Lead Opinion
DefendanL-Appellant Gerard Cavera appeals from a judgment entered on August 23, 2005 in the United States District Court for the Eastern District of New York.
A panel of this Court held that the district court rested its decision on impermissible considerations, and determined that the sentence should be vacated and the case remanded for resentencing. United States v. Cavera,
Cavera, a septuagenarian army veteran with residences in New York and Florida, was arrested by the FBI with the aid of a confidential informant. Beginning in July 2003, the informant purchased guns illegally in New York City on several occasions from a man named Peter Abbadessa. Ab-badessa told the confidential informant that his uncle, Anthony Lucania, had a friend named Gerry (Cavera), who acted as Abbadessa’s Florida gun supplier. In April 2004, the confidential informant flew to Florida, along with Abbadessa and Lu-cania, for the express purpose of procuring firearms. At the FBI’s direction, the informant paid Lucania $11,500 for sixteen guns. Abbadessa and Lucania then went to Cavera’s residence in Deerfield Beach, Florida, where they gave Cavera money in exchange for two boxes containing sixteen firearms. The boxes were later given to the informant, who turned them over to the FBI. Abbadessa, Lucania, and the confidential informant returned to New York on separate flights.
On June 23, 2004, a grand jury returned an indictment charging Cavera, Abbades-sa, and Lucania with various violations of the federal gun trafficking laws. Cavera pled guilty to one count of conspiracy to deal in and to transport firearms, in violation of 18 U.S.C. § 371.
Cavera first appeared for sentencing on June 9, 2005. At this point, Judge Sifton gave notice that he was considering an above-Guidelines sentence, “simply because I think the sentencing guidelines may understate the seriousness of this offense because of the consequences for the community of bringing or transporting ... firearms into New York City.” To guide the parties, Judge Sifton referred them to articles written by himself and by then-District Judge Raggi on local variation in federal sentencing. See Charles P. Sifton, Theme and Variations: The Relationship Between National Sentencing Standards and Local Conditions, 5 Fed. Sent’g Rep. 303 (1993); Reena Raggi, Local Concerns, Local Insights: Further Reasons for More Flexibility in Guideline Sentencing, 5 Fed. Sent’g Rep. 306 (1993). The district court adjourned the proceedings to give the parties an opportunity to address the issue.
The parties appeared again for sentencing on July 28, 2005. The court determined that the Guidelines recommended a sentence of twelve to eighteen months’ imprisonment and a fine of $3,000 to $30,000. But Judge Sifton concluded that a higher sentence was appropriate, stating in open court that the Guidelines range did not adequately meet the “crying need to do what can be done to deter gun trafficking into the large metropolitan area[s] of this country.” At the same time, the district court filed a detailed written opinion further explaining its reasoning. United States v. Lucania,
In this opinion, Judge Sifton began by noting that the Guidelines, “[i]n the pursuit of national uniformity in sentencing practices,” do not take local circumstances into account, and instead reflect a national average. Id. at 293-94. For this reason, the Guidelines were “less persuasive” in Cavera’s case than they would otherwise be. Id. at 296.
The district court explained its decision to impose an above-Guidelines sentence in terms of two of the § 3553(a) factors. Focusing first on the need for the sentence to reflect the seriousness of the offense, as directed by 18 U.S.C. § 3553(a)(2)(A), Judge Sifton found that Cavera’s offense was more harmful than the national average offense contemplated by the Guidelines. “Firearms smuggled into New York City commonly end up in the hands of
The district court also relied on a greater-than-average need, in this case, to achieve strong deterrence. See 18 U.S.C. § 3553(a)(2)(B). The purpose of gun trafficking laws “is to prevent lax firearm laws in one state from undermining the more restrictive laws of other states.” Lucania,
The district court noted next that a sentencing judge is also directed to consider “the need to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). Judge Sifton recognized that his approach would lead to different sentences for otherwise-similar firearms traffickers in different federal districts. Such disparities, however, were not “unwarranted.” Luca-nia,
In one respect, Cavera benefited from Judge Sifton’s willingness to disagree with the Guidelines. Judge Sifton noted that the Guidelines also failed to take into account “the inverse relationship between age and recidivism.” Id. at 298. Judge Sifton stated that he would consider the lesser need for specific deterrence when sentencing Cavera, who was over seventy. Id. at 297-98.
On these bases, the court imposed a sentence of twenty-four months’ imprisonment — six months longer than the top end of the applicable Guidelines range. Cav-era was also sentenced to three years’ supervised release, a $60,000 fine, and a $100 special assessment.
Cavera appealed the sentence. Initially, the Government agreed with Cavera that the sentence could not stand.
II.
This Court employs the en banc procedure sparingly. But when we do hear a case en banc, and we are in substantial agreement, an en banc opinion gives us the opportunity to speak somewhat more broadly, for the purpose of giving guidance to district courts in this Circuit and to future panels of this Court, than we normally do as individual panels. Of Jon O. Newman, In Banc Practice in the Second Circuit: The Virtues of Restraint, 50 Brook. L.Rev. 365, 382 (1984) (“[A]n occasional in banc decision is useful to provide guidance in a frequently litigated area of the law....”). Conversely, where our members possess significantly differing views on a particular issue, it is often wise to avoid speaking as an en banc Court unless the point is one that is strictly necessary to decide the case. See Jon O. Newman, In Banc Practice in the Second Circuit, 1984-1988, 55 Brook. L.Rev. 355, 369 (1989) (“[FJrequent use of the in banc practice surely poses a threat to [collegiality].”). The case before us presents issues of both sorts.
A.
In United States v. Booker, the Supreme Court held that the mandatory application of the Sentencing Guidelines was incompatible with the Sixth Amendment.
The resulting regime is, at first glance, beguilingly simple. The district courts have discretion to select an appropriate sentence, and in doing so are statutorily bound to consider the factors listed in § 3553(a), including the advisory Guidelines range. The courts of appeals then review for abuse of discretion.
Booker, however, left unanswered a number of questions, both for sentencing judges and for those charged with the task of reviewing their work on appeal. Two of these are of particular relevance to this case. One question especially relevant to sentencing judges is to what extent may a district court, consistent with its statutory duty to consider the Guidelines, base its sentence on a policy disagreement with the Sentencing Commission? The second question, especially relevant to courts of appeals, is to what extent must appellate courts defer to the decisions of district courts? As Judge Henry Friendly presciently noted, abuse of discretion is not a uniform standard of review. Henry J. Friendly, Indiscretion About Discretion, 31 Emory L.J. 747, 756 (1982). Rather, where an appellate court reviews for abuse of discretion, “ ‘the scope of review will be directly related to the reason why the category or type of decision is committed to the trial court’s discretion in the first instance.’ ” Id. at 764 (quoting United States v. Criden,
A sentencing judge has very wide latitude to decide the proper degree of punishment for an individual offender and a particular crime. In addition to taking into account the Guidelines range, the district court must form its own view of the “nature and circumstances of the offense and the history and characteristics of the defendant.” 18 U.S.C. § 3553(a)(1). The sentencing judge is directed, moreover, to consider: a) the need to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for that offense; b) the need to afford adequate deterrence to criminal conduct; c) the need to protect the public from further crimes by the defendant; and d) the need for rehabilitation. Id. § 3553(a)(2). Additionally, district courts must take into account: the kinds of sentences available, id. § 3553(a)(3); any per
Even after Gall and Kimbrough, sentencing judges, certainly, are not free to ignore the Guidelines, or to treat them merely as a “body of casual advice.” See United States v. Crosby,
After Gall and Kimbrough, appellate courts play an important but clearly secondary role in the process of determining an appropriate sentence. We review the work of district courts under a “deferential abuse-of-discretion standard.” Gall,
As to substance, we will not substitute our own judgment for the district court’s on the question of what is sufficient to meet the § 3553(a) considerations in any particular case. See United States v. Fernandez,
This degree of deference is only warranted, however, once we are satisfied that the district court complied with the Sentencing Reform Act’s 'procedural requirements, and this requires that we be confident that the sentence resulted from
A district court commits procedural error where it fails to calculate the Guidelines range (unless omission of the calculation is justified, see Crosby,
These broad statements, however, require more specificity, both as to substantive and procedural reasonableness
review if they are to guide us in particular cases, including the one before us. Thus, when conducting substantive review, we take into account the totality of the circumstances, giving due deference to the sentencing judge’s exercise of discretion, and bearing in mind the institutional advantages of district courts. Rita,
In reviewing sentences for reasonableness, we are, of course, bound by 18 U.S.C. § 3661. (stating that “[n]o limitation shall be placed on the information concerning the background, character, and
Accordingly, we will continue to patrol the boundaries of reasonableness, while heeding the Supreme Court’s renewed message that responsibility for sentencing is placed largely in the precincts of the district courts. In at least one respect, Gall and Kimbrough manifestly require us to give more latitude to sentencing judges than this Court did before. After the Supreme Court’s decision in Booker but before its decisions in Kimbrough and Gall, we suggested that it was not permissible for a district court to rest its decision on a policy judgment applicable to an entire category of offenses. See, e.g., Cavera,
When, moreover, we examine a district court’s justification for differing from the Guidelines recommendation, our review must be informed by the “discrete institutional strengths” of the Sentencing Commission and the district courts. Kim-
We do not, however, take the Supreme Court’s comments concerning the scope and nature of “closer review” to be the last word on these questions. More will have to be fleshed out as issues present themselves. For instance, we note that some Guidelines enhancements and reductions apply without modulation to a wide range of conduct. The Armed Career Criminal Guidelines, to take one example, sharply increase the recommended sentences for firearms offenses where the defendant has a prior conviction for a “crime of violence.” U.S.S.G. § 2K2.1(a). The Guidelines’ definition of the term “crime of violence,” however, includes a wide spectrum of offenses of varying levels of seriousness, from, on the one hand, murder or rape, to, on the other hand, attempted burglary of a dwelling. Id. § 4B1.2(a)(2). Similarly, many Guidelines such as those covering “offenses involving taxation,” U.S.S.G. § 2T4.1, “antitrust offenses,” see id. § 2R1.1, and larceny, embezzlement, fraud, and similar crimes, see id. § 2B1.1, drastically vary as to the recommended sentence based simply on the amount of money involved.
But what does the procedural requirement, that the district court must explain its reasons for its chosen sentence, entail? The statutory scheme has long required sentencing judges, “at the time of sentencing,” to state them reasons for imposing the particular sentence “in open court.” 18 U.S.C. § 3553(c). And where a non-
Requiring judges to articulate their reasons serves several goals. Most obviously, the requirement helps to ensure that district courts actually consider the statutory factors and reach reasoned decisions. The reason-giving requirement, in addition, helps to promote the perception of fair sentencing. See Rita,
As a result, in its explanation the district court must satisfy us that it has “considered the parties’ arguments” and that it has a “reasoned basis for exercising [its] own legal decisionmaking authority.” Rita,
When all is said and done though, once we are sure that the sentence resulted from the reasoned exercise of discretion, we must defer heavily to the expertise of district judges. This circumspect form of review, it is true, may result in substantial variation among district courts. But “some departures from uniformity [are] a necessary cost” of the Booker remedy. Id. at 574. And in its recent cases, the Supreme Court has made clear its view that disparities in sentences imposed by different district judges are more likely to reflect justified differences than are those arising from differences of opinion among appellate panels. This last point may not be easy for appellate panels to accept, but
In this respect, we emphasize that sentencing discretion is like an elevator in that it must run in both directions. Under Gall, Kimbrough, and Irizarry v. United States, — U.S.-,
B.
How do these considerations apply in the case before us? We begin by asking whether the court below committed any “significant procedural error.” Gall,
Cavera contends that the district court erred proeedurally by failing to give him an adequate advance explanation of the court’s intent to impose an above-Guidelines sentence. Under Federal Rules of Criminal Procedure 32(h) and 32(i)(l)(C), it appears that a district court must provide a defendant with notice of its intent to impose a non-Guidelines sentence and an opportunity to challenge the grounds for such a sentence. The Supreme Court recently held, however, that any “expectation subject to due process protection ... that a criminal defendant would receive a sentence within the presumptively applicable guideline range did not survive ... United States v. Booker.” Irizarry,
Whether or not the district court’s decision in this case reflected a categorical policy disagreement with the Guidelines,
Judge Sifton stated expressly that he did not base his decision on “local feelings” in New York that gun trafficking is more serious. Lucania,
As to the district court’s first ground, our Court is divided. Were it necessary to reach the issue, some of us would hold that the district court, in its wide discretion, permissibly relied on a determination that trafficking guns into an urban area is likely to create more harm than the national average offense envisaged by the Guidelines. Others would hold that the district court erred to the extent that it based the sentence on the notion that guns are more dangerous in metropolitan areas. Still others are unsure whether reference to such broad, nonspecific geographical and demographic factors is appropriate in the context of this case.
We need not resolve that disagreement today, because the district court’s second ground, that of deterrence,
Like any economic theory, these points are not uncontroversial, but it is not an abuse of discretion for courts to rely on this form of reasoning in deciding on an appropriate sentence. Indeed, the statutory requirement that sentencing courts consider, on a case by case basis, what is necessary for “deterrence to criminal conduct,” 18 U.S.C. § 3553(a)(2)(B), almost inevitably makes judges focus on notions and theories that may be controversial to some.
In the course of an unusually detailed explanation of his reasoning, Judge Sifton discussed the relevant § 3553(a) considerations, and explained with particularity his basis for disagreeing with the Guidelines recommendation in the specific context of Cavera’s case. Judge Sifton, moreover, reached an individualized judgment as to what the purposes of sentencing required in this case. In view of Cavera’s advanced age, the district court chose to reduce the sentence it would otherwise have imposed based on its perception that Cavera was less likely than the average offender to reoffend. In addition, Judge Sifton explicitly considered the need to avoid unwarranted sentence disparities, and concluded that sentencing disparities among different federal districts were warranted by, among other things, the greater need for deterrence in New York, with its more profitable black market in firearms. Given the deference we owe to district judges, especially after Gall and Kimbrough, this deterrence-based rationale easily suffices to justify the sentence. It follows that it would not be an abuse of discretion to impose a prison sentence of twenty-four months that exceeded the top end of the Guideline range by just six months, and a fine that surpassed the Guidelines maximum by $30,000. In relation to both the recommended Guidelines sentence and the § 3553(a) factors, the sentence is substantively reasonable.
What then of the broad demographic and geographic factors the district court considered? It seems clear to us from the record that the district court would have imposed the same sentence had it relied solely on the New York-specific rationale that the local gun regulatory scheme created a heightened need for deterrence in this case. In these circumstances, we need not decide whether the district court erred when it also relied, in the alternative, on the wider notions of geographic and demographic variation because, even if we were to identify error, it would be harmless in the light of the alternative independent ground for the challenged sentence. Since any such error would be harmless, the sentence imposed in this case withstands appellate review.
III.
The panel decision is VACATED, and the judgment of the district court is AFFIRMED.
Notes
. The judgment entered against Cavera’s co-defendant, Abbadessa, was summarily affirmed by this Court on May 19, 2006.
. There was evidence suggesting that Cavera knew the guns were destined for New York.
. When considering the issue of unwarranted disparities, the district court pointed out that "[a] conviction for similar conduct in a New York state court would likely earn [Cavera] a substantially more severe sentence than that called for by the Guidelines.” Lucania,
.The government now contends that, in light of Gall and Kimbrough, the sentence is reasonable.
. The Supreme Court has suggested that the "unreasonableness” standard is a particularly deferential form of abuse-of-discretion review. See Gall,
. In this respect, the district court's reliance on the Guidelines differs from that of appellate courts which may, but need not, treat a Guidelines sentence as presumptively reasonable. See Rita,
. This does not mean that we are questioning the result reached in these cases. See Cutler,
. For more discussion of what this requirement entails, and what it does not, see infra page 193.
. Thus Kimbrough distinguishes between cases where a district court disagrees with Guidelines that were formulated based on special expertise, study, and national experience and those that were not and therefore “do not exemplify the Commission’s exercise of its characteristic institutional role.” See Kimbrough,
. For lax offenses, the measure is the amount of "tax loss.” U.S.S.G. § 2T4.1. For antitrust offenses, the measure is “volume of commerce attributable to the defendant.” Id. § 2R1.1(b)(2). For theft, embezzlement, and similar crimes, it is the amount of loss. Id. § 2B1.1(b)(1).
. The district court denied Cavera’s motion for a downward departure based on his wife’s health. We adopt the panel’s decision to affirm the district court in this respect. See Cavera,
. As the district court noted, the Commission has never specifically addressed the issue of how geography or demographics might be factored into an assessment of the severity of particular crimes, though Congress invited it to do so. See Lucania,
. Similarly, we need express no opinion on the district court's consideration, in the course of its § 3553(a) analysis, of the fact that Cavera would have received a stiffer sentence had he been convicted of the analogous New York State offense. Cf. 18 U.S.C. § 3661 ("No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.”); Williams,
. There are at least two interrelated reasons why gun running may well be more profitable in areas with stringent gun laws. One is that different prices in different places create an arbitrage opportunity whereby criminals can buy guns at a lower price in state A and sell them at a higher price in state B. The other is that stringent local gun regulations create a higher barrier to entry in the gun market. In perfectly competitive markets, expected profits are generally low because as profitability increases, new businesses enter the market and thus increase supply, driving down prices and effectively reducing the profit. Where, however, local laws create a higher-than-usual barrier to entry, there are fewer "businesses” willing to enter the illegal market and thus more profit to be made by those willing to break the law.
.We do not mean to say that the use of academic theories is beyond the purview of appellate court review. There are at any given time theories that are sufficiently clearly junk science so that reliance on them makes a decision by the district court unreasonable,
Concurrence Opinion
I concur in Judge Calabresi’s thoughtful and comprehensive assessment of the landscape following the Supreme Court’s decisions in Gall and Kimbrough. In par
Undoubtedly, this and other Courts of Appeals will someday vacate sentences on the ground that a district court’s reasoning is so unpersuasive as to render it unreasonable. As I read the Supreme Court’s decisions, this is not such a case. I write separately to note simply that an appellate court need not, in the end, find a district court’s reasoning compelling in order to affirm. Were we charged with adjudicating a policy debate, the dissenters might well prevail. But I do not think that is a task the Supreme Court would have us undertake. Rather, I understand the Supreme Court to mean we must defer to the district court’s assessment so long as it is “reasonable.” Courts will have to determine in individual eases the line at which reasonableness ends and arbitrariness begins, with the twin hobgoblins of widely variant sentences and overbearing circuit-court review lurking in the shadows. Ultimately, however, in light of the Supreme Court’s directives, I do not think that this is a case in which the district court has crossed that line.
Accordingly, I concur.
Concurrence Opinion
Our court, sitting en banc, today identifies a set of fundamental principles regarding the imposition and review of federal sentences after the Supreme Court’s decisions in Gall v. United States, — - U.S. -,
1. The Presumptions Proscribed and Review Standard Mandated by Gall and Kimbrough
In reviewing the reasonableness of the challenged sentence, two rulings in Gall v. United States, — U.S. -,
Specifically, we cannot demand “ ‘extraordinary’ circumstances to justify a sentence outside the Guidelines range.” Gall v. United States,
2. The Procedural and Substantive Components of Reasonableness Review
Gall confirms that reasonableness review has both a procedural and substantive component. At the procedural stage, Gall provides five examples of potential errors by a sentencing court: (1) “failing to calculate (or improperly calculating) the Guidelines range,”
If “no significant procedural error” is identified, a reviewing court then “consider[s] the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard,” taking “into account the totality of the circumstances, including the extent of any variance from the Guidelines range.” Gall v. United States,
With these principles in mind, I proceed to consider the reasonableness challenge in this case.
3. The Reasonableness Challenge at Issue
I do not understand any member of the en banc court to suggest that, absent procedural error, a 24-month sentence for illegally trafficking in 16 guns would be substantively unreasonable in this case. Thus, the singular focus of this appeal is procedural error, specifically, the district court’s justification for the challenged sentence and any fact finding underlying that justification.
At the outset, I suggest that if the district court had stated simply, and without referencing any local circumstances, that upon careful consideration of the § 3553(a) factors, including the applicable Guidelines range, it concluded that a 24-month sentence was necessary (a) to reflect the seriousness of a crime that, after all, involves illegal trafficking in instruments that can take a human life; and (b) to ensure the adequate deterrence of such trafficking, we would not identify any procedural error
The district court did not, however, presume to justify its sentence by assessing the seriousness of gun trafficking offenses generally. Rather, it more modestly considered the seriousness of Cavera’s crime by reference to the community for which the illegal guns were intended: New York City.
a. Kimbrough “Closer Review” Does Not Apply in This Case
Before discussing why I identify no abuse of discretion in the district court’s factual assessment of the seriousness of Cavera’s crime, I note my disagreement with the dissenters’ view that this case warrants “closer review” in light of Kimbrough v. United States,
This case is a step further removed from Kimbrough. Although the Commission has promulgated Guidelines to address the unlawful receipt, possession, or transportation of firearms, see U.S.S.G. § 2K2.1, it has never considered whether the risk of harm posed by such crimes can vary depending on the intended destination for the guns. In short, not only are there no Guidelines reflecting empirical and experiential study of this issue, there are no Guidelines at all on the point.
Some dissenting colleagues nevertheless urge “closer review” of the district court’s consideration of local circumstances by construing Commission silence as the equivalent of a policy determination that local circumstances are not properly factored into a sentencing decision. See post at 217-18 (Sotomayor, J., dissenting). I disagree. Certainly, that was not how we interpreted Commission silence when the Guidelines were mandatory, and we hardly have a basis for according greater weight to Commission silence after Booker. Title 18 U.S.C. § 3553(b)(1). which before Booker mandated Guidelines sentences unless the district court identified a factor “not adequately taken into consideration by the Sentencing Commission,” expressly stated that, “[i]n 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” (emphasis added). We had construed this language to mean that “Congress did not limit what a court may determine under § 3553(b) to have been inadequately considered by the Commission. Rather, this provision was left open to ‘provide! ] the flexibility necessary to assure adequate consideration of circumstances that might justify a sentence outside the guidelines.’ ” United States v. Lara,
Thus, long before Booker, the heightened risk of harm from gun trafficking into the nation’s most densely populated city had been cited as a factor not considered by the Commission that might support a departure from Guidelines ranges. See Reena Raggi, Local Concerns, Local Insights, 5 Fed. Sent’g Rep. 306 (1993);
b. The District Court’s Factual Findings Do Not Manifest Clear Error
While I do not think this case calls for “closer review,” whether it does or not, one thing is clear: closer review does not equate to de novo review of a sentencing court’s factual findings. Such findings are reviewed only for clear error. See Gall v. United States,
The district court supported its finding by reference to three facts. The first two, that guns smuggled into New York City are (1) commonly acquired illegally and (2) then used for unlawful purposes, see United States v. Lucania,
The third fact cited by the district court is New York City’s status as the most densely populated area of the country. Undisputed evidence shows that the average population density of the United States is 78 people per square mile, whereas the population density in parts of New York City included in the Eastern District of New York is 35,000 per square mile. See United States v. Lucania,
To the extent the district court’s conclusion that trafficking guns to a densely-populated city poses a heightened risk of harm is plainly grounded in common sense, our dissenting colleagues are dismissive. See post at 216 (Straub, J., dissenting) (observing that “reflexive evocation of common sense does not resolve the issue because of the countervailing evidence”); post at 219-20 (Sotomayor, J., dissenting) (noting “serious danger ... that sentencing judges will dress their subjective views in objective trappings, either by using questionable empirical data or by invoking a ‘common sense’ at odds with reality”). In response, I begin with a word about the role of “common sense” in judicial proceedings.
When the issue in dispute is legal — the bulk of our appellate work' — -rulings must plainly be grounded in law, and not ascribed simply to common sense. But, when the issue to be resolved is factual, the law expects the factfinder — whether judge or jury — to draw on common sense and experience in making any determination. See 1 Leonard B. Sand et al., Modem Federal Jury Instructions ¶ 5.02, Instr. 5-4 (2005) (noting that jury should be instructed: “You should consider the evidence in light of your own common sense and experience, and you may draw reasonable inferences from the evidence”). Indeed, common sense and experience frequently provide the necessary link between a given fact (such as the classic example of a person entering a building wearing a wet raincoat) and a permissible inference (that it is raining outside). Because appellate courts are not factfinders, when we review a challenged factual inference we do not ourselves weigh competing evidence. We ask only whether any reasonable factfinder, applying common sense and experience to the task, could have drawn the challenged inference from the record facts according to the applicable burden of proof, which at sentencing is a preponderance of the evidence. See United States v. Yannotti, 541 F.Sd 112, 129 (2d Cir.2008) (noting that the preponderance standard applies at sentence); United States v. Vaughn,
In Gall, the Supreme Court emphasized the deference reviewing courts owe district courts’ factual findings. In part, this is because district courts have the advantage of seeing the parties and the evidence in the particular case and assessing credibility. See Gall v. United States,
Our dissenting colleagues nevertheless insist — as a procedural matter — that more than common sense and experience was necessary to permit the district court to infer a heightened risk of harm from evidence of population density. Even before Booker, however, reviewing courts did not demand objective evidence to support Guidelines departures for extraordinary family circumstances, age, or other conditions that Commission policy statements noted were generally disfavored. See U.S.S.G. §§ 5H1.1, 5H1.6. To depart on such grounds, the district court had to find that the “discouraged factor ... [was] present to an exceptional degree or in some other way ma[de] the case different from the ordinary ease where the factor is present.” Koon v. United States,
Our dissenting colleagues submit that they have, in fact, identified empirical evidence that demonstrates clear error in the district court’s finding that high population density presents a greater risk of harm from gunfire to bystanders. For example, they cite news stories reporting reductions in the number of innocent victims killed in New York City in recent years. See post at 214 (Straub, J., dissenting); post at 221 (Sotomayor, J., dissenting). Plainly, homi-cj¿e js not on]y form of injury that can be caused by gunfire.
Nor is a different conclusion about the seriousness of Cavera’s crime compelled by the supposed flaw that the dissenters purport to identify in the district court’s reliance on a Justice Department study as evidence that “homicide rates in large urban areas remain substantially higher than in suburban and rural areas.” United States v. Lucania,
This critique does not, in fact, undermine the district court’s finding. The referenced table shows that the rates of homicides for larger cities, whether their populations are 250,000 to 499,000; 500,000 to 999,000; or over one million, are always significantly higher than for small cities with populations of between 100,000 and 250,000. Indeed, over the 30-year period covered by the Department of Justice’s statistics, on average, larger cities had homicide rates nearly 70% higher than that of small cities (ie., 20.2 homicides per 100,000 versus 11.9), and cities over one million had rates nearly double that of small cities (ie., 23.3 homicides per 100,000 versus 11.9). Over the last five years covered by the report (2001-2005), on average, the rate in larger cities has been approximately 52% higher than that in small cities (ie., 14.6 versus 9.6), and approximately 45% higher in cities over one million (ie., 14.0 versus 9.6). On this record, the district court was not obliged to explore the reasons why cities with populations between 250,000 and 500,000 sometimes show slightly higher homicide rates than cities with populations over one million. As already noted, to the extent the explanation for this phenomenon, as far as New York City is concerned, might rest with a decade-long commitment of increased police resources to removing illegal guns from the street, that initiative would not alter the fact that unseized guns continue to pose a greater risk of harm if discharged on the streets of a densely populated city. Thus, the district court did not misstate the import of recent homicide statistics, nor do those statistics demonstrate any clear error in its ultimate finding that trafficking guns into New York City is more serious than the mine-run case.
In any event, I do not understand it to be our role, at the procedural step of reasonableness review, to engage in this kind of dissection of the empirical evidence cited by the district court.
I identify no clear error in the district court’s finding that gun trafficking to New York City is a sufficiently more serious crime than the mine-run case based on the high population density of the city as well as the likely illegal disposition and use of such guns. For that reason, as well as the heightened need for deterrence discussed in the majority opinion, I vote to uphold the challenged 24-month sentence and to affirm the judgment of conviction.
I join fully in my colleague’s concurring and dissenting opinion. I write separately
While it is now clear that the District Court “may vary from Guidelines ranges based solely on policy considerations, including disagreements with the Guidelines,” Kimbrough v. United States, — U.S.-,
1. Standard of Review
We review a district court’s sentence for procedural and substantive reasonableness, a standard “akin to review for abuse of discretion.” United States v. Fernandez,
In Kimbrough, the Supreme Court explained that sentencing “courts may vary from Guidelines ranges based solely on policy considerations, including disagreements with the Guidelines.”
The precise question presented by this case is whether the District Court exceeded its allowable discretion when it chose to rely on empirical sociological data to draw conclusions, decided that the Guidelines do not account for the judge’s sociological conclusions, and then based its sentence on those conclusions. In these circumstances, I believe we must examine whether the District Court’s findings are supported by the data cited in order to determine that it has a “reasoned basis for exercising [its] own legal decisionmaking authority.” Rita v. United States,
The Supreme Court’s analysis of the sentencing judge’s use of age in Gall is instructive. In that case, the Eighth Cir-
Where a district court’s sociological and statistical findings, as to which it enjoys no special comparative advantage vis-a-vis the Sentencing Commission, see Kimbrough,
2. The District Court’s Use of Population Density
The District Court first erred in concluding that New York City’s population density makes Cavera’s offense more serious here than in the nation generally. While it is possible that this is the case, as my dissenting colleague also explains, neither the data relied on by the District Court nor reasonably available statistics support that conclusion.
The District Court cited evidence showing that New York City is the most densely populated city in the country and evidence it claimed showed that “homicide rates in large urban areas remain substantially higher than in suburban and rural areas.” Lucania,
But, nothing in the reports cited by the District Court supports the conclusion that the risk of harm from firearms is greater in more densely populated cities than in the rest of the country. According to the data cited, there are more homicides in large cities than in small cities and suburban and rural areas. See Trends by City Size. The report cited, however, does not compare “homicide rates” in these geographic subdivisions, as the District Court apparently believed, see Lucania,
When we turn to the key metric — relative rates of gun-related homicides in New York City versus elsewhere — the statistics do not support the District Court’s conclusion. Homicide rates in the region that includes New York City appear to reflect the national average, while “[rjates of murder, and especially those involving guns, are higher in southern regions of the United States — in the East South Central, West South Central, and the South Atlantic regions.” U.S. Dep’t of Justice, Office of Justice Programs, Bureau of Justice Statistics, Homicide Trends in the U.S., Regional Trends, http:// www.ojp.usdoj. gov/bjs/homicide/region.htm (last visited Nov. 20, 2008) (“The rates of the Middle Atlantic [New Jersey, New York, Pennsylvania] and East North Central regions were closest to the national average of all regions.”). In addition, in view of the fact that almost eighty percent of the United States population lives in urban areas, see U.S. Census Bureau, Statistioal Abstract of the United States: 2004-2005, Population 28, tbl.25, available at http://www. census.gov/prod/2004pubs/04statab/pop.pdf (last visited Nov. 20, 2008), the assumption that New York City is far from the national average just because most other locales are more rural, without further analysis, seems tenuous at best.
Nor, as my dissenting colleague points out, do the data suggest that innocent bystanders face a heightened risk of harm from firearms in New York City. In 2007, “[v]ery few victims of homicides were strangers to their perpetrators or were killed in random attacks.” Press Release, New York Police Department, Mayor Bloomberg and Commissioner Kelly Announce that City is on course to set a New Record in Crime Reduction — Fewest Murders Since Records Have Been Kept, No.2007-066 (Dec. 26, 2007), http://www. nyc.gov/html/nypd/html/pr/pr_2007_066. shtml (last visited Nov. 20, 2008); see also A1 Baker, City Homicides Still Dropping, to Under 500, N.Y. Times, Nov. 23, 2007, at A1 (reporting that the Police Department’s official crime statistics showed in November 2007 that “with roughly half the killings analyzed, only 35 were found to be
In sum, the fact that more homicides occur in large cities than in rural or suburban areas does not support the inference that the rate of homicides is greater in New York City than on average in this country. Even assuming a higher homicide rate in New York City, the fact that New York City is more densely populated does not support the inference that more innocent bystanders may be hurt by gun violence in New York City than on average in this country. And even assuming that more guns in New York City means more potential for harm here than on average elsewhere, there is nothing to support the assumption that trafficked guns in New York City are more likely to cause harm than they would on average in the country.
3. The District Court’s Use of New York’s Strict Gun Laws
The District Court also erred in concluding that “a more severe penalty is necessary to produce adequate deterrence.” See Lucania,
The article the District Court relied on to note parenthetically that New York City is “one of the ‘unusual areas’ to which running guns is a profitable enterprise” does not make the claim that gun running into New York City is more profitable than
The study’s main conclusion is that “organized high-volume gun trafficking appears to account for a few percent of the guns acquired by criminals,” thus refuting the theory that trafficking accounts for a significant share of criminals’ guns. Id. at 42 (“Criminals obtain guns ... primarily by way of unrecorded, one-at-a-time transfers, some legal, some not, from people not in the illegal gun trafficking business.... [Organized trafficking of guns ... accounts for no more than a tiny share of the guns obtained by criminals.”). In line with that, the study undermines the notion that firearms trafficking is a significant source for criminals even in cities with strict gun laws when it notes, referring to Boston, that “even in a city subject to unusually strict gun laws, where opportunities for gun traffickers to profit should be at their maximum, probably less than 7% of crime guns recovered by police[] showed some solid indication of having been trafficked.” Id. at 28-29 (emphasis added). If the vast majority of crime guns are being obtained through routes other than illegal gun traf-ticking, then the demand for trafficked guns and thus potential profits may not be as high as otherwise assumed. Moreover, evidence that guns cost more in New York City than elsewhere does not establish that greater profits are available in the City than in other destinations for trafficked guns. See Maj. Op. at 195-96 & n.14. Increase in the cost of a gun does not automatically lead to increased profits if the expenses also go up, say, as a result of the additional efforts needed to avoid stricter gun control enforcement.
Even assuming the evidence supports an inference that higher profits are available, the District Court did not explain how that made New York City different from other places in the country where gun trafficking occurs. It certainly bears keeping in mind that the purpose of New York State’s very strict gun laws is undermined when guns are brought into the state illegally; however, that problem was the main reason for 18 U.S.C. § 922(a), and presumably its accompanying sentences, in the first place. Section 922(a)(5) was passed specifically to remedy the major problem created by persons in states with restrictive laws obtaining guns from states with less restrictive gun control laws. See, e.g., S. Rep. No. 90-1097, as reprinted in 1968 U.S.C.C.A.N. 2112, 2164 (“Two prime sources of firearms to criminals, juveniles, mental defectives, and crime-bent individuals which involve access to guns through interstate routes are the mail-order common carrier source and the out-of-state, nonresident source-Because of interstate, nonresident purchases of firearms for criminal purposes, the laws of our States and their political subdivisions are circumvented, contravened, and rendered ineffective.”).
Certainly a potential for greater profits in a particular locale and a need for greater deterrence are not inconsequential matters when determining the appropriate sentence. Here, however, the conclusion that increased profits are to be had from trafficking guns into New York City does not follow from the evidence. The District Court failed to explain how the data cited supported an inference that greater profits were available to gun traffickers targeting New York City, and failed to explain how the Guidelines range inadequately accounts for the potential for greater profits given that the statute was aimed at combating that problem in the particular locales with strict gun laws.
4. Conclusion
For these reasons, I would find that the links between the facts and the conclusions in this case are so tenuous as to verge on speculation and that the sentence does not survive reasonableness review. While a need for greater deterrence and a potential greater risk to innocent bystanders are indubitably valid concerns for a sentencing judge, when a district court bases its finding that these factors are present on sociological data, there must be a reasoned basis for concluding that the data support the finding. Here, the perceived needs are not founded in the facts, the data cited do not support the inferences drawn, and reflexive evocation of common sense does not resolve the issue because of the countervailing evidence. In reviewing sentences, we would be wise to recall that “[i]t is our duty to see that the force of the state, when it is brought to bear through the sentences of our courts, is exerted with the maximum we can muster of rational thought, humanity, and compassion.” Marvin E. Frankel, CRIMINAL Sentenoes: Law Without Order 124 (1973). The District Court’s reasoning, as it stands, leaves me wholly unconvinced that the inferences the District Court drew from the record facts and conclusions it made to support Cavera’s above-Guidelines sentence were reasonable or rational. For these reasons I join my colleague’s concurring and dissenting opinion. I would remand to the District Court for resentencing in light of Kimbrough, — U.S.-,
. In concluding that Cavera’s gun smuggling was particularly serious because he knew that the guns sold would be transported into New York City, specifically that part of the city included in the Eastern District of New York, Judge Sifton made the following findings of fact:
(a) “Firearms smuggled into New York City commonly end up in the hands of those who could not otherwise legally acquire them.’’ United States v. Lucania,379 F.Supp.2d 288 , 295 (E.D.N.Y.2005).
(b) Such guns "are frequently used for illegitimate purposes.” Id.
*199 (c) Such use has "the potential to create a substantially greater degree of harm when in an urban environment such as New York City than in the United States generally.” Id.', see also id. at 295 n. 3 (citing statistical evidence showing, inter alia, that New York City is "the most densely populated urban area of the country,” and that, "while the population density of the United States on average is ... about 78 people per square mile,” the "population density of parts of the Eastern District of New York exceeds 35,000 per square mile”).
. To the extent dissenting colleagues also fault the district court’s reliance on local facts to support its deterrence assessment, I have nothing to add to the majority opinion’s explanation for why our court identifies no error in this respect.
. As the court observes, "reasonableness” appears to be a particularly deferential form of abuse-of-discretion review. See ante 188 n. 5.
. We reaffirm today that omission of a Guidelines calculation can be justified in certain circumstances. See ante at 189-90 (citing United States v. Crosby,
.The district court’s proper calculation of the Sentencing Guidelines, recognition of the Guidelines’ advisory status, and careful consideration of § 3553(a) factors are not in dispute.
. We hold today that it is ''[a]t the substantive stage of reasonableness review” that an appellate court "may consider whether a factor relied on by a sentencing court can bear the weight assigned to it” by the district court. See ante at 190-91. While this review is deferential, it nevertheless follows that a factor or justification that could support a 24-month sentence might not bear the weight of a 24-year sentence. Cf. United States v. Jones,
. In a post-arrest statement, Cavera admitted knowing that the guns he sold were destined for New York City. See Presentence Report ¶ 15 (Feb. 2, 2005).
. The omission is noteworthy because, in the Sentencing Reform Act, Congress recognized the possibility that regional circumstances might differentiate some crimes, and it specifically invited the Sentencing Commission to consider "the community view of the gravity of the offense” in formulating the Guidelines. 28 U.S.C. § 994(c)(4); see United States v. Lucania,
. As support for the conclusion that the district court's analysis in this case was "at odds with the Sentencing Commission,” post at 217 (Sotomayor, J., dissenting), Judge Soto-mayor quotes the following language from my 1993 article: "When I voiced my concern to the Sentencing Commission about these guidelines for gun trafficking as they applied in New York, I was told that other parts of the country viewed gun crimes differently and that the guidelines were meant to reflect an average.” Raggi, Local Concerns, Local Insights,
. The dissenters' proposed "closer review” standard would require us to "test a district court’s application of broad policy factors in order to ensure that the district court’s conclusions can be objectively supported and are not based on faulty assumptions.” See post at 219 (Sotomayor, J., dissenting). I cannot endorse this formulation of “closer review,” which invites us to engage in precisely the kind of quasi-de novo review of which Gall expressly disapproved.
. As this discussion indicates, I do not agree that "the impact of almost any crime will vary according to its location.” Post at 219 (Soto-mayor, J., dissenting). But I do think that after Booker, Kimbrough, and Gall, if a district court reasonably concludes that the location in which a particular crime was committed is relevant to a § 3553(a) factor, its consideration of that local fact manifests no procedural error. See generally United States v. Politano,
. The dissenters acknowledge district courts’ “day-to-day experience in criminal sentencing," but contend that such experience does not enable district courts to “draw comparisons between defendants in different courts around the country” because a particular district court "judge's experiences are limited to his or her region.” Post at 218-19 (Sotoma-yor, J., dissenting). In fact, when a district court concludes, as it did in this case, that "local circumstances” affect the "seriousness of the offense” and the need "to afford adequate deterrence,” United States v. Lucania,
. We understand the district court’s reference to homicide statistics to have been only illustrative, because illegal guns can certainly pose serious risks of harm short of death. Cf. Ctrs. for Disease Control, “Surveillance for Fatal and Nonfatal Firearm-Related Injuries— United States 1992-1998” (2001), available at http://www. cdc.gov/mmwr/pre-view/mmwrhtml/ss5002al.htm (noting that, while death rate for firearm-related injuries is "substantially higher than [that for] all causes of injury combined,” only 30% of firearm-related injuries resulted in death between 1993 and 1998).
. A brief review of news stories for the last eighteen months reveals the following:
— "NYPD Daily Blotter,” N.Y. Post, Nov. 6, 2008, at 18 (reporting three persons hit by random gunfire outside subway station).
—• "Shot Girl Was Hit in Crossfire,” N.Y. Post, Oct. 22, 2008, at 21 (reporting 5-year-old girl suffered collapsed lung after being shot in gang fight crossfire).
— "71-Year-Old Woman Hit by Stray Bullet in Brooklyn,” WCBS, Oct. 1, 2008, http:// wcbstv.com/topstories/stray.bullet.shooting. 2.830513.html (reporting woman grazed by bullet while walking home from church).
— "Rids, 8 and 10, Injured by Stray Bullets in Brooklyn and Queens,” N.Y. Daily News, Sept. 14, 2008, at 17 (reporting 10-year-old girl shot in shoulder when bullets raked Brooklyn block party and 8-year-old boy shot on side of forehead when getting into a car with his mother in Queens).
— "After a Boy's Shooting, 'Why' Is on Everyone’s Lips,” N.Y. Times, Aug. 6, 2008, at B2 (reporting critical shooting of 9-year old caught in crossfire in Crown Heights, Brooklyn).
— "15 Year-Old Is Fatally Shot in Harlem,” N.Y. Times, June 30, 2008, at B3 (reporting death of boy killed by stray bullet on 127th Street, near site where, two weeks earlier, 12-year-old boy had been injured by debris loosened by stray bullets).
— "An Innocent Errand Ends in Death for a Brooklyn Mother of Three,” N.Y. Times, Apr. 1, 2008, at B1 (reporting death of woman hit by random gunfire in courtyard).
•— "Girl, 9, Hit by Stray Bullet that Flies into Her Brooklyn Apt.,” Newsday, Mar. 28, 2008 (reporting 9-year-old girl hit in arm by bullet that crashed through window of her fifth floor apartment).
— "45 to Life in Slay,” N.Y. Post, Jan 4, 2008, at 11 (reporting sentencing of Queens man who killed innocent bystander while attempting to shoot person who shot assailant's brother).
— "Girl, 11, in Shoot Horror," N.Y. Post, Jan. 2, 2008, at 9 (reporting death of child when family stumbled into Bronx shootout on New Year's Eve).
— "Caught in Crossfire,” N.Y. Daily News, Oct. 15, 2007, at 8 (reporting various shooting incidents):
(1) 16-year-old boy shot in head by stray bullet when looking out window of Brooklyn apartment.
(2) 3-year-old girl grazed by bullet while visiting grandmother in Brooklyn.
(3) 12-year old shot in back by stray bullet when fight between rival gangs spilled onto Bronx street.
(4) 4-year-old girl shot in leg by stray bullet while jumping rope.
(5) 12-year-old Brooklyn girl shot in side when gunfire erupted on neighborhood street.)
— "Slain Girl’s Parents’ Fury at 'Terror' Gang,” N.Y. Post, July 3, 2007, at 4 (reporting killing of 10-year-old girl caught in crossfire of Bronx gang shootout).
District judges in New York City know that these recent experiences are not unique. See Raggi, Local Concerns, Local Insights, 5 Fed.
. Insofar as the dissenters note that other, less densely populated communities report problems with random gunfire, post at 222 n. 6 (Solomayor, J., dissenting), sentencing courts in those locales will have to decide for themselves how those problems factor into the totality of circumstances relevant to § 3553(a) analysis. See United States v. Politano, 522 F.3d at 72 (affirming sentence imposed in District of Massachusetts where district court found, under § 3552(a), that “any reader of the daily newspapers is aware that the illegal trafficking of firearms at the street level is a significant contributing factor in what, without exaggeration I think, can be called an epidemic of handgun violence in communities within this district''). The fact that, after Booker, Kimbrough, and Gall, judges sitting in other districts might reasonably conclude that the seriousness of gun smuggling into their communities is not adequately addressed by the Sentencing Guidelines does not make it procedurally unreasonable for the district court to have reached that conclusion in this case, which involves the nation’s most densely populated city.
. Likewise, we do not expect district courts to take on the additional burden of acting as social scientists who must parse all available empirical evidence before reaching a conclusion.
. The government cites United States v. Politano, 522 F.3d 69 (1st Cir.), cert. denied, - U.S. -,
This cannot be what the Supreme Court meant when it instructed appellate courts to "ensure that the district court committed no significant procedural error.” Gall,
. The District Court itself explained that a judge should be permitted to take into account differences in local concerns in sentencing only if the differences are "a) founded in fact; and b) justified by reasons of general applicability.” Lucania,
. Perhaps it also bears noting that generalist judges may not be the best equipped for this type of sociological and statistical analysis. See Michael C. Dorf, Foreword: The Limits of Socratic Deliberation, 112 Harv. L.Rev. 4, 53 n. 278 (1998).
. This remained true in 2006 and 2007. See U.S. Dep't of Justice, Federal Bureau of Investigation, Crime in the United States: 2007, tbl. 16, available at http://www.fbi.gov/ucr/ cius2007/data/table_16.html (last visited Nov. 20, 2008); U.S. Dep’t of Justice, Federal Bureau of Investigation, Crime in the United States: 2006, tbl. 16, available at http://www. fbi.gov/ucr/cius2006/data/table_l 6.html (last visited Nov. 20, 2008).
. The FBI specifically cautions readers of its annual Crime in the United States report against ranking jurisdictions, noting that several variables, including population density, "affect the volume and type of crime occurring from place to place,” and warning that "meaningful comparisons” require examination of "all the variables that affect crime in a ... city....” U.S. Dep't of Justice, Federal Bureau of Investigation, Crime in the United States: 2007, Caution Against Ranking: Variables Affecting Crime, available at http://www. fbi.gov/ucr/cius2007/abou1/variables_ affecting_crime.html (last visited Nov. 20, 2008).
. This would be uncontroversial where a district judge finds, for example, that a particular defendant was motivated by the potential for greater profits in New York than elsewhere. But here, no such finding of Cavera's motivations was made.
. As my dissenting colleague also emphasizes, I find the majority’s efforts to bolster the District Court’s rationale through economic theories troublesome.
. Section 922 was originally enacted by Section 902 of the Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. No. 90-351, 82 Stat. 197, 229, and was later amended by
Dissenting Opinion
dissenting:
I join in the majority’s conclusions in Parts I and 11(A) regarding our authority to review sentencing decisions as well as in Judge Straub’s and Sotomayor’s dissents insofar as they address the economic deterrence basis for the sentence imposed below. I also agree with Judge Sotoma-yor’s analysis of the closer standard of review that should be applied in this case. Because the majority does not rest its decision on the district’s court’s determination that a gun running offense is more serious when guns are transported to New York City, I take no position on that issue.
I join in the majority’s conclusions in Parts I and 11(A) regarding our authority
As the majority recognizes, the Supreme Court has held that sentencing courts, in certain circumstances, are authorized to weigh generally applicable policy factors. Maj. Op. at 191 (citing Kimbrough v. United States, — U.S. -,
Closer review is warranted where, as happened in this mine-run case, a district court implements a policy decision applicable to a wide class of offenders that is at odds with the Sentencing Commission. As the district court recognized, despite Congress’s direction to consider the “community view of the gravity of the offense,” 28 U.S.C. § 994(c)(4), “[t]he [Sentencing] Commission has, so far, never accepted the invitation to craft regional Guidelines,” at least with respect to the firearms trafficking at issue in this case. United States v. Lucania,
Closer review is also appropriate because the judge’s sentence, in addition to being in tension with the Sentencing Commission, was not grounded in the district court’s “discrete institutional strengths.” Kimbrough,
I believe that “closer review” means that we must test a district court’s application of broad policy factors in order to ensure that the district court’s conclusions can be objectively supported and are not based on faulty assumptions. This review does not amount to a policy debate. To the contrary, our review must focus on the district court’s articulated reasons and cited authority, evaluating whether the latter support the former. And despite Judge Rag-gi’s representation (Concurring Op. at 204 n. 10), such closer review does not mean that we substitute our own sentencing predilections for those of the district court. See Gall v. United States, — U.S.-,’
As the district court recognized in this case, arbitrary and subjective considerations, such as a judge’s feelings about a particular type of crime, should not form the basis of a sentence. Lucania,
I do not suggest that the thoughtful and respected district judge in this case sentenced according to a caprice. His detailed opinion and its careful discussion of the § 3553(a) factors demonstrate otherwise. The dialogue between trial and appellate courts depends upon the candor of all judges, and the district court here is to be commended for its thorough explanation of its sentencing decision. Nevertheless, the district court’s analysis and data are insufficient to support its conclusion that defendant-appellant deserved a severer sentence because firearms trafficking (1) is a more serious crime in densely populated areas, and (2) requires greater deterrence in areas with restrictive gun laws. For that reason, I believe that the enhanced sentence that the district court imposed on defendant-appellant should be vacated and remanded for reconsideration by the district court.
With respect to the seriousness of the offense, the district court relied on data compiled by the Department of Justice, which indicated that “homicide rates in large urban areas remain substantially higher than in suburban and rural areas.” Lucania,
The district court implied that common sense dictates that a gun is more dangerous in more densely populated areas because of the higher likelihood that random bystanders might be shot. Lucania,
The district court’s other rationale for imposing a non-Guidelines sentence was based on “general deterrence.” The majority affirms the district court’s sentence on this basis (Maj. Op. at 195-97), even though the district court’s reasoning was unsubstantiated and unconvincing. In concluding that firearms trafficking is more profitable in New York City than in less tightly regulated areas, the sentencing judge’s sole support was a law review article that hypothesized — without the benefit of data — that “there may well be unusual areas, such as New York City, Washington, D.C., or Boston, where the supply of legally owned guns and stolen guns circulating among criminals is low enough to leave room for criminal entrepreneurs to make a living selling guns illegally.” Gary Kleck, BATF Gun Trace Data and the Role of Organized Gun Trafficking in Supplying Guns to Criminals, 18 St. Louis Univ. Pub.L.Rev. 23, 41 (1999). The district judge did not make any finding as to where the majority of firearms trafficking offenses occur, and he assumed that the firearms trafficking offenses which make up the Guidelines’ “national average” are spread evenly throughout the country rather than clumped in certain areas. But if the article cited by the district court is correct that the black market for guns is only profitable in a few areas like New York, Washington, D.C. and Boston, then it may well be that firearms trafficking crimes occur almost entirely or predominantly in those areas, in which case the Guidelines may already account for any deterrence issues raised by New York’s strict gun laws. If so, defendant-appellant’s sentence would have been needlessly increased.
The majority states that firearms trafficking is more profitable in areas with strict gun laws because more regulation increases the costs of obtaining a gun. And “[wjhere the profits to be made from violating a law are higher, the penalty needs to be correspondingly higher to achieve the same amount of deterrence.” Maj. Op. at 196.
There are additional reasons to be skeptical and wary of the district court’s theory of general deterrence. First, it is unrealistic to believe that gun traffickers willing to risk up to twenty-five years under New York law (N.Y. Penal Law §§ 70.02, 265.13 (McKinney 2008)) will now be more deterred by the possibility that, if they are charged in federal court, a federal sentencing judge in New York may increase their sentence based on the gun destination. Second, determinations regarding general deterrence may be highly subjective, and we must be careful that the individual defendant is not lost in a stereotype. If we accept the unsubstantiated general deterrence theory here, then we open the door to sentencing increases or decreases based on a litany of socio-economic factors that some study shows are linked with an increased or decreased likelihood of committing a particular crime. Finally, deterrence assumes that potential violators can anticipate what punishment they might receive. To the extent that consequences for the same federal offense vary widely from one judge to the next, deterrence is undermined because “a defendant who comes up for sentencing has no way of knowing or reliably predicting whether he will walk out of the courtroom on probation, or be locked up for a term of years that may consume the rest of his life, or something in between.” Marvin E. Frankel, Criminal Sentences: Law Without Order 6 (1973); see U.S. Sentencing Guidelines Manual Ch. 1 Part A.1.3 (“A sentencing system tailored to fit every conceivable wrinkle of each case would quickly become unworkable and seriously compromise the certainty of punishment and its deterrent effect.”).
Even if I were to find adequate the district court’s deterrence-based rationale for varying from the Guidelines, I still would not affirm the district court’s judgment. The majority held that it need not consider the district court’s argument that firearms create a greater risk of harm in more densely populated areas because the sentencing judge’s deterrence rationale provided “an independently sufficient justification for its variation from the Guidelines.” Maj. Op. at 195-96. But nothing in the record demonstrates that the district court would have increased the sentence to the same extent based solely on the deterrence rationale. We should not encourage district courts to compile catalogs of possible justifications for their sentences in the hope that appellate courts will sift the wheat from the chaff in pursuit of a valid reason to affirm.
Appellate courts must not abdicate their responsibility to ensure that sentences are based on sound judgment, lest we return to the “shameful” lack of parity, S.Rep. No. 98-225, at 65 (1983), as reprinted in 1984 U.S.C.C.A.N. 3182, 3248, which the Guidelines sought to remedy. Gut feelings about regional differences can be subjective in dangerous ways. Empirical data should be scrutinized because they make subjective feelings appear plausible, even when the analysis suffers from significant flaws. We should therefore have vacated the sentence and' remanded this case to the district court for reconsideration.
. The result of these failures was evident in a Second-Circuit study conducted prior to the Guidelines, in which trial judges were asked to sentence hypothetical offenders using identical presentence reports. Anthony Partridge & William B. Eldridge, The Second Circuit Sentencing Study: A Report to the Judges of the Second Circuit 1-3 (1974). The disparities were vast. Punishments for a bank robber ranged from five to eighteen years in prison. Id. at A-9. A seller of heroin was incarcerated from one to ten years depending on the judge. Id. at A-ll. The study concluded that the sentencing pattern displayed in this Circuit was "not one of substantial consensus with a few sentences falling outside the area of agreement. Rather, it would appear that absence of consensus is the norm.” Id. at 9.
. See, e.g., U.S. Sentencing Guidelines Manual § 2H4.1(b)(4) & cmt. n. 2 (defining "any other felony offense” with reference to "federal, state, or local law”); id. § 2K2.1(b)(2) & cmt. n. 6 (allowing for reduction in offense level if firearms were possessed solely for lawful sporting or collecting purposes, depending upon, inter alia, "the extent to which possession was restricted by local law”); of. U.S.S.C. Public Hearing Panel V, United States Sentencing Commission (Mar. 15, 2006) (Statement of John Rhodes, Federal Defenders of Montana), available at http://www.ussc. gov/hearmgs/03_15_06/0315USSC.pdf (opposing proposed Guidelines enhancement for firearms trafficking based on existence of "unlawful scheme” because "what’s an unlawful scheme in the District of Columbia may not be an unlawful scheme in Montana. So [under the proposed enhancement] ... you're going to run into the problem of reading regional disparity”).
. Likewise, in this case, when the district court varied from the Guidelines because of defendant-appellant’s advanced age and the “inverse relationship between age and recidivism,” the district court cited numerous cases, many of which, in turn, relied upon a recidivism study of over 6,000 individuals that was conducted in 2004 by the Sentencing Commission. Lucania,
. The statistics cited by the district court indicate that, in 2005 (when defendant-appellant was sentenced (Maj. Op. at 185)), the homicide rates per 100,000 people were as follows:
Population: One Million + 500K-999K 250K-499K 100K-249K
*221 Homicide Rate: 13.0 14.8 15.2 10.1
DOJ Homicide Statistics. These data indicate that, in 2005, the homicide rate for cities with populations of 250K-499K was approximately 17% greater than the homicide rate of the largest cities. Furthermore, it is noteworthy that New Orleans and Gary, Indiana, which did not even rank among the 30 most densely populated American cities (based on population per square mile) according to the resource relied upon by the district court, have had the highest homicide rates in the country. See National League of Cities, 30 Most Densely Populated Cities, http://www.nlc.org/abouL.cities/cities_101/187.aspx (last visited November 8, 2008); Rick Jervis, “New Orleans Homicides up 30% Over 2006 Level: City on Track to Retain Most-Murderous Label,” USA Today, Jan. 3, 2008. Yet, following Judge Raggi's reasoning (Concurring Op. at 208-09), a sentencing judge would be correct to infer a heightened risk of harm from firearms trafficking in a more densely populated but safer American city. But see Hanna Rosin, "American Murder Mystery,” The Atlantic, July/Aug.2008, available at http://www.theatlantic.com/doc/200807/memphis-crime (exploring why "America’s most dangerous spots” now include cities such as "Florence, South Carolina; Charlotte-Mecklenburg, North Carolina; Kansas City, Missouri; Reading, Pennsylvania; Orlando, Florida; [and] Memphis, Tennessee").
. In her concurrence, Judge Raggi cites several newspaper articles not relied upon by the district court as evidence of "the significant number of New Yorkers, many of them children, who are regularly injured by random gunfire.” Concurring Op. at 207. This parade of horribles is not limited to New York City. See, e.g., Jon Gambrell, "Curfew Widened in Crime-Ridden Arkansas Town,” Houston Chronicle, Aug. 17, 2008, at A8 (describing residents of Helena-West Helena sleeping on floors of their houses out of fear of stray bullets). In addition, a brief review of headlines from the city of New Orleans during the last eighteen months uncovered numerous articles describing victims of stray bullets, including the following:
— "New Orleans Police Blotter,” New Orleans Times-Picayune, Oct. 9, 2008, at 3 (“A 17-year-old girl was hit in the leg by one or more stray bullets fired by a stranger.”).
— Katy Reckdahl, "Woman with Gun Terrorizes Children,” New Orleans Times-Picayune, July 17, 2008, at 1.
— Maty Sparacello, "Housing Authority Reining in Parties: Kenner Shooting Leads to Regulations,” New Orleans Times-Picayune, Oct. 11, 2007, at 1 ("Three children, 7, 8 and 13, were struck by stray bullets” at birthday party for five-year-old twins.).
— Walt Philbin, "Man Carrying Baby Hit by Stray Bullets in Drive-By,” New Orleans Times-Picayune, July 14, 2007, at 1.
. The majority oversimplifies the economic incentives faced by firearms traffickers. In discussing deterrence, the majority focuses only on the severity of the penalty. But the expected cost of firearms trafficking is a function of both the sanction's magnitude and the probability of getting caught. See Richard A. Posner, Economic Analysis of the Law, § 7.2 (7th ed. 2007) ("An expected punishment cost of $1,000 can be imposed by combining a fine of $1,000 with a probability of apprehension and conviction of 1....”). In areas with strict local gun laws, firearms traffickers may face a greater risk of apprehension than in