Gall v. United States

(Slip Opinion) OCTOBER TERM, 2007 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

GALL v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE EIGHTH CIRCUIT

No. 06–7949. Argued October 2, 2007—Decided December 10, 2007
Petitioner Gall joined an ongoing enterprise distributing the controlled
substance “ecstasy” while in college, but withdrew from the conspir
acy after seven months, has sold no illegal drugs since, and has used
no illegal drugs and worked steadily since graduation. Three and
half years after withdrawing from the conspiracy, Gall pleaded guilty
to his participation. A presentence report recommended a sentence of
30 to 37 months in prison, but the District Court sentenced Gall to 36
months’ probation, finding that probation reflected the seriousness of
his offense and that imprisonment was unnecessary because his vol
untary withdrawal from the conspiracy and postoffense conduct
showed that he would not return to criminal behavior and was not a
danger to society. The Eighth Circuit reversed on the ground that a
sentence outside the Federal Sentencing Guidelines range must be—
and was not in this case—supported by extraordinary circumstances.
Held:
1. While the extent of the difference between a particular sentence
and the recommended Guidelines range is relevant, courts of appeals
must review all sentences—whether inside, just outside, or signifi
cantly outside the Guidelines range—under a deferential abuse-of
discretion standard. Pp. 7–14.
(a) Because the Guidelines are now advisory, appellate review of
sentencing decisions is limited to determining whether they are “rea
sonable,” United States v. Booker, 543 U. S. 220, and an abuse-of
discretion standard applies to appellate review of sentencing deci
sions. A district judge must consider the extent of any departure
from the Guidelines and must explain the appropriateness of an un
usually lenient or harsh sentence with sufficient justifications. An
appellate court may take the degree of variance into account and con
2 GALL v. UNITED STATES

Syllabus

sider the extent of a deviation from the Guidelines, but it may not re
quire “extraordinary” circumstances or employ a rigid mathematical
formula using a departure’s percentage as the standard for determin
ing the strength of the justification required for a specific sentence.
Such approaches come too close to creating an impermissible unrea
sonableness presumption for sentences outside the Guidelines range.
The mathematical approach also suffers from infirmities of applica
tion. And both approaches reflect a practice of applying a heightened
standard of review to sentences outside the Guidelines range, which
is inconsistent with the rule that the abuse-of-discretion standard
applies to appellate review of all sentencing decisions—whether in
side or outside that range. Pp. 7–10.
(b) A district court should begin by correctly calculating the ap
plicable Guidelines range. The Guidelines are the starting point and
initial benchmark but are not the only consideration. After permit
ting both parties to argue for a particular sentence, the judge should
consider all of 18 U. S. C. §3353(a)’s factors to determine whether
they support either party’s proposal. He may not presume that the
Guidelines range is reasonable but must make an individualized as
sessment based on the facts presented. If he decides on an outside-
the-Guidelines sentence, he must consider the extent of the deviation
and ensure that the justification is sufficiently compelling to support
the degree of variation. He must adequately explain the chosen sen
tence to allow for meaningful appellate review and to promote the
perception of fair sentencing. In reviewing the sentence, the appel
late court must first ensure that the district court made no signifi
cant procedural errors and then consider the sentence’s substantive
reasonableness under an abuse-of-discretion standard, taking into
account the totality of the circumstances, including the extent of a
variance from the Guidelines range, but must give due deference to
the district court’s decision that the §3553(a) factors justify the vari
ance. That the appellate court might have reasonably reached a dif
ferent conclusion does not justify reversal. Pp. 11–14.
2. On abuse-of-discretion review, the Eighth Circuit failed to give
due deference to the District Court’s reasoned and reasonable sen
tencing decision. Since the District Court committed no procedural
error, the only question for the Circuit was whether the sentence was
reasonable, i.e., whether the District Judge abused his discretion in
determining that the §3553(a) factors supported the sentence and
justified a substantial deviation from the Guidelines range. The Cir
cuit gave virtually no deference to the District Court’s decision that
the variance was justified. The Circuit clearly disagreed with the
District Court’s decision, but it was not for the Circuit to decide de
novo whether the justification for a variance is sufficient or the sen
 Cite as: 552 U. S. ____ (2007) 3

Syllabus

tence reasonable. Pp. 14–21.
446 F. 3d 884, reversed.

STEVENS, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ.,
joined. SCALIA, J., and SOUTER, J., filed concurring opinions. THOMAS,
J., and ALITO, J., filed dissenting opinions.
 Cite as: 552 U. S. ____ (2007) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 06–7949
_________________

BRIAN MICHAEL GALL, PETITIONER v.

UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT

[December 10, 2007]

JUSTICE STEVENS delivered the opinion of the Court.
In two cases argued on the same day last Term we
considered the standard that courts of appeals should
apply when reviewing the reasonableness of sentences
imposed by district judges. The first, Rita v. United
States, 551 U. S. ___ (2007), involved a sentence within the
range recommended by the Federal Sentencing Guide
lines; we held that when a district judge’s discretionary
decision in a particular case accords with the sentence the
United States Sentencing Commission deems appropriate
“in the mine run of cases,” the court of appeals may pre
sume that the sentence is reasonable. Id., at ___ (slip op.,
at 11).
The second case, Claiborne v. United States, involved a
sentence below the range recommended by the Guidelines,
and raised the converse question whether a court of ap
peals may apply a “proportionality test,” and require that
a sentence that constitutes a substantial variance from the
Guidelines be justified by extraordinary circumstances.
See Claiborne v. United States, 549 U. S. ___ (2006). We
did not have the opportunity to answer this question
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Opinion of the Court

because the case was mooted by Claiborne’s untimely
death. Claiborne v. United States, 551 U. S. ___ (2007)
(per curiam). We granted certiorari in the case before us
today in order to reach that question, left unanswered last
Term. 551 U. S. ___ (2007). We now hold that, while the
extent of the difference between a particular sentence and
the recommended Guidelines range is surely relevant,
courts of appeals must review all sentences—whether
inside, just outside, or significantly outside the Guidelines
range—under a deferential abuse-of-discretion standard.
We also hold that the sentence imposed by the experienced
District Judge in this case was reasonable.
I
In February or March 2000, petitioner Brian Gall, a
second-year college student at the University of Iowa, was
invited by Luke Rinderknecht to join an ongoing enter
prise distributing a controlled substance popularly known
as “ecstasy.”1 Gall—who was then a user of ecstasy, co
caine, and marijuana—accepted the invitation. During
the ensuing seven months, Gall delivered ecstasy pills,
which he received from Rinderknecht, to other conspira
tors, who then sold them to consumers. He netted over
$30,000.
A month or two after joining the conspiracy, Gall
stopped using ecstasy. A few months after that, in Sep
tember 2000, he advised Rinderknecht and other co
conspirators that he was withdrawing from the conspir
acy. He has not sold illegal drugs of any kind since. He
has, in the words of the District Court, “self-rehabilitated.”
App. 75. He graduated from the University of Iowa in
2002, and moved first to Arizona, where he obtained a job
in the construction industry, and later to Colorado, where

——————
1 Ecstasy is sometimes called “MDMA” because its scientific name is

“methylenedioxymethamphetamine.” App. 24, 118.
 Cite as: 552 U. S. ____ (2007) 3

Opinion of the Court

he earned $18 per hour as a master carpenter. He has not
used any illegal drugs since graduating from college.
After Gall moved to Arizona, he was approached by
federal law enforcement agents who questioned him about
his involvement in the ecstasy distribution conspiracy.
Gall admitted his limited participation in the distribution
of ecstasy, and the agents took no further action at that
time. On April 28, 2004—approximately a year and a half
after this initial interview, and three and a half years
after Gall withdrew from the conspiracy—an indictment
was returned in the Southern District of Iowa charging
him and seven other defendants with participating in a
conspiracy to distribute ecstasy, cocaine, and marijuana,
that began in or about May 1996 and continued through
October 30, 2002. The Government has never questioned
the truthfulness of any of Gall’s earlier statements or
contended that he played any role in, or had any knowl
edge of, other aspects of the conspiracy described in the
indictment. When he received notice of the indictment,
Gall moved back to Iowa and surrendered to the authori
ties. While free on his own recognizance, Gall started his
own business in the construction industry, primarily
engaged in subcontracting for the installation of windows
and doors. In his first year, his profits were over $2,000
per month.
Gall entered into a plea agreement with the Govern
ment, stipulating that he was “responsible for, but did not
necessarily distribute himself, at least 2,500 grams of
[ecstasy], or the equivalent of at least 87.5 kilograms of
marijuana.” Id., at 25. In the agreement, the Government
acknowledged that by “on or about September of 2000,”
Gall had communicated his intent to stop distributing
ecstasy to Rinderknecht and other members of the con
spiracy. Ibid. The agreement further provided that recent
changes in the Guidelines that enhanced the recom
mended punishment for distributing ecstasy were not
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Opinion of the Court

applicable to Gall because he had withdrawn from the
conspiracy prior to the effective date of those changes.
In her presentence report, the probation officer con
cluded that Gall had no significant criminal history; that
he was not an organizer, leader, or manager; and that his
offense did not involve the use of any weapons. The report
stated that Gall had truthfully provided the Government
with all of the evidence he had concerning the alleged
offenses, but that his evidence was not useful because he
provided no new information to the agents. The report
also described Gall’s substantial use of drugs prior to his
offense and the absence of any such use in recent years.
The report recommended a sentencing range of 30 to 37
months of imprisonment.
The record of the sentencing hearing held on May 27,
2005, includes a “small flood” of letters from Gall’s parents
and other relatives, his fiance, neighbors, and representa
tives of firms doing business with him, uniformly praising
his character and work ethic. The transcript includes the
testimony of several witnesses and the District Judge’s
colloquy with the Assistant United States Attorney
(AUSA) and with Gall. The AUSA did not contest any of
the evidence concerning Gall’s law-abiding life during the
preceding five years, but urged that “the Guidelines are
appropriate and should be followed,” and requested that
the court impose a prison sentence within the Guidelines
range. Id., at 93. He mentioned that two of Gall’s co
conspirators had been sentenced to 30 and 35 months,
respectively, but upon further questioning by the District
Court, he acknowledged that neither of them had volun
tarily withdrawn from the conspiracy.
The District Judge sentenced Gall to probation for a
term of 36 months. In addition to making a lengthy state
ment on the record, the judge filed a detailed sentencing
memorandum explaining his decision, and provided the
following statement of reasons in his written judgment:
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Opinion of the Court

“The Court determined that, considering all the fac
tors under 18 U. S. C. 3553(a), the Defendant’s ex
plicit withdrawal from the conspiracy almost four
years before the filing of the Indictment, the Defen
dant’s post-offense conduct, especially obtaining a col
lege degree and the start of his own successful busi
ness, 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.” Id., at 117.
At the end of both the sentencing hearing and the sen
tencing memorandum, the District Judge reminded Gall
that probation, rather than “an act of leniency,” is a “sub
stantial restriction of freedom.” Id., at 99, 125. In the
memorandum, he emphasized:
“[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 con
ditions of his probationary term.” Id., at 125.
Finally, the District Judge explained why he had con
cluded that the sentence of probation reflected the seri
ousness of Gall’s offense and that no term of imprisonment
was necessary:
“Any term of imprisonment in this case would be
counter effective by depriving society of the contribu
tions of the Defendant who, the Court has found, un
derstands the consequences of his criminal conduct
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Opinion of the Court

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 govern
mental agency, but was the pre-Indictment product of
the Defendant’s own desire to lead a better life.” Id.,
at 125–126.
II
The Court of Appeals reversed and remanded for resen
tencing. Relying on its earlier opinion in United States v.
Claiborne, 439 F. 3d 479 (CA8 2006), it held that a sen
tence outside of the Guidelines range must be supported
by a justification that “ ‘ “is proportional to the extent of
the difference between the advisory range and the sen
tence imposed.” ’ ” 446 F. 3d 884, 889 (CA8 2006) (quoting
Claiborne, 439 F. 3d, at 481, in turn quoting United States
v. Johnson, 427 F. 3d 423, 426–427 (CA7 2005)). Charac
terizing the difference between a sentence of probation
and the bottom of Gall’s advisory Guidelines range of 30
months as “extraordinary” because it amounted to “a 100%
downward variance,” 446 F. 3d, at 889, the Court of Ap
peals held that such a variance must be—and here was
not—supported by extraordinary circumstances.
Rather than making an attempt to quantify the value of
the justifications provided by the District Judge, the Court
of Appeals identified what it regarded as five separate
errors in the District Judge’s reasoning: (1) He gave “too
much weight to Gall’s withdrawal from the conspiracy”; (2)
given that Gall was 21 at the time of his offense, the Dis
trict Judge erroneously gave “significant weight” to stud
ies showing impetuous behavior by persons under the age
of 18; (3) he did not “properly weigh” the seriousness of
Gall’s offense; (4) he failed to consider whether a sentence
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Opinion of the Court

of probation would result in “unwarranted” disparities;
and (5) he placed “too much emphasis on Gall’s post-
offense rehabilitation.” Id., at 889–890. As we shall ex
plain, we are not persuaded that these factors, whether
viewed separately or in the aggregate, are sufficient to
support the conclusion that the District Judge abused his
discretion. As a preface to our discussion of these particu
lars, however, we shall explain why the Court of Appeals’
rule requiring “proportional” justifications for departures
from the Guidelines range is not consistent with our re
medial opinion in United States v. Booker, 543 U. S. 220
(2005).
III
In Booker we invalidated both the statutory provision,
18 U. S. C. §3553(b)(1) (2000 ed., Supp. IV), which made
the Sentencing Guidelines mandatory, and §3742(e) (2000
ed. and Supp. IV), which directed appellate courts to apply
a de novo standard of review to departures from the
Guidelines. As a result of our decision, the Guidelines are
now advisory, and appellate review of sentencing decisions
is limited to determining whether they are “reasonable.”
Our explanation of “reasonableness” review in the Booker
opinion made it pellucidly clear that the familiar abuse-of
discretion standard of review now applies to appellate
review of sentencing decisions. See 543 U. S., at 260–262;
see also Rita, 551 U. S., at ___ (STEVENS, J., concurring).
It is also clear that a district judge must give serious
consideration to the extent of any departure from the
Guidelines and must explain his conclusion that an un
usually lenient or an unusually harsh sentence is appro
priate in a particular case with sufficient justifications.
For even though the Guidelines are advisory rather than
mandatory, they are, as we pointed out in Rita, the prod
uct of careful study based on extensive empirical evidence
derived from the review of thousands of individual sen
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tencing decisions.2 Id., at ___.
In reviewing the reasonableness of a sentence outside
the Guidelines range, appellate courts may therefore take
the degree of variance into account and consider the ex
tent of a deviation from the Guidelines. We reject, how
ever, an appellate rule that requires “extraordinary” cir
cumstances to justify a sentence outside the Guidelines
range. We also reject the use of a rigid mathematical
formula that uses the percentage of a departure as the
standard for determining the strength of the justifications
required for a specific sentence.
As an initial matter, the approaches we reject come too
close to creating an impermissible presumption of unrea
sonableness for sentences outside the Guidelines range.
See id., at ___ (slip op., at 15) (“The fact that we permit
courts of appeals to adopt a presumption of reasonableness
does not mean that courts may adopt a presumption of
unreasonableness”).3 Even the Government has acknowl
——————
2 Notably,
not all of the Guidelines are tied to this empirical evidence.
For example, the Sentencing Commission departed from the empirical
approach when setting the Guidelines range for drug offenses, and
chose instead to key the Guidelines to the statutory mandatory mini
mum sentences that Congress established for such crimes. See United
States Sentencing Commission, Guidelines Manual §1A1.1 (Nov. 2006)
(USSG). This decision, and its effect on a district judge’s authority to
deviate from the Guidelines range in a particular drug case, is ad
dressed in Kimbrough v. United States, post, p. ___.
3 Several Courts of Appeals had rejected such a presumption of un

reasonableness even prior to our decision in Rita. See, e.g., United
States v. Howard, 454 F. 3d 700, 703 (CA7 2006) (“Although a sentence
outside the range does not enjoy the presumption of reasonableness
that one within the range does, it does not warrant a presumption of
unreasonableness”); United States v. Matheny, 450 F. 3d 633, 642 (CA6
2006) (“[T]his court’s holding that sentences within the advisory guide
line range are presumptively reasonable does not mean that sentences
outside of that range are presumptively unreasonable”); United States
v. Myers, 439 F. 3d 415, 417 (CA8 2006) (“We have determined that a
sentence imposed within the guidelines range is presumptively reason
able. While it does not follow that a sentence outside the guidelines
 Cite as: 552 U. S. ____ (2007) 9

Opinion of the Court

edged that such a presumption would not be consistent
with Booker. See Brief for United States in Rita v. United
States, O. T. 2006, No. 06–5754, pp. 34–35.
The mathematical approach also suffers from infirmities
of application. On one side of the equation, deviations
from the Guidelines range will always appear more ex
treme—in percentage terms—when the range itself is low,
and a sentence of probation will always be a 100% depar
ture regardless of whether the Guidelines range is 1
month or 100 years. Moreover, quantifying the variance
as a certain percentage of the maximum, minimum, or
median prison sentence recommended by the Guidelines
gives no weight to the “substantial restriction of freedom”
involved in a term of supervised release or probation.
App. 95.
We recognize that custodial sentences are qualitatively
more severe than probationary sentences of equivalent
terms. Offenders on probation are nonetheless subject to
several standard conditions that substantially restrict
their liberty. See United States v. Knights, 534 U. S. 112,
119 (2001) (“Inherent in the very nature of probation is
that probationers ‘do not enjoy the absolute liberty to
which every citizen is entitled’ ” (quoting Griffin v. Wiscon
sin, 483 U. S. 868, 874 (1987))).4 Probationers may not
——————
range is unreasonable, we review a district court’s decision to depart
from the appropriate guidelines range for abuse of discretion” (citation
omitted)).
4 See also Advisory Council of Judges of National Council on Crime

and Delinquency, Guides for Sentencing 13–14 (1957) (“Probation is not
granted out of a spirit of leniency. . . . As the Wickersham Commission
said, probation is not merely ‘letting an offender off easily’ ”); 1 N.
Cohen, The Law of Probation and Parole §7:9 (2d ed. 1999) (“[T]he
probation or parole conditions imposed on an individual can have a
significant impact on both that person and society. . . . Often these
conditions comprehensively regulate significant facets of their day-to
day lives . . . . They may become subject to frequent searches by gov
ernment officials, as well as to mandatory counseling sessions with a
10 GALL v. UNITED STATES

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leave the judicial district, move, or change jobs without
notifying, and in some cases receiving permission from,
their probation officer or the court. They must report
regularly to their probation officer, permit unannounced
visits to their homes, refrain from associating with any
person convicted of a felony, and refrain from excessive
drinking. USSG §5B1.3. Most probationers are also subject
to individual “special conditions” imposed by the court.
Gall, for instance, may not patronize any establishment that
derives more than 50% of its revenue from the sale of alco
hol, and must submit to random drug tests as directed by
his probation officer. App. 109.
On the other side of the equation, the mathematical
approach assumes the existence of some ascertainable
method of assigning percentages to various justifications.
Does withdrawal from a conspiracy justify more or less
than, say, a 30% reduction? Does it matter that the with
drawal occurred several years ago? Is it relevant that the
withdrawal was motivated by a decision to discontinue the
use of drugs and to lead a better life? What percentage, if
any, should be assigned to evidence that a defendant poses
no future threat to society, or to evidence that innocent
third parties are dependent on him? The formula is a
classic example of attempting to measure an inventory of
apples by counting oranges.5
Most importantly, both the exceptional circumstances
requirement and the rigid mathematical formulation
reflect a practice—common among courts that have
adopted “proportional review”—of applying a heightened
standard of review to sentences outside the Guidelines
range. This is inconsistent with the rule that the abuse

——————
caseworker or psychotherapist”).
5 Notably, when the Court of Appeals explained its disagreement with

the District Judge’s decision in this case, it made no attempt to quan
tify the strength of any of the mitigating circumstances.
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Opinion of the Court

of-discretion standard of review applies to appellate re
view of all sentencing decisions—whether inside or outside
the Guidelines range.
As we explained in Rita, a district court should begin all
sentencing proceedings by correctly calculating the appli
cable Guidelines range. See 551 U. S., at ___. As a matter
of administration and to secure nationwide consistency,
the Guidelines should be the starting point and the initial
benchmark. The Guidelines are not the only considera
tion, however. Accordingly, after giving both parties an
opportunity to argue for whatever sentence they deem
appropriate, the district judge should then consider all of
the §3553(a) factors to determine whether they support
the sentence requested by a party.6 In so doing, he may
——————
6 Section 3553(a) lists seven factors that a sentencing court must
consider. The first factor is a broad command to consider “the nature
and circumstances of the offense and the history and characteristics of
the defendant.” 18 U. S. C. §3553(a)(1). The second factor requires the
consideration of the general purposes of sentencing, including:
“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.” §3553(a)(2).
The third factor pertains to “the kinds of sentences available,”
§3553(a)(3); the fourth to the Sentencing Guidelines; the fifth to any
relevant policy statement issued by the Sentencing Commission; the
sixth to “the need to avoid unwarranted sentence disparities,”
§3553(a)(6); and the seventh to “the need to provide restitution to any
victim,” §3553(a)(7). Preceding this list is a general directive to “impose
a sentence sufficient, but not greater than necessary, to comply with
the purposes” of sentencing described in the second factor. §3553(a)
(2000 ed., Supp. V). The fact that §3553(a) explicitly directs sentencing
courts to consider the Guidelines supports the premise that district
courts must begin their analysis with the Guidelines and remain
cognizant of them throughout the sentencing process.
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not presume that the Guidelines range is reasonable. See
id., at ___. He must make an individualized assessment
based on the facts presented. If he decides that an out
side-Guidelines sentence is warranted, he must consider
the extent of the deviation and ensure that the justifica
tion is sufficiently compelling to support the degree of the
variance. We find it uncontroversial that a major depar
ture should be supported by a more significant justifica
tion than a minor one. After settling on the appropriate
sentence, he must adequately explain the chosen sentence
to allow for meaningful appellate review and to promote
the perception of fair sentencing. Id., at ___.
Regardless of whether the sentence imposed is inside or
outside the Guidelines range, the appellate court must
review the sentence under an abuse-of-discretion stan
dard. It must first ensure that the district court commit
ted no significant procedural error, such as failing to
calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider
the §3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence—including an explanation for any deviation from
the Guidelines range. Assuming that the district court’s
sentencing decision is procedurally sound, the appellate
court should then consider the substantive reasonableness
of the sentence imposed under an abuse-of-discretion
standard. When conducting this review, the court will, of
course, take into account the totality of the circumstances,
including the extent of any variance from the Guidelines
range. If the sentence is within the Guidelines range, the
appellate court may, but is not required to, apply a pre
sumption of reasonableness. Id., at ___. But if the sen
tence is outside the Guidelines range, the court may not
apply a presumption of unreasonableness. It may consider
the extent of the deviation, but must give due deference to
the district court’s decision that the §3553(a) factors, on a
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Opinion of the Court

whole, justify the extent of the variance. The fact that the
appellate court might reasonably have concluded that a
different sentence was appropriate is insufficient to justify
reversal of the district court.
Practical considerations also underlie this legal princi
ple. “The sentencing judge is in a superior position to
find facts and judge their import under §3553(a) in the
individual case. The judge sees and hears the evidence,
makes credibility determinations, has full knowledge of
the facts and gains insights not conveyed by the record.”
Brief for Federal Public and Community Defenders et al.
as Amici Curiae 16. “The sentencing judge has access to,
and greater familiarity with, the individual case and the
individual defendant before him than the Commission or
the appeals court.” Rita, 551 U. S., at ___ (slip op., at 18).
Moreover, “[d]istrict courts have an institutional advan
tage over appellate courts in making these sorts of deter
minations, especially as they see so many more Guidelines
sentences than appellate courts do.” Koon v. United
States, 518 U. S. 81, 98 (1996).7
“It has been uniform and constant in the federal judicial
tradition for the sentencing judge to consider every con
victed person as an individual and every case as a unique
study in the human failings that sometimes mitigate,
——————
7 District judges sentence, on average, 117 defendants every year.

Administrative Office of United States Courts, 2006 Federal Court
Management Statistics 167. The District Judge in this case, Judge
Pratt, has sentenced over 990 offenders over the course of his career.
United States v. Likens, 464 F. 3d 823, 827, n. 1 (CA8 2006) (Bright, J.,
dissenting). Only a relatively small fraction of these defendants appeal
their sentence on reasonableness grounds. See Koon, 518 U. S., at 98
(“In 1994, for example, 93.9% of Guidelines cases were not appealed”);
Likens, 464 F. 3d, at 827, n. 1 (Bright, J., dissenting) (noting that the
District Judge had sentenced hundreds of defendants and that “[w]e
have reviewed only a miniscule number of those cases”); cf. United
States Sentencing Commission, 2006 Sourcebook of Federal Sentencing
Statistics 135–152.
14 GALL v. UNITED STATES

Opinion of the Court

sometimes magnify, the crime and the punishment to
ensue.” Id., at 113.8 The uniqueness of the individual
case, however, does not change the deferential abuse-of
discretion standard of review that applies to all sentencing
decisions. As we shall now explain, the opinion of the
Court of Appeals in this case does not reflect the requisite
deference and does not support the conclusion that the
District Court abused its discretion.
IV
As an initial matter, we note that the District Judge
committed no significant procedural error. He correctly
calculated the applicable Guidelines range, allowed both
parties to present arguments as to what they believed the
appropriate sentence should be, considered all of the
§3553(a) factors, and thoroughly documented his reason
ing. The Court of Appeals found that the District Judge
erred in failing to give proper weight to the seriousness of
the offense, as required by §3553(a)(2)(A), and failing to
consider whether a sentence of probation would create
unwarranted disparities, as required by §3553(a)(6). We
disagree.
Section 3553(a)(2)(A) requires judges to consider “the
need for the sentence imposed . . . to reflect the seriousness
of the offense, to promote respect for the law, and to pro
vide just punishment for the offense.” The Court of Ap
peals concluded that “the district court did not properly
——————
8 It is particularly revealing that when we adopted an abuse-of

discretion standard in Koon, we explicitly rejected the Government’s
argument that “de novo review of departure decisions is necessary ‘to
protect against unwarranted disparities arising from the differing
sentencing approaches of individual district judges.’ ” 518 U. S., at 97
(quoting Brief for United States in O. T. 1995, No. 94–1664, p. 12).
Even then we were satisfied that a more deferential abuse-of-discretion
standard could successfully balance the need to “reduce unjustified
disparities” across the Nation and “consider every convicted person as
an individual.” 518 U. S., at 113.
 Cite as: 552 U. S. ____ (2007) 15

Opinion of the Court

weigh the seriousness of Gall’s offense” because it “ignored
the serious health risks ecstasy poses.” 446 F. 3d, at 890.
Contrary to the Court of Appeals’ conclusion, the District
Judge plainly did consider the seriousness of the offense.
See, e.g., App. 99 (“The Court, however, is bound to impose
a sentence that reflects the seriousness of joining a con
spiracy to distribute MDMA or ecstasy”); id., at 122. 9 It is
true that the District Judge did not make specific reference
to the (unquestionably significant) health risks posed by
ecstasy, but the prosecutor did not raise ecstasy’s effects at
the sentencing hearing. Had the prosecutor raised the
issue, specific discussion of the point might have been in
order, but it was not incumbent on the District Judge to
raise every conceivably relevant issue on his own initiative.
The Government’s legitimate concern that a lenient
sentence for a serious offense threatens to promote disre
spect for the law is at least to some extent offset by the
fact that seven of the eight defendants in this case have
been sentenced to significant prison terms. Moreover, the
unique facts of Gall’s situation provide support for the
District Judge’s conclusion that, in Gall’s case, “a sentence
of imprisonment may work to promote not respect, but
derision, of the law if the law is viewed as merely a means
to dispense harsh punishment without taking into account
the real conduct and circumstances involved in sentenc
ing.” Id., at 126.

——————
9 The District Judge also gave specific consideration to the fact—not

directly taken into account by the Guidelines—that Gall netted $30,000
from his participation in the conspiracy. He noted, however:
“[T]his fact can be viewed from different perspectives. On the one hand,
[Gall] should be punished for profiting from a criminal scheme. . . . On
the other hand, [Gall], who is from a working-class family and has few
financial resources, decided to turn his back on what, for him, was a
highly profitable venture. . . . The Court can not consider, for the pur
poses of sentencing, one side of the financial aspect of the offense con
duct without considering the other.” App. 123–124, n. 3.
16 GALL v. UNITED STATES

Opinion of the Court

Section 3553(a)(6) requires judges to consider “the need
to avoid unwarranted sentence disparities among defen
dants with similar records who have been found guilty of
similar conduct.” The Court of Appeals stated that “the
record does not show that the district court considered
whether a sentence of probation would result in unwar
ranted disparities.” 446 F. 3d, at 890. As with the seri
ousness of the offense conduct, avoidance of unwarranted
disparities was clearly considered by the Sentencing Com
mission when setting the Guidelines ranges. Since the
District Judge correctly calculated and carefully reviewed
the Guidelines range, he necessarily gave significant
weight and consideration to the need to avoid unwar
ranted disparities.
Moreover, as we understand the colloquy between the
District Judge and the AUSA, it seems that the judge gave
specific attention to the issue of disparity when he in
quired about the sentences already imposed by a different
judge on two of Gall’s codefendants. The AUSA advised
the District Judge that defendant Harbison had received a
30-month sentence and that Gooding had received 35
months. The following colloquy then occurred:
“THE COURT: . . . You probably know more about
this than anybody. How long did those two stay in the
conspiracy, and did they voluntarily withdraw?
“MR GRIESS: They did not.
“THE COURT: They did not?
“MR. GRIESS: They did not voluntarily withdraw.
And they were in the conspiracy, I think, for a shorter
period of time, but at the very end.
“THE COURT: Okay. Thank you.
“MR. GRIESS: A significant difference there, Your
Honor, is that they were in the conspiracy after the
guidelines changed and, therefore, were sentenced at
 Cite as: 552 U. S. ____ (2007) 17

Opinion of the Court

a much higher level because of that.” App. 88.
A little later Mr. Griess stated: “The last thing I want to
talk about goes to sentencing disparity. . . . Obviously, the
Court is cognizant of that and wants to avoid any unwar
ranted sentencing disparities.” Id., at 89. He then dis
cussed at some length the sentence of 36 months imposed
on another codefendant, Jarod Yoder, whose participation
in the conspiracy was roughly comparable to Gall’s. Griess
voluntarily acknowledged three differences between Yoder
and Gall: Yoder was in the conspiracy at its end and there
fore was sentenced under the more severe Guidelines, he
had a more serious criminal history, and he did not with
draw from the conspiracy.
From these facts, it is perfectly clear that the District
Judge considered the need to avoid unwarranted dispari
ties, but also considered the need to avoid unwarranted
similarities among other co-conspirators who were not
similarly situated. The District Judge regarded Gall’s
voluntary withdrawal as a reasonable basis for giving him
a less severe sentence than the three codefendants dis
cussed with the AUSA, who neither withdrew from the
conspiracy nor rehabilitated themselves as Gall had done.
We also note that neither the Court of Appeals nor the
Government has called our attention to a comparable
defendant who received a more severe sentence.
Since the District Court committed no procedural error,
the only question for the Court of Appeals was whether
the sentence was reasonable—i.e., whether the District
Judge abused his discretion in determining that the
§3553(a) factors supported a sentence of probation and
justified a substantial deviation from the Guidelines
range. As we shall now explain, the sentence was reason
able. The Court of Appeals’ decision to the contrary was
incorrect and failed to demonstrate the requisite deference
to the District Judge’s decision.
18 GALL v. UNITED STATES

Opinion of the Court

V

The Court of Appeals gave virtually no deference to the
District Court’s decision that the §3553(a) factors justified
a significant variance in this case. Although the Court of
Appeals correctly stated that the appropriate standard of
review was abuse of discretion, it engaged in an analysis
that more closely resembled de novo review of the facts
presented and determined that, in its view, the degree of
variance was not warranted.
The Court of Appeals thought that the District Court
“gave too much weight to Gall’s withdrawal from the
conspiracy because the court failed to acknowledge the
significant benefit Gall received from being subject to the
1999 Guidelines.”10 446 F. 3d, at 889. This criticism is
flawed in that it ignores the critical relevance of Gall’s
voluntary withdrawal, a circumstance that distinguished
his conduct not only from that of all his codefendants, but
from the vast majority of defendants convicted of conspir
acy in federal court. The District Court quite reasonably
attached great weight to the fact that Gall voluntarily
withdrew from the conspiracy after deciding, on his own
initiative, to change his life. This lends strong support to
the District Court’s conclusion that Gall is not going to
return to criminal behavior and is not a danger to society.
See 18 U. S. C. §§3553(a)(2)(B), (C). Compared to a case
where the offender’s rehabilitation occurred after he was
charged with a crime, the District Court here had greater
justification for believing Gall’s turnaround was genuine,
as distinct from a transparent attempt to build a mitiga
tion case.
The Court of Appeals thought the District Judge “gave
——————
10 TheCourt of Appeals explained that under the current Guidelines,
which treat ecstasy more harshly, Gall’s base offense level would have
been 32, eight levels higher than the base offense level imposed under
the 1999 Guidelines.
 Cite as: 552 U. S. ____ (2007) 19

Opinion of the Court

significant weight to an improper factor” when he com
pared Gall’s sale of ecstasy when he was a 21-year-old
adult to the “impetuous and ill-considered” actions of
persons under the age of 18. 446 F. 3d, at 890. The appel
late court correctly observed that the studies cited by the
District Judge do not explain how Gall’s “specific behavior
in the instant case was impetuous or ill-considered.” Ibid.
In that portion of his sentencing memorandum, however,
the judge was discussing the “character of the defendant,”
not the nature of his offense. App. 122. He noted that
Gall’s criminal history included a ticket for underage
drinking when he was 18 years old and possession of mari
juana that was contemporaneous with his offense in this
case. In summary, the District Judge observed that all of
Gall’s criminal history “including the present offense,
occurred when he was twenty-one-years old or younger”
and appeared “to stem from his addictions to drugs and
alcohol.” Id., at 123. The District Judge appended a long
footnote to his discussion of Gall’s immaturity. The foot
note includes an excerpt from our opinion in Roper v.
Simmons, 543 U. S. 551, 569 (2005), which quotes a study
stating that a lack of maturity and an undeveloped sense of
responsibility are qualities that “ ‘often result in impetuous
and ill-considered actions.’ ” The District Judge clearly
stated the relevance of these studies in the opening and
closing sentences of the footnote:
“Immaturity at the time of the offense conduct is
not an inconsequential consideration. Recent studies
on the development of the human brain conclude that
human brain development may not become complete
until the age of twenty-five. . . . [T]he recent [National
Institute of Health] report confirms that there is no
bold line demarcating at what age a person reaches
full maturity. While age does not excuse behavior, a
sentencing court should account for age when inquir
20 GALL v. UNITED STATES

Opinion of the Court

ing into the conduct of a defendant.” App. 123, n. 2.
Given the dramatic contrast between Gall’s behavior
before he joined the conspiracy and his conduct after
withdrawing, it was not unreasonable for the District
Judge to view Gall’s immaturity at the time of the offense
as a mitigating factor, and his later behavior as a sign
that he had matured and would not engage in such im
petuous and ill-considered conduct in the future. Indeed,
his consideration of that factor finds support in our cases.
See, e.g., Johnson v. Texas, 509 U. S. 350, 367 (1993)
(holding that a jury was free to consider a 19-year-old
defendant’s youth when determining whether there was a
probability that he would continue to commit violent acts
in the future and stating that “ ‘youth is more than a
chronological fact. It is a time and condition of life when a
person may be most susceptible to influence and to psycho
logical damage’ ” (quoting Eddings v. Oklahoma, 455 U. S.
104, 115 (1982))).
Finally, the Court of Appeals thought that, even if Gall’s
rehabilitation was dramatic and permanent, a sentence of
probation for participation as a middleman in a conspiracy
distributing 10,000 pills of ecstasy “lies outside the range
of choice dictated by the facts of the case.” 446 F. 3d, at
890. If the Guidelines were still mandatory, and assuming
the facts did not justify a Guidelines-based downward
departure, this would provide a sufficient basis for setting
aside Gall’s sentence because the Guidelines state that
probation alone is not an appropriate sentence for compa
rable offenses.11 But the Guidelines are not mandatory,
and thus the “range of choice dictated by the facts of the
case” is significantly broadened. Moreover, the Guidelines
are only one of the factors to consider when imposing
——————
11 Specifically, probation is not recommended under the Guidelines

when the applicable Guidelines range is outside Zone A of the sentenc
ing table as it is here. USSG §5B1.1.
 Cite as: 552 U. S. ____ (2007) 21

Opinion of the Court

sentence, and §3553(a)(3) directs the judge to consider
sentences other than imprisonment.
We also note that the Government did not argue below,
and has not argued here, that a sentence of probation
could never be imposed for a crime identical to Gall’s.
Indeed, it acknowledged that probation could be permissi
ble if the record contained different—but in our view, no
more compelling—mitigating evidence. Tr. of Oral Arg.
37–38 (stating that probation could be an appropriate
sentence, given the exact same offense, if “there are com
pelling family circumstances where individuals will be
very badly hurt in the defendant’s family if no one is
available to take care of them”).
The District Court quite reasonably attached great
weight to Gall’s self-motivated rehabilitation, which was
undertaken not at the direction of, or under supervision
by, any court, but on his own initiative. This also lends
strong support to the conclusion that imprisonment was
not necessary to deter Gall from engaging in future crimi
nal conduct or to protect the public from his future crimi
nal acts. See 18 U. S. C. §§3553(a)(2)(B), (C).
The Court of Appeals clearly disagreed with the District
Judge’s conclusion that consideration of the §3553(a) fac
tors justified a sentence of probation; it believed that the
circumstances presented here were insufficient to sustain
such a marked deviation from the Guidelines range. But it
is not for the Court of Appeals to decide de novo whether
the justification for a variance is sufficient or the sentence
reasonable. On abuse-of-discretion review, the Court of
Appeals should have given due deference to the District
Court’s reasoned and reasonable decision that the §3553(a)
factors, on the whole, justified the sentence. Accordingly,
the judgment of the Court of Appeals is reversed.

It is so ordered.
 Cite as: 552 U. S. ____ (2007) 1

SCALIA, J., concurring

SUPREME COURT OF THE UNITED STATES
_________________

No. 06–7949
_________________

BRIAN MICHAEL GALL, PETITIONER v.

UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT

[December 10, 2007]

JUSTICE SCALIA, concurring.
I join the opinion of the Court.
In Rita v. United States, 551 U. S. ___, ___ (2007), I
wrote separately to state my view that any appellate
review of sentences for substantive reasonableness will
necessarily result in a sentencing scheme constitutionally
indistinguishable from the mandatory Guidelines struck
down in United States v. Booker, 543 U. S. 220 (2005).
Whether a sentencing scheme uses mandatory Guidelines,
a “proportionality test” for Guidelines variances, or a
deferential abuse-of-discretion standard, there will be
some sentences upheld only on the basis of additional
judge-found facts.
Although I continue to believe that substantive-
reasonableness review is inherently flawed, I give stare
decisis effect to the statutory holding of Rita. The highly
deferential standard adopted by the Court today will
result in far fewer unconstitutional sentences than the
proportionality standard employed by the Eighth Circuit.
Moreover, as I noted in Rita, the Court has not foreclosed
as-applied constitutional challenges to sentences. The
door therefore remains open for a defendant to demon
strate that his sentence, whether inside or outside the
advisory Guidelines range, would not have been upheld
but for the existence of a fact found by the sentencing
judge and not by the jury.
 Cite as: 552 U. S. ____ (2007) 1

SOUTER, J., concurring

SUPREME COURT OF THE UNITED STATES
_________________

No. 06–7949
_________________

BRIAN MICHAEL GALL, PETITIONER v.

UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT

[December 10, 2007]

JUSTICE SOUTER, concurring.
I join the Court’s opinion here, as I do in today’s com
panion case of Kimbrough v. United States, post, p. ___,
which follow United States v. Booker, 543 U. S. 220 (2005),
and Rita v. United States, 551 U. S. ___ (2007). My dis
agreements with holdings in those earlier cases are not
the stuff of formally perpetual dissent, but I see their
objectionable points hexing our judgments today, see id.,
at ___ (SOUTER, J., dissenting), and Booker, supra, at 272
(STEVENS, J., dissenting in part). After Booker’s remedial
holding, I continue to think that the best resolution of the
tension between substantial consistency throughout the
system and the right of jury trial would be a new Act of
Congress: reestablishing a statutory system of mandatory
sentencing guidelines (though not identical to the original
in all points of detail), but providing for jury findings of all
facts necessary to set the upper range of sentencing dis
cretion. See Rita, supra, at ___ (slip op., at 9).
 Cite as: 552 U. S. ____ (2007) 1

THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 06–7949
_________________

BRIAN MICHAEL GALL, PETITIONER v.

UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT

[December 10, 2007]

JUSTICE THOMAS, dissenting.
Consistent with my dissenting opinion in Kimbrough v.
United States, post, p. ___, I would affirm the judgment of
the Court of Appeals because the District Court committed
statutory error when it departed below the applicable
Guidelines range.
 Cite as: 552 U. S. ____ (2007) 1

ALITO, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 06–7949
_________________

BRIAN MICHAEL GALL, PETITIONER v.

UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT

[December 10, 2007]

JUSTICE ALITO, dissenting.
The fundamental question in this case is whether, under
the remedial decision in United States v. Booker, 543 U. S.
220 (2005), a district court must give the policy decisions
that are embodied in the Sentencing Guidelines at least
some significant weight in making a sentencing decision.
I would answer that question in the affirmative and would
therefore affirm the decision of the Court of Appeals.
I
In Booker, a bare majority held that the Sentencing
Reform Act of 1984 (Sentencing Reform Act), as amended,
18 U. S. C. §3551 et seq., 28 U. S. C. §991 et seq., violated
the Sixth Amendment insofar as it required district judges
to follow the United States Sentencing Guidelines, but
another bare majority held that this defect could be reme
died by excising the two statutory provisions, 18 U. S. C.
§§3553(b)(1) and 3742(e) (2000 ed. and Supp. IV), that
made compliance with the Guidelines mandatory. As a
result of these two holdings, the lower federal courts were
instructed that the Guidelines must be regarded as “effec
tively advisory,” Booker, 543 U. S., at 245, and that indi
vidual sentencing decisions are subject to appellate review
for “ ‘reasonableness.’ ” Id., at 262. The Booker remedial
opinion did not explain exactly what it meant by a system
2 GALL v. UNITED STATES

ALITO, J., dissenting

of “advisory” guidelines or by “reasonableness” review, and
the opinion is open to different interpretations.
It is possible to read the opinion to mean that district
judges, after giving the Guidelines a polite nod, may then
proceed essentially as if the Sentencing Reform Act had
never been enacted. This is how two of the dissents inter
preted the Court’s opinion. JUSTICE STEVENS wrote that
sentencing judges had “regain[ed] the unconstrained
discretion Congress eliminated in 1984” when it enacted
the Sentencing Reform Act. Id., at 297. JUSTICE SCALIA
stated that “logic compels the conclusion that the sentenc
ing judge . . . has full discretion, as full as what he pos
sessed before the Act was passed, to sentence anywhere
within the statutory range.” Id., at 305.
While this is a possible understanding of the remedial
opinion, a better reading is that sentencing judges must
still give the Guidelines’ policy decisions some significant
weight and that the courts of appeals must still police
compliance. In a key passage, the remedial opinion stated:
“The district courts, while not bound to apply the
Guidelines, must consult those Guidelines and take
them into account when sentencing. See 18
U. S. C. A. §§3553(a)(4), (5) (Supp. 2004). But com
pare post, at 305 (SCALIA, J., dissenting in part)
(claiming that the sentencing judge has the same dis
cretion ‘he possessed before the Act was passed’). The
courts of appeals review sentencing decisions for un
reasonableness. These features of the remaining sys
tem, while not the system Congress enacted, nonethe
less continue to move sentencing in Congress’ preferred
direction, helping to avoid excessive sentencing dis
parities while maintaining flexibility sufficient to in
dividualize sentences where necessary.” Id., at 264–
265 (emphasis added).
The implication of this passage is that district courts are
 Cite as: 552 U. S. ____ (2007) 3

ALITO, J., dissenting

still required to give some deference to the policy decisions
embodied in the Guidelines and that appellate review
must monitor compliance. District courts must not only
“consult” the Guidelines, they must “take them into ac
count.” Id., at 264. In addition, the passage distances the
remedial majority from JUSTICE SCALIA’s position that,
under an advisory Guidelines scheme, a district judge
would have “discretion to sentence anywhere within the
ranges authorized by statute” so long as the judge
“state[d] that ‘this court does not believe that the punish
ment set forth in the Guidelines is appropriate for this
sort of offense.’ ” Id., at 305 (opinion dissenting in part).
Moreover, in the passage quoted above and at other
points in the remedial opinion, the Court expressed confi
dence that appellate review for reasonableness would help
to avoid “ ‘excessive sentencing disparities’ ” and “would
tend to iron out sentencing differences.” Id., at 263.
Indeed, a major theme of the remedial opinion, as well as
our decision last Term in Rita v. United States, 551 U. S.
___ (2007), was that the post-Booker sentencing regime
would still promote the Sentencing Reform Act’s goal of
reducing sentencing disparities. See, e.g., 551 U. S., at __
(slip op., at 8), __ (slip op., at 9), __ (slip op., at 15); Booker,
supra, at 259–260, 263–264.
It is unrealistic to think this goal can be achieved over
the long term if sentencing judges need only give lip ser
vice to the Guidelines. The other sentencing factors set
out in §3553(a) are so broad that they impose few real
restraints on sentencing judges. See id., at 305 (SCALIA,
J., dissenting in part). Thus, if judges are obligated to do
no more than consult the Guidelines before deciding upon
the sentence that is, in their independent judgment, suffi
cient to serve the other §3553(a) factors, federal sentenc
ing will not “move . . . in Congress’ preferred direction.”
Id., at 264 (opinion of the Court). On the contrary, sen
tencing disparities will gradually increase. Appellate
4 GALL v. UNITED STATES

ALITO, J., dissenting

decisions affirming sentences that diverge from the Guide
lines (such as the Court’s decision today) will be influen
tial, and the sentencing habits developed during the pre-
Booker era will fade.
Finally, in reading the Booker remedial opinion, we
should not forget the decision’s constitutional underpin
nings. Booker and its antecedents are based on the Sixth
Amendment right to trial by jury. The Court has held that
(at least under a mandatory guidelines system) a defen
dant has the right to have a jury, not a judge, find facts
that increase the defendant’s authorized sentence. See id.,
at 230–232; Blakely v. Washington, 542 U. S. 296, 303–304
(2004). It is telling that the rules set out in the Court’s
opinion in the present case have nothing to do with juries
or factfinding and, indeed, that not one of the facts that
bears on petitioner’s sentence is disputed. What is at
issue, instead, is the allocation of the authority to decide
issues of substantive sentencing policy, an issue on which
the Sixth Amendment says absolutely nothing. The yawn
ing gap between the Sixth Amendment and the Court’s
opinion should be enough to show that the Blakely-Booker
line of cases has gone astray.
In Blakely, the Court drew a distinction—between judi
cial factfinding under a guidelines system and judicial
factfinding under a discretionary sentencing system, see
542 U. S., at 309–310—that, in my judgment, cannot be
defended as a matter of principle. It would be a coherent
principle to hold that any fact that increases a defendant’s
sentence beyond the minimum required by the jury’s
verdict of guilt must be found by a jury. Such a holding,
however, would clash with accepted sentencing practice at
the time of the adoption of the Sixth Amendment. By that
time, many States had enacted criminal statutes that gave
trial judges the discretion to select a sentence from within
 Cite as: 552 U. S. ____ (2007) 5

ALITO, J., dissenting

a prescribed range,1 and the First Congress enacted fed
eral criminal statutes that were cast in this mold. See An
Act for the Punishment of certain Crimes against the
United States, 1 Stat. 112.2
——————
1 To take some examples, Connecticut, as of 1784, punished burglary
and robbery without violence with imprisonment of up to 10 years “at
the Discretion of the Superior Court before whom the Conviction is
had.” See Acts and Laws of the State of Connecticut 18 (1784). A 1749
Delaware law punished assault of a parent with imprisonment of up to
18 months. Laws of the State of Delaware 306 (1797). A 1793 Mary
land law gave courts the ability to “in their discretion, adjudge” crimi
nal defendants “to serve and labour for any time, in their discretion, not
exceeding” specified terms of years. Digest of the Laws of Maryland
196 (T. Herty 1799). By 1785, Massachusetts allowed judges to sen
tence criminals convicted of a variety of offenses, including assault and
manslaughter, “according to the aggravation of the offense,” or “at the
discretion of the Court.” The Perpetual Laws, of the Commonwealth of
Massachusetts, from the Establishment of its Constitution to the First
Session of the General Court A. D. 1788 (1788), reprinted in The First
Laws of The Commonwealth of Massachusetts, pp. 244–252 (J. Cushing
comp. 1981). In 1791, New Hampshire passed a law punishing certain
assaults with imprisonment of up to two years, and forgery with
imprisonment of up to three years, at the court’s discretion. See Laws
of the State of New Hampshire (1792). New Jersey, New York, North
Carolina, Pennsylvania, Rhode Island, and South Carolina likewise
enacted criminal statutes providing for indeterminate sentences of
imprisonment at the discretion of the court either before, or in the
immediate wake of, the ratification of the Sixth Amendment. See, e.g.,
Laws of the State of New Jersey 210–218 (1800) (detailing laws passed
in 1796); 2 Laws of the State of New York 45–48, 211, 242–248, 390
(1789); Laws of the State of North Carolina 288, 389 (J. Iredell 1791);
An Abridgment of the Laws of Pennsylvania, Penal Laws 1–47 (1801)
(detailing laws passed 1790–1794); Public Laws of the State of Rhode
Island and Providence Plantations 584–600 (1798); Public Laws of the
State of South Carolina 55, 61, 257, 497 (J. Grimke 1790).
2 We have often looked to laws passed by the First Congress to aide

interpretation of the Bill of Rights, which that Congress proposed. See,
e.g., Harmelin v. Michigan, 501 U. S. 957, 980 (1991) (opinion of
SCALIA, J.) (noting, while interpreting the Eighth Amendment, that
“[t]he actions of the First Congress . . . are of course persuasive evi
dence of what the Constitution means”); Marsh v. Chambers, 463 U. S.
783, 788–790 (1983) (looking to the actions of the First Congress in
6 GALL v. UNITED STATES

ALITO, J., dissenting

Under a sentencing system of this type, trial judges
inevitably make findings of fact (albeit informally) that
increase sentences beyond the minimum required by the
jury’s verdict. For example, under a statute providing
that the punishment for burglary is, say, imprisonment for
up to x years, the sentencing court might increase the
sentence that it would have otherwise imposed by some
amount based on evidence introduced at trial that the
defendant was armed or that, before committing the
crime, the defendant had told a confederate that he would
kill the occupants if they awakened during the burglary.
The only difference between this sort of factfinding and
the type that occurs under a guidelines system is that
factfinding under a guidelines system is explicit and the
effect of each critical finding is quantified. But in both
instances, facts that cause a defendant to spend more time
in prison are found by judges, not juries, and therefore no
distinction can be drawn as a matter of Sixth Amendment
principle.
The Court’s acceptance of this distinction also produced
strange collateral consequences. A sentencing system that
gives trial judges the discretion to sentence within a speci
fied range not only permits judicial factfinding that may
increase a sentence, such a system also gives individual
judges discretion to implement their own sentencing poli
cies. This latter feature, whether wise or unwise, has
nothing to do with the concerns of the Sixth Amendment,
and a principal objective of the Sentencing Reform Act was
to take this power out of the hands of individual district
judges.
The Booker remedy, however, undid this congressional
choice. In curing the Sentencing Reform Act’s perceived
——————

interpreting the First Amendment); Carroll v. United States, 267 U. S.

132, 150–152 (1925) (looking to the actions of the First Congress in

interpreting the Fourth Amendment).

 Cite as: 552 U. S. ____ (2007) 7

ALITO, J., dissenting

defect regarding judicial factfinding, Booker restored to
the district courts at least a measure of the policymaking
authority that the Sentencing Reform Act had taken away.
(How much of this authority was given back is, of course,
the issue here.)
I recognize that the Court is committed to the Blakely-
Booker line of cases, but we are not required to continue
along a path that will take us further and further off
course. Because the Booker remedial opinion may be read
to require sentencing judges to give weight to the Guide
lines, I would adopt that interpretation and thus minimize
the gap between what the Sixth Amendment requires and
what our cases have held.
II

A

Read fairly, the opinion of the Court of Appeals holds
that the District Court did not properly exercise its sen
tencing discretion because it did not give sufficient weight
to the policy decisions reflected in the Guidelines. Peti
tioner was convicted of a serious crime, conspiracy to
distribute “ecstasy.” He distributed thousands of pills and
made between $30,000 and $40,000 in profit. Although he
eventually left the conspiracy, he did so because he was
worried about apprehension. The Sentencing Guidelines
called for a term of imprisonment of 30 to 37 months, but
the District Court imposed a term of probation.
Compelled to interpret the Booker remedial opinion, the
District Court, it appears, essentially chose the interpreta
tion outlined in JUSTICE STEVENS’ and JUSTICE SCALIA’s
dissents. The District Court considered the sentence
called for by the Guidelines, but I see no evidence that the
District Court deferred to the Guidelines to any significant
degree. Rather, the court determined what it thought was
appropriate under the circumstances and sentenced peti
tioner accordingly.
8 GALL v. UNITED STATES

ALITO, J., dissenting

If the question before us was whether a reasonable
jurist could conclude that a sentence of probation was
sufficient in this case to serve the purposes of punishment
set out in 18 U. S. C. §3553(a)(2), the District Court’s
decision could not be disturbed. But because I believe that
sentencing judges must still give some significant weight
to the Guidelines sentencing range, the Commission’s
policy statements, and the need to avoid unwarranted
sentencing disparities, §3553(a)(3), (4), and (5) (2000 ed.
and Supp. V), I agree with the Eighth Circuit that the
District Court did not properly exercise its discretion.
Appellate review for abuse of discretion is not an empty
formality. A decision calling for the exercise of judicial
discretion “hardly means that it is unfettered by meaning
ful standards or shielded from thorough appellate review.”
Albemarle Paper Co. v. Moody, 422 U. S. 405, 416 (1975).
Accord, United States v. Taylor, 487 U. S. 326, 336 (1988);
Franks v. Bowman Transp. Co., 424 U. S. 747, 783 (1976)
(Powell, J., concurring in part and dissenting in part).
And when a trial court is required by statute to take speci
fied factors into account in making a discretionary deci
sion, the trial court must be reversed if it “ignored or
slighted a factor that Congress has deemed pertinent.”
Taylor, supra, at 337. See Hensley v. Eckerhart, 461 U. S.
424, 438–440 (1983) (finding an abuse of discretion where
the District Court “did not properly consider” 1 of 12 fac
tors Congress found relevant to the amount of attorney’s
fees when passing the Civil Rights Attorney’s Fees Awards
Act of 1976, 42 U. S. C. §1988). See also United States v.
Oakland Cannabis Buyers’ Cooperative, 532 U. S. 483,
497–498 (2001) (A court exercising its discretion “cannot
‘ignore the judgment of Congress, deliberately expressed
in legislation.’ Virginian R. Co. v. Railway Employees, 300
U. S. 515, 551 (1937)”); American Paper Institute, Inc. v.
American Elec. Power Service Corp., 461 U. S. 402, 413
(1983) (“To decide whether [Federal Energy Regulatory
 Cite as: 552 U. S. ____ (2007) 9

ALITO, J., dissenting

Commission’s] action was . . . an abuse of discretion, we
must determine whether the agency adequately consid
ered the factors relevant” under the statute (internal
quotation marks omitted)); Southern S. S. Co. v. NLRB,
316 U. S. 31, 46, 47 (1942) (finding an abuse of discretion
where the National Labor Relations Board sought to fulfill
one congressional objective but “wholly ignore[d] other and
equally important Congressional objectives”).
Here, the District Court “slighted” the factors set out in
18 U. S. C. §§3553(a)(3), (4), and (5) (2000 ed. and Supp.
V)—namely, the Guidelines sentencing range, the Com
mission’s policy statements, and the need to avoid unwar
ranted sentencing disparities. Although the Guidelines
called for a prison term of at least 30 months, the District
Court did not require any imprisonment—not one day.
The opinion of the Court makes much of the restrictions
and burdens of probation, see ante, at 9–10, but in the real
world there is a huge difference between imprisonment
and probation. If the District Court had given any appre
ciable weight to the Guidelines, the District Court could
not have sentenced petitioner to probation without very
strong countervailing considerations.
The court listed five considerations as justification for a
sentence of probation: (1) petitioner’s “voluntary and
explicit withdrawal from the conspiracy,” (2) his “exem
plary behavior while on bond,” (3) “the support manifested
by family and friends,” (4) “the lack of criminal history,
especially a complete lack of any violent criminal history,”
(5) and his age at the time of the offense, 21. App. 97.
Two of the considerations that the District Court cited—
“the support manifested by family and friends” and his
age, ibid.—amounted to a direct rejection of the Sentenc
ing Commission’s authority to decide the most basic issues
of sentencing policy. In the Sentencing Reform Act, Con
gress required the Sentencing Commission to consider and
decide whether certain specified factors—including “age,”
10 GALL v. UNITED STATES

ALITO, J., dissenting

“education,” “previous employment record,” “physical
condition,” “family ties and responsibilities,” and “commu
nity ties”—“have any relevance to the nature [and] ex
tent . . . of an appropriate sentence.” 28 U. S. C. §994(d).
These factors come up with great frequency, and judges in
the pre-Sentencing Reform Act era disagreed regarding
their relevance. Indeed, some of these factors were viewed
by some judges as reasons for increasing a sentence and
by others as reasons for decreasing a sentence. For exam
ple, if a defendant had a job, a supportive family, and
friends, those factors were sometimes viewed as justifying
a harsher sentence on the ground that the defendant had
squandered the opportunity to lead a law-abiding life.
Alternatively, those same factors were sometimes viewed
as justifications for a more lenient sentence on the ground
that a defendant with a job and a network of support
would be less likely to return to crime. If each judge is
free to implement his or her personal views on such mat
ters, sentencing disparities are inevitable.
In response to Congress’ direction to establish uniform
national sentencing policies regarding these common
sentencing factors, the Sentencing Commission issued
policy statements concluding that “age,” “family ties,” and
“community ties” are relevant to sentencing only in un
usual cases. See United States Sentencing Commission,
Guidelines Manual §§5H1.1 (age), 5H1.6 (family and
community ties) (Nov. 2006). The District Court in this
case did not claim that there was anything particularly
unusual about petitioner’s family or community ties or his
age, but the court cited these factors as justifications for a
sentence of probation. Although the District Court was
obligated to take into account the Commission’s policy
statements and the need to avoid sentencing disparities,
the District Court rejected Commission policy statements
that are critical to the effort to reduce such disparities.
The District Court relied on petitioner’s lack of criminal
 Cite as: 552 U. S. ____ (2007) 11

ALITO, J., dissenting

history, but criminal history (or the lack thereof) is a
central factor in the calculation of the Guidelines range.
Petitioner was given credit for his lack of criminal history
in the calculation of his Guidelines sentence. Conse
quently, giving petitioner additional credit for this factor
was nothing more than an expression of disagreement
with the policy determination reflected in the Guidelines
range.
The District Court mentioned petitioner’s “exemplary
behavior while on bond,” App. 97, but this surely cannot
be regarded as a weighty factor.
Finally, the District Court was plainly impressed by
petitioner’s “voluntary and explicit withdrawal from the
conspiracy.” Ibid. As the Government argues, the legiti
mate strength of this factor is diminished by petitioner’s
motivation in withdrawing. He did not leave the conspir
acy for reasons of conscience, and he made no effort to stop
the others in the ring. He withdrew because he had be
come afraid of apprehension. 446 F. 3d 884, 886 (CA8
2006). While the District Court was within its rights
in regarding this factor and petitioner’s “self
rehabilitat[ion],” App. 75, as positive considerations, they
are not enough, in light of the Guidelines’ call for a 30- to
37-month prison term, to warrant a sentence of probation.
B
In reaching the opposite conclusion, the Court attacks
straw men. The Court unjustifiably faults the Eighth
Circuit for using what it characterizes as a “rigid mathe
matical formula.” Ante, at 8. The Eighth Circuit (follow
ing a Seventh Circuit opinion) stated that a trial judge’s
justifications for a sentence outside the Guidelines range
must be “proportional to the extent of the difference be
tween the advisory range and the sentence imposed.” 446
F. 3d, at 889 (quoting United States v. Claiborne, 439 F. 3d
479, 481 (CA8 2006), in turn quoting United States v.
12 GALL v. UNITED STATES

ALITO, J., dissenting

Johnson, 427 F. 3d 423, 426–427 (CA7 2005); internal
quotation marks omitted). Taking this language literally
as requiring a mathematical computation, the Court has
an easy time showing that mathematical precision is not
possible:
“[T]he mathematical approach assumes the existence
of some ascertainable method of assigning percent
ages to various justifications. Does withdrawal from a
conspiracy justify more or less than, say, a 30% reduc
tion? . . . What percentage, if any, should be assigned
to evidence that a defendant poses no future threat to
society, or to evidence that innocent third parties are
dependent on him?” Ante, at 10.
This criticism is quite unfair. It is apparent that the
Seventh and Eighth Circuits did not mean to suggest that
proportionality review could be reduced to a mathematical
equation, and certainly the Eighth Circuit in this case did
not assign numbers to the various justifications offered by
the District Court. All that the Seventh and Eighth Cir
cuits meant, I am convinced, is what this Court’s opinion
states, i.e., that “the extent of the difference between a
particular sentence and the recommended Guidelines
range” is a relevant consideration in determining whether
the District Court properly exercised its sentencing discre
tion. Ante, at 2.
This Court’s opinion is also wrong in suggesting that the
Eighth Circuit’s approach was inconsistent with the
abuse-of-discretion standard of appellate review. Ante, at
10. The Eighth Circuit stated unequivocally that it was
conducting abuse-of-discretion review, 446 F. 3d, at 888–
889; abuse-of-discretion review is not toothless; and it is
entirely proper for a reviewing court to find an abuse of
discretion when important factors—in this case, the
Guidelines, policy statements, and the need to avoid sen
tencing disparities—are “slighted.” Taylor, 487 U. S., at
 Cite as: 552 U. S. ____ (2007) 13

ALITO, J., dissenting

337. The mere fact that the Eighth Circuit reversed is
hardly proof that the Eighth Circuit did not apply the
correct standard of review.
Because I believe that the Eighth Circuit correctly
interpreted and applied the standards set out in the
Booker remedial opinion, I must respectfully dissent.3

——————
3 While I believe that the Court’s analysis of the sentence imposed in

this case does not give sufficient weight to the Guidelines, it is notewor
thy that the Court’s opinion does not reject the proposition that the
policy decisions embodied in the Guidelines are entitled to at least some
weight. The Court’s opinion in this case conspicuously refrains from
directly addressing that question, and the opinion in Kimbrough v.
United States, post, p. ___, is explicitly equivocal, stating that “while
the Guidelines are no longer binding, closer review may be in order
when the sentencing judge varies from the Guidelines based solely on
the judge’s view that the Guidelines range ‘fails properly to reflect
§3553(a) considerations’ even in a mine-run case.” Post, at 21 (slip op.,
at 21) (quoting Rita v. United States, 551 U. S. ___, __ (2007) (slip op.,
at 12)).