United States v. Petrus
588 F.3d 347
6th Cir.
2009
Check Treatment
Docket

*1 America, UNITED STATES

Plaintiff-Appellee,

v. PETRUS, Defendant-Appellant.

Wasem

No. 08-1706. Appeals,

United States Court

Sixth Circuit. July

Argued: 2009.

Decided and Filed: Nov. 2009. En

Rehearing Rehearing Banc

Denied Jan. 2010.*

* Judge grant rehearing Gilman would for the reasons stated in his dissent. *3 Mark Kriger,

ARGUED: J. LaRene & P.L.C., Detroit, Kriger, Michigan, Ap- for pellant. Sinclair, Jennifer J. Assistant Detroit, Attorney, Michigan, United States Appellee. Deday for ON BRIEF: N.C. LaRene, P.L.C., LaRene Kriger, & De- troit, Michigan, Appellant. Jennifer J. Sinclair, Attorney, Assistant United States Detroit, Michigan, Appellee. McKEAGUE, sentencing hearing, At Defendant’s GILMAN Before: SARGUS, urged counsel the district court to consider Judges; District Circuit the fact that Defendant had been born Judge.** Iraq family refugees and that his fled as D.J., SARGUS, opinion delivered young was a child. Ac- when Defendant McKEAGUE, J., court, in counsel, which cording to Defendant’s due to his 357-60), GILMAN, (pp. health, J. joined. parents’ poor Defendant has “been separate dissenting opinion. family” very young delivered the man of his since

age, having dropped out of school after the grade help support family. tenth OPINION *4 4.) (Sentencing Tr. at counsel Defendant’s SARGUS, JR., A. District EDMUND asked the Court to “take into account [De- Judge. circumstances, personal includ- fendant’s] Petrus Defendant-Appellant Wasem ing the fact that he takes care of his (“Defendant”) challenges the 70-month (Id. 6.) family.” pointed at He out that imposed the district court sentenced person sup- Defendant is “not a [who has] following guilty plea charge his to a of ported drug himself as a dealer” or who conspiring possess to with intent to dis- drug has “ever been successful as a deal- methylenedioxy- to distribute tribute and er,” advantage but rather “took of an eco- (“MDMA”). methamphetamine Defendant opportunity” presented by a nomic co- procedurally (Id. 6.) contends that his sentence is worker. at because the district unreasonable memorandum, In his Defen- adequately explain apparent failed to her family dant also asserted that was “[his] rejection of Defendant’s for le- Iraq. family forced to flee He has no there niency, adequately to explain failed how society there no or government is imposed, she selected sentence protect which will embrace him or him.” to give proper weight failed to facts and (Def.’s 16.) Mem., Sentencing ROA V.l at suggesting penalty. circumstances a lesser profound Defendant contended that “[t]he follow, hereby For the reasons we immigration consequences he faces take imposed by AFFIRM the sentence very far his case from the heartland of court. anticipated cases greatly and warrant a sentence below the Background I. (Id. 16.) recommended sentence.” at that, in a charged suggested Defendant was one-count Counsel also due to De- status, July indictment returned fendant’s non-citizen his conviction may subject him possible deportation U.S. District Court the Eastern Dis- Michigan conspiring possess Iraq, “someplace trict of “a war zone” and that is longer country family with intent to distribute and distribute had to [no the] 7.) refugees.” (Sentencing MDMA in violation of 21 U.S.C. flee as Tr. 841(a)(1) § § pleaded government responded and 846. Defendant for the Counsel 13, 2007, guilty charge government currently to the on “not November is de- sentencing hearing May porting Iraq probably and a was held on ... and won’t for (Id. 8.) years 2008. some the future.” ** Ohio, Jr., Sargus, sitting by designation. The Honorable Edmund A. Unit- trict of Judge ed States District for the Southern Dis- statements, listening cooperation to the above extent of her govern- After with the applicable court calculated the ment and the “extraordinary the district and excep- range to be 70-87 months based tional” amount of pro- Guideline information she had 11.) of 27 and vided. Tr. (Sentencing on an Offense Level Criminal The court History Category of one. The court listed stated that it understood Defendant’s as- “by under 18 sertion that several factors U.S.C. the time [Defendant] came Defendant’s counsel had directed in there to which wasn’t information that he background court: Defendant’s as an had to provide,” noted the court did refugee, dropped true, the fact that he out not Iraqi know whether this was but found young and has worked since a of school “vast distinction between [Defendant] the fact age parents, [Maqi] to care for disabled and Miss because of the nature of (Id. 11.) legal problems cooperation.” that Defendant’s stem from her relationships developed while he was work- “certainly The court stated that it ing, marriage, his recent and the risk of mindful” that it could consider Defendant’s “severely immigration adverse action.” 12.) immigration (Sentencing status. Tr. 10.) Tr. (Sentencing The court then listed The district court then sentenced Defen- *5 general statutory the factors under dant to serve a term of 70 in months 3553(a) acknowledged and that the court custody years followed three super- of must also “consider the kinds of sentences vised release. available, range, the Guideline the Guide- 29, 2008, May On Defendant filed this generally, lines the need to avoid unwar- timely appeal. ... ... disparities ranted and the need to (Id. provide ... at restitution victims.” II. Standard of Review 10.) We review district court’s sen The court stated that as it “eonsider[s] tencing determination for reasonableness generally those or factors those facts about under a “deferential abuse-of-discretion life that he [Defendant’s] wishes Court Bolds, standard.” United States v. 511 account, to take into the Court also takes (6th Cir.2007) 568, F.3d (quoting 578 Gall in arriving into account at these States, 38, v. United 552 U.S. 128 S.Ct. Guidelines, lack of criminal [Defendant’s] 586, 591, (2007); 169 L.Ed.2d 445 Rita v. history was taken into account he because States, 338, 551 United U.S. 127 S.Ct. received the benefit of a reduction under 2456, 2459, (2007); 168 L.Ed.2d 203 Unit (Sentenc- safety what we call the valve.” Booker, 220, 260-61, ed States v. 543 U.S. 11.) ing Tr. The court noted that it had (2005)). 125 S.Ct. 160 L.Ed.2d 621 also considered the fact that Defendant components: This standard has two proce “very was involved in a serious offense” Id., dural and substantive. 511 F.3d at and that credible evidence documented his Gall, 597). (citing 578 128 S.Ct. at (Id. 11.) role as a distributor. at The relevant conduct attributed to Defendant A. Procedural Reasonableness Review 8,125 pills, MDMA equivalent included un- procedural Our reasonableness re 1.1(c) Sentencing der Guideline 2D to over steps. view consists of three We must kilograms marijuana. one million of (1) ensure that the district court properly acknowledged The court that an other- calculated the applicable advisory Guide (2) conspiracy, range; wise similar offender lines considered the Jeny Maqi, “extremely had received an parties’ arguments factors as well as the partly lenient” sentence due to the “vast” for a sentence outside the Guidelines 352 court that he (3) satisfy appellate its sons] articulated adequately

range; and parties’ arguments the chosen sen- has considered imposing reasoning for exercising own rejection par- has a reasoned basis for tence, including any ” Id., authority.’ 511 legal making an outside-Guidelines decision arguments for ties’ added) (quoting from (emphasis decision to deviate at sentence and F.3d 580 Bolds, 2468). Rita, 511 advisory range. at Guidelines F.3d 581. It “not incumbent on the District “First, we must ensure conceivably relevant Judge every to raise ap ‘correctly calculated] district court Gall, 128 issue on his own initiative.” range’ which are ‘the

plicable However, at 599. if a defendant S.Ct. initial benchmark’ of its starting point and argument support raises a Bolds, analysis.” 511 F.3d at sentence, a lower the record must reflect 591). Gall, 128 (quoting S.Ct. judge that the district both considered the district court’s calculation reviewing argument explained defendant’s Guidelines, review the district we still Bolds, rejecting it. 511 F.3d at basis for findings for clear error and court’s factual Jones, (citing States v. United Id., 511 F.3d legal its conclusions de novo. (6th Cir.2007)). F.3d See also Lalonde, (citing at 579 States v. United (“Where Rita, 127 at 2468 the defen (6th Cir.2007)). ... reasons for presents dant nonfrivolous a different sentence imposing Second, must ensure that we normally go explain will further and oppor judge gave parties both “ *6 why rejected arguments. he those has tunity argue ‘to for whatever sentence a Sometimes the circumstances will call for they appropriate’ deem and then ‘consid 3553(a) explanation; they brief sometimes will call § to ered all of the factors deter lengthier explanation.”). for a they support the sentence mine whether ” Bolds, requested by party.’ 511 [each] have held that “a district court’s We Gall, at (quoting F.3d at 579-80 128 S.Ct. argument failure to address each [of 596). evaluating parties’ argu “In head-on will not lead auto defendant] ments, ‘may sentencing judge not matic if the the rec vacatur” context and presume range that the Guidelines is rea reasoning ord make the court’s clear. ” “ sonable,’ make an in but rather ‘must Smith, 463, States v. 505 F.3d 468 United on the dividualized assessment based (6th Cir.2007) (quoting United States v. thorough and a con presented’ upon facts (6th Liou, 334, 4 491 F.3d 339 n. Cir. 3553(a) of all of the factors.” sideration 2007)). Duane, See also United States v. Gall, Id., (quoting 511 at 128 F.3d 580 (6th Vonner, 441, Cir.2008); 533 F.3d 452 2465). Rita, 596-97; at 127 S.Ct. at 386, 387; at v. 516 F.3d United States (6th Cir.2007). Keller, 316, Finally, 498 F.3d 327-28 we must “ensure In ‘adequately unpublished court has ex this Court’s recent decision district Herrod, 07-2197, for v. No. plained] the chosen sentence to allow United States 2514047, *5-10, pro 2009 2009 meaningful appellate review and WL U.S.App. ” (6th 18763, Cir.2009), Judge sentencing.’ of fair Lexis *14-28 perception mote the Gall, Bolds, Clay separately emphasize wrote “to (quoting 511 F.3d at 580 128 597). procedural sentencing judges responsible pro er are S.Ct. at “Reversible viding adequate appeal.” record for He sentencing judge ror occurs if the fails a of rea- noted: enough ‘set forth statement [of

353 Id., imposes obligation imposed. case law this on 511 F.3d at (citing Our 580 Unit- McClellan, ed v. courts for reasons of fairness States 164 F.3d 310 (1999); Jackson, United States v. practicality. every perspec- From 408 F.3d and (6th Cir.2005)). 301, 305 It is tive, insufficient preferable it is for district courts to simply to list the factors and the every ar- explicitly address nonfrivolous Id., defendant’s various characteristics. Ex- gument raised defendant. (citing 511 F.3d at 580 United States v. pressly articulating grounds for re- Cousins, (6th Cir.2006)). 577 jecting particular claims raised Rather, district court must provide “[t]he defendant, respect at least with to a explanation clear itwhy has either ac- arguments, nonfrivolous defendant’s rejected cepted parties’ or (1) several critical it promotes goals: thereby chosen the sentence a clear un- provides defendant with imposed, regardless of whether it is within derstanding of the basis for his or her Id., or outside of the Guidelines.” (2) sentence; it un- public allows the Gall, 597). F.3d at (citing 128 S.Ct. at underlying derstand the rationale (3) sentence; it helps chosen this B. Substantive Reasonableness Review of parsing Court avoid difficulties we If have found the district sentencing transcript when deter- procedur court’s decision to be whether the district court in fact mining sound, ally we must “then consider the arguments. considered defendant’s substantive reasonableness of the sentence fact, fully complied if district courts imposed under an abuse-of-discretion stan obligation, many ap- with this frivolous Bolds, dard.” 511 F.3d at (quoting clarification peals and remands could be Gall, 597). In reviewing avoided. reasonableness, substantive we must “take Herrod, *5, 2009 WL totality into account the of the circum J., U.S.App. (Clay, Lexis 18763 at *14 stances, including the extent of vari concurring). agree Judge Clay We with Id., range.” ance from the Guidelines practice that “the better is for the Gall, (quoting F.3d at 581 128 S.Ct. at *7 court to explicitly district address all of the 597). Guidelines, For sentences within the arguments nonfrivolous that a defendant may apply we a presumption rebuttable of in support raises of a lower sentence.” Id., substantive reasonableness. 511 F.3d Id., *8, 2009 at U.S.App. WL 2514047 2009 Gall, 597; Rita, at (citing 581 128 S.Ct. at J., (Clay, Lexis 18763 at *22-23 concur- 2456; 127 S.Ct. at United States v. ring). Williams, (6th Cir. The record also “must contain 2006)). not, however, mayWe apply a concluding the district court’s rationale for presumption of unreasonableness to out imposed that the sentence is ‘sufficient but Id., side-Guidelines sentences. 511 F.3d at greater necessary, comply not than with Gall, 597). (citing purposes’ of set forth 18 general, give we must “due deference” to 3553(a).” Bolds, § U.S.C. 511 F.3d at 580. the district court’s that conclusion the sen the district court not “engage While need imposed tence is warranted 3553(a) in a Id., ‘ritualistic incantation to establish con § factors. 511 F.3d at 581 ” 597). legal spe Gall, sideration of a issue’ or “make (citing 128 S.Ct. at “The fact findings cific related to each of the might factors that reasonably [we] have concluded considered,” the court articu district must that a different sentence appropriate was justify late the reasons it reached the sentence is insufficient to reversal of 3553(a) § Id., (quot- upon assessment based all of the 511 F.3d at 581 court.” 597). and circum- factors as well as those facts Gall, ing brought light by parties.

stances III. Discussion sentence, announcing the Before 3553(a) § fac- general court listed both the Reasonableness A. Procedural and the considerations discussed tors that his 70- contends Defendant The court noted that Defendant’s counsel. unreason procedurally month sentence factors, it as it considered all of those also judge “failed to the district able because considered the serious nature of Defen- rejection apparent her adequately explain dant’s offense and the fact that Defen- leniency,” arguments for of the defendant’s history lack of a criminal was taken dant’s selected the sen explain or to “how she “safety into account under the valve” did,” tence she and because which 3553(f). acknowledged The court U.S.C. weight to facts give proper “failed to potential deportation that faced Defendant pen suggesting and circumstances lesser as a result of conviction. The court (Def.’s 3.) alty.” Br. why imposed it explained also harsher above,

As discussed we review dis- imposed sentence on Defendant than that procedural reason- trict court’s decision coconspirator provided on a who had steps, ensuring ableness in three that the government “extraordinary with an (1) properly calculated the district court: exceptional” amount information. (2) range; Guidelines considered the other Finally, we find that the district court parties’ argu- factors and the adequately im- explained the sentence (3) ments; adequately articulated its posed, and the court “considered the reasoning imposing the chosen sen- parties’ arguments and has reasoned ba- tence, any rejection par- including selecting imposed. sis” for the sentence Bolds, arguments. ties’ 511 F.3d at 581. The record reflects that the district court We find district court satisfied considered and ex- Defendant’s requirements. these them, plained rejecting the basis for as described above. First, dispute Defendant does not properly the district court calculated the Defendant contends that “the record applicable advisory range to be impact does not tell us” “[w]hat 70-87 months based on Offense Level arguments regarding defense the hard- History Category of 27 and Criminal of I. life, ships of his service to [Defendant’s] family, deportability, of his burden Second, the record shows that the dis- *8 or the harshness of the Guidelines’ treat- gave parties opportu- trict court both “the wrongdoing ment of his situational [had] nity argue they to for whatever sentence (Def.’s 23.) thinking.” on Br. [the court’s] appropriate” deem and made an individual- Having acknowledged parties’ argu- ized assessment based on the facts and ments and articulated its reasons for im- thorough all upon a consideration of however, sentence, posing 3553(a) undisputed, factors. It is and obligated district court was not to discuss shows, sentencing hearing transcript extensively each consideration. provided opportunity that the court case, in government speak Defendant and the to In a recent we found that “[a]l- they support though judge of whatever sentence deemed did not articulate district appropriate. The that rejecting defendant’s] record also shows his reasons for [the ‘sufficiently arguments, reasoning the district court made an individualized his was

355 case, however, ring). considerations listed this the district to reflect the detailed meaningful brevity to allow for court’s does not constitute §in and revers- ” Lap- explained v. The court review.’ United States ible error. its deci- appellate Cir.2009) (6th 758, sins, (ap by discussing F.3d 773 sion the considerations the 570 Bostic, rule under most important. error court considered As the plying plain 865) v. (quoting Supreme United States Court has held: 371 F.3d (6th 506, Cir. 540 F.3d 518 Mayberry, acknowledge that the judge might We 2008)). court that Noting “[t]he might have said more. have add- [She] the reasons for re required ‘give not to that had explicitly [she] ed heard and by arguments and all jecting [made] argument; considered the evidence and ” sentences,’ for alternative we parties (as that no one before [the de- court] if the district held that is sufficient “[i]t nied) thought in the Commission [she] enough satisfy judge forth ‘set[s] the Guidelines had determined a sen- that he has considered the appellate court in proper tence that was the mine run of arguments and has a reasoned ba parties’ cases; roughly similar and that exercising legal his own decision- sis for found that per- [she] [the defendant’s] ” Id., at making authority.’ 570 F.3d 773 simply sonal circumstances here were Rita, Vonner, 387; at (citing 516 F.3d 551 enough not different to warrant a differ- 356, 2456; 127 S.Ct. United States U.S. ent sentence. But context and the rec- (6th Moon, Cir.2008); 527, v. 513 F.3d this, similar, clear ord make or Gale, v. 468 F.3d United States reasoning judge’s underlies the conclu- (6th Cir.2006)). explained This Court conceptually sion. Where matter is as lengthy explanation will suffice for less “[a] simple as the case at hand and the a within-Guidelines sentence when ‘the record makes clear that the sentencing clear that record makes judge considered the evidence argu- judge [defendant’s] considered the evi ments, we do not believe the law re- ” Id., arguments.’ 570 F.3d at dence and quires to write more exten- Rita, (citing U.S. sively. 2456). “[although We noted dis States, 338, 359, Rita v. United 551 U.S. not specifically respond trict court did (2007). 168 L.Ed.2d 203 arguments about re [the defendant’s] The dissent maintains that the district morse, family substance support, abuse adequately explain court did not its rea- problems, willingness undergo in rejecting sons advanced counseling, encompassed these matters are mitigation. Defendant favor of The 3553(a)(1),” within which the district position first advanced Petrus relates to Id., court stated that it had considered. non-citizen, lawfully his status as in the at 774. country at the time of conviction. The

Here, in Lapsins, argument upon as the district second focused the much during given co-conspirators more might court have said lower sentences refusal to And that sentencing hearing. practice, The best as and the court’s Petrus *9 said, Clay gov- for assistance to the Judge has “is the district rendered substantial explicitly arguments court to address all of the non- ernment. While each of these frivolous that a defendant rais could have been addressed with more de- rationales, support es in of a lower sentence.” Her tailed the record discloses that rod, *8, U.S.App. rejected 2514047at the district court considered and WL J., (Clay, position. concur- the Lexis 18763 *22-23 Defendant’s motion, status, ernment not to file a 5K1.1 unless immigration the As to his that acknowledged expressly court alleges supports district a defendant and a claim “severely immigra adverse faced Petrus upon that the refusal to file was based status,” him at the low yet sentenced tion unconstitutional, prosecutive motive. sentencing guideline range. We end of the States, 181, 112 Wade v. United 504 U.S. dissenting colleague agree with our 1840, (1992); 118 L.Ed.2d 524 have said perhaps the court should district (6th Blue, v. United States however, that in noting, It worth more. is Cir.2009). may, A court in its district era, Defendant’s im the post-Booker the discretion, consider whether a defendant’s sentencing lead a migration status could cooperation should considered under 18 be conclusions, one be opposite court to two 3553(a). Blue, Thus, at 686. U.S.C. potential deportation and fewer ing alleged willing- whether to treat Petrus’ should be reason prison opportunities cooperate mitigating to as a ness Conversely, a downward variance. subject factor ais decision to the discre- a person conclusion could be that other sentencing tion of the court. A defendant entry country to the granted the benefit cooperate only who to after all other offers subject upward to an variance should be co-conspirators have rendered assistance In different fac abusing privilege. government gives to the little value to contexts, approach tual either is within the prosecutors. the fact that the While de- court. In this discretion may willing cooper- fendant have been case, emphasized court the ser district may significant, cooperation ate seem conduct and did not ious nature of Petrus’ apparently only was offered after Petrus immigration status sufficient find co-conspirators knew his had rendered as- ly mitigated his crime. The record dis government. Offering closes that the district court understood sistance to the merits, argument, Petrus’ considered the it government already tell what knows rejected position. prove and can is not assistance. substantial Moreover, person cooperate the first given to his co- As the sentences retaliation, significant often incurs risk of that, conspirators, the is clear un- record which Petrus, person coming is not the case for a like each of the other defendants in cooperated government with and re- at the end.

ceived the benefit of a motion for down- certainly ward The dissent correct departure under U.S.S.G. 5K1.1. Co-conspirator Jeny Maqi faced sentenc- that a district court should articulate its ing guideline of 121-151 months. range reasoning rejecting argu a defendant’s granted The district court mo- 5K1.1 Here, mitigation. ment in favor of incarceration, giv- tion and did not impose every position addressed ad “extraordinary exceptional” en her Defendant, vanced albeit in a bare- government. amount of assistance to the sum, although bone fashion. the dis “might trict court in have said this case The that Petrus dissent states Rita, more,” U.S. willing co-operate “was and able to with it. require the law does not We find but, government” because he waited any signifi that the court commit did not assistance, until all others had rendered he procedural imposing cant error Defen was denied a motion. to the 5K1.1 As dant’s sentence and that the sentence was sentencing guidelines, this Court is without authority procedurally gov- to review a decision reasonable. *10 Reasonableness Substantive attempt cooperate government; with the B. we find that the 70-month sentence is Although ap Defendant does not substantively reasonable. on of appeal his sentence the basis pear reasonableness, he substantive raises the IV. Conclusion tangentially by contending that “the issue reasons, foregoing For the the sentence give proper ... failed to district imposed by hereby the district court is suggest to facts and circumstances weight (Def.’s 3.) AFFIRMED. ing penalty.” a lesser Br. De maintain” that fendant “continues to his GILMAN, LEE RONALD Circuit unreasonable, substantively

sentence is as Judge, dissenting. serting approach that the court’s sen “overly tethered to the tencing was Guide I disagree majority’s do not with the proper and inconsistent with lines imposed conclusion the sentence on (Def.’s methodology.” Br. post-Booker substantively Wasem Petrus was reason- 34.) Nor I disagree majori- able. do with the ty’s analysis of the first two factors the asserts that his Defendant procedural-reasonableness (properly test procedural “are framed in terms of ‘rea- calculating the Sentencing United States procedural sonableness’ because sufficien- range, considering both 18 cy sentencing including in the decision— 3553(a) § parties’ U.S.C. and the argu- permit sufficient record to substantive ments). Bolds, See United necessary precondition States v. evaluation—is (6th Cir.2007). (Def.’s 32-33; part F.3d I ways Br. substantive review.” however, majority, with the regarding Br. 2 its Reply (noting see also Def.’s that the treatment of the third factor of this test applies of reasonableness presumption review, (articulating the reasons for imposing the only to substantive and “it is to the sentence). chosen See id. Because the procedural ‘unreasonableness’ of the trial adequately explain district court did not judge’s decision defendant- addressed”).) why rejected it certain arguments made appellant’s arguments are for a Petrus sentence below the Guidelines raises the issue of Because Defendant I range, respectfully dissent. reasonableness, substantive albeit indirect- ly, should it. To This court this Court address declared Bolds in reviewing proce- extent that Defendant contends that his third consideration unreasonable, substantively sentence is we dural reasonableness of a sentence is disagree. “adequately Because Defendant’s sentence whether district court ar- Guidelines, within the it is entitled to a ticulated its reasoning imposing chosen, presumption any rebuttable of substantive rea- sentence including sonableness, give rejection parties’ arguments and we due deference to of the for an court’s conclusion that the sen- sentence district outside-Guidelines deci- 3553(a) advisory tence is warranted fac- sion to deviate from the Guide- Bolds, Gall, (citing range.” lines Id. Although tors. this standard 597). Considering totality require does not court to en- id., circumstances, including in a gage of the “ritualistic incantation to estab- Guidelines, factors, issue,” legal the na- lish consideration of a it does offense, family require “provide Defendant’s sit- the court to ex- ture clear uation, status, immigration planation why accepted Defendant’s it has either or history, rejected parties’ arguments criminal and there- lack of a and his asserted *11 facility. im- Prisons So those are what—(cid:127) particular the sentence by chosen that are the considerations the it is within those of whether posed, regardless to deciding has in the sentence Id. at 580 Court the Guidelines.” or outside of (citations quotation impose. marks internal and “[wjhen omitted). that de- This means Act Sentencing Pursuant to the Reform argument in particular raises a fendant the has considered the of Court sentence, the record must seeking a lower in and the factors 18 U.S.C. judge consid- that the district 3553(a), reflect both Defendant is committed to argument and that the defendant’s ered custody of the Bureau of Prisons for rejecting explained the basis period of 70 months. added) (citation (emphasis it.” Id. sentencing from the passage As this omitted). marks quotation internal demonstrates, the district court hearing majority I that the dis- agree with acknowledged arguments Petrus’s concern- acknowledged trict court and considered then, ing immigration his status and with- regarding family arguments Petrus’s his imposed a any explanation, out the court status, I background immigration but Presumably of 70 months. sentence in nothing support find the record to rejected arguments court Petrus’s that he the district majority’s statements atypical was an defendant and explained articulated or its court either fall in heartland of crime did not cases rejecting arguments. (Maj. basis for these anticipated by the Guidelines. But we are 354-55) Thus, Op. although majority court speculate left as to how the acknowledges Judge Clay’s the wisdom of If reached this determination. we are to that “it clear that the better admonition is give any prong effect to the third of the required by the one our practice case test, procedural-reasonableness we must —and explicitly court to law—is for explanation more than that which require arguments all of the nonfrivolous address in present was offered case. The dis- in support that a defendant raises of a of the perfunctory trict court’s recitation Herrod, sentence,” lower United States v. statutory sen- parties’ arguments and (6th 07-2197, No. 2009 WL at *8 not an ade- tencing factors does constitute 2009) J., (Clay, Aug. (unpublished) Cir. explanation of its deci- quate concurring), majority apply fails to this sion. present

standard in the case. This case cries out for The district court offered no evaluation explanation why as to Petrus received sub- arguments concerning his fami- Petrus’s stantially disparate compari- treatment circumstances, ly entirety and the sentencing. coconspirators son to his analysis of Petrus’s re- court’s Jeny Maqi, example, who was one of immigration status is as fol- garding his coconspirators Petrus’s at the same level lows: culpability with a 121-to-151-month impose, range, the Guidelines avoided incarcera- deciding what sentence certainly mindful that it can tion whatsoever because of her extensive

Court But Pe- deport- cooperation government. account Mr. with the Petrus’[s] take into coop- equally willing fact that trus was and able able status and the he would yet he did not government, not be entitled to receive all of the bene- erate with the might receive a U.S.S.G. 5K1.1 substantial-as- programs fits of all of the be simply because he lost to a citizen of the United sistance reduction available “spill the beans” while in the Bureau of the race to be the first States housed *12 particular Attorney. Funda- When defendant raises States to the United sentence, argument seeking a lower expla- an requires more of mental fairness the record must reflect both that the seemingly inequitable result nation for this judge considered the defendant’s simple court’s statement than the district judge explained and that the argument a vast distinction between there is “that Likewise, rejecting the basis for it. [Maqi] because of the and Miss Mr. Petrus must contain the district court’s record cooperation.” her nature of concluding rationale for that the sen- there is selected acknowledge I imposed great- tence is sufficient but not supports in our circuit caselaw necessary, comply than er with majority. reached conclusion purposes sentencing of set forth in 18 cases, however, appear to advocate These 3553(a). § U.S.C. While there is no re- say, I not as I do.” position of “do as quirement engage that the district court hand, requires the the one the caselaw On in a ritualistic incantation to establish “provide expla- a clear sentencing court to legal consideration of a or that issue why accepted it has either or nation specific findings court make related to Bolds, rejected parties’ arguments.” considered, each of the factors the dis- at 580. But our circuit has also trict provide court must nonetheless an determined, plain-error at least under re- articulation of the reasons the district view, procedurally that a sentence is rea- imposed. court reached the sentenced even where “the district did sonable Simply listing the factors and rejecting not articulate his reasons for [the various characteristics of the defendant arguments.” United States v. defendant’s] referring applicable without to the (6th Cir.2009). 758, 773 Lapsins, 570 F.3d range explaining or the deci- court in fact concluded Lapsins, this stay sion to within or deviate from that to 18 a mere reference U.S.C. range is insufficient. The district court 3553(a)(1), sentencing requires explanation why which a clear provide must history accepted rejected “the and charac- it has either or court consider defendant,” thereby parties’ arguments and chosen teristics of the was sufficient imposed, regard- sentence requirement. dispose explanation less of whether it is within or outside of 774. Id. at the Guidelines. contradiction between the articula- This Bolds, (alterations, 511 F.3d at 580 cita application actual tion of the law and its tions, quotation and internal marks omit provide meaningful guidance fails both ted); Cousins, accord United States v. give to the district courts and to notice to (6th Cir.2006) (concluding F.3d 576-78 rights criminal defendants of their sen- procedurally that a unrea sentence was a clear tencing. require We should either sonable due to the district court’s failure to imposed for the sentence or explanation provide adequate explanation for its an explanation declare that such is not determinations), overruled in necessary. Stating require that we an ex- part grounds by Irizarry on other v. Unit failing and then to enforce the planation — States, -, ed U.S. con- requirement nothing does but create (2008). 2202-04, 171 L.Ed.2d 28 uncertainty. fusion and The nominal enforcement of the Bolds law as set forth this governing The has eroded what would otherwise standard Bolds, by majority in that we legal court in and cited be a clear rule. I believe case, preach and ob- practice as follows: should what we present Be- straightforward mandate. serve this present case court

cause the district rejec- any explanation for its

did not offer concerning his Petrus’s

tion of status, immigration

family background is not imposed

I that the sentence believe

procedurally reasonable. above, I

For all of the reasons set forth and re-

would vacate Pétrus’s sentence resentencing.

mand for BOOKS, INC.,

EAST BROOKS

Plaintiff-Appellant,

v. COUNTY, TENN., et

SHELBY

al., Defendants-Appellees, Jr., Cooper, Ten-

Robert E. State of Attorney General,

nessee Inter- Defendant-Appellee.

venor

No. 08-5958. Appeals,

United States Court

Sixth Circuit.

Argued: April 2009.

Decided and Filed: Nov. 2009.