Lead Opinion
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
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 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii), after which, consistent with the terms of a plea agreement between Vonner and the government, he pleaded guilty.
The presentence report calculated Von-ner’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,
After listening to these arguments and after hearing the government’s response, the court told Vonner that it “appreciate^] the apology [he] offered this morning,” and it “encouraged” 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 18 [U.S.C. § ] 3553(a),” the court sentenced Vonner to 117 months. The court also recommended that Vonner receive substance-abuse treatment in prison, and it waived Vonner’s fine due to his inability to pay it. After announcing the sentence, the court asked Vonner’s counsel whether “the defendant [has] any objection to the sentence just pronounced not previously raised.” Von-ner’s counsel responded, “No, Your Hon- or.”
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.” Fed. R.Crim.P. 51(b). “If a party does not have an opportunity to object to a ruling or order, the absence of an objection does not later prejudice that party.” Id. A party who neglects to make an objection, even after being given “an opportunity” to do so, forfeits the argument and may obtain relief on appeal only if the error is “plain” and “affects substantial rights.” Fed. R.Crim.P. 52(b).
In United States v. Bostic,
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,
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 Von-ner’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,
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,
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 “appreciated] the apology [he] offered this morning,” and it “encouraged” 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 18 [U.S.C. § ] 3553(a),” and imposed a 117-month sentence.
No one would call this explanation ideal. It did not specifically address all of Von-ner’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, — U.S. -,
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, 18 U.S.C. § 3553(c), it does not say that courts must give the reasons for rejecting any and all arguments by the parties for alternative sentences. The statute also distinguishes between within-guidelines sentences like this one and outside-guidelines sentences, requiring judges to give “the specific reason” for imposing an outside-guidelines sentence, 18 U.S.C. § 3553(c)(2), but imposing no similar requirement for within-guidelines sentences. (Section 3553(c)(1), it is true, requires district court judges to explain why they sentence individuals at a certain point within guidelines ranges that exceed 24 months. While Vonner’s guidelines range of 108 to 135 months exceeds 24 months, Vonner did not raise this argument on appeal or for that matter argue below (or on appeal) for anything but a freiow-guidelines 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, “[wjhere the judge imposes a sentence outside the Guidelines, the judge will explain why he has done so.” Rita,
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 “[cjircum-stances 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 § 3553(a) and other congressional mandates) in the typical case.” Id.; see also id. at 2469 (“Where a matter is ... conceptually simple ... and the record makes clear that the sentencing judge considered the evidence and arguments, we do not believe the law requires the judge to write more extensively.”). In this setting, the question is whether “[t]he record makes clear that the sentencing judge listened to each argument,” “considered the supporting evidence,” was “fully aware” of the defendant’s circumstances and took “them into account” in sentencing him. Id. at 2469.
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,
Vonner resists this conclusion on the ground that Rule 32 of the Federal Rules of Criminal Procedure required the district court to address his arguments for a lower sentence more thoroughly. “At sentencing,” Rule 32(i)(3)(B) says, “the court must — for any disputed portion of the pre-sentence report or other controverted matter — rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing.” Fed.R.Crim.P. 32(i)(3)(B).
As Vonner sees it, his leniency arguments amounted to “controverted matters]” 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.
Rule 32(i)(3)(B) says that the court “must ... rule” on these arguments, not that the court must give a lengthy explanation for its ruling, and the court did “rule” on these arguments by declining to give Vonner a lower sentence. In addition, as the Eleventh Circuit recently explained in rejecting a similar claim, “[c]ontroverted” matters refer to those that are “dispute[d] or oppose[d] by reasoning.” United States v. Lopez,
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 ... eases; and that he found that [the] circumstances here were simply not different enough to warrant a different sentence.”
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,
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 18 [U.S.C. § ] 3553(a).” The record and the context of the sentencing hearing offer ample reasons for concluding that Von-ner’s case was a “typical” one and therefore deserving of a within-guidelines sentence, id. at 2468, and that his criminal history and his decision to violate serious criminal laws soon after serving a sentence for second-degree murder outweighed his arguments in favor of leniency. “[W]e simply cannot say that [Vonner’s] special circumstances are special enough that, in light of § 3553(a), they require a sentence lower than the sentence the Guidelines provide.” Id. at 2470 (emphasis added).
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 § 3553(a) factors, adequately explained its reasons for imposing the sentence or adequately addressed the parties’ sentencing arguments.
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 commonsense 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,
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 Criminal Rule 51. Nothing about Booker suspends the obligation of counsel at a criminal proceeding to “preserve a claim of error” for appeal. Fed.R.Crim.P. 51(b). That counsel need not register a complaint with the district court that the proposed sentence is “unreasonable” follows from the fact that the district court’s job is to impose a sentence “sufficient, but not greater than necessary” to comply with the § 3553(a) factors, not to impose a “reasonable” sentence. But that reality does not excuse counsel from the obligation to raise all arguments concerning the appropriate procedures at sentencing and the bases for a lower or higher sentence.
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,
VI.
For these reasons, we affirm.
Dissenting Opinion
dissenting,
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 § 3553(a) factors, regardless of whether the sentence is above, below, or within the proposed guidelines range, so that we, as an appellate court, may adequately review sentences under the stan
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 18 [U.S.C. § ] 3553(a).” The majority concedes that this explanation is not ideal, and that it “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.” United States v. Vonner,
II.
The Supreme Court has recently laid out the proper manner in which a district court should sentence a defendant. Gall,
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, “[djuring 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,
Finally, after deciding on a sentence, a district court is required “to adequately explain the chosen sentence,” id, at 597, “[rjegardless 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 § 3553(a) factors and Gall’s arguments in mitigation; but more important than that, the district court applied the facts of Gall’s case to those factors, rather than simply reciting the text of § 3553(a) for the record. In so doing, the district court was not bound by what my colleague Judge Merritt refers to as “guidelinitis,” defined as “the inability of most federal courts to break their habit of mechanically relying just on the guidelines alone.” Sedore,
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 § 3553(a) and the Supreme Court’s opinion in Booker establishing the guidelines as merely advisory. United States v. Booker,
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,
Dissenting Opinion
dissenting,
Today, the majority misapplies our holding in United States v. Bostic,
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,
A.
After finding the provisions of the Sentencing Reform Act of 1984, 18 U.S.C. § 3551 et seq., setting forth the appellate standard of sentencing review to be in violation of the Sixth Amendment, the Supreme Court in Booker directed that appellate courts “review sentencing decisions for unreasonableness.”
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 18 U.S.C. § 3553(a).
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,
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 § 3553(a) sentencing factors and the parties’ arguments concerning these factors; (2) properly explained the reasons for imposing its chosen sentence; and (3) imposed a sentence of sufficient but not greater length than necessary to accomplish the purposes of sentencing outlined in § 3553(a).
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,
While Judge Sutton, writing for the majority, seems to recognize this point with respect to Vonner’s substantive reasonableness challenge, see Vonner,
Rule 51 permits a party to “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.” Fed.R.Crim.P. 51(b). However, “[i]f a party does not have an opportunity to object to a ruling or order, the absence of an objection does not later prejudice that party.” Id.
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 Rule 51, when a party has had a meaningful opportunity to object to the district court’s imposition of a criminal sentence. Bostic,
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 § 3553(a), to object to the procedural reasonableness of his sentence at the time of sentencing in order to avoid plain error review on appeal. The purpose of both Bostic and Rule 51 is to ensure that the parties have an opportunity to present their sentencing arguments to the district court and that they do not raise issues that should have been raised below for the first time on appeal. See Bostic,
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,
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 Rule 51 requires a defendant, once his sentence is imposed, to specifically object to the “procedural reasonableness” of his sentence when he has already presented arguments to the district court concerning the proper level of consideration to be given to the § 3553(a) factors. These rules provide for plain error review of sentencing arguments that were not, but should have been, raised before the district court. Thus, if a party fails to present a specific argument for a greater or lesser sentence to the district court, the party may not, on appeal, raise a reasonableness challenge based upon that particular argument or upon the district court’s failure to consider the argument. However, because a party does not have to raise a Booker challenge for either procedural or substantive unreasonableness before the district court, and, in fact, should only properly raise such a challenge on appeal, Bostic does not require that we review procedural reasonableness challenges for plain error when a party does not raise such a challenge with the district court. Accordingly, plain error review should not apply to Vonner’s procedural reasonableness challenge.
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,
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,
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 § 3553(a) factors was plainly erroneous under our precedents and under Rita and Gall. While I would not apply plain error review in this case,
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,
Likewise, in Rita, the Supreme Court emphasized that “judicial decisions are reasoned decisions,” and clarified that in order for a sentence to be procedurally reasonable, a “sentencing judge should set forth enough [of a statement of reasons] 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.”
The record in this case does not satisfy even these simple requirements. First, the record does not demonstrate that the sentencing judge ever considered any of Vonner’s multiple arguments for imposing a sentence lower than the advisory Sentencing Guidelines range. Second, the record is devoid of any reasoned explanation of the sentence imposed.
At the sentencing hearing, Vonner argued that his sentence should be lower than that provided for in the advisory Sentencing Guidelines because of: (1) his traumatic childhood; (2) the mental and emotional impairment to him as a result of his long history of alcohol and drug abuse; (3) the circumstances surrounding his involvement in selling narcotics; (4) the harsh conditions of his pre-sentence confinement; and (5) his cooperation and assistance to the government. Despite Vonner’s lengthy presentation of these arguments, the district court never provided any response to them. Indeed, the only evidence of the district judge’s acknowledgment of these arguments are his brief comments to Vonner indicating that the court “appreciate[d] the apology [Vonner] offered,” “encourage[d]” Vonner to take advantage of the “tools and education” offered in prison to “give [him] certain life skills and lifestyles that will be of benefit to [him] when [his] period of incarceration is over,” and “encourage[d]” Vonner to continue in his cooperation with the government. J.A. at 134-35. These comments do not demonstrate that the district judge properly un
The record also fails to show that the district judge “adequately explained] the chosen sentence.” Gall,
With respect to the sentence in this case, the Court has 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 18 United States 3553(a). Pursuant to the Sentencing Reform Act of 1984, it is [sic] judgment of the Court that the defendant, Alvin George Vonner, is hereby committed to the custody of [sic] Bureau of Prisons for a term of imprisonment of a hundred and seventeen months. It is felt that this term is reasonable in light of the aforementioned, in light of the aforementioned factors and is a sentence, furthermore, that will afford adequate deterrent and provide just punishment.
J.A. at 135. This brief and conclusory reference to the § 3553(a) factors offers no explanation of why those factors justify the 117-month prison term imposed. Nor does it offer any clear rationale for imposing such a sentence. Rather than providing “a reasoned basis for exercising [the judge’s] legal decision making authority,” Rita,
In failing to consider Vonner’s arguments or to provide a reasoned explanation of the sentence imposed, the district court violated the procedural reasonableness requirements outlined in our cases and in Rita and Gall, and thus erred. Indeed, the majority does not even attempt to defend the deficient sentencing procedures of the district court. See id. (noting that “[n]o one would call [the district court’s] explanation ideal” and that “a trial court would do well to say more”). Rather, the majority contends that this error was not plain. Id. Yet the majority fails to offer any convincing explanation of how the district court’s failure to articulate its rationale for imposing Vonner’s 117-month sentence was not a blatant violation of Rita’s command that district judges “set forth their reasons” for imposing a sentence,
The only justification offered by Judge Sutton to support the majority’s contention that the district court’s error was not plain is his argument that district courts are not required to give reasons for imposing within-Guidelines sentences. See Vonner,
The majority suggests that the district court in this case should be excused from the statutory requirement that it provide a reason for choosing a sentence of 117 months out of the Guidelines range of 108 to 135 months because Vonner did not argue for anything but a below-Guidelines sentence. See Vonner,
Likewise the Court’s language in Rita cannot be construed as placing a lesser explanatory burden on district judges when they issue within-Guidelines sentences. The majority misleadingly interprets Rita as “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, ‘[wjhere the judge imposes a sentence outside the Guidelines, the judge will explain why he has done so.’ ” Vonner,
Despite the majority’s attempts to obfuscate both Congress’ and the Supreme Court’s language, both have clearly indicated that a district judge has an obligation to articulate the reasons for imposing the chosen sentence regardless of whether the sentence is within or outside the advisory Sentencing Guidelines range. By failing to satisfy this obligation the district committed an error that was plain. Moreover, this error affected Vonner’s substantial rights by failing to provide him with due process when taking away over nine years of his liberty. Finally, this error affected the fairness, integrity, and public reputation of the judicial proceedings. The district court’s failure to provide any reasoned explanation for the sentence it imposed undermines the public’s confidence in the fairness of our criminal justice system. As the Supreme Court recognized in Rita: “Confidence in a judge’s use of reason underlies the public’s trust in the judicial institution. A public statement of those reasons helps provide the public with the assurance that creates that trust.”
For all these reasons, I would find that Vonner’s procedural reasonableness challenge should survive the majority’s inappropriate application of plain error review.
III.
Today’s decision is yet another attempt to undercut the Supreme Court’s holding in Booker that the Sentencing Guidelines are no longer mandatory. By upholding a sentencing procedure in which the district court simply imposed a sentence from within the advisory Guidelines range without any explanation of its rationale for concluding that the sentence was sufficient but not greater than necessary to comply with the sentencing goals in § 3553(a), the majority encourages district courts to ignore the Supreme Court’s command in Booker, Rita, and Gall that judges respond to the defendant’s sentencing arguments, take into account all of the sentencing considerations in § 3553(a), and explain why they have chosen to impose the particular sentence. Rather than pro
Because I cannot join the majority in its abdication of our role of providing guidance to the lower courts as to proper sentencing procedures and because I find the majority’s application of plain error review inconsistent with the Supreme Court’s command that we “review sentencing decisions for unreasonableness,” Booker,
Notes
. Section 3553(a) directs sentencing judges to consider the following factors when imposing sentences:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2)the need for the sentence imposed (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for (A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines ...
(5) any pertinent policy statement (A) issued by the Sentencing Commission ...
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
18 U.S.C. § 3553(a) (formatting altered).
. I would simply apply our post-Boo/cer reasonableness jurisprudence to find Vonner’s sentencing procedurally unreasonable and would accordingly remand to the district court for resentencing.
Dissenting Opinion
dissenting,
I join the opinion of Judge Clay in full, and I write separately to offer some additional observations on the flawed analysis in the majority opinion for two reasons. First, the majority’s application of plain-error review misconceives the nature of the “reasonableness” review that the Supreme Court in United States v. Booker,
I. APPLICATION OF PLAIN-ERROR REVIEW
I have three objections to the majority’s application of plain-error review in this ease. First, I agree with Judge Clay regarding the majority’s mistake in severing Booker reasonableness challenges into two separate claims, one a claim of “procedural” reasonableness and the second a claim of “substantive” reasonableness. As Judge Clay observes, although this court has noted that reasonableness has both substantive and procedural components, Clay, J., Dissenting Op. at 395 (emphasis added), “our jurisprudence ... indicated]
Furthermore, this understanding of reasonableness review as a single inquiry proceeding in two steps finds support in the Supreme Court’s recent opinions in Gall and Kimbrough. In Gall, the Supreme Court explained that appellate courts “must” review sentences under the reasonableness “abuse-of-diseretion standard,” stating that we “must first ensure that the district court committed no significant procedural error, such as ... failing to adequately explain the chosen sentence.” Gall,
Nowhere in Gall or Kimbrough did the Supreme Court consider whether the Government had objected at the conclusion of the sentencing hearings to any procedural error committed by the district courts; presenting arguments prior to and during the hearings, as Vonner did, appeared sufficient to preserve the Government’s reasonableness arguments on appeal. The Supreme Court’s reasonableness analysis, in examining the district court’s procedure as a first step before turning to evaluate “the substantive reasonableness of the sentence imposed,” Gall,
The majority nonetheless dissects reasonableness review into an analysis of two separate claims, which is necessary for the majority to apply plain-error review to Vonner’s argument that his sentence is procedurally unreasonable due to the district court’s failure to explain adequately its reasons for imposing his sentence. The majority concedes that the lack of a final objection by Vonner’s counsel at the conclusion of the sentencing hearing “did not undermine Vonner’s right to appeal issues he had ‘previously raised.’ ” Maj. Op. at 386. The majority recognizes that Vonner had previously raised arguments for a lower sentence under United States v. Booker,
In so disarticulating Vonner’s Booker argument, the majority ignores the Supreme Court’s direction in Booker that the “reasonableness” standard of review involves “determining whether ... a sentence ‘is unreasonable, having regard for [the § 3553(a) factors and] ... the reasons for the imposition of the particular sentence, as stated by the district court.’ ” Booker,
In response to these arguments, the majority declares that it is not “the case that a request for a variance in the district court by itself preserves all procedural and substantive challenges to a sentence” and offers two hypothetical examples, Maj. Op. at 391, but its examples utterly miss the point. I agree that plain-error review would be proper for the majority’s hypothetical claims because the hypothetical defendant never raised the arguments before the district court.
Second, the majority’s decision to apply plain error-review to one aspect of Von-ner’s Booker reasonableness claim also deepens a growing circuit split. For instance, in United States v. Bras,
Admittedly, the majority is not alone in partially applying plain-error review to defendants’ challenges that their sentences are unreasonable under Booker. See United States v. Torres-Duenas,
In light of the strikingly different approaches adopted by the circuits, we can only hope that the Supreme Court chooses to resolve the issue of whether defendants must object after the district court has imposed a sentence to preserve some, any, or all, of their Booker reasonableness claims.
Third, because the majority elects not to “address the first step of plain-error review: Did the court err?” Maj. Op. at 387, the majority fails to provide guidance to the district courts and litigants in this circuit as to whether the district court’s cursory explanation of Vonner’s sentence is acceptable. The majority recognizes that “[n]o one would call [the district court’s] explanation ideal,” id., but district courts and litigants are left to wonder whether such a sentence and brief explanation would be reversed or affirmed on appeal in a future case in which the defendant lodges a post-sentence objection, as the majority today requires. The majority’s failure to offer a definitive answer to this question wastes the judicial resources invested by the fifteen members of this court who convened to consider this case en banc. In contrast to the majority’s silence, Judge Clay clearly states that the district court erred in this case. I agree that the district court’s explanation is insufficient to permit reasoned review and constitutes error; I also agree with Judge Clay’s view that the district court committed plain error.
II. THE PRESUMPTION OF REASONABLENESS
Unlike the majority, I would accept Von-ner’s invitation to abandon the “rebuttable
First, “[although making the guidelines ‘presumptively] ... reasonable’ does not make them mandatory, it tends in that direction; and anyway terms like ‘presumptive’ ... are more ambiguous labels than they at first appear.” United States v. Jiménez-Beltre,
Second, although “the Guidelines should be the starting point and the initial benchmark” for sentencing, Gall,
Third, I believe that applying a presumption of reasonableness to within-Guidelines sentences is unwise because of the potential for a violation of the Sixth Amendment in extreme cases. Although Rita permitted appellate courts to apply the presumption, the majority noted Rita’s argument that according a presumption of reasonableness to a within-Guidelines sentence that depended upon substantial judicial fact-finding “raises Sixth Amendment ‘concerns.’ ” Rita,
Finally, in light of these Sixth Amendment concerns, it is important to note the precise circumstances in which the majority today approves the use of the presumption. As the majority notes, although Von-ner argued that his sentence violates the Sixth Amendment because it was based on facts that no jury ever found beyond a reasonable doubt, because Vonner “fail[ed] to object to the presentence report, Von-ner admitted all of the factual allegations contained in it.” Maj. Op. at 385. Vonner’s case, then, is similar to the facts in Williams, the case in which our circuit first adopted the presumption. In Williams, the defendant pleaded guilty, and we noted that his “guilty plea and written statement [were] sufficient to constitute an admission” to the facts supporting the two Guidelines enhancements that the district court included in calculating the Guidelines range. Williams,
Our cases have repeatedly observed that we apply the presumption of reasonableness to a sentence “if it falls within a properly calculated guidelines range.” United States v. Heriot,
III. CONCLUSION
For the reasons stated above and in the dissenting opinion of Judge Clay, I respectfully dissent.
. A view that reasonableness review consists of components also appears in the opinions of Justice Stevens and Justice Scalia concurring in Rita. See Rita,
. The majority is therefore mistaken in claiming that I am "abandoning'' the procedural rule that we adopted in United States v. Bostic,
. To the majority’s two examples, I add a third, which illustrates the difference between issues that a defendant preserves under Booker and issues that remain un-preserved. Section 3553(c) states that, in cases in which the span of the Guideline range "exceeds 24 months,” a court “shall state in open court” the "reason for imposing a sentence at a particular point within the range” of the Guidelines. 18 U.S.C. § 3553(c) (emphasis added). Because the Guidelines range for Vonner’s sentence exceeded twenty-four months — it ran from 108 months to 135 months— § 3553(c)(1) required that the court state its "reason for imposing a sentence at a particular point within the range.” Vonner, however, did not object at the sentencing hearing to the district court’s failure to comply with § 3553(c)(1), nor did he remind the district court of its obligation under § 3553(c)(1) prior to the hearing in his sentencing memorandum. Although in this case Vonner did not raise a claim of § 3553(c)(1)
. See also United States v. Villafuerte,
. Obviously, our use of such a narrowed presumption would not preclude district courts from fact-finding, see Gall,
. The statement in United States v. Smith,