UNITED STATES of America, Appellant v. Hector MERCED, a/k/a Braveheart.
No. 09-1844.
United States Court of Appeals, Third Circuit.
Argued March 8, 2010. Filed April 20, 2010.
599 F.3d 203
Before: AMBRO, SMITH, and MICHEL *, Circuit Judges.
John F. Romano, (argued), George S. Leone, Office of United States Attorney, Newark, NJ, for Appellant. Louise Arkel, (argued), David A. Holman, Office of Federal Public Defender, Newark, NJ, for Appellee.
With respect to Rainey‘s remaining claims, the District Court concluded that they were procedurally defaulted. Because Rainey‘s layered ineffectiveness claim, the sole claim before us, fails on the prejudice prong, Rainey is not entitled to habeas relief.6
Notes
IV.
For the foregoing reasons, we will affirm the District Court‘s denial of Rainey‘s habeas petition.
tion claiming ineffective assistance of trial counsel. The District Court denied Everett‘s petition. Everett appealed, and we reversed, concluding that counsel was ineffective for failing to object to the jury instructions. With respect to prejudice, we held that “but for the failure of counsel to object to the jury instructions, there is more than a reasonable probability that Everett would not have been convicted of first-degree murder because there was no evidence that he possessed the requisite specific intent to kill.” Id. at 515-16.
Rainey contends that Everett controls the outcome of the instant appeal; we disagree. In Everett, in holding that the petitioner was prejudiced by his first-degree murder conviction, we did not address his sentence. Subsequent to our decision in Everett, the Supreme Court has reemphasized in a number of cases that prejudice under Strickland requires a showing of a reasonable probability of a different result, that is, a different sentence. See, e.g., Porter v. McCollum, — U.S. —, 130 S.Ct. 447, 453, 175 L.Ed.2d 398 (2009) (“Porter must show that but for his counsel‘s deficiency, there is a reasonable probability he would have received a different sentence.“); Wong v. Belmontes, — U.S. —, 130 S.Ct. 383, 386, 175 L.Ed.2d 328 (2009) (“[T]o establish prejudice, Belmontes must show a reasonable probability that the jury would have rejected a capital sentence....“); Wiggins v. Smith, 539 U.S. 510, 536, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (“We further find that had the jury been confronted with this considerable mitigating evidence, there is a reasonable probability that it would have returned with a different sentence.“). In light of these Supreme Court cases, we are squarely addressing the issue of whether Rainey would have received the same sentence even if his counsel had challenged the sufficiency of the evidence. Thus, the instant case is clearly distinguishable from Everett.
SMITH, Circuit Judge.
Hector Merced pleaded guilty to a drug possession charge and was sentenced to
I.
On June 27, 2007, Merced sold 49.1 grams of crack cocaine to an undercover police officer. Merced received $1,500 from the sale, and expressed willingness to do more deals in the future. He was arrested on January 14, 2008. He pleaded guilty to one count of distributing and possessing with intent to distribute five grams or more of crack cocaine, in violation of
A pre-sentence report (PSR) was prepared. The PSR recounted Merced‘s extensive criminal history, which included:
- a 1997 conviction for possession of controlled dangerous substances (“CDS“)—specifically, 41 bags of crack cocaine and a bag of marijuana—with intent to distribute within 1000 feet of school property;
- two 1998 convictions for prowling public places;2
- a 1999 conviction for possession of CDS (15 bags of cocaine) with intent to distribute within 1000 feet of school property;
- a 2001 conviction for receiving a stolen vehicle;
- a 2001 conviction for possession of CDS (52 bags of heroin and 8 bags of crack cocaine) with intent to distribute within 1000 feet of school property; and
- a 2006 conviction for conspiracy to distribute CDS (23 bags of marijuana).
Due to his criminal history, Merced qualified as a career offender under U.S.S.G. § 4B1.1. That provision applied because (1) Merced was more than 18 years old when he participated in the June 27, 2007 crack cocaine deal, (2) his crime was a controlled substance offense, and (3) he had two or more prior felony convictions that were controlled substance offenses. See U.S.S.G. § 4B1.1(a). Merced‘s career offender status increased his offense level to 34, id. § 4B1.1(b); a three-level reduction for acceptance of responsibility lowered that level to 31. Id. § 3E1.1. The PSR placed him in Criminal History Category VI. Id. § 4B1.1(b). His combined offense level and Criminal History Category yielded an advisory Guidelines range of 188 to 235 months. Absent the career offender provision, his base offense level would have been 28, his adjusted offense level 25, and his Guidelines range 110-137 months.
Both parties filed memoranda before the sentencing hearing. Merced argued for a below-Guidelines sentence. He acknowledged that the Guidelines range of 188-235 months had been correctly calculated, but argued that the resulting Guidelines sentence was “exceedingly harsh” and not justified under the sentencing factors of
The government advocated a sentence within the Guidelines range and urged the court to reject Merced‘s Kimbrough attack on § 4B1.1. It argued that Kimbrough was inapposite because, unlike the crack cocaine Guidelines at issue in that case, the career offender provision that dictated Merced‘s recommended sentence reflected not only the Sentencing Commission‘s exercise of its unique institutional role, but also direct “congressional involvement in the setting of punishment for certain recidivists.” (A. 53-55, citing
Finally, the government turned to the sentencing factors and argued that each relevant factor weighed in favor of a Guidelines sentence. It emphasized Merced‘s criminal history, which included at least five drug-related convictions, and the seriousness of his offense. See
The District Court held a sentencing hearing on February 24, 2009. At that hearing, the Court took particular interest in the application of the career offender provision. All parties agreed that Merced was eligible for career offender status under a mechanical application of § 4B1.1. The point of debate was not Merced‘s technical eligibility, but whether the Court should sentence him within the range generated by applying that provision. Throughout the hearing, the District Court was obviously wrestling with two competing realities. The first was that Merced was a 31-year-old career criminal who had not been deterred by the punishment he received for his prior convictions. The second was that many of the crimes that brought Merced within § 4B1.1 were “street level” offenses that the Court did not consider to be terribly serious. This tension between the numerosity and the severity of Merced‘s crimes led the District Court to engage in an on-one-hand-on-the-other-hand dialectic several times during the hearing. For example:
[Merced has] been a repetitive drug—street drug dealer, okay? He just doesn‘t get it. I mean, he‘s been on the street dealing drugs, relatively small amounts compared to what I often see, but he‘s been doing it repetitively.... And it begins at a very young age, it begins at 19. He‘s 31 years of age now. It begins at 19. A lot of what‘s in his record with the exception of four prior drug arrests, a lot of it is the type of stuff that you see with people who are dealing with drugs on the street level. I‘m not minimizing it, but, you know, public—prowling, public places, a couple of municipal court violations.
After walking through the specifics of Merced‘s criminal history, the Court returned to this issue. He acknowledged that “there are career offenders and there are career offenders.... But he hasn‘t learned.” In the same vein, the Court later noted that “we‘re talking about a relatively small sale of crack cocaine at the street level. But it‘s his fifth time he‘s done this now.... I don‘t know when he‘s going to wake up.”
In the midst of his oral ruminations, however, the District Court revealed another possible reason for its reluctance to sentence Merced as a career criminal. The Court told Merced that he needed to realize that “he can‘t make a living like this” because “another judge might [apply] the career offender status recommendation.... I have a problem with that. I mean, I kind of reserve career offender status for violent, significant drug deals, that type of thing, even though the guidelines may advise that it‘s appropriate.” (A. 76, emphasis added.) The Court did not explain either how it arrived at this personal sentencing policy, or why it be-
During the hearing, the District Court also took note of several § 3553(a)(1) factors that in its view favored a downward variance. He observed the relatively small quantity of crack involved in Merced‘s latest offense, the “street level” nature of Merced‘s previous crimes, the fact that Merced “probably [has] a drug problem himself,”4 Merced‘s troubled childhood, and his strong relationships with his girlfriend and son. The District Judge noted that the longest prison term Merced had received for any of his previous crimes was, at most, four years, and reasoned that no matter what, he was facing “more [jail time] than he‘s done before.” The government conceded that Merced was a relatively low-level dealer, and not “the main connect around here who is bringing in kilos of heroin and coke.” It emphasized, however, that this was Merced‘s sixth drug crime, and remained adamant that Merced deserved a Guidelines sentence because he had not “learned his lesson” from previous arrests. The Court was not persuaded: “Looking behind and looking at his criminal record, which gets into the individual circumstances of his conduct and his history, it just is an excessive guideline recommendation, in this Court‘s opinion.”
After Merced read a letter to the Court accepting responsibility for his crime, the District Judge undertook a formal analysis of the § 3553(a) factors. We reprint this analysis in full, because just as important as what the Court said is what it did not say. Specifically, it made no mention of
That‘s my responsibilit[y] under 3553, to impose a sentence that‘s sufficient but not greater than necessary. I have to look at the nature of the circumstances of the offense, and I certainly have here. The offense before me itself is in all respects a relatively small offense compared to what I deal with on drug cases frequently. I‘m not minimizing it, but I have to put it in some context.
But the history and characteristics of the defendant. It‘s clear, and I‘ve said it already, he hasn‘t learned his lesson since he was 19 years old. He‘s had a number of different involvements and convictions for possession with intent to distribute, mostly in state court, mostly small amounts, glassine bags, marijuana, crack cocaine. Clearly, it shows that he‘s resorted to being a street dealer. Maybe not all the time, but when he‘s in need of money. And his biggest sentence up to now was 30 months to 4 years.
I don‘t know if he served—he had 4 years with a 30-month mandatory minimum. I don‘t know if he served more than 30 months or not. But he still didn‘t get it is my problem. And as I‘ve said already, statutorily he‘s faced with at least 60 months [here]. I‘m not sure that‘s going to be enough time for him to wake up and get it. Okay?
There are some—you know, look, he‘s unfortunately somewhat a product of his upbringing. You know, it appears that his upbringing—his parents were drug users and perhaps even violent; yet, there are some good things, at least hopeful things about him. He appears to have—considering his conduct in terms of being in the streets with drugs,
he‘s maintained a consensual union with his girlfriend for over 12 years. That‘s probably the strongest thing going in his life. He has one child from this relationship and one child from a previous one. He says he has a harmonious relationship with this woman, and he appears to at least attempt to want to take care of his kids. I don‘t see that all the time in these cases. He says he‘s tried to gain employment but he‘s faced obstacles. And, of course, he‘s going to face more obstacles with the stronger criminal record that he has. I think a substantial variance is warranted. It‘s a serious crime, but I put it in context looking at his record. There‘s a need to deter others from this type of street conduct but, you know what? There‘s a need to deter him. And he hasn‘t gotten it yet. And there is some need to protect the public from people who feel that they can go out when they are struggling and sell drugs on the street. I also have a duty not to impose an unnecessarily harsh and punitive sentence for the conduct that‘s before me, even with the criminal record I have.
Based on this analysis, the Court sentenced Merced to 60 months in prison. This was the shortest prison term allowable by statute. It was also 128 months below the bottom of Merced‘s advisory Guidelines range, and 50 months below the bottom of what that range would have been even in the absence of § 4B1.1. Later, the Court issued a written Statement of Reasons (“SOR“) explaining that this variance was based on the nature and circumstances of the offense and the history and characteristics of the defendant pursuant to
The SOR did not mention the need to avoid unwarranted sentencing disparities, or the Court‘s personal policy of applying § 4B1.1 only in cases involving “violent, significant drug deals.” The government appealed the sentence pursuant to
II.
Before the Supreme Court‘s decision in Booker, the federal Sentencing Guidelines were binding on district courts; they had “the force and effect of laws.” United States v. Booker, 543 U.S. 220, 234, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Booker “held unconstitutional that portion of the Guidelines that made them mandatory,” Rita v. United States, 551 U.S. 338, 354, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), and replaced the mandatory regime with one in which the Guidelines are “effectively advisory.” Booker, 543 U.S. at 245, 125 S.Ct. 738. After Booker, sentencing courts must “consider the Guidelines range” pursuant to
“[B]oth the district court‘s crafting of an appropriate sentence and the appellate court‘s review of that sentence for reasonableness must be ‘guided by the factors set forth in
In Tomko, we held that our substantive reasonableness inquiry must be highly deferential. 562 F.3d at 568. We recognized that the sentencing judge, not the court of appeals, “is in a superior position to find facts and judge their import under
We were careful to note, however, that our adoption of a deferential standard of review for substantive reasonableness was “not an exercise in self-abnegation.” Id. at 575. We retain “an important role... in reviewing district courts’ sentencing decisions.” Id. Chief among our duties in fulfilling this “important role” is ensuring that district courts follow proper sentencing procedures. Indeed, the broad substantive discretion afforded district courts under Tomko makes adherence to procedural sentencing requirements all the more important.
“[O]ur post-Booker precedent instructs district courts to follow a three-step sentencing process.” United States v. Gunter, 462 F.3d 237, 247 (3d Cir.2006). First, the court must correctly calculate the defendant‘s Guidelines range. Id. Second, it must rule on any motions for departures. Id. Finally, “after giving both parties an opportunity to argue for whatever sentence they deem appropriate,” Gall, 552 U.S. at 49, 128 S.Ct. 586, the court must “exercise[] its discretion” through “meaningful consideration to the
“After settling on the appropriate sentence, [the court] must adequately explain the chosen sentence to allow for meaningful appellate review.” Gall, 552 U.S. at 50, 128 S.Ct. 586. In other words, it is not enough for the district court to carefully analyze the sentencing factors. A separate and equally important procedural requirement is demonstrating that it has done so. Because of the “fact-bound nature of each sentencing decision,” there is no “uniform threshold” for determining whether a court has supplied a sufficient explanation for its sentence. Tomko, 562 F.3d at 567. In some cases, a “brief” statement of reasons can be “legally sufficient.” Rita, 551 U.S. at 358, 127 S.Ct. 2456. See also United States v. Lessner, 498 F.3d 185, 203 (3d Cir.2007) (finding no procedural error notwithstanding the district court‘s “scant” discussion of the
The extent of the explanation we require of the district court may turn on whether the court has varied from the Guidelines range, and, if it has, on the magnitude of the variance. If the court imposes a sentence outside of the Guidelines, it “must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.” Gall, 552 U.S. at 50, 128 S.Ct. 586. While there is “no mathematical formula” for assessing the adequacy of a district court‘s explanation for a variance, Levinson, 543 F.3d at 196, “a major departure should be supported by a more significant justification than a minor one.” Gall, 552 U.S. at 50, 128 S.Ct. 586. See also Levinson, 543 F.3d at 197 (stating that “we may look for a more complete explanation to support a sentence that varies from the Guidelines than we will look for when reviewing a sentence that falls within a properly calculated Guidelines range“); Ausburn, 502 F.3d at 331 n. 36 (observing that the “farther a sentence varies from the advisory guidelines range, the more compelling the judge‘s reasons must be“).
With these principles in mind, we turn to the government‘s specific claims of error in this case.
III.
Significantly, the government does not challenge the substantive reasonableness of Merced‘s sentence. Its claims of error are entirely procedural. The government claims that the District Court essentially ignored the advisory Guidelines range, contrary to
Most of the government‘s claims of error are underwhelming. In particular, we reject the claim that the District Court repeatedly interrupted the government at the sentencing hearing, and would not allow it to present its case. That accusation is simply not supported by the record. We also reject the government‘s claim that the District Court ignored the applicable Guidelines range. The Court stated that it had read the PSR and the parties’ sentencing memoranda, all of which referenced the correct Guidelines range. The Court acknowledged the Guidelines range three times during the
Finally, we cannot agree that the District Court failed to adequately consider Merced‘s criminal history or the seriousness of his offense, at least as a procedural matter. As recounted above, the Court weighed both of those factors extensively at the sentencing hearing. What the government seems really to be arguing is that the Court‘s choice of sentence did not afford those factors enough weight. True or not, that is a substantive complaint, not a procedural one. The “district court‘s failure to give [certain] factors the weight [the government] contends they deserve” does not mean that those factors were not considered. United States v. Bungar, 478 F.3d 540, 546 (3d Cir.2007). The government cannot circumvent Tomko by repackaging a substantive claim of error as a procedural one. If the government wanted to argue that no reasonable court could have sentenced Merced to five years in prison, it should have argued that no reasonable court could have sentenced Merced to five years in prison.
With all of that said, two of the government‘s claims have merit. First, we agree that the District Court failed to adequately explain its apparent policy disagreement with the career offender provision of § 4B1.1, and what role, if any, that disagreement played in determining Merced‘s sentence. Second, we agree that the Court failed to explain how the variance it granted to Merced would not contribute to unwarranted sentencing disparities. These procedural errors compel us to vacate Merced‘s sentence.
A. Policy Disagreement with § 4B1.1
In the Sentencing Reform Act of 1984, Congress directed the Sentencing Commission to “assure that the guidelines specify a sentence to a term of imprisonment at or near the maximum term authorized” for adult offenders who (1) are convicted of a felony controlled substance offense or a felony crime of violence, and (2) have two or more such prior felony convictions.
At sentencing, however, the District Court stated that it “kind of reserve[s] career offender status for violent, significant drug deals, that type of thing, even though the guidelines may advise that it‘s appropriate.” We interpret this as an expression of a policy disagreement with the Guidelines over who should (or should not) be subject to the enhanced
A threshold issue is whether district courts may properly vary from the career offender Guidelines range based on this sort of policy disagreement. In Spears, the Supreme Court clarified its decision in Kimbrough and held that “district courts are entitled to reject and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines.” 129 S.Ct. at 843-44. There has been disagreement as to whether district courts are likewise free to vary from the Guidelines based on policy disagreements with § 4B1.1. The First, Sixth and Eighth Circuits hold that they are. United States v. Boardman, 528 F.3d 86, 87 (1st Cir.2008); United States v. Michael, 576 F.3d 323, 327-28 (6th Cir.2009); United States v. Gray, 577 F.3d 947, 950 (8th Cir.2009). Opinions of the Seventh and Eleventh Circuits have taken the opposite view. See United States v. Welton, 583 F.3d 494 (7th Cir.2009), overruled by United States v. Corner, 598 F.3d 411 (7th Cir.2010) (en banc); United States v. Vazquez, 558 F.3d 1224 (11th Cir.2009), vacated by Vazquez v. United States, — U.S. —, 130 S.Ct. 1135, 175 L.Ed.2d 967 (2010) (mem.). Both Welton and Vazquez held that the principles of Kimbrough are inapplicable to the career offender provision because, unlike the crack cocaine Guidelines at issue in Kimbrough, § 4B1.1 was promulgated pursuant to direct statutory command. See, e.g., Welton, 583 F.3d at 496-97 (citing
This reasoning seems to be falling out of favor. In light of Spears, the government subsequently confessed error in both Welton and Vazquez. Neither case is good law today. We need not weigh in on this issue, however, because the parties do not disagree about it. The government concedes that a sentencing court may vary downward from the Guidelines range generated by the career offender provision based solely on a policy disagreement with the scope of that provision. We will pro-
Here, the District Court committed two procedural errors. First, it never explained its statement that it “kind of” reserved career offender status for large-scale or violent drug dealers. It was unclear whether the Court was describing a categorical rule that it followed in all cases, or an informal rule of thumb that it applied only in certain cases (perhaps, but not necessarily, including Merced‘s). The Court mentioned its personal sentencing policy only once, almost in passing, and said nothing about it at the time it announced Merced‘s sentence. Thus, the extent to which its disagreement with the scope of § 4B1.1 ultimately affected Merced‘s sentence remains a mystery. The Court identified several unrelated mitigating factors that weighed in favor of a downward variance, such as Merced‘s difficult childhood, his drug problem, his strong relationship with his longtime girl-friend, and his resolve to take care of his children. Along the same lines, the Court wrote in the SOR that it was basing the variance on its assessment of
Second, if the District Court intends to vary downward based on a policy disagreement with § 4B1.1, it must better explain and justify that decision. The freedom to vary from the career offender
In Lychock, the defendant pleaded guilty to possessing dozens of images of child pornography. The Guidelines recommended a prison term of 30 to 37 months, but the district court refused to impose any jail time. The court‘s reasoning rested in part on its view that imprisoning Lychock would neither protect the public nor deter future child pornography possession by others. Id. at 216-17. The court explained:
The only benefit I could see [to imprisonment would be] as a deterrent to others, and that is a factor.... So other people would recognize that they cannot subscribe to these images with impunity. I am not persuaded that a jail term for this defendant warrants, or is to be equated with that value. The kind of psychological problem in persons who are drawn to this kind of material it seems to me is not going to be deterred by a jail term for an internet porno observer. There is no suggestion the public otherwise is threatened by his conduct.
Id. at 217 (alterations in original). We interpreted this explanation as reflecting a policy disagreement with the Guidelines, which embodied the reasoned judgment of Congress and the Sentencing Commission that the goals of sentencing would be served by imposing jail time on child pornography consumers like Lychock. Id. at 219. We allowed that such disagreement was permissible, but only if the court provided a “sufficiently compelling,” “reasoned explanation for its apparent disagreement with the policy judgments” reflected by the Guidelines range. Id. We concluded that the district court‘s justification for its lenient sentence, a mere “conclusory statement of personal belief” about the benefits vel non of imprisonment, was insufficient support for its refusal to follow the policies embodied in the Guidelines. Id. at 220. Accordingly, we vacated the sentence.13
We followed similar reasoning in Levinson. There, the defendant was the owner of a failing water cooler business who engaged in an elaborate fraud to make his company appear profitable. He ordered employees to shred documents, destroy electronic records, and create phony sales reports. He also filed false tax returns which deprived the government of over $40,000 in revenue. Levinson, 543 F.3d at 192. In reliance on Levinson‘s misrepresentations, a parent company, Elkay, invested millions of dollars in his business. Id. at 191. Levinson eventually pleaded guilty to wire fraud and filing a false tax return. He also reached a civil settlement with Elkay. Id. at 192. The Guidelines recommended a prison term of 24 to 30 months, but the district court imposed probation only. Id. at 192, 194. It reasoned that
[Levinson] put the appearance of prosperity above his respect for the law. Balanced against this is the propriety of putting into jail at a substantial cost to the public a nonviolent offender who poses little or no threat to the public and whose crimes had little impact beyond his business partners and his family....
When I look at the costs associated with putting someone like Mr. Levinson [in] jail in this day and age compared to the harm he has caused, which has been resolved amicably with his business and which certainly will impose even more harm on his family, I just can‘t see that it makes much sense. I just do not.
Id. at 194 (emphasis added, some alterations in original). We found this explanation for the court‘s substantial downward variance insufficient, and vacated the sentence. We interpreted the district court‘s refusal to imprison Levinson, based on its view that the cost of imprisonment outweighed its benefits, as a policy disagreement with the Guidelines. While reiterating that such “[p]olicy considerations are not off-limits in sentencing,” id. at 200, we emphasized that sentences influenced by policy disagreements must be accompanied by a “thorough explanation” from the court. Id. at 201. The district court‘s bare, unsupported assertion that jail time was too costly to be worthwhile—simply because Levinson‘s fraud was “white-collar” and directed at a private entity who had been made whole through a civil settlement—was insufficient to justify ignoring the “very deliberate policy choices” reflected in the Guidelines sentence. Id. at 200.
Again, we assume for present purposes that the freedom district courts enjoy under Kimbrough and Spears includes the freedom to vary from a career offender Guidelines range based on a policy disagreement. However, “such disagreement is permissible only if a District Court provides ‘sufficiently compelling reasons to justify it.‘” Lychock, 578 F.3d at 219 (quoting Gall, 552 U.S. at 50, 128 S.Ct. 586). A “sufficiently compelling” explanation is one that is grounded in the
Here, the District Court‘s explanation of its policy disagreement fell short even of the explanations found wanting in Lychock
B. Sentencing Disparities
As noted, a district court is not required to recite and make findings as to every one of the
As explained above, in Lychock, the defendant pleaded guilty to possession of child pornography and his Guidelines range was 30 to 37 months. The district court sentenced Lychock to probation and a fine, but declined to impose any jail time. This decision was based in part on its policy view that imprisoning Lychock would neither protect the public nor deter child pornography crime, Lychock, 578 F.3d at 216-17, but also in part on the court‘s analysis of several other
The need to consider the risk of unwarranted disparities also motivated this Court‘s decision in Ausburn. Unlike Lychock and Goff, which were government appeals of below-Guidelines sentences, Ausburn involved a defendant‘s appeal of an above-Guidelines sentence. The defendant in Ausburn was a police officer who engaged in a sexual relationship with a fourteen-year-old girl whom he had met while responding to a call at her home. Ausburn, 502 F.3d at 316. When the relationship was discovered, Ausburn was arrested and quickly pleaded guilty. His Guidelines range was 57 to 71 months. Id. at 318. He argued for a sentence comparable to that which had recently been handed down by the same judge in a case called Kenrick, which also involved a sexual offense against a minor. He contended that a comparable sentence was necessary to ensure “the appearance of fairness” and to avoid unnecessary disparities in sentencing. Id. at 317-18. The district court rejected his request for leniency. After a cursory recitation of the
Lychock, Goff, and Ausburn demonstrate that a district court‘s failure to analyze
Here, as in Lychock, the government voiced unmistakable concern that granting Merced a significant variance could create unwarranted sentencing disparities. In his sentencing memorandum, Merced requested a below-Guidelines sentence of less than 10 years; the government opposed that request in part because it argued that such a sentence would create unwarranted sentencing disparities between Merced and other recidivist crack cocaine dealers. This was, at a minimum, a “colorable legal argument” with a “factual basis” in the record. Cooper, 437 F.3d at 329. The District Court should have addressed it as part of its meaningful consideration of the sentencing factors. It never did so explicitly, and just as in Lychock, Ausburn, and Goff, there is no evidence that the District Court accounted for this factor at all, notwithstanding its thoughtful analysis of other factors. We reiterate that sentencing courts need not respond in detail and on the record to each and every argument presented by the parties. But they should respond to colorable arguments with a factual basis in the record. If there was some indication in the record that the District Court had considered the risk of unwarranted sentencing disparities, we might overlook its failure to explicitly analyze that factor at length, on the record, at the hearing. See Cooper, 437 F.3d at 329 (explaining that a court need not “discuss and make findings as to each of the § 3553(a) factors if the record makes clear the court took the factors into account in sentencing“) (emphasis added). Nothing in this record, however, indicates that the District Court considered
IV.
In summary, we hold that the District Court committed two errors. First, it may have sentenced Merced pursuant to a personal policy disagreement with the Guidelines; specifically, disagreement with the scope of the career offender provision of U.S.S.G. § 4B1.1. While granting a variance on such grounds may be permissible, the District Court must, at the very least, explain itself more thoroughly than it has so far. On remand, the District Judge should clearly explain whether he is granting a variance based on a policy disagreement with § 4B1.1. If so, he must justify that decision to the extent required by our precedents. Second, the District Court failed to analyze a highly relevant sentencing factor,
Our insistence that sentencing courts follow the requisite procedures by no means diminishes the “superior position” of the district judge to make those determinations so critical to a just and reasonable sentence. See Tomko, 562 F.3d at 566. Rather, requiring a “reasoned and rational justification” on the record for the sentence chosen serves several critical purposes. Grier, 475 F.3d at 572. Most basically, it allows us to fulfill our “important role,” Tomko, 562 F.3d at 575, of exercising “effective appellate oversight” as required by Supreme Court precedent. Grier, 475 F.3d at 572. But it also serves an even higher purpose within our system of criminal justice. Requiring coherent explanations of sentence “instill[s] public confidence in the judicial process.” Id. It “assure[s] the parties of the fairness of the proceedings,” “demonstrat[es] the serious reflection and deliberation that underlies each criminal sentence,” and “offers the defendant, the government, the victim, and the public a window into the decision-making process and an explanation of the purposes the sentence is intended to serve.” Id. See also Rita, 551 U.S. at 356, 127 S.Ct. 2456 (“Confidence in a judge‘s use of reason underlies the public‘s trust in the judicial institution. A public statement of those reasons helps provide the public with the assurance that creates that trust.“). We believe that each of these important interests is served by our decision today.
“We do not suggest that the original sentence reflects anything less than the sound judgment of the District Judge, or that the final sentence should necessarily
The judgment of sentence will be vacated, and the case remanded for re-sentencing.
AMBRO, Circuit Judge, concurring.
I fully join my colleagues in concluding that the District Court erred procedurally by failing to explain its apparent policy disagreement with the career offender provision, U.S.S.G. § 4B1.1, and by failing to consider the need to avoid unwarranted sentencing disparities,
I.
It is, of course, not always the case that, when a district court varies from the career offender Guideline range, it has done so based on a “policy disagreement” with § 4B1.1. Rather, a variance from that range often may reflect a sentencing court‘s determination that, “despite meeting the formal criteria for career offenders,” the defendant‘s individual circumstances “fall outside the guideline‘s heartland or intended scope.” United States v. Pruitt, 502 F.3d 1154, 1170 (10th Cir.2007) (McConnell, J., concur-
Turning to our case, this is how Merced seeks to characterize the District Court‘s variance: he argues that, rather than basing its sentencing decision “on a categorical policy about the career offender provision in general[,] ... the District Court grounded its sentence firmly in the individual circumstances of Mr. Merced‘s case, as filtered through the § 3553(a) factors.” (Appellee‘s Br. at 28.) The Court similarly characterized its sentence as solely based on its evaluation of “the nature and circumstances of the offense and the history and characteristics of” Merced,
Yet the Court‘s stated policy of reserving a sentence within the career offender Guideline range for “significant, violent drug deals” is essentially a rejection of § 4B1.1‘s policy of treating repeat drug offenders—regardless of the quantity of drugs involved or whether the defendant‘s offense or prior offenses involved violence—as offenders whose Guideline ranges should be at or near the statutory maximum sentence. Stated another way, the Court imposed new, categorical factors (the quantity of drugs involved and whether the offense or predicate offenses involved violence) in determining the appropriateness of a sentence within the career offender Guideline range. Cf. United States v. Moreland, 437 F.3d 424, 436 (4th Cir.2006) (noting that the career offender provision is “fraught with potential imprecision,” and “covers a broad range of offenders, encompassing the street-level dealer who handles only small quantities of drugs and the drug kingpin or the recidivist with a history of violence“) (internal quotation marks omitted); see also Pruitt, 502 F.3d at 1167 (McConnell, J., concurring) (noting that, under § 4B1.1, “it does not matter, for sentencing purposes, whether [the defendant‘s] prior drug felonies were large-scale or petty, violent or nonviolent“). In that light, I believe the Court‘s variance is best understood as motivated by a policy that “applies to a wide class of offenders or offenses,” United States v. Cavera, 550 F.3d 180, 191 (2d Cir.2008) (en banc)—and one that disagrees with the policy underlying § 4B1.1—rather than a straightforward application of the § 3553(a) factors to reach a reasonable sentence for a defendant whose circumstances fall outside the intended scope of the career offender provision.
Though the line between a variance based on a “policy disagreement” with § 4B1.1 and one based on an “individualized determination” of a particular career offender‘s circumstances is less than precise, it is vital that we give district courts
Though we are not required in this case to determine whether the District Court‘s seeming policy disagreement survives such “closer review” (as the Court did not explain its policy in light of the § 3553(a) factors), I nonetheless believe that we should determine (before remanding for resentencing) whether a sufficiently explained policy disagreement with § 4B1.1 is a permissible ground on which to vary from the Guidelines. I address this second question below.
II.
Until recently, the Government had taken the position that district courts were not free to vary from the career offender Guideline range on policy grounds. The Circuit Courts for the Seventh and Eleventh Circuits previously agreed, and concluded that district courts are not authorized under Kimbrough to vary based on policy disagreements with the career offender provision because § 4B1.1 was promulgated by the Sentencing Commission in direct response to a statutory directive in
As the majority notes, this position is “falling out of favor.” Maj. Op. at 218. The Government has now abandoned it, see Appellant‘s Br. at 24 (conceding that policy disagreements “may be the basis for varying from the career offender [G]uideline“), Welton was overruled by the en banc Seventh Circuit Court, and Vazquez was vacated by the Supreme Court. Moreover, each of the First, Sixth, and Eighth Circuit Courts have concluded that, after Kimbrough, district courts may vary from the career offender Guideline range based on a policy disagreement (just as they may for any provision of the Guidelines). See United States v. Gray, 577 F.3d 947, 950 (8th Cir.2009); United States v. Michael, 576 F.3d 323, 327-28 (6th Cir.2009); United States v. Boardman, 528 F.3d 86, 87 (1st Cir.2008) (“[W]e do not see why disagreement with the Commission‘s policy judgment (as expressed in [§ 4B1.1]) would be any less permissible a reason to deviate than disagreement with the guideline policy judgment at issue in Kimbrough.“).3
I have no hesitancy reaching the same conclusion. Section 994(h) is directed to the Sentencing Commission, not sentencing courts, and does not purport to limit their sentencing discretion.4 See Michael, 576 F.3d at 328 (“By its terms, [§ 994(h)] tells the Sentencing Commission, not the courts, what to do.“); Sanchez, 517 F.3d at 663 (same). And though Kimbrough cited § 994(h) as an example of “Congress... direct[ing] sentencing practices in express terms,” 552 U.S. at 103, 128 S.Ct. 558, it did not thereby suggest that the policies reflected in § 994(h) are binding on sentencing courts. Rather, Kimbrough cited § 994(h) in the context of explaining why a different statutory provision,
Moreover, our Court recently rejected the basic premise underlying Welton and Vazquez in the context of sentencing disparities resulting from “fast-track” programs, which apply in certain judicial districts and authorize a downward departure if a qualifying illegal immigrant defendant pleads guilty and waives his or her appellate rights. See United States v. Arrelucea-Zamudio, 581 F.3d 142, 145-46 (3d Cir.2009) (citing U.S.S.G. § 5K3.1); see also Vazquez, 558 F.3d at 1229 (concluding that district courts may not vary based on a policy disagreement with the career offender provision because the enhanced sentencing ranges provided for in § 4B1.1, like the disparities resulting from fast-track programs, are “the result of ‘direct congressional expression’ “). There we rejected the Fifth, Ninth, and Eleventh Circuit Courts’ conclusion that district courts may not consider disparities resulting from the limited availability of the “fast-track”
In sum, I believe, and would hold, that the Supreme Court‘s reasoning in Kimbrough extends to § 4B1.1 and that district courts are authorized to vary from the career offender Guideline range on policy grounds. Save these statements and my supplemental comment in the first note of this concurrence, I join Judge Smith‘s excellent opinion in full.
D. BROOKS SMITH
UNITED STATES CIRCUIT JUDGE