*1 However, never plan language will case. situation, nor every conceivable
cover why plan expected to. That is it be should Zurich, administrators, given like are dis- meaning plan cretion to determine Furthermore, language place. in the first specific exceptions include while Zurich did hangglinding “skydiving, parasailing, [sic], similar activ- bungee-jumping, are unlike ity,” legal, all of these activities driving through stop sign while intoxicat-
ed. D. Conclusion Wickman stan- adopts that Zurich failed to
dard and concludes case, If apply it this case. that were the appropriate then it seems that it would be Zurich to remand and allow to reconsider Wickman. light Howev- its decision er, that, although required clear to, the Wickman already applied Zurich
standard to the facts of this case and that deny its decision to benefits was not arbi- trary capricious. Consequently, I re-
spectfully majority’s from the opin- dissent ion and would affirm the district court’s
decision. America,
UNITED STATES of Plaintiff-Appellee, SIMMONS, Curtis A. Defendant-
Appellant. No. 07-3449. of Appeals, United States Court Sixth Circuit. Argued: Dec. 2008. Decided and Filed: Nov. *4 Nolder,
ARGUED: Steven S. Federal Office, Columbus, Ohio, Public Defender’s Appellant. Benjamin Glassman, for C. As- Cincinnati, sistant Attorney, United States Ohio, Appellee. for ON BRIEF: Steven Nolder, S. Federal Public Defender’s Of- fice, Columbus, Ohio, Appellant. Kevin Kelley, Winters Assistant United States Attorney, Columbus, Ohio, Appellee. CLAY, Before: BOGGS and Circuit BERTELSMAN, Judges; Judge.* District BOGGS, J., opinion delivered the court, BERTELSMAN, D.J., in which CLAY, 367-400), joined. (pp. J. delivered separate dissenting opinion.
OPINION
BOGGS, Judge. Circuit separate On three occasions within an period, 18-month Simmons was arrested possession of both crack cocaine and a pled guilty firearm. He to one count of * Bertelsman, Kentucky, sitting by designation. The Honorable William O. of United Judge States District the Eastern District intent to dis- crack cocaine with grams of of grams than five more of
possession See 18 U.S.C. 922(g)(1); to distribute intent tribute. cocaine with crack (b)(1)(B). 841(a)(1) convicted An ar- being previously §§ U.S.C. one count issued, a firearm. The dis- possession was but Simmons felon rest warrant to 116 Simmons court sentenced ultimately May trict until detained was years and three imprisonment months of traffic in the course of still another release, which is within supervised occasion, 2.9 officers found stop. On advisory Sentencing by the supplied range possession in his of crack cocaine grams con- appeal, In this Simmons Guidelines. 9-mm firearm and retrieved loaded procedurally was sentence tends his of his car. At this from the backseat substantively unreasonable. While was arrested and taken point, Simmons court’s hold February in- custody pursuant to the into since the Guidelines have adequate, 29, 2006, a federal On June dictment. range for certain to lower the been revised superseding indict- grand jury returned may eligi- be and Simmons crack offenses two addi- charging Simmons with ment Therefore sentencing reduction. ble for a with his lat- tional offenses connection *5 affirm and remand. total, In was est arrest. Simmons being of a con- charged with three counts I firearm, in of a possession victed felon grand jury indicted Simmons A federal possession of with intent two counts of firearms and counts separate on six cocaine, single crack and a distribute arising sep- out of three narcotics offenses intent to possession count of with distrib- The first arrest occurred arate arrests. grams than five of crack cocaine. ute more ap- 2004. When officers December plea agreement, to a Simmons Pursuant pursuant to a traffic proached his vehicle being previ- of a guilty to one count pled car, dropping a stop, left the Simmons a possession felon in of ously convicted After handgun as he fled on foot. loaded (Count 3) posses- of and one count firearm him, police uncovered 3.5 arresting over five with intent to distribute sion arrest in his car. The next grams of crack (Count 4). He of crack cocaine grams year Feb- roughly a later. On place took of plea knowledge with full entered 19, 2006, un- ruary police found Simmons 3, the penalties. For Count potential wheel of a car at an conscious behind the provided He did not have his driver’s for a maximum sentence intersection. statute license, grams of crack up and he had 5.3 a fine of years imprisonment, of ten of inventory An search of his possession. $250,000, his three-year and a term of su- handgun. up yet car turned another loaded 4, the statute pervised release. For Count a prohibited possessing from Simmons was a minimum of five provided for sentence previously been firearm because he had a maximum sen- years imprisonment, of felony. convicted of a maximum term of forty years, tence release, and a fine years supervised five 23, 2006, February grand a federal On plea change million. At his up to $2 charging jury returned an indictment that he under- hearing, indicated Simmons being pre- with two counts of Simmons determined this sentence would be stood of a viously possession convicted felon court, Sentencing using both the by the firearm, of crack possession one count of distribute, and the factors enumerated Guidelines the intent to cocaine with 3553(a). § of more than five 18 U.S.C. possession count of one and, plea agreement expressly range sentence, in computing Simmons’s judge that his conduct would be referenced stated consid- several of the relevant § § § under 2D1.1 and 1B1.3 of the factors ered and discussed some of Sentencing parties Guidelines. The also the individual circumstances of the crime. sentence, explaining to a enhancement under agreed did 2K2.1(b)(5), applies which if a firearm not disparate address the Guidelines’ felony was used in connection with another treatment of crack powder-cocaine of- The Assistant United States At the proceed- offense. At- fenses. conclusion of the torney agreed in turn to recommend that ings, parties asked the whether timely accepted responsibili- they had objections Simmons had additional in ac- ty Bostic, for the offense. The Presentence In- cordance with United States v. (6th Cir.2004). vestigation Report found Simmons F.3d 865 Defense counsel of 11.7 possession grams objected had his total indicated that she to the sentence crack from all drug when the three counts “on both and substantive together, grounds.” was added which led to a base appeals The defendant now offense level of 26 for the offense in Count contending district court’s that it a two-level enhancement for the proeedurally substantively With was unrea- and a three-level for ac- firearm reduction sonable. adjusted
cepting responsibility, the offense II Finally, probation level was 25. officer history found Simmons had 15 criminal Before we can determine whether the him points, making Category VI offend- defendant’s sentence proeedurally *6 advisory sentencing range er. The was substantively objectionable, we must first thus 110 to 137 months. determine what ap- standard of review to hearing, Prior to the sentencing ply Sim- to these claims. a general proposi- As memorandum, tion, a sentencing mons filed ar- the Federal Rules of Criminal Proce- guing distinguish that he was entitled to a downward dure between cases in which a 3553(a). party objects variance on the basis of This to a court’s decision and argued party memorandum that a downward those in which a neglects to make an objection, variance was warranted of despite because an opportunity to do so. 51(b). disparate treatment of Guidelines’ similar Fed.R.Crim.P. This court reviews quantities of crack powder category cocaine. the former of cases under rea- government chose not to file a re- sonableness standard and the latter cate- sponse, sentencing hearing gory and the took under a plain-error standard. Ibid. time, place on March At application poses 2007. this the The of this rule many again argued disparity defense that the difficulties the context of penalties powder for crack proceedings cocaine because of the inherent diffi- range culty offenses made the determining party Guidelines exces- when a has had and entitled to a meaningful opportunity object.” sive the defendant lower “a to Bostic, sentence. at n. 6. Bostic, sought clarify
The Probation Officer recommended a In we to matters months, that, by suggesting pronouncing sentence of 110 and the sentenc- after ing judge ultimately sentenced Simmons to defendant’s the district court imprisonment parties they any 116 months of and three “ask the have whether years supervised objections ... release. This sentence to the sentence half previously the lower of the Guidelines not been raised.” Id. at 872. par- exacting “plain that the more error” stan- not ensures approach
This review, reasonableness, reasoning or object to the court’s dard of not should may ties particular argument, doubt, objection. failure to address “No apply to this an oppor- the district court it also affords encourage could district courts ask away fa- right tunity to correct errors question imposing any Bostic without con- by identifying review appellate cilitates sequences party’s on a failure to answer it. objections pre- have been “precisely which But that would undermine its effective- Indeed, it seems served.” Id. 873. emphasized Id. at 391. ness.” Vonner respect objec- pertinent with especially substantive and claims of the adequacy that concern the tions prior counsel are made explanation precisely because such court’s reasonableness, regardless reviewed for until after objections cannot be made subsequently how counsel answers the reasoning in the course of court states its question. (holding Bostic Id. at 386 de- sentencing the defendant. ques- fense counsel’s answer to the Bostic Vonner, court States v. United right not tion “did undermine Vonner’s ap the standard of review to determined ‘previously that he had appeal issues sentencing judge “a asks this ply when ”). all, point raised’ After “[t]he party ... the relevant question and does question require is not to to repeat counsel object.” Cir. or, worse, objections previously to undo 2008) (en banc). pronouncing After objections.” Imposing raised Id. at case, in that defendant’s sentence dis exacting more standard of review to parties they trict both whether court asked raised, claim that previously not been has any objection just to the sentence “ha[d] however, encourages parties give pronounced.” Id. 384. Vonner’s coun opportunity one to address “No, replied, sel Your Honor.” Ibid. On arguments. these appeal, the claimed for the first defendant slight The case at varia- bar involves a procedurally time that his sentence was Vonner, presented tion on the facts but inadequate pro because the district court’s *7 requires only application, not exten- nouncement of the sentence did not ad sion, underlying of the rule set forth in specifically arguments dress defendant’s for a downward variance. Vonner held that case.1 trial devot- Simmons’s counsel (6th Cir.2008), application 1. The dissent contends faithful F.3d 395 is not relevant in the dissent, way suggested by precedent compel holding contends our does not which our in appeal family presented Blackie's re: ties was Op. at this case. 374. But Vonner involved a procedural objection to us as a based on the very question similar to the one now before purported court's failure to address ap- of review us: what standard should be argument. Op. substantive 392. plied procedural objection to a that is not fact, Sentencing Transcript In and our underly- party made when the articulated the leave decision no doubt that the district court argument substantive on which it argument dealt with Blackie's substantive and Moreover, based? both the case at bar and appeal that his concerned whether the district challenge procedural Vonner involved a to the "properly family considered” his cir- adequacy explanation. of the district court's cumstances, not whether the district court position The dissent’s is built almost exclu- argument. failed to address this Id. at 399 sively disagreement with our en banc deci- (“Blackie argues that the did district court marginal in Vonner and recent sion cases of properly family not consider his circum- during relevance filed the last seven months sentencing Reviewing stances before him. reasonableness, while this case was under submission. we find that this claim is Blackie, merit.”). exception, lone United States v. without argument argued to the idea that a ed much of her before the court that downward variance was warranted under disparate treatment pow- of crack and 3553(a)(6), § because of the U.S.C. requires variance, der cocaine a downward disparate treatment of crack Guidelines’ unnecessary and it a party repeat powder and cocaine offenses. The district objections previously made in order to se- argument court failed to address this ex- cure the lower standard of ap- review on plicitly the defendant. Un- peal. Vonner, however, like Simmons’s coun- The defendant makes a total of question in sel answered the Bostic (1) procedural three claims on appeal: affirmative, Honor, proclaiming, “Your I district court failed to address defendant’s object just procedur- for the record for the argument for a downward variance based al, aspects.” substantive In appeal, this on the disparate treatment of crack and repeats Simmons his claim that a within- (2) cocaine; powder the district court’s possession the-Guidelines sentence for 3553(a)(2) analysis §of was inadequate, substantively objectionable. crack is For because the failed to consider wheth time, the first the defendant also contends drug er treatment would be available to that the district court failed to address this the defendant even if given he were argument in pronouncing substantive (3) sentence; lower the district court
within-the-Guidelines sentence and that improperly treated the Guidelines as man judge’s the sentencing failure to state af- datory. Appellant Br. of 13-23. The last firmatively agrees policies that he with the arguments two were not raised before the underlying disparate treatment of record, district court on reading of the cocaine, crack powder or that he does they subject and therefore are plain categorical departure not believe a is war- Vonner, error review. See case, proceeding ranted renders the Determining what standard of review procedurally inadequate. applies to procedural Simmons’s other review, ascertaining the standard of claim poses complex a more inquiry. distinguish we must between Simmons’s Responding to the Bostic objections. question, substantive de- objected fense counsel “procedural Defense counsel’s answer the Bostic ... aspeet[ just question pro- ]” is immaterial to the sentence standard nounced apply evaluating review we the district court but Simmons’s did allege substantive sentencing judge failed to below-the- policy argument Guidelines sentence under the address her or specifically all, object factors. After clearly purported defense counsel to this failure.2 We must *8 Herrera-Zuniga, United States v. proceedings the and whether de- (6th Cir.2009), acting fense counsel point was his client's inter- is not on because of est, ensuring which dwarf our concerns about very unique the facts of that case: the defen- parties give opportu- the the district court an attorney-client privi- dant's counsel breached nity develop to correct errors and the record court, lege and submitted a letter to the ad- appeal. for defendant, indicating dressed to the counsel posed believed the defendant a serious threat dissent, According bifurcating proce- 2. to the society. government to Id. at 575. The used objections dural from their related substantive urging depart up- this letter in the court to arguments is to make "a distinction without a Although ward. Id. at 576. defense counsel Op. difference.” at 389. The dissent’s own Guidelines, urged stay the court to within the recognition question argu- that the of which we believe defense counsel’s conduct raises legally ments a district court must address is very questions integrity “technically speaking serious about the and ... distinct” from objec- to vindicate this these circumstances defense counsel’s whether determine tive. Bostic question is vague response a lower standard to secure sufficient justification for the The second procedural ob- the defendant’s review for Bostic is to ensure the district question a answer must party’s
jection, or whether
to correct
opportunity
has an
afford the district
enough to
specific
be
id. at
spot,”
the
and would
error “on
partic-
the
to address
opportunity
court an
higher
if a
of review
standard
be sacrificed
ular claim.
applied
not
cases like this one.3
were
parties
who do
disincentives
Providing
issue, we must reference
this
To resolve
an
give
opportunity
the district court
not
the Bostic
question
asking
the rationale
judi
objections helps conserve
to resolve
higher
standard of re-
applying
and
by deterring unnecessary
cial resources
objections that are not as
view to those
case,
In
delay
appeal.
the need to
this
the dis-
presented
matter
to
preliminary
response to the Bostic
defense counsel’s
help
to
goal
The first
trict court.
affirmative,
been in the
question may have
party
ascertain whether
appeals
court of
enough
give
to
specific
but it was not
to make additional ob-
opportunity
had an
to correct the
opportunity
district court
Bostic,
at 872-73. This
jections.
Indeed,
alleged error.
the defense never
asking
question,
no
end is served
of the court’s ex
questioned
adequacy
party
answers. Because
matter what
or the court’s failure to address
planation
apparent
makes
record in this case
argument
disparate
about
Simmons’s
and, accordingly, that
asked
question
cocaine,
was
powder
treatment of crack and
opportunity
had an
to make
parties
leaving
sentencing judge
guess
both
to
best
to
objections,
objections
there is no need
additional
defense counsel
further
what
preserve.4
sought
of review under
impose
higher
standard
Ibid, (stressing
compels
adopt
claim.
that both
arguments
law
it to
defendant's
which
satisfied”). Neither of
procedure and sub-
"considerations were
belies the notion that
here,
Op.
inextricably
these considerations was vindicated
stance are
interwoven.
cases,
may
opportunity
certain
a district court
where the district court had no
389.
duty
arguments
objection
it has
we
have a
to address
Simmons’s
do not
address
others,
and,
reject
it has no
to re-
discretion
have the benefit of a detailed record
obligation.
such
view.
Grams,
Indeed,
why
States v.
3.
this is
United
clearly
counsel
could have made a
Defense
Cir.2009)
curiam)
(per
dard making vague ob- from discourage parties inade procedurally A sentence is a more this court of deprive jections fails to only judge if the “district quate to review. record complete applicable range Guidelines ‘consider’ requires the that Vonner We hold factors listed neglects to ‘consider’ other proce review to plain-error application of 3553(a), simply § and instead 18 U.S.C. one, party where a like this dural claims appropri an judge selects what the deems affirma question the Bostic answers required consid ate sentence without such tive, high degree generali a of at such but Webb, v. 403 F.3d eration.” United States opportuni court has no ty that district denied, (6th Cir.2005), 373, 126 cert. 383 and the purported error ty to correct its (2006). court is not 1110 The district S.Ct. deprived of a has been appeals of explicitly to refer to each of the required record to review. more detailed statutory sentencing impos factors when Morris, v. sentence. United States Ill (6th Cir.2006). 929, F.3d 932 Howev 448 er, an indi judge must “make Sentencing determinations assessment based on the facts vidualized compo and substantive both all presented,” and must discuss relevant Borho, States v. nents. United statutory to facilitate “reasonable Cir.2007). factors 904, objects Simmons 908 States, review.” v. United appellate Gall pro grounds. on both His to his sentence 586, 596-97, 38, 128 S.Ct. 169 U.S. objection about the district court’s cedural (2007); Morris, F.3d at L.Ed.2d 445 disparate treatment to address the failure 932. cocaine is reviewed powder of crack and error,6 plain underlying and the sub case, question is In this there is no
stantive
on which
is based
considered the
under an that
reviewed for
reasonableness
range, that he understood the
proceed
We
Guidelines
abuse of discretion standard.
con-
advisory,7
Guidelines were
he
each in turn.
consider
may
though sentencing judge
presume a
supervisory powers
to the diffi-
not
"[d]ue
court's
transcript”
range
culty
parsing a
of "less formal”
sentence
is rea-
within-the-Guidelines
—
States,
sonable,
sentencing hearings).
v. United
U.S.
Nelson
-,
(2009),
L.Ed.2d 719
129 S.Ct.
clarity, we
that the
6. For the sake of
stress
sentencing judge’s
word reason-
use of the
present
objection
defendant's failure to
imposing
he is
able to describe the sentence
sentencing court
"forfeited”
in the
necessarily "eclipse”
appli-
not
the valid
does
subject
the claim is
to a more
sense
Cruz,
3553(a).
§
cation of
United States
appeal.
review on
deferential standard of
(6th Cir.2006) (holding
755-56
Bostic,
(“If
party
360
plain
was
error
obtain
Analysis of
court’s omission
District Court’s
2. The
3553(a)(6)
proving
This entails
the district
relief.
§
(1)
(2)
error,
that
obvi-
court made
concerning
argument
Defendant’s
(3)
clear,
that affected defendant’s
ous or
3553(a)(6),
§
analysis of
the district court’s
(4) that affected the
rights, and
substantial
judge may
a
deviate
provides
which
fairness,
public reputation
or
of
integrity,
“to
range
advisory Guidelines
from the
v.
judicial proceedings. United States
disparities,” is
sentence
avoid unwarranted
(6th Cir.2008);
Houston,
743, 750
529 F.3d
A
ultimately fails.
sen
but still
stronger
52(b) (“A plain er-
see also Fed.R.Crim.P.
fac
explicitly consider
judge must
tencing
rights may be
ror that affects substantial
by the defendant or
are raised
tors that
brought
it was not
though
considered even
relevant
especially
that are otherwise
attention.”).
to the court’s
(Kossie
v.
United States
the case
bar.
620,
Lamon) Simmons, 501 F.3d
625
in
step
inquiry
The first
our
Cir.2007). Here,
defendant
invoked
adequate expla
to determine whether an
3553(a)(6)
expressly
con
§
and the
3553(a)(6) compelled
§
the court
nation of
him.
The
sidered the factor
assertion that the
respond
to Simmons’s
remarked,
sentencing judge
quantities
of similar
disparate treatment
advisory
considered the
Court has
[T]he
cocaine created unwar
powder
crack and
need to
Sentencing Guidelines and the
Even under
sentencing disparities.
ranted
sentencing dispari-
avoid unwarranted
the less onerous abuse-of-discretion stan
sentencing range
ties. The defendant’s
dard,
a great
district courts are entitled to
imprisonment.
months
is 110 to 137
explaining
a
deal of deference
sentence
advisory
The
has considered this
Court
that falls within the Guidelines. “When
determining
appropriate
range
why it
adequately explains
district court
sentence,
and the sentence is within
particular
especially
imposed
Therefore,
unlikely
it is
to result
range.
advisory
range,
one within the
Guidelines
disparities.
in unwarranted
require
we do not further
that it exhaus
procedural adequacy
The
Simmons’s
tively explain
why
an alter
obverse—
hinges
sentence
not on whether
dis-
every
native sentence was not selected
3553(a)(6),
§
trict court discussed
but
Gale,
States v.
468 F.3d
instance.” United
quality
explana-
of the district court’s
(6th Cir.2006); see also United States
929
tion.
(2d Cir.2006)
Fernandez,
19,
443 F.3d
indicates,
squarely
The record
(“[W]e
that a
will not conclude
district
the,
concedes,
in fact
that de
government
judge
obligation
shirked her
to consider
claim
fense counsel made
substantive
simply
because she
factors
disparate
treat
regarding
Guidelines’
every argument
did not ... address
relat
Br.
powder
of crack and
cocaine.
ment
the defendant
ing to those factors
(“[T]he
court did
Appellee 16-17
denied,
882,
advanced.”),
cert.
549 U.S.
distinguish
reject
his ar
explicitly
(2006).
192, 166L.Ed.2d 143
S.Ct.
potential
impact
gument on
ratio.”).
even accords
powder
cocaine
Second Circuit
100:1 crack
strong presumption
“a
that the
corresponding procedural
Because no
ob
arguments prop
all
failure to
has considered
jection to the district court’s
her,
the record
erly presented to
unless
directly
address this
was made
Fernandez,
clearly suggests
defen
otherwise.”
during sentencing proceedings, the
Although
we have not
dant must demonstrate
adopted
position,
Supreme
putes
issue,
a particular
the district court
very
prescribed
obligated
has
deferential standard
becomes
find
facts that
that we have adhered to. Under
are essential to the “clarity
Rita v.
of the record.”
States,
White,
551 U.S.
United States v.
United
S.Ct.
(6th Cir.2007) (citations
omitted).
(2007),
tencing judge enough should set forth we reversed the sen- tencing court when it satisfy appellate “blindly court that he has embraced figures set forth in Defendant parties’ arguments considered the and White’s has PSR-figures” without a comment. Id. exercising reasoned basis for at his own legal decisionmaking authority.” Id. “brief,” explanation
2468. This
can be
There are certain exceptions ibid.,
only explain
and need
the court’s
court,
this
A
rule.
district
example,
reasoning
a manner sufficient to permit
obligated
not
to review
argu
defendant’s
meaningful
appellate
review. United ment when it
lacks
factual basis or
McGee,
(6th
551,
States v.
556-57
legal merit. See United States v. Richard
.2007).
Cir
son,
(6th
550,
Cir.2006);
Gale,
ranges,” and the district court’s 481; States, L.Ed.2d Moore v. United correctly calculating reviewing -, 4, 4, U.S. 129 S.Ct. L.Ed.2d advisory range that a (2008) (“[T]he indicates [district] showed that judge “necessarily gave significant weight it did not think it had the discretion later and consideration to the need to avoid un- upheld by Kimbrough.”); Spears v. United — Gall, disparities.” warranted 128 S.Ct. at States, -, U.S. 129 S.Ct. (Jan. 2009) L.Ed.2d 596 (holding that may vary district courts from the Guide Adequately explaining the rea lines on the categorical policy basis of dis sons for require does ex Guidelines). agreements with the crack pressly defending justifica the abstract Like previous Simmons’s course, sentencing range. tions Of *15 claims, this one is reviewed plain adhering if to the Guidelines were suffi error, since it was not made before the cient to eliminate all unwarranted sentenc district court. disparities, then there would be no independent need for the consideration in In cites, one of the cases defendant 3553(a)(6). by §
vited But the substantive States, Moore v. Supreme United arguments that a district court must ad judge Court indicated that a commits error that, allegations dress involve were the if he said that the court did not have the followed, Guidelines an unwarranted dis authority to from depart the Guidelines parity would other judges result because range on the basis of disagree- substantive departed guideline from the same ments with the Guidelines’ determinations respect similarly with situated offend about the seriousness of the crime. 129 (Kossie Lamon) Simmons, ers. (“[T]he at 4 S.Ct. court [district] showed at 623-24. that it not think it did had the discretion Here, is objecting upheld by Simmons to later Kimbrough.”). Moore va- fully “the district court’s mere failure to cated a sentence when the district court explain the extent of its consideration of explicitly disparate held that the treatment Houston, factors,” sentencing 529 F.3d at of crack powder and cocaine is not a rea- 751, which it appears fully to have consid grounds sonable on which to depart from short, ered. claim does not demon range. the Guidelines We echoed this con- sentencing strate Simmons’s was marked Johnson, clusion in United States Gall, error,” by “significant Cir.2009), holding F.3d 990 that when error, constituting plain S.Ct. at express a district court made statements necessary. that remand such that “the must apply [e]ourt the Guide- lines,” (emphasis id. at 996 n. 1 in the Depart 3. The District Court’s Power to original), necessary give remand was “to Categorically the district court an opportunity impose Simmons’s final recognition relies on re- sentence with full of its au- cases, Supreme cent thority reject vary decided after from and the crack- case, an allegation solely his that the district cocaine on a policy Guidelines based depart those Id. was not free to from the Guide- with Guidelines.”
disagreement
Porter,
categorical
lines on the basis of either
991;
States v.
see also United
cir-
policy disagreement
personal
or the
(6th Cir.2009)
772, 775-777
Fed.Appx.
cumstances of the defendant.
It would
merely
not
assume
(observing that “we did
misreading
Supreme
be a
Court’s
that the district court lacked
in Johnson
say
that a sentencing
cases to
authority,’ but we
‘full awareness of this
explicitly recognize
must
that such vari-
court’s ex-
instead relied on the district
when the court has
permitted
ances are
at the
hear-
press statements
given
they
no indication that
it believes
power
vary
ing” indicating it lacked
explicitly recognizes
prohibited
are
policy disagree-
on
categorically based
advisory
nature of the Guidelines.
ment).
accept
this inter-
Therefore we decline
alleges that “the [dis
Simmons
pretation, and we instead hold that when
...
es
trict]
[in
him]
district court observes
the Guide-
sentially treated the 100:1 ratio as a
advisory
provides
lines are
no indica-
mandatory guideline,” making his case in
not a
policy disagreements
tion
are
distinguishable from Moore and Johnson.
vary,
proper basis to
then a sentence
record,
Appellant
Br. of
howev
range
pre-
within
Guidelines
remains
er,
At
belies the defendant’s claim.
Sim
sumptively
appeal.
reasonable
sentencing, the district court ob
mons’s
Although the defendant contends
separate points
served at five
“impliedly”
this circuit
held district courts
advisory.
Guidelines were
There is sim
vary
categor
were
allowed to
based on
ply
whatsoever
no indication
disagreements,
Appellant
ical
Br. of
judge believed the Guidelines were man
reject
position
the defendant’s
that our law
*16
datory, or that the court believed was
any
precluded
sense
downward vari
vary
to
free
downward based
both
ances of this kind or that the district court
particularized circumstances of the crime
power
was therefore unaware of its
to
or
and defendant
based on substantive
categorically vary.10
Where
sentenc
disagreement with the crack Guidelines.9 ing
ambiguous
record is at
with
worst
Indeed,
sentencing
Simmons’s
is different
respect to the district court’s
awareness
from Moore and the other cases
this
authority
depart,
question
its
is not
line because the district court never ex
prejudice,
whether Simmons suffered
but
held,
intimated,
pressly
or even
that he whether he can even
an error.11
show
Although
support
position,
there are no affirmative state-
10.
of his
the defendant
Caver,
language
cites
from United States v.
categorical departures
permis-
ments that
are
However,
(6th Cir.2006).
context,
365
say
explained,
Therefore we cannot
has
when a sentencing judge’s
error,
an
explanation
court’s
constitutes
let
determination falls within the Guidelines
clear,”
or
alone
error
“was obvious
range, “that double
signifi-
determination
affecting
rights
the defendant’s substantial
cantly increases the likelihood that
fairness,
calling
integ-
into doubt “the
Rita,
sentence is
reasonable one.”
127
rity,
public reputation
judicial
or
may
S.Ct. at 2463. There
be occasions
Gardiner,
proceedings.”
United States
when a sentence within the Guidelines
(6th
Cir.2006).
We are
range
substantively
is
unreasonable. But
all,
applying, after
a deferential standard we have held this
no
is
small burden and
in which sentences are reversed
in that
generally
we will not
guess”
“second
“exceptional circumstances ... where the
sentences on
grounds
substantive
when
plain
error is so
that the trial
...
they fall in the range prescribed by the
countenancing
derelict in
it.”
[was]
Ibid.
Davis,
Guidelines. United States v.
case,
is not
the situation in
Such
(6th
Cir.2008).
explicitly recog-
where the district court
advisory
nized the
nature of the Guide-
Despite
Simmons’s
allegation,
lines, considered all the relevant sentenc-
there
no
evidence that the lower court
factors,
including the need to avoid selected Simmons’s sentence arbitrarily,
sentencing disparities.
unwarranted
The based its
impermissible
determination on
speak directly
district court’s failure to
to factors, disregarded any
concern,
relevant
power
depart
its own
from the Guide-
gave
weight
unreasonable
policy
supply
lines
reasons does not
factors. Although the district
inferring plain
basis for
error. Nor does it
clearly placed
great weight on Sim
appellate
warrant
remand.
mons’s criminal history,
the nature and
offense,
circumstances of the
the need to
Adequacy
B. Substantive
Simmons,
rehabilitate
and the need to de
A sentence within the Guide
offenders,
potential drug
ter other
range
presumptively
lines
reasonable.
weigh
court did not
these factors so heavi
Rita,
2459;
S.Ct.
United States v.
ly as to make
substantively
the sentence
Williams,
Cir.2006).
unreasonable.
The district court also
*17
approach
Our circuit takes a deferential
stressed
need to avoid “unwarranted
type
this
of substantive
chal
sentencing disparities” in punishing simi
Vonner,
lenge. See
to hold not (The § disparate tity on the enumerated in 2D1.1. new based from the Guidelines cocaine, powder very of crack Guidelines retain substantial differ- treatment ential.) 3, 2008, are unreasonable that crack sentences the amend- but On March varies from the unless the district made ments to the crack Guidelines were takes Although the defendant retroactive, Guidelines. so that thousands of defen- treatment of disparate that the granted can file a serving dants certain sentences unfair, there cocaine is powder crack and motion for a sentence reduction. U.S.S.G. person posses- punish are reasons to App’x Supplement, C Amendment harshly than a cocaine more sion of crack (Nov. 2007) 1, (regarding two-level reduc- quantity a similar possesses person who tion); App’x Supplement, C U.S.S.G. all, After crack is a more powder cocaine. (Mar. 2008) 3, (regarding Amendment 713 cocaine, is powder form of concentrated retroactivity). addictive, with and is associated more already have issued a decision con We Sentencing of crime. U.S. higher levels cerning the crack cocaine retroactive Report Special Commission, to the Con- amendments, government and the does not Sentencing gress and Federal Cocaine appear dispute that the revised Guide (1995), Policy http://www.ussc.gov/ resentencing certain require lines reasons, For these CRACK/CHAP6.HTM. defendants who have been convicted repeatedly disparate held the possession of crack. See United States powder crack and cocaine treatment of (6th Cir.2008) Poole, per is not se advised the Guidelines (“The government agrees case unreasonable or unconstitutional. United ”). applica should be remanded.... When (6th Caver, States v. ble, proper procedure for this court to Cir.2006) (holding departure “while a from affirm and re follow is to the sentence may 100:1 ratio well be reasonable if the alter the mand amendment would case, the ratio particular applying does range particular defen Guidelines this not, ipso facto, make a unreason- sentence 645; dant. Id. U.S.S.G. law.”); existing able under case United 1B1.10(a)(2)(B) (Resentencing a defen Blair, States v. policy dant “is not consistent with this (“The Cir.2000) law is well settled not authorized statement and therefore is con- circuit that the 100:1 ratio withstands 3582(c)(2) if’ under 18 U.S.C. the reduc scrutiny.”). stitutional lowering tion “does not have the effect of IV applicable guideline defendant’s If range....”). Simmons were resen affirm court’s Although we today, with a tenced he would start out above, *18 for the reasons set forth sentence (more offense level of 24 than 5 base remand because Simmons nevertheless of cocaine grams, grams but less than 20 to a “second look” consideration is entitled base). get He then a two-level en 3582(c). would 1,May § pursuant 18 U.S.C. On firearm, hancement for a and a three-level 2007, Sentencing submit- Commission accepting responsibility, reduction for leav Sentencing ted amendments to the federal ing him with a total offense level of 23. Congress, they and took ef- Guidelines range Category The Guidelines VI fect on November 2007. One result, offender is 91-115 months. As range amendments lowered the Guidelines would have the ef of- the two-level reduction for certain crack offenses certain fenders, adjust- lowering guideline range from providing for a downward fect of his months, range parity argument of 110-137 his current at the time. Simmons do not preclude therefore Guidelines reiterated this 3582(c). §
application of hearing, arguing that the 100-to-l sen-
tencing
prescribed by
ratio
the Guidelines
V
at that time “results in a huge disparity in
sentencing.” J.A. 70.
In presenting this
reasons,
the foregoing
For
we AFFIRM
argument,
urged
Simmons
the court
REMAND
Simmons’s sentence and
consider that the Guidelines’ “100-to-l ra-
possible
case for
consideration under the
advisory.”
tio is
J.A. 70. Although Sim-
2007 Amendments.
repeatedly
mons
raised
crack/powder
this
disparity argument as the basis for a
CLAY,
Judge, dissenting.
Circuit
variance,
downward
despite
the fact
appeal,
On direct
Defendant
A.
Curtis
that defense counsel asserted
argu-
this
(“Simmons”) argues
Simmons
that his 116-
ment mere moments before the court be-
sentence,
month
a term within
range
gan pronouncing
sentence,
Simmons’
advisory
recommended under the
Sentenc-
district court did not address the issue.
Guidelines,
procedurally
and sub-
pronouncing
sentence,
After
Simmons’
stantively unreasonable.
In challenging
asked,
the district court
required by
as
our
aspects of his
Bostic,
decision in United States v.
Simmons contends
the district court
Cir.2004),
whether the
arguments
failed to consider all of the
parties
“any objections
had
to the sentence
he raised under 18
U.S.C.
just pronounced that
previ-
have not been
support of a lower sentence. Although
added).
ously
(emphasis
raised?”
J.A. 77
arguments
Simmons raised a number of
Although
responded
defense counsel
in the
court,
before the
his central
affirmative,
objected “just
she
for the rec-
argument was that
the then-applicable
procedural,
ord for the
substantive as-
sentencing range recommended under the
pects.”
77.
J.A.
involving
Guidelines
offenses
crack co-
significantly
caine was
unjustifiably
appeal,
On
challenges,
Simmons
inter
range
harsher than the
recommended for
alia, the district court’s failure to consider
offenses involving powder cocaine.
and adequately explain its reasons for re-
Simmons first
“crack/powder
jecting
raised this
crack/powder disparity argu-
his
disparity” argument
in the sentencing ment.
evaluating
Before
the merits of
prior
claim,
memorandum he filed
to his sentenc- Simmons’
we first must determine
ing hearing.
government
did not file what standard of review
applies, which
response
to Simmons’
requires
memorandum or
turn
us to determine whether
challenge
crack/powder
otherwise
his
preserved
dis- Simmons
claim
appeal.1
Confusingly, majority
pursuant
relies on Bostic to
to Federal Rule of Criminal Proce-
51(b),
plain-error
“stress”
defense counsel's failure to artic-
dure
standard set forth
specific
52(b)
ulate the
applies only
substantive basis for her
in Rule
to those “errors
objection implicates
timely
the standard of review in
that were
because not
raised
forfeited
Olano,
subject
that “the claim
to more deferen-
in district court.” United States v.
725, 731,
appeal.” Majority
tial standard of review on
U.S.
113 S.Ct.
123 L.Ed.2d
*19
(1993)
Opinion ("Maj. Op.”)
added).
(emphasis
358 n. 6. For what
Notwithstand-
purpose
majority
point
majority’s suggestion, nothing
"stresses” this
is
in this
unclear, but, regardless, it
contrary.
rests on a false
Court’s
in
decision Bostic is to the
fact,
distinction.
In
immediately preceding
contrast
to claims of error
In
the sentence
party properly preserves
appeal
that a
majority
the line from Bostic on which the
erack/powder
failed to consider his
majority,
Sim-
court
According to the
whether
entirely
disparity argument.
hinges
this claim
forfeited
mons
post-
of defense counsel’s
adequacy
on the
disregard
ap-
if
this
Even we were
which,
majority
sentencing objection,
suggests
our case law also
that
proach,
insists,
I
considered
isolation.
must be
post-sentencing objec-
defense counsel’s
majori-
only
Not
is the
strongly disagree.
tion, although imprecise, was sufficient to
reasoning contrary
prior pub-
to our
ty’s
expressly
claim
it
preserve this
because
directly
it also
conflicts
precedent,
lished
brought
to the district court’s attention
authority and is in
Supreme Court
with
concern that the court had com-
Simmons’
principles
the fundamental
tension with
“procedural”
pronouncing
mitted a
error
underlying our decisions
this area.
true that
one
“[n]o
sentence. While
is
Vonner,
ideal,”
reason,
[objection]
majority
has would call this
For whatever
386,
the fact that this
516 F.3d at
it nevertheless was
ignore
chosen to
suffi-
argu-
preserve
that a defendant’s
cient under our case law to
Sim-
expressly
has
held
sentencing raising
procedural
appeal.
a basis for mons’
claims for
See
during
ments
departure
Herrera-Zuniga,
a downward
are sufficient— United States v.
Cir.2009)
distinct,
(“Regard-
a
581 n. 7
standing alone
without
objection
preserve for
of whether
counsel had assert-
post-sentencing
less
defense
—to
objection at
appeal
procedural
a failure-to-consider
ed a more detailed
the time of
See,
Blackie,
e.g.,
sentencing,
sentencing transcript
claim.
States v.
indi-
United
(6th Cir.2008) (“We
going
re-
cates that the
548 F.3d
district court was
spot,’
view for
reasonableness
to correct this issue ‘on the
as the
[defendant’s]
judge already
claim that
court failed to con-
had
that
sentencing
stated
family
authority
ties and
at he
that he had the
responsibilities
sider his
believed
sentencing
reject
advisory sentencing range
he had raised the
because
issue
circumstance,
prior
during
to and
hear-
this basis.
In this
it is diffi-
(em-
it for
cult
ing,
preserving
appeal.”
imagine
practical
thus
reason to
added)).
words,
objection
phasis
regard-
require
other
a defendant to raise an
patently
less of whether Simmons’ counsel raised
that is
futile. Vonner does not
formalism.”).
minimum,
post-sentencing objection,
our
At a
adequate
require such
objection
decision in Blackie indicates that Simmons’ defense counsel’s
was sufficient
arguments “prior
during
satisfy
majority’s
to and
that an
sen-
concern
objection
tencing hearing”
“signal[
were sufficient on their
must
to the district
]”
preserve
asserting
own to
his claim that the district
that
the defendant
(6th Cir.2008) (en banc) (holding
clear that the rule
relies makes
announced
object
help
that case was intended to
this Court
failure to
at the time of
defendant's
party
right
what
determine
claims
had "forfeit-
his
to chal-
"undermine[s]
by failing
lenge
adequacy
explanation
ed"
to raise them below.
of the court’s
("If
added)).
provide
(emphasis
at 872
the district court fails to
for the sentence”
Not
they
majority
parties
opportunity,
with this
the distinction that the
at-
will not
law,
objections
tempts
contrary
their
and thus will
to draw
to our case
it is
forfeited
required
plain
especially confusing given
not be
to demonstrate
error on
added)).
repeatedly
ap-
appeal.” (emphasis
plain-error
This Court's
states
review
subsequent
plies
general
application of Bostic confirms
in this case because Simmons’
party's right
"preserve"
rule relates
was insufficient to
his
to raise
See,
appeal.
Maj. Op.
appeal.
procedural
See
claim of
error on
claims for
Vonner,
e.g., United States v.
*20
Maj.
objection.”
peated
arguments
regarding
different
See
“new and
crack/powder disparity, and considering
at 357 n. 4.
Op.
that this was
argument
Simmons’ central
majority,
ar-
According to the
Simmons’
in favor of a
departure
downward
and that
during
to and
the sentenc-
guments prior
defense counsel had raised this issue mere
ing hearing raised a substantive claim
moments before the district court began
significant
in some
purportedly
is distinct —
Simmons,
it would be unreason-
way
procedural
his
claim that the
—from
able to expect defense counsel to rehash
disparity argu-
to
his
court failed
consider
the issue
a third time when she voiced
entirely
ment. Based
on that
technical
“procedural” objection.
her new
See
distinction,
majority
concludes that de-
(re-
Herrera-Zuniga,
garding
objec
In
post-sentencing
party’s prior arguments.
of a
Osborne
party’s
whether a
Ohio,
a claim for
preserve
495
110 S.Ct.
109
tion is sufficient
U.S.
(1990),
instance,
in Bostic
Nor did our decision
appeal.
L.Ed.2d 98
the Court
ar
any way
party’s
whether a
address in
“sequence
reviewed the
explicitly
”
sentencing are sufficient
during
guments
transpired
proceedings
that
in the
events
fact, our decision in Bostic
to do so.
In
concluding
in that case before
issue
sentencing judge
imposed upon the
object
point
“counsel’s failure to
on this
—not
procedural require
new
the defendant —a
prevent
considering
does not
us from
[de-
determine whether
help
ment to
this Court
...
constitutional claim
because
fendant’s]
judge provided
parties
we are convinced that
attor-
[defendant’s]
object.
adequate opportunity
an
...
ney pressed the issue
before the trial
then,
If
our deci
anything,
F.3d at 872.
and,
circumstances,
under the
noth-
that it is the sentenc
implies
sion in Bostic
gained by requiring
ing
[defen-
would be
ing judge’s responsibility to make sure
lawyer
object
a second time.”
dant’s]
clear,
suggests
that the record is
and thus
124-25,
(emphasis
Id. at
S.Ct.
follow-up inquiry by
the court in this
added).
majority’s
The
insistence that de-
appropriate.
have been
Nor
case would
objection
post-sentencing
fense counsel’s
in
did our decision Vonner address either
directly
must stand “on its own” is
con-
fact,
In
in
of these issues.
our decision
trary
by
approach
to the
endorsed
encouraged
ap
Vonner
“a common-sense
Supreme Court.
doctrine,”
plication
plain-error
of the
For
and the
forth
these
reasons set
be-
apply
that we
specifically emphasized
low,
support
scope
I cannot
eye
“with an
standard
the realities
inquiry
majority,
conducted
nor its
the facts and circumstances of each sen
plain-error
ap-
determination that
review
tencing proceeding.”
551 U.S. 127 S.Ct. I. (2007)); Rita, L.Ed.2d 203 see also 29, 2006, grand jury On June a federal (“The U.S. at appropri- S.Ct. 2456 a superseding charg- returned indictment brevity length, ateness of conciseness or detail, write, ing Simmons with six counts of various say, depends when to what to circumstances.”). upon firearms Specifi- and narcotics offenses. advisory sentencing range of 110 charged ported with three cally, Simmons imprisonment. to 137 months fel- previously convicted being counts of firearm, in violation of a possession on in Although party objected neither 924(a)(2), 922(g)(1) §§ of 18 U.S.C. calculations, Guidelines Simmons PSR’s with intent possession two counts of memorandum prior filed cocaine, in violation of crack distribute sentencing hearing urging *23 841(a)(1), pos- of § and one count U.S.C. a impose court to sentence below the advi- five sory range outlining intent to distribute over Guidelines sever- session with 3553(a) § cocaine, pursuant al factors in violation of 21 18 U.S.C. grams of crack 841(b)(l)(B)(iii). 841(a)(1) supported he believed such down- § § U.S.C. ward variance. The memorandum raised against Simmons stemmed charges The history, regarding personal issue Simmons’ incidents, each separate from three involv- character, and the of of- his nature his being pos- arrested while in ing Simmons however, Primarily, fenses. Simmons’ crack cocaine and loaded session of memorandum focused on the fundamental weapon. unfairness the “100-to-l ra- 11, 2006, pleaded Simmons On October applicable tio” then under the Guidelines plea agreement, to a guilty, pursuant involving to offenses crack cocaine as com- in being possession one count of felon of pared involving powder to offenses co- charging a firearm and the count him with government caine. The did not file a re- intent to distribute over possession with sponse to Simmons’ memorandum. grams five of crack cocaine. Consistent At sentencing hearing, govern- plea agreement, with the the Presentence urged impose ment the court to a sen- (“PSR”) Report Investigation found that advisory tence at the low end of the responsible for Simmons was a total of sentencing range. The court then heard cocaine, 11.7 crack an grams of amount argument from defense counsel and Sim- to the total all equal weight pos- three mons himself. As with his charges session listed the indictment. memorandum, primary focus of Sim- The PSR determined that the amount of mons’ in favor of a below- crack cocaine at supported issue base Guidelines sentence was offense level of 26.2 The also con- PSR crack/powder sentencing disparity was felon-in-possession charge cluded that the fundamentally unfair and resulted supported a two-level enhancement. The advisory sentencing range for crack of- thus recommended a total PSR offense unnecessarily fenses that Af- harsh. level of 28. Simmons’ offense level then sides, hearing ter from both by was reduced 3 levels based on his time- court sentenced Simmons to 116 months ly acceptance responsibility. pro- imprisonment. In pronouncing Simmons’ bation officer also determined that Sim- sentence, briefly the court discussed history mons had a total of 15 criminal personal history Simmons’ and character- istics, points, category and thus was a VI offend- as well as the nature and circum- together, er. Taken sup- these elements stances of the offenses. The district 1, 2007, retroactive, permitting Effective November United States made thus defendants (“U.S.S.G.”) 2D1.1.(c) Sentencing § Guideline serving eligible sentences to file a motion for was amended to reduce two offense levels a sentence reduction under 18 U.S.C. the base offense level for most crack cocaine (Jan. 3582(c)(2). Reg. § 73 Fed. See U.S.S.G., C, App. offenses. See amend. 706. 2, 2008). Effective March Amendment 706 was substantively tence if argu- addressed Simmons’ unreasonable court never craek/powder length “greater dis- of the sentence is than regarding ments necessary” sentencing goals to achieve the parity. 3553(a), § set forth 18 U.S.C. the dis- Simmons’ pronouncing After “significant procedural trict court commits they parties asked the whether the court (or by “failing error” to calculate improp- just “any objections had sentence erly calculating) range, the Guidelines previously that have not been pronounced treating mandatory, the Guidelines as fail- 77. Defense counsel re- raised?” J.A. to consider the [18 U.S.C.] affirmative, stating: “Your sponded factors, selecting a sentence based on object just I for the record for the Honor facts, clearly failing erroneous to ade- aspects.” J.A. 77. procedural, substantive quately explain the chosen sentence'—in- *24 explanation an cluding any for deviation II. Gall, from the range,” Guidelines 128 S.Ct. question The first we face is what stan- at 597. applies of review to Simmons’ claim dard relating Unlike claims to the substantive that the district court failed to consider sentence, aspects of his or her a defendant adequately explain failed to its reasons generally preserve must procedural chal- rejecting craek/powder disparity for his ar- Vonner, lenges appeal. See 516 F.3d For its con- gument. part, Any at preserved 385-86. claim not has cludes Simmons forfeited this subject appeal plain to review for error. and thus our decision in claim Vonner Id.; 52(b). R. P. Fed. Crim This forfei- plain-error applies. review I requires rule, however, ture applies only where the disagree. respectfully party given adequate op- relevant 51(b) object. portunity to Fed.R.Crim.P. A. (“If party opportunity does not have an “Post-Booker, order, review a object we district ruling to a the absence determination, sentencing court’s ‘under a of an prejudice does not later standard,’ party.”). deferential abuse-of-discretion v. reasonableness.” United States cases, many In this “wrestled with (6th Cir.2007)
Bolds,
568,
578
difficulty
‘parsing
[sentencing]
States,
38,
(quoting
v.
552
Gall United
U.S.
transcript
par-
to determine whether ... a
586,
(2007));
591, 169
128 S.Ct.
L.Ed.2d 445
ty
object’
a meaningful opportunity
had
Rita,
347-50,
at
127
see also
551 U.S.
S.Ct.
determining
plain-error
and of
whether
re-
applies “[rjegardless
2456. This standard
Vonner,
apply.”
view should
516 F.3d at
imposed
is inside
whether
sentence
Bostic,
6).
(quoting
385
On that, plain-error appeal, of the district court’s to avoid review on the reasonableness alia, party any objections that the dis- must raise arguing, regard- inter granted application court should not have the district court’s trict depar- during for a downward factors defendant’s motion determining hearing. nothing In what standard of But in our ture. decision suggests that a applied, post-sentencing review we considered whether Bostic ob- objection jection an government’s lodge way preserve failure to a claim appeal. impose upon to the defendant’s motion for downward for Nor does Bostic because, departure obligation challenge should be “excused” the defendant the according government, “procedural the sentenc- reasonableness” of his sen- fact, ing judge provide government failed to tence before the district court. In adequate “opportunity object” as re- because the appellate reasonableness is 51(b). review, Rita, under Rule Id. at standard of quired 870-71. 551 U.S. at improper S.Ct. would be for a matter, resolving we noted the defendant to raise such issues before the difficulty “parsing [sentencing] tran- sentencing court. See United States v. ... a script party to determine whether Cruz, Cir.2006) object” meaningful opportunity had a (“[Reasonableness represents the stan- pronounced by the sentence review, appellate dard of not the standard Exercising Id. at n. 6. our court. imposes which a district court a sen- supervisory powers inherent over district *26 tence.”). courts, announced a procedural we “new courts, requiring pro- any reading, rule” after On our decision in Bostic sentence, nouncing parties speak general “to ask the also does not to whether a they any objections post-sentencing objection whether have to the is sufficient to just pronounced preserve procedural sentence that have not claim where that (em- previously party already been raised.” Id. at 872 has asserted the substantive added). phasis grounds objection reasoned that this new for that at stages We earlier procedural rule would serve several relat- of the in hearing. Our decision (1) goals, including: providing par- ed the did not that issue Bostic address for the “any “a final opportunity” government ties to make obvious reason that the had (2) raised”; objections previously not alert- failed to advise the district court of its sentencing judge any to to ing opposition request mistakes the defendant’s for a may pronouncing departure any which have been made in downward at point during provid- sentencing proceedings. the defendant’s and thus As the Bostic noted, opportunity the court an “to correct on court explicitly government not made”; spot any may only “any papers opposing error it failed to file (3) motion,” creating government’s a more reliable for this record statements objec- “precisely sentencing hearing Court to determine which at the also “did not preserved” tions have for appeal. been Id. inform the district court defense counsel (citations omitted). at In defining government opposed 872-73 whether or not the rule, scope repeatedly downward-departure of this new we motion.” Id. at emphasized applied only that the rule to than aspect supports of our decision Bostic Vonner broader review
The
by majority
that conducted
here.
arguably relevant is the state
that is even
‘object
“must
party
ment
dicta
dissents,
vigorous
Over several
the en
degree
specificity
with that reasonable
majority
put
to the
banc
Vonner
teeth
adequately apprised the
which would have
Bostic, essentially
rule announced in
bifur-
objec
true basis for his
trial court of the
cating
burden
defen-
”
(quoting
tion.’ 371 F.3d
United
challenge
dants who seek to
their sentence
LeBlanc,
1012, 1014
States
clarifying
In
appeal.
“import” of
Cir.1980)).
that “[requiring
reasoned
We
rule, however,
ma-
Bostic
Vonner
clear articulation of
and the
jority emphasized:
therefor,
‘will aid the district
grounds
point
question
The
of the
[Bostic ]
error,
correcting any
ap
court in
tell the
require
repeat objections
to
counsel to
precisely
objections
which
pellate court
or, worse, to undo previously raised ob-
and which have been
preserved
have been
jections.
It
to
simply
give
counsel
[forfeited],
appellate
enable the
objections
preserve
one last chance to
apply
proper
standard of review
for appeal
yet
that counsel has not
seen
”
preserved.’
(quoting
those
Id.
yet
oppor-
to raise or has not
had an
fit
Jones,
United States v.
tunity to raise.
(11th Cir.1990),
1102-03
overruled on other
added).
(emphasis
tion of
C.
in
also does not
Vonner
Our decision
majority’s
determination
Sim-
majority’s suggestion that a
support
procedural
mons has forfeited his
claims
to
objection
required
post-sentencing
only
beyond
scope
not
reaches
of our
appeal.
In
claim for
preserve
procedural
Vonner,
it
decisions Bostic and
also is
that,
Vonner,
only
a sentenc-
“[i]f
we held
contrary
subsequent
to our
case law.
if
question
ing judge asks
Blackie,
object,
plain-
supra,
does not
then
In United States v.
party
relevant
defendant,
(“Blackie”),
Kerry
to those
Blackie
applies
appeal
on
error review
appeal
in the district
claimed on
that the district court
preserved
not
arguments
added).
(emphasis
arguments
had “failed to consider” various
court.”
hold, however,
that he had raised under
in favor
raising
an
did not
We
sen- of a lower sentence.
Thus, panel a III. subsequent no overrules previous panel.”); a published opinion of majority’s Not is the ultimate con- Servs., Sec’y Health & Human Salmi of proce- clusion that Simmons forfeited his (6th Cir.1985) (holding error, dural claims in so too is its entire prior reported panel decisions are approach question. In defining this binding subsequent panels on all “unless parameters inquiry, of its forfeiture an inconsistent decision the United majority insists that defense counsel’s Supreme requires Court modifica States objection post-sentencing must stand on its sitting tion of the decision or this Court en Maj. Op. own. at (stating that “we decision”). In prior banc overrules the must determine whether defense counsel’s fact, greater argument there is a vague response question to the Bostic is plain-error apply giv review does not here sufficient to secure a lower standard of counsel, en that Simmons’ unlike Blackie’s procedural review for the defendant’s counsel, ob- procedural objec at least raised jection”). sentencing. According majority, tion “for the record” after to the Sim- arguments prior during mons’ to and holding post-sen Our Blackie that sentencing hearing are irrelevant tencing objection required pre is not inquiry forfeiture because the rule we claim procedural appeal serve does adopted in Bostic somehow obviates the not contrary, stand alone. On the need for us to consider such contextual repeatedly party has held that a is in determining party factors whether a has always required post-sen to assert a preserved a claim appeal. tencing objection preserve such claims. Herrera-Zuniga, See F.3d 581 n. 7 approach The majority endorsed (rejecting the notion that defense counsel profoundly is fundamentally flawed and required to assert a post-sentencing ob unjust. jection preserve procedural certain appeal); claims for United States v. A. Grams, 686 n. Cir.
2009)
curiam)5
(per
(declining to apply
The Bostic Procedure Did Not
plain-error
review even though defense
Eliminate the Need
object
counsel did not
sentencing).
after
Inquiry
Contextual
majority’s
The
application
plain-error
squared
review cannot be
with the
holding
contends that the rule we
reasoning
controlling
adopted
these
cases.
brought “clarity
Bostic has
discretion, i.e.,
tors was not an
opportunity
abuse of
to address the
substantively
sentence was
reasonable.
whether we
detailed record to re-
Therefore, Blackie does direct this Court to
Maj.
view—was
Op.
“vindicated here.”
review,
engage in a reasonableness
rather
repeated-
356 n. 3. Since defense counsel had
review,
plain
than a
error
of a
ly
disparity argu-
discussed Simmons' 100:1
objection that
post-sentencing
was not raised
procedural objection
ment and his
to a sen-
"prior
but was
during
raised
to and
the sen-
disparity,
tence that did not consider that
tencing hearing.”
brought
sentencing procedures
to
this
(6th Cir.2006) (“A
568, 570
district court
entirely
question
irrelevant to the
circuit is
satisfy
requirements
can
of the Bostic
in
we confront
this case.
only
clearly asking
objections
rule
above,
previ
to the sentence that have not been
explained
the issue before us
As
raised,
nothing
ously
to do with determin-
and the context of
Bostic had
the tran
so.”).
adequacy
party’s post-sentenc-
of a
in this
ing
script
why
case reveals
this is
Rather,
ing objection.
But,
the confusion with
because we do not confront these
in that case re-
which we were concerned
contexts,
same concerns in all other
we
specifically
“difficulty
pars-
lated
not
construed the forfeiture rule we
...
transcript
a
to determine whether
announced Vonner in the same manner.
party
meaningful opportunity
had a
to
Herrera-Zuniga,
See
Nor has the Bostic
had
already had stated that he believed that he
obligation
unintended
our
effect on
to con-
authority
reject
advisory
had the
inquiry
determining
duct
contextual
basis”); Grams,
sentencing range
adequacy
party’s objection.
of a
An
(declining
apply
381
Supreme
jurisprudence
involved in the
Court’s forfeiture
may later be
who
cies
(citing
States
Id. at 613-14
United
case.”
suggests
party’s prior arguments
that a
Cir.1987)).
(6th
F.2d
Fry,
v.
determining
relevant
in
whether a
are
specific objection,
any
or indeed
sub-
more
compli-
“literal
Notwithstanding this
our case
requirement, a review of
objection,
required
preserve
ance”
sequent
willing
clear that we are
law makes
claim for
sister
appeal.
a
Our
circuits
failure to com-
the district court’s
overlook
uniformly
adopted
approach.
have
this
where the
requirement
with this strict
ply
majority’s
The
insistence
Simmons’
underlying
record demonstrates
objection
post-sentencing
counsel’s
“must
the rule has been fulfilled.
purpose of
path
on it own”
cuts a troubling
stand
thus
Osborne, 291 F.3d
v.
United States
ap-
that sets this circuit at odds with the
(6th
instance,
Cir.2002), for
proach
by
Supreme
endorsed
Court.
inquire
failed to
unquestionably
court
and his counsel had
whether
defendant
preserve
appeal,
In order to
a claim for
investigation re-
presentence
reviewed
generally
required
a defendant
to raise
Overlooking
at 910.
this techni-
port.
Id.
objection
an
“a specific
which has
substan-
error,
we conducted
“review
cal
Grissom,
tive basis.” United States
transcripts” to determine whether
hearing
(9th Cir.2008).
691, 694
The reason
the defen-
any
indication
there
requirement,
recognized
for this
as we
in
counsel had in fact done so.
dant and his
Bostic,
in
“[requiring
dicta
is that
clear
a similar “re-
at 911. We conducted
Id.
any objection
articulation of
and the
in
States v.
view of
record”
United
therefor,
aid the
grounds
‘will
district
Tate,
Cir.2008), conclud-
B. however, consider, is that fails to Endorsed, Supreme Has basis” for providing “specific substantive Required, if a Contextual always objection necessary. is not
Inquiry Rather, general objection is sufficient to long a claim for review so as the preserve proce- ad hoc Regardless of whatever ample timely bring “is adopted, this circuit has dural rules added). to the attention of the alleged (emphasis ... error clear. Id. The Court’s *32 appropri- it to take in trial court and enable decision Rita thus assumes that the Douglas to, v. appellate ate corrective action.”8 Ala- courts are able perhaps bama, 415, 422, 1074, must, implies 85 S.Ct. 13 that we 380 U.S. consider “context (1965). fact, In parties’ prior the Court has and the arguments” L.Ed.2d 934 in deter- circumstances, that, mining held in certain a sub- provided whether the district court objection necessary is not at all. sequent adequate explanation for its chosen sen- Osborne, 124, at 110 If parties’ prior See 495 U.S. S.Ct. tence. the arguments are (“[Cjounsel’s object context, failure to 1691 this relevant in that certainly those point prevent considering does not us from same factors are relevant to determining .... objection [defendant’s] constitutional claim be- whether a defendant’s was suffi- cause we are convinced that preserve appeal. [defendant’s] cient to a claim for At attorney pressed least, the issue ... very before the the Rita casts serious doubt on and, circumstances, trial court under the majority’s supposition the that a contextu- nothing gained by requiring would be inquiry al [de- is somehow too difficult in this lawyer object fendant’s] second context.
time.”). Osborne, Douglas In both the Following Douglas, our sister circuits Supreme precisely Court conducted overwhelmingly recognized that “a type inquiry that the claims is general objection may preserve suffice to required here. appeal” an issue for party where the al Supreme
The
Court’s
in
ready
decision
Rita
specific
has raised the
substantive
suggests
also
that a
inquiry
contextual
grounds
objection
for the
stages
at earlier
appropriate
this context. One of the
of the sentencing proceeding and the rec
issues the Court
considered
Rita was
ord demonstrates that
the district court
whether the district court satisfied its stat- was—or at least should have been—aware
utory obligation to
in open
Grissom,
“state
court the
of the issue. See
imposition
particular
reasons for its
of the
(finding
government’s
694-95
general
3553(c).
sentence.”
18 U.S.C.
objection
preserve
sufficient to
claim be
emphasized
requirement
government
cause the
“consistently ad
judicial
“reflects sound
practice”
helps
vanced its view” throughout
promote
“public’s
judicial
trust in the
hearing and the record
indicates
“the
356,
institution.” 551
U.S.
S.Ct.
district court was
fully
indeed
aware of the
noted, however,
2456. The Court
government’s
that the
position”); United States v.
“appropriateness
Pineiro,
(5th
brevity
length,
con-
470 F.3d
204-05
Cir.
detail,
write,
2006)
ciseness or
when to
what to
(holding that a party
required
is not
say, depends upon circumstances.”
Id.
express
objection
“to
its
in minute detail or
The Court
explain
terms,”
then went on to
ultra-precise
dis-
and concluding that
trict
rely
court could
on “context and the
government preserved
opposition
its
”
parties’ prior arguments
to make its
recalculating
rea-
defendant’s sentence
sons
choosing
particular
arguing
sentence
throughout the sentencing hearing
Although Douglas
1993)
addressed whether a
(applying
"general principle”
de-
Cir.
general objection raising
fendant's
a federal
Douglas
appeal
announced on direct
adequate
preserve
claim in state court was
determining
sufficiency
of defense coun
review,
the federal issue for
this same stan-
objection
sel's
"to an earlier
[a
version of
contexts,
governs
dard
including
also
in other
disputed jury] instruction” where defense
See, e.g.,
the situation before
here.
us
United
objection”).
counsel "made no further
Williams,
(5th
States v.
appro
regardless
calculations were still
stantive basis” and
prior
Curry,
priate);
States
“seeming
United
inadequacy
objec-
facial
Cir.2006)
(excusing
gov
Grissom,
tion.”
States v.
686 n. 1
disregard
ner instruct us to
a defendant’s
Cir.2006) (declining
govern
to review the
prior
arguments
during
to and
sen-
plain
ment’s argument
error even
tencing
determining
hearing when
whether
object
though
government
“failed to
(or
objection
a post-sentencing
is sufficient
sentencing hearing
the dis
second
necessary)
preserve
even
a claim for
trict court’s consideration of state sentenc
correct,
If
appeal.
majority
howev-
government
ing practices” because the
had
er, then
aspect
of our decisions
supplemental
raised
in a
the claim
brief
contrary
Supreme
those cases
stage
submitted at an earlier
of the sen
precedent and at odds with
over-
tencing
This
proceedings).
applies,
rule
whelming
authority
circuits,
weight
persuasive
according to our sister
even where
party’s objection
“specific
lacks a
sub-
from our sister circuits.
fact,
C.
it
approach
is the
by
endorsed
effectively
elevates form
Inquiry
A Contextual
Offers the
over substance
improperly
par
vests a
Approach
More Sound
ty’s response to the
question
Bostic
with
talismanic significance. Requiring
party
Not
ais
broader
review of the
to raise a post-sentencing objection makes
supported
overwhelming
record
little sense where
party already
has
weight
authority,
it also offers the more
position
made its
clear or where further
approach.
sound
objection would be futile. See Herrera-
(“it
Zuniga,
unfair to
Majority’s
Stated Justification
identify
failure to
the issue
counsel’s
Applying Plain-Error
Review is
Supreme
recognized
spot. The
Fundamentally Unfair, Unpersua-
Smith,
much in Estelle
451 U.S.
as
Contrary
sive,
(1981),
to Law
where
Notwithstanding
countervailing
these
that a defendant did not forfeit
mination
considerations,
majority argues
claims
Fifth and Sixth Amendment
his
higher
of a
of review
“application
standard
objecting to
to raise them when
failing
discourage par-
like this one will
in cases
testimony
during
introduced
his sentenc-
making vague objections that
ties from
468, 101
As the
ing.
Id. at
S.Ct. 1866.
complete
court of a
rec-
deprive this
more
reasoned,
counsel
Fifth Circuit
defense
Maj.
review.”
at 358. This
Op.
ord to
scarcely
failing
be
faulted
“[could]
completely unpersuasive
many
all of the
constitutional
enumerate
majority fundamentally
reveals
state
so soon after
rights that the
violated”
*35
principles
the
involved.
misunderstands
the dis-
unexpectedly presented
the state
for
Punishing Simmons
the district court’s
Estelle,
testimony.
v.
602
puted
Smith
oversight
is counterintuitive and will do
(5th Cir.1979).
694,
n. 19
With-
F.2d
nothing to
better sen-
encourage
almost
transcript, may
of the
it
not
the benefit
out
tencing practices.
identify
for
those
possible
defense
be
that Sim-
undeniably
The record
shows
sentencing pro-
of
aspects
specific
crack/powder disparity
mons raised his
ar-
he
is
that
or she contends
nouncement
prior
at least twice
to the district
scope
gument
narrow
of
legally insufficient.9 The
The
pronouncing
take into
court’s
his sentence.
majority’s inquiry fails to
account,
in-
clear
this was Sim-
Supreme
as the
Court has
record also makes
"procedurally
majority's approach
finding
of
is
a sentence
unreason
9. The unfairness
linger
"failing]
pertinent
amplified in this context because of the
able” and
to consider
3553(a)
finding
types
§
as
a
in this circuit as to what
factors”
a basis
confusion
unreasonable”);
aspects
"substantively
“procedural”
of
Unit
of claims relate
sentence
Brinda,
07-6357, 321 Fed.
Contrary to the ma
ed States v.
No.
a defendant’s sentence.
15,
(6th
2009)
recog
Apr.
jority's suggestion,
repeatedly
Appx.
Cir.
(“Here,
procedural
says
the sentence
[the defendant]
and substantive
nized
inquiry
substantively
components of the
are
unreasonable because
reasonableness
inextricably
unwarranted
interwoven. See United States
district court failed
consider
Jones,
Cir.2007)
(6th
disparities
required
as
18 U.S.C.
252 n. 3
3553(a)(6).”).
claim
(acknowledging
procedural
§
and sub
Given that Simmons’
components
in
relates to the district court's failure to consid
stantive
of our reasonableness
factor,
3553(a)
Consequently,
pertinent §
fact that
"appear
overlap”).
er a
quiry
rele
may
justifiably
as
Court has identified such claims as
counsel
be
confused
this
defense
preserved
both the substantive and
types
what
need to be
vant to
claims
inquiry strongly
objection,
aspects
which
of our reasonableness
post-sentencing
via
See,
objection.
e.g.,
against applying plain error review
require
United
militates
no such
Carson,
simply
defense
did not raise
Cir.
because
counsel
States v.
2009)
response
question.
(confusingly
"failing
identifying
to con
the issue in
to the Bostic
Herrera-Zuniga,
Supreme
precedent,
the Federal
E.
Rules,
governing
reject
and the
all
statute
Economy
Judicial
Not
Does
majority’s
assertion that Simmons
Support
Majority’s
somehow bears
“responsibility
this si-
Approach
Flawed
lence.”
Perhaps not surprisingly,
this discom-
majority
attempts
justify
also
its
aspect
majority’s
forting
holding
approach
judicial
on the basis
economy,
reflects
central flaw with our
decision
reasoning
“[providing disincentives
Vonner,
where the en banc
de-
for parties
give
who do not
nied the defendant’s
reason-
opportunity
objections
court an
to resolve
challenge despite
ableness
acknowledging
judicial
helps
conserve
deter-
resources
one
“[n]o
would call
[the
ring unnecessary delay and
need to
ideal,”
explanation
conceding
court’s]
Maj.
appeal.”
Op. at 356. But that “sen-
that the district court
specifically
“did not
Bostic,” Vonner,
useful
sible and
feature of
all
arguments
address
of [the defendant’s]
undoubtedly impor-
while
leniency”
and thus “failed to ensure
tant,
possibly
cannot
outweigh the funda-
defendant,
and,
that the
public
if nec-
mental unfairness that results.11
the court
essary,
appeals
understood
why
picked
the trial court
Even when the majority’s
the sentence it
concern is
*38
account,
516
did.”
makes
taken into
it
prac-
What
such
would be more
all
troubling
statements
the more
is
tical
require
and effective to
district courts
majority
the Vonner
was
of
a
so tolerant
the
to address
arguments
defendant’s
the
sentencing judge’s
despite noting
mistakes
And
place.
fully agree
first
while I
fact,
Bostic,
approach
by
11. In
the
adequate
appeal,
endorsed
the ma-
record for
371
see
872,
jority turns
majority
Bostic on its head. The
F.3d at
into an onerous burden on defen-
obviously
what
transforms
intended
a
The
as
dants.
interests
Bostic
identified in
do
procedural
rule that
support
majority's misguided ap-
would assist district
the
fulfilling
obligation
courts in
proach.
their
to create an
procedural objection
have to
his
are
guess
should not
sentence and
“[a]
on
out of
objecting party de based
and arise
the same sub-
arguments an
what
Faulkner,
on,”
Consequently,
843 F.2d stantive
Lockert v.
issue.
Simmons’
pends
(7th Cir.1988),
1015,
arguments
reading
and
the
inform
of his
prior
any
“
Osborne,
subsequent objection.
not be
sentencing judge should
‘sand
See
124-25,
1691;
object,”
Douglas,
by
[party’s]
a
failure
U.S.
110 S.Ct.
bagged’
Sec’y
Health & Human
U.S. at
vant. Majority Conducted majority’s on this technical reliance Fundamentally Unfair misplaced unpersuasive. distinction for a While is no doubt from the record Although requests Simmons’ below- there technically as to the substantive basis of Simmons’ sentence raises Guidelines *39 sentence, entirely claim, it is request from it for a lower procedural claim his distinct sentencing judge unclear ever a difference. Sim- whether is a distinction without majority bends arguments in favor of considered the issue. The prior mons’ lower over backwards to accommodate the dis- harmony out of policy. with this Order- oversight, grasping trict court’s ly straws procedure rules of require do not any support to locate crumb of for its sacrifice of the jus- rules of fundamental contention that the district court consid- tice. so, argument. doing ered Simmons’ Helvering, 552, 557, Hormel v. 312 U.S.
majority hypocritically
precisely
conducts
(1941).
S.Ct.
Frankly, it is
do not lose
stunning
sight
to consider the
of the fact
lengths
appellate
such
majority
practice
to which the
should not
apparently is
be
applied where
willing
go
explain away
the obvious
result would be
errors,
plain
miscarriage
justice.”
court’s
while at
the same time
Id. at
strictly
lines’ Maj. Op. treatment” H. but by seems unconcerned the fact that the district court’s Perhaps one-sentence dismissal the Time Has Come to Revisit of any concern about “unwarranted dispar- Holding of Vonner ities” amounts to mere boiler- explained above, As I I do not believe plate. inquiry conducted majority
Something is profoundly wrong with a is compelled by, or supported by, even our rule that requires a defendant to However, articulate decision in Vonner. if the ma- specific substantive objec- basis for his jority’s ruling forfeiture in fact is required error, tion to a perceived yet Vonner, and tolerates under then may the time a sentencing court’s utter failure to articu- come for the en banc Court to revisit the late basis for rejecting a defendant’s rule we announced that case. In put- primary argument in favor of a lower ting sen- teeth Bostic, to the rule announced in Supreme tence. As the Court has recog- Vonner reasoned: nized: doubt, No we encourage could practice
Rules of procedure are de- courts to ask question the Bostic without promote vised to justice, the ends of imposing any consequences on party’s to defeat them. A rigid undeviating failure to answer it. But that would judicially practice declared under which Better, undermine its effectiveness. courts of review invariably think, would to leaven the rule with a common- all under circumstances decline con- application sense plain-error doc- sider all questions previ- which had not trine and with an eye to the realities ously specifically been urged would be the facts and circumstances of each sen-
391 accomplish greater necessary if that than to the proceeding. And does tencing set in work, right sentencing goals by Congress forth course have the to we of and led to unwarranted sentenc- the in application the rule reconsider ing sentencing hearing, At disparities. the a future case. counsel this line of Simmons’ reiterated majority’s light In of the F.3d 391. the argument, expressly arguing that time today, it that the has ruling is obvious huge disparity “100-to-l ratio results in a us to the already for “reconsider come sentencing.” in J.A. 70. flawed deeply of this rule. application” Today’s ruling record, demonstrates that must On this there can be no doubt just practical means of craft more sentencing judge fully was aware the in achieving interests identified Bostic. underlying of the grounds substantive Simmons’ in favor a below IV. fact, Guidelines sentence. the sentenc not pro- ing transcript and Vonner do indicates that defense coun Because Bostic necessary crack/powder disparity the framework for resolv- sel raised the issue vide us, let for the time question now before alone last mere moments before the here, began pronouncing the outcome we should be district court Simmons’ dictate circumstances, by “general principle” an- Under guided sentence. these in Supreme Douglas nounced whether defense counsel could have articu objection lated approach, “procedural” and Osborne. Under that Sim- her more art arguments prior during fully more mons’ to and with detail is irrelevant. See Grissom, Considering are either sentencing hearing critical: be- at 694-95. sufficient, alone, they standing specific that Simmons had raised the sub cause were objection al preserve right procedural his raise stantive basis twice Blackie, ready, sentencing judge on see 548 F.3d at was—or at appeal, claim 401; they fully least should have aware of the or because must be considered been— underlying pro whether substantive issues new determining in defense counsel’s objection objection. cedural Because the record was sufficient to post-sentencing insisting spe claims makes on a more Simmons’ clear preserve objection facially objection practical if that was cific would serve no appeal, even Grissom, ends, justification for imposing F.3d at there is no inadequate, see 694- enough plain Herrera-Zuniga, review. way, Either Simmons did error See Ercole, 7;n. proce- at 581 Middleton right challenge his preserve 07-CV-2810, *9, aspects on No. appeal. dural of his sentence WL Dist. LEXIS at *29 U.S. demonstrates, As the record Simmons (E.D.N.Y. 2007) (“Since Dec.3, the purpose crack/powder disparity first raised the ar- contemporaneous rule is sentencing memorandum gument give opportunity trial courts to correct prior he submitted to the court to his errors, it make might their own sense to sentencing hearing. Simmons’ memoran- require precision specifying less the er specifically crack/pow- dum identified to when error is obvi objected ror so preeminent as disparity der issue “the is, be, ous that the trial court or should must guideline issue that be considered” it.”). already aware case, vigorously argued J.A. Because the record shows Simmons favor of below-Guidelines sentence in his repeatedly “pressed the issue” both grounds that the 100-to-l during memorandum and under ratio endorsed the Guidelines *41 392 Bolds, the rationale
sentencing hearing, underly United v. States ing “nothing steps Bostic is satisfied would laid out the three involved in the gained by requiring lawyer procedural-reasonableness “First, [Simmons’] be review. Osborne, object a time.” 495 we [third] must ensure that district 124, 110 at 1691. ‘correctly U.S. S.Ct. applicable calculat[ed] the Guide- range’
lines
point
[is]
which
‘the starting
y.
and initial benchmark’ of
sentencing
its
Gall,
analysis.”
requirement, we need address wheth- A. er the district court “considered all of the factors” and ex- “adequately of a reasonableness district court’s plained” the it imposed. sentence sentence “has both proce- substantive and Jones, components.” dural 489 F.3d at Thus, the Court’s “reasonableness re- B. requires
view
[inquiry] into both ‘the
part,
For its
concludes
length of the sentence’ and ‘the factors
the district court satisfied both require-
evaluated and
procedures employed
conclusion, however,
ments. That
is utter-
the district court in reaching its sentencing
ly unsupported in the record and based on
Liou,
determination.’”
proclaiming however, cannot reconciled with the be the reference’ to ‘conclusory a only controlling announced the principles not the and does address § factors Rita, in Rita. In the Su- Supreme Court regarding applica- arguments defendant’s that, explained generally, Court preme factors, court will those then this tion of length, of appropriateness brevity or “[t]he unreasonable.” United find the sentence write, detail, to what when conciseness (6th 532, 514 F.3d Klups, States say, depends upon circumstances.” 551 to Cir.2008) Thom- (quoting States v. United Thus, in the at 2456. U.S. S.Ct. Cir.2007)). as, 340-41 view, judicial a opin- “[s]ometimes Court’s frac- at the appeal Because Simmons’ lies every argument; some- responds ion to still-developing of point this Court’s ture much, The law times does not.... leaves jurisprudence, reasonableness respect, judge’s profes- in this own critically guid- to the important distill it is clarified, The judgment.” sional Id. Court decisions that underlie our ing principles however, that in the context of determin- area, identify factors those in this appropriate light what sentence is in of for seem- explain account these explicitly by Congress factors forth the set divergent ingly outcomes. 3553(a), at least judge in the enough satisfy set forth the “should in of diversity of outcomes Much the the appellate court that he has considered the from the that dis- cases stems fact these arguments a parties’ and has reasoned ba- “may exercise discretion trict courts exercising legal own sis for his decision- an determining explanation how much of making authority.” Id. The then Court ‘the required is the sentence because that, judge simply noted “when a decides ac- reasoning required varies amount ” the apply particular Guidelines a cording to United v. Jer- context.’ States case, doing necessarily require so will not (6th Cir.2008) oss, 582-83 explanation.” Id. ex- lengthy The Court 338). Liou, In Mad- (quoting further, however, that: plained den, instance, for the Court considered the or prosecutor Where defendant the court failed to consid- whether district for im- presents reasons nonfrivolous that she er the defendant’s contention however, sentence, a posing different because should receive a reduced sentence judge normally go will further and F.3d at capacity.” of her “diminished why rejected explain argu- he has those record, reviewing After ments. Sometimes the circumstances acknowledged “[t]he explanation; will call a brief some- court, sure, ad- specifically to be did not they lengthier expla- will for a times call reasons for lower sen- dress each a reasons, articulating .... By nation even forth in her [the defendant] tence set brief, sentencing judge if not Nevertheless, af- motion.” Id. the Court (and reviewing pub- courts assures sentence, holding that “[e]ven firmed lic) sentencing process that the a rea- presents argu- ... where the defendant process helps pro- also soned but ably imposing nonfrivolous reason cess evolve. range, sentence below Guidelines 357, 127 add- (emphasis address S.Ct. 2456 always required Id. (cit- ed). Id. specific argument.” at 611-12 Supreme emphasize obligation Court’s decision Rita We of the dis- that, a defendant trict court in each case to communicate suggests
thus
where
clearly
imposing
a nonfrivolous
favor of
its rationale for
raises
sentence,
court,
specific
at a
sentence. Where
defendant
reduced
minimum,
reasons,
particular argument
seeking
“articulat[e]
should
raises a
brief,”
argument.
if
each
must
rejecting
even
lower
record
reflect
Notwithstanding the discretion of the
both that
district judge
dis-
considered
*43
Rita,
recognized
argument
trict
in
this
that
court
Court
defendant’s
sentencing judge
judge explained
has
that a
rejecting
held
“must
basis for
enough [explanation]
...
forth
at least ‘set
it. This assures not
that the defen-
that
satisfy
appellate
to
court
he
dant can understand
for
has
the basis
parties’ arguments
particular
that
considered
and has
sentence but also
the re-
basis
exercising
viewing
intelligently
reasoned
his own
court can
determine
” Jeross,
authority.’
legal decisionmaking
specific
whether the
sentence
indeed
Rita,
at
521
583
551
(quoting
F.3d
U.S. at
reasonable.
2456)
356,
added).
(emphasis
127 S.Ct.
added). Thus,
(emphasis
Id. at 554
while
Rita,
Relying
repeatedly
this Court
has
requirement
there is no
that,
held
even
district
though the
court
in
“engage
court
a ‘ritualistic incantation
”
“recite” all
need not
of the factors set forth
to
legal
establish consideration of a
issue’
announcing
§in
a defendant’s
or that
specific findings
the court “make
sentence,
it nonetheless “must articulate
considered,”
relating to each of the factors
reasoning
impose
its
to
deciding
a sen-
court still “must articulate
tence in
to
order
allow for reasonable ap-
at
enough
reasoning
permit
least
its
pellate review.”
States v. Kirby,
United
appellate
an informed
review.” United
(6th Cir.2005).
621,
418 F.3d
626
As we
(6th
McClellan,
308,
States v.
164
310
F.3d
Gale,
recognized
United
v.
States
468 Cir.1999) (quoting United
v.
States Wash-
(6th Cir.2006),
F.3d 929
where “a defen-
(6th
490,
ington,
Cir.1998));
147 F.3d
491
argument
dant’s
and supporting evidence
Penson,
accord United States v.
presents
arguably
an
meritorious claim for
(6th Cir.2008)
(“[T]he
338
district
a lesser
but
there is little to
provided
court
virtually
giv-
no explanation
suggest that the district
actually
court
con-
ing insight
specific
into the reasons
it,
may
sidered
then
appropri-
remand
be
Bolds,
given.”);
sentence
the Federal Rules of Criminal Procedure
thereby
particular
chosen the
im-
sentence
that the
gener-
indicate
must
posed, regardless of
is within
whether it
ally speak
arguments
clearly
are
Thomas,
Guidelines.”);
outside of the
498
presented
Maj.
and in dispute.”12
Op. at F.3d at
(vacating
proce-
as
sentence
361.
durally unreasonable because “[t]he record
This
perhaps
Court
articulated
its
clear that the
ma[de]
district court consid-
strongest statement to
effect in
applicable
range,
this
Unit-
ered the
but
Guidelines
Richardson,
else”); Jones,
ed
States
As the of cases range, treat erly guidelines calculate the demonstrates, although the district court is advisory, as consider the guidelines every explicitly recount required 3553(a) adequately explain § and factors in pronouncing aspect of assessment Gall, (citing 128 S.Ct. least, the chosen sentence” sentence, must, very at the the court “ Peters, 597)); 512 United States enough a statement of rea- [of ‘set forth (6th Cir.2008) 787, (holding that sen 789 satisfy the he appellate sons] if, reasonable procedurally is not and tence parties’ arguments has considered prosecutor ‘pres- the defendant or exercising “[w]hen his own a reasoned basis for has 396 imposing
ents nonfrivolous reasons for
sentencing transcript
view the
to ensure
sentence,’ ...
sentencing judge
different
...
that the sentencing judge adequately
‘parties’ arguments’
§
address the
considered the relevant
[fails to]
factors
why
rejected
‘explain
clearly
he has
those
imposing
stated his reasons for
”
Rita,
arguments’
(quoting
Liou,
551 U.S. at
the chosen sentence.”
Therefore,
procedural
evaluate
rea-
that,
defendant’s
ground
sentence on the
sonableness,
appellate
an
us,
court must “re-
“on the record
way
before
we have no
explanation
13. A clear
of the court's
particular
reasons
received a
sentence.” United
Molina,
imposing
(2d
the chosen sentence also "en-
States v.
356 F.3d
Cir.
2004).
public
why
able[s]
to learn
[a] defendant
meaningful
provided
to allow
nation
ascertaining whether
if
sentence
perception
the same
review and the
imposed
appellate
would
vary
Jackson,
his discretion
sentence”);
known of
he had
excuses to
that error.
The record also indicates that the dis-
evaluated,
trict court
only briefly,
if
“the
D.
history and characteristics of the defen-
here,
Applying that rule
it is evident
dant.” J.A. 75.
In particular,
the court
sentencing judge
failed
“pro-
considered whether the
ap-
sentence was
Bolds,
explanation,”
vide a clear
propriate in light of “the defendant’s ex-
why
rejected
as to
history
tensive criminal
conjunction
and in
arguments
raised
Simmons
favor of a with his reported history of substance
variance,
downward
in particular, his
abuse,” as well as Simmons’ “need for
erack/powder disparity argument. There
substance abuse treatment.”
J.A. 75. Ul-
is simply nothing in
suggest,
the record to
timately,
court concluded
strongly
let alone
suggest, that the district
that its chosen sentence would “afford the
court ever considered
primary
Simmons’
defendant
appropriate
and necessary
in favor of a lower sentence. means of rehabilitation and
years
the five
reason,
For that
even if
were
supervised
release will offer the defen-
correct
plain-error
standard of
readjust
dant time to
his life.” J.A. 77.
applies, controlling authority
review
dic-
*47
times,
Although, the district court’s
tates that we find the district court’s utter
consideration of
perfuncto-
these
is
issues
explain
failure to
its reasons for rejecting
ry,
demonstrates,
the record
very
at the
Simmons’ arguments
plain
constitutes
er-
least, that the court evaluated these fac-
reason,
ror. For that
I would set aside
in
tors
determining
appropriate
the
sen-
Simmons’ sentence
procedurally
as
unrea-
tence.
craek/powder
As to Simmons’
dis-
sonable.
parity argument, however,
in
nothing
the
In announcing
sentence,
Simmons’
the
sentencing transcript
indicates that
district
properly
court
recognized that
issue,
considered the
much
“Booker requires judges
only
not
to con-
explained
less
rejecting
the basis for
that
sider the guideline range but also to con-
Indeed,
argument.
entirely
record is
sider other
in
factors listed
[18 U.S.C.
silent on the issue.
in determining
appropriate
]
sentence.”
J.A. 75. The
Only
district court
following generalized
and con-
proceeded
then
to consider the
clusory
various
arguably
statement even
comes
factors at issue. As to “the nature
addressing
close to
the issue:
ally
argument,
Simmons’
considered the
had considered
Finally, the Court has
claims,
majority
as the
the court would
and the
Sentencing Guidelines
advisory
difference
compared
have
between
sentencing
unwarranted
need to avoid
sentencing ranges (plu-
powder
crack and
The
disparities.
defendant’s
ral).
Instead,
clear,
passage
as this
makes
imprisonment.
months
range is 110-137
advisory
the court considered
“this
advisory
this
The
has considered
sen-
range
determining
appropriate
determining
appropriate
range in
added).
(emphasis
tence.”
J.A.
is within that
and the sentence
Therefore,
unlikely to result
range.
it is
reading
pas-
of this
plausible
The most
disparities.
in unwarranted
im-
sage suggests that the district court
limited its consideration of the
properly
heavily
relies
76. The
J.A.
that,
appropriate
advisory
sentence to the
conclude
even
this statement
range,
Guidelines
and thus never consid-
expressly
did not
though the district court
that a
ered Simmons’
sentence
rejecting
its rationale for
Sim-
articulate
more
range
appropriate
below that
in-
argument,
it can be
particular
mons’
just.
majority’s quip
and more
court ruled on
that
the district
ferred
reference to defense counsel’s
argument by implication. On
Simmons’
appropriate
although
more
here:
however,
in-
reading,
passage
this
careful
court used the words “unwarranted” and
opposite.
precisely
dicates
“disparities,” nothing
passage
this
even
Contrary
majority’s
sug-
dubious
remotely
court
indicates
consid-
vague passage suggests
this
gestion,
crack/powder
distinct
ered Simmons’
dis-
considered Simmons’
parity argument.
contrary,
To the
argument, but
crack/powder disparity
“strongly suggests,” to borrow
statement
court considered
the district
rather
majority,
from the
another line
sentence would re-
only whether Simmons’
effectively
district court misunderstood or
disparity
unwarranted
when
sult
in an
argument that there
ignored Simmons’
imposed
to sentences
other
compared
disparity
an unfair
between the recom-
According
to the
crack cases.
sentencing ranges for offenses in-
mended
court,
unlikely to
sentence “is
Simmons’
involving
and those
volving crack cocaine
disparities” merely
in unwarranted
result
powder cocaine.16
advisory
it “is
Guide-
[the
because
within
event,
if
infer from
even we could
premise
The fundamental
range.”
lines]
however,
vague
court’s
statement
re-
was that
argument,
of Simmons’
that the
garding
disparities”
unfair
“unwarranted
sentencing range itself was
ar-
sentencing judge considered Simmons’
range
that would
compared
when
dispute
no
that the
gument,
offense
there can be
been recommended had his
sentencing judge plainly
explain
failed to
opposed to crack co-
powder
involved
as
*48
Therefore,
why
rejected
argument
he
as
basis
if the district court actu-
caine.
engage
very
16.
fact that we are forced to
conclusion that no un-
The
15. The district court's
disparities
simply
why
be-
type
precisely
would result
warranted
in this
of review
it chose to hand down was
judges
cause the sentence
require
Court should
district court
advisory
range
im-
Guidelines
also
within the
argu-
explicitly respond to all nonfrivolous
range
properly presumes
recom-
speculating
whether a
rather than
as to
ments
inherently
under the Guidelines was
mended
an is-
considered and ruled on
district court
assumption,
standing
improper
That
fair.
by implication.
sue
alone,
support
remand. See
is sufficient to
Cruz, 461 F.3d at lower than the
imposing
ty,
sentence
Simmons’
a legal,
“involved
factual,
range.
pro-
Maj.
Guidelines
district court
not
matter.”
Op. at 362.
absolutely no rationale for
Despite
majority’s
vided
its conclu-
effort to manufac-
sion, rejecting
exception
the notion of unwarranted
ture a new
to our
disparities
inquiry,
out of hand without
sub-
reasonableness
this Court has
As this
explanation.
previ-
stantive
never held that a district court can simply
concluded,
ously
generalized
ignore
has
such
its
statutory obligations under
3553(a)
§
are
conclusory statements
insufficient to
consider
defendant’s non-
arguments
demonstrate that
the district court con-
frivolous
merely
they
because
requisite
purely
ducted the
individualized consid-
involve
legal questions.
Not
majority’s
eration of the factors set forth in 18
willingness
give
U.S.C.
the dis-
3553(a).
Penson,
§
doubt,”
See
whether argument provides Simmons’ ment both his sentencing memorandum valid departure. basis for a downward and at sentencing hearing. Absent Contrary to the conclusion reached explanation some of the district court’s majority, these facts demonstrate that basis for rejecting argument, the sen- the district court significant committed tencing record does permit meaningful procedural errors that rendered Simmons’ review of the reasonableness of Simmons’ unreasonable, sentence plain- even under sentence. error review. I respectfully therefore dissent.
E. Contrary to majority’s suggestion, we cannot simply overlook the district
court’s utter failure to address Simmons’ primary argument in favor of a downward *49 variance, if, even according majori-