Lead Opinion
This is the second appeal to come before us involving a sentence imposed on Jesus Rosales-Bruno because of his conviction for illegally reentering the United States in violation of 8 U.S.C. § 1326. In the first appeal we vacated his original sentence after concluding the district court had erred in finding that his prior Florida conviction for false imprisonment qualified as a “crime of violence” conviction for enhancement purposes under United States Sentencing Guidelines § 2L1.2(b)(l)(A)(ii). United States v. Rosales-Bruno,
On remand, the district court recalculated Rosales-Bruno’s advisory guidelines range without the crime of violence enhancement, which lowered it to 21 to 27 months imprisonment. After considering the sentencing factors in 18 U.S.C. § 3553(a), however, the court varied upward from the guidelines range, again imposing an 87-month prison term. That sentence was 60 months above the high end of Rosales-Bruno’s revised guidelines range but 33 months below the statutory maximum of 120 months imprisonment. The sole issue in this appeal is whether that sentence is substantively unreasonable.
I.
On August 4, 2007, Rosales-Bruno attacked his girlfriend, Edith Rodriguez. He shoved her into a stove, and when she tried to leave he punched her in the back and caused her to fall. When she fell he grabbed her by the face and pinned her between two beds. He then took out a cigarette lighter and threatened to burn her with it. Rosales-Bruno was arrested for that violent conduct.
Two months later, in October 2007, while he was out on bond, Rosales-Bruno attacked Rodriguez again. After pulling their 18-month-old daughter out of her arms, he punched Rodriguez at least five times and forced her into his car. She struggled and managed to escape, but Rosales-Bruno chased her down, threatened to kill her, grabbed her by the hair, pulled some of it out, and started choking her with his arm. When employees at a nearby business heard Rodriguez’s screams for help, Rosales-Bruno released Rodriguez but took the little girl with him when he fled from the scene.
In November 2007, an Indian River County, Florida court convicted Rosales-Bruno of assault and battery for the first attack on Rodriguez, sentencing him to fifteen days in jail and a year of probation. While awaiting trial for battering Rodriguez the second time, Rosales-Bruno failed to report to his probation officer,
Sometime in 2010, Rosales-Bruno crossed the border back into the United States in Arizona and then made his way back to Florida. In March 2011, he was arrested for violating probation on the April 2008 warrant. While he was in custody, Immigration and Customs Enforcement agents found that Rosales-Bruno was illegally in the United States after having been deported. As a result; he was indicted on one count of illegal reentry following deportation, in violation of 8 U.S.C. § 1826, the applicable penalty provision of which carried a statutory maximum sentence of 120 months. See 8 U.S.C. § 1326(b)(1). He pleaded guilty to that charge.
At his first sentencing for his illegal reentry conviction, Rosales-Bruno’s pre-sentence investigation report calculated his guidelines range as 70 to 87 months imprisonment. That range resulted in part from a 16-level enhancement of Rosales-Bruno’s base offense level under U.S.S.G. § 2L1.2(b)(l)(A)(ii) based on the PSR’s characterization of his 2008 Florida conviction for false imprisonment as a conviction for a “crime of violence.” Rosales-Bruno objected to that enhancement, contending that a false imprisonment conviction was not categorically a crime of violence within the meaning of that enhancement. He had also pleaded guilty to battery in connection with the same incident that led to the conviction for false imprisonment but, as we noted in our earlier opinion, battery under Florida law is not categorically a crime of violence either. See Rosales-Bruno I,
At that first sentence hearing, Rosales-Bruno also objected to the facts alleged in ¶ 30 of the PSR, which were taken from the police report filed in connection with his arrest for the crimes of false imprisonment and battery. He asserted that the police report was hearsay and that it was an inaccurate account of the events leading up to his arrest. His hearsay objection challenged only the court’s use of the police report’s facts “for the purpose of determining whether the [false imprisonment] conviction [was] a crime of violence.” Although he asserted that the report was not an accurate recitation of events, he conceded that the district court could consider the police réport “for the purpose of the sentencing” except on the issue of whether the § 2L1.2(b)(l)(A)(ii) crime of violence enhancement applied. Specifically, he said: “[I]t depends on what the Court is considering. The Court could review [the police report] for the purpose of the sentencing, but not for the purpose of determining whether the predicate conviction is a crime of violence.” The district court overruled Rosales-Bruno’s objections and sentenced him to 87 months imprisonment, the top of his guidelines range. He appealed that sentence, challenging the crime of violence enhancement
We agreed with Rosales-Bruno’s contention that false imprisonment under Florida law is not categorically a crime of violence. See Rosales-Bruno I,
Before Rosales-Bruno was resentenced, the probation office amended the PSR and recalculated his guidelines range without the 16-level crime of violence enhancement. The result was a range of 21 to 27 months. Even so, the district court imposed the same sentence as before, relying on the § 3553(a) factors to vary above the new guidelines range by 60 months. The court did so after conducting a full resen-tence hearing, during which it pointed to several factors supporting the upward variance under § 3553: (1) the history and characteristics of the defendant, (2) the need to promote respect for the law, (3) the need to provide adequate deterrence, (4) the nature and circumstances of the present offense, and (5) the need to protect the public. See 18 U.S.C. § 3553(a)(1), (a)(2)(A)-(C).
In determining that an 87-month' sentence was appropriate, the district court placed particular emphasis on. Rosales-Bruno’s criminal history. At the resen-tence hearing, the court read for the record the PSR’s descriptions of several of Rosales-Bruno’s prior convictions. Those descriptions detailed the crimes that led to his 2007 convictions for assault and battery and his 2008 convictions for false imprisonment and battery. Finally, the court read the PSR’s list of Rosales-Bruno’s 11 driving offense convictions, which included several DUI convictions.
Rosales-Bruno objected that the sentence was procedurally and substantively unreasonable.
II.
The district court’s task is to impose a sentence that will adequately (1) “reflect the seriousness of the offense,” (2) “promote respect for the law,” (3) “provide just punishment,” (4) “afford adequate deterrence,” (5) “protect the public from further crimes of the defendant,” and (6) provide the defendant with any needed training and treatment in the most effec
As the governing statute makes clear, id., and as we have explained in an en banc opinion, the advisory guidelines range is but one of many considerations that a court must take into account in exercising its sentencing discretion. See United States v. Irey,
To arrive at an appropriate sentence, the district court must consider all of the applicable § 3553(a) factors. United States v. Shaw,
The abuse of discretion standard is not de novo review; it is, instead, deferential. Because of that, when reviewing for an abuse of discretion we will sometimes “affirm the district court even though we would have gone the other way had it been our call.” Irey,
consider the extent of the deviation, but [we] 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*1255 appellate court might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.
Gall,
The reason we give district courts so much discretion in making sentencing decisions is that they have great advantages over appellate courts when it comes to sentencing. One reason is that they do it and we don’t. Because the district court conducts sentence hearings, it is in a better position to make sentencing determinations than we are. See id. As the Supreme Court has explained, “[t]he sentencing judge is in a superior position to find facts and judge their import under § 3558(a) in the individual case” because he “sees and hears the evidence, makes credibility determinations, has full knowledge of the facts and gains insights not conveyed by the record.” Id. at 51,
Another advantage that district courts enjoy when it comes to sentencing is that they have far greater sentencing experience than appellate judges, many of whom have never sentenced a single defendant for a single crime. (At the time he resen-tenced Rosales-Bruno, the district court judge had twenty years federal sentencing experience.) On a related point, the Supreme Court has pointed out that district courts “see so many more Guidelines cases than appellate courts do.” Id. at 52,
Given the great advantages that district courts enjoy when it comes to deciding the proper sentence, it would be strange if we didn’t review the substantive reasonableness of the sentences under a deferential abuse of discretion standard. See id. at 51,
In spite of the breadth of discretion they are given, district courts can and sometimes do abuse their discretion by imposing a sentence that is substantively unreasonable. Rita v. United States,
A district court abuses its considerable discretion and imposes a substantively unreasonable sentence only when it “(1) fails to afford consideration to relevant factors that were due significant weight, (2) gives significant weight to an improper or irrelevant factor, or (3) commits a clear error of judgment in considering the proper factors.” Irey,
III.
The sentence the district court imposed in this case is not substantively unreasonable. The court followed the spirit and the letter of the Supreme Court’s and our precedent and obeyed the applicable statutory provisions when it considered all of the § 3553(a) factors at sentencing. In addition to weighing the corrected advisory guidelines range, the court also gave weight to several of the other relevant § 3553(a) factors, including: (1) the history and characteristics of the defendant, (2) the need to promote respect for the law, (3) the need to provide adequate deterrence, (4) the nature and circumstances of the crime, and (5) the need to protect the public. After considering all of the other relevant § 3553(a) factors, the district court was convinced that they outweighed the corrected advisory guidelines range, which did not adequately capture Rosales-Bruno’s history and characteristics. It was for that reason the district court varied upward from the guidelines range.
The variance of 60 months above the advisory guidelines range was a major one. But the Supreme Court has forbidden us from presuming that a sentence outside the guidelines range is unreasonable. Gall,
The district court supported the 60-month variance with significant justifications, including, the facts of Rosales-Bruno’s earlier violent crimes. The sentence the district court imposed was 33 months below the statutory maximum of 120
The district court’s decision to vary upward from the corrected advisory guidelines range was within its substantial discretion. Regardless of whether we would have done the same thing if we had been the sentencer, the sentence was within the outer bounds of the district court’s substantial sentencing discretion — “in the ballpark of permissible outcomes.” Irey,
rv.
Neither Rosales-Bruno nor the dissent has pointed to any. precedent establishing that an 87-month sentence imposed for a crime like this one on a defendant with a criminal history materially identical to Rosales-Bruno’s is substantively unreasonable. The cases in which we have held sentences to be substantively unreasonable are materially different from this one. See infra at 1268 (citing the three decisions in which we have vacated upward variance sentences as unreasonable); App’x B (showing the twelve decisions in which we have vacated downward variance sentences as unreasonable).
Rosales-Bruno’s position that his sentence is substantively unreasonable is based on three contentions. First, he contends that the district court gave “significant weight to an improper factor” by resentencing him as though he had a prior crime of violence conviction qualifying him for a § 2L1.2(b)(l)(A)(ii) enhancement despite our holding in Rosales-Bruno I that the enhancement did not apply. Second, he contends that the district court gave unreasonable weight to his criminal history, which he asserts is not extensive enough to support a variance 60 months above the guidelines range. Third, he contends that the upward variance is unreasonable because his case does not fall outside the heartland of illegal reentry cases. See Irey,
A.
Rosales-Bruno’s first contention is that the district court gave significant weight to an improper factor by resentencing him as though he still had a prior crime of violence conviction for purposes of U.S.S.G. § 2L1.2(b)(l)(A)(ii). This contention implicitly assumes that the district court had to impose a lower sentence at resentencing because the guidelines range, which is one of the § 3553(a) factors, had been lowered. The dissent makes that contention explicit, arguing that when the only change between initial sentencing and resentencing is a decrease, in the advisory guidelines range, the district court must decrease the defendant’s sentence.
1.
At resentencing, the district court was required to correct the error involving the § 2L1.2(b) (1) (A) (ii) enhancement, to calculate the guidelines range free of that error, and to consider that corrected range. It did so. The court was required to consider and weigh the other § 3553(a) sentencing factors as well. It did so. And the court was required to determine whether, in its judgment, those other sentencing factors outweighed the lower advisory guidelines range. It did so. In the judgment of the experienced district court judge, the other § 3553(a) factors, especially Rosales-Bruno’s criminal history and record of violence against his girlfriend, outweighed the advisory guidelines range of 21 to 27 months and the proper sentence was 87 months.
The dissent’s position is that an advisory guidelines range becomes less advisory and more mandatory if it was not correctly calculated at the initial sentence hearing. See Dissenting Op. at 1278-79. But why? Why should the fact that it took an appeal and remand to get the advisory guidelines range correct make the corrected advisory guidelines range any less advisory than it would have been if the district court had correctly calculated it to begin with? We remand in cases like this one to correct errors in the steps leading to the district court’s sentencing decision, not to punish the court or the government, or reward the defendant, because an error was committed the first time. The dissent would hold that if the district court imposed a sentence that was within a higher guidelines range at the initial sentencing, it must impose a sentence within the corrected lower guidelines range on remand. See Dissenting Op. at 1278 (“Nothing in the record at Rosales-Bruno’s initial sentencing hearing suggests that the court viewed Rosales-Bruno as the type of defendant who warranted an upward variance at' all.... ”). In other words, the advisory guidelines become mandatory on remand.
That is not the law. See United States v. Booker,
The district court must consider the advisory guidelines range in making the sentencing decision, but it is only one of a dozen or so factors that the court must take into account. See Booker,
That is exactly what the district court did in resentencing Rosales-Bruno. It correctly recalculated the advisory guidelines range, it gave both parties the opportunity to argue for the sentence they thought appropriate, and it then considered the remaining § 3553(a) sentencing factors in deciding what the sentence should be. The court exercised its authority to assign heavier weight to several other sentencing factors than it assigned to the guidelines range. Nothing requires a sentencing court to give the advisory guidelines range as much weight as it gives any other § 3553(a) factor or combination of factors. See Shaw,
A sentence’s variance outside the guidelines range, whether upward or downward, represents a district court’s judgment that the combined force of the other § 3553(a) factors are entitled to greater weight than the guidelines range. Otherwise, there would never be any variances. Yet every year thousands of sentences outside the guidelines are imposed and upheld. See, e.g., U.S. Sentencing Comm’n, Statistical Information Packet, Fiscal Year 2011, Eleventh Circuit 11 tbl.8 (2015) (showing that in fiscal year 2014 district courts imposed more than 20,000 sentences outside the guidelines range for reasons other than a departure). This is one of them.
The dissent points out that “[njothing in the record at Rosales-Bruno’s initial sentencing hearing suggests that the court viewed Rosales-Bruno as the type of defendant who warranted an upward variance at all, let alone such • a significant one.” Dissenting Op. at 1280. No, but the record and result of the initial sentencing show that the district court thought that the appropriate sentence in view of all of the facts and circumstances was 87 months. At the initial sentencing, no variance was necessary to reach that appropriate sentence. At the resentencing, after reconsidering everything in light of the new guidelines range, the court concluded that an 87-month sentence was still the appropriate sentence in light of all the facts and circumstances, which is why it varied upward to that same sentence. The goal of sentencing is not to change the sentence in lockstep with changes in the advisory guidelines range but to “impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in [§ 3553(a)(2) ].” 18 U.S.C. § 3553(a). The district court did that.
2.
The contention that ruling out the § 2L1.2(b)(l)(A)(ii) enhancement required a sentence within the guidelines is wrong for another reason. When it comes to sentencing, particularized facts about the defendant matter. See Gall,
In assigning weight to the § 3553(a) factors as part of the weighing process, a court may (and should) consider individualized, particularized, specific facts and not merely the guidelines label that can be put on the facts. The district court did focus on the individualized, particularized, specific facts in resentencing Rosales-Bruno. His argument against the sentence he received does not focus on them.
None of the facts about Rosales-Bruno’s illegal reentry conviction or his extensive criminal history changed between the first .and second sentencing. The only change was that his earlier conviction for false imprisonment could not be categorized as a “crime of violence” conviction for the limited purposes of the U.S.S.G. § 2L1.2(b)(l)(A)(ii) enhancement, see Rosales-Bruno I,
We vacated Rosales-Bruno’s original sentence because the government had failed to carry its burden of showing from the state court sentencing documents, instead of from Rosales-Bruno’s actual criminal conduct-itself, that his false imprisonment conviction under Florida law categorically fit within the definition of “crime of violence” required for application of the § 2L1.2(b)(l)(A)(ii) guidelines enhancement.
Rosales-Bruno attacked Edith Rodriguez and shoved her into a stove. When she tried to escape, he grabbed her by the face and pinned her down between two beds and took out his cigarette lighter and threatened to burn her with it. Then while out on bond because of the charges stemming from that violent attack, Rosales-Bruno attacked Rodriguez again. After pulling their 18-month-old daughter out of her arms he punched Rodriguez at
The district court was entitled to look beyond guidelines labels at the actual facts of Rosales-Bruno’s earlier crimes and to find that some of his criminal conduct was violent and deserved substantial weight. See Shaw,
B.
We also reject Rosales-Bruno’s second contention, which is that in resen-tencing him the district court gave unreasonable weight to his criminal history as a whole. District courts have broad leeway in deciding how much weight to give to prior crimes the defendant has committed. See, eg., United States v. Overstreet,
And Rosales-Bruno’s criminal history is extensive. We have already described his two violent attacks on the same woman, the second of which occurred while he was out on bond pending trial for charges stemming from the first attack. See supra pp. 1251, 1261. He violated the terms of his probation in multiple ways. In addition, Rosales-Bruno has numerous driving-related convictions. In November 2000 he was convicted of driving without a license. In December 2001 he was convicted of driving under the influence with a blood alcohol level twice the legal limit. In February 2002 he was convicted of driving with a suspended license. He was again
The district court explained in resen-tencing Rosales-Bruno that it believed an 87-month sentence was “appropriate” based on his lengthy criminal history, which the court took into account in weighing several of the § 3553(a) sentencing factors such as the history and characteristics of the defendant, the need to promote respect for the law, and the need to provide adequate deterrence. See 18 U.S.C. § 3553(a)(1), (a)(2)(A)-(B). The court also agreed with the government that the § 3553(a)(2)(C) factor about the need for protection of the public supported an 87-month sentence. As did the § 3553(a)(1) “nature and circumstances of the [illegal reentry] offense” factor, which the court considered.
The dissent argues that the district court’s consideration of § 3553(a)(2)(A), which requires a sentence to “reflect the seriousness of the offense ... and to provide just punishment for the offense,” was “clearly unreasonable” because illegal reentry is, in the dissent’s view, a “relatively low-level offense.” Dissenting Op. at 1283. The dissent is entitled to its opinion, but it is not entitled to substitute its views about the punishment the crime deserves for the views of the district court. As we have pointed out, we are not reviewing the district court’s judgment de novo, but only to determine whether the court abused its considerable discretion. See Irey,
In any event, the dissent underestimates the seriousness of Rosales-Bruno’s conviction. Because Rosales-Bruno committed a felony, and was later deported, and then reentered the United States illegally, he moved.out of what the dissent calls the “relatively low-level” category of 8 U.S.C. § 1326(a) and into the much more serious category of § 1326(b)(1). See Dissenting Op. at 1283. That escalation resulted in the statutory maximum for his crime of reentry after deportation increasing from two years to ten years. The latest crime for which Rosales-Bruno was convicted, the one for which he was sentenced in this case, is not a “relatively low-level offense.”
The court’s decision to give more weight to the other § 3553(a) factors combined than to the advisory guidelines range alone was not unreasonable. See United States v. Mateos,
Our precedent supports the conclusion that the district court did not abuse its discretion in assigning weight to, and weighing, the § 3553(a) sentencing factors. Under substantive reasonableness review, we have repeatedly affirmed sentences that included major upward variances from the guidelines for defendants with significant criminal histories that the sentencing courts weighed heavily. See, e.g., Over-street,
Other circuits have affirmed above guidelines sentences for illegal reentry defendants with criminal histories. See, e.g., United States v. Rivera-Santana,
C.
Rosales-Bruno’s final contention is that his sentence was substantively unreasonable because his case fell “squarely within the heartland of illegal reentry cases” and therefore didn’t merit an upward variance. Relying on impressions that his attorney has formed from anecdotal “evidence” alone, Rosales-Bruno posits that many illegal reentry defendants have substantial criminal histories and argues that because his criminal history is only “average” it cannot serve as the basis for an upward variance. Putting aside the legal premise of this contention, its factual premise is false. According to the Sentencing Commission, 86.9% of illegal reentry offenders in 2013 fell within one of the first four criminal history categories under the sentencing guidelines.
The dissent also contends that because the criminal history category assigned to Rosales-Bruno already reflects the fact that he was convicted of earlier crimes, the district court had no reason to vary outside the guidelines range. This is yet another attempt to smuggle into the discussion the dissent’s position that the court should have treated the guidelines range as mandatory. A correctly calculated advisory guidelines range always reflects a defendant’s criminal history, and yet as we’ve discussed, supra p. 1255, district courts impose sentences outside of the guideline ranges more than half the time, because other, non-guidelines factors outweigh those advisory ranges. Here, the non-guidelines factors that most influenced the district court are those that focus on the violent facts of Rosales-Bruno’s earlier crimes.
Indeed, that our Rosales-Bruno I decision stripped the technical § 2L1.2(b)(l)(A)(ii) “crime of violence” description label from acts that were unquestionably violent crimes suggests that the guidelines range — which the dissent insists should trump everything else — no longer accurately reflects the complete “history and characteristics of the defendant.” See 18 U.S.C. § 3553(a)(1). The district court had to take into account the actual facts underlying Rosales-Bruno’s convictions in order to fully account for his “history and characteristics” in the sentence it imposed. See id.; cf. Early,
The dissent would require the district court, before it could vary from the guidelines range, to distinguish Rosales-Bruno’s criminal history from that of “the average
Despite what the dissent argues, Dissenting Op. at 1281, district courts are not required to figure out who is the “average” offender for each crime, at each offense level and within each criminal history category, and then explicitly compare the details of the case before it with the details of the average offender’s average case. That degree of explicit comparison far exceeds the level of explanation we require of district courts exercising their sentencing discretion.
The dissent’s proposed new averaging requirement is neither feasible nor reasonable. It places an impossible burden on district courts to have detailed and granular knowledge of the criminal résumé of the “average” offender for each offense’ of conviction at each offense level and in each criminal history category. The sentencing guidelines list nearly 60 categories of offenses, 43 offense levels, and six criminal history categories. See U.S.S.G. Tbl. of Contents; id. Ch. 5 Pt. A, Sentencing Tbl. Under the dissent’s approach, there would be more than 15,000 (60 x 43 x 6 = 15,480) different kinds of “average” criminals. And the dissent wants district courts to go further still. It would require them to distinguish among individual crimes of conviction and among individual aggravating circumstances, such as the presence or absence of prior felony convictions. See Dissenting Op. at 1280-81.
The dissent insists that it doesn’t want a “statistical analysis” and that all it is asking is for “district courts [to] use their common sense and experience” and their “good judgment.” Dissenting Op. at 1283 n. 4. But that is exactly what the district court did in this case. Drawing on his two decades of experience sentencing criminals, exercising common sense ¿nd good judgment, the district court determined that an 87-month sentence was warranted for this criminal in this case. Its reward for doing exactly what the dissent said it
The dissent argues that “[n]othing in the record suggests that Rosales-Bruno is any worse than other convicted-felon, category V illegal reentrants, let alone so much worse that the high end of his advisory sentencing range should be tripled.” Dissenting Op. at 1282. But the district court — more familiar with that record, more familiar with the defendant, and far more familiar than we are with “other convicted-felon, category V illegal reen-trants” — exercised common sense, experience, and good judgment when it ruled that an 87-month sentence was appropriate under the facts and circumstances of this case.
The extensive nature of Rosales-Bruno’s criminal history and the specific details of his violent criminal conduct made him an outstanding candidate for an upward variance from the advisory guidelines range after a conviction for illegal reentry. His history of criminal conduct is worse than that of the typical illegal reentry conviction defendant. He falls outside, not inside, the heartland of illegal reentry defendants. See Irey,
V.
Part II of the dissenting opinion criticizes this Court as a whole for the message the dissenting judge believes we have sent to district courts about how we review sentences for reasonableness. The dissent’s criticism is not about the legal standards that we have announced or the holdings of our decisions. We made clear in our en banc decision in Irey that the principles we announced in that decision applied equally to sentences above and below the guidelines range. See Irey,
The dissent acknowledges that our decisions, particularly Irey, have correctly stated the law. See Dissenting Op. at 1288-89 (positing that some think “we have given the impression that we are more likely to vacate a lenient sentence than a harsh one,” but stating emphatically that “[t]hat is not the law of this circuit”); id. at 1291 (conceding that our en banc decision in “Irey articulated meaningful lower and upper limits on a court’s sentencing discretion,”); id. at 1291 (acknowledging that “Irey articulates the only standard we use to review sentences
The dissent’s criticism of this Court is that even though we have gotten the law right, it believes that the results of our substantive reasonableness decisions have sent a message to district courts that we will not vacate unreasonably long sentences, only unreasonably short ones. See Dissenting Op. at 1285, 1289. We are not told whether the accusation is that the Court has done this deliberately or just negligently. In any event, if we have been sending a message that contrary to the neutral principles we have announced we will favor upward variances more than downward ones, either we are not good at sending messages or the district courts of this circuit are not good at receiving them. The irrefutable fact is that district courts in our circuit impose far more downward variance sentences than upward variance ones. And the disparity in the rate at which downward and upward variance sentences are being imposed is increasingly favoring downward variances.
The table that is Appendix A to this opinion, which is drawn from Sentencing Commission reports and a survey of decisions of this Court, tells the story. It shows that in fiscal years 2006 through 2014, the nine fiscal years since the Booker decision for which data is available, the district courts in this circuit have sentenced 61,866 defendants.
Not only that, but during those nine years the number of downward variance sentences has gone up every year but one,
If, as the dissent insists, the results of our reviews for reasonableness have been sending district courts a message that an upward variance sentence is less likely to get vacated than a downward variance one, it does not appear that the district courts have gotten that message. Or if they have, they simply don’t care. They have indisputably been imposing more downward variance sentences and have done so at an increasing rate.
The real reason that district court judges have not responded to the message that the dissent sees hidden in the results of our sentencing review is that there is no such message. The data in the chart that is Appendix A shows that. The district courts in our circuit have imposed 828 upward variance sentences in the nine years for which we have data since the year the Booker decision was released in 2005. Contrary to the dissent’s claim that “[w]e have not ... expressly set aside a sentence because it was too harsh,” Dissenting Op. at 1292, we have in fact vacated three of those upward variance sentences as unreasonably long. See United States v. Valdes,
So if we assume, as the dissent’s position does, that district court judges are closely following our sentencing review results, what they will see is that we mean what we say about deferring to their discretion when sentencing. We vacate on substantive reasonableness grounds less than 1% of the sentences that vary upward or downward from the guidelines range. The message we send to the district courts is not, as the dissent suggests, “that they enjoy virtually unfettered sentencing discretion, so long as they sentence harshly.” Dissenting Op. at 1287. It is instead that district courts enjoy substantial discretion in sentencing regardless of whether they sentence above or below the guidelines— exactly what our precedents say.
The numbers also refute the dissent’s argument when we compare the rate at which we vacate upward variance sentences with the rate at which we vacate downward variance ones. We have vacated only one-eighth of one percent (0.13%) of downward variance sentences that district courts have imposed, while we have vacated more than a third of a percent (0.36%) of upward variance sentences. In other words, an upward variance sentence has been more than twice as likely to be found unreasonable as a downward variance sentence — exactly the opposite of what the dissent believes. The message that we have sent, if any, is not “that we are more likely to vacate a lenient sentence than a harsh one,” Dissenting Op. at 1291, but just the opposite.
The dissent does not challenge any of our decisions vacating sentences as unreasonably short, and it is easy to understand why.
And as Appendix B shows, seven of the twelve cases in which we vacated sentences as unreasonably short involved serious crimes where the sentencing court had varied all the way down to no jail time at all. Those probation-only cases include fraud crimes in which the losses ranged from hundreds of thousands of dollars to 1.4 billion dollars. E.g., United States v. Hayes,
Of the remaining five cases in which we vacated as unreasonable downward variance sentences, two were cases in which the defendant had committed a serious crime but received virtually no jail time. In both cases the custodial term was little more than a fig leaf — and a tiny one at that — insufficient to cover the naked unreasonableness of the sentence. In one of those cases, a participant in a massive nine-year securities fraud that had resulted in more than a billion dollars in losses for shareholders had been sentenced to only seven days in detention. See United States v. Martin,
Our decisions simply do not show, as the dissent believes, that we review below guidelines sentences with especially close scrutiny, searching for reasons to vacate them. Instead, we regularly reject reasonableness challenges by the government to downward variance sentences after applying the same neutral principles that we applied in Irey and other .decisions. See, e.g., United States v. McBride,
To summarize, the dissent’s underlying theory is that Rosales-Bruno is the victim of what it claims is a bias in favor of longer sentences because, even though we have gotten the law right, the results of our decisions have signaled to district courts that we are more likely to affirm upward variance sentences than downward variance ones. The primary problem with the theory is that the facts established by the undisputed data show that no such signal has been sent or received. The message that the results of our decisions have sent is that in our substantive review of sentences we defer to the district courts’ broad discretion regardless of whether they sentence above or below the guidelines range, except in the rare instances where they impose a clearly unreasonable sentence. And the district courts’ sentencing behavior shows that they have not received the phantom message the dissent fears we have sent. Since Booker, the district courts in this circuit have imposed eleven times as many downward variances as upward variances, and they have done so at a steadily increasing rate. To quote the eminent logician Mark Twain: “How empty is theory in presence of fact!”
VI.
After considering and giving reasonable weight to each of the relevant § 3553(a) factors, the district court in this case imposed an upward variance sentence. The sentence did not exceed the outer bounds of the wide range of discretion that district courts are afforded. Given all of the relevant facts and circumstances, the sentence is not unreasonable.
AFFIRMED.
APPENDIX A
Upward Variance Sentences Vacated as Unreasonable
2014 6,731 92 0
2013 6,716 94
2012 6,837 100
2011 6,932 116
2010 6,989 107
2009 7,098 99
2008 7,038 94
2007 6,892 60
2006 6,633 66
Totals
2006-14 61,866 828
Rate of Vacatur of Upward Variance Sentences: 0.36%
Downward Variance Sentences Vacated as Unreasonable
Number of Downward Number of Number of ' Variance Sentences Fiscal Year Defendants Sentenced Downward Vari- Vacated as Unreasonable
2014_6/731_R516_2__
2013_6/716_1,282_2_
2012_6/337_1/278__0_
2011_6/332_1/215_1_
2010_6,989_1,272_2_
2009_7/098_984_1_
2008_7,038 740_2_
2007_6,892_583_0_
2006_6,633_437_2_
_Totals_
2006-14_61,866_9/507_12
Rate of Vacatur of Downward Variance Sentences: 0.13%
Downward Variance Sentences Vacated as Substantively Unreasonable
Criminal Conduct Guidelines Range Sentence Vacated as Unreasonable
United States v. Business owner masterminded a public Hayes, 762 F.3d corruption scheme — including over 1300 (11th Cir. $600,000 in bribes to state official in 2014) charge of higher education, as well as a money laundering conspiracy — that yielded more than $5 million in ill-gotten profits. 135-168 months in prison Probation with no term of imprisonment
United States v. Officer punched a much smaller, hand-Hooper, 566 Fed. cuffed, unresisting arrestee multiple Appx. 771 (11th times in the face before locking him in Cir.2014) a hot car. 70-87 months in prison Probation with no term of imprisonment
United States v. McQueen,
United States v. Kuhlman,
United States v. Jayyousi,
United States v. Livesayfi
United States v. Hendrick,
United States v. Over a period of several years, defen-Pugh, 515 F.3d dant knowingly downloaded and dis-1179 (11th Cir. tributed to other web users at least 68 2008) images of child pornography, as well as videos of an adult male raping an infant girl and of a young girl performing oral sex on an adult male. Defendant admitted that he once saw an image of a man having sex with a two- or three-year-old who had a dog collar around her neck. There were ten known child victims in the images found on defendant’s computer. 97-120 months in prison Probation with no term of imprisonment
United States v. Treasurer of company knowingly par-McVayfi 294 Fed. ticipated in a massive nine-year securi-Appx. 488 (11th ties and mail fraud scheme that result-Cir.2008) ed in nearly $1.4 billion in losses for shareholders, some of whom had invested their life savings in the company’s stock. 87-108 months in prison Probation with no term of imprisonment
United States v. CFO knowingly participated in a mas-Martinf
United States v. Comptroller of construction company Crisp, 454 F.3d knowingly prepared false financial 1285 (11th Cir. statements that defrauded a bank out 2006) of nearly $500,000. 24-30 months in prison Probation and 5 hours in custody of U.S. Marshal
APPENDIX C
Notes
. Whatever his procedural objections were, Rosales-Bruno has abandoned them by not raising them on appeal. See Sapuppo v. Allstate Floridian Ins. Co.,
. See U.S. Sentencing Comm’n, Statistical Information Packet, Fiscal Year 2014, Eleventh Circuit 11 tbl.8 (2015). According to the Sentencing Commission, of the 74,126 cases that were sentenced in the 2014 fiscal year, 1,645 (2.2%) resulted in sentences above the guidelines range. Id. That total included 343 (0.5%) cases in which the sentence imposed involved a departure above the guidelines range; 1,104 (1.5%) that involved a variance above the guidelines range; 123 (0.2%) that involved both a departure and a variance above the guidelines range; and 75 (0.1%) in which the Sentencing Commission could not determine whether the above guidelines sentence resulted from a variance or a departure.
In another 38,364 (51.8%) of the cases the sentence imposed was below the guidelines range. That number included 18,183 (24.5%) cases in which the court departed downward from the guidelines range; 12,894 (17.4%) cases in which the court varied downward from the guidelines range; 807 (1.1%) cases in which the report indicated both a departure and a variance downward from the guidelines range; 6,068 (8.2%) cases in which the government “sponsored” a below guidelines sentence that the Sentencing Commission did not classify as either a departure or a variance; and 412 (0.6%) cases in which there was a sentence below the guidelines range but the Sentencing Commission could not determine whether it resulted from a variance or a departure. Id.
The total of all of these sentences that are above the guidelines range (1,645, or 2.2%)
. See U.S. Sentencing Comm’n, n. 2, supra.
. The dissent says it has "little doubt that if the Guidelines had been correctly calculated the first time around, Rosales-Bruno would have been sentenced to 27 months.” Dissenting Op. at 1280. There is nothing at all in the record to support that speculation — and it is a groundless guess that is contradicted by the district court's careful explanation of why it varied upward on remand. The best evidence of what the court would have done the first time around with an advisory guidelines range of 21 to 27 months and the § 3553(a) factors that exist in this case is, after all, what it did with that very range and those very § 3553(a) factors on remand.
. In Rosales-Bruno I, we applied the "modified categorical approach” to determine that Rosales-Bruno’s false imprisonment conviction under Florida Statute § 787.02 was not a "crime of violence” for guidelines purposes. See
.' See supra note 5.
. The dissent suggests that Rosales-Bruno shows "a decreasing pattern of criminality.'’ Dissenting Op. at 1284. The rosy picture the dissent paints of Rosales-Bruno’s criminal trajectory fails to take into account that in 2007 Rosales-Bruno’s criminal conduct escalated from driving drunk to beating up a woman.
. See U.S. Sentencing Comm'n, Quick Facts: Illegal Reentry Offenses (2014), available at http://www.ussc.gov/sites/default/files/pdi7 research-and-publications/quick-facts/Quick_ Facts_Illegal_ReentryFY 13 .pdf.
. See U.S. Sentencing Comm’n, supra n. 8.
. The dissent repeats and relies on the same speculation when it contends that the district court did not provide a justification that was "sufficiently compelling to support the degree of the variance.” Dissenting Op. at 1282; see also Gall,
.. The dissent claims its new test would not "require an unprecedented degree of explicit comparison between offenders,” because "[a]ll [it] would require is that the sentencing judge give a credible justification for a major variance from the Guidelines beyond factors that are typical of defendants subject to the same advisory range.” Dissenting Op. at 1285. But of course that is what the district court did here: faced with an advisory guidelines range that no longer reflected the violence of Rosales-Bruno's earlier crimes, the district court described that violence in some detail, showing how in the court’s view Rosales-Bruno was not "typical of defendants subject to the same advisory ránge,” Dissenting Op. at 1285, and then the court varied upward to account for it.
. We look to these sentencing facts because they, and not any graphic one-time occurrences, are the most reliable method of determining whether the message the dissent fears has been sent and received. “Cognitive psychology tells us that the unaided human mind is vulnerable to many fallacies and illusions because of its reliance on its memory for vivid anecdotes rather than systematic statistics.” Steven Pinker, quoted in "Steven Pinker: Fighting Talk from the Prophet of Peace,” The Observer, Oct. 15, 2011, available at http:// www.theguardian.com/science/2011/oct/15/ steven-pinker-better-angels-violence-interview (last visited June 9, 2015).
. This figure comes from data collected by the United States Sentencing Commission. U.S. Sentencing Comm'n, Statistical Information Packet, Fiscal Year 2014, Eleventh Circuit 11 tbl.8 (2015); U.S. Sentencing Comm’n, Statistical Information Packet, Fiscal Year 2013, Eleventh Circuit 11 tbl.8 (2014); U.S. Sentencing Comm’n, Statistical Information Packet, Fiscal Year 2012, Eleventh Circuit 11 tbl.8 (2013); U.S. Sentencing Comm'n, Statistical Information Packet, Fiscal Year 2011, Eleventh Circuit 11 tbl.8 (2012); U.S. Sentencing Comm’n, Statistical Information Packet, Fiscal Year 2010, Eleventh Circuit 11 tbl.8 (2011); U.S. Sentencing Comm'n, Statistical Information Packet, Fiscal Year 2009, Eleventh Circuit 11 tbl.8 (2010); U.S. Sentencing Comm’n, Statistical Information Packet, Fiscal Year 2008, Eleventh Circuit 11 tbl.8 (2009); U.S. Sentencing Comm’n, Statistical Information Packet, Fiscal Year 2007, Eleventh Circuit 11 tbl.8 (2008); U.S. Sentencing Comm’n, Statistical Information Packet, Fiscal Year 2006, Eleventh Circuit 11 tbl.8 (2007).
.These figures also come from Table 8 in the Sentencing Commission reports cited supra in footnote 13. They exclude instances where a district court imposed a departure, as opposed to a variance, above or below the guidelines range. They also exclude instances in which the district court appears to have imposed both a departure and a variance above or below the guidelines range. However, the data in Table 8 of those Sentencing Commission reports also shows that courts in our circuit grant downward departures far more often (about five times more often if we exclude government-sponsored downward departures, and about 45 times more often if we include them) than they grant upward departures. Which means that if we included departures in our numbers the results would show an even greater disparity between outside-the-guidelines sentences favorable to defendants as opposed to the government.
. See supra n. 13. Like the figures cited in footnote 14, supra, these exclude departures. They also exclude a category the Sentencing Commission calls "government-sponsored” below guidelines sentences that includes both variances and departures.
. The number of downward variances de- ■ creased one year (from 1,272 in 2010 to 1,215 in 2011). See supra n. 13. Every other one of the nine years from 2006 to 2014, they increased.
. The dissent spends several pages on an unsuccessful attempt to distinguish or belittle our decisions vacating as unreasonably long 'upward variance sentences. See Dissenting Op. at 1284, 1286-88. It first contends that those decisions do not count because none of them "impose a sentencing ceiling on remand.” Id. at 1287. There are two fundamental flaws with that criticism. The first is that the dissent never explains why that matters, and it does not. A decision holding a sentence is unreasonably long is a decision that the sentence is unreasonably long regardless of whether the opinion specifies how long the sentence on remand can be without also being unreasonable.
Next, the dissent argues that Valdes and Lopez were decided on procedural, not substantive, unreasonableness grounds, citing Irey for the proposition that "the adequacy of a district court’s ... sentence explanation is a classic procedural issue.” Dissenting Op. at 1289 & n. 13 (emphasis omitted). That reasoning misreads Irey. The language the dissent cites in Irey stands for the unremarkable proposition that if a district court fails to follow the required procedures — chief of which is to consider the § 3553(a) factors— the court has committed a procedural error.
The Valdes opinion states that the “reasons discussed were inadequate to support an extraordinary variance to a sentence of 108 months,” not that the discussion of the reasons was itself inadequate.
The dissent also argues that Valdes and Gardner were decided under precedents that are no longer good law. (Those precedents required an extraordinary justification for an extraordinary variance.) Dissenting Op. at 1287-88. But so what? The dissent does not claim that the decisions were inconsistent with then-binding precedent. See id. Why would decisions correctly applying the law at the time suggest anything other than that we will continue to correctly apply the law? Those two decisions vacating upward variance sentences as substantively unreasonable show that we will apply our binding precedent on reasonableness, which the dissent concedes correctly states the law.
We note (as does the dissent, Dissenting Op. at 1286-87) that two of these three decisions are unpublished and as such do not serve as binding precedent about the law. See 11th Cir. R. 36-2. Judge Martin recently seemed to seize on that point in her dissent from an unpublished opinion in United States v. Rivero, No. 14-10121, - Fed.Appx. -, -,
Given that it is the result that matters under the dissent’s theory, it makes no difference whether the result comes in a published or an unpublished opinion. Our unpublished opinions are, after all, as readily accessible online as our published ones. Ironically, Judge Martin's dissenting opinion in Rivero, like the majority opinion in that case, is itself unpublished. Still, that unpublished opinion adequately sends her message about her position on the sending-a-message theory.
. The dissent attempts to bolster its argument with dicta from separate opinions of another judge and a former judge of this Court and the views of two of the more than 1.2 million attorneys in this country. The attempt fails.
First, the dissent discusses at length Judge Martin’s concurrence in the judgment in United States v. Early,
Next, the dissent suggests that Judge Bark-ett “identified the same problem” as Judge Martin "even before Irey was decided,” pointing to Judge Barkett's separate opinion in United States v. Docampo. Dissenting Op. at 1287 n. 10; see also
Finally, the dissent cites two pieces of what it refers to as "scholarly commentary” that it believes ”echo[]” Judge Martin's concern. Dissenting Op. at 1287-88 n. 11; see also
Attorney Marx’s article echoes Judge Martin more literally, quoting the same section of her opinion that the dissent quotes. Marx, supra, at 7 (quoting Early,
. The dissent contends that this makes no difference, because "Qjust because district courts can vary above the Guidelines with virtually no scrutiny does’ not mean that district courts will vary above the Guidelines with regularity.” Dissenting Op. at 1291. So the dissent concedes that district courts are not heeding the message it believes our decisions are sending. Okay.
. Indeed, our dissenting colleague participated in deciding three of those cases. See
. Mark Twain, A Connecticut Yankee in King Arthur’s Court 420 (1st ed. 1889).
Instead of questioning the accuracy of any of the sentencing data cited in this opinion, the dissent quotes the old cliché that “[tjhere are three kinds of lies: lies, damned lies, and statistics.” Dissenting Op. at 1291 n. 14. That hackneyed formulation does not fit here because the sentencing facts and sentencing review facts cited in this opinion are not mere statistical extrapolations. Given how clearly the actual facts refute its thesis, the dissent, should instead be bemoaning "facts, damned facts, and more facts."
. The data showing the number of defendants sentenced and the number of variances is drawn from U.S. Sentencing Comm’n, Statistical Information Packet, Fiscal Year 2014, Eleventh Circuit 11 tbl.8 (2015); U.S. Sentencing Comm’n, Statistical Information Packet, Fiscal Year 2013, Eleventh Circuit 11 tbl.8 2014);- U.S. Sentencing Comm’n, Statistical
. The Sentencing Commission tracks its statistics by fiscal year instead of calendar year.
. The defendants in the related cases Livesay, McVay, and Martin, all of which arise out of the same criminal activity, were originally sentenced in 2004, before the Booker decision rendered the Sentencing Guidelines merely advisory. See
Concurrence Opinion
concurring in the result:
Eighty-seven months imprisonment is a very long sentence in an illegal reentry case where this Court has previously determined that the guidelines range is 21-27 months. I was concerned that, in arriving at the exact same 87 month sentence on remand that he had previously imposed (the high end of the now-discredited guidelines range), the district judge did not pay sufficient heed to this Court’s decision and did not consider the guidelines as corrected. However, Rosales-Bruno has not asserted this ground, or any other procedural irregularity, on appeal. As to the only ground actually raised on appeal, whether the 87 month sentence is substantively reasonable, I agree that the “sentence did not exceed the outer bounds of the wide range of discretion that district courts are afforded.” Maj. Op. at 1273. Thus, I concur in the result. I think it unnecessary to the decision and unwise for me, as a visitor, to join in the important debate between Chief Judge Carnes and Judge Wilson regarding Eleventh Circuit sentencing precedent.
Dissenting Opinion
dissenting:
For illegally reentering the United States, a crime with no statutory minimum and a base Guidelines range of 0-6 months, Rosales-Bruno was sentenced to more than 7 years in prison. In imposing this sentence, the district court more than tripled the upper end of the applicable Guidelines range. The justifications supporting this major variance are insufficient, and this sentence — the product of a clear error in judgment — is “greater than necessary[] to comply with the purposes set forth” in 18 U.S.C. § 3553. See United States v. Irey,
I.
For three primary reasons, I conclude that the district court abused its discretion in imposing an 87-month sentence on remand, after we previously vacated Rosales-Bruno’s initial 87-month sentence. See id. at 1188-89; United States v. Rosales-Bruno,
“In ... cases such as Irey ..., we vacated sentences on the ground that they failed in effect to give ‘real weight’ to the Guidelines or to adequately reflect the Guidelines’ policy statements and underlying concerns.” United States v. Early,
A.
Sentencing is highly subjective, and without standardization, sentencing based on the § 3553(a) factors is unpredictable and disparate. That is why the Guidelines were created. See Irey,
Initially, the district court calculated a 70-87 month Guidelines range and, concluding that an upward variance was not warranted, the district court sentenced Rosales-Bruno at the top of that range. We vacated that sentence because the district court mistakenly believed that Rosales-Bruno had been convicted of a violent felony and applied a 16-level enhancement as a result of that error. Rosales-Bruno,
At resentencing, without the erroneous violent-felony enhancement, the Guidelines range decreased from 70-87 to 21-27 months, meaning that instead of facing a sentence of 7.25 years, Rosales-Bruno faced a sentence under the correctly calculated Guidelines of, at most, 2.25 years. However, despite this substantial decrease in the applicable Guidelines range, Rosales-Bruno received the exact same 87-month sentence as before. To re-impose the sentence we initially vacated, the court had to radically depart from its initial determination that Rosales-Bruno did not deserve an upward variance, this time con-
It is difficult to ignore the uncanny resemblance between the district court’s initial sentence and the sentence imposed on remand, and I have little doubt that if the Guidelines had been correctly calculated the first time around, Rosales-Bruno would have been sentenced to 27 months. Nothing in the record at Rosales-Bruno’s initial sentencing heáring suggests that the court viewed Rosales-Bruno as the type of defendant who warranted an upward variance at all, let alone such a significant one. And between Rosales-Bruno’s initial sentencing and his resentencing, the only changes that occurred cut in favor of a lower sentence. Under the Guidelines, Rosales-Bruno was no longer deemed a violent felon, and his advisory range decreased by 60 months, or roughly 68 percent. Despite these changes, Rosales-Bruno’s sentence did not decrease by a single day.
The conclusion to be drawn from a sentence that does not change based on such a substantial decrease in the Guidelines range is that the Guidelines were given no weight at all, requiring vacatur under Irey. See
Of course, the Majority opinion suggests that, from the very beginning, the sentencing judge thought that 87 months was the correct sentence for Rosales-Bruno; the district court came up with an 87-month sentence all on its own, based on experience, common sense, and good judgment. But this sentence, 87 months’ imprisonment, did not come from the district court’s judgment or experience. It came from the Sentencing Guidelines — or, more accurately, from a miscalculation of the Guidelines. The Majority opinion rewrites history in suggesting that, regardless of the. Guidelines, the district court was always going to impose an 87-month sentence, even if it had calculated the Guidelines correctly the first time around.
Indeed, the Majority opinion even asserts that the best evidence of what the district court would have done the first time around is what the court did the second time around on remand. Not so. The best evidence of what the court would have done the first time around is what the court did the first time, around, which was to sentence Rosales-Bruno to the upper end of the Guidelines range. Again, the number 87 was not a product of the sentencing court’s judgment; it was a product of the Guidelines. There is no persuasive explanation in the record as to why a criminal defendant, whom the district court in fact decided to sentence within the Guidelines in the first instance, suddenly became a defendant requiring a triple-upward variance on remand.
Further, concluding that a massive decrease in the Guidelines range should have at least some influence on the sentence imposed is not the same as suggesting that the Guidelines range should be mandatory
This limited proposition stops far short of treating the Guidelines as mandatory. There is an obvious difference between finding an abuse of discretion here — where a district court that already found a within-Guidelines sentence to be appropriate subsequently disregarded a massive decrease in the advisory range — and making the Guidelines mandatory.
B.
The district court’s decision to sentence Rosales-Bruno to more than three times the upper end of the advisory range even though he falls in the “heartland to which the Commission intend[ed] [the 21-27 month] Guidelines [range] to apply” is further evidence that the court abused its discretion. See Kimbrough v. United States,
Rosales-Bruno’s base offense level was 8. U.S.S.G. § 2L1.2(a). He then received a 2-level reduction for acceptance of responsibility. Id. § 3El.l(a). A base offense level of 6 translates to a Guidelines range of 0-6 months in prison. But that was not the offense level or Guidelines range applicable to Rosales-Bruno. He had felony convictions to his name, so his offense level increased to 10, id. § 2L1.2(b)(l)(D), increasing the applicable Guidelines range from 0-6 to 6-12 months. In addition to being a felon, Rosales-Bruno was convicted of violating a variety of traffic laws and driving while intoxicated on several occasions. These prior convictions placed Rosales-Bruno in criminal history category V.
Accordingly, this Guidelines range already reflects the fact that Rosales-Bruno is a repeat criminal who has done reprehensible things. After all, it is hard to imagine a category V defendant who is not a repeat criminal or a felon who has not done reprehensible things. The Commission designed the Guidelines to punish such defendants more harshly than others, by increasing offense levels from 6 to 10 and by increasing criminal history categories from I to V. In short, as a result of repeatedly breaking the law and doing reprehensible things (at least once), illegal reentrants like Rosales-Bruno face a Guidelines range of 21-27 months, rather than 0-6 months.
Nothing in the record suggests that Rosales-Bruno is any worse than other con-vieted-felon, category V illegal reentrants, let alone so much worse that the high end of his advisory sentencing range should be tripled. We have previously vacated an above-Guidelines sentence for similar reasons. See United States v. Valdes,
The Majority opinion attempts to answer this question by noting that Rosales-Bruno is “an outstanding candidate for an upward variance from the advisory guidelines range” primarily because he is a category V criminal, placing him among the worst 13.1 percent of illegal reentrants. Maj. Op. at 1263-66. But it makes no sense to suggest that a person is “an outstanding candidate” for being treated three times harsher than other category V criminals because he is a category V criminal. Being a category V criminal does no more than make Rosales-Bruno. an outstanding candidate to be treated as a category V criminal, which, in this case, means being sentenced to somewhere between 21 and 27 months’ imprisonment. See Valdes,
Quite simply, nothing in the record suggests that Rosales-Bruno falls outside the “heartland” of convicted-felon, category V illegal reentrants. See, Kimbrough,
After all, the purpose of considering the “heartland” or the “mine-run” case is “to avoid excessive sentencing disparities,” id. at 107,
So, again, the fact that Rosales-Bruno has a worse criminal record than most other illegal reentrants does not place him outside the relevant “heartland.” Of course he has a worse criminal record. That is why the Guidelines place him in criminal history category V and increase his advisory range accordingly. But in considering whether Rosales-Bruno falls outside the “heartland” for purposes of justifying an upward variance from the sentencing range applicable to category V illegal reentrants, we must compare Rosales-Bruno to defendants who have similar records and thus are treated similarly under the Guidelines.
Properly understood, then, the question of whether Rosales-Bruno falls “outside the heartland to which the Commission intend[ed] individual Guidelines to apply,” Kimbrough,
Indeed, while I do not mean in any way to condone Rosales-Bruno’s lengthy criminal history, I suspect that the criminal history of most convicted-felon, category V criminals is as bad or worse. The district court insisted, as does the Majority opinion, that Rosales-Bruno lacked proper respect for the law, needed to be deterred, and presented a risk of harm to the public. See 18 U.S.C. § 3553(a)(2)(A)-(C). All of that is true, but all of that is equally true of other convicted-felon, category V illegal reentrants. These concerns explain why the Commission increased Rosales-Bruno’s advisory range from 0-6 months to 21-27 months, just as it did for all other convicted-felon, category V illegal reen-trants. But these concerns do nothing to explain why the district court then more than tripled the upper end of that range— a range the Commission designed for people just like Rosales-Bruno.
In short, Rosales-Bruno is a “mine-run” convicted-felon, category V illegal reen-trant, and it is clear that “the sentencing judge varie[d] from the Guidelines based solely on the judge’s view that the Guidelines range fail[ed] properly to reflect § 3553(a) considerations.” Irey,
C.
Rosales-Bruno’s sentence appears all the more unreasonable in light of the “degree of variance ... and ... the extent of [the] deviation! ] from the Guidelines,” which we are free to consider. Gall,
The Supreme Court has made clear that, when variances are imposed, the district court’s justification must be “sufficiently compelling to support the degree of the variance,” with “a major departure” requiring “a more significant justification than a minor one.” Gall,
In reaching this conclusion, I am not seeking to require an unprecedented degree of explicit comparison between offenders before a district court may sentence a defendant. All I would require is that the sentencing judge give a credible justification for a major variance from the Guidelines beyond factors that are typical of defendants subject to the same advisory range. This is precisely what is required by the Supreme Court and by Chief Judge Carnes’s opinion for this court in Ivey, where we said Irey’s sentence was too low. See
D.
Section 3553(a)(2)(A) requires that a sentence “reflect the seriousness of the offense ... and provide just punishment for the offense.” 18 U.S.C. § 3553(a)(2)(A) (emphasis added). The district court’s consideration of this factor was clearly unreasonable. It is critical here to recall that Rosales-Bruno is not being sentenced for abusing his girlfriend or for driving drunk. He has already been punished for those crimes, and his punishment under the Guidelines for the instant crime has already been increased substantially as a result of those past offenses.
He is being sentenced for illegal reentry under 8 U.S.C. § 1326,
Indeed, consideration of the circumstances surrounding Rosales-Bruno’s illegal reentry into the United States makes a 60-month upward variance seem outrageous. Rosales-Bruno has a daughter in the United States, and he apparently reentered the United States to resume gainful employment in the citrus processing industry. Of course, it is illegal for Rosales-Bruno to be in the same country as his child and to continue working here as he had before he was deported, but spending more than 2 years in prison for this crime certainly seems like punishment enough. And spending more than 7 years in prison for this offense is plainly too much. See 18 U.S.C. § 3553(a)(2)(A).
* * %
On balance, the § 3553(a) factors clearly do not support an above Guidelines sentence in this case, and varying so significantly above the Guidelines based on facts about Rosales-Bruno’s history that are common to most people in the applicable Guidelines range was clearly even more unreasonable. See, e.g., Gall,
II.
We have never vacated a sentence because it was too high, imposing a sentencing ceiling on remand. By contrast, on numerous occasions, we have vacated sentences because they were too low and imposed a sentencing floor. See, e.g., Irey,
A.
Our case law has been so one-sided that we have convinced at least one member of this court, Judge Martin, that we do not actually place an upper limit on sentencing discretion, despite our pretensions to the contrary. That is, she believes that we have been so obvious in applying our unwritten “severity principle” that it is now the law of our circuit.
Judge Martin then articulated the two different standards of review that she sees being applied depending on whether a sentence is harsh or lenient:
My reading of these cases tells me that in considering sentences above the Guideline range, we look only to whether the sentencing court seemed to consider the § 3558(a) factors and we ignore whether the court might have disregarded one of the factors or weighed the factors in an unreasonable way. In contrast, for downward variances, we show no such deference and instead scrutinize how a sentencing court applied each and every § 3553(a) factor. We even go so far as to decide for ourselves whether the factors were weighed correctly.
... In downward variance cases such as Irey ..., we vacated sentences on the ground that they failed in effect to give real weight to the Guidelines or to adequately reflect the Guidelines’ policy statements and underlying concerns....
... In sum, even though our case law purportedly requires a significant justification to support a major departure from the Guidelines, the panel’s review of Mr. Early’s 116 percent upward variance evinces little indication that such a requirement even applies here.
Id. at 1223-25 (citations and internal quotation marks omitted). Unmistakably, that requirement does apply here.
B.
The Majority opinion disputes that we have adopted a severity principle in our review of sentencing decisions, citing three cases which, in the Majority’s view, prove that we have vacated overly-harsh sentences as substantively unreasonable. These cases indicate, however, that the sentences were not actuálly vacated because they were too long.
The distinction is critical because Valdes, unlike Irey, left open the possibility that the district court could impose the same sentence on remand if a more thorough explanation were offered. Again, in Irey, it did not matter what reasons the district court gave for its downward variance or whether it gave those reasons (as indeed it did); no sentence explanation could render any downward variance substantively reasonable in that case, and we instructed the district court to sentence Irey within the advisory range. See Irey,
Nor does our unpublished opinion in Lopez,
Further, regardless of whether the Majority opinion is correct that Lopez represents vacatur on substantive grounds alone, that decision, which was unpublished, did very little to eliminate any unwritten severity principle in our law. And if Lopez applied the standard in this circuit for vacating harsh sentences, then it strongly supports reversal here. After all,
Thus, Valdes and Lopez only strengthen my contention that Rosales-Bruno’s sentence should be vacated. In those cases, as here, the district court varied above the Guidelines based on factors that were already incorporated into the Guidelines without providing any other justification for varying upward so substantially. See Valdes,
There is another reason that Valdes and the third case the Majority opinion cites, our unpublished opinion in United States v. Gardner,
The rule underlying those decisions is no longer good law. Valdes and Gardner cited McVay,
Consequently, to the extent the cases cited by the Majority opinion do reverse at least in part on substantive grounds, those same grounds plainly support reversal in this case. And my point remains: we have never expressly vacated a sentence as substantively unreasonable because it was simply too long and imposed a sentencing ceiling on remand. By contrast, we have not hesitated to vacate a sentence as substantively unreasonable because it was simply too short, and in many of those cases, we imposed a sentencing floor on remand. See, e.g., Irey,
If we do not vacate unreasonably long sentences like the one imposed here, district courts can assume that upward variances from the Guidelines are essentially per se reasonable and will not be reversed. At the same time, Irey proves that the same is not true of downward variances. Thus, while we are bound to apply the same abuse of discretion standard when reviewing the substantive reasonableness of all sentences, we have given the impression that we are more likely to vacate a lenient sentence than a harsh one, “even where the extent of the variance from the Guideline range was far smaller and where the reasons given by the sentencing court were more substantial.” Early,
The statistics cited by the Majority opinion, which show that district courts vary downward more frequently than they vary upward, do nothing to suggest that district courts have failed to pick up on the implicit message we have sent.
Ultimately, I agree to a certain extent with Judge Martin, Judge Barkett, and other commentators who point out that we appear to be applying different standards of review depending on whether a sentence is challenged as too long or too short. I disagree, however, that these different standards of review have become, through misapplication, the law of this circuit. Irey articulátes the only standard we use to review sentences for substantive reasonableness, and that standard applies regardless of whether a sentence imposed by the district court is challenged as too lenient or too harsh. Applying that standard here requires vacatur of Rosales-Bruno’s unreasonably harsh, far above-Guidelines sentence.
The district court improperly calculated Rosales-Bruno’s sentence as 87 months — a within-Guidelines sentence based on an erroneous calculation of the Guidelines. On remand, the court imposed the same sentence — a triple-upward variance. Having examined the record, the factors, and the district court’s reasons for imposing this sentence, I am convinced that this major variance was not supported by a significantly compelling justification, nor were the Guidelines given any weight or consideration. Thus, I would vacate Rosales-Bruno’s sentence and remand for resen-tencing. Moreover, failure to do so here reinforces the perception that there is a double standard of review in the Eleventh Circuit — giving greater deference to sentences above the recommended Guidelines range than those below.
We recognized in Irey that “there is a difference between deference and abdication. If there were no difference, if we did not have a meaningful role to play, we would never have set aside any sentences as substantively unreasonable, but we have.” Irey,
. I do not need to reach whether the Majority opinion is correct in finding that this court's review is limited to substantive reasonableness or whether Rosales-Bruno’s sentence also warrants vacatur for procedural error. To the extent procedural error may be narrowly characterized as whether the district court stated that it considered the factors and did not err in calculating the Guidelines, I agree that no such error occurred. If, however, procedural error includes giving insufficient weight to the Guidelines or our prior decision, then those issues, however labeled, are squarely before us.
In his opening brief, Rosales-Bruno argues that none of the Guidelines factors account for the major variance imposed on remand and that "[t]he coincidence of the vacated sentence and the sentence imposed on remand” make it “quite clear that the district court intended to bypass this Court's published opinion with or without sufficient justification.” For these reasons, Rosales-Bruno avers that his sentence was “unreasonable” and “unsupported by the record.” Thus, regardless of whether the grounds for vacating Rosales-Bruno’s sentence discussed here are labeled as "procedural” or "substantive,” the issues were not waived and are therefore before us. And, of course, the irregularities just quoted from Rosales-Bruno’s brief necessarily implicate substantive reasonableness concerns, even if some of the irregularities with his sentence could technically fall under the heading "procedural error.” Compare Gall v. United States,
. And, as discussed in more detail in Part I.C., it is not the mere fact that the district court varied from the Guidelines on remand that draws my criticism; rather, it is "the degree” and "extent” of the variance with which I am properly concerned. See Gall,
. In reaching our conclusion in Valdes, we relied on United States v. McVay,
. The Majority insists that I place an unreasonable burden on district courts by expecting them to know the characteristics of the "average” category V illegal reentrant with a base offense level of 10. The burden I would place on sentencing courts is no different than— and, indeed, is essential to carrying out — the burden placed on sentencing courts by Congress, which directs them to consider the need to avoid unwarranted sentencing disparities between defendants with similar records. See 18 U.S.C. § 3553(a)(6). It would be impossible to avoid unwárranted disparities between defendants with similar records — such as, for example, defendants in the same criminal history category — without having some idea what the typical, "heartland,” "mine-run” category V criminal was like. By insisting that district courts consider the "average” defendant with a particular offense level and criminal history category, I insist only that district courts use their common sense and experience to ensure that defendants with similar records who commit similar crimes are sentenced similarly. This calls on district court judges to use good judgment, not to conduct a statistical analysis.
. Irey candidly recognizes the internal tension in the rule that the reason for a variance must be sufficiently compelling to support the degree of the variance but that a proportionality requirement is prohibited. See
. Rosales-Bruno was convicted of illegal reentry in violation of 8 U.S.C. § 1326(a). Subsections (b)(l)-(2), which provide for enhancements based on prior convictions, are sentencing enhancements, not different crimes.. See, e.g., Almendarez-Torres v. United States,
.The Majority accurately observes that illegal reentry under 8 U.S.C. § 1326 is subject to a two-year maximum sentence, but that, pursuant to § 1326(b)(1), the statutory maximum increases to ten years for illegal reentrants like Rosales-Bruno who were deported following a felony conviction. Again, however, the Guidelines account for Rosales-Bruno’s prior felony conviction, as evidenced by the fact that the upper end of his advisory range, 27 months, exceeded the statutory maximum for a simple violation of § 1326 without a sentencing upgrade under § 1326(b)(1). So, it is perfectly clear that the applicable Guidelines range was already adjusted to reflect the increased seriousness of Rosales-Bruno’s offense. And it is well worth noting that Rosales-Bruno’s illegal reentry fell into the statutory mid-range of seriousness, not at the upper end of the spectrum as one might expect in a case where the district court imposed such a massive upward variance. Compare 8 U.S.C. § 1326(b)(1) (punishing illegal reentry following deportation for a felony to a maximum of 10 years' imprisonment), with § 1326(b)(2) (punishing illegal reentry following deportation for an aggravated felony to a maximum of 20 years’ imprisonment).
. Adjusting only for his prior felony conviction, Rosales-Bruno’s offense level was 8, which carries advisory ranges beginning at 0-6 months, depending on criminal history category.
. I do not mean to suggest that Rosales-Bruno deserved a downward variance, but there are more facts in the record to support a downward variance than to support trebling the Guidelines. That is because, unlike the
. Judge Barkett (now retired) identified the same problem even before Irey was decided. In United States v. Docampo, she explained that "we essentially pose two separate questions: (1) Is the sentence enough punishment? and (2) Is the sentence too much punishment? Appellate courts have had no difficulty finding unreasonableness when asking the former. ... Our appellate sentencing review should not develop into a one-way ratchet upwards.”
. In a sign that others have noticed the dichotomy Judge Martin described in our
. I reiterate that my position would not deprive sentencing courts of the substantial discretion they enjoy post-Booker. I agree with our decision in Early to affirm the sentence imposed even though it was more than two times the upper end of the Guidelines range.
. The Majority opinion suggests that there is an important distinction to consider between substantive and procedural reversals; that the remand in Valdes based on "the reasons discussed” is a substantive ground, whereas remand based on "the discussion of the reasons” would have rendered it procedural. My point is not to quibble over labels. Instead, my point is that remanding because "the reasons discussed were inadequate” leaves open the possibility that there were other reasons that were not discussed that could be adequate to support the sentence imposed. See Valdes,
. Chief Judge Carnes looks to Mark Twain for wisdom — but I recall that Mr. Twain also once proclaimed, “There are three kinds of lies: lies, damned lies, and statistics.” See Mark Twain, Chapters from My Autobiography — .XX, 186 N. Am. Rev. 465, 471 (1907) (attributing the expression to Benjamin Disraeli). The point being that accurate data can be manipulated to make invalid points. Accordingly, I have no reason to question the accuracy of the sentencing data relied on by the Majority opinion. Instead, I dispute that a recitation of district court sentencing statistics proves what the Majority claims about how our precedent affects district court decisions. Contrary to Chief Judge Carnes’s implications, statistics about what the district courts do in sentencing does absolutely nothing to counter my concern that, on appellate review, we are applying different principles depending on the sentence before us.