Lead Opinion
The court delivered a PER CURIAM opinion.
SUTTON, J. (pp. 735-741), delivered a separate concurring opinion.
OPINION
Paul Buchanan pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). After his sentencing hearing, the district court sentenced him to 77 months of incarceration and 3 years of supervised release. Buchanan appeals. Because the district court did not err in calculating his advisory sentence under the guidelines and because the sentence is a reasonable one, we affirm.
I.
On May 5, 2004, Memphis, Tennessee police officers noticed two people “sitting down on the side of a residence which was a known drug location.” JA 47. One of the individuals was Paul Buchanan. When the officers stopped their vehicle in front of the house, Buchanan “took off his shirt, dropped it on the steps where he was sitting” and approached the officers. Id. Without any prompting, Buchanan volunteered to the officers “that he was staying there and getting high.” Id. Upon hearing this, the officers detained Buchanan and searched the area. Under Buchanan’s shirt, they discovered a loaded .38 caliber revolver.
On July 20, 2004, a federal grand jury indicted Buchanan for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Buchanan pleaded guilty to this charge on November 24, 2004.
The presentence report set Buchanan’s base offense level at 24 because he had committed the felon-in-possession crime “subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense.” JA 48; see U.S.S.G. § 2K2.1(a)(2). Buchanan’s 23 criminal-history points gave him a criminal-history category of VI. At the sentencing hearing on March 31, 2005, the district court adopted these calculations and, with the government’s blessing, adjusted the
After it heard testimony from Buchanan and his pastor, the court considered the factors in 18 U.S.C. § 3553(a) to determine an appropriate sentence. Weighing a variety of concerns to “consider[ ] Mr. Buchanan as an individual,” JA 42, the court determined that the guidelines sentence in this case was appropriate “given [Buchanan’s] criminal history, given the need to deter crime [and] given the seriousness of the offense,” JA 41^42.
II.
In United States v. Booker,
After considering “the nature and circumstances of the offense,” § 3553(a)(1), and “the need for the sentence imposed ... to reflect the seriousness of the offense [and] to promote respect for the law,” § 3553(a)(2), the court noted that Buchanan’s “offense is very serious.... [T]he defendant was high in possession of a firearm.... And it would have been very easy for someone to have been killed or injured in those circumstances, because he wasn’t himself. I’ve heard enough from Mr. Buchanan today to believe that he would not willingly hurt someone. But when you are not yourself, when you are drunk or high, it is very easy for someone to be hurt when you possess a firearm. So the offense is a very serious one. One needs to promote respect for the law and one needs a significant sentence in the face of a serious offense to do that.” JA 39-40.
Reflecting upon the need “to afford adequate deterrence to criminal conduct,” § 3553(a)(2)(B), the court noted that “there are people all over this community who are doing exactly what Mr. Buchanan was doing. That is to say, they are felons in possession of firearms. They are using drugs illegally and it seems to be very hard to deter them.” JA 40.
To account for the need “to protect the public from further crimes of the defendant,” § 3553(a)(2)(C), the court analyzed the “likelihood of recidivism” in the context of Buchanan’s “extensive criminal history,” JA 40. Looking “behind the criminal history — in other words, not to be driven by the points,” the court found “a history of violence and drug use.” JA 41. The court explained that this history did “not predict well for protecting the public from further crimes of this defendant,” id.; although the court believed “the defendant does not
To consider the need “to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner,” § 3553(a)(2)(D), the court noted that it believed Buchanan “could benefit from intensive drug treatment .... in a prison setting” but that “it is a wash as far as whether it is three years, or six years, or ten” because “[h]e will benefit as much in three years as he will in ten years from that perspective,” JA 41.
“[Considering and weighing all those factors,” the judge determined that, with the exception of § 3553(a)(2)(D), they “weigh in favor of a Guideline sentence.” JA 41. He noted that if he had not heard from Buchanan and his pastor, he “would have sentenced Mr. Buchanan to the maximum [he] could have sentenced him under the law because of his criminal history and the nature of the offense.” JA 42. But “having heard from them and trying to resolve [the] tension between uniformity and considering the individual,” the judge said he “believe[d] [Buchanan] wants to turn his life around” and he believed that Buchanan could do so. JA 42.
In our view, the court demonstrated a model approach to sentencing in the aftermath of Booker. The judge properly calculated the guidelines range, then carefully considered the appropriateness of that range as applied to the defendant before him in light of the concerns encompassed by the statutory factors. Balancing competing interests, goals and individual characteristics, the court found the recommended guidelines range to be appropriate and chose to sentence Buchanan at the bottom of that range to “impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth” in the § 3553(a)(2) factors. 18 U.S.C. § 3553(a).
In challenging that conclusion, Buchanan principally argues that the district court “improperly interpreted the holding of Booker to state that a sentence within the Guideline range was presumptively reasonable” and “treated the Guidelines as presumptively reasonable.” Buchanan Br. at 14. To the extent Buchanan means to say that trial judges may not give an irrebuttable presumption of reasonableness to a guidelines sentence, he is right. Such an approach cannot be squared with Booker. See, e.g., United States v. Webb,
Buchanan also complains that the court imposed an unreasonable sentence that was “greater than necessary to punish” his actions. Buchanan Br. at 7. He
III.
For these reasons, we affirm.
Concurrence Opinion
concurring.
While I fully concur in the court’s decision to affirm the district court’s application of our post-Booker sentencing requirements, I write separately to discuss the “presumption of reasonableness” that we applied in this case.
By my count, six circuits have held that a district court’s decision to sentence a defendant within the range of the advisory guidelines receives a “presumption of reasonableness” upon appeal. United States v. Williams,
While the four circuits that have declined to adopt the presumption offer reasonable bases for doing so, the presumption in my view continues to make sense. First, the guidelines remain the one § 3553(a) factor that accounts for all § 3553(a) factors. While one can insist that “a Guideline calculation is simply one factor to be considered when selecting the most appropriate sentence for a particular defendant,” United States v. Zavala,
* See 28 U.S.C. § 991(b)(1)(A) (requiring the Commission to establish sentencing policies and practices that “meet[ ][ ] the*736 purposes of sentencing as set forth in section 3553(a)(2) of title 18”);
* Compare 28 U.S.C. § 991(b)(1)(B) (requiring the Commission to establish sentencing policies and practices that “provide certainty and fairness in meeting the purposes of sentencing [and] avoid[ ] unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct”) with 18 U.S.C. § 3553(a)(6) (requiring sentencing judges “to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct”);
* Compare 28 U.S.C. § 991(b)(1)(B) (requiring the Commission to establish sentencing policies and practices that “maintain[] sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors not taken into account in the establishment of general sentencing practices”). with 18 U.S.C. § 3553(a) (requiring sentencing judges to “impose a sentence sufficient, but not greater than necessary, to comply with” § 3553(a)(2) and to “consider ... the nature and circumstances of the offense and the history and ■ characteristics of the defendant”).
Second, the guidelines not only attempt to account for the same factors that § 3553(a) asks district courts to consider in sentencing, but they also represent nearly two decades of considered judgment about the range of sentences appropriate for certain offenses. Based on the aggregate sentencing experiences of individual judges, the administrative expertise of the Commission and the input of Congress, the presumption thus recognizes that “the Guidelines represent at this point eighteen years’ worth of careful consideration of the proper sentence for federal offenses. The Guidelines, rather than being at odds with the § 3553(a) factors, are instead the expert attempt of an experienced body to weigh those factors in a variety of situations. The continuing importance of the Guidelines in fashioning reasonable sentences, and the presumption of reasonableness of a Guidelines sentence, simply reflect that the Guidelines are generally an accurate application of the factors listed in § 3553(a).” United States v. Terrell,
Third, the presumption respects the alignment of the views of the Sentencing Commission with the independent views of a sentencing judge. After Booker, sentencing judges of course must treat the guidelines as advisory, not mandatory, and thus must treat the guidelines as generalized recommendations about the range of sentences appropriate for certain crimes committed by individuals with certain backgrounds. And after Booker, judges independently must determine whether those generalizations make sense when applied to the individual defendants before them based on their own assessment of the remaining § 3553(a) factors. A sentence premised on both of these things — an accurate calculation of the guidelines range and an independent and reasoned judicial determination that a sentence within that range accords with the § 3553(a) factors — •
Fourth, the presumption reflects the reality of what the courts of appeals are doing. The appellate courts have reversed few unvaried guidelines sentences. And when they have done so, that generally was because the sentencing court made a procedural error in delivering the sentence, not because the appellate court substantively concluded that a sentence within the advisory guidelines was unreasonable. See, e.g., United States v. Pizarro-Berrios,
No less importantly, in reviewing sentencing variances, every appellate court to consider the issue (to my knowledge) has held that “the farther the judge’s sentence departs from the guidelines sentence ... the more compelling the justification based on factors in section 3553(a) that the judge must offer to enable the court of appeals to assess the reasonableness of the sentence imposed.” United States v. Dean,
Even some of the courts of appeals that have rejected the presumption seem to demand more when a sentencing judge issues a variance from the advisory guidelines range than when she does not. See United States v. Smith,
Where else, at any rate, would a court of appeals start in measuring the reasonableness of a sentence? Starting with the statutory minimum (if any) for the offense, then adjusting the sentence upward (if appropriate) based on the appellate court’s own assessment of the § 3553(a) factors, and then (and only then) considering the guidelines range might work in theory but would seem doomed to founder on the “rough equality” requirement, if not the impracticality- of such an approach. See United States v. Jiménez-Beltre,
In the face of these considerations, complaints about the presumption seem overstated in some instances and misplaced in others. There are many things, for example, that the presumption does not do. It is a rebuttable presumption of reasonableness, not a per se presumption. United States v. Richardson,
Perhaps most critically, the presumption does not excuse a sentencing court’s failure to adhere to the procedural requirements of a reasonable sentence and indeed applies only to sentences that generally have satisfied these numerous requirements. In the Sixth Circuit, as in many other circuits, we distinguish between the “substantive and procedural components” of “reasonableness review,” and nothing about the presumption permits a sentencing court to ignore the procedural requirements of a reasonable sentence. See United States v. McBride,
Consider the following procedural requirements that a district court must hon- or before an unvaried sentence receives a presumption of reasonableness on appeal:
(1) the judge must make all findings of fact necessary to apply the guidelines to the defendant, United States v. Orlando,281 F.3d 586 , 600-01 (6th Cir.2002); see United States v. Moreland,437 F.3d 424 , 432 (4th Cir.2006);
*739 (2) the judge must calculate the guidelines sentencing range correctly, see 18 U.S.C. § 3742(f)(1); United States v. Gibson,409 F.3d 325 , 338-39 (6th Cir.2005);
(3) the judge must determine whether to grant a downward departure or an upward departure from the guidelines, see, e.g., United States v. McBride,434 F.3d 470 , 474-75 (6th Cir.2006); United States v. Puckett,422 F.3d 340 (6th Cir.2005);
(4) the judge must recognize her discretion to issue a sentence that varies from the guidelines, see Booker,543 U.S. at 245-46 ,125 S.Ct. 738 ;
(5) the judge must consider the § 3553(a) factors in exercising her independent judgment about what an appropriate sentence should be, id.;
(6) the judge must account for any relevant statutory minimum and maximum sentences, see, e.g., United States v. Van Hoosier,442 F.3d 939 , 946 (6th Cir.2006); and
(7) the judge must give a reasoned explanation for the sentence, see, e.g., United States v. Jackson,408 F.3d 301 , 305 (6th Cir.2005); United States v. Kirby,418 F.3d 621 , 626 (6th Cir.2005). Nor has our court hesitated to reverse
sentences on the ground that they were “procedurally” unreasonable for one or more of these reasons. See, e.g., United States v. Van Hoosier,
Given the far more consequential impact of our procedural-reasonableness requirements, one might fairly ask why the presumption matters. All sentences that satisfy the procedural requirements of post-Booker review receive deferential review, whether they fall within the advisory guidelines range or not. So what difference does it make that a sentence already receiving deferential review receives a presumption of reasonableness as well? Probably not a lot in most cases, it is true. But the presumption still helps appellate courts distinguish among three types of sentences that have received different types of review since Booker and would seem to deserve it: (1) challenges to the length of a sentence within the advisory guidelines range; (2) challenges to the failure to grant a variance; and (3) challenges to variances. As to the first two categories, I am aware of few sentences that have been vacated based only on a substantive (as opposed to a procedural) disagreement between the sentencing court and the court of appeals about the sentence. See United States v. Lazenby,
If I have one anxiety about the presumption, it is the risk that it will cast a discouraging shadow on trial judges who otherwise would grant variances in exercising their independent judgment. But there is good reason to doubt that rejecting the presumption would mitigate this concern. Even the appellate courts that have declined to adopt the presumption have acknowledged the unsurprising truth that unvaried sentences customarily will be reasonable. See United States v. Fernandez,
Properly understood, moreover, reasonableness (and, it follows, a presumption of reasonableness) is primarily an appellate, not a trial court, device. “[A] district court’s job is not to impose a ‘reasonable’ sentence. Rather, a district court’s mandate is to impose ‘a sentence sufficient, but not greater than necessary, to comply with the purposes’ of section 3553(a). Reasonableness is the appellate standard of review in judging whether a district court has accomplished its task.” United States v. Foreman,
That the presumption is an appellate, not a trial court, device, does not mean that every sentence a trial court deems “reasonable” or to which it accords a presumption of reasonableness contains the seeds of reversible error. One can exercise independent judgment while still respecting the Sentencing Commission’s judgment about the appropriate sentence for certain types of crime. If the trial court appreciates that the guidelines are
Booker after all empowered district courts, not appellate courts. And sentencing courts, not the Sentencing Commission, retain the ultimate authority within reason to apply the § 3553(a) factors to each criminal defendant. A trial judge can talk about the § 3553(a) factors until he is blue in the face without giving independent judgment to the sentence at hand. And he can reference them briefly and still exercise that judgment. The end is not process in itself but the substantive goal that trial judges exercise independent and deliberative judgment about each sentence-making these sentences more than an algebraic equation and less than a Rorschach test. While it made considerable sense in the immediate aftermath of Booker for our court to ensure that trial judges were aware of the discretion Booker gave them in this area and to establish some procedural requirements to guide them in exercising that discretion, we ought to return at some point to what perhaps is the most important presumption in this area — giving district courts the benefit of the doubt in reviewing their sentencing determinations. See, e.g., United States v. Fernandez,