Lead Opinion
MARTIN, J., delivered the opinion of the court, in which SARGUS, D. J., joined.
GILMAN, J. (pp. 811-817), delivered a separate dissenting opinion.
OPINION
Samuel Collington pled guilty to possession with intent to distribute more than fifty grams of crack cocaine, 21 U.S.C. § 841(a)(1), felon in possession of a firearm, 18 U.S.C. § 922(g), and possession of a machine gun, 18 U.S.C. § 922(o). At sentencing, the district court calculated an advisory guideline range of 188 to 235 months of imprisonment, but determined that a variance was appropriate and sentenced Collington to 120 months, the statutory mandatory minimum for the charges he pled guilty to. The government now appeals Collington’s sentence for reasonableness. Based on the following discussion, we affirm the sentence imposed by the district court.
I.
On August 10, 2004, Collington was pulled over for speeding in Canton, Ohio. As a result of the traffic stop, Collington was arrested for driving without a valid driver’s license. A search of Collington’s person incident to his arrest revealed fifty-
Collington pled guilty to possession of over fifty grams of crack cocaine with the intent to distribute, 21 U.S.C. § 841(a)(1), being a felon in possession of a firearm, 18 U.S.C. § 922(g), and unlawful possession of a machine gun, 18 U.S.C. § 922(o). The plea agreement anticipated that Colling-ton’s offense level would be thirty-three and his criminal history to be a III, yielding an advisory guidelines range of 168 to 210 months. Upon review of the presen-tence report, the district court decided that Collington’s offense level was thirty-three and his criminal history was a IV, resulting in an advisory guidelines range of 188 to 235 months.
At Collington’s sentencing hearing, the district court undertook what it described as a “three-step process.” The first step was to calculate the appropriate advisory guideline range, which the district court did with no objection from either side to the resulting range of 188 to 235 months. The district court then proceeded to the second and third steps of its analysis: determining whether a variance from the guidelines range would be appropriate in this case and considering the section 3553(a) factors and the guidelines range to determine what sentence would be a “reasonable sentencing option[ ] for this Defendant.”
To aid the court in its decision-making process, it heard from Collington’s counsel and then questioned Collington regarding his personal history and the severity of the crimes in question. The court then decided to vary downward from the sentencing guidelines and impose a 120 month sentence with the full five-year period of supervised release. The court felt that a downward variance was justified given Collington’s personal history, his criminal history, and his age. The government now appeals that sentence as being unreasonably low.
II.
. We review sentences for reasonableness. United States v. Webb,
In United States v. Booker,
We have now split our reasonableness review into two inquiries: procedural reasonableness and substantive reasonableness. A sentence may be procedurally unreasonable if “the district judge fails to ‘consider’ the applicable Guidelines range or neglects to ‘consider’ the other factors listed' in 18 U.S.C. § 3553(a), and instead simply selects what the judge deems an appropriate sentence without such required consideration.” Webb,
The district court, in this case, varied downward from the guideline range of 188 to 235 months to give Collington a sentence of 120 months.
As we have explained before, “[p]rior to Booker, sentences outside of the Guideline range were severely limited; now, ‘with greater latitude’ a ‘district court need only consider [the Guideline range] along with its analysis of the section 3553(a) factors.’ ” United States v. Martin,
[i]n appropriate cases ... a district court may conclude that the criminal history category overstates the severity of the defendant’s criminal history or*809 that a lower sentence would still comply with and serve the mandates of section 8553(a). That is, a district court may look beneath the specific criminal history score
and advisory guideline calculation to reach the appropriate sentence. Id. at 642.
Finally, the district court noted Colling-ton’s family history, ■ which included his father being murdered in their home when Collington was nine and losing his mother to cancer two years later. As a result, the district court ordered Collington to undergo mental health counseling. Also, the district court required that after Colling-ton’s imprisonment, he be under supervised release for five years, including aggressive drug testing during that time.
We find this sentence to be reasonable. The district court took the time to consider arguments from defense counsel, the government, and questioned Collington himself about the current charges, his history, and his desire to reform. The district court’s explanation for this variance from the guideline range is a reasonable one. First, the district court felt that the Sentencing Guidelines did not accurately reflect Collington’s actual criminal history. Additionally, the district court appeared to be persuaded by the fact that Collington had only previously served seven months in prison before these charges and was an ideal candidate for reform.
While the district court did not explicitly name each of the 3558(a) factors that it was using to arrive at Collington’s sentence, a reasonable sentence based on consideration of the factors does not require a rote listing. United States v. Vonner,
Given this detailed and in-depth analysis of Collington’s sentence by the district court in the light of all relevant sentencing factors, this sentence appears to be procedurally and substantively reasonable. While a large variance requires a greater explanation, that standard was met here. The district court explained its analysis in reaching this sentencing determination and its analysis is sound. This Court must show some level of deference to the district court in sentencing, especially when that district court provides this Court with a factor-by-factor consideration of the relevant section 3553(a) factors. We have held that “we may conclude that a sentence is unreasonable when the district judge fails to ‘consider’ the applicable guidelines range or neglects to ‘consider’ the other
The dissent, in arguing that Collington’s sentence was unreasonable, quotes repeatedly from the district court’s oral and written decision in order to show why Coll-ington should not have received such a lenient sentence. E.g., Dissent Opn. at pg. 811 (noting the district court’s characterization of the offenses as “serious” and “particularly offensive”); Dissent Opn. at pg. 812 (stating that the district court’s “normal inclination would be to sentence at the high to mid point range,” that the sentence was “a gift,”
If the district court had failed to explicitly mention these factors, then that failure would strongly support a finding that the sentence was unreasonable. Therefore, the dissent’s attempt to use the district court’s explicit mention of these factors as cause to find the sentence unreasonable seems antithetical to our review for reasonableness. When the dissent asks for a district court to be “internally consistent” in its explanation, Dissent Opn. at 814, it appears to request a one-sided explanation from a district court: leniency or harshness, not both. However, the district court’s consideration of both sides strengthens a sentence’s reasonableness; it does not diminish it.
Additionally, the district court did not “select[] the sentence arbitrarily, bas[e] the sentence on impermissible factors, fail[] to consider pertinent § 3553(a) factors, or giv[e] an unreasonable amount of weight to any pertinent factor.” Id. at 385 To argue that the district court in this case selected Collington’s sentence arbitrarily is to wholly and unfairly dismiss the pages of analysis conducted by the district court including discussions with Collington and a factor-by-factor analysis in its sentencing opinion. The district court did not use an “impermissible factors” as it couched all of its reasons for Collington’s sentence in the factors listed in section 3553(a). The district court, also, did not assign an unreasonable amount of weight to any of the factors which it considered. The district court did rely heavily on its belief that Collington is an ideal candidate for reform. However, that belief shows a consideration of not one factor, but arguably all of the factors, including the severity of the of
When a district court considers the relevant 3553(a) factors in-depth and reaches its determination that the appropriate sentence varies outside the advisory guidelines range, we are very reluctant to find the sentence unreasonable. Doing so would essentially amount to substituting our judgment for the district court’s as to how long the defendant should serve. We ought to give the district court the benefit of the doubt in these circumstances unless the variance is inadequately explained or substantively unreasonable. United States v. Buchanan,
HI.
For these reasons, we affirm the district court’s sentence as being reasonable.
Notes
. The district court, in sentencing, should also consider the nature and circumstances of the
. The dissent notes that this variance is 36% below the low end of the guidelines range. Dissent Opn. at 811, 817. Such analysis has no place in a review for reasonableness. There is no mathematical percentage or formula that defines what reasonableness is. Appellate review simply can not be reduced to such cold calculations. It is those very calculations that Booker and its progeny attempted to remove from the federal sentencing process.
. While the dissent criticizes the district court for giving Collington “a gift,” this is no reason for this Court to find Collington’s sentence unreasonable. What may be overlooked in appellate review is the fact that the district court does not issue its sentencing remarks in a vacuum or exclusively with this Court's review in mind. These comments are delivered directly to the defendant, often limes with family members present. We should not begin persecuting the district courts for any niceties they may state in communicating its sentence to the defendant. Such a practice would only lead to depersonalizing an already difficult situation.
Dissenting Opinion
dissenting.
Today’s decision marks the first time in a published opinion that this court has sustained as reasonable a district court’s decision to vary downward from the applicable Sentencing Guidelines range. The majority takes this significant step in a case where the mandatory-minimum sentence imposed is 36% below the low end of the applicable Guidelines range, is less than what a first-time offender charged with these offenses would have received under the Guidelines, and effectively erases all punishment for the two serious gun charges to which the defendant pled guilty. Moreover, the district court based the variance sentence, which it acknowledged amounted to “a gift,” on factors discouraged by the Sentencing Commission and on the speculative possibility that Samuel Collington’s lack of significant jail time for his prior offenses made him amenable to rehabilitation. Applying the reasonableness inquiry articulated in United States v. Webb,
I. BACKGROUND
At first glance, the majority opinion does not set off any alarm bells. Those bells start to ring, however, when one considers the disconnect between the district court’s statements at the sentencing hearing (and in its written sentencing opinion) and the court’s ultimate sentencing determination. Because the majority provides only a truncated version of the sentencing proceedings below, and because a fuller understanding of those proceedings is essential to our reasonableness review, I will begin with a more complete account of the district court’s analysis.
The district court, as the majority correctly notes, described its role in sentencing Collington as “a three-step process” in which the court would first determine the advisory Guidelines range, then “determine whether there is a departure that would be appropriate within the meaning of the guideline itself,” and conclude by deciding whether, in light of the other factors set forth in 18 U.S.C. § 3553(a), “this sentencing range that results from the guidelines calculations presents the Court with reasonable sentencing options for this Defendant in these circumstances, and, if, so, where within the sentencing range this Defendant should be placed.” After Collington’s counsel asked for a downward variance from the Guidelines range — despite a provision in the plea agreement that barred such a request— the district court rendered its sentencing decision.
The court began by highlighting the “serious” and “particularly offensive” nature of the charges to which Collington
Significantly, the district court recognized that the sentence that it was imposing was “a gift.” Speaking candidly, the court acknowledged that it was sentencing the defendant “with some hesitation,” and that “[p]art of me thinks putting you away for 20 years would make more sense.” The court nevertheless materially varied below the calculated Guidelines range and imposed the statutory mandatory minimum term of 120 months in prison, describing the sentence as “substantial” and “reasonable ... for this Defendant in these circumstances.”
After the government noted its objection, the district court issued a written Opinion and Order further explaining its sentencing decision. Like the oral ruling, the written opinion characterized the nature of the offense as “heinous,” called the defendant “currently a danger to society,” and noted “grave concern” over the defendant’s history of selling crack. The court nevertheless described the case as “unique” because (1) Collington’s relatively high criminal history score was based on “misdemeanor possession charges brought against him at a very young age,” a felony conviction for dog fighting, and the fact that three of the charged offenses occurred while he was on parole for the dog-fighting conviction; (2) Collington’s only violent offense arose out of a fight in prison; and (3) Collington’s one term of imprisonment was a relatively short seven months. This latter point was especially important to the district court, which reasoned that a sentence of ten years would adequately “allow for serious rehabilitative efforts” and “provide the defendant with at least the possibility of a future once counseling and education have been received.” The court concluded: “As his first real custody term, ten (10) years seems sufficient.”
II. REASONABLENESS OF THE SENTENCE
In United States v. Foreman,
The district court decided to impose a sentence that it acknowledged was “a gift” notwithstanding the seriousness of the offenses charged and Collington’s checkered criminal past. I do not want to make too much of this one statement, but it is striking. The district court’s task is decidedly not to give out “gifts;” rather, the court must consider all of the factors in § 3553(a) and impose “a sentence sufficient, but not greater than necessary, to comply with the purposes of section 3553(a)(2).” Foreman,
What led the district court to a different conclusion — and what I believe constitutes its principal error — was the undue weight that it gave to the fact that Collington’s one and only prison term of seven months was relatively short, and its willingness to speculate on the possibility that he would therefore be rehabilitated more quickly. See Webb,
The district court in the present case repeatedly emphasized that it was choosing a lower sentence “because the Defendant has never been in custody for any substantial period of time,” and had “never had the benefit of true rehabilitative efforts[.]” Although providing “the defendant with needed educational or vocational training ... or other correctional treatment in the most effective manner” is undoubtedly a proper factor for the sentencing court to consider, see 18 U.S.C. § 3553(a)(2)(D), this factor in the present case provides the sole basis for Colling-ton’s variance sentence, which is 36% below the minimum of the recommended Guidelines range.
The majority acknowledges that large variances of this ilk “require[] a greater explanation.” Maj. Op. at 809. I agree whole-heartedly that this is a correct statement of the law, one that finds support in the decisions of this court and virtually every other circuit. See United States v. Davis,
But I part ways with the majority in applying this legal principle to the facts of the present case. “A greater explanation,” in my view, is not simply a longer explana
I find this court’s recent decision in United States v. Davis,
Although the downward variance in the present case is not as dramatic in percentage terms as that in Davis, I believe that the same conclusion follows. In Davis, the district court sentenced the defendant to what was effectively the minimum amount of jail time that could be served. The district court in the present ease did the same thing, sentencing Collington to the mandatory minimum required by statute. And while the numbers are certainly different — one day versus ten years — the principle is identical. Specifically, just as the sentence in Davis left “no room to make reasoned distinctions between Davis’s variance and the variances that other, more worthy defendants may deserve,” id. at 499, the sentence here does little to distinguish between defendants subject to a high Guidelines range solely because of the large quantity of drugs they possessed and others, like Collington, who have engaged in additional types of dangerous conduct. If a repeat drug offender who also possesses an arsenal of dangerous weapons is entitled to the statutory minimum, one wonders how the district court could justify sentencing other drug offenders who forego such weaponry to anything beyond the same mandatory minimum.
Indeed, the fact that the sentence chosen effectively erases the serious gun charges to which Collington pled guilty is among the most troubling aspects of the district court’s sentence. The sentence prescribes a term of imprisonment 31 months below what the Guidelines minimum would have been had Collington pled guilty only to the drug charges. This result undermines the statutory goal of imposing a sentence that “reflects] the seriousness of the offense[.]” 18 U.S.C. § 3553(a)(2)(A). Nullifying the effect of the gun charges also flies in the face of the district court’s earlier statements expressing outrage at the types of weapons found
To the extent that the district court’s decision to opt for leniency also stemmed from concerns over Collington’s criminal history score, a comparison with traditional Guidelines-based departures suggests that, at a minimum, the magnitude of the downward variance was unreasonable. This court has taken the position that Guidelines-based departures remain viable after Booker and that “Guideline departures are still a relevant consideration for determining the appropriate Guideline sentence.” United States v. McBride,
Section 4A1.3 of the Guidelines permits a district court to depart downward where “reliable information indicates that the defendant’s criminal history category substantially over-represents the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes.” The district court could have assuaged its concern that Coll-ington’s “criminal history is not typical of that normally seen when defendants score that high on the criminal history scale,” by moving down to the criminal history category that it believed appropriate. Had it followed this path, however, the lowest sentence within the Guidelines range — assuming a criminal history category of I— would still have been 15 months above the 120-month sentence actually imposed.
The downward variance thus left Coll-ington with a sentence more lenient than the one that he would have received if he were a first-time offender, and also contravened the former prohibition against departing below the Guidelines range for Criminal History Category I. See U.S. Sentencing Guidelines Manual § 4A1.3(b)(2) (“A departure below the lower limit of the applicable guideline range for Criminal History Category I is prohibited.”); id. § 4A1.3 n. 3 (explaining that such departures are barred because “the lower limit of the guideline range for Criminal History Category I is set for a first offender with the lowest risk of recidivism”). Even if a 'Sentence below the Guidelines range was appropriate, the district court’s downward variance was unreasonable in its magnitude under these circumstances because it led to a sentence below that which would have been imposed on first-time offenders under the Guidelines.
In reaching this conclusion, I am not reading McBride as obligating the district courts in all cases to consider Guidelines-based departures before choosing a variance sentence. Other circuits- have so held, but this court has not. See United States v. Moreland,
The district court’s final error was its failure to consider all of the pertinent factors listed in § 3553(a). See id. at 385 (explaining that a failure “to consider pertinent § 3553(a) factors” may constitute unreasonableness). Indeed, the court stated in its written opinion that it believed “[o]nly the first three sentencing factors listed under 18 U.S.C. § 3553(a) and the Sentencing Guidelines are relevant.” Included in the remaining statutory factors that the district court overlooked are “pertinent policy statement[s]” issued by the Commission. See 18 U.S.C. § 3553(a)(5); see also United States v. Jones,
Policy statements applicable to the present case include two that discourage basing a departure on the age or troubled upbringing of a defendant. See U.S. Sentencing Guidelines- Manual § 5H1.1 (“Age (including youth) is not ordinarily relevant in determining whether a departure is warranted.”); id. § 5H1.12 (“Lack of guidance as a youth and similar circumstances indicating" a disadvantaged upbringing are not relevant grounds in determining whether a departure is warranted.”). Despite these policy statements, the district court appears to have placed great weight on the “very young age”, at which Collington committed his other crimes, his “difficult childhood,” the death of his parents, and the fact that he “was bounced among relatives, some of whom apparently were more interested in the federal benefits he and his brother received than in the brothers’ welfare.”
This is not to say that district courts are absolutely barred from basing a variance sentence on factors that the Guidelines either discouraged or prohibited as bases for departures. The decision in United States v. Jackson,
Finally, I am not persuaded by the majority’s comment that appellate courts “are very reluctant to find [sentences] unreasonable” because “[d]oing so would essentially amount to substituting our judgment for the district court’s as to how long ... defendants] should serve.” Maj. Op. at 811; see also United States v. Crisp,
In sum, I believe that the sentence in the present case should be reversed despite the generally deferential nature of reasonableness review. Cf. United States v. Gall,
III. CONCLUSION
For all of the reasons set forth above, I would hold that Collington’s sentence is unreasonable. I therefore respectfully dissent from the majority’s contrary disposition.