Lead Opinion
Kеndrix D. Feemster was convicted of two counts of knowingly and intentionally distributing crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(l)(B)(iii). At sentencing, the district court
I. Background
On March 16, 2004, Feemster sold 11.2 grams of crack cocaine to an undercover Drug Enforcement Administration (DEA) agent. Then, on March 25, 2004, he sold 6.8 grams of crack cocaine to the same officer. Thereafter, a grand jury charged Feemster with two counts of knowingly and intentionally distributing crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(l)(B)(iii).
Prior to sentencing, the United States Probation Office prepared a presentence investigation report (PSR) that set forth Feemster’s criminal history. According to the undisputed sections of the PSR,
ing, and second-degree burglary. Additionally, Feemster had the following adult convictions and sentences: (1) at age 16, possession of a controlled substance (crack cocaine) and possession of marijuana, resulting in a suspended sentence and probation, which he successfully completed; (2) at age 17, first-degree burglary, resulting in a sentence of six years’ imprisonment (including citations for conduct violations on 65 separate occasions), from which he was twice conditionally released and both times his conditional release was revoked (submitting a positive urine test for marijuana); (3) at age 23, first-degree robbery (involving a handgun carried by his co-defendant), resulting in a ten-year suspended sentence and probation, which he violated; and (4) at age 24, possession of marijuana, resulting in a 60-day suspended sentence and one-year unsupervised probation.
Without enhancements, Feemster’s base offense level was 26, see U.S.S.G. § 2D1.1(c)(7), and his criminal history category was IV, resulting in an advisory Guidelines range of 92 to 115 months’ imprisonment. Feemster’s prior conviction for a felony drug offense triggered a statutory minimum sentence of 120 months’ imprisonment. See 21 U.S.C. §§ 841(b)(1)(B), 851. Also, Feemster’s adult status at the time he committed the instant offense and his prior convictions for two crimes of violence — first-degree burglary and first-degree robbery— prоmpted the probation office to recommend application of the career offender
At sentencing on March 10, 2005, Feemster requested that the district court consider a sentence lower than his Guidelines range, reminding the court that, absent his two qualifying crimes of violence, he would be facing a sentencing range of 92 to 115 months’ imprisonment. The district court acknowledged that Feemster committed one of these crimes at age 17 and the other at age 23. Additionally, the court noted that Feemster’s sentencing range had already increased from 92 to 115 months to at least 120 months by virtue of the mandatory minimum. The government argued that a 30-year Guidelines sentence was reasonable given Feemster’s criminal history. But the court disagreed, stating:
I think this sentence is too much. 360 is too much because the offense you’re counting on [for application of the ten-year mandatory minimum] is this 16-year-old drug offense for one when he was 16 years old. He’s only 24. The crimes of alleged violence were one at 17, burglary, and the other at 23, the robbery.
The comí then sentenced Feemster to concurrent 120-month sentences on each count of conviction, to be followed by three years of supervised release. On March 17, 2005, Feemster was brought before the court to correct the term of supervised release so that it met the statutory minimum of eight years. At the hearing, the court reiterated its rеasons for deviating from the Guidelines range, explaining:
And I know that there was some inquiry relative to Mr. Feemster’s sentence of 120 months, and I sentenced him there because in considering the defendant’s age, current age and age at which he committed the prior offenses including offense when he was 17-16 and 17 years old, and that’s why I gave him that sentence that he received.
The government appealed, and we remanded to the district court for resentencing, concluding that “the record at this time does not permit our court to undertake a meaningful analysis of whether the sentence imposed is unreasonable.” Feemster 1,
At resentencing, the district court further developed its reasoning for sentencing Feemster to 120 months’ imprisonment, stating:
Now, at the time that Mr. Feemster was sentenced!,] he was 27. At the time of the offense, ... he was 26.... Now, it’s unquestioned that Mr. Feemster was a troubled youth. As they say, “Youth is wasted on the young.” They just need a little wisdom. When he started getting ... these points!,] ... he was 17 years old.
In any event, [t]he [c]ourt has looked at the 3553(а) factors and at the time the instant offense was committed the defendant was 26 years of age, it involved the distribution of 18 grams of cocaine base to a federal agent. No weapon was present. And while the defendant does have a record and much of it is significant because of his being a troubled youth, it would seem it includes violent felony convictions, and that’s what madehim a career offender, and many — most of those ... prior convictions occurred when he was a juvenile.
Now, as [sic] his adult conviction[,] he’s placed on probation. He successfully completed that. Now, his second adult conviction involved the burglary of a home. And his third adult conviction was for robbery first degree which involved a weapon. However, his codefendant, Dean Goddard, who had the weapon and defendant did not. And his fourth and final conviction was a misdemeanor for possession of marijuana. He was placed on probation. He successfully completed that probation.
So to me I think this 360 months to life is еxcessive. I think it pretty much takes away Mr. Feemster’s life, so ... in light of these 3553(a) factors, so I think an aggregate term of 120 months to be served concurrently with his state sentence of 1 CR-2495A and eight years of supervised release would seem to address the sentencing objectives of punishment and deterrence and incapacitation. I think ... ten years and then eight years of supervised release, I think ... that’s 18 years right there that he will be under some kind of supervision by the court system.
The government appealed, and this court again remanded, finding that the district court abused its discretion by: (1) giving too much weight to Feemster’s young age at the time of his prior offenses; (2) substantially basing the variance on Feemster’s age at the time of the instant offense and sentencing; (3) considering Feemster’s lack of involvement with firearms, when such lack of involvement had already been accounted for in calculating Feemster’s Guidelines range; and (4) considering Feemster’s successful completion of two terms of probation, when failure to complеte his probation would have warranted further punishment. Feemster II,
II. Discussion
According to the government, Feemster’s 120-month sentence is procedurally unreasonable because the district court failed to provide an adequate explanation for the chosen sentence. In the alternative, the government argues that Feemster’s sentence is substantively unreasonable for a defendant who has a lengthy and serious criminal history and who has not shown that prior sentences have deterred him from criminal activity.
In response, Feemster argues that the Supreme Court’s decisions in Gall and Kimbrough v. United States,
“[A] district court should begin all sentencing proceedings by correctly cal
“When we review the imposition of sentences, whether inside or outside the Guidelines range, we aрply ‘a deferential abuse-of-discretion standard.’ ” United States v. Hayes,
A district court abuses its discretion when it (1) “fails to consider a relevant factor that should have received significant weight”; (2) “gives significant weight to an improper or irrelevant factor”; or (3) “considers only the appropriate factors but in weighing those factors commits a clear error of judgment.” United States v. Kane,
In the absence of procedural error below, we “should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Gall,
Post-GaZZ, appellate courts have begun to make their way across the new legal landscape of abuse-of-discretion sentence review. Like our sister circuits, we are endeavoring to determine what constitutes an abuse of discretion by a district court in sentencing a defendant outside of the Guidelines range. The Court in Gall expressly prohibited appellate courts from employing “rigid mathematical formulas” and an “extraordinary circumstances” test when reviewing the reasonableness of a sentence. Id. at 595. But the Court also expressly permitted appellate courts to “consider the extent of the deviation” from the Guidelines. Id. at 597. Additionally, the Court required that a district court “give serious consideration to the extent of any departure from the Guidelines and must explain [its] conclusion that an unusually lenient or an unusually harsh sen-fence is appropriate in a particular case with sufficient justifications.” Id. at 594. The parameters of these unusual deviations certainly have not been surveyed and mapped.
Here, the government argues that the district court committed procedural error and should be reversed. The government relies solely on its allegation that the court failed to provide an “adequate explanation” for imposing a 120-month sentence, but it specifically disclaims any argument that the district court considered irrelevant factors in fashioning the sentence. Appellant’s Supplemental Brief at 9, 12. According to the government, factors such as “Feemster’s age at the time of the instant offense, the absence of a weapon in the instant offense, and Feemster’s allegedly ‘successful completion’ ... of the terms of probation for some of his prior offenses” are factors that “appear to fall within the extremely broad ambit of Section 3553(a), which includes ‘the nature and circumstances of the offense and the history and characteristics of the defendant.’ ” Id. at 12 (quoting 18 U.S.C. § 3553(a)(1)). Furthermore, the government concedes that “because the various sentencing considerations set forth in Section 3553(a) overlap to a considerable degree, a fact that is already taken into account in the computation of a defendant’s advisory Sentencing Guidelines range ... may also be relevant to other subsections of Section 3553(a).”
Given these concessions, we will restrict our review to whether the district court adequately explained its chosen sentence. According to the government, the district court’s sentence is “procedurally unreasonable for want of an adequate explanation” because
despite Feemster’s prior convictions for crimes of violence and his multitude of lesser violations, citations, and arrests, the district court sentenced Feemster in 2006 to the same statutory mandatory minimum that the court would have been required to impose had Feemster been a model citizen during the interval between Feemster’s first felony cocaine base conviction and his conviction in the present case. Under those circumstances, the district court’s abrupt announcement of a 120-month sentence, along with its unadorned statement that the Guidelines range of “360 months to life is excessive” ... is procedurally unreasonable for want of an adequate explanation.
Id. at 17-18.
We. disagree. The record reflects that the district court provided, as our precedent requires, substantial “insight into the reasons for its determination.” Kane,
The district court did not turn a blind eye to the defendant’s conduct but ac
With regard to substantive reasonableness under § 3553(a), we agree with the D.C. Circuit thаt because the Guidelines are now advisory only, “substantive appellate review in sentencing cases is narrow and deferential. As the case law in the courts of appeals since Gall demonstrates, it will be the unusual case when we reverse a district court sentence — whether within, above, or below the applicable Guidelines range — as substantively unreasonable.” United States v. Gardellini,
III. Conclusion
Accordingly, we affirm the judgment of the district court.
Notes
. The Honorable Charles A. Shaw, United States District Judge for the Eastern District of Missouri.
. Although Feemster was originally charged with three counts, the district court dismissed one count, based on a March 11, 2004 sale of 5.7 grams of crack cocaine to an undercover DEA agent, on the government’s motion to protect the confidentiality of one of its informants.
. Because Feemster did not object to the PSR’s specific factual allegations, we accept as true the facts set forth in the PSR. See United States v. Jenners,
. The Third Circuit recently expressed its frustration with the current sentencing regime, stating: "We do not pretend that the foregoing observations provide much, if any, guidance. Indeed, we find it difficult to give direction when we are ourselves endeavoring to understand our role in reviewing sentences after Booker, Rita, Gall, and Kimbrough.” United States v. Levinson,
On the one hand, we are told that proportionality between the extent of a variance and the extent of the justification for the variance is not required,128 S.Ct. at 595 (rejecting an approach "that uses the percеntage of a departure as the standard for determining the strength of the justifications required for a specific sentence”), while, on the other hand, we are advised that a major variance “should be supported by a more significant justification than a minor one,” id. at 597.
Id. at 197 n. 6.
. Additionally, the government notes that, although the district court "found that Feemster had successfully completed two terms of probation, the record does not reveal that Feemster successfully completed either term.” Id. at 16. While the government has conceded that it is only challenging the adequacy of the district court’s explanation, this argument seems to challenge the district court's factual findings. Nevertheless, we find that the district court’s findings that Feemster successfully completed probation on his first adult conviction and his “fourth and final conviction” for "misdemeanor for possession of marijuana” are supported by the PSR. Paragraph 46 of the PSR states that Feemster was placed on probation for possession of a controllеd substance (crack cocaine) and possession of marijuana. Paragraph 49 states that "[c]ourt records do not reflect any probation violations.” As to Feemster’s fourth conviction for possession of marijuana, ¶ 59 of the PSR states that he was “placed on probation for one year.” Paragraph 62 states that "[¡Information regarding probation adjustment is unavailable because the probation was unsupervised.” Although ¶ 62 does not definitively state that Feemster successfully completed this probation, the government presented no evidence that he did not. Thus, the district court was permitted to draw the inference that Feemster successfully completed his probation.
Concurrence Opinion
concurring.
Before reaching the issue of substantive reasonableness, we “must first ensure the district court committed no significant procedural error.” Gall v. United States,
The majority’s opinion leaves intact this court’s precedent that an abuse of discretion occurs when a district court “gives significant weight to an improper or irrelevant factor.” See Majority Opinion at 461 (quoting United States v. Kane,
In the panel opinion, we reasoned the district court’s basing the downward variance substantially on Feemster’s age at the time of the instant offense (26) and sentencing (27)
The Guidelines provide, “[a]ge (including youth) is not ordinarily relevant in determining whether a departure is warranted.” U.S.S.G. § 5H1.1, p.s. As we noted in [United States v. Feemster,483 F.3d 583 (8th Cir.2007) (Feemster II) ], “[although the Guidelines are no longer mandatory, the Guidelines policy statements still must be taken into account in fashioning a reasonable sentence.” Feemster II,483 F.3d at 590 (citing 18 U.S.C. § 3553(a)(5)). A variance resulting in an “unusually lenient” sentence should not be based largely on the twenty-something age of the defendant, because relative youth is a factor that applies to many defendants and it is unlikely district courts will uniformly adopt the view that defendаnts in their mid-twenties deserve more lenient sentences than middle-aged or older defendants. See id. (citing United States v. Plaza,471 F.3d 876 , 879 (8th Cir.2006) (quoting United States v. Maloney,466 F.3d 663 , 669 (8th Cir.2006))).
United States v. Feemster,
The government now concedes Feemster’s age is part of his “history and characteristics” under 18 U.S.C. § 3553(a)(1), and, therefore, the district court properly considered Feemster’s twenty-something age in fashioning Feemster’s sentence. However, the fact Feemster’s age is part of his “history and characteristics” does not necessarily mean Feemster’s age is a “characteristic” that is relevant for sentencing purposes and potentially to support a significant variance. Feemster’s age does not distinguish him in any meaningful way from other defendants. In fact, 34.1 % of all males arrested in the United States in 2007 were between the ages of 20 and 29.
On rehearing the government acknowledges the district court did not commit procedural error by considering the absence of a weapon in the instant offense, or the fact Feemster’s co-defendant carried a weapon during a prior robbery while Feemster did not. The government now concedes the district court properly considered the absence of a weapon as part of the “nature and circumstances of the offense” under 18 U.S.C. § 3553(a)(1). However, the fact Feemster did not carry a weapon during the instant offense is not a “circumstance[ ] of the offense” that is relevant to whether a downward variance is warranted. Otherwise all other nonexistent crimes and facts should be considered as “circumstances of the offense” too; for example, Feemster did not also possess or distribute methamphetamine or ecstasy, or commit murder, rape, mail fraud, tax evasion, kidnaping, burglary, or a host of other crimes during the commission of the instant offense. Feemster could have committed the instant offense in countless more egregious ways. To the extent the various crimes Feemster did not commit were “[ljogically connected and tending to prove or disprove a matter in issue” related to Feemster’s sentence, the absence of these crimes were all taken into account in calculating Feemster’s Guidelines range. Neither Gall nor the majority opinion “overrule^] our circuit precedent ... that ‘[t]he absence of grounds that justify further рunishment is not a ground for a downward variance.’ ”
Finally, but for the government’s concession, I would conclude Feemster’s completion of two terms of probation, on balance, was not a significantly relevant consideration or a proper ground for a downward variance in this case when compared to Feemster’s history of repeated probation and conditional release revocations, and numerous citations for prison conduct violations.
In my view, the district court committed significant procedural error by substantially basing Feemster’s unusually lenient sentence on these three irrelevant and insignificant factors. However, accepting the government’s concession that all of the justifications given by the district court for Feemster’s sentence were relevant and proper sentencing considerations, I am left
. The majority notes the district court considered the fact Feemster’s criminal career began at age 17, see Majority Opinion at 463-64, but does not mention the district court substantially based the variance on Feemster’s age at the time of the instant offense and sentencing. See United States v. Feemster,
. United States Department of Justice, Federal Bureau of Investigation, Criminal Justice Information Services Division, Table 39— Crime in the United States 2007, http://www. fbi.gov/ucr/cius2007/data/table_3 9 .html.
. University of Albany, Sourcebook of Criminal Justice Statistics Online, Table 6.33.2007, http://www.albany.edU/sourcebook/pdf/t 6332007.pdf.
. The district court also made a clearly erroneоus determination, thereby committing procedural error, when it determined Feemster deserved a downward variance because Feemster's co-defendant possessed the weapon during a prior robbery rather than Feemsler. See Feemster II,
. Further, the record is not clear Feemster successfully completed his one-year term of probation for his fourth conviction, which was counted by the district court as a successful completion. The probation term began February 9, 2004, and Feemster was later charged with distributing crack cocaine in March 2004 and was found guilty of that March offense in December 2004.
Concurrence Opinion
concurring.
Our decision portends what Congress once considered unwarranted disparity in the sentencing of federal сriminal defendants, but I agree that the result follows from the Supreme Court’s decisions in United States v. Booker,
In Booker, the Supreme Court held that certain applications of the mandatory federal sentencing guidelines violated the Sixth Amendment, and adopted a remedy that rendered the guidelines essentially advisory in all cases. The courts of appeals were charged with conducting appellate review to determine whether a sentence was substantively “unreasonable.” Responding to statements in Booker that reasonableness review was designed “to move sentencing in Congress’ preferred direction, helping to avoid excessive sentencing disparities,”
In Gall, however, the Supreme Court held that proportionality review of sentences imposed under § 3553(a) was contrary to Booker and its interpretation of the Sixth Amendment. Gall,
Substantive reasonableness review endures, so there must be at least a “shocks the conscience” sort of constraint on district judges, but this case is not in that category. Cf. Rita v. United States,
One consequence of thеse recent developments is likely to be substantial sentencing disparity in federal criminal cases. District judges are supposed to “take account of sentencing practices in other courts,” Kimbrough,
In the 1980s, a bipartisan majority in Congress viewed a similar state of affairs as unacceptable, and opted to remove a substantial degree of discretion from sentencing judges in the interest of uniformity. The Senate Judiciary Committee explained the problem this way:
The absence of a comprehensive Federal sentencing law and of statutory guidance on how to select the appropriate sentencing option creates inevitable disparity in the sentences which courts impose on similarly situated defendants. This occurs in sentences handed down by judges in the same district and by judges from different districts and circuits in the Federal system. One judge may impose a relatively long prison term to rehabilitate or incapacitate the offender. Another judge, under similar circumstances, may sentence the defendant to a shorter prison term simply to punish him, or the judge may opt for the imposition of a term of probation in order to rehabilitate him.
S.Rep. No. 98-225, at 41 (1983) (internal footnotes omitted), reprinted in 1984 U.S.C.C.A.N. 3182, 3224.
The Committee found that much of the variation in sentencing was “directly attributable to the fact that some judges tend to give generally tough or generally lenient sentences,” id. at 44, and that “variation in offense and offender characteristics does not account for most of the disparity.” Id. at 45; Because the Committee believed that “[sjentencing disparities that are not justified by differences among offenses or offenders are unfair both to offenders and to the public,” id., it recommended that “[fjederаl statutes should provide clear guidance to Federal judges on how to select from among the available alternatives an appropriate sentence to impose upon the particular defendants before them.” Id. at 49. These observations led to the Sentencing Reform Act of 1984 and the mandatory guidelines.
Thoughtful critics of the Sentencing Reform Act have referred to the mandatory guidelines as a “failed experiment,” e.cj., United States v. Canania,
The irony is that the Court chose its remedy in Booker on the view that the advisory guidelines would “deviate less radically from Congress’ intended system” than would retention of the mandatory guidelines without judicial factfinding. Booker,
. The government correctly acknowledges that Feemster's relative youth, nonuse of a weapon, and performance during prior terms of probation are within the wide range of matters that may be considered by a sentencing court under 18 U.S.C. § 3553(a), and that facts taken into account when computing an advisory guideline range also may be relevant to other subsections оf § 3553(a). As the government also notes, however, the district court made a dubious finding that Feemster successfully completed a one-year term of probation imposed in February 2004, given that Feemster was convicted in this federal case for distributing crack cocaine in March 2004. Cf. ante, at 463 n. 5. Nonetheless, the government did not object to the court's reliance on this finding, and under a plain error standard of review, I see no reasonable probability on the record as a whole that the district court would have selected a longer term of imprisonment without its observation about this term of probation.
. Kimbrough v. United States,
. Early results after Gall and Kimbrough show that sentence disparities are aggravated further by policy disagreements among sentencing judges about what sentence best reflects the § 3553(a) factors in mine-run cases. For example, some district judges now agree with the advisory crack cocaine guidelines (which apply a crack-powder ratio ranging between 25-to-l and 80-to-l), and apply them under § 3553(a). See United States v. Haigler, No. 08-3165,
Dissenting Opinion
dissenting.
Because I agree with the government that the district court failed to adequately explain the 240-month deviation, and because the resulting 120-month sentence is substantively unreasonable, I respectfully dissent.
First, I agree with the court that whether we are reviewing sentences within or without the Guidelines range, we apply a deferential abuse-of-discretion standard, ensuring first that no procedural error occurred and if none, considering the substantive reasonableness of the sentence. Ante at 461; Gall v. United States,
I agree with Judge Riley that the district court committed significant procedural error by substantially basing Feemster’s unusually lenient sentencе on three irrelevant and insignificant factors — youth, absence of weapon, and successful completion of probation. The repeated and redundant use of these factors does not adequately explain nor support the great variance in this case. And, I do not so willingly credit the government’s “concessions” (which is a misnomer, as I see it, for the government’s mere articulation of its argument) as a barrier to reversal in this case.
Gall’s directives leave no doubt that “meaningful appellate review” remains intact.
If Feemster is a case for affirmance, then surely there is no reversal on the appellate horizon in this circuit. Feemster’s litany of juvenile and adult convictions, see United States v. Feemster,
Even though the district court bolstered its justification for the departure by mentioning Feemster’s “record” and “violent felony convictions,” repeated use of Feemster’s age remained the obvious driving force behind the fashioning of this sentence. We should not allow such circumlocution to guide our appellate review. By giving this sort of action free rein without meaningful review, sentencing courts that mention a few words based upon § 3553(a) requirements have obtained a license for capriciousness. Merely acknowledging a consideration of § 3553(a) factors is not enough. Ante at 463-64. The court does not seriously attempt to analyze the district court’s reasoning and in the end, does not adequately address how the district court’s three justificatiоns “sufficiently” support the resulting 240-month deviation. Gall,
At bottom, I am left with a “definite and firm conviction” that this sentence is outside the realm of reasonableness dictated by the facts of the case. United States v. Autery,
. Without substantive change in the governing statutes and the Guidelines, our current review is a 180-degree turnaround from our days of near micro-management. United States v. Robinson,
. I firmly believe, based upon almost five years of experience as a federal trial judge and the sentencing, pre-Guidelines, of at least 500 federal felons, that the "disparity principle," advanced by advocates as the foundation and bedrock underlying federal guideline sentencing, is an illusion, by at least half. Virtually every individual presents a different picture to a careful and conscientious sentencing judge. As a result, alleged uniformity is often disparity, viewed through a different prism.