UNITED STATES of America, Plaintiff-Appellee, v. Alvin VONNER, Defendant-Appellant.
No. 05-5295.
United States Court of Appeals, Sixth Circuit.
Argued: Sept. 12, 2007. Decided and Filed: Feb. 7, 2008.
516 F.3d 382
Before: BOGGS, Chief Judge; MARTIN, SILER, BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, and GRIFFIN, Circuit Judges.
SUTTON, J., delivered the opinion of the court, in which BOGGS, C.J., SILER, BATCHELDER, GIBBONS, ROGERS, COOK, McKEAGUE, and GRIFFIN, JJ., joined. MARTIN, J. (pp. 392-95), delivered a separate dissenting opinion, in which COLE and CLAY, JJ., joined.
OPINION
SUTTON, Circuit Judge.
Alvin Vonner argues that his 117-month sentence violates the Sixth Amendment and is unreasonable. We disagree because (1) district courts may, consistent with the Sixth Amendment, find sentencing facts in applying the now-advisory sentencing guidelines, (2) Vonner forfeited his argument that the district court failed adequately to explain its rejection of his arguments for leniency and cannot show plain error and (3) his within-guidelines sentence is reasonable.
I.
Less than three months after completing a prison sentence for second-degree murder, Alvin Vonner sold crack cocaine to a government informant on two separate occasions. A grand jury indicted Vonner for distributing at least five grams of cocaine base, see
The presentence report calculated Vonner‘s criminal history category (III) and his offense level (29), which intersected at an advisory guidelines range of 108 to 135 months. Vonner did not object to the report.
At the sentencing hearing, which took place three weeks after the Court decided United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), Vonner sought a downward variance based on (1) the mental and emotional trauma he suffered from a “neglect[ed]” and “abus[ive]” childhood, (2) “the nature and the length of [his] Pre-Sentence confinement,” which lasted fourteen months, (3) his “assistance to the Government” and (4) the circumstances surrounding his cocaine sales. Vonner also argued that the court, by increasing the guidelines range based on a drug quantity never proved beyond a reasonable doubt to a jury or admitted by him, violated the Sixth Amendment.
After listening to these arguments and after hearing the government‘s response, the court told Vonner that it “appreciate[d] the apology [he] offered this morning,” and it “encourage[d]” him to continue to cooperate with the government and to dedicate his prison time to learning “certain life skills and lifestyles that will be of benefit to [him] when [his] period of incarceration is over.” “[C]onsider[ing] the nature and circumstances of the offense, the history and characteristics of the defendant, and the advisory Guidelines range, as well as the other factors listed in
II.
Vonner first argues that his sentence violates the Sixth Amendment because it was based on facts he never admitted and no jury ever found beyond a reasonable doubt. He is wrong for two
III.
Vonner next argues that the district court failed to explain in sufficient detail why it rejected some of his arguments for a downward variance. At a sentencing hearing, as at every other phase of a criminal proceeding, each party has a duty to object to rulings by a court in order to preserve them for appeal. “A party,” the Criminal Rules say, “may preserve a claim of error by informing the court—when the court ruling or order is made or sought—of the action the party wishes the court to take, or the party‘s objection to the court‘s action and the grounds for that objection.”
In United States v. Bostic, 371 F.3d 865 (6th Cir. 2004), we wrestled with the difficulty of “parsing a [sentencing] transcript to determine whether a party had a meaningful opportunity to object” and of determining whether plain-error review should apply. Id. at 873 n. 6. In an effort to bring some clarity to the matter and to ensure that plain-error review applied only when the parties fairly were given a chance to object to the sentencing procedure, Bostic suggested that district courts, after announcing a proposed sentence, “ask the parties whether they have any objections to the sentence... that have not previously been raised.” Id. at 872. If a sentencing judge asks this question and if the relevant party does not object, then plain-error review applies on appeal to those arguments not preserved in the district court. Id. at 872-73. In adopting this approach, Bostic reasoned that it would give the prosecution and defense alike an opportunity to articulate “any objection and the grounds therefor“; it would “aid the district court in correcting any error” and allow it to do so “on the spot“; and it would facilitate the appellate process by highlighting “precisely which objections have been preserved.” Id. at 873 (internal quotation marks omitted).
We have applied Bostic to sentencing appeals before Booker, and we have done so since Booker in numerous published and unpublished cases. See United States v. Brogdon, 503 F.3d 555, 562-63 (6th Cir. 2007); United States v. Brock, 501 F.3d 762, 773 (6th Cir. 2007); United States v. Simmons, 501 F.3d 620, 623-24 (6th Cir. 2007); United States v. Caver, 470 F.3d 220, 235 (6th Cir. 2006); see also United States v. Key, No. 05-6277, 256 Fed. Appx. 775, 780, 2007 WL 4293456, at *5 (6th Cir. Dec. 6, 2007); United States v. Darden, No. 06-1767, 253 Fed. Appx. 568, 569-70, 2007 WL 3329454, at *2 (6th Cir. Nov. 7, 2007); United States v. Muse, 250 Fed. Appx. 700, 702 (6th Cir. 2007); United States v. Grant, 247 Fed. Appx. 749, 752-53 (6th Cir. 2007); United States v. Scadin, 246 Fed. Appx. 319, 320-21 (6th Cir. 2007); United States v. Bowden, 240 Fed. Appx. 56, 58-59 (6th Cir. 2007); United States v. Wilson, 232 Fed. Appx. 540, 545 (6th Cir. 2007);
Bostic governs Vonner‘s claim that the district court failed to explain fully why it rejected some of his requests for leniency. After announcing the proposed sentence, the court asked each party whether it “ha[d] any objection to the sentence just pronounced not previously raised.” “No, Your Honor,” Vonner‘s counsel responded. While this answer did not undermine Vonner‘s right to appeal issues he had “previously raised,” it did undermine his right to challenge the adequacy of the court‘s explanation for the sentence—an issue that became apparent as soon as the court finished announcing its proposed sentence and that counsel nonetheless declined the court‘s invitation to address. Bostic, 371 F.3d at 872-73.
Under Bostic, we review this challenge for plain error, which requires Vonner to show (1) error (2) that “was obvious or clear,” (3) that “affected defendant‘s substantial rights” and (4) that “affected the fairness, integrity, or public reputation of the judicial proceedings.” United States v. Gardiner, 463 F.3d 445, 459 (6th Cir. 2006) (internal quotation marks omitted). “[O]nly in exceptional circumstances” will we find such error—only, we have said, “where the error is so plain that the trial judge [was] derelict in countenancing it.” Id. (internal quotation marks omitted).
At the sentencing hearing, Vonner asked for a downward variance on four grounds: (1) his “neglect[ed]” and “abus[ive]” childhood; (2) his 14-month presentence confinement; (3) his “assistance to the Government“; and (4) the circumstances surrounding his cocaine sales. The court told Vonner, among other things, that it “appreciate[d] the apology [he] offered this morning,” and it “encourage[d]” him to continue to cooperate with the government and to dedicate his prison time to learning “certain life skills and lifestyles that will be of benefit to [him] when [his] period of incarceration is over.” It then said that it had “considered the nature and circumstances of the offense, the history and characteristics of the defendant, and the advisory Guidelines range, as well as the other factors listed in
No one would call this explanation ideal. It did not specifically address all of Vonner‘s arguments for leniency, and it thus failed to ensure that the defendant, the public and, if necessary, the court of appeals understood why the trial court picked the sentence it did. Whether through an oral sentencing decision or a written sentencing memorandum, a trial court would do well to say more—not because it necessarily must on pain of reversal but because a court is more likely to advance the goals of sentencing if it clearly explains to the defendant why the court denied his request for leniency. See Rita v. United States, 551 U.S. 338, 127 S. Ct. 2456, 2468, 168 L. Ed. 2d 203 (2007) (“[O]ften at sentencing a judge will speak at length to a defendant, and this practice may indeed serve a salutary purpose.“). A
In fairness to the district court, it sentenced Vonner just three weeks after the Court decided Booker at a time when district and appellate courts around the country were grappling with the implementation of this new system of sentencing. For this reason and for the reason that plain-error review gives us another, more straightforward way to handle this appeal, we need not address the first step of plain-error review: Did the court err?
Whether the court‘s brief explanation for this sentence sufficed or not, any potential error was not “plain.” Although Congress requires a court to give “the reasons” for its sentence,
Consistent with the statute, Rita also suggests a distinction between within- and outside-guidelines sentences, saying that, where a judge imposes a within-guidelines sentence, he “will normally... explain why he has rejected... arguments” for a different sentence, but insisting that, “[w]here the judge imposes a sentence outside the Guidelines, the judge will explain why he has done so.” Rita, 127 S. Ct. at 2468 (emphases added). At the same time that the Court encourages district court judges to give “reasoned” explanations for all sentencing decisions (as indeed do we), it confirms that “[t]he law leaves much, in this respect, to the judge‘s own professional judgment.” Id. “The appropriateness of brevity or length, conciseness or detail, when to write, what to say, depends upon circumstances. Sometimes a judicial opinion responds to every argument; sometimes it does not.” Id.
That flexibility is particularly relevant when the district court agrees with the Sentencing Commission‘s recommendations. “[W]hen a judge decides simply to apply the Guidelines to a particular case, doing so will not necessarily require lengthy explanation” because “[c]ircumstances may well make clear that the judge rests his decision upon the Commission‘s own reasoning that the Guidelines sentence is a proper sentence (in terms of
Vonner‘s arguments were conceptually straightforward, and the district court imposed a within-guidelines sentence. Nothing in the “record,” or the “context” of the hearing, suggests that the court did not “listen[ ]” to, “consider[ ]” and understand every argument Vonner made. Rita, 127 S. Ct. at 2469. On this record, we cannot say that any error was so plain or obvious that the judge was “derelict in countenancing it.” Gardiner, 463 F.3d at 459 (internal quotation marks omitted).
Vonner resists this conclusion on the ground that
As Vonner sees it, his leniency arguments amounted to “controverted matter[s]” under the rule, requiring the district court to address each of them more fully. But plain-error review applies to this argument as well because he did not raise it below, even after the district court gave him an opportunity to do so. He cannot show any error, much less plain error.
In closing, it bears emphasizing that there is a sizeable gap between good sentencing practices and reversibly bad sentencing practices. As was true in Rita, so it is true here: The judge “might have added explicitly that he had heard and considered” Vonner‘s “evidence and argument[s]” for a lower sentence; that “he thought the Commission in the Guidelines had determined a sentence that was proper in the minerun of roughly similar cases; and that he found that [the] circumstances here were simply not different enough to warrant a different sentence.” Rita, 127 S. Ct. at 2469. All of this would have left little room for curiosity or doubt as to the court‘s method of sentencing and almost assuredly would have assisted us in handling challenges to the length of the sentence—to which we now turn.
IV.
Vonner also challenges the reasonableness of the length of his sentence, urging us to abandon the presumption of reasonableness for within-guidelines sentences and arguing that his sentence is unduly long. Plain-error review, as an initial matter, does not apply to either argument, even though the court asked Vonner‘s counsel at sentencing whether he had any objections not previously raised and even though counsel did not mention these two arguments. A litigant has no duty to object to the “reasonableness” of the length of a sentence (or to the presumption of reasonableness) during a sentencing hearing, just a duty to explain the grounds for leniency. That is because reasonableness is the standard of appellate review, not the standard a district court uses in imposing a sentence. See id. at 2465.
In United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006), this court embraced an appellate presumption of reasonableness for within-guidelines sentences. In Rita, the Court upheld the presumption. Rita, 127 S. Ct. at 2462. Rita, we recognize, does not hold that appellate courts must embrace the presumption. See id. at 2462, 2467; see also Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 597, 169 L. Ed. 2d 445 (2007). But we see no good reason to abandon the presumption now—after using it for some time and after being told that we may continue to use it. The presumption, as the Supreme Court has explained, rests on sound reasoning. The guidelines represent the Sentencing Commission‘s attempt to reconcile the same
Vonner has not rebutted the presumption here. While Vonner had a “rather poor childhood,” the district court had ample bases to conclude that he emerged from that childhood as a risk to society. Because Vonner committed murder at the age of 18, engaged in an assault shortly after his release from prison and turned to peddling drugs within three months of leaving prison, the district court could fairly conclude that the need for public protection and the risk of recidivism were great while the immediate prospects for rehabilitation were not promising. That Vonner sought to justify his drug dealing on the ground that he had no other means of earning a living after being released from jail does not show that the trial court abused its discretion; the court could still have legitimately concluded that he never took advantage of the educational opportunities offered to him before, during and after serving his sentence for second-degree murder.
On this record, we cannot say that the district court‘s 117-month sentence—a sentence in the bottom half of the guidelines range—was unreasonably long. The district court judge, unlike the members of this court, had an opportunity to hear from the defendant firsthand. It then “considered the nature and circumstances of the offense, the history and characteristics of the defendant, and the advisory Guidelines range, as well as the other factors listed in
V.
Contrary to the contention of some of the dissents, neither the defense nor the government, in response to the Bostic question, has any obligation to raise objections already made. The point of the question is not to require counsel to repeat objections or, worse, to undo previously raised objections. It is simply to give counsel one last chance to preserve objections for appeal that counsel has not yet seen fit to raise or has not yet had an opportunity to raise. Because counsel for both parties at that point in the proceeding customarily will have raised the traditional sentencing arguments—objections, say, to the presentence report or reasons for obtaining a departure or variance—the import of the Bostic question is that it gives counsel a chance to ask the sentencing judge for clarifications about the proposed sentence it just announced. As best we can tell from our cases applying Bostic, the rule is thus apt to be relevant in three principal settings where it is unclear whether the district court, in announcing its proposed sentence, considered all of the
To say that Bostic does not apply in these settings is not to clarify the decision but to abandon it. We are not prepared to do that. No party has argued in its appellate briefs that Bostic should be overruled.
No one, moreover, can fairly challenge a sensible and useful feature of Bostic. Many of our post-Booker sentencing appeals deal with adequacy-of-explanation questions, and Bostic has the salutary effect of encouraging the resolution of those issues at the sentencing hearing—when they matter most and when they can be most readily resolved. Criminal sentencing is a serious business, and we should encourage district court judges to adopt sentencing practices that resolve potential sentencing disputes at the hearing, not on appeal.
No doubt, we could encourage district courts to ask the Bostic question without imposing any consequences on a party‘s failure to answer it. But that would undermine its effectiveness. Better, we think, to leaven the rule with a common-sense application of the plain-error doctrine and with an eye to the realities of the facts and circumstances of each sentencing proceeding. And if that does not work, we of course have the right to reconsider the application of the rule in a future case. As for this case, we have little difficulty concluding that Bostic should apply. At this sentencing hearing, not only were Bostic and the reason-giving duties at sentencing pre-existing requirements of which counsel for both parties had every reason to know, but this also was a classically “mine run,” within-guidelines case. Rita, 127 S. Ct. at 2465. And if it was not, that was only because Vonner had a real risk of obtaining an upward variance in view of his assault and two cocaine sales within three months of leaving prison on a murder charge.
Nor is it the case that a request for a variance in the district court by itself preserves all procedural and substantive challenges to a sentence. Here we have a disagreement not about Bostic but about
Two examples illustrate the point. If, under the heading of “substantive reasonableness,” a defendant argued on appeal that the length of his sentence was too long because it did not account for the fact
These fair-minded debates should not obscure a broader point. Since Booker, the Supreme Court has handed down three cases about appellate review of challenges to the lengths of criminal sentences and the processes for determining them. See Rita, 127 S. Ct. at 2470; Gall, 128 S. Ct. at 602; Kimbrough v. United States, 552 U.S. 85, 128 S. Ct. 558, 576, 169 L. Ed. 2d 481 (2007). One theme runs through all three cases: Booker empowered district courts, not appellate courts and not the Sentencing Commission. Talk of presumptions, plain error and procedural and substantive rules of review means nothing if it does not account for the central reality that Booker breathes life into the authority of district court judges to engage in individualized sentencing within reason in applying the
VI.
For these reasons, we affirm.
BOYCE F. MARTIN, JR., Circuit Judge, dissenting, in which Judges COLE and CLAY join.
Having joined Judge Clay‘s and Judge Moore‘s dissents, I write briefly in an attempt to outline the proper procedure for sentencing so that district courts need not continue to stumble blindly in the dark after the Supreme Court‘s recent decisions have failed to light the way. See Richard G. Kopf, The Top Ten Things I Learned From Apprendi, Blakely, Booker, Rita, Kimbrough, and Gall, OSJCL AMICI: VIEWS FROM THE FIELD (January 2008), at http://osjcl.blogspot.com.
I.
I will not rehash the obvious mistake the majority is making in applying plain-error review to Vonner‘s procedural challenges; I believe my colleagues have adequately addressed the foolhardiness of the majority‘s approach in that regard. Rather, I want to focus on the need for district courts to adequately explain the reasons for a given sentence, taking into account all of the
The district court attempted to justify Vonner‘s within-guidelines sentence by merely stating that it had “considered the nature and circumstances of the offense, the history and characteristics of the defendant, and the advisory Guidelines range, as well as the other factors listed in
II.
The Supreme Court has recently laid out the proper manner in which a district court should sentence a defendant. Gall, 128 S. Ct. at 596-97. Procedurally, the district court must properly calculate the guidelines range, id. at 596, give “both parties the opportunity to argue for whatever sentence they deem appropriate,” id., and consider “all of the
A district court must then “make an individualized assessment based on the facts presented,” id. at 596-97, regardless of whether the sentence is above, below, or within the guidelines, id. As my colleague Judge Clay recently put it, “[d]uring this ‘individualized assessment’ process, sentencing judges should not permit the Guidelines to be a strait-jacket which compel a particular sentence....” United States v. Sedore, 512 F.3d 819, 828 (6th Cir. 2008) (Clay, J., concurring). Rather, as has always been the case under
Finally, after deciding on a sentence, a district court is required “to adequately explain the chosen sentence,” id. at 597, “[r]egardless of whether the sentence imposed is inside or outside the Guidelines range ....” id. The difficult part in attempting to apply this requirement is deciphering the meaning of “adequately explain.” How much justification for a sentence is “adequate“? I believe it is obvious that the explanation given for Vonner‘s sentence was sorely lacking and would not pass muster under Gall. But at what point does an explanation transform from inadequate to adequate? The standard set by the district judge in Gall must be our guide, as it is the only example we have that has been affirmed by the Supreme Court as adequate.
In sentencing Gall, the district court provided a lengthy statement on the record and provided a written memorandum discussing the reasons for Gall‘s sentence. Id. at 593. While I understand that submitting both an oral statement on the record and a written memorandum are not necessary, I also believe that the content
“The Court determined that, considering all the factors under
18 U.S.C. 3553(a) , the Defendant‘s explicit withdrawal from the conspiracy almost four years before the filing of the Indictment, the Defendant‘s post-offense conduct, especially obtaining a college degree and the start of his own successful business, the support of family and friends, lack of criminal history, and his age at the time of the offense conduct, all warrant the sentence imposed, which was sufficient, but not greater than necessary to serve the purposes of sentencing....[Gall] will have to comply with strict reporting conditions along with a three-year regime of alcohol and drug testing. He will not be able to change or make decisions about significant circumstances in his life, such as where to live or work, which are prized liberty interests, without first seeking authorization from his Probation Officer or, perhaps, even the Court. Of course, the Defendant always faces the harsh consequences that await if he violates the conditions of his probationary term....
Any term of imprisonment in this case would be counter effective by depriving society of the contributions of the Defendant who, the Court has found, understands the consequences of his criminal conduct and is doing everything in his power to forge a new life. The Defendant‘s post-offense conduct indicates neither that he will return to criminal behavior nor that the Defendant is a danger to society. In fact, the Defendant‘s post-offense conduct was not motivated by a desire to please the Court or any other governmental agency, but was the pre-Indictment product of the Defendant‘s own desire to lead a better life.”
Id. (quoting the text of the district court‘s sentencing memorandum).
As the Supreme Court found, the district court addressed the relevant
The procedures of the Gall district court are a model of clarity. As upheld by the Supreme Court, it provides clear direction to district courts as to the proper manner by which to sentence defendants. Obviously, the Vonner district court gave mere lip service to the mandates of
III.
Some eighteen years has passed since my first decision involving the guidelines, and it appears that we are about to come full circle.
At the time I wrote United States v. Perez, 871 F.2d 45 (6th Cir. 1989), I firmly believed that the guidelines could elevate the federal criminal justice system to a new level. I even supported Judge Stephen Breyer‘s argument, which he made in the Hofstra Law Review, that many compromises were made in the implementation of the sentencing guidelines, but that a better system would emerge. See Stephen Breyer, The Federal Guidelines and the Key Compromises Upon Which They Rest, 17 Hofstra L. Rev. 405 (1988). I now believe I was wrong in endorsing the guidelines. The guidelines, as ambitious as they were, have become more than just guidelines; they are rigid mandates. I still believe that sentencing throughout the federal system should be as uniform as possible. However, the guidelines disregard fundamental notions of due process and create a slip-shod system of sentencing in which the only thing that matters is the maximization of prison sentences. “The best we can say about [the sentencing guidelines] is what Herbert Hoover said of Prohibition: that this has been a ‘great... experiment, noble in motive [and] far-reaching in purpose.’ But like that earlier experiment, this one has failed.” Jose A. Cabranes, A Failed Utopian Experiment, Nat. L. J., July 27, 1992, at 17, 18 (U.S. District Judge Cabranes based the article on a speech he delivered at the University of Chicago). As with any failed experiment, it is now time that we rid ourselves of the experiment and move on to a new, improved system.
United States v. Silverman, 976 F.2d 1502, 1534-35 (6th Cir. 1992) (Martin, J., dissenting).
CLAY, Circuit Judge, dissenting, joined by MARTIN, DAUGHTREY, MOORE, COLE, and GILMAN, Circuit Judges.
Today, the majority misapplies our holding in United States v. Bostic, 371 F.3d 865 (6th Cir. 2004), and ignores the Supreme Court‘s command in United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), Rita v. United States, 551 U.S. 338, 127 S. Ct. 2456, 168 L. Ed. 2d 203 (2007), and Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 169 L. Ed. 2d 445 (2007), that we review sentences for reasonableness, in a strained effort to uphold a sentencing procedure that “[n]o one would call... ideal.” United States v. Vonner, 516 F.3d at 386, No. 05-5295 (6th Cir. Feb. 7, 2008). Because Rita and Gall do not require a defendant to object to the procedural or substantive reasonableness of his sentence at the time of sentencing, and indeed suggest that it would be improper to raise such an objection with the district court, I find the majority‘s application of plain error review inappropriate. I also consider the sentence in this case to be procedurally unreasonable, even when analyzed under a plain error standard. Accordingly, I respectfully dissent.
In contrast to the majority, I do not believe that plain error is the appropriate standard of review to apply to Vonner‘s procedural reasonableness challenge. Because reasonableness is the appellate standard of review, see Gall, 128 S. Ct. at 596; Rita, 127 S. Ct. at 2465, Vonner was not required to object to either the procedural or substantive reasonableness of his sentence at the time of sentencing, and thus should not face plain error review for failure to raise such an objection. Furthermore, given the specific facts of Vonner‘s case—his sentencing hearing occurred only three weeks after the Supreme Court handed down Booker and a few months prior to our first explanation of the procedural aspect of reasonableness review—subjecting Vonner to plain error review for his failure to make an objection that he could not have known he needed to make is inconsistent with the most basic principles of fairness and due process.
A.
After finding the provisions of the Sentencing Reform Act of 1984,
To determine whether a sentence is substantively reasonable, we have generally examined whether the length of the sentence is “sufficient, but not greater than necessary, to comply with the purposes” of sentencing set forth in
While we have subdivided our analysis of the reasonableness of a district court‘s sentence along procedural and substantive lines, our jurisprudence as well as the Supreme Court‘s most recent sentencing pronouncements indicate that these two inquiries are simply different aspects of the overall reasonableness review required by Booker. See Gall, 128 S. Ct. at 597 (directing appellate courts to “first ensure that the district court committed no significant procedural error” and “then consider the substantive reasonableness of the sentence imposed under an abuse of discretion standard“); Liou, 491 F.3d at 337 (noting that “the border between factors properly considered ‘substantive’ and those properly considered ‘procedural’ is blurry if not porous“). Indeed, in Webb, our first case to identify these two aspects of reasonableness, we discussed them as part of our general determination of whether the sentence was “unreasonable.” Webb, 403 F.3d at 383. See also Thomas, 498 F.3d at 339-40; Liou, 491 F.3d at 337; United States v. Clark, 469 F.3d 568, 571 (6th Cir. 2006). In particular, we indicated that “we read Booker as instructing appellate courts in determining reasonableness to consider not only the length of the sentence but also the factors evaluated and the procedures employed by the district court in reaching its sentencing determination.” Webb, 403 F.3d at 383 (emphasis added).
In short, our review of sentences for reasonableness has consisted of a single analysis in which we evaluate whether the district court: (1) properly considered the
B.
Our Booker obligation to “review sentencing decisions for unreasonableness,”
[A] district court‘s job is not to impose a “reasonable” sentence. Rather, a district court‘s mandate is to impose “a sentence sufficient, but not greater than necessary, to comply with the purposes” of section 3553(a)(2). Reasonableness is the appellate standard of review in judging whether a district court has accomplished its task.
Clark, 469 F.3d at 571 (quoting United States v. Foreman, 436 F.3d 638, 644 n. 1 (6th Cir. 2006)); accord Bolds, 511 F.3d at 578-79; United States v. Davis, 458 F.3d 505, 509-10 (6th Cir. 2006). A defendant has no duty to challenge the “reasonableness,” either procedural or substantive, of the district court‘s sentencing decision at the time it is announced. See Bolds, 511 F.3d at 578 (“In imposing a sentence, neither the district court nor the parties are to focus on the ‘reasonableness’ of the sentence, but rather on the sentence‘s ability to accomplish the sentencing purposes in
While Judge Sutton, writing for the majority, seems to recognize this point with respect to Vonner‘s substantive reasonableness challenge, see Vonner, 516 F.3d at 389, he nevertheless applies plain error review to Vonner‘s procedural reasonableness challenge. See id. at 386. In doing so, Judge Sutton ignores the fact that “procedural reasonableness” and “substantive reasonableness” are simply two aspects of the overall “reasonableness” of Vonner‘s sentence which Booker, Rita, and Gall require us, not the district court, to review on appeal. Likewise, Judge Sutton fails to offer any explanation of why, at the time of sentencing, Vonner should have objected to the procedural reasonableness of his sentence but was not required to raise a similar objection to its substantive reasonableness when both these aspects of the unreasonableness of his sentence “became apparent as soon as the court finished announcing its proposed sentence.” Id. Instead, to support his application of plain error review to Vonner‘s procedural
In Bostic, decided prior to the Supreme Court‘s announcement of a new standard of appellate sentencing review in Booker, we confronted the challenge of determining, for purposes of
The proper application of the Bostic rule does not require a defendant, who has already presented arguments concerning the proper calculation of his sentence under
While some of our prior panel cases have concluded that the Bostic rule applies when a defendant fails to challenge the procedural reasonableness of his sentence in the district court, see Vonner, 516 F.3d at 385 (citing cases), those cases are not binding on this Court when sitting en banc. See Salmi v. Sec‘y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985). Moreover, in contrast to the reasons articulated above for not requiring a defendant to object to the “procedural reasonableness” of his sentence at the sentencing hearing, those cases provide no rationale to support their conclusion that challenges for “unreasonableness” must be asserted in the district court or abandoned for plain error review on appeal, and thus provide no explanation for the way in which they apply Bostic to Booker reasonableness appeals.
Contrary to what the majority claims, I am not suggesting that we abandon the rule announced in Bostic. Rather, I am merely recognizing the fact that neither our rule in Bostic nor
C.
Not only is applying plain error review to Vonner‘s procedural unreasonableness challenge inconsistent with the Supreme Court‘s command that the courts of appeals review sentences for reasonableness, it is also particularly unjust in light of the facts of this case. Vonner was sentenced on February 7, 2005, only 26 days after the Supreme Court announced its holding in Booker, and prior to this Court‘s explanation of reasonableness review in Webb. As of that date, we had not yet explained that our review of sentences for reasonableness has both procedural and substantive components, Jones, 489 F.3d at 250, or that procedural reasonableness requires the district court to fully articulate its reasons for imposing the sentence, Jackson, 408 F.3d at 305, and explain why it has rejected the defendant‘s arguments for a lower sentence, Richardson, 437 F.3d at 554. Neither had the Supreme Court clarified that, when sentencing, the “judge should set forth enough [of a rationale] to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decision-making authority” Rita, 127 S. Ct. at 2468, and “must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.” Gall, 128 S. Ct. at 597.
The majority, however, reads the unfairness of this situation differently. Rather than worrying about a proper resolution of the issues in the case, the majority is more concerned with providing “fairness to the district court.” Vonner, 516 F.3d at 387. Thus, the judges in the majority consider the timing of Vonner‘s hearing as a reason for giving the district court a break. They find that, in such a context, any error made by the district court could not have been plain. After all, they suggest, given the post-Booker legal limbo of sentencing, how was the district judge supposed to know the proper sentencing procedures to apply? Yet, if a sitting federal district court judge could not be expected to know that he needed to discuss more fully the reasons for imposing the defendant‘s sentence, how would the defendant know that he needed to raise an objection to these deficient procedures at the time of sentencing? The Constitution does not require us to give such a benefit of the doubt to an experienced lawyer sitting on a bench and wearing a black robe. Rather, the Constitution requires us to vigorously protect the rights of the unwary criminal defendant and to ensure that the procedures by which we deprive him of over nine years of his liberty are at least minimally fair. For this reason alone, I must dissent.
II.
Even if the majority were correct in applying the plain error standard of review to Vonner‘s procedural reasonableness challenge, I would still dissent because the district court‘s failure to address the defendant‘s sentencing arguments and its mere lip service to the
Contrary to the majority‘s suggestion, the Supreme Court in Gall did not direct appellate courts to give district courts the “benefit of the doubt” regarding the sentencing procedures they employ. Vonner, 516 F.3d at 392. Rather, the Court explicitly directed us to engage in a vigorous review of the sentencing process so as to “ensure that the district court committed no significant procedural error.” Gall, 128 S. Ct. at 597. The Court also clarified that a district court commits a significant and reversible procedural error by “failing to
# Legal Opinion Document Converter - End Split Convert the LAST PORTION of a legal opinion (PDF, HTML, RTF) to clean, semantic HTML. **This is the END of a document that was split into multiple parts.** **If input is not a legal opinion, return only:** `null` **Output raw HTML only. No code fences. No commentary.** --- ## Structure ### Opinion Body - `` — paragraphs - `
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### Multi-Opinion Documents
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JOHN A. ROSS
UNITED STATES DISTRICT JUDGE
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### Images
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```html
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` — section headings
- `` — quoted provisions, contract language (wrap content in ``)
- `
`, `` — lists
- `` — tables
### Multi-Opinion Documents
The MAIN document should be one complete opinion. Sometimes it may be one complete main opinion, plus complete concurring or dissenting opinions.
Only convert the MAIN opinion (the one with the complete case caption and complete opinion, plus and any concurrences/dissents if present). Skip partial content from a previous or subsequent unrelated case that appears at the beginning or end of the document.
### Signature Block
```html
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE
```
Skip signature images, preserve typed name and title.
### Images
```html
```
Increment index for each image. Include 2-5 word description of image type (e.g., “signature“, “chart“, “map“, “photograph of exhibit“).
Example:
```
```
---
## Pagination
Use `First paragraph entirely on page 123.
```
**Page break mid-paragraph:**
```html
Text starts on page 123
```
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First paragraph of quote on page 123.
```
**Page break mid-sentence in blockquote:**
```html
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```
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```html
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---
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```html
1
```
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```html
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`) - `
- `, `
- First item on page 123.
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- ` — lists
- `