United States v. Smart

FILED
United States Court of Appeals
Tenth Circuit

March 4, 2008
Elisabeth A. Shumaker
PUBLISH Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,
No. 06-6120
v.

CHRISTOPHER WAYNE SMART,

Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. CR-05-153-02-L)

Randal A. Sengel, Office of the United States Attorney, Oklahoma City,
Oklahoma (John C. Richter, United States Attorney, with him on the briefs), for
the Plaintiff-Appellant.

Fred L. Staggs, Oklahoma City, Oklahoma, for the Defendant-Appellee.

Before HENRY, LUCERO, and HARTZ, Circuit Judges.

LUCERO, Circuit Judge.

Christopher Wayne Smart was convicted of inducing a minor to engage in

sexually explicit conduct for the purpose of producing videotapes depicting such

conduct in violation of 18 U.S.C. § 2251(a). Exercising its discretion under
United States v. Booker, 543 U.S. 220 (2005), Smart’s sentencing court

concluded that his United States Sentencing Guidelines (“Guidelines”) range of

168 to 210 months’ imprisonment overstated the seriousness of his offense, and

varied downward, imposing a sentence of 120 months’ imprisonment. The

government appeals.

We review this exercise of district court sentencing discretion under the

recent Supreme Court holdings in Gall v. United States, 128 S. Ct. 586 (2007),

and Kimbrough v. United States, 128 S. Ct. 558 (2007), which substantially

invalidate the rigorous form of review our circuit announced in United States v.

Garcia-Lara, 499 F.3d 1133 (10th Cir. 2007). Applying a deferential abuse of

discretion standard, we AFFIRM.

I

Smart was indicted, along with his codefendants Kevin “Tiny” Fields and

Robert Rousey, on August 17, 2005, by a grand jury in the Western District of

Oklahoma. He was charged with a single count of producing videotapes depicting

the sexual abuse of a minor in violation of 18 U.S.C. § 2251(a). All charges in

the case stemmed from a March 2001 investigation by officers in the El Reno,

Oklahoma, police department of suspected sexual abuse by Rousey of a 13-year-

old girl who lived with him intermittently. In November 2000, the defendants had

videotaped the girl having sex with the three of them and a woman, Johnita Lynn

Wheeler.

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 Rousey pleaded guilty to two counts under § 2251(a) and was sentenced to

the statutory minimum of 120 months’ imprisonment. His Guidelines range was

110 to 137 months, based on a total offense level of 26 and a criminal history

category of V. Unlike Rousey, Smart chose to exercise his right to trial. At trial,

the victim testified to a jury that Smart, Rousey, and Fields all knew that she was

less than 18 years old at the time of the offense. Wheeler testified that she was

concerned about engaging in group sex with someone who looked so young, and

that she asked Rousey about the victim’s age. She further testified that Rousey

told her the girl was 16 and this had been confirmed by Smart. Smart took the

stand in his own defense and testified that he had never spoken with either Fields

or Rousey about the victim’s age, and that he had not told Wheeler that the victim

was 16 years old. Smart was convicted as charged.

At sentencing, the district court accepted the Guidelines calculation in

Smart’s presentence report (“PSR”), which determined that Smart’s total adjusted

offense level was 31. That offense level reflected a base level of 27, a two-point

enhancement due to the age of the victim, see U.S.S.G. § 2G2.1(b)(1), and a

further two-point increase for obstruction of justice, see § 3C1.1. Smart’s

criminal history category was V. He requested, but did not receive, a two-point

reduction for aberrant behavior under § 2K2.20. Accordingly, Smart’s Guidelines

range was 168 to 210 months’ imprisonment.

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 The district court sentenced Smart to 120 months’ imprisonment, a

downward variance of 48 months below the bottom of his Guidelines range. After

referring to the factors set forth in 18 U.S.C. § 3553(a), the court offered its

reasons for granting Smart a downward variance. Initially, the court addressed

the difference in culpability between Smart and Rousey, and the nature and

seriousness of Smart’s conduct, stating:

I think [Smart’s] conduct . . . does fall somewhere between Mr.
Fields and Mr. Rousey. It was obvious to me that Mr. Rousey was I
guess the lead instigator of this in trying to make some sex films and
so forth.

The court communicated a discomfort with imposition of a higher sentence than

that of his codefendant based on Smart’s decision to proceed to trial:

I also agree that while you do get the benefit of accepting
responsibility and avoiding trial and that in the Guidelines . . . that’s
a consideration the court takes, I also agree that you do have a right
to go to trial. I guess I would put it this way, that while you get the
benefit of your plea agreement if you plead, I don't necessarily think
that you should be punished because you exercised your right to a
trial by jury.

Finally, the court elaborated further on its initial point:

I feel it would violate [18 U.S.C. § 3553] . . . if you received a far
greater sentence than Mr. Rousey. I believe that the disparity would
be a violation of that section. And I find, in reviewing the overall
case, your involvement as opposed to Mr. Fields’ and Mr. Rousey’s
and the others, I do not feel that you should receive a greater
sentence than Mr. Rousey. As I stated, he was obviously the
instigator and the promoter of this whole event and got others
involved, including the under-age girl, and it was his contact with her
which created the whole situation. And to avoid any disparity, great
unwarranted disparity in the sentences among the defendants based

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 upon their involvement in this episode, and in meeting the other
standards, the court finds a reasonable sentence should be that
Christopher Wayne Smart is hereby committed to the custody of the
Bureau of Prisons to be imprisoned for a term of 120 months.

The district court explained, “I feel that that sentence is reasonable and that

it reflects the seriousness of the offense, promotes respect for the law, and

provides just punishment. Certainly, that 10-year sentence would afford adequate

deterrence to criminal conduct and the public would be protected.” The

government argues that the sentence is unreasonable.

II

Since the Supreme Court’s decision in Booker, which relegated the

Sentencing Guidelines to an advisory status, district courts have been free to

apply any sentence that is “reasonable” under the sentencing factors listed at 18

U.S.C. § 3553(a). See 543 U.S. at 261. Our appellate review for reasonableness

includes both a procedural component, encompassing the method by which a

sentence was calculated, as well as a substantive component, which relates to the

length of the resulting sentence. United States v. Kristl, 437 F.3d 1050, 1055

(10th Cir. 2006).

The government does not specify whether it challenges the procedural or

substantive component of Smart’s sentence. Rather, it contends generally that the

district court’s reliance on two “legally erroneous” sentencing factors rendered

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Smart’s sentence unreasonable. We conclude that this assertion raises a challenge

to both aspects of the reasonableness of Smart’s sentence.

In Gall, the Supreme Court identified “failing to consider the § 3553(a)

factors” and “failing to adequately explain the chosen sentence” as forms of

procedural error. 128 S. Ct. at 597. Section 3553(a) lists in broad and general

terms the factors which district courts must account for during sentencing, and

encompasses the vast majority of considerations courts have traditionally treated

as relevant in setting sentences. The error asserted here is not a failure to

evaluate these factors, but rather, a related error: consideration by the district

court of legally erroneous factors.

We agree that if a district court bases a sentence on a factor not within the

categories set forth in § 3553(a), this would indeed be one form of procedural

error. Section 3553(a) mandates consideration of its enumerated factors, and

implicitly forbids consideration of factors outside its scope. § 3553(a) (“The

court, in determining the particular sentence to be imposed, shall consider [the

listed factors].”); see also United States v. Roberson, ___ F.3d ___, 2008 WL

323223, at *1 (8th Cir. Feb. 7, 2008) (procedural sentencing error includes

“giving significant weight to an irrelevant or improper factor”). 1

1
Invoking what is perhaps the most extreme hypothetical case, the dissent
contends that a sentence based on a defendant’s race would amount to
consideration of an “improper” or “legally erroneous” sentencing factor reversible
for procedural error. Dissent at 9-10. We have no doubt that such a sentence
would represent grave legal error, but not due to procedural infirmity. Section

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 Because the government also questions whether Smart’s sentence can be

supported in the absence of the allegedly “improper” factors it identifies, it has

also raised a substantive reasonableness challenge. A challenge to the sufficiency

of the § 3553(a) justifications relied on by the district court implicates the

substantive reasonableness of the resulting sentence. United States v. Conlan,

500 F.3d 1167, 1169 (10th Cir. 2007); see also Gall, 128 S. Ct. at 597 (in

conducting substantive reasonableness review, appellate courts must deferentially

examine the district court’s determination that “the § 3553(a) factors, on a whole,

justify the extent of the variance”).

III

As directed by the Supreme Court, we begin by considering the procedural

reasonableness of the sentence imposed. Gall, 128 S. Ct. at 597 (appellate courts

“must first ensure that the district court committed no significant procedural

error”). The government raises two factors that, it contends, were improper under

§ 3553(a). First, the government argues that under § 3553(a)(6), the district court

could not take into account the disparity between Smart’s sentence and that of his

3553(a)(1) allows district courts to consider the “characteristics of the defendant,”
and from a purely procedural perspective, race is a characteristic of the defendant.
Our review of the substantive reasonableness of such a sentence would surely
reveal, however, that the district court abused its discretion, as this characteristic
could not provide a logical justification for imposing a particular sentence. In
addition, the resulting sentence would violate the Equal Protection Clause of the
Fourteenth Amendment, which makes the specific characteristic of race an
impermissible government consideration in the absence of compelling reasons to
the contrary. See, e.g., Johnson v. California, 543 U.S. 499, 505 (2005).

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codefendant. Section 3553(a)(6) mandates consideration of “the need to avoid

unwarranted sentence disparities among defendants with similar records who have

been found guilty of similar conduct.”

After Gall, it is clear that codefendant disparity is not a per se “improper”

factor, such that its consideration would constitute procedural error. The Court

approvingly noted that the district court below had inquired about the sentences

Gall’s codefendants received, and stated that district courts may “consider[] the

need to avoid unwarranted similarities among [codefendants] who [are] not

similarly situated,” despite falling under the same or similar Guidelines

sentencing ranges. 128 S. Ct. at 600. It follows that a district court may also

properly account for unwarranted disparities between codefendants who are

similarly situated, and that the district court may compare defendants when

deciding a sentence. 2 We emphasize that whether any such disparity justifies a

2
Even before Gall, we never squarely held that a district court could not
consider disparities between codefendants. We held only that a defendant was not
entitled to a variance from a presumptively reasonable Guidelines sentence
merely because the defendant received a larger sentence than a codefendant. See
United States v. Verdin-Garcia, ___ F.3d ___ (10th Cir. 2008); United States v.
Davis, 437 F.3d 989, 997 (10th Cir. 2006) (“[A] criminal defendant alleging a
disparity between his sentence and that of a co-defendant is not entitled to relief
from a sentence that is properly within the sentencing guidelines and statutory
requirements.”); see also United States v. Parker, 462 F.3d 273, 278 (3d Cir.
2006) (“Where appropriate to the circumstances of a given case, a sentencing
court may reasonably consider sentencing disparity of co-defendants in its
application of [§ 3553(a)] factors.”).

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sentencing variance in a given case raises a separate question, one of substantive

reasonableness, which we address in Part IV.

Second, the government argues that the district court improperly relied on

its view that Smart should not be “punished” for exercising his right to a trial by

jury. See United States v. Portillo-Valenzuela, 20 F.3d 393, 395 (10th Cir. 1994)

(“[D]enying the reduction for acceptance of responsibility is not a penalty for

exercising any rights. The reduction is simply a reward for those who take full

responsibility.”). When read in context, however, it is clear that the court’s

statement was not offered as a justification for its ultimate sentencing decision.

The court unremarkably noted that while a defendant gets the benefit of

acceptance of responsibility if he pleads guilty, the converse is not necessarily

true: “I don’t necessarily think that you should be punished because you

exercised your right to a trial by jury.” Moreover, the court denied a reduction

for acceptance of responsibility, and approved a two-point Guidelines

enhancement for obstruction of justice based on Smart’s testimony during trial.

These decisions are not indicative of an irrational sympathy for Smart’s decision

to proceed to trial. Because the district court plainly did not rely on Smart’s

decision to go to trial as a justification for its downward variance, we need not

decide whether such a consideration would constitute procedural error after Gall.

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 We conclude that the district court relied on no improper factors in

sentencing Smart, 3 and proceed to consider the substantive reasonableness of the

sentence it ultimately imposed.

IV

A

Following the Supreme Court’s decision in Rita v. United States, 127 S. Ct.

2456 (2007), it has been well settled that we review a district court’s sentencing

decisions solely for abuse of discretion. See id. at 2465 (“[A]ppellate

‘reasonableness’ review merely asks whether the trial court abused its

discretion.”). Significantly less settled has been the question of how exactly we

should apply abuse of discretion review to individual sentences. The Supreme

Court has recently provided considerable guidance in Gall and Kimbrough. 4

These cases modify the application of our existing substantive reasonableness

3
Accordingly, we express no view as to the consequences of such a
procedural error. Cf. Roberson, 2008 WL 323223, at *1 (holding that reversal is
required only where an improper factor was given “significant weight”); Fed. R.
Crim. P. 52(a) (providing for review for harmless error).
4
In Gall, the Court overturned the Eighth Circuit and reinstated a variance
imposed by the district court, holding that the appellate court failed to use an
abuse of discretion standard in concluding that the district court incorrectly
applied § 3553(a) sentencing factors. 128 S. Ct. at 602. In Kimbrough, the Court
overturned a per se rule forbidding a district court from “disagreeing” with the
Guidelines’ 100:1 crack-to-cocaine sentencing ratio, and held that district courts
must be allowed to consider whether other § 3553(a) policies outweigh the
Guidelines in a given case. 128 S. Ct. at 564.

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review and clarify the amount of deference we must afford to a district court’s

weighing of § 3553(a) sentencing factors. Briefly stated, we now review “all

sentences—whether inside, just outside, or significantly outside the Guidelines

range—under a deferential abuse-of-discretion standard.” Gall, 128 S. Ct. at 591.

Following Rita, but before the Supreme Court’s decisions in Gall and

Kimbrough, our substantive reasonableness review of outside-Guidelines

sentences was governed by United States v. Garcia-Lara. In Garcia-Lara we

stated that, since Booker, “we have implicitly acknowledged that we employ an

abuse-of-discretion standard,” and held that “Rita says nothing new about the

standard of review.” 499 F.3d at 1136; but see id. at 1141-42 (Lucero, J.,

dissenting).

Under Garcia-Lara, review of a sentencing variance began with

mathematical calculation of both the absolute amount and the relative percentage

of the variance from a Guidelines baseline. Based on this determination, we

required “more compelling reasons” “the farther the trial court diverge[d] from

the advisory guideline range.” Id. at 1138-39 (quotation omitted). Second, we

conducted our own detailed review of the record to assess the district court’s

factual bases for its § 3553(a) conclusions. See id. at 1139-40 (“recount[ing] Mr.

Garcia-Lara’s criminal history in . . . detail” and factually concluding that this

history “illustrate[d] his demonstrated propensity to break the law”). Third, we

considered de novo the weight assigned by the district court to various § 3553(a)

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sentencing factors, because we considered this weighing process to be a question

of law. Id. at 1137, 1141 n.4 (refusing to “credit” the district court’s “legal

conclusion” that “a particular sentence fulfills the sentencing purposes of

§ 3553(a)”).

Fourth, we permitted a variance only if we agreed that it was “justified by

‘particular characteristics of the defendant’ that [were] ‘sufficiently uncommon’”

to distinguish him from the ordinary defendant contemplated by the Sentencing

Commission during drafting of the Guidelines. Id. at 1141 (quoting United States

v. Mateo, 471 F.3d 1162, 1169 (10th Cir. 2006)); see also United States v.

Hildreth, 485 F.3d 1120, 1129 (10th Cir. 2007). Finally, we did not allow a

district court to assign different weight to certain § 3553(a) factors than the

weight already given to those factors in the Guidelines. If a district court did so,

we sometimes characterized such judgment as “ignor[ing] Congress’s policy”

choices or “ignor[ing] the Guidelines . . . and instead adopt[ing] its own

sentencing philosophy.” Garcia-Lara, 499 F.3d at 1140 & 1141. Each of these

five features of our review of non-Guidelines sentences has now been invalidated

by the Supreme Court, and accordingly, Garcia-Lara is no longer binding on this

panel. See United States v. Torres-Duenas, 461 F.3d 1178, 1183 (10th Cir. 2006)

(“intervening Supreme Court precedent” allows a panel of our court to overturn

another panel’s decision).

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 The Court has now more clearly defined the term “abuse of discretion.”

The details of our review, in practice, must now afford substantial deference to

district courts. In assessing the standard of review applied by the Eighth Circuit

in Gall, the Court looked past that circuit’s terminology to the practical

application of its “abuse of discretion” review, and concluded that the latter

belied the former:

The Court of Appeals gave virtually no deference to the District
Court’s decision . . . . 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.

128 S. Ct. at 600.

It is clear that Gall and Kimbrough cannot be reconciled with the five

previously identified features of our circuit’s standard of review applicable to

non-Guidelines sentences. Following Gall, sentencing review may not be based

on “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.” Id. at 595. Although the degree of variance from the Guidelines range

remains a consideration on appeal, id., it may not define our threshold standard of

review. We may no longer seek a certain mathematical precision by requiring

that § 3553(a) factors reach some specific level of evidentiary weight. Id. at 594

(“[T]he Court of Appeals’ rule requiring ‘proportional’ justifications for

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departures from the Guidelines is not consistent with . . . Booker.”); contra

Garcia-Lara, 499 F.3d. at 1138-39. To do so would be to “apply[] a heightened

standard of review to sentences outside the Guidelines range” in practice, no

matter how we might describe that standard in theory. Gall, 128 S. Ct. at 596.

Moreover, although a district court must provide reasoning sufficient to support

the chosen variance, it need not necessarily provide “extraordinary” facts to

justify any statutorily permissible sentencing variance, even one as large as the

100% variance in Gall. 128 S. Ct. at 595; contra Mateo, 471 F.3d at 1169-70

(requiring “extraordinary circumstances” to support some variances).

None of this means that the extent of the variance is unimportant. Of

course, as the Court noted, in making an “individual assessment,” if the district

court

decides that an outside-Guidelines sentence is warranted, [it] must
consider the extent of the deviation and ensure that the justification
is sufficiently compelling to support the degree of the variance. We
find it uncontroversial that a major departure should be supported by
a more significant justification than a minor one. After settling on
the appropriate sentence, [it] must adequately explain the chosen
sentence to allow for meaningful appellate review and to promote the
perception of fair sentencing.

Gall, 128 S. Ct. at 597. We further recognize, of course, that “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)

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considerations even in a mine-run case.” Kimbrough, 128 S. Ct. at 575 (emphasis

added).

Our Garcia-Lara practice of relying upon our own reading of the factual

record, in place of the district court’s reading, ignores the trial judge’s “superior

position to find facts and judge their import under § 3553(a) in the individual

case.” Gall, 128 S. Ct. at 597 (quotation omitted). As Gall observes, a

sentencing “judge sees and hears the evidence, makes credibility determinations,

has full knowledge of the facts and gains insights not conveyed by the record.”

Id. (quotation omitted). We lack the district courts’ institutional experience of

imposing large numbers of sentences, the vast majority of which are never

appealed. See id. at 598 n.7. Thus, our standard of review must comport with

this reality by giving both formal and practical deference to the sentencing court’s

assessment of the facts under § 3553(a). It is not enough to solely credit raw

findings of individual fact.

We may not examine the weight a district court assigns to various

§ 3553(a) factors, and its ultimate assessment of the balance between them, as a

legal conclusion to be reviewed de novo. Instead, we must “give due deference to

the district court’s decision that the § 3553(a) factors, on a whole, justify the

extent of the variance.” Compare id. at 597, with Garcia-Lara, 499 F.3d at 1137,

1141 n.4 (refusing to “credit” the district court’s § 3553(a) balancing). An

appellate court’s “disagree[ment] with the District Judge’s conclusion that

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consideration of the § 3553(a) factors justified . . . a marked deviation from the

Guidelines range” is simply not enough to support a holding that the district court

abused its discretion. Gall, 128 S. Ct. at 602. “[I]t is not for the Court of

Appeals to decide de novo whether the justification for a variance is sufficient or

the sentence reasonable,” id., and we must therefore defer not only to a district

court’s factual findings but also to its determinations of the weight to be afforded

to such findings.

Gall and Kimbrough end our practice of permitting a variance only if the

district court “first distinguish[es] [the defendant’s] characteristics and history

from those of the ordinary . . . offender” contemplated by the Guidelines. 5

Garcia-Lara, 499 F.3d at 1140 n.5. As the Court explained in Kimbrough, the

Sentencing Commission and sentencing courts play complementary roles in fine-

tuning an individual sentence: Although “the Commission’s recommendation of a

sentencing range will reflect a rough approximation of sentences that might

achieve § 3553(a)’s objectives” and the Guidelines give a district court a measure

of national practice to use as a starting point, the district court will have “greater

5
The defendant in Kimbrough was, by all accounts, an ordinary offender
with characteristics fully contemplated by the Guidelines; the Court nonetheless
reinstated a below-Guidelines sentence which the district court had concluded was
“clearly long enough” to accomplish the objectives of § 3553(a). See 128 S. Ct.
at 564-65. As noted above, “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.” Id. at 575 (emphasis added).

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familiarity with the individual case and the individual defendant before him than

the Commission.” 128 S. Ct. at 574 (quotation omitted) (citing Rita, 127 S. Ct. at

2465, 2469). 6 Allowing sentencing variances only on the existence of

extraordinary defendant “characteristics and history” assumes not that the

Guidelines give a “rough approximation” of appropriate sentences, but that they

dictate the only appropriate sentence in the absence of extraordinary facts.

Our requirement that district courts distinguish an offender from the

“ordinary” offender has given the Guidelines more weight than other § 3553(a)

factors, and has effectively required every sentencing variance to be justified by

“extraordinary facts.” To perform their individualizing role, district courts are

now allowed to contextually evaluate each § 3553(a) factor, including those

factors the relevant guideline(s) already purport to take into account, even if the

facts of the case are less than extraordinary. Compare Gall, 128 S. Ct. at 596-97

& 602, and Kimbrough, 128 S. Ct. at 570 (“In sum, while [§ 3553(a)] still

requires a court to give respectful consideration to the Guidelines, Booker permits

the court to tailor the sentence in light of other statutory concerns as well.”

(citations omitted)), with Garcia-Lara, 499 F.3d at 1137-38 (“A court’s

6
District courts are also better positioned to evaluate “ordinariness” than
are we. A case that seems “ordinary” to us compared only to the cases we see on
review, as opposed to the entire range of sentences imposed at the trial court level
but not appealed, may, from the district court’s vantage, be anything but ordinary.
See Gall, 128 S. Ct. at 598 & n.7 (stating that district courts see “many more
Guidelines sentences than appellate courts do” (quotation omitted)).

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conclusion that the Guidelines are simply ‘wrong’ or an inadequate reflection of

the statutory sentencing purposes is an unreasonable application of [§ 3553(a)

factors].”). In many cases, the Guidelines recommendation and the district

court’s individualized determination will continue to overlap, but we may not

assume that the Guidelines perfectly express the § 3553(a) factors present in an

individual case in the face of a district court’s conclusion to the contrary.

We may not conclude that simply by diverging from the Guidelines, a

district court has disregarded the policy considerations which led the Commission

to create a particular Guideline. Compare Kimbrough, 128 S. Ct. at 564 (stating

that “the Court of Appeals erred in holding the crack/powder disparity effectively

mandatory”), with Garcia-Lara, 499 F.3d at 1140 (“[T]o the extent the District

Court believed the career offender enhancement over-represented Mr.

Garcia-Lara’s prior criminal history, it ignored Congress’s policy of targeting

recidivist drug offenders for more severe punishment.”). Such a review could

lead to excessive deference to the macro-level § 3553(a) determinations reached

by the Sentencing Commission, and too little deference to the micro-level

determinations reserved for the district courts. If district courts are required to

balance the Guidelines against the other § 3553(a) considerations, then we cannot

say they disregard the Guidelines simply by striking a different balance and

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imposing a variance in a particular case. 7 See Gall, 128 S. Ct. at 602 (“[T]he

Guidelines are only one of the factors to consider when imposing a sentence.”).

In sentencing defendants, district courts exercise a guided discretion within

a range specified by Congress. As Justice Cardozo wrote, a “judge . . . is to

exercise a discretion informed by tradition, methodized by analogy, disciplined by

system, and subordinated to the primordial necessity of order in the social life.”

Benjamin N. Cardozo, The Nature of the Judicial Process 141 (1921) (quotation

omitted). Mindful of the statutory limitations of § 3553(a), a sentencing judge’s

determination within that framework is an exercise of discretion and must be

reviewed as such.

B

In sentencing Smart, the district court began by stating that it “gave great

weight to the guidelines” recommendation, which had been properly calculated in

Smart’s PSR. In justifying its downward variance from the Guidelines range, the

district court relied primarily on Smart’s relatively minor role in the offense. On

point:

I feel it would violate [18 U.S.C. § 3553] . . . if you received a far greater
sentence than Mr. Rousey. . . . As I stated, he was obviously the instigator

7
Moreover, once a district court correctly calculates and considers a
defendant’s Guidelines range, we must assume that it has “necessarily” given
consideration to the need for uniformity in sentencing. Gall, 128 S. Ct. at 599;
contra Hildreth, 485 F.3d at 1130. Based on this holding, we might conclude that
correct calculation of the Guidelines range indicates consideration of all of the
sentencing policies animating a particular guideline.

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 and the promoter of this whole event and got others involved, including the
under-age girl, and it was his contact with her which created the whole
situation.

Although noting that Rousey got the “benefit of accepting responsibility and

avoiding trial” and Smart rightfully did not, the court also recognized that Rousey

had played a much larger role than Smart in the underlying incident, and

sentenced Smart to the same 120-month term imposed on Rousey. 8 This sentence

is equivalent to the statutory minimum under § 2251(a). In setting the sentence,

the district court cited the need for the sentence imposed to reflect the seriousness

of the offense, to promote respect for the law, and to provide just punishment for

the offense, § 3553(a)(2)(A), and the need to avoid unwarranted sentencing

disparities, § 3553(a)(6).

As discussed above, Gall allows district courts to consider disparities

between codefendants. 128 S. Ct. at 600. The district court considered this factor

in conjunction with the seriousness of Smart’s offense, using codefendant

Rousey’s conduct largely to illustrate why Smart was less culpable than the

Guidelines range would suggest. See United States v. Shaw, 471 F.3d 1136,

1140-41 (10th Cir. 2006) (affirming an above-Guidelines sentence where the

district court considered a codefendant’s sentence in the course of discussing

several § 3553(a) factors, including the defendant’s criminal history and the

8
Smart and Rousey had the same criminal history category of V and the
same base offense level, before enhancements and reductions, of 27.

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seriousness of his offense). In effect, the court concluded that Smart’s lesser

culpability, offset by his failure to accept responsibility, supported the same term

of imprisonment as Rousey’s greater culpability and acceptance of responsibility.

Given the district court’s firsthand observation of Smart’s trial, its credibility

determinations, and insights not necessarily conveyed by the record, its

conclusion was not an abuse of discretion. See Gall, 128 S. Ct. at 597

(recognizing that these “practical considerations” underlie the legal principle that

sentencing courts must be reviewed deferentially).

Moreover, the district court’s determination that Smart’s sentence

overstated the seriousness of his offense is supported by evidence in the record

tending to show that both Smart and Fields were lesser players in the charged

offense. For example, the district court heard testimony from the victim that only

codefendant Rousey coerced her—through payment and promises of a place to

stay—into participating in various sexual acts. These included those captured on

the videotape which led to Smart’s conviction. Rousey also initiated the plan to

videotape this episode, while Smart was only a follower in the scheme.

Additionally, the district court found that Smart’s sentence was justified by

several other § 3553(a) factors. It found that the 10-year sentence would be

sufficient to deter future criminal conduct, see § 3553(a)(2)(B), and that it would

provide sufficient time for Smart to obtain correctional treatment, see

§ 3553(a)(2)(D). These § 3553(a)(2) factors are of particular importance, as

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district courts are bound to “impose a sentence sufficient, but not greater than

necessary” to comply with them. § 3553(a); see also Kimbrough, 128 S. Ct. at

570.

Applying the appropriate legal standard of review provided by Gall and

Kimbrough, and crediting the district court’s reasoned consideration of these

multiple sentencing factors, we fail to perceive any abuse of discretion in

sentencing Smart to a below-Guidelines sentence.

V

AFFIRMED.

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06-6120 - United States v. Smart

HARTZ, Circuit Judge, dissenting:

I respectfully dissent.

Before explaining why I would reverse and remand for resentencing, I

should note my concern about the scope of the majority opinion. That opinion

discusses at length the meaning of abuse-of-discretion review of the substantive

reasonableness of a sentence in light of Gall v. United States, 128 S. Ct. 586

(2007), and Kimbrough v. United States, 128 S. Ct. 558 (2007). The opinion

justifies this discussion on the ground that the government’s argument on appeal

includes a claim of substantive unreasonableness. In my view, however, the

majority opinion has mischaracterized the government’s arguments in this case

and has misconceived the meanings of substantive and procedural error. As I

read the government’s briefs, they argue only that the district court took into

account two improper considerations in arriving at Mr. Smart’s sentence. And

that, I believe, is a matter of procedural, not substantive, error, as those terms

have been used in this context.

I will begin by distinguishing between procedural and substantive error.

In arriving at a sentence the district court must (1) correctly find contested facts,

(2) properly calculate the Guidelines sentencing range, (3) listen to the

arguments of the parties, (4) determine what matters should be considered in

imposing sentence (a process guided largely by 18 U.S.C. § 3533(a)), (5) weigh

those considerations to arrive at a sentence, and (6) explain the sentencing
decision to the parties. As I understand what the Supreme Court has said,

substantive error is an error at step 5—weighing the proper considerations and

fixing the length of the sentence. Error in the performance of the other five steps

is termed procedural error. When a procedural error has been committed, we

would ordinarily need to reverse for resentencing, regardless of whether the

length of the sentence was substantively reasonable.

Although the Supreme Court has not had occasion to draw a precise line

between substantive and procedural reasonableness, its opinions provide

significant guidance. In Gall the Court writes:

[The appellate court] must first ensure that the district court
committed no significant procedural error, such as [2] failing to
calculate (or improperly calculating) the Guidelines range, treating
the Guidelines as mandatory, [4] failing to consider the § 3553(a)
factors, [1] selecting a sentence based on clearly erroneous facts, or
[6] 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.

128 S. Ct. at 597. As shown by the bracketed numbers that I have inserted, what

I call steps 1, 2, 4, and 6 are included as procedural matters. With respect to

step 4, the Court specifically mentions “failing to consider the § 3553(a)

factors,” id. Although it does not include “considering an improper factor” as a

procedural error, I do not see how such an error could be characterized

differently from failing to consider a proper factor. Perhaps “treating the

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Guidelines as mandatory,” id., might be viewed as consideration of an improper

factor, but I would view it as simply a special case of not considering all the

§ 3553(a) factors—of which only one, paragraph (4), relates to the Guidelines

range.

The structure and content of Part IV of Gall reaffirms my view of the

meanings of procedural and substantive. The first paragraph of Part IV states

that the discussion to follow will relate to procedural error, and it lists several

procedural requirements (including my step 3, listening to argument by the

parties):

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 reasoning. 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).

Id. at 598. Part IV continues with the Court’s refutation of the arguments that

the sentencing judge had ignored the health risks of the drug ecstasy and the

need to avoid unwarranted disparities in sentences. The first sentence of the

concluding paragraph of Part IV then states:

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

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 sentence of probation and justified a substantial deviation from the
Guidelines range.

Id. at 600. Again, the Court appears to view substantive error as error in the

weighing of proper factors and fixing the sentence. 1

The concluding portion of Kimbrough also supports my view that

consideration of an improper factor is a procedural error. Part V begins:

“Taking account of the foregoing discussion [regarding the crack-cocaine

Guidelines] in appraising the District Court’s disposition in this case, we

conclude that the 180-month sentence imposed on Kimbrough should survive

appellate inspection.” 128 S. Ct. at 575. The Court then notes that the district

court “properly calculat[ed] and consider[ed] the advisory Guidelines range,”

1
Part V of Gall, which addresses the substantive reasonableness of the
sentence, may appear to treat consideration of an improper factor as a matter of
substantive error. The discussion includes a response to the view of the court of
appeals in that case that the sentencing judge had given “significant weight to an
improper factor”—namely, “compar[ing] 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,” id. at 601 (internal quotation marks omitted). The argument, however,
was not that immaturity is an improper factor to consider in sentencing but that
the record did not provide factual support for the factor—that is, the record failed
to show that Gall’s behavior was “impetuous or ill-considered,” id. (internal
quotation marks omitted). The Court rejected the appellate court’s view, citing
authority that someone of Gall’s age would not have a fully mature brain.
Perhaps the Court’s treatment of this argument would have been better placed in
the Part IV discussion of procedural error, but whatever the rhetorical reasons for
placing it in Part V, that placement hardly suggests that factual errors are not
procedural errors, see id. at 597 (including “selecting a sentence based on clearly
erroneous facts” in a list of possible procedural errors). And the discussion
certainly does not imply that consideration of an improper factor—such as
race—is a substantive error.

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and “addressed the relevant § 3553(a) factors.” Id. “[T]he District Court,” it

says, “thus rested its sentence on the appropriate considerations and committed

no procedural error.” Id. at 575–76 (emphasis added; internal quotation marks

omitted). The next paragraph then begins: “The ultimate question in

Kimbrough’s case is 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 15 years and justified a substantial deviation from the

Guidelines range.” Id. at 576 (brackets and internal quotation marks omitted). I

would infer from the quoted language that the first paragraph of Part V addressed

procedural error and the next (and final) paragraph addressed substantive error.

Thus, “resting [the] sentence on the appropriate considerations,” id. at 575–76, is

a matter of procedural reasonableness and whether “the § 3553(a) factors

supported [the] sentence” is a matter of substantive reasonableness, id. at 576.

Accordingly, an appellate court’s determination of whether it was proper for the

lower court to consider a factor is part of the review of procedural

reasonableness.

My understanding of the Court’s terminology is also supported by Justice

Scalia’s use of the term substantive in this context. Justice Scalia has endorsed

appellate review of procedural error in sentencing, but he has condemned

substantive review because of his concern that it can create the error barred by

the holding of United States v. Booker, 543 U.S. 220 (2005), regarding the Sixth

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Amendment. See Rita v. United States, 127 S. Ct. 2456, 2474–84 (2007) (Scalia,

J., concurring). The Booker issue that concerns him arises only from review of

the lengths of sentences. Booker reaffirmed the proposition that “[a]ny fact

(other than a prior conviction) which is necessary to support a sentence

exceeding the maximum authorized by the facts established by a plea of guilty or

a jury verdict must be admitted by the defendant or proved to a jury beyond a

reasonable doubt.” 543 U.S. at 244. In Justice Scalia’s view, that rule would be

violated if an appellate court said that the length of a sentence of a defendant

who went to trial was reasonable only because the sentencing judge found, say,

that the quantity of drugs involved in the crime was ten times the amount alleged

in the indictment. See Rita, 127 S. Ct. at 2476–72 (Scalia, J., concurring).

Because Justice Scalia views such determinations by appellate courts as

inevitable if the lengths of sentences must be reviewed for reasonableness, see

id. at 2478, 2480–81, he concludes that “substantive reasonableness review

[would] cause judge-found facts to justify greater punishment than the jury’s

verdict or the defendant’s guilty plea would sustain,” id. at 2482. The

substantive review on which his concern is focused must be only review of the

ultimate sentence, not review of matters such as whether the sentencing judge

properly considered or failed to consider certain factors, because Booker places

no Sixth Amendment constraint on what a sentencing judge may consider, so

long as the lawfulness of the length of a sentence is not dependent on judicial

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finding of a particular fact. Indeed, Justice Scalia’s Rita concurrence

specifically labels as “procedural review” an appellate court’s reversal of a

sentence on the ground that the district court “consider[ed] impermissible

factors.” Id. at 2483.

Accordingly, I conclude that a district court commits procedural, not

substantive, error when it (1) takes into account an improper consideration or (2)

fails to take into account a mandated consideration. Yet that is precisely the type

of error alleged by the government in this case. Its brief is devoted to arguing

that the district court committed legal error by deciding that a defendant’s

sentence should not be increased because he went to trial and that it should be

decreased to be consistent with a codefendant’s sentence. Its “Statement of the

Issue Presented for Review” is:

Whether the district court’s departure [read, ‘variance’] below the
Guideline range for Smart who testified falsely at trial and received
an enhancement for obstruction of justice was reasonable when the
court’s justification was that Smart should not be punished for going
to trial and should not receive a greater sentence than codefendant
Rousey who pled guilty prior to trial.

Aplt.’s Br. at 1. The heading for the opening brief’s Argument section is: “The

District Court’s Departure below the Guideline Range for Smart was not

reasonable when it was based upon Legal Error.” Id. at I. And its Summary of

the Argument is:

When a district court imposes a sentence below the Guideline range,
the resulting sentence is not presumptively reasonable. A district

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 court must provide an appropriate justification for the Court of
Appeals to determine whether the departure is reasonable. The
district court’s justification in this case rested on two erroneous
grounds. First, the district court concluded that a higher sentencing
range for Smart than co-defendant Rousey, who pled guilty prior to
trial, would punish Smart for going to trial. Second, the district
court concluded that a greater term of imprisonment for Smart than
co-defendant Rousey would contravene the unwarranted sentencing
disparities provision in 18 U.S.C. § 3553(a)(6). The justification
that a higher sentence for Smart would punish him for going to trial
contravenes established authority. Furthermore, the unwarranted
sentencing disparity provision in § 3553 is intended to be applied on
a national level—not among co-defendants in the same case.
Because the district court’s justification was legally erroneous, the
resulting sentence is unreasonable. The case should be remanded to
the district court for resentencing.

Id. at 8.

As I read these passages, the government is contending that the district

court committed legal error by including two improper considerations in its

calculus. It is not contending simply that the two considerations were given

improper weight. It makes no argument regarding what would be a reasonable

length for Mr. Smart’s sentence. Its argument is thus a claim of procedural, not

substantive, error. Although the government did not use the term procedural or

substantive error, that is not surprising in a brief filed on August 22, 2006.

The majority opinion acknowledges that a sentencing judge’s

consideration of an improper factor may be characterized as a procedural error,

but, for reasons I do not understand, limits that characterization to consideration

of a factor not set forth in § 3553(a). Substantive error, in its view, includes (1)

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unreasonable weighing of proper considerations in arriving at the length of the

sentence and (2) consideration of a factor not set forth in § 3553(a). What a

strange beast substantive error has become. To a familiar animal (the first type

of substantive error) has been added an awkward appendage. I see nothing in the

Supreme Court’s opinions that creates this creature. As previously noted,

Kimbrough appears to state that “rest[ing] [the] sentence on the appropriate

considerations,” 128 S. Ct. at 575–76, is a matter of procedural reasonableness.

And certainly Justice Scalia’s use of the terms substantive and procedural in this

context is inconsistent with the majority opinion’s view: reversing a sentence on

the ground that the sentencing judge (under the post-Booker regime) took into

account an improper consideration (whatever the ground on which it was found

improper) could in itself have no Booker Sixth Amendment implications.

Moreover, when an appeal challenges the sentencing judge’s taking into

account an allegedly improper consideration, I would think that the nature of our

review would necessarily be the same regardless of whether the consideration

could be said to be encompassed by the § 3553(a) factors. If, for example, the

sentencing judge considered the defendant’s race (a “characteristic[s] of the

defendant” encompassed by § 3553(a)(1)) when imposing sentence, we would

treat the error just as we would if the judge had considered the latest quotation

for the Dow Jones Industrial Average (not a factor encompassed by § 3553(a)).

Although there may be limited circumstances in which the error would not

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require reversal (such as, when the court imposed the statutory mandatory

minimum sentence), we would ordinarily reverse; and that reversal would be

regardless of whether our substantive-reasonableness review showed that the

sentence imposed was a reasonable one in light of the proper considerations

taken into account by the judge. Substantive-reasonableness review is so

deferential to the sentencing judge only because that review is performed after

the appellate court has assured itself that the judge committed no procedural

error before undertaking the weighing process that led to the sentence.

Accordingly, I am not persuaded by the majority opinion that the

government has raised a claim of substantive reasonableness on this appeal. The

government’s argument that the district court took into account two improper

considerations raises a question of procedural reasonableness. And the

government’s briefs do not support the majority opinion’s statement that “the

government also questions whether Smart’s sentence can be supported in the

absence of the allegedly ‘improper’ factors it identifies.” Op. at 7.

I now turn to the issues actually before us. The government contends, in

essence, that the district court did not “rest[] [the] sentence on the appropriate

considerations,” Kimbrough, 128 S. Ct. at 575–76. In the government’s view the

court committed legal error by taking into account two improper considerations

when determining Mr. Smart’s sentence: (1) that the sentence of a defendant

who exercises the right to go to trial should not be greater than it would be if the

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defendant had pleaded guilty, and (2) that 18 U.S.C. § 3553(a)(6) supports the

imposition of identical sentences on codefendants even when they are not

similarly situated. I am not certain that the district court committed either of

these errors. But a court’s language in imposing sentence is important, and the

words employed at Mr. Smart’s sentencing sufficiently suggest these two errors

that I believe remand for resentencing to be the proper disposition.

Beginning with the right-to-trial issue, I share the government’s concern

with the district court’s statement, “I don’t necessarily think that you should be

punished because you exercised your right to a trial by jury.” Aplt. App. at 105.

The court’s statement does not express an absurd point of view, but it is contrary

to the policy of the United States Sentencing Guidelines. Under USSG § 3E1.1 a

defendant who accepts responsibility for the charged crime, which almost always

requires pleading guilty to the charge, see id. cmt. n.2, receives a lower offense

level, and hence a lighter sentence. I recognize that district courts are not bound

by Guidelines policy. In particular, Kimbrough held that the sentencing judge

need not follow a guideline that did “not exemplify the [Sentencing]

Commission’s exercise of its characteristic institutional role.” 128 S. Ct. at 563.

But here, unlike in Kimbrough, performance of that characteristic role, which

entails analysis of empirical sentencing data to establish national norms, almost

certainly led to § 3E1.1. It is therefore appropriate to recognize Kimbrough’s

statement that “closer review may be in order when the sentencing judge varies

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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.” Id.

(internal quotation marks omitted). Unfortunately for us, the Court in

Kimbrough had “no occasion for elaborative discussion of this matter.” Id. I

would think, however, that a district court’s disagreement with one of the

Commission’s core policies at least requires an explanation beyond a mere

assertion of a contrary point of view. In particular, the district court did not

point to anything special about this case that would suggest the inapplicability of

the Guidelines policy.

The government’s second contention is not as compelling but should be

addressed upon remand. Under 18 U.S.C. § 3553(a), “[t]he court, in determining

the particular sentence to be imposed shall consider— . . . (6) the need to avoid

unwarranted sentence disparities among defendants with similar records who

have been found guilty of similar conduct[.]” In sentencing Mr. Smart, the

district court said: “I feel it would violate 3553 from the standpoint if you

received a far greater sentence than Mr. Rousey. I believe that the disparity

would be a violation of that section.” Aplt. App. at 106. My concern is that the

use of the term disparity may suggest that the court was invoking § 3553(a)(6).

Doing so would have been error. “[T]he kind of ‘disparity’ with which

§ 3553(a)(6) is concerned is an unjustified difference across judges (or districts)

rather than among defendants to a single case.” United States v. Boscarino, 437

-12-
F.3d 634, 638 (7th Cir. 2006). The purpose of § 3553(a)(6) would be defeated if

district courts used it as the rationale for imposing the same sentences on two

codefendants despite finding that one, but not the other, had obstructed justice

and failed to accept responsibility (as was true in this case). If such a practice

prevailed, the sentences of two absolutely identical defendants (I’ll call them A

and B) in two different cases could differ solely because of the conduct of their

codefendants. If A’s codefendant obstructed justice and refused to accept

responsibility, whereas B’s codefendant accepted responsibility and did not

obstruct justice, then A’s codefendant would receive a harsher sentence than B’s

codefendant, and a practice of equalizing the sentences of codefendants would

result in A’s sentence being harsher than B’s, contrary to the like-sentence

mandate of § 3553(a)(6).

Gall does not suggest otherwise. The majority opinion quotes Gall’s

statement that sentencing judges may “‘consider[] the need to avoid unwarranted

similarities among [codefendants] who [are] not similarly situated,’ despite

falling under the same or similar Guidelines sentencing ranges.” Op. at 8

(quoting Gall, 128 S. Ct. at 600) (alterations in majority opinion). But all that

this statement in Gall does is affirm that differently situated defendants can be

sentenced differently. I am sure that the Supreme Court would also say that it is

proper for a judge (as may have happened in this case) to impose identical

sentences on two defendants who are not similarly situated but whose

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dissimilarities (some favoring one defendant and some favoring the other) cancel

out. The mere fact that two persons being sentenced are codefendants is,

however, not a proper ground for imposing identical sentences, and Gall does not

say that it is. 2 The district court should make clear on remand that it is not

invoking that ground in support of Mr. Smart’s sentence.

Accordingly, I would reverse Mr. Smart’s sentence and remand for

resentencing.

2
Of course, when codefendants are similarly situated, they should receive
similar sentences.

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