Lead Opinion
GIBBONS, J., delivered the opinion of the court, in which ALARCÓN, J., joined. MOORE, J. (pp. 578-79), delivered a separate dissenting opinion.
OPINION
Defendant-appellant David Zobel appeals his sentence for knowingly coercing and enticing a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b).
For the reasons that follow, we vacate the part of the special condition that bans possessing or accessing “sexually suggеstive” materials, affirm the remainder of the sentence, and remand for resentencing proceedings consistent with this opinion.
I.
Beginning in approximately December 2008, Zobel engaged in a series of sexually explicit online chats with numerous minor females from around the country. Zobel resided in Ann Arbor, Michigan, and one of those minor females, J.C., resided in Xenia, Ohio. In January 2009, Zobel used online chatting and text messaging to persuade J.C. to perform oral sex on him. Zobel either knew that J.C. was under sixteen years of age or recklessly disregarded her age. J.C. was thirteen years old.
Early in the morning on June 2, 2009, Zobel exchanged a series of text messages with J.C. in which J.C. informed Zobel that she and a friend of hers, B.B., had run away from home. J.C. informed Zobel that B.B. was fourteen years old and “cute.” In fact, B.B. was only twelve years old. Zobel responded: “Maybe I should drive down and get you 2 a hotel room.... ” J.C. replied: “[I]f you come down here [B.B.] will do whatever you want.” The two fixed a place to meet in Xenia. Zobel then asked: “And u guys will do ANYTHING I want?”
Zobel then drove from Ann Arbor to Xenia to pick up the girls. Zobel drove them to a parking garagе in Toledo, Ohio, where he had both J.C. and B.B. perform oral sex on him. He also took pictures of the girls posing in their bras and with their bare breasts exposed. Zobel then gave each of the girls twenty dollars and left them in the parking garage.
Shortly afterwards, Toledo police found J.C. and B.B., who stated that a man named David had picked them up in Xenia and driven them to Toledo, where he had them perform oral sex on him. Police located Zobel and obtained a search warrant for his apartment. Agents discovered that around the time that Zobel was engaging in these sexual activities with minors, he was downloading child pornography onto his home computer from the Internet. He had downloaded at least sixty-one images of child pornography onto his computer.
Zobel was charged in a five-count indictment. Count one charged Zobel with knowingly persuading and enticing J.C., a minor, to engage in sexual activity, in violation of 18 U.S.C. § 2422(b). Count two charged a violation of the same statute for enticing B.B. to engage in sexual activity. Counts three through five charged Zobel with interstate travel with intent to engage in illicit sexual conduct with a minor, in violation of 18 U.S.C. § 2423(b). Pursuant to the plea agreement, Zobel pled guilty to count one of the indictment and the government agreed to move to dismiss counts two through five. In his plea agreement, Zobel agreed that a sentence of imprison
The Pre-sentence Investigation Report (PSR) set an adjusted offense level of 31, with a Criminal History category of I. Given the statutory minimum sentence for Zobel’s crime, this offense level yielded a Guidelines range of 120-135 months of imprisonment. The parties did not object to this calculation.
Prior to sentencing, the district court conducted a hearing at which Dr. David Roush, who had performed a psychological evaluation of Zobel for approximately six hours over two days, testified. Among other diagnоstics, Roush had administered the Static-99 test, which assists in predicting sexual and violent recidivism for sexual offenders by measuring ten risk factors. Roush added to his assessment two risk factors not present in the Static-99 — Zobel’s self-admitted addiction to pornography and his use of child pornography. Without these two additional risk factors, Zobel would have presented a low to moderate risk of recidivism, but with these factors, he presented a moderate to high risk of recidivism. Roush justified his addition of these two risk factors based on his twenty years of experience working with sexual offenders. Roush stated that although empirical data supported his decision to add these two risk factors, he could not cite and did not include in his report any supportive studies or research. Finally, Roush added that he was particularly concerned that Zobel, after J.C. initially told him she was sixteen years old, had researched the age of consent in Ohio and then, after he discovered that J.C. was actually underage, still engaged in sexual behavior with her and B.B.
The district court conducted a sentencing hearing two months later. At the sentenсing hearing, the district court began by observing that Zobel’s case was “somewhat different” in part because Zobel had “acted out against young children” while also accessing child pornography. It noted that Zobel, while not forcing himself upon the minors, had “carefully cultivated [and] ... manipulated them.” The court adopted the calculations of the PSR, agreeing that Zobel’s Guidelines range was 120-135 months.
After correctly calculating the applicable Guidelines range, the district court examined a number of the 18 U.S.C. § 3553(a) factors. It recognized Zobel’s need for treatment while incarcerated and considered whether Zobel’s sentence would be disproportionate to those of similarly situated defendants on a national level. The court then focused on Zobel’s history and characteristics and the nature and circumstances of the offense. In examining these factors, the court noted Zobel’s family background, as well as his self-admitted addiction to pornography and his use of child pornography. It also observed that the crime was “horrible” in part because the minors “had issuеs and problems of their own” — and Zobel “t[ook] advantage of the[se] vulnerabilities.”
The court then focused on “the safety of the community because in reality that’s what it comes down to.” In so doing, the court found that “Dr. Roush’s addition of two factors to the Static-99 is not contraindicated from the standpoint of a forensic psychologist.” Although the court remarked that it would have liked to have reviewed the authority upon which Roush relied to justify adding Zobel’s addiction to pornography and use of child pornography as risk factors, the court did note that
Drawing upon all of these observations, the district court sentenced Zobel to 150 months in prison — a 15 month upward variance above the upper-end of the Guidelines range. The court also imposed a number of special conditions. Zobel now challenges both his sentence of incarceration and these special conditions as procedurally and substantively unreasonable.
II.
Zobel argues that his 150-month, above-Guidelines sentence was procedurally unreasonable because the district court failed to adequately “explain why any of its cited reasons individually or in combination justified an upward variance.” As a general matter, we review the reasonableness of a sentence under the deferential abuse-of-discretion standard. United States v. Battaglia,
For a sentence to be proeedurally reasonable, “a district court must explain its reasoning to a sufficient degree to allow for meaningful appellate review.” United States v. Brogdon,
As a preliminary matter, we acknowledge that the district court’s written statement of reasons was sparse. On the statement of reasons form, the judge merely checked off a box indicating that he imposed an above-Guidelines sentence due to “the nature and circumstances of the offense and the history and characteristics of the defendant....” Standing alone, this statement of reasons would lack “the requisite level of specificity” and result in remand. See United States v. Blackie,
At the sentencing hearing, after correctly calculating the applicable Guidelines range, the district court examined a number of the § 3553(a) factors. It recognized Zobel’s need for treatment while incarcerated and considered whether Zobel’s sentence would present a disparity when compared nationally to the sentences of similarly situated defendants. 18 U.S.C. § 3553(a)(2)(D), (a)(6). The court then focused on Zobel’s “history and characteristics” and “the nature and circumstances of the offense.” See id. § 3553(a)(1). Regarding Zobel’s history and characteristics, the court noted Zobel’s supportive family background and musical talent, as well as his self-admitted addiction to pornography and his use of child pornography. Regarding the nature and circumstances of the offense, the court noted that Zobel pursued this “horrible” course of conduct after researching the age of consent in Ohio and knowing the victims were underage, that Zobel had ample time to reconsider going through with his actions, and that Zobel “cultivated” and “manipulated” minors who were particularly vulnerable. Perhaps most pointedly, relying upon Roush’s expert testimony, the court observed that “in reality ... what it comes down to” is “the safety of the community” and later concluded that “the bottom line is that [Zobel] does represent a moderate risk to the community.” See id. § 3553(a)(2)(C). In providing these reasons — and in particular emphasizing Zobel’s risk of recidivism and threat to the community — the district court explained its above-Guidelines sentence with a sufficient degree of specificity to survive a procedural reasonableness challenge on plain error review. See United States v. Klups,
It would have been preferable for the district court to have directly stated on the record that it was imposing a variance. But at the sentencing hearing, the court set forth the applicablе Guidelines range of 120-135 months — on which all parties agreed — and shortly thereafter imposed a sentence of 150 months. Under these circumstances, it was apparent to those present that Zobel was being sentenced to 15 months above the upper-end of the Guidelines, and we therefore find no reversible procedural error on these grounds. Cf. United States v. Denny,
Although the district court did not separately state how each of its observations about Zobel’s characteristics and crime— e.g., Zobel’s child pornography possession, the fact that he “cultivated” and “manipulated” two young victims, and most importantly the fact that he presented a public safety threat — supported the variance, we find no error because all of these factors supported the variance. As we have previously held, albeit in an unpublished case:
What [defendant’s] complaint comes down to, then, is whether the district court adequately explained why 12 months, rather than 10 months, was appropriate. Yet everything the court said in explaining the sentence ... justified a 12-month sentence and sufficed to explain why two months above the guidelines was appropriate. Under these circumstances, the failure of the court to add an explicit coda — to the effect that all of this justified a variance of two months — does not amount to reversible error.
Malone,
III.
We now move to the substantive reasonableness of Zobel’s 150-month sentence. “For a sentence to be substantively reasonable, it must be proportionate to the seriousness of the circumstances of the offense and offender, and sufficient but not greater than necessary, to comply with the purposes of § 3553(a).” United States v. Vowell,
As a preliminary matter, we note that Zobel received an upward variance of roughly eleven percent over the 150-month upper limit suggested by the Guidelines. Although the government did not seek an upward variance and the PSR recommended a sentence of only 130 months, this variance is relatively minor when compared to others that we have previously affirmed. See United States v. Stewart,
Zobel argues that the district court erred by considering factors already accounted for by the offense itself, improperly weighing certain factors, and taking into account inappropriate factors. He first contends that the district court’s observation that he “took advantage of the vulnerabilities” of the minors cannot justify a variance because 18 U.S.C. § 2422(b)— which prohibits a person from knowingly persuading a minor to engage in sexual
Zobel also argues that because he only persuaded the minors and did not engage in actual solicitation, his crime was “not more egregious than the minimum level of conduct necessary to secure a conviction.” In support, Zobel notes that J.C. herself asked Zobel to help them leave Ohio. However, the point is not whether Zobel could have more aggressively persuaded or solicited J.C.; it is — as the district court noted and the plea agreement established — that Zobel cultivated and manipulated J.C. over a series of months and maintained an inappropriate sexual relationship with her. These factors do render Zobel’s crime somewhat unique and suggest that his behavior does not embody merely the minimum level of conduct necessary to secure a conviction. Moreover, Zobel’s argument that he did not engage in “undue persuasion” downplays the part that he played in arranging the illicit rendezvous: it was Zobel who initially suggested renting a hotel room for the girls, Zobel who offered to drive to Ohio and pick them up, and Zobel who, months prior, encouraged J.C. to run away.
Nor can the district court be faulted for failing to consider that civil detention, if appropriate, would provide an additional check against Zobel’s recidivism upon release. See 18 U.S.C. § 4248. The potential use of civil commitment is not an explicit factor under § 3553(a) and Zobel did not raise this argument during sentencing. Further, the Director of the Bureau of Prisons and the Attorney General always have the authority to certify a sex offender as a “sexually dangerous person” and civilly commit him, a determination subject to judicial review. See 18 U.S.C. §§ 4247(a)(5); 4248(a). If this potential check on recidivism were enough to find Zobel’s upward variance unreasonable, then nearly every upward variance would be unreasonable, because civil commitment is always a potential option.
Finally, the district court did not place undue weight upon the safety of the community in crafting Zobel’s sentence. Zobel contends that emphasizing the public safety factor was problematic because the district court relied heavily upon Roush’s flawed psychological assessment and testimony, which elevated Zobels’ recidivism risk score by adding two risk factors — Zobel’s admitted addiction to pornography and use of child pornography. He specifically objects to Roush’s testimony because, on cross-examination, Roush stated that Zobel’s use of child pornography could only predict his use of child pornography in the future, not necessarily his future propensity to commit sexual offenses against minors. Nonetheless, the district court had reason to find Roush credible and rely at least in part on his testimony in concluding that Zobel presented a moderate public safety risk. Roush based his expert report on his examination of Zobel and his twenty years of experience working with sexual offenders. Additionally, Zobel did not introduce any expert testimony to rebut Roush’s conclusions. The mere fact that Roush’s responses during cross-examination appeared to undercut somewhat his decision to include Zobel’s addiction to pornography and use of child pornography as recidivism risk factors for further hands-on sex
In any event, we are not convinced that the district court relied too heavily on Roush’s Static-99 assessment because the district court cited other factors that contributed to its public safety analysis. For instance, the court noted that Zobel — after researching the age of consent in Ohio and after learning that both of the victims were minors — “still[] ... made the choice to engage in that inappropriate behavior.” It noted that this behavior was “very concerning.” In so observing, the district court echoed Roush’s testimony that these particular actions constituted an additional risk factor.
The district court certainly attached significant weight to public safety concerns, but “[a] district court does not commit reversible error simply by ‘attaching] great weight’ to a single factor.” United States v. Thomas,
IV.
We now consider whether the imposition of special conditions of supervised release was procedurally unreasonable. Because Zobel was asked if he had any objections to his sentence and he responded, “no,” we review the procedural reasonableness of the special conditions of supervised release for plain error. See Phillips,
In outlining its reasons for imposing the sentence of incarceration — from Zobel’s risk of recidivism to the fact that he “cultivated” and “manipulated” the young victims — the district court was also outlining the reasons supporting the conditions of supervised release. The sentencing transcript reveals the district court’s strong concern with protecting the public from someone who had sexually enticed minors, and barring Zobel from contacting minors and loitering where minors congregate would address this concern. Further, the district court concluded that access to pornographic materials increased Zobel’s risk of recidivism, and only a slight inference is required to conclude that, in banning these materials, the district court sought to reduce Zobel’s risk of recidivism and protect the public. Thus, when the district court discussed the § 3553(a) factors and its reasons for imposing the prison sentence, it was also discussing the reasons for imposing special conditions. See id. These factors — of which public safety was most prominent — are “relevant” to the conditions imposed by the district court “and make the basis of its decision sufficiently clear on the record to permit reasonable appellate review.” See id. (internal quotation marks omitted). Whether these conditions were in fact warranted is a question of substantive reasonableness, but the district court’s overarching rationale in imposing them — public safety — is certainly adequate to allow for meaningful appellate review. Indeed, Zobel’s case is far afield from those in which we have remanded because the imposition of special conditions was procedurally unreasonable. See, e.g., United States v. Inman,
V.
We finally consider whether the special conditions of supervised release
(1) is reasonably related to specified sentencing factors, namely the nature and circumstances of the offense and the history and characteristics of the defendant, and the need to afford adequate deterrence, to protect the public from further crimes of the defendant, and to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(2) involves no greater deprivation of liberty than is reasonably necessary to achieve these goals; and
(3) is consistent with any pertinent policy statements issued by the Sentencing Commission.
United States v. Ritter,
A.
The government argues that Zobel’s challenge to the special conditions is not ripe for review because it is likely that Zobel will receive treatment during his 150-month incarceration that could affect the propriety and need for imposing such conditions. This argument is unconvincing.
Generally, “conditions of supervised release may be ripe for appellate review immediately following their imposition at sentence.” United States v. Lee,
B.
Zobel chаllenges as substantively unreasonable three of the special conditions of supervised release that the district court imposed: (1) the “no contact with minors” condition; (2) the anti-loitering provision; and (3) the prohibition on possessing or viewing pornography or sexually explicit or suggestive materials.
1. “No contact with minors” condition
The first condition that Zobel challenges bars him from having any contact with minor children under eighteen years old, even if supervised, unless he secures prior court approval. The condition does not bar mere incidental interactions with minors. Zobel argues that this condition is a greater deprivation than is necessary to effect the goals of sentencing because seeking judicial approval prior to having even supervised contact with minors could affect his ability to earn a living as a self-employed musician who depends on teaching and performing music.
We have rejected arguments similar to Zobel’s in the past. In United States v. Lay,
Zobel further argues that this condition would restrict his ability to have contact with his own children, should he one day become a father. We have recognized “that parents have a fundamental liberty interest in the custody of their children,” Eidson v. Tenn. Dep’t. of Children’s Srvs.,
2. Anti-loitering condition
Zobel also objects to the anti-loitering provision, which states that “the defendant shall be prohibited from loitering where minors congregate, such as playgrounds, arcades, amusement parks, recreation parks, spоrting events, shopping malls, swimming pools, etc.” Zobel argues that the condition is unconstitutionally vague and that it does not clearly advance the goals of rehabilitation, deterrence or public safety. Neither argument is compelling.
First, provisions that include anti-loitering language have withstood vagueness challenges. See United States v. Oliphant,
Second, because Zobel was convicted of sexual enticement of a minor, prohibiting Zobel from loitering near places where children congregatе is reasonably related to the goal of public safety. Even defendants whose crimes involved no physical contact with minors have been bound by anti-loitering provisions like the one here. See United States v. Rearden,
3. No possession of pornography or sexually explicit or suggestive materials condition
Finally, Zobel contends that the condition barring him from possessing pornography or sexually explicit or suggestive materials is unconstitutionally vague and overbroad. The condition reads in full:
The defendant shall not possess or view pornography of any kind. The defendant shall not view, listen to, or possess anything sexually explicit or suggestive, including, but not limited to, books, videos, magazines, computer files, and internet sites.
“As the Supreme Court recently observed, vagueness and overbreadth are distinct concerns, the first implicating the Due Process Clause and the latter the First Amendment.” United States v. Farhane,
We first consider the parts of this provision that ban “pornography” and “sexually explicit” materials and then consider the part that bans “sexually suggestive” materials.
a.
The circuits are divided as to whether bans on “pornography” or “pornographic materials” are unconstitutionally vague, and thus we cannot find plain error for imposing such a ban here. See Lantz,
We are also unpersuaded that the condition banning “pornography” and “sexually explicit” materials is overbroad as applied to Zobel. Bans on explicit material involving adults certainly raise First Amendment implications, United States v. Thielemann,
Zobel contends that this condition is overbroad because it is not reasonably related to the objectives of sentencing. But because the district court did not abuse its discretion in considering Zobel’s addiction to pornography a risk factor that increased his likelihood of recidivism, see Part III, supra, it did not commit plain error in banning the possession of such materials on grounds that doing so would decrease Zobel’s likelihood of recidivism. Indeed, Zobel appears to admit that the ban would decrease his likelihood to reoffend, but argues that his “chances of reoffending are not proportionally decreased” by the ban. However, a condition need not be perfectly proportionate to the objectives it seeks; it must only be “reasonably related ” to specified sentencing factors and “involve[ ] no greater deprivation of liberty than is reasonably necessary ” to achieve the goals of sentencing. 18 U.S.C. § 3583(d)(l)-(2) (emphases added).
And while we recognize that Zobel was not convicted of a crime involving child pornography, the paradigmatic case in which these bans are imposed, the question is not whether we would impose the same sentence; it is whether the district court committed plain error. Roush, the government’s expert, included Zobel’s self-admitted addiction to pornography as a recidivism risk factor. Despite the fact that Roush downplayed on cross-examination the connection between pornography
b.
Nonetheless, we vacate the part of this condition that bans materials that are merely “sexually suggestive.” This part of the condition is facially overbroad. The word “suggestive” means “giving a suggestion or hint.” Webster’s Third New International Dictionary 2286 (unabridged ed.1981). Thus, this condition would bar Zobel from possessing or viewing anything containing a mere hint or suggestion of sex — an extremely wide prohibition that, in today’s society, would extend to a host of both highbrow and mainstream literature, art, music, television programs, and movies. In Lantz, we recently struck down on plain error review a very similar condition that purported to ban any material that “alludes to sexual activity.”
Not only would such a ban [on possessing materials that allude to sexual activity] prohibit the defendant from reading significant parts of the Old Testament— Proverbs 7, The Song of Solomon, and II Samuel 11 come immediately to mind — it would encompass an enormous swath of literature, music, and other media. Indeed, [the defendant] arguably could not possess even a television— which broadcasts sexual allusion in everything from afternoon soap operas through prime time “drama” — or a radio — which subjects listeners to such things as annoyingly persistent advertisements for “male enhancement” products.
Id. The same logic applies here. Bans on “sexually suggestive” materials and those that “allude to sexual activity” are equally capacious and thus equally problematic. As in Lantz, the ban on “sexually suggestive” materials cannot survive plain error review because the error is “clear and obvious; it affects substantial First Amendment rights to receive information and to freely exercise religion; and it calls into question the fairness of the proceedings because of the severity of the restriction.” Id. (internal citations omitted). Thus, we vacate the part of this condition that bans Zobel from possessing or view
VI.
For the foregoing reasons, we vacate the part of the special condition that bars Zobel from viewing, listening to, or possessing anything that is “sexually suggestive.” However, we affirm the judgment of the district court in all other respects and remand for proceedings consistent with this opinion.
Notes
. On this point, Zobel argues that "[w]hile a truly honest, reasonable mistake [about the victim's age] might warrant a downward variance, an intentional disregard (or actual knowledge) of the age of the victim, does not warrant an upward variance, or even a sentence at the high end of the guideline range.” But even if this is true, Zobel took the time to research the age of consent and, before driving to Ohio in June 2009, knew the actual age of the victims. That Zobel had actual (as opposed to presumed) knowledge of both the law and the victims' ages was a factor that the district court could find "very concerning” and unique.
. Zobel contends that the district court erred in considering Zobel’s own admission that he is addicted to pornography. However, Zobel has failed to provide any support for this proposition, and persuasive authority suggests that a district court may properly consider a defendant’s own admission of his addiction to pornography when fashioning sentence terms. See United States v. Kosteniuk,
. Indeed, the crime committed in Lay was arguably less serious than Zobel's. In Lay, the defendant pled guilty to 18 U.S.C. § 2423(b), which carries no statutory minimum sentence, whereas Zobel pled guilty to 18 U.S.C. § 2422(b), which carries a mandatory minimum sentence of ten years.
Dissenting Opinion
dissenting.
A district court must state in open court and in a written statement of reasons the specific reason it is imposing an outside-guidelines sentence on a defendant. 18 U.S.C. § 3553(c)(2). Because the district court failed to state a specific reason for its fifteen-month upward variance both in open court and in its written statement of reasons, the district court committed plain error. The majority, however, nonetheless affirms. I respectfully dissent.
Section 3553(c)(2) imposes three procedural requirements in conjunction with the imposition of a sentence outside the guidelines range:
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 ... is outside the range ..., the specific reason for the imposition of a sentence different from that described [in the guidelines], which reasons must also be stated with specificity in a statement of reasons form____
§ 3553(c)(2). It is not in dispute that the district court failed to state in open court a specific reason for the fifteen-month variance or even that it was imposing a variance. It is further undisputed that the post-sentencing written statement of reasons also failed to identify a sufficiently specific reason for the stated variance.
Failure to adhere to these procedural requirements is a significant procedural error. Gall v. United States,
By failing to adhere to two of the three § 3553(c) requirements, the district court has precluded us from reviewing whether it relied upon a specific reason and whether invocation of this reason in imposing a variance is supported by the record. Our inability to engage in a meaningful review of the imposed sentence is illustrated by the majority’s guesswork in this portion of its opinion. Although it may be true that all of the § 3553(a) factors supported the fifteen-month variance, as is asserted by the majority, whether this was the basis for the given variance is nothing more than speculation. The district court could have relied upon any number of the § 3553(a) factors discussed at Zobel’s sentencing hearing in imposing his sentence, not to mention the universe of potential unenumerated or improper reasons. As
Moreover, this court has found plain error in a case with material facts that are indistinguishable from those at hand. In Blackie, we determined that the district court did not provide a specific reason for its outside-guidelines sentence when it failed to state expressly that the sentence was outside the guidelines range and to give a specific reason for the variance. Blackie,
The majority in this case attempts to distinguish Blackie by pointing to the fact that in Zobel’s sentencing hearing, the district court referenced the applicable guidelines range and engaged in an analysis of the § 3553(a) factors. These facts, however, are immaterial to the issue raised on appeal. Instead, these facts establish the already undisputed proposition that the district court properly effectuated the first of the three requirements under § 3553(c). The district court’s completion of one requirement, however, does not cure its failure to comply with the others, as a general discussion of the § 3553(a) factors neither allows an appellate court to engage in meaningful review of the variance nor promotes the perception of a fair sentence.
Even more grievous, though, than relying upon a broad discussion of the § 3553(a) factors to establish the specific reason for a variance is the majority’s insistence that a procedurally deficient document can cure a procedurally deficient sentencing hearing. Specifically, the majority contends that the written statement of reasons, which “[sjtanding alone, ... would lack the requisite level of specificity and result in remand,” can fill the gaps left open by the district court at the sentencing hearing that “can fairly be criticized for lack of specificity.” Majority Op. at 566, 568 (internal quotation marks omitted). When a district court fails to adhere to significant procedural requirements at two distinct stages of a sentencing, there are two bases for plain error. The majority’s conclusion — that one procedural error would result in plain error, yet two procedural errors produce a procedurally reasonable sentence — defies logic.
The district court committed plain error when it did not comply with the § 3553(c)(2) requirements that it state in open court and in its written statement of reasons the specific reason for imposing an outside-guidelines sentence. I would vacate and remand for resentencing, and, therefore, I respectfully dissent.