Lead Opinion
McKEAGUE, J., delivered the opinion of the court, in which SUTTON, J., joined. CLAY, J. (pp. 757-63), delivered a separate dissenting opinion.
OPINION
Defendant-appellant appeals from a judgment sentencing him to a prison term of twelve months and a day, followed by three years of supervised release. Appellant contends the district court erred by granting the government’s motion to strike its amended judgment of sentence, under which he had been sentenced to probation only. In addition, appellant contends the reinstated original sentence is procedurally and substantively unreasonable. Finding
I. FACTUAL AND PROCEDURAL BACKGROUND
This appeal stems from an illegal gambling enterprise known as “the numbers.” From 2000 to 2005, defendant James E. Houston, of Knoxville, Tennessee, and several co-conspirators ran an illegal gambling operation in the states of Alabama, Georgia and Tennessee that resembled a state lottery in many respects. Defendant, an otherwise legitimate and apparently successful businessman, served as the “bank” for the operation and derived substantial benefit from his participation.
In March 2006, a two-count bill of information was filed in the U.S. District Court for the Eastern District of Tennessee, alleging that defendant conspired to conduct an illegal gambling business involving a numbers lottery, in violation of 18 U.S.C. §§ 371 and 1955, and conspired to launder the proceeds of an illegal gambling operation, in violation of 18 U.S.C. §§ 1956(h) and 1957. Defendant pleaded guilty to both charges in April 2006. Pursuant to the plea agreement, defendant agreed to forfeit money and property obtained as a result of the gambling operation. The plea agreement includes the government’s acknowledgment that defendant had provided “substantial assistance” by encouraging his co-defendants to plead guilty, based upon which the government agreed to file a motion for downward departure pursuant to § 5K1.1 of the Sentencing Guidelines. The government further agreed to “represent to the Court that any lawful sentence that the Court deems appropriate is acceptable to the United States.” Plea Agreement ¶ 7, JA 57.
Defendant was sentenced by the district court on July 19, 2006. According to the presentence report (“PSR”) prepared by the Probation Department, defendant’s base offense level under the Sentencing Guidelines was 12. The PSR recommended a four-level increase due to defendant’s role as an organizer or leader of a scheme involving five or more participants, pursuant to § 3Bl.l(a) of the Guidelines. Defendant’s offense level was reduced by three levels due to his acceptance of responsibility. Defendant’s single prior misdemeanor conviction in 1990 placed him in criminal history category I. The resulting Guidelines sentencing range was 15 to 21 months. Defendant did not object to the PSR.
During sentencing, the district court noted that defendant had worked hard to establish himself as a businessman, had cooperated with the government, and had agreed to a substantial forfeiture of property. Accordingly, the court granted the government’s motion for downward departure. The court declined defendant’s request to impose a sentence of probation only, finding that defendant was the “organizer,” “the main man,” whom the other co-conspirators had trusted. Sentencing tr. pp. 16-17, JA 202-03. The court imposed a sentence of 12 months’ imprisonment on each count, the two sentences to run concurrently. This sentence, the court observed, would afford “adequate deterrence” and “just punishment.” Id. The court also imposed a supervised release term of three years. Upon request of defense counsel, the court changed the prison sentence to twelve months and a day so that defendant would be eligible for an earlier release from the Federal Bureau of Prisons. The court then asked if the parties had any objections to the sentence. Defendant did not object.
Accordingly, based upon my personal experience as well as following cases in this court since 1988, to the best of my personal knowledge, no individual who has pled guilty to involvement in an illegal gambling business, cooperated, and received a Motion for Downward Departure has ever been sentenced to a term of incarceration in the Northern Division of the Eastern District of Tennessee. This category of defendants, who have not been incarcerated, includes those who have been denominated as an organizer or leader under the guidelines.
Eldridge aff. ¶ 5, JA 128. The motion represented that the government “does not oppose this motion for reconsideration if the Court deems it appropriate to reconsider Mr. Houston’s sentence.” Motion ¶ 11, JA 125.
Three days later, without conducting a hearing, the district court issued a memorandum and order granting defendant’s motion. JA 148. The court confirmed that it had previously considered defendant’s history and personal characteristics raised in the motion for reconsideration. The court acknowledged, however, that it had not previously considered the sentencing disparities issue. After considering the “new information” presented by defense counsel and “independently researching” the matter, the court concluded that defense counsel was correct and that a term of incarceration was too harsh and greater than necessary to comply with the purposes of sentencing. Memorandum and Order pp. 2-3, JA 149-50. The court ordered that the judgment of sentence be amended by substituting a period of two years’ probation for the original prison term of twelve months and a day. The judgment of sentence was entered on July 31, 2006.
On August 3, 2006, the government moved to strike the amended judgment for three reasons: (1) because the court lacked authority to amend defendant’s sentence under Rule 35(a) of the Federal Rules of Criminal Procedure; (2) because defendant had misrepresented the government’s position on the motion for reconsideration; and (3) because the factual basis for the sentence reduction was inaccurate. The district court granted the government’s motion to strike the amended judgment on October 3, 2006. In a 10-page memorandum and order, the court explained that it had granted the motion for reconsideration and reduced defendant’s sentence for two reasons. First, the court had been persuaded by defendant’s new argument, as well as its own independent research, concerning the need to avoid unwarranted sentence disparities under 18 U.S.C. § 3553(a)(6). Memorandum and
When the government belatedly raised its objection through the motion to strike, explaining that the earlier, inaccurate representation of its position had been the product of a miscommunication, the court was constrained to acknowledge that it was without authority to correct the original sentence under Rule 35(a). Id. at 8-9, JA 177-78. The court nevertheless maintained that it had not fully considered the sentence disparities factor when it originally sentenced defendant. Id. at 9, JA 178. Further, the court acknowledged that the government’s opposition to the reduced sentence demonstrated that the record remained incomplete and inadequate to enable fair comparison of similarly situated defendants. Hence, the record remained insufficiently developed to permit a determination whether defendant’s twelvemonths-and-a-day prison term constituted an unwarranted disparity under § 3553(a)(6). Yet, being without authority to alter the originally imposed sentence, the court was “compelled to reimpose the sentence originally announced on July 19, 2006.” Id. at 10, JA 179. The amended judgment was entered on October 10, 2006 and this appeal followed.
II. ANALYSIS
A. Order Striking Amended Judgment
The district court concluded that it did not have authority to correct the originally pronounced sentence and therefore granted the motion to strike. Defendant contends that the district court erred when it granted the government’s motion to strike the amended judgment, insisting that the district court did have authority to correct “clear error” in the original sentencing. The asserted “clear error” the district court was asked to correct was twofold. See Memorandum in Support of Reconsideration pp. 4-6, JA 132-34. First, defendant contended the district court had not adequately explained why its consideration of two factors under 18 U.S.C. § 3553(a)(1) did not warrant a downward variance greater than three months. Specifically, these two asserted factors are “the nature and circumstances of the offense” (i.e., the fact that defendant grew up in a community where playing the numbers was culturally accepted); and “the history and characteristics of the defendant” (i.e., his strong familial relationships and his history of generosity to others and good citizenship). Id. Second, the district court was said not to have expressly considered, under 18 U.S.C. § 3553(a)(6), “the need to avoid unwarranted sentence disparities.” Arguing that these failures by the district court represented “clear errors” that were correctable by the district court, defendant now would have us vacate the order striking the amended sentence and remand the case to the district court for entry of the original amended sentence of two years’ probation.
Whether the district court had the authority to resentence defendant is a question of law subject to de novo review. United States v. Ross,
Rule 35(a) represents the only arguably applicable authority for correction of the original sentence in this case. It provides that, “[w]ithin 7 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error.” The authority to correct a sentence conferred by Rule 35(a) is “extremely limited.” United States v. Arroyo,
The original sentence imposed by the district court in this case was not marked by any arithmetical or technical error. Hence, the district court had authority to modify its original sentence only if it suffered from some other “clear error” that would have necessitated an appellate remand for re-sentencing. In granting defendant’s motion for reconsideration, the district court did not identify such an error. Rather, it relied on the government’s purported non-objection to reconsideration and the “new information” produced by defense counsel and confirmed by the court’s own independent research concerning sentences imposed on other “similarly situated” defendants in the Northern Division of the Eastern District of Tennessee. In other words, based on new information, the district court reconsidered, or changed its mind concerning, the extent of the appropriate downward adjustment from the low end of the advisory Guidelines sentencing range.
When the government belatedly lodged its objection, the district court characterized its amended sentence as having been premised on a “perceived misinterpretation of sentencing factors,” an error the district court conceded was beyond its power to correct, citing United States v. Durham,
The gravamen of defendant’s argument is that the district court’s failure to explicitly consider the required § 3553(a) factors constitutes “clear error” within the meaning of Rule 35(a), i.e., an error that obviously “would have resulted in remand by this Court.” Arroyo,
As a threshold matter, Vonner applied plain-error review, per United States v. Bostic,
Under plain-error review, relief is granted only under “exceptional circumstances.” Id. at 386. That is, defendant Houston would have been required to show “(1) error (2) that was ‘obvious or clear,’ (3) that ‘affected defendant’s substantial rights’ and (4) that ‘affected the fairness, integrity, or public reputation of the judicial proceedings.’” Id. (quoting United States v. Gardiner,
In Vonner, the en banc court applied plain-error review to the question whether re-sentencing was required where the district court had imposed a within-Guidelines sentence without explicitly stating why it denied the defendant’s request for a downward variance. The court acknowledged that the sentencing court’s explanation was not “ideal;” that it failed to specifically address all of Vonner’s arguments for leniency. Yet, the record demonstrated that the district court had considered the nature and circumstances of the offense and the history and characteristics of the defendant. Nothing in the record suggested that the sentencing court did not listen to, consider and understand every argument Vonner made. Citing Rita v. United States, — U.S. -,
Here, defendant Houston’s request for reconsideration was based on two asserted errors. First, he argued that the district court did not adequately explain why such circumstances as cultural acceptance of gambling, familial relationships, and his history of generosity were not deemed to merit a greater-than-three-months downward variance. Id. In response, the district court confirmed that it had fully considered these circumstances. Memorandum and Order p. 2, JA 149; Memorandum and Order p. 2, JA 171. Clearly, the district court’s mere failure to fully explain the extent of its consideration of sentencing factors, which it had in fact fully considered, could not have been viewed by the district court as plain error so affecting Houston’s substantial rights and impugning the fairness of the proceeding that appellate correction would have been clearly warranted. This conclusion is further buttressed, of course, by Vomer's holding on the merits of a similar adequacy-of-explanation challenge. The district court did not err, therefore, in its determination that this first basis for reconsideration did not constitute “clear error” that it had authority to correct under Rule 35(a).
The second basis for defendant’s motion for reconsideration was the district court’s failure to expressly consider the need to avoid unwarranted sentence disparities. The district court freely acknowledged that it had not fully considered this factor. Based on defense counsel’s affidavit, attesting to his knowledge and belief concerning sentences received by other gambling offenders in the area, the district court undertook confirmatory research and, in view of the government’s supposed non-objection, amended the original sentence. “In light of this new information,” the court explained, “[and][g]iving due weight to the [sentencing] factors, the court is now of the opinion that a sentence of twelve months and one day is greater than necessary ...” Memorandum and Order p. 3, JA 150. In other words, the district judge changed his mind in his application of the Sentencing Guidelines, thereby acting outside the bounds of his authority under Rule 35(a), as he later freely conceded.
Further, this sentence disparities factor was not mentioned in the PSR (to which defendant did not object), and neither party made an issue of the factor prior to or during the sentencing hearing. Because defendant did not preserve the issue per Bostic, an appellate challenge to the sentence on this basis would also have been subject to plain error review. It is also apparent that, since the sentence disparities factor had not been raised, it had not become a manifestly “relevant” sentencing factor at the time of sentencing and, per Vonner, the court’s failure to consider it could hardly have been viewed as “clear” or “plain” error, if error at all. See also United States v. Kirchhof,
In Simmons, moreover, the court specifically addressed the § 3553(a)(6) sentence
Here, the sentence disparities issue had not been raised by defendant at the time of sentencing and there was no reason to believe it was particularly relevant. When, post-sentencing, the sentencing judge was confronted with “new information” concerning sentencing practices in the vicinity, he believed that he had ignored this factor. In this belief, however, the sentencing judge misconceived the nature of the factor. “Subsection 3553(a)(6) is concerned with national disparities among the many defendants with similar criminal backgrounds convicted of similar criminal conduct.” Id. at 623 (emphasis added). This factor is designed to “ensure nationally uniform sentences among like offenders.” Id. Considering that one of the fundamental purposes of the Guidelines is to help maintain national uniformity in sentences, and considering that most sentences are within the Guidelines, the Guidelines themselves represent the best indication of national sentencing practices. Id. at 626.
Hence, by initially and correctly determining what defendant Houston’s advisory Guidelines range would be, the sentencing court necessarily — albeit implicitly and even unwittingly — took account of the national uniformity concern embodied in § 3553(a)(6). See id. Contrary to his own belief, the sentencing judge did not fail to consider the sentence disparities factor. The Supreme Court recently elaborated on this very point:
As with the seriousness of the offense conduct, avoidance of unwarranted disparities was clearly considered by the Sentencing Commission when setting the Guidelines ranges. Since the District Judge correctly calculated and carefully reviewed the Guidelines range, he necessarily gave significant weight and consideration to the need to avoid unwarranted disparities.
Gall v. United States, — U.S. -,
Moreover, the representations made by defense counsel in support of reconsideration, i.e., the representations that triggered the sentencing judge’s misapprehension that he had committed error, did not even implicate national sentence disparities. They pertained to local sentence disparities, which are not a concern of § 3553(a)(6). The district judge, in his discretion, might have considered local disparities to be a relevant consideration if timely raised. We cannot hold, however, that he clearly erred by failing to take such a non-mandatory consideration into account where it had not been timely raised.
We therefore conclude that neither of the asserted grounds for reconsideration presented the sort of clear error that
As a consequence of that order, the district court proceeded to re-impose the original sentence, sentencing defendant to a prison term of twelve months and a day. Defendant challenges this sentence as procedurally and substantively unreasonable.
B. Procedural Unreasonableness
Even though the sentence ultimately imposed represents a three-month downward variance from the low-end of the advisory Guidelines range, defendant contends the sentence is marked by procedural unreasonableness because the sentencing judge admitted that he failed to fully consider the § 3553(a)(6) sentence disparities issue. Had this factor been properly considered, defendant argues, it is evident that the sentencing judge would have granted a greater downward variance. That is, notwithstanding our holding that the district court did not “clearly err,” defendant maintains that the court “erred” by imposing a procedurally unreasonable sentence.
We review a judgment of sentence for reasonableness under an abuse-of-discretion standard. Gall,
As the above analysis makes clear, defendant Houston’s sentencing was not procedurally infirm. Again, because defendant did not timely object to the court’s failure to explicitly consider the matter of sentence disparities, and raised the issue only after sentencing, at a time when the district court was without authority to al
The first step in plain-error review is to determine whether the lower court erred. Did the district court commit procedural error? The district judge believed, post-sentencing, that he had failed to consider § 3553(a)(6) and that this failure constituted error, albeit not “clear error.” In the foregoing analysis, however, we have explained that it was the district judge’s belief, rather than the sentence imposed, that was erroneous. By correctly calculating defendant Houston’s Guidelines range, the district judge had necessarily taken into account the need to avoid unwarranted sentence disparities, viewed nationally. The matter of supposed local sentence disparities, brought to his attention post-sentencing, which he believed could be relevant, is not a matter within the contemplation of § 3553(a)(6). Notwithstanding the district judge’s post-sentencing misunderstanding about the nature of this sentencing factor, the sentence ultimately imposed is not procedurally infirm because he failed to consider an unassert-ed, non-mandatory factor.
Defendant also argues that his sentence is substantively unreasonable, i.e., greater than necessary to comply with the purposes of sentencing. Defendant need not have asserted a substantive-unreasonableness objection in the district court to preserve the issue for appeal. Vonner,
When conducting this review, the court will, of course, take into account the totality of the circumstances, including the extent of any variance from the Guidelines range. If the sentence is within the Guidelines range, the appellate court may, but is not required to, apply a presumption of reasonableness. [Rita v. United States, — U.S. -,127 S.Ct. 2456 , 2462-68,168 L.Ed.2d 203 (2007) ]. But if the sentence is outside the Guidelines range, the court may not apply a presumption of unreasonableness. It may consider the extent of the deviation, but must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance. The fact that the appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.
Gall,
Arguably, the presumption of reasonableness validated in Rita, as recognized in Gall, may not apply here, as the district court did not impose a sentence within the advisory Guidelines range, but granted a three-month downward variance from the low end of the range. See Phinazee,
We have already explained why the district court’s failure to explicitly consider § 3553(a)(6) was not a significant procedural error. Defendant maintains the sentence is substantively unreasonable because the three-month downward variance granted in the original sentence is insufficient. Defendant insists that the original amended sentence, imposing a two-year term of probation and no term of imprisonment, was sufficient to comply with the purposes of sentencing. This is said to be clearly evidenced by the fact that the district judge, when he believed he had the discretion to do so because the government had no objection, amended the sentence to eliminate incarceration. Defendant thus urges us to defer to the district judge’s exercise of discretion in the second of the three sentencing rulings, rather than the first and third.
The district judge’s ambivalence clearly stemmed in part from his misunderstanding about the government’s position, but
No one has challenged the correctness of the advisory Guidelines range identified by the district judge, being fifteen to twenty-one months. After identifying this range and deciding to grant the government’s motion for downward variance based on defendant’s substantial assistance, the sentencing judge engaged in a weighing of circumstances. The district judge expressly considered that defendant profited greatly from his unlawful conduct; that he conducted the illegal gambling business for over five years; that he was the organizer of this criminal enterprise and had persuaded other “good people” who trusted him to become involved; and that defendant had a prior criminal history — albeit not a terribly serious one. Hrg. tr. pp. 14-16, JA 200-02. The judge also took note of mitigating circumstances, i.e., that defendant had cooperated with the government and had agreed to forfeit substantial property to the government; that defendant had strong family ties and responsibilities; and that he had been a good citizen, supporting local civic organizations and helping others less privileged than himself. Id.; Memorandum and Order p. 2, JA 149. The district judge concluded that a prison sentence of twelve months and a day afforded “adequate deterrence” and “just punishment.” Hrg. tr. pp. 16-17, JA 202-03.
The district judge thus appears to have reasonably weighed the totality of the circumstances in arriving at a sentence. The district judge also appears to have reasonably justified the extent of the variance granted. Apart from his contention that the sentence is unreasonably long in comparison with sentences imposed on other local gambling offenders, defendant has not explained why this sentence should be deemed so unreasonably long as to constitute an abuse of discretion. Even if the local sentence disparities issue were deemed to have been timely raised below, the record was not sufficiently developed, as the district court recognized, to enable a sound determination that the other putatively comparable offenders were in fact similarly situated in all relevant respects. Defendant’s substantive-unreasonableness argument thus boils down to either (1) a contention that the sentencing judge should have weighed the circumstances differently, or (2) a mere allegation that the sentence is greater than necessary. Both contentions are beyond the scope of proper appellate review for substantive unreasonableness. See United States v. Sexton,
Defendant has not carried his burden of demonstrating that the sentence ultimately imposed represents an abuse of discretion. In fact, he has failed to identify a single Sixth Circuit case in which a sentence
III. CONCLUSION
Notwithstanding the confused nature of post-sentencing proceedings in the district court, we conclude that the sentence originally, and ultimately, imposed is marked neither by clear error that was correctable by the district court under Rule 35(a) of the Federal Rules of Criminal Procedure, nor by other procedural or substantive unreasonableness. Accordingly, we AFFIRM the judgment of the district court.
Notes
. The Ross court rejected the argument that a sentencing court has any inherent power to modify a sentence of imprisonment.
. This conclusion is further buttressed, as the district court ultimately recognized, by the fact that, in the sentencing context, "there is simply no such thing as a 'motion to reconsider’ an otherwise final sentence.” United States v. Dotz,
. In his reply brief, defendant argues that the government should have been deemed barred from moving to strike the amended sentence in the first place. In ¶ 7 of the plea agreement, defendant correctly asserts, the prosecution had agreed to accept “any lawful sentence that the Court deemed appropriate.” JA 57. The motion to strike did not contravene this promise, however. As the foregoing analysis demonstrates, the amended sentence was beyond the court’s authority to issue and was, to this extent, not a “lawful sentence.” See United States v. Moncivais,
. To be sure, defendant was free to argue for leniency, prior to or at the sentencing hearing, based on local trends in sentencing of gambling offenders. If he had so argued, it would have been within the district court's discretion to accept the argument as warranting an even greater downward variance. We hold simply that the sentence imposed is not procedurally unreasonable merely because the court did not consider a potentially relevant, but unasserted, non-mandatory sentencing factor.
. This case is distinguishable from United States v. Christman,
. In his separate opinion, our dissenting colleague strains to characterize the district court as confused and our affirmance as "astounding” and "inexplicable.” The characterizations are inapt.
Twice, the dissent describes the district court as having gotten "turned around.” In actuality, the "turned around” reference in the sentencing transcript, JA 188, does not evidence confusion in the sentencing proceeding at all. Rather, it is derived from a quip made by the district judge before the sentencing even began as he entered the courtroom and reacted, ostensibly, to the defendant and his counsel having seated themselves at the table ordinarily occupied by the Assistant U.S. Attorney. It was a trivial irregularity that played no role in the sentencing proceeding.
No less inaccurate is the dissent's description of our procedural-unreasonableness analysis as astounding and inexplicable. As explained in quite some detail, our affirmance is the product of rather ordinary application of plain-error review. Our dissenting colleague would prefer not to be constrained by plain-error review. Yet, as justification for avoiding the clear, well-established and binding teaching of Sixth Circuit rulings like Vonner and Bostic, the dissent cites no authority but an Eighth Circuit opinion, United States v. Ellis,
Dissenting Opinion
dissenting.
The sentence imposed by the district court in this case is a prime example of a sentencing proceeding gone awry. Indeed, the district court handed down a sentence which was rife with procedural error as a result of its failure to comply with § 3553(a), the Sentencing Guidelines, or Rule 35(a). In short, the sentence imposed by the district court was improper and legally deficient. Thus, it is incumbent upon this Court to vacate the sentence and remand for resentencing. Because the majority goes to great pains to avoid this basic duty in the face of obvious and repeated sentencing error, I respectfully dissent.
I.
A simple recitation of the facts in this case demonstrates that Houston’s sentence is procedurally infirm and should therefore be remanded for resentencing. In March of 2006, Houston entered into a plea agreement with the government whereby Houston agreed to plead guilty to the offenses enumerated in a two count bill of information. The bill of information alleged that Houston participated in a conspiracy to conduct an illegal gambling enterprise between 2000 and 2005 in violation of 18 U.S.C. § 371 as well as a conspiracy to launder the proceeds of an illegal gambling activity in violation of 18 U.S.C. §§ 1956(h) and 1957. Under the terms of the plea agreement, Houston agreed to forfeit upwards of $2 million in money and property and the government agreed to represent that Houston provided substantial assistance by truthfully describing his criminal activity and encouraging others to plead guilty.
Thereafter, on July 19, 2006, Houston appeared before the district court for sentencing where it appears that the district judge referred to the proceedings as having gotten “turned around.”
The district court, however, brushed Houston’s arguments aside without discussion and noted in a cursory fashion that Houston was “the organizer of this thing,” the “main man” of the gambling conspiracy, and that the sentence was imposed
[biased upon the nature and circumstances of the offense and the time it went on[,] plus your history of working hard, but you have been in a little trouble in your life, not much, but some. Based upon the Guideline range[,] which is what, 15 months, 15 to 21 months. Based upon the fact that you cooperated and the government has made a motion for downward departure under Sentencing Guideline 5K1.1....
(J.A. at 200) In the course of this explanation, the district court did not discuss the § 3553(a) factors in any meaningful way. Instead, following this terse explanation, the district court sentenced Houston to a term of 12 months and one day of imprisonment.
After sentencing, Houston filed a “motion for reconsideration of the court’s sentencing decision.” In the motion, Houston questioned the district court’s consideration of his individual characteristics, the adequacy of the district court’s explanation at sentencing, and the district court’s consideration of unwarranted sentencing disparities. Houston contended that the district court failed to consider unwarranted sentencing disparities because no similarly situated defendant — i.e., individuals who had been convicted of an illegal gambling offense and cooperated with law enforcement — had been sentenced to a term of incarceration by the United States District Court for the Eastern District of Tennessee. Houston, through counsel, averred that defendants in illegal gambling cases who cooperated with the government had routinely been sentenced to probation. Consequently, Houston argued that the district court should similarly impose a sentence of probation rather than a term of incarceration to avoid unwarranted sentencing disparities.
In response to the motion, the district judge stated that he had “considered” Houston’s personal characteristics and his history of civic engagement. The district judge, however, did not describe how he considered these characteristics or elaborate on his reasoning for the imposition of the initial 12 month sentence. Nevertheless, the district judge acknowledged that he had not considered “unwarranted sentencing disparities” and that Houston should be resentenced to a term of probation based on the sentences of similarly situated defendants. The district court reached this conclusion after conducting “independent research” and without any input or argument from the government. Although the district court said it knew it was on “questionable legal grounds,” the court amended Houston’s sentence to reflect a two year term of probation rather than 12 months of incarceration.
A few days later, apparently turned around once again, the district court reversed course and reinstated the 12 month and one day term of incarceration after an objection was lodged by the government. The government alleged that the district court was without jurisdiction to “reconsider” the sentence under Rule 35(a) of the Federal Rules of Criminal Procedure and that the factual basis upon which the district court made its revised sentencing determination was flawed. The district court agreed that it was without authority to resentence Houston and therefore struck the amended judgment. Thereafter, the district court reinstated Houston’s 12 month and one day sentence. The district judge, however, continued to maintain that
II.
Contrary to the conclusion reached by the majority, these facts demonstrate that the district court committed significant procedural errors that rendered Houston’s sentence unreasonable. To uphold such a procedurally infirm sentence, as the majority seems content to do, is to abdicate this Court’s responsibility to insure constitutionally sound sentencing practices.
Under Gall v. United States, — U.S. -, -,
First, during the initial sentencing there was no indication that the district court considered Houston’s arguments regarding his family, cultural history or philanthropy; nor did the district court engage in an adequate explanation of the rationale behind the sentence ultimately imposed. As the Supreme Court recently noted in Gall, “[a]fter settling on the appropriate sentence, [the district judge] must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.”
Indeed, the majority acknowledges that the district court did not “fully explain the extent of its consideration of [the] sentencing factors.” Slip Op. at 751. Astoundingly, however, the majority refuses to vacate and remand Houston’s sentence, finding no fault in the district court’s explanation, or lack thereof. This refusal to vacate Houston’s sentence flies in the face of well-settled precedent which holds that “[r]e-versable procedural error occurs if the sentencing judge fails to ‘set forth enough [of a statement of reasons] to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decision-making authority.’ ” United States v. Bolds,
Second, Houston’s sentence is rendered unreasonable by the district court’s admitted failure to consider unwarranted sentencing disparities pursuant to § 3553(a)(6). Post-Booker, district courts must independently “ ‘consider all of the § 3553(a) factors’ and ‘make an individualized assessment based on the facts presented.’ ” United States v. Sedore,
Although this Court noted in United States v. Simmons,
Lastly, Houston’s sentence was rendered procedurally infirm by the district court’s failure to comply with Rule 35(a) in its attempt to correct Houston’s sentence. Under Rule 35(a), “[wjithin 7 days of sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error.” Fed.R.Crim.P. 35(a). In the instant case, rather than rectifying the “clear error” committed during the initial sentencing, the district court compounded the error. In imposing the amended sentence, the district court failed to hear arguments from both Houston and the government regarding sentencing disparities or the other § 3553(a) factors. Further, the district court neglected to explain how it considered Houston’s arguments regarding his personal characteristics and history of philanthropy in Chattanooga. Thus, both in its initial imposition of the sentence, and in its attempt to correct the sentence initially imposed, the district court imposed a procedurally unreasonable sentence that warrants reversal.
III.
Despite the fundamental and obvious mistakes made by the district court during the sentencings, the majority inexplicably goes to great lengths to avoid remanding this case in order for Houston to be resen-tenced. As an initial matter, the majority argues that Houston’s failure to mention unwarranted sentencing disparities at the conclusion of his sentencing hearing subjects his procedural reasonableness challenge to plain error review on appeal under United States v. Vonner,
In another effort to avoid remanding Houston’s case for resentencing, the majority suggests that the district court did in fact consider unwarranted sentencing disparities because it considered the Guidelines. Contrary to the majority’s determination, the district court’s consideration of the Guidelines did not cure the district court’s failure to consider unwarranted sentencing disparities. Although the Guidelines represent the Sentencing Commission’s “rough approximation of sentences that might achieve § 3553(a)’s objectives,” including the need to avoid unwarranted sentencing disparities, the district court is required to independently assess and determine whether the § 3553(a) factors support the imposition of a particular Guidelines sentence. Rita,
Under the majority’s rendition of the district court’s responsibilities with respect to the § 3553(a) factors, however, a district court applying the Guidelines is free to ignore other factors such as the seriousness of the offense and unwarranted sentencing disparities because such factors are taken into account by the Sentencing Commission when fashioning the Guidelines. Not only does the majority’s view render § 3553(a)(6) superfluous, it bears a striking resemblance to the pre-Booker sentencing regime. Wilms,
IV.
I express no opinion as to what sentence should ultimately be imposed on Houston; however, inasmuch as the district court imposed a sentence that is procedurally infirm, I would vacate Houston’s sentence
. Contrary to the majority's contention, I do not entirely attribute the reference to the sentencing getting "turned around” to any "quip” made by the district judge on the record. Indeed, the improprieties that occurred in the instant case are not so easily captured by any one statement of the district court. Rather, it is clear from simply reading the entire record, including the initial sentencing transcript, that the sentencing was confused and thus the "turned around” reference is appropriate.
. The majority, relying on Simmons, dismisses the question of local or regional disparities, suggesting that they have no bearing on the district court’s consideration of unwarranted sentencing disparities. However, Simmons reaches no such conclusion. While Simmons stated that a district court could, in its discretion, consider sentencing disparities as between co-defendants, it was silent regarding the interaction between consideration of regional and national sentencing disparities.
. Although the majority dismisses the Eighth Circuit’s holding in Ellis as having no weight in this circuit, the persuasiveness of Ellis' logic is quite clear: where a defendant raises an objection to the district court through a Rule 35(a) motion and therefore gives the
Rather than address the wisdom of plain error review under the unusual factual circumstances presented in this case, the majority unthinkingly applies such review in its haste to affirm the district court. Such unre-flective application of plain error review not only undermines this Court’s duty to review sentences for reasonableness under Booker, it is inconsistent with the tenets of plain error review that the majority relies upon, as Ellis demonstrates.