken into consideration
by the Sentencing Commission in
formulating the guidelines; and
(III) should result in a sentence different
from that described; or
(iii) the court finds, on motion of the Government,
that the defendant has provided
substantial assistance in the investigation or
prosecution of another person who has committed
an offense and that this assistance
established a mitigating circumstance of a
kind, or to a degree, not adequately taken into
consideration by the Sentencing Commission
in formulating the guidelines that should
result in a sentence lower than that described.
In determining whether a circumstance was adequately
taken into consideration, the court shall consider only
the sentencing guidelines, policy statements, and official
commentary of the Sentencing Commission, together
with any amendments thereto by act of Congress. In the
absence of an applicable sentencing guideline, the court
6a
shall impose an appropriate sentence, having due regard
for the purposes set forth in subsection (a)(2). In the
absence of an applicable sentencing guideline in the case
of an offense other than a petty offense, the court shall
also have due regard for the relationship of the sentence
imposed to sentences prescribed by guidelines applicable
to similar offenses and offenders, and to the applicable
policy statements of the Sentencing Commission,
together with any amendments to such guidelines or
policy statements by act of Congress.
(c) STATEMENT OF REASONS FOR IMPOSING A SEN-
TENCE.—The court, at the time of sentencing, shall state
in open court the reasons for its imposition of the
particular sentence, and, if the sentence—
(1) is of the kind, and within the range, described
in subsection (a)(4), and that range exceeds 24
months, the reason for imposing a sentence at a
particular point within the range; or
(2) is not of the kind, or is outside the range,
described in subsection (a)(4), the specific reason for
the imposition of a sentence different from that
described, which reasons must also be stated with
specificity in the written order of judgment and commitment,
except to the extent that the court relies
upon statements received in camera in accordance
with Federal Rule of Criminal Procedure 32. In the
event that the court relies upon statements received
in camera in accordance with Federal Rule of
Criminal Procedure 32 the court shall state that such
statements were so received and that it relied upon
the content of such statements.
7a
If the court does not order restitution, or orders only
partial restitution, the court shall include in the statement
the reason therefor. The court shall provide a
transcription or other appropriate public record of the
courts statement of reasons, together with the order of
judgment and commitment, to the Probation System and
to the Sentencing Commission,,3 and, if the sentence
includes a term of imprisonment, to the Bureau of
Prisons.
(d) PRESENTENCE PROCEDURE FOR AN ORDER OF
NOTICE.—Prior to imposing an order of notice pursuant
to section 3555, the court shall give notice to the
defendant and the Government that it is considering
imposing such an order. Upon motion of the defendant
or the Government, or on its own motion, the court
shall—
(1) permit the defendant and the Government to
submit affidavits and written memoranda addressing
matters relevant to the imposition of such an order;
(2) afford counsel an opportunity in open court to
address orally the appropriateness of the imposition
of such an order; and
(3) include in its statement of reasons pursuant
to subsection (c) specific reasons underlying its
determinations regarding the nature of such an
order.
Upon motion of the defendant or the Government, or on
its own motion, the court may in its discretion employ
any additional procedures that it concludes will not
unduly complicate or prolong the sentencing process.
So in original. The second comma probably should not appear.
8a
(e) LIMITED AUTHORITY TO IMPOSE A SENTENCE
BELOW A STATUTORY MINIMUM.—Upon motion of the
Government, the court shall have the authority to
impose a sentence below a level established by statute as
a minimum sentence so as to reflect a defendants substantial
assistance in the investigation or prosecution of
another person who has committed an offense. Such
sentence shall be imposed in accordance with the guidelines
and policy statements issued by the Sentencing
Commission pursuant to section 994 of title 28, United
States Code.
(f) LIMITATION ON APPLICABILITY OF STATUTORY
MINIMUMS IN CERTAIN CASES.—Notwithstanding any
other provision of law, in the case of an offense under
section 401, 404, or 406 of the Controlled Substances Act
(21 U.S.C. 841, 844, 846) or section 1010 or 1013 of the
Controlled Substances Import and Export Act (21
U.S.C. 960, 963), the court shall impose a sentence pursuant
to guidelines promulgated by the United States
Sentencing Commission under section 994 of title 28
without regard to any statutory minimum sentence, if
the court finds at sentencing, after the Government has
been afforded the opportunity to make a recommendation,
that—
(1) the defendant does not have more than 1
criminal history point, as determined under the sentencing
guidelines;
(2) the defendant did not use violence or credible
threats of violence or possess a firearm or other dangerous
weapon (or induce another participant to do
so) in connection with the offense;
(3) the offense did not result in death or serious
bodily injury to any person;
9a
(4) the defendant was not an organizer, leader,
manager, or supervisor of others in the offense, as
determined under the sentencing guidelines and was
not engaged in a continuing criminal enterprise, as
defined in section 408 of the Controlled Substances
Act; and
(5) not later than the time of the sentencing
hearing, the defendant has truthfully provided to the
Government all information and evidence the defendant
has concerning the offense or offenses that were
part of the same course of conduct or of a common
scheme or plan, but the fact that the defendant has
no relevant or useful other information to provide or
that the Government is already aware of the information
shall not preclude a determination by the
court that the defendant has complied with this
requirement.
3. Section 3742 of Title 18 (2000 & Supp. IV 2004)
provides:
Review of a sentence
(a) Appeal by a Defendant.—A defendant may file
a notice of appeal in the district court for review of an
otherwise final sentence if the sentence—
(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect application
of the sentencing guidelines; or
(3) is greater than the sentence specified in the
applicable guideline range to the extent that the
sentence includes a greater fine or term of imprisonment,
probation, or supervised release than the
maximum established in the guideline range, or
10a
includes a more limiting condition of probation or
supervised release under section 3563(b)(6) or (b)(11)
than the maximum established in the guideline
range; or
(4) was imposed for an offense for which there is
no sentencing guideline and is plainly unreasonable.
(b) APPEAL BY THE GOVERNMENT.—The Government
may file a notice of appeal in the district court for
review of an otherwise final sentence if the sentence—
(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect
application of the sentencing guidelines;
(3) is less than the sentence specified in the applicable
guideline range to the extent that the sentence
includes a lesser fine or term of imprisonment,
probation, or supervised release than the minimum
established in the guideline range, or includes a less
limiting condition of probation or supervised release
under section 3563(b)(6) or (b)(11) than the minimum
established in the guideline range; or
(4) was imposed for an offense for which there is
no sentencing guideline and is plainly unreasonable.
The Government may not further prosecute such appeal
without the personal approval of the Attorney General,
the Solicitor General, or a deputy solicitor general
designated by the Solicitor General.
(c) PLEA AGREEMENTS.—In the case of a plea
agreement that includes a specific sentence under
rule 11(e)(1)(C) of the Federal Rules of Criminal Procedure—
11a
(1) a defendant may not file a notice of appeal
under paragraph (3) or (4) of subsection (a) unless
the sentence imposed is greater than the sentence
set forth in such agreement; and
(2) the Government may not file a notice of
appeal under paragraph (3) or (4) of subsection (b)
unless the sentence imposed is less than the sentence
set forth in such agreement.
(d) RECORD ON REVIEW.—If a notice of appeal is
filed in the district court pursuant to subsection (a) or
(b), the clerk shall certify to the court of appeals—
(1) that portion of the record in the case that is
designated as pertinent by either of the parties;
(2) the presentence report; and
(3) the information submitted during the sentencing
proceeding.
(e) CONSIDERATION.—Upon review of the record,
the court of appeals shall determine whether the sentence—
(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect
application of the sentencing guidelines;
(3) is outside the applicable guideline range, and
(A) the district court failed to provide the
written statement of reasons required by section
3553(c);
(B) the sentence departs from the applicable
guideline range based on a factor that—
(i) does not advance the objectives set
forth in section 3553(a)(2); or
12a
(ii) is not authorized under section 3553(b);
or
(iii) is not justified by the facts of the case;
or
(C) the sentence departs to an unreasonable
degree from the applicable guidelines range,
having regard for the factors to be considered in
imposing a sentence, as set forth in section
3553(a) of this title and the reasons for the imposition
of the particular sentence, as stated by
the district court pursuant to the provisions of
section 3553(c); or
(4) was imposed for an offense for which there is
no applicable sentencing guideline and is plainly unreasonable.
The court of appeals shall give due regard to the opportunity
of the district court to judge the credibility of
the witnesses, and shall accept the findings of fact of the
district court unless they are clearly erroneous and,
except with respect to determinations under subsection
(3)(A) or (3)(B), shall give due deference to the district
court’s application of the guidelines to the facts. With
respect to determinations under subsection (3)(A) or
(3)(B), the court of appeals shall review de novo the
district court’s application of the guidelines to the facts.
(f) DECISION AND DISPOSITION.—If the court of
appeals determines that—
(1) the sentence was imposed in violation of law
or imposed as a result of an incorrect application of
the sentencing guidelines, the court shall remand the
case for further sentencing proceedings with such
instructions as the court considers appropriate;
13a
(2) the sentence is outside the applicable guideline
range and the district court failed to provide the
required statement of reasons in the order of judgment
and commitment, or the departure is based on
an impermissible factor, or is to an unreasonable
degree, or the sentence was imposed for an offense
for which there is no applicable sentencing guideline
and is plainly unreasonable, it shall state specific
reasons for its conclusions and—
(A) if it determines that the sentence is too
high and the appeal has been filed under subsection
(a), it shall set aside the sentence and
remand the case for further sentencing proceedings
with such instructions as the court considers
appropriate, subject to subsection (g);
(B) if it determines that the sentence is too
low and the appeal has been filed under subsection
(b), it shall set aside the sentence and
remand the case for further sentencing proceedings
with such instructions as the court considers
appropriate, subject to subsection (g);
(3) the sentence is not described in paragraph (1)
or (2), it shall affirm the sentence.
(g) SENTENCING UPON REMAND.—A district court
to which a case is remanded pursuant to subsection
(f)(1) or (f)(2) shall resentence a defendant in accordance
with section 3553 and with such instructions as
may have been given by the court of appeals, except
that—
(1) In determining the range referred to in subsection
3553(a)(4), the court shall apply the guidelines
issued by the Sentencing Commission pursuant
14a
to section 994(a)(1) of title 28, United States Code,
and that were in effect on the date of the previous
sentencing of the defendant prior to the appeal,
together with any amendments thereto by any act of
Congress that was in effect on such date; and
(2) The court shall not impose a sentence outside
the applicable guidelines range except upon a ground
that—
(A) was specifically and affirmatively included
in the written statement of reasons required by
section 3553(c) in connection with the previous
sentencing of the defendant prior to the appeal;
and
(B) was held by the court of appeals, in remanding
the case, to be a permissible ground of
departure.
(h) APPLICATION TO A SENTENCE BY A MAGISTRATE
JUDGE.—An appeal of an otherwise final sentence
imposed by a United States magistrate judge may be
taken to a judge of the district court, and this section
shall apply (except for the requirement of approval by
the Attorney General or the Solicitor General in the case
of a Government appeal) as though the appeal were to a
court of appeals from a sentence imposed by a district
court.
(i) GUIDELINE NOT EXPRESSED AS A RANGE.—For
the purpose of this section, the term “guideline range”
includes a guideline range having the same upper and
lower limits.
(j) DEFINITIONS.—For purposes of this section—
15a
(1) a factor is a “permissible” ground of departure
if it—
(A) advances the objectives set forth in
section 3553(a)(2); and
(B) is authorized under section 3553(b); and
(C) is justified by the facts of the case; and
(2) a factor is an “impermissible” ground of departure
if it is not a permissible factor within the
meaning of subsection (j)(1).
4. Section 991 of Title 28 (2000 & Supp. IV 2004)
provides:
United States Sentencing Commission; establishment
and purposes
(a) There is established as an independent commission
in the judicial branch of the United States a
United States Sentencing Commission which shall
consist of seven voting members and one nonvoting
member. The President, after consultation with representatives
of judges, prosecuting attorneys, defense
attorneys, law enforcement officials, senior citizens,
victims of crime, and others interested in the criminal
justice process, shall appoint the voting members of the
Commission, by and with the advice and consent of the
Senate, one of whom shall be appointed, by and with the
advice and consent of the Senate, as the Chair and three
of whom shall be designated by the President as Vice
Chairs. Not more than 3 of the members shall be
Federal judges selected after considering a list of six
judges recommended to the President by the Judicial
Conference of the United States. Not more than four of
the members of the Commission shall be members of the
16a
same political party, and of the three Vice Chairs, no
more than two shall be members of the same political
party. The Attorney General, or the Attorney Generals
designee, shall be an ex officio, nonvoting member of the
Commission. The Chair, Vice Chairs, and members of
the Commission shall be subject to removal from the
Commission by the President only for neglect of duty or
malfeasance in office or for other good cause shown.
(b) The purposes of the United States Sentencing
Commission are to—
(1) establish sentencing policies and practices for
the Federal criminal justice system that—
(A) assure the meeting of the purposes of
sentencing as set forth in section 3553(a)(2) of
title 18, United States Code;
(B) provide certainty and fairness in meeting
the purposes of sentencing, avoiding unwarranted
sentencing disparities among defendants
with similar records who have been found guilty
of similar criminal conduct while maintaining
sufficient flexibility to permit individualized
sentences when warranted by mitigating or
aggravating factors not taken into account in the
establishment of general sentencing practices;
and
(C) reflect, to the extent practicable, advancement
in knowledge of human behavior as it
relates to the criminal justice process; and
(2) develop means of measuring the degree to
which the sentencing, penal, and correctional practices
are effective in meeting the purposes of sen
17a
tencing as set forth in section 3553(a)(2) of title 18,
United States Code.
5. Section 994 of Title 28 (2000 & Supp. IV 2004)
provides:
Duties of the Commission
(a) The Commission, by affirmative vote of at least
four members of the Commission, and pursuant to its
rules and regulations and consistent with all pertinent
provisions of any Federal statute shall promulgate and
distribute to all courts of the United States and to the
United States Probation System—
(1) guidelines, as described in this section, for
use of a sentencing court in determining the sentence
to be imposed in a criminal case, including—
(A) a determination whether to impose a
sentence to probation, a fine, or a term of imprisonment;
(B) a determination as to the appropriate
amount of a fine or the appropriate length of a
term of probation or a term of imprisonment;
(C) a determination whether a sentence to a
term of imprisonment should include a requirement
that the defendant be placed on a term of
supervised release after imprisonment, and, if so,
the appropriate length of such a term;
(D) a determination whether multiple sentences
to terms of imprisonment should be
ordered to run concurrently or consecutively; and
(E) a determination under paragraphs (6) and
(11) of section 3563(b) of title 18;
18a
(2) general policy statements regarding application
of the guidelines or any other aspect of
sentencing or sentence implementation that in the
view of the Commission would further the purposes
set forth in section 3553(a)(2) of title 18, United
States Code, including the appropriate use of—
(A) the sanctions set forth in sections 3554,
3555, and 3556 of title 18;
(B) the conditions of probation and supervised
release set forth in sections 3563(b) and 3583(d)
of title 18;
(C) the sentence modification provisions set
forth in sections 3563(c), 3564, 3573, and 3582(c)
of title 18;
(D) the fine imposition provisions set forth in
section 3572 of title 18;
(E) the authority granted under rule 11(e)(2)
of the Federal Rules of Criminal Procedure to
accept or reject a plea agreement entered into
pursuant to rule 11(e)(1); and
(F) the temporary release provisions set forth
in section 3622 of title 18, and the prerelease
custody provisions set forth in section 3624(c) of
title 18; and
(3) guidelines or general policy statements
regarding the appropriate use of the provisions for
revocation of probation set forth in section 3565 of
title 18, and the provisions for modification of the
term or conditions of supervised release and revocation
of supervised release set forth in section
3583(e) of title 18.
19a
(b)(1) The Commission, in the guidelines promulgated
pursuant to subsection (a)(1), shall, for each category
of offense involving each category of defendant,
establish a sentencing range that is consistent with all
pertinent provisions of title 18, United States Code.
(2) If a sentence specified by the guidelines includes
a term of imprisonment, the maximum of the range
established for such a term shall not exceed the
minimum of that range by more than the greater of 25
percent or 6 months, except that, if the minimum term
of the range is 30 years or more, the maximum may be
life imprisonment.
(c) The Commission, in establishing categories of
offenses for use in the guidelines and policy statements
governing the imposition of sentences of probation, a
fine, or imprisonment, governing the imposition of other
authorized sanctions, governing the size of a fine or the
length of a term of probation, imprisonment, or supervised
release, and governing the conditions of probation,
supervised release, or imprisonment, shall consider
whether the following matters, among others, have any
relevance to the nature, extent, place of service, or other
incidents1 of an appropriate sentence, and shall take
them into account only to the extent that they do have
relevance—
(1) the grade of the offense;
(2) the circumstances under which the offense
was committed which mitigate or aggravate the
seriousness of the offense;
So in original. Probably should be “incidence.”
20a
(3) the nature and degree of the harm caused by
the offense, including whether it involved property,
irreplaceable property, a person, a number of persons,
or a breach of public trust;
(4) the community view of the gravity of the
offense;
(5) the public concern generated by the offense;
(6) the deterrent effect a particular sentence
may have on the commission of the offense by others;
and
(7) the current incidence of the offense in the
community and in the Nation as a whole.
(d) The Commission in establishing categories of
defendants for use in the guidelines and policy statements
governing the imposition of sentences of probation,
a fine, or imprisonment, governing the imposition
of other authorized sanctions, governing the size of a
fine or the length of a term of probation, imprisonment,
or supervised release, and governing the conditions of
probation, supervised release, or imprisonment, shall
consider whether the following matters, among others,
with respect to a defendant, have any relevance to the
nature, extent, place of service, or other incidents2 of an
appropriate sentence, and shall take them into account
only to the extent that they do have relevance—
(1) age;
(2) education;
(3) vocational skills;
So in original. Probably should be “incidence.”
21a
(4) mental and emotional condition to the extent
that such condition mitigates the defendant’s culpability
or to the extent that such condition is otherwise
plainly relevant;
(5) physical condition, including drug de-
pendence;
(6) previous employment record;
(7) family ties and responsibilities;
(8) community ties;
(9) role in the offense;
(10) criminal history; and
(11) degree of dependence upon criminal activity
for a livelihood.
The Commission shall assure that the guidelines and
policy statements are entirely neutral as to the race, sex,
national origin, creed, and socioeconomic status of
offenders.
(e) The Commission shall assure that the guidelines
and policy statements, in recommending a term of
imprisonment or length of a term of imprisonment,
reflect the general inappropriateness of considering the
education, vocational skills, employment record, family
ties and responsibilities, and community ties of the
defendant.
(f) The Commission, in promulgating guidelines
pursuant to subsection (a)(1), shall promote the purposes
set forth in section 991(b)(1), with particular
attention to the requirements of subsection 991(b)(1)(B)
for providing certainty and fairness in sentencing and
reducing unwarranted sentence disparities.
22a
(g) The Commission, in promulgating guidelines
pursuant to subsection (a)(1) to meet the purposes of
sentencing as set forth in section 3553(a)(2) of title 18,
United States Code, shall take into account the nature
and capacity of the penal, correctional, and other facilities
and services available, and shall make recommendations
concerning any change or expansion in the
nature or capacity of such facilities and services that
might become necessary as a result of the guidelines
promulgated pursuant to the provisions of this chapter.
The sentencing guidelines prescribed under this chapter
shall be formulated to minimize the likelihood that the
Federal prison population will exceed the capacity of the
Federal prisons, as determined by the Commission.
(h) The Commission shall assure that the guidelines
specify a sentence to a term of imprisonment at or near
the maximum term authorized for categories of defendants
in which the defendant is eighteen years old or
older and—
(1) has been convicted of a felony that is—
(A) a crime of violence; or
(B) an offense described in section 401 of the
Controlled Substances Act (21 U.S.C. 841),
sections 1002(a), 1005, and 1009 of the Controlled
Substances Import and Export Act (21 U.S.C.
952(a), 955, and 959), and Chapter 705 of Title 46;
and
(2) has previously been convicted of two or more
prior felonies, each of which is—
(A) a crime of violence; or
23a
(B) an offense described in section 401 of
the Controlled Substances Act (21 U.S.C. 841),
sections 1002(a), 1005, and 1009 of the Controlled
Substances Import and Export Act (21 U.S.C.
952(a), 955, and 959), and Chapter 705 of Title 46.
(i) The Commission shall assure that the guidelines
specify a sentence to a substantial term of imprisonment
for categories of defendants in which the defendant—
(1) has a history of two or more prior Federal,
State, or local felony convictions for offenses committed
on different occasions;
(2) committed the offense as part of a pattern of
criminal conduct from which the defendant derived
a substantial portion of the defendant’s income;
(3) committed the offense in furtherance of a
conspiracy with three or more persons engaging in a
pattern of racketeering activity in which the defendant
participated in a managerial or supervisory
capacity;
(4) committed a crime of violence that constitutes
a felony while on release pending trial, sentence, or
appeal from a Federal, State, or local felony for
which he was ultimately convicted; or
(5) committed a felony that is set forth in section
401 or 1010 of the Comprehensive Drug Abuse
Prevention and Control Act of 1970 (21 U.S.C. 841
and 960), and that involved trafficking in a substantial
quantity of a controlled substance.
(j) The Commission shall insure that the guidelines
reflect the general appropriateness of imposing a
sentence other than imprisonment in cases in which the
24a
defendant is a first offender who has not been convicted
of a crime of violence or an otherwise serious offense,
and the general appropriateness of imposing a term of
imprisonment on a person convicted of a crime of
violence that results in serious bodily injury.
(k) The Commission shall insure that the guidelines
reflect the inappropriateness of imposing a sentence to
a term of imprisonment for the purpose of rehabilitating
the defendant or providing the defendant with needed
educational or vocational training, medical care, or other
correctional treatment.
(l) The Commission shall insure that the guidelines
promulgated pursuant to subsection (a)(1) reflect—
(1) the appropriateness of imposing an incremental
penalty for each offense in a case in which a
defendant is convicted of—
(A) multiple offenses committed in the same
course of conduct that result in the exercise of
ancillary jurisdiction over one or more of the
offenses; and
(B) multiple offenses committed at different
times, including those cases in which the subsequent
offense is a violation of section 3146
(penalty for failure to appear) or is committed
while the person is released pursuant to the provisions
of section 3147 (penalty for an offense
committed while on release) of title 18; and
(2) the general inappropriateness of imposing
consecutive terms of imprisonment for an offense of
conspiring to commit an offense or soliciting commis
25a
sion of an offense and for an offense that was the sole
object of the conspiracy or solicitation.
(m) The Commission shall insure that the guidelines
reflect the fact that, in many cases, current sentences do
not accurately reflect the seriousness of the offense.
This will require that, as a starting point in its development
of the initial sets of guidelines for particular categories
of cases, the Commission ascertain the average
sentences imposed in such categories of cases prior to
the creation of the Commission, and in cases involving
sentences to terms of imprisonment, the length of such
terms actually served. The Commission shall not be
bound by such average sentences, and shall independently
develop a sentencing range that is consistent
with the purposes of sentencing described in section
3553(a)(2) of title 18, United States Code.
(n) The Commission shall assure that the guidelines
reflect the general appropriateness of imposing a lower
sentence than would otherwise be imposed, including a
sentence that is lower than that established by statute
as a minimum sentence, to take into account a defendant’s
substantial assistance in the investigation or
prosecution of another person who has committed an
offense.
(o) The Commission periodically shall review and
revise, in consideration of comments and data coming to
its attention, the guidelines promulgated pursuant to the
provisions of this section. In fulfilling its duties and in
exercising its powers, the Commission shall consult with
authorities on, and individual and institutional representatives
of, various aspects of the Federal criminal justice
system. The United States Probation System, the
Bureau of Prisons, the Judicial Conference of the United
26a
States, the Criminal Division of the United States Department
of Justice, and a representative of the Federal
Public Defenders shall submit to the Commission any
observations, comments, or questions pertinent to the
work of the Commission whenever they believe such
communication would be useful, and shall, at least
annually, submit to the Commission a written report
commenting on the operation of the Commission’s
guidelines, suggesting changes in the guidelines that
appear to be warranted, and otherwise assessing the
Commission’s work.
(p) The Commission, at or after the beginning of a
regular session of Congress, but not later than the first
day of May, may promulgate under subsection (a) of this
section and submit to Congress amendments to the
guidelines and modifications to previously submitted
amendments that have not taken effect, including
modifications to the effective dates of such amendments.
Such an amendment or modification shall be accompanied
by a statement of the reasons therefor and shall
take effect on a date specified by the Commission, which
shall be no earlier than 180 days after being so
submitted and no later than the first day of November
of the calendar year in which the amendment or
modification is submitted, except to the extent that the
effective date is revised or the amendment is otherwise
modified or disapproved by Act of Congress.
(q) The Commission and the Bureau of Prisons shall
submit to Congress an analysis and recommendations
concerning maximum utilization of resources to deal
effectively with the Federal prison population. Such
report shall be based upon consideration of a variety of
alternatives, including—
27a
(1) modernization of existing facilities;
(2) inmate classification and periodic review of
such classification for use in placing inmates in the
least restrictive facility necessary to ensure adequate
security; and
(3) use of existing Federal facilities, such as those
currently within military jurisdiction.
(r) The Commission, not later than two years after
the initial set of sentencing guidelines promulgated
under subsection (a) goes into effect, and thereafter
whenever it finds it advisable, shall recommend to the
Congress that it raise or lower the grades, or otherwise
modify the maximum penalties, of those offenses for
which such an adjustment appears appropriate.
(s) The Commission shall give due consideration to
any petition filed by a defendant requesting modification
of the guidelines utilized in the sentencing of such
defendant, on the basis of changed circumstances
unrelated to the defendant, including changes in—
(1) the community view of the gravity of the
offense;
(2) the public concern generated by the offense;
and
(3) the deterrent effect particular sentences may
have on the commission of the offense by others.
(t) The Commission, in promulgating general policy
statements regarding the sentencing modification
provisions in section 3582(c)(1)(A) of title 18, shall describe
what should be considered extraordinary and
compelling reasons for sentence reduction, including the
criteria to be applied and a list of specific examples.
28a
Rehabilitation of the defendant alone shall not be
considered an extraordinary and compelling reason.
(u) If the Commission reduces the term of imprisonment
recommended in the guidelines applicable to
a particular offense or category of offenses, it shall
specify in what circumstances and by what amount the
sentences of prisoners serving terms of imprisonment
for the offense may be reduced.
(v) The Commission shall ensure that the general
policy statements promulgated pursuant to subsection
(a)(2) include a policy limiting consecutive terms of
imprisonment for an offense involving a violation of a
general prohibition and for an offense involving a
violation of a specific prohibition encompassed within
the general prohibition.
(w)(1) The Chief Judge of each district court shall
ensure that, within 30 days following entry of judgment
in every criminal case, the sentencing court submits to
the Commission, in a format approved and required by
the Commission, a written report of the sentence, the
offense for which it is imposed, the age, race, sex of the
offender, and information regarding factors made relevant
by the guidelines. The report shall also include—
(A) the judgment and commitment order;
(B) the written statement of reasons for the
sentence imposed (which shall include the reason for
any departure from the otherwise applicable
guideline range and which shall be stated on the
written statement of reasons form issued by the
Judicial Conference and approved by the United
States Sentencing Commission);
(C) any plea agreement;
29a
(D) the indictment or other charging document;
(E) the presentence report; and
(F) any other information as the Commission
finds appropriate.
The information referred to in subparagraphs (A)
through (F) shall be submitted by the sentencing court
in a format approved and required by the Commission.
(2) The Commission shall, upon request, make
available to the House and Senate Committees on the
Judiciary, the written reports and all underlying records
accompanying those reports described in this section, as
well as other records received from courts.
(3) The Commission shall submit to Congress at
least annually an analysis of these documents, any recommendations
for legislation that the Commission concludes
is warranted by that analysis, and an accounting
of those districts that the Commission believes have not
submitted the appropriate information and documents
required by this section.
(4) The Commission shall make available to the
Attorney General, upon request, such data files as the
Commission itself may assemble or maintain in electronic
form as a result of the information submitted
under paragraph (1). Such data files shall be made
available in electronic form and shall include all data
fields requested, including the identity of the sentencing
judge.
(x) The provisions of section 553 of title 5, relating
to publication in the Federal Register and public hearing
procedure, shall apply to the promulgation of guidelines
pursuant to this section.
30a
(y) The Commission, in promulgating guidelines
pursuant to subsection (a)(1), may include, as a component
of a fine, the expected costs to the Government
of any imprisonment, supervised release, or probation
sentence that is ordered.
FY 2001 FY 2002 FY 2003 FY 2004 Total Pre-Booker Post-Booker
Pre-Blakely Only FY 2001 to FY 2004 2/1/2005 - 9/30/2006
NATIONAL 55,089 58,684 65,171 48,251 227,195 114,318
Below-Range Sentences 6,127 11.1% 6,054 10.3% 4,896 7.5% 2,498 5.2% 19,575 8.6% 14,059 12.3%
D.C. Circuit 260 411 477 409 1,557 812
Below-Range Sentences 22 8.5% 24 5.8% 21 4.4% 20 4.9% 87 5.6% 111 13.7%
First Circuit 1,480 1,813 1,832 1,279 6,404 2,568
Below-Range Sentences 145 9.8% 158 8.7% 143 7.8% 66 5.2% 512 8.0% 421 16.4%
Second Circuit 3,926 4,077 4,763 3,426 16,192 7,301
Below-Range Sentences 683 17.4% 692 17.0% 764 16.0% 465 13.6% 2,604 16.1% 1,768 24.2%
Third Circuit 2,561 2,656 2,783 2,086 10,086 5,128
Below-Range Sentences 201 7.8% 194 7.3% 206 7.4% 115 5.5% 716 7.1% 859 16.8%
Fourth Circuit 4,739 5,038 5,698 4,185 19,660 10,333
Below-Range Sentences 228 4.8% 197 3.9% 216 3.8% 128 3.1% 769 3.9% 1,125 10.9%
Fifth Circuit 11,203 12,231 13,298 9,773 46,505 25,506
Below-Range Sentences 1,563 14.0% 1,360 11.1% 999 7.5% 361 3.7% 4,283 9.2% 1,952 7.7%
Sixth Circuit 4,187 4,426 4,789 3,434 16,836 8,518
Below-Range Sentences 261 6.2% 240 5.4% 256 5.3% 175 5.1% 932 5.5% 1,245 14.6%
Seventh Circuit 2,392 2,678 3,041 2,224 10,335 5,008
Below-Range Sentences 139 5.8% 180 6.7% 136 4.5% 82 3.7% 537 5.2% 740 14.8%
Eighth Circuit
Below-Range Sentences
3,486
319 9.2%
3,565
335 9.4%
4,329
308 7.1%
3,528
165 4.7%
14,908
1,127 7.6%
8,214
1,166 14.2%
Ninth Circuit 11,893 11,733 13,286 9,377 46,289 20,658
Below-Range Sentences 1,944 16.3% 2,016 17.2% 1,311 9.9% 596 6.4% 5,867 12.7% 2,557 12.4%
Tenth Circuit 2,980 3,833 4,476 3,728 15,017 9,548
Below-Range Sentences 230 7.7% 286 7.5% 246 5.5% 165 4.4% 927 6.2% 1,008 10.6%
Eleventh Circuit 5,982 6,223 6,399 4,802 23,406 10,724
Below-Range Sentences 392 6.6% 372 6.0% 290 4.5% 160 3.3% 1,214 5.2% 1,107 10.3%
Presumption Circuits
Below-Range Sentences
29,247
2,762 9.4%
32,182
2,622 8.1%
36,108
2,182 6.0%
27,281
1,096 4.0%
124,818
8,662 6.9%
67,939
7,347 10.8%
Other Circuits 25,842 26,502 29,063 20,970 102,377 46,379
Below-Range Sentences 3,365 13.0% 3,432 12.9% 2,714 9.3% 1,402 6.7% 10,913 10.7% 6,712 14.5%
Comparison
Difference in Rates
% Difference in Rates
+3.6%
+37.9%
+4.8%
+58.9%
+3.3%
+54.5%
+2.7%
+66.4%
+3.7%
+53.6%
+3.7%
+33.8%
"Below-Range Sentences" excludes government-sponsored downward departures, as defined in Appendix B of the Sentencing Commission's Final Report on the Impact of
United States v. Booker On Federal Sentencing (March 2006)
.
"Presumption Circuits" are the District of Columbia, Fourth, Fifth, Sixth, Seventh, Eighth, and Tenth Circuits.
"Other Circuits" are the First, Second, Third, Ninth, and Eleventh Circuits.
"Difference in Rates" and "% Difference in Rates" calculate the difference, in absolute terms and as a percentage, between the rate of Below-Range Sentences in Presumption
Circuits and the rate of Below-Range Sentences in Other Circuits. Calculations based on the percentages shown for Presumption Circuits and Other Circuits may yield slightly
different results due to rounding.
Sources: United States Sentencing Commission, 2005 Datafiles, USSCFY05, and Preliminary Data from USSCFY06 (October 1, 2005 through September 30, 2006); United
States Sentencing Commission, 2001 and 2002 Datafiles, USSCFY01 and USSCFY02; United States Sentencing Commission, 2004 Sourcebook of Federal Sentencing
Statistics , Table 26A; United States Sentencing Commission, 2003 Sourcebook of Federal Sentencing Statistics, Table 26A.
FY 2001 FY 2002 FY 2003
Pre-Blakely Only
FY 2004 Total Pre-Booker
FY 2001 to FY 2004
Post-Booker
2/1/2005 - 9/30/2006
% Change
Post-Booker
NATIONAL 55,089 58,684 65,171 48,251 227,195 114,318
Below-Range Sentences 6,127 11.1% 6,054 10.3% 4,896 7.5% 2,498 5.2% 19,575 8.6% 14,059 12.3% 42.7%
Above-Range Sentences 306 0.6% 457 0.8% 541 0.8% 382 0.8% 1,686 0.7% 1,816 1.6% 114.1%
Out-of-Guidelines Sentences 6,433 11.7% 6,511 11.1% 5,437 8.3% 2,880 6.0% 21,261 9.4% 15,875 13.9% +48.4%
D.C. Circuit 260 411 477 409 1,557 812
Out-of-Guidelines Sentences 23 8.8% 26 6.3% 22 4.6% 24 5.9% 95 6.1% 131 16.1% +164.4%
First Circuit 1,480 1,813 1,832 1,279 6,404 2,568
Out-of-Guidelines Sentences 151 10.2% 168 9.3% 156 8.5% 77 6.0% 552 8.6% 474 18.5% +114.1%
Second Circuit 3,926 4,077 4,763 3,426 16,192 7,301
Out-of-Guidelines Sentences 698 17.8% 716 17.6% 786 16.5% 494 14.4% 2,694 16.6% 1,851 25.4% +52.4%
Third Circuit 2,561 2,656 2,783 2,086 10,086 5,128
Out-of-Guidelines Sentences 213 8.3% 219 8.2% 231 8.3% 128 6.1% 791 7.8% 924 18.0% +129.8%
Fourth Circuit 4,739 5,038 5,698 4,185 19,660 10,333
Out-of-Guidelines Sentences 269 5.7% 230 4.6% 248 4.4% 170 4.1% 917 4.7% 1,287 12.5% +167.0%
Fifth Circuit 11,203 12,231 13,298 9,773 46,505 25,506
Out-of-Guidelines Sentences 1,622 14.5% 1,475 12.1% 1,121 8.4% 436 4.5% 4,654 10.0% 2,405 9.4% -5.8%
Sixth Circuit 4,187 4,426 4,789 3,434 16,836 8,518
Out-of-Guidelines Sentences 280 6.7% 275 6.2% 277 5.8% 191 5.6% 1,023 6.1% 1,371 16.1% +164.9%
Seventh Circuit 2,392 2,678 3,041 2,224 10,335 5,008
Out-of-Guidelines Sentences 162 6.8% 201 7.5% 166 5.5% 110 4.9% 639 6.2% 798 15.9% +157.7%
Eighth Circuit
Out-of-Guidelines Sentences
3,486
342 9.8%
3,565
376 10.5%
4,329
356 8.2%
3,528
196 5.6%
14,908
1,270 8.5%
8,214
1,298 15.8% +85.5%
Ninth Circuit 11,893 11,733 13,286 9,377 46,289 20,658
Out-of-Guidelines Sentences 1,996 16.8% 2,101 17.9% 1,463 11.0% 668 7.1% 6,228 13.5% 2,908 14.1% +4.6%
Tenth Circuit 2,980 3,833 4,476 3,728 15,017 9,548
Out-of-Guidelines Sentences 250 8.4% 308 8.0% 271 6.1% 190 5.1% 1,019 6.8% 1,125 11.8% +73.6%
Eleventh Circuit 5,982 6,223 6,399 4,802 23,406 10,724
Out-of-Guidelines Sentences 427 7.1% 416 6.7% 340 5.3% 196 4.1% 1,379 5.9% 1,303 12.2% +106.2%
Proportionality Circuits
Out-of-Guidelines Sentences
36,449
3,503 9.6%
39,807
3,449 8.7%
43,862
2,935 6.7%
32,953
1,566 4.8%
153,07111,453 7.5%
80,419
10,061 12.5% +67.2%
Other Circuits 18,640 18,877 21,309 15,298 74,124 33,899
Out-of-Guidelines Sentences 2,930 15.7% 3,062 16.2% 2,502 11.7% 1,314 8.6% 9,808 13.2% 5,814 17.2% +29.6%
"Out-of-Guidelines Sentences" excludes government-sponsored downward departures, as defined in Appendix B of the Sentencing Commission's Final Report on the Impact of United States
v. Booker On Federal Sentencing (March 2006)
.
"Proportionality Circuits" are the First, Fourth, Fifth, Sixth, Seventh, Eighth, Tenth, and Eleventh Circuits.
"Other Circuits" are the District of Columbia, Second, Third, and Ninth Circuits.
"% Change Post-Booker" calculates the percent change, from the Total Pre-Booker to Post-Booker periods, in the rate of Out-of-Guidelines Sentences. Calculations based on the percentages
shown for Total Pre-Booker and Post-Booker may yield slightly different results due to rounding.
Sources: United States Sentencing Commission, 2005 Datafiles, USSCFY05, and Preliminary Data from USSCFY06 (October 1, 2005 through September 30, 2006); United States Sentencing
Commission, 2001 and 2002 Datafiles, USSCFY01 and USSCFY02; United States Sentencing Commission, 2004 Sourcebook of Federal Sentencing Statistics, Table 26A; United States
Sentencing Commission, 2003 Sourcebook of Federal Sentencing Statistics, Table 26A.
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