United States v. Wittig

FILED
United States Court of Appeals
Tenth Circuit

June 17, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 07-3051

DAVID C. WITTIG,

Defendant - Appellant.

Appeal from the United States District Court
for the District of Kansas
(D.C. No. 02-CR-40140-JAR)

Richard L. Hathaway, Assistant United States Attorney (Eric F. Melgren, United
States Attorney, and Christine E. Kenney, Assistant United States Attorney, with
him on the brief), Kansas City, Kansas, for Plaintiff - Appellee.

Lisa R. Eskow of Weil, Gotshal & Manges (Steven Alan Reiss, J. Nicholas
Bunch, and Carol A. Funk, with her on the briefs), Austin, Texas, for Defendant -
Appellant.

Before HARTZ, O’BRIEN and HOLMES, Circuit Judges.

O’BRIEN, Circuit Judge.

David C. Wittig appeals n for the third time n from his sentence for

conspiracy, bank fraud and money laundering. We vacated his first two sentences
(51 months imprisonment and 60 months imprisonment). United States v.

Weidner, 437 F.3d 1023 (10th Cir. 2006) (Wittig I); United States v. Wittig, 206

Fed. Appx. 763 (10th Cir. 2006) (unpublished) (Wittig II). The district court has

now sentenced Wittig to 24 months imprisonment, followed by a three-year term

of supervised release with special conditions, including an occupational

restriction. United States v. Wittig, 474 F. Supp. 2d 1215 (D. Kan. 2007) (Wittig

III). Wittig appeals from the prison sentence and the occupational restriction.

Exercising jurisdiction pursuant to 18 U.S.C. § 3742(a), we affirm the sentence

but reverse the occupational restriction.

I. BACKGROUND

We will not repeat all of the facts underlying Wittig’s appeal, as they are

set forth in detail in our two previous decisions. See Wittig I, 437 F.3d at 1027-

32; Wittig II, 206 Fed. Appx. at 764-68. For present purposes, it is sufficient to

state Wittig loaned $1.5 million to Clinton Odell Weidner II, the former president,

chief executive officer, and general counsel of Capital City Bank in Topeka,

Kansas. At the time he made the loan, Wittig was a customer of the bank and was

chairman of the board, president and chief executive officer of Western

Resources, Inc. (now Westar Energy, Inc.), the largest electric utility in Kansas.

Both Wittig and Weidner intended to profit from the loan (in different ways) and

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both concealed the loan from the bank through false documentation. 1

Wittig and Weidner were convicted of one count of conspiracy to submit

false entries to a federally insured bank and to launder money in violation of 18

U.S.C. § 371; four counts of making a false bank entry in violation of 18 U.S.C. §

1005; and one count of money laundering in violation of 18 U.S.C. § 1957.

Wittig was sentenced to 51 months imprisonment. 2 In arriving at this sentence,

the court looked to the 2002 version of the United States Sentencing Guidelines,

which were mandatory at the time. It determined Wittig’s base offense level was

6. See USSG §2B1.1(a). It then applied two enhancements n the intended loss

enhancement, USSG §2B1.1(b)(1), and the gross receipts enhancement, USSG

§2B1.1(b)(12)(A) 3 n bringing Wittig’s total offense level to 24. With a Criminal

History Category of I, Wittig’s guideline range was 51 to 63 months

imprisonment.

In Wittig I, we affirmed Wittig’s conviction but vacated his sentence and

remanded for resentencing. 437 F.3d at 1027. We concluded the court erred in

1
Wittig made over $90,000 on the loan, based on the difference between
the interest charged to Wittig by the bank and the interest Wittig charged to
Weidner. Wittig also obtained an increase in his line of credit.
2
Weidner was originally sentenced to 78 months imprisonment. We
vacated that sentence. Wittig I, 437 F.3d at 1049-50. On remand, Weidner was
sentenced to 60 months imprisonment. We affirmed. United States v. Weidner,
209 Fed. Appx. 826, 827 (10th Cir. 2006) (unpublished).
3
This provision was renumbered as USSG §2B1.1(b)(13)(A) in the 2005
version of the guidelines.

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applying the gross receipts enhancement because the gross receipts from the

offense had been properly attributed to Weidner and could not also be attributed

to Wittig. Id. at 1046-47. We also determined the court erred in applying the

intended loss enhancement because it did not adequately consider the collateral

pledged by Wittig and did not find Wittig intended to deprive the bank of this

collateral. Id. at 1048. On the basis of these errors, we remanded for

resentencing. We noted the guidelines were no longer mandatory and instructed

resentencing be conducted consistent with United States v. Booker, 543 U.S. 220

(2005). Id.

On remand, the court again used the intended loss and gross receipts

enhancements to calculate Wittig’s offense level. In justifying its use of the

intended loss enhancement, the court acknowledged some credit should be given

to the collateral pledged by Wittig, but discounted the value of the collateral,

finding it was not “secured in a very secure fashion.” Wittig II, 206 Fed. Appx. at

767 (quotations omitted). The court considered evidence from a related case

involving Wittig and determined the bank fraud at issue here “was part of a larger

scheme in which [Wittig] intended to cause loss to Westar Energy of more than

$1 billion.” Id. at 767-68 (quotations omitted). 4 The court determined Wittig’s

4
In a separate case, Wittig was prosecuted for thirty-nine counts of wire
fraud, money laundering, conspiracy and circumvention of internal financial
controls in relation to his position as president, chief executive officer and
chairman of the board of Westar Energy, Inc. His first trial ended in a hung jury.
He was convicted on all counts in his second trial but we reversed. See United

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total offense level was 24, resulting in a guideline range of 51 to 63 months

imprisonment. The court imposed a sentence of 60 months. The court

determined the sentence was reasonable under the 18 U.S.C. § 3553(a) factors 5

States v. Lake, 472 F.3d 1247, 1250, 1253-54 (10th Cir. 2007).
5
Section 3553(a) provides in pertinent part:

The court shall impose a sentence sufficient, but not greater than
necessary, to comply with the purposes set forth in . . . this
subsection. The court, in determining the particular sentence to be
imposed, shall consider–

(1) the nature and circumstances of the offense and the
history and characteristics of the defendant;
(2) the need for the sentence imposed--
(A) to reflect the seriousness of the offense, to
promote respect for the law, and to provide just
punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the
defendant; and
(D) to provide the defendant with needed educational
or vocational training, medical care, or other
correctional treatment in the most effective
manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range
established for--
(A) the applicable category of offense committed by
the applicable category of defendant as set forth in
the guidelines . . . ;
(5) any pertinent policy statement . . . ;
(6) the need to avoid unwarranted sentence disparities
among defendants with similar records who have been
found guilty of similar conduct; and
(7) the need to provide restitution to any victims of
the offense.

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and would be appropriate even if the intended loss and gross receipts

enhancements did not apply.

In Wittig II, we held: “[T]he district court again erred in computing Mr.

Wittig’s offense level under the Guidelines. The base offense level for Mr.

Wittig’s crime was 6. The only potential grounds for increasing it would be the

gross receipts enhancement or the intended loss enhancement. Neither ground

applies.” 206 Fed. Appx. at 769 (citations omitted). We determined the court had

disregarded Wittig I and impermissibly reapplied the gross receipts enhancement.

Id. We also held the court erred in applying the intended loss enhancement

because “we have been pointed to no evidence that Mr. Wittig intended the Bank

to lose any money on its loan to him.” Id. at 769-70. We rejected the

government’s argument that the sentence should be affirmed notwithstanding the

district court’s miscalculation of the offense level. Id. at 770. We stated:

“[A]lthough the court gave reasons why it believed the imposed sentence was

reasonable, it failed to explain what dramatic facts justified such an extreme

divergence from the best estimate of Congress’s conception of reasonableness

expressed in the Guidelines.” Id. (quotations omitted). We stated that to justify

a non-guidelines sentence, “[t]he court would need to explain what the Guidelines

failed to take into account and why that omitted factor is of such enormous

consequence.” Id.

The court has now sentenced Wittig to 24 months imprisonment. In

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arriving at this sentence, the court recognized “Wittig II clearly ruled that the

applicable Guidelines range in this case is 0-6 months . . . .” 474 F. Supp. 2d at

1226. However, the court determined the guidelines failed to take into account

the “dramatic facts” of the case and thus imposed a sentence 18 months greater

than the upper end of the guidelines range, a 300% variance. 6 Id. at 1233. The

court explained “a term of imprisonment of 24 months is sufficient, but not

greater than necessary to comply with the purposes set forth in [§ 3553(a)].” Id.

at 1234. The court also imposed a three-year term of supervised release with four

special conditions, including an occupational restriction: “The defendant shall not

be employed in any capacity in which he will have executive authority over any

business, company or agency, and shall not engage in any financial agreements or

negotiations involving any business, company or agency without the prior

approval of the Court.” (R. Vol. II at 270.) On appeal, Wittig challenges the

reasonableness of the sentence and the imposition of the occupational restriction

as a special condition of supervised release. 7

II. DISCUSSION

6
“When a court enhances or detracts from the recommended [guideline]
range through application of § 3553(a) factors . . . the increase or decrease is
called a ‘variance.’” United States v. Atencio, 476 F.3d 1099, 1101 n.1 (10th Cir.
2007).
7
Wittig was released from custody on February 12, 2007, pending our
resolution of this appeal. At the time of his release, he had served over 12
months in prison.

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A. The Sentence

Since Booker, this Court has reviewed sentences for reasonableness, guided

by the factors set forth in 18 U.S.C. § 3553(a). United States v. Kristl, 437 F.3d

1050, 1053 (10th Cir. 2006). Reasonableness has both a procedural component,

encompassing the method by which the sentence is calculated, and a substantive

component, which relates to the length of the sentence. Id. at 1055. In United

States v. Smart, we noted it would be procedural error if a court failed to consider

the § 3553(a) factors or considered factors outside the scope of § 3553(a). 518

F.3d 800, 803-04 (10th Cir. 2008). A challenge to the sufficiency of the

§ 3553(a) justifications, on the other hand, raises a substantive challenge. Id. at

804. Wittig appears to be raising both a procedural and substantive challenge to

his sentence. He contends the district court considered factors that were improper

under § 3553(a)(1), (a)(2)(A) and (a)(6) (procedural error) and arrived at an

unreasonable sentence in weighing the § 3553(a) factors (substantive error). Our

review is for an abuse of discretion. See Gall v. United States, -- U.S. --, 128 S.

Ct. 586, 591 (2007); Rita v. United States, -- U.S. --, 127 S. Ct. 2456, 2465

(2007) (“appellate ‘reasonableness’ review merely asks whether the trial court

abused its discretion”).

1. Procedural Error

In arriving at a sentence, a district court must consider “the nature and

circumstances of the offense and the history and characteristics of the defendant”

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and “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.” 18 U.S.C. § 3553(a)(1), (a)(2)(A). The district court determined the

advisory guideline range (0 to 6 months) did not adequately account for these

factors because Wittig was involved in a fraudulent scheme involving a financial

institution; he intended to profit (and did profit) from the fraud; and the fraud

involved $1.5 million in gross receipts. See Wittig III, 474 F. Supp. 2d at 1234-

35. Having concluded the guidelines did not adequately account for the specific

circumstances of the case, the court looked to the intended loss and gross receipts

enhancements as guideposts for determining a proper sentence. See id. at 1234,

1238. As acknowledged by the court, Wittig I and II specifically foreclosed

application of these enhancements. They did not, however, foreclose

consideration of these enhancements. While this may seem a fine point, we have

previously held it is not improper for a sentencing court to look to the guidelines

in search of a sentencing guidepost. See, e.g., United States v. Mateo, 471 F.3d

1162, 1168-69 (10th Cir. 2006), cert. denied, 127 S. Ct. 2890 (2007); United

States v. Wolfe, 435 F.3d 1289, 1304 n.12 (10th Cir. 2006). We discern no

procedural error in the court’s use of the intended loss and gross receipts

enhancements as guideposts. 8

8
It is clear the court did not actually apply these enhancements. Had the
court applied only the intended loss enhancement, the guideline range would have
been 41 to 51 months imprisonment. See 474 F. Supp. 2d at 1235. Had the court

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 A sentencing court must consider “the need to avoid unwarranted sentence

disparities among defendants with similar records who have been found guilty of

similar conduct.” 18 U.S.C. § 3553(a)(6). While the district court acknowledged

the dissimilarities between Wittig and Weidner, it noted they were convicted of

the same crimes and had the same criminal histories. Wittig III, 474 F. Supp. 2d

at 1236-37. The court determined it was not improper for them to have disparate

sentences, but felt it necessary to reduce the disparity, and concluded a 60 month

sentence for Weidner and a 24 month sentence for Wittig adequately accounted

for their differences. Id. at 1237. Our case law instructs: “Ordinarily, the

disparity between co-defendants’ sentences is not grounds for relief.” United

States v. Shaw, 471 F.3d 1136, 1140 (10th Cir. 2006). However, as we noted in

Smart, “codefendant disparity is not a per se ‘improper’ factor” post-Gall. 518

F.3d at 804. District courts “may compare defendants when deciding a sentence.”

Id. Thus, the court did not commit procedural error in considering the disparity

between Wittig and Weidner’s sentences.

2. Substantive Error

Wittig contends the sentence imposed is substantively unreasonable and not

supported by the § 3553(a) factors. The court stated the sentence was appropriate

because of the “dramatic” facts. Wittig III, 474 F. Supp. 2d at 1233. While we

applied only the gross receipts enhancement, the guideline range would have been
51 to 63 months. Id.

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question whether the facts are indeed “dramatic,” that is no longer the starting

point for our review. We may “take the degree of variance into account and

consider the extent of a deviation from the Guidelines,” Gall, 128 S. Ct. at 595,

but our analysis does not change based on the degree of the variance. 9 Smart

instructs:

[W]e must give due deference to the district court’s decision that the
§ 3553(a) factors, on a whole, justify the extent of the variance . . . .
It is not for the Court of Appeals to decide de novo whether the
justification for a variance is sufficient or the sentence reasonable,
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.

518 F.3d at 808 (quotations and citation omitted). This standard of review does

not change “even if the facts of the case are less than extraordinary.” Id.

Though a 24 month sentence was certainly not the only reasonable sentence

the district court could have arrived at, we discern no abuse of discretion. The

court determined the variance “is necessary to afford adequate deterrence to bank

customers who are aiders and abettors to nominee loans with bank officers . . . .”

9
Prior to Gall, we reviewed sentences outside the calculated guideline
range on a sliding scale, requiring a more compelling justification the farther the
sentence diverged from that range. See, e.g., Mateo, 471 F.3d at 1169 (“[H]ow
compelling the justification must be to render an extra-Guidelines sentence
reasonable is proportional to the extent of the difference between the advisory
range and the sentence imposed.”) (quotations omitted). In Gall, the Supreme
Court “reject[ed] 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.” 128 S. Ct. at 595. The Court held such an
approach “come[s] too close to creating an impermissible presumption of
unreasonableness for sentences outside the Guidelines range.” Id.

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Wittig III , 474 F. Supp. 2d at 1237. We cannot disagree. As we stated in United

States v. McComb, while “we recognize that in many cases there will be a range

of possible outcomes the facts and law at issue can fairly support; rather than pick

and choose among them ourselves, we will defer to the district court’s judgment

so long as it falls within the realm of these rationally available choices.” 519

F.3d 1049, 1053 (10th Cir. 2007), cert. denied, — S. Ct. —, 2008 WL 717725

(2008).

B. The Occupational Restriction

Over Wittig’s objection, the district court imposed an occupational

restriction as a special condition of supervised release. The restriction prohibits

Wittig from being employed as an executive and engaging in any financial

agreements or negotiations in a professional capacity without first obtaining court

approval. “The district court generally enjoys broad discretion in setting a

condition of supervised release.” United States v. Erwin, 299 F.3d 1230, 1232

(10th Cir. 2002). Accordingly, we review special conditions of supervised release

for abuse of discretion. United States v. Edgin, 92 F.3d 1044, 1047 (10th Cir.

1996).

Wittig contends the court abused its discretion in imposing this “sweeping

employment restriction.” (Appellant’s Opening Br. at 35.) Wittig claims this

condition renders him virtually unemployable as an executive because of the

judicial oversight it entails. He asserts the restriction bears no reasonable relation

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to the conduct for which he was convicted and is not narrowly tailored to achieve

its objective. The government contends the restriction is reasonable because it

does not absolutely prohibit Wittig from engaging in financial agreements or

negotiations but merely requires he obtain court approval before doing so. The

government asserts the restriction is reasonably related to the conduct for which

Wittig was convicted because, inter alia, Wittig “was involved in this transaction

and carried out aspects of the conspiracy while the chief executive of a utility.”

(Appellee’s Br. at 22.)

The district court has discretion to impose an occupational restriction as a

special condition of supervised release, but its discretion must be exercised in

accordance with 18 U.S.C. §§ 3583(d) and 3563(b) and USSG §5F1.5. Section

3583(d) provides in pertinent part:

The court may order, as a further condition of supervised release, to
the extent that such condition --
(1) is reasonably related to the factors set forth in section
3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D);
(2) involves no greater deprivation of liberty than is
reasonably necessary for the purposes set forth in
section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and
(3) is consistent with any pertinent policy statements issued
by the Sentencing Commission pursuant to 28 U.S.C.
994(a);
any condition set forth as a discretionary condition of probation in
section 3563(b)(1) through (b)(10) and (b)(12) through (b)(20) . . . .

Section 3563(b)(5) sets forth occupational restrictions as a discretionary condition

of probation. This section states:

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 The court may provide, as further conditions of a sentence of
probation, to the extent that such conditions are reasonably related to
the factors set forth in section 3553(a)(1) and (a)(2) and to the extent
that such conditions involve only such deprivations of liberty or
property as are reasonably necessary for the purposes indicated in
section 3553(a)(2), that the defendant . . . refrain . . . from engaging
in a specified occupation, business, or profession bearing a
reasonably direct relationship to the conduct constituting the offense,
or engage in such a specified occupation, business, or profession
only to a stated degree or under stated circumstances.

USSG §5F1.5 implements § 3583(d). Subsection (a) states that a sentencing court

may impose an occupational restriction “only if it determines”:

(1) a reasonably direct relationship existed between the
defendant’s occupation, business or profession and the conduct
relevant to the offense of conviction; and
(2) imposition of such a restriction is reasonably necessary to
protect the public because there is reason to believe that,
absent such restriction, the defendant will continue to engage
in unlawful conduct similar to that for which the defendant
was convicted.

Moreover, an occupational restriction “shall [be] impose[d] . . . for the minimum

time and to the minimum extent necessary to protect the public.” USSG

§5F1.5(b).

In rejecting Wittig’s objection to the occupational restriction, the court

tersely explained:

[The] conditions of supervision are directly connected to the
underlying offenses for which defendant Wittig was convicted.
Defendant Wittig was convicted of fraud and conspiracy to commit
fraud that involved financial transactions. Specifically, he was found
guilty in a scheme that involved false and misleading statements
made on financial documents. If defendant Wittig were to have
executive authority, or conduct financial transactions on behalf of a

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 business entity, he would be responsible for a multitude of financial
documents. As a result, the conditions are reasonably related to the
nature and circumstances of the offense and the history and
characteristics of this defendant.

474 F. Supp. 2d at 1225. The court stated: “[T]hese conditions do not involve a

greater deprivation of liberty or property than is necessary. Defendant Wittig is

not prohibited entirely from engaging in the activities . . . ; he simply must obtain

permission from this Court before doing so.” Id. These conclusory statements do

not satisfy the requirements of the statutory and guideline provisions discussed

above.

First, in order for an occupational restriction to be warranted, there must be

a “reasonably direct relationship . . . between the defendant’s . . . profession and

the conduct relevant to the offense of conviction.” USSG §5F1.5(a)(1); see also

18 U.S.C. 3563(b)(5) (requiring that the occupational restriction “bear[ ] a

reasonably direct relationship to the conduct constituting the offense”). Where,

as here, the restriction relates to a management position, the “disqualification

must bear a reasonable relationship to an abuse of the management position for a

criminal purpose.” S. R EP . N O . 98-225, at 96 (1983), as reprinted in 1984

U.S.C.C.A.N. 3182, 3279. The court did not explain how the restriction was

connected to Wittig’s abuse of a management position for a criminal purpose.

The offense of conviction was based on Wittig’s personal conduct, not his

conduct as an executive. Wittig used his personal line of credit to effect a

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nominee loan to a bank employee and failed to disclose the loan to the bank. The

mere fact Wittig engaged in such conduct while employed as an executive does

not establish the necessary connection between the conduct and his

management/executive positions.

Second, an occupational restriction must be “reasonably necessary to

protect the public,” which requires a finding that, in the absence of the restriction,

“the defendant will continue to engage in unlawful conduct similar to that for

which the defendant was convicted.” USSG §5F1.5(a)(2); see Erwin, 299 F.3d at

1232 (“[T]he district court is required to determine that without the prohibition

[the defendant] will continue to engage in criminal conduct similar to that for

which he was convicted . . . .”). Here, the court did not find Wittig would

continue to engage in unlawful conduct absent the restriction. It noted only that

if Wittig were to have executive authority, he would be responsible for a

multitude of financial transactions. This is not sufficient.

Third, an occupational restriction “shall [be] impose[d] . . . for the

minimum time and to the minimum extent necessary to protect the public.”

USSG §5F1.5(b); see also United States v. Souser, 405 F.3d 1162, 1167 (10th Cir.

2005) (noting the “use of the word ‘shall’ [ in §5F1.5(b)] makes clear the

mandatory nature of the court’s finding that the occupational restriction is the

minimum restriction necessary”). The restriction must entail no greater

deprivation of liberty than is necessary. See 18 U.S.C. §§ 3583(d), 3563(b)(5).

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Here, there is no indication the court considered any less restrictive alternatives.

This constitutes reversible error. See Souser, 405 F.3d at 1167 (concluding the

district court’s error was not harmless because “nothing in the record establishes

that the court considered whether the public could be equally protected by lesser

restrictions”).

On these facts, an occupational restriction cannot satisfy the requirements

of 18 U.S.C. §§ 3583(d) and 3563(b) and USSG §5F1.5. We REVERSE the

fourth special condition of supervised release and remand with instructions to

eliminate that condition. In all other respects, we AFFIRM.

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07-3051- United States v. Wittig

HARTZ, Circuit Judge, joined by O’BRIEN and HOLMES, Circuit Judges,

concurring:

I join fully in Judge O’Brien’s opinion. I write separately only to express

my disagreement with this court’s recent jurisprudence regarding substantive

reasonableness of sentences.

This court’s present approach appears to be that a sentence is substantively

reasonable if the sentencing judge provides reasons for the length of the sentence.

See United States v. Muñoz-Nava, 524 F.3d 1137, 1142–43 (10th Cir. 2008). To

be sure, some reasons would be out-of-bounds, such as the defendant’s race or

name. But district judges are reasonable people, and I would be surprised if we

ever see an irrational sentence. We will, however, see great inequality in

sentencing. Reasonable people differ on how lenient or harsh sentences should

be, both in general and for particular crimes and particular types of offenders.

The resulting inequalities will have our imprimatur. Under this court’s present

approach we may go through the motions of substantive-reasonableness review,

but it will be an empty gesture.

I think that a different approach is appropriate. Sentencing judges are

required to consider the factors set forth in 18 U.S.C. § 3553(a). Some of those

factors do not seriously constrain the judge’s discretion. Every judge will

unavoidably consider “the nature and circumstances of the offense and the history

and characteristics of the defendant,” id. § 3553(a)(1); yet we all know that
reasonable people can reach strikingly different conclusions regarding what

sentence is proper in light of those considerations. Two of the factors, however,

have real teeth, and should be a matter of concern to appellate courts that wish to

effectuate congressional intent that we be a nation of equal justice under law, in

which the length of time that a defendant is deprived of liberty does not depend

primarily and significantly on who the sentencing judge happens to be. These

two factors are the sentencing range in the Sentencing Guidelines, id.

§ 3553(a)(4), and “the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of similar conduct,”

id. § 3553(a)(6).

In my view, a sentence is substantively unreasonable if the only reason that

the length is outside the range of what judges ordinarily impose for “defendants

with similar records who have been found guilty of similar conduct” is that the

sentencing judge has an idiosyncratic view of the seriousness of the offense, the

significance of the defendant’s criminal history and personal qualities, or the role

of incarceration in the criminal-justice system. Determining whether a particular

judge has idiosyncratic views could be problematic, except that the United States

Sentencing Commission has, in large part, developed its Sentencing Guidelines by

studying the sentences being handed down by district judges throughout the

country. See Kimbrough v. United States, 128 S. Ct. 558, 574–75 (2007). Thus,

the consideration of the Guidelines Sentencing range required by § 3533(a)(4)

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ordinarily provides the sentencing judge with knowledge of sentencing practice

within the federal judiciary. A significant variance from that practice should be

considered unreasonable if it can be justified only by disagreement with the

general views of other judges.

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