In Re Sealed Case

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 9, 2008 Decided June 3, 2008

No. 07-3132

IN RE SEALED CASE

Appeal from the United States District Court
for the District of Columbia
(No. 99cr00278)

David B. Smith argued the cause for appellants.

Katherine M. Kelly, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Jeffrey A.
Taylor, U.S. Attorney, Roy W. McLeese, III and Ann H.
Petalas, Assistant U.S. Attorneys.

Before: GINSBURG, BROWN, and KAVANAUGH, Circuit
Judges.

Opinion for the court filed by Circuit Judge BROWN.

Dissenting opinion filed by Circuit Judge KAVANAUGH.

BROWN, Circuit Judge: The defendant appeals his
eighteen month prison sentence after revocation of supervised
 2

release. We vacate the sentence and remand for the district
court to explain its reasoning.

I

Appellant pled guilty in 1999 to two counts of
distribution of cocaine base, one count of unlawful use of a
“communication facility,” see 21 U.S.C. § 843(b), and one
count of carrying a firearm during a drug-trafficking offense.
Under the terms of his plea agreement, he cooperated
extensively with the Bureau of Alcohol, Tobacco, and
Firearms (ATF), helping the government to convict an
impressive number of drug traffickers. At his eventual
sentencing in 2006, the government rewarded his remarkably
productive efforts by moving for a downward departure from
the Sentencing Guidelines. The district court obliged,
sentencing him to time served and five years of supervised
release.

After a series of disputes between Appellant and his
probation officers, Appellent found himself back before the
district court. At bottom, the disputes over supervision arose
because Appellant moved out of the District of Columbia but
continued to work in this area. His new probation officer
might have approved of his occasional trips, but Appellant
repeatedly failed to notify his probation officer about his
travel plans. In addition, Appellant resisted requests to
provide his probation officer with required financial
information, proferring only his bank statement when he was
asked for detailed accounting. In May 2007, the officer
decided to place Appellant on house arrest with electronic
monitoring for four months. Appellant refused to accept this
sanction; the probation officer responded by transferring the
case back to the District of Columbia and filing a Non-
Compliance Report. Finally, in August 2007, the District of
 3

Columbia probation office asked the sentencing court to
revoke Appellant’s supervised release because of these
violations.

During two days of hearings, Appellant explained his
work, his travel, and his financial situation, and his probation
officers testified about his failure to communicate with them.
An ATF agent also vouched for the quality of Appellant’s
cooperation. At the conclusion of the hearing, the district
judge specifically found Appellant had committed several of
the violations charged by the probation office. The judge also
said any defendant who came back before him for violating
his supervised release faced only one question: “how long
he’s going to prison for, not whether he’s going,” Hr’g Tr.
298, Nov. 26–27, 2007. The district judge pointed out he had
explained this policy to the defendant at the original
sentencing. Further, the judge explained Appellant “cannot
be supervised, he would not be supervised, he will not be
supervised.” Id. Having decided to revoke the release, the
district judge told counsel he was “going to consider an
upward departure,” recognizing the Sentencing Guidelines
recommendation was three to nine months in prison but
observing he had discretion to sentence Appellant to five
years because of his underlying convictions. Id. at 298–99.
The probation office requested the full five-year sentence,
while the government recommended twelve months; but
Appellant’s counsel argued for a lenient sentence for
violations even the government deemed relatively minor. In
the end, the district judge sentenced Appellant to eighteen
months’ incarceration, giving no further explanation of his
reasons.

Appellant challenges this sentence as unreasonable, both
substantively (because eighteen months is too much for what
he claims were minor violations) and procedurally (because
 4

the district judge failed to state reasons for the sentence).
Appellant also appeals the decision to revoke his supervised
release because he claims the judge applied a uniform policy
rather than considering his individual circumstances. We
reject that challenge, but we cannot assess whether the
eighteen-month sentence is unreasonable in the absence of
any explanation. Accordingly, we vacate the sentence and
remand the case to the district court.

II

A

Discretion over sentencing lies entirely with district
courts, and we may only review a court’s decision for abuse
of discretion if it is procedurally sound. Gall v. United States,
128 S. Ct. 586, 597–98 (2007); see also United States v.
Bolds, 511 F.3d 568, 578 (6th Cir. 2007) (applying Gall to a
revocation of supervised release). This allocation of
responsibility arises from the Sentencing Act, which
continues, even after United States v. Booker, 543 U.S. 220
(2005), to restrict our jurisdiction over sentencing appeals to
such matters as sentences imposed “in violation of law.” 18
U.S.C. § 3742(a)(1); United States v. Dorcely, 454 F.3d 366,
373 (D.C. Cir. 2006) (interpreting § 3742(a)(1) to allow
review for reasonableness). “Practical considerations also
underlie this legal principle.” Gall, 128 S. Ct. at 597.
“[D]istrict courts have an institutional advantage over
appellate courts in making these sorts of determinations,”
since they see many more sentencing cases. Id. at 598. And a
sentencing judge will generally have greater familiarity “with
the individual case and the individual defendant before him,”
due partly to its direct involvement with testimony. Id. at
597.
 5

Given the broad substantive discretion afforded to district
courts in sentencing, there are concomitant procedural
requirements they must follow. These requirements serve
two primary purposes: they develop an adequate record so
that appellate courts can perform substantive review, and they
guarantee that sentencing judges continue “to consider every
convicted person as an individual,” Gall, 128 S. Ct. at 598.
Both the Sentencing Act and the relevant precedent spell out
what a district judge must do. The judge “should begin all
sentencing proceedings by correctly calculating the applicable
Guidelines range.” Id. at 596. Next, after hearing argument
from the parties, the judge should consider “all of the
§ 3553(a) factors to determine whether they support the
sentence requested by a party,” and “make an individualized
assessment based on the facts presented.” Gall, 128 S. Ct. at
596–97; see also 18 U.S.C. § 3553(a); § 3583(e)(3) (citing
particular § 3553(a) factors as relevant for a decision to
revoke supervised release). If the court decides to impose a
sentence outside the Guidelines, it “must consider the extent
of the deviation and ensure that the justification is sufficiently
compelling to support the degree of the variance.” Gall, 128
S. Ct. at 597. In particular, “a major departure should be
supported by a more significant justification than a minor
one.” Id. Finally, the judge “must adequately explain the
chosen sentence to allow for meaningful appellate review and
to promote the perception of fair sentencing.” Id. The degree
of explanation required depends on the circumstances. At a
minimum, a sentencing judge must “state in open court the
reasons for [his] imposition of the particular sentence.” 18
U.S.C. § 3553(c). If the sentence departs from the relevant
guideline or policy statement, the reasons “must also be stated
with specificity in the written order of judgment and
commitment.” § 3553(c)(2).
 6

Enforcing these procedural requirements is a major
component of abuse of discretion review. See Gall, 128 S.
Ct. at 597. Before even considering the substantive aspects of
a sentence, we “must first ensure that the district court
committed no significant procedural error, such as . . . failing
to adequately explain the chosen sentence.” Id. Although a
district judge need not consider every § 3553(a) factor in
every case, and we generally presume the judge “knew and
applied the law correctly,” United States v. Godines, 433 F.3d
68, 70 (D.C. Cir. 2006) (per curiam), certain minimal
requirements are indispensable. When a district judge fails to
provide a statement of reasons, as § 3553(c) requires, the
sentence is imposed in violation of law. See United States v.
Perkins, 963 F.2d 1523, 1526–27 (D.C. Cir. 1992) (citing 18
U.S.C. § 3742(f)(1)); see also United States v. Williams, 438
F.3d 1272, 1274 (11th Cir. 2006) (per curiam) (without a
statement, “the sentence is imposed in violation of law”
(emphasis in original)). If a sentence falls under § 3553(c)(2),
a written statement must accompany the judgment, and it
must “at least state why [a] cited factor justified departure”
from the guidelines. United States v. Ogbeide, 911 F.2d 793,
795 (D.C. Cir. 1990).

B

Appellant did not object to the district judge’s failure to
explain his reasons either orally or in writing; nor did he
object to the district court’s application of a one-strike policy
for revoking supervised release. We therefore review the
sentence for plain error. See United States v. Dozier, 162
F.3d 120, 125–26 (D.C. Cir. 1998).

The district judge apparently decided to revoke
Appellant’s supervised release because that was his standard
policy. Such a policy seems inconsistent with a district
 7

judge’s responsibility to decide each defendant’s sentence
based on his individual circumstances, considering the factors
the Sentencing Act prescribes as relevant. See 18 U.S.C.
§ 3583(e)(3) (a court may “revoke a term of supervised
release” after considering certain of the factors in § 3553(a));
id. § 3553(a) (listing factors); cf. Gall, 128 S. Ct. at 596–97 (a
district court “may not presume that the Guidelines range is
reasonable”). Nevertheless, this error was not prejudicial,
because the judge also specifically found Appellant had
committed several violations of his release conditions and
explained he thought the defendant incapable of supervision.
The judge further said he doubted he had excused such
serious violations before. Since revocation was certainly
within the contemplation of the Guidelines, this alternative
reasoning was not clearly insufficient. Cf. Rita v. United
States, 127 S. Ct. 2456, 2468 (2007) (“Circumstances may
well make clear that the judge rests his decision upon the
Commission’s own reasoning that the Guidelines sentence is
a proper sentence . . . in the typical case, and that the judge
has found that the case before him is typical.”)

On the other hand, the judge imposed an eighteen-month
sentence without providing any explanation at all. The
government parses the terse statements of the sentencing
judge to find some explanation for Appellant’s sentence. The
government suggests what little the judge said is enough for
this court to review the sentence and contends the complete
absence of a written statement is not prejudicial. However,
the writing requirement is not a mere formality. The
requirements that a sentencing judge provide a specific reason
for a departure and that he commit that reason to writing work
together to ensure a sentence is well-considered. Besides, the
district judge mentioned his conclusion that Appellant cannot
be supervised only in reference to his decision to revoke his
release. The judge gave no explanation at all for choosing a
 8

sentence of eighteen months, twice the Guidelines maximum
for this defendant and greater than the maxima for Class C
violators with much more serious criminal histories. U.S.
SENTENCING GUIDELINES MANUAL § 7B1.4(a) (2007). The
government justifies the eighteen months by citing
Application Note 4, which suggests an upward departure may
be warranted “[w]here the original sentence was the result of
a downward departure.” Id. § 7B1.4 cmt. n.4. But this
argument is post hoc, and the judge said no such thing. Nor
does the government’s argument provide any justification for
the particular “degree of the variance,” Gall, 128 S. Ct. at
597. So far as we can tell, the district judge’s choice of
eighteen months was arbitrary.

In making this observation, we are compelled by the
Sentencing Act, under which the Guidelines are still relevant.
The fact that eighteen months is twice the Guidelines
maximum matters because § 3553(c)(2) requires not just a
statement of reasons, and not just a written statement of
reasons, but a statement explaining the reason for a departure
from a guideline or policy statement “with specificity.” See
Rita, 127 S. Ct. at 2468–69 (noting the run-of-the-mill
statement of reasons would not suffice for a departure); id. at
2483 (Scalia, J., dissenting) (noting § 3553(c)(2) still applies
after Booker); Gall, 128 S. Ct. at 597 (finding it
“uncontroversial” that greater departures need more detailed
explanations).

We join the Second Circuit in holding that the failure to
provide a statement of reasons as required by § 3553(c) is
plain error, “even when the length of the resulting sentence
would otherwise be reasonable.” United States v. Hirliman,
503 F.3d 212, 215 (2d Cir. 2007). The error itself is obvious
enough. And “the required showing of prejudice should be
slightly less exacting [for sentencing] than it is in the context
 9

of trial errors.” United States v. Saro, 24 F.3d 283, 287 (D.C.
Cir. 1994). The absence of a statement of reasons is
prejudicial in itself because it precludes appellate review of
the substantive reasonableness of the sentence, United States
v. Lewis, 424 F.3d 239, 247 (2d Cir. 2005), thus “seriously
affect[ing] the fairness, integrity, or public reputation of
judicial proceedings,” United States v. Williams, 488 F.3d
1004, 1008 (D.C. Cir. 2007). A district judge “must
adequately explain the chosen sentence . . . to promote the
perception of fair sentencing.” Gall, 128 S. Ct. at 597. It is
important not only for the defendant but also for “the public
to learn why the defendant received a particular sentence.”
Lewis, 424 F.3d at 247. Arbitrary decisionmaking
undermines “understanding of, trust in, and respect for the
court and its proceedings.” Id. We assume Appellant’s
sentence of eighteen months was not randomly selected, but
the absence of any explanation makes it seem so. Thus, a
failure to comply with § 3553(c) causes grave institutional
harm, as well as simultaneously depriving the defendant of
the benefit of our review. This failure is therefore plain error.

III

Without a statement of reasons, we are “unable to
determine” whether Appellant’s sentence is reasonable.
Ogbeide, 911 F.2d at 795. Accordingly, we must vacate the
sentence and remand for resentencing in accordance with this
opinion.

So ordered.
 KAVANAUGH, Circuit Judge, dissenting: The defendant
pled guilty to drug trafficking and gun offenses. Because of
his extensive cooperation with the Government, the defendant
gained a significant break at his sentencing, receiving only a
term of time served and supervised release instead of the 87 to
108 months’ imprisonment contemplated by the Sentencing
Guidelines. But the defendant then repeatedly violated the
conditions of his supervised release. After the probation
officer reported the violations to the District Court, the court
held a two-day hearing that lasted more than eight hours. At
the conclusion, the District Court found that the defendant had
violated supervised release. The court revoked supervised
release and sentenced the defendant to 18 months’
imprisonment – below the 60-month statutory maximum
recommended by the probation office but above the
Guidelines range of three to nine months’ imprisonment for
supervised-release violations. The District Court explained
that the defendant had repeatedly violated supervised release
in various ways, was not amenable to supervision, and had
received a break at his initial sentencing.

The majority opinion vacates the District Court’s
sentence; the opinion agrees with the defendant that the
sentence was insufficiently explained under Gall v. United
States, 128 S. Ct. 586, 597 (2007). The majority opinion
criticizes the District Court for providing “no explanation at
all”; for imposing a sentence that seems “arbitrary”; for
making an “obvious” error; for imposing a sentence that
appears “randomly selected”; for causing “grave institutional
harm”; and for “depriving the defendant of the benefit of our
review.” Maj. Op. at 7, 8, 9. I find those characterizations of
the District Court’s decision incorrect and entirely
unwarranted. I would hold that the District Court adequately
explained the 18-month sentence and easily satisfied the
procedural requirements of Gall.
 2
In my judgment, the majority opinion illustrates the
magnetic pull that the Guidelines still occasionally exert over
appellate courts in cases involving sentences outside the
Guidelines range. See Maj. Op. at 7-9. To be sure, the
Supreme Court’s remedial opinion in Booker was open to
multiple readings and could have been interpreted to preserve
this kind of Guidelines-centric appellate review. See Gall,
128 S. Ct. at 604 (Alito, J., dissenting); United States v.
Booker, 543 U.S. 220, 311-12 (2005) (Scalia, J., dissenting in
part) (Remedial opinion “may lead some courts of appeals to
conclude . . . that little has changed.”); United States v. Henry,
472 F.3d 910, 918-22 (D.C. Cir. 2007) (Kavanaugh, J.,
concurring). But the Court’s recent decisions in Rita,
Kimbrough, and Gall, as I read them, do not permit such an
approach; appellate review is for abuse of discretion and is
limited to assessing only whether certain procedural
requirements were met and whether the sentence is
substantively “reasonable.” Recognizing that the governing
Supreme Court decisions are not entirely unambiguous, and
despite my serious concerns about the sentencing disparities
that could well ensue as a result of the current case law, see
Gall, 128 S. Ct. at 604-05 (Alito, J., dissenting), I think our
appellate role in the Booker-Rita-Kimbrough-Gall sentencing
world is more limited than the majority opinion suggests. See
Gall, 128 S. Ct. at 602 (reversing Eighth Circuit decision:
“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.”); Kimbrough v. United States, 128 S.
Ct. 558, 576 (2007) (reversing Fourth Circuit decision:
“Giving due respect to the District Court’s reasoned appraisal,
a reviewing court could not rationally conclude that the 4.5-
year sentence reduction Kimbrough received qualified as an
abuse of discretion.”).
 3
I

The Supreme Court recently set forth the role of appeals
courts in reviewing sentences: We must review a sentence
under an abuse of discretion standard, ensuring both that the
District Court did not commit a “significant procedural error”
and that the sentence is substantively reasonable. Gall v.
United States, 128 S. Ct. 586, 597 (2007). In assessing
procedural compliance, we are to ensure that the District
Court did not: incorrectly calculate the Guidelines range, fail
to consider the § 3553(a) factors, rely on clearly erroneous
facts, treat the Guidelines as mandatory, or fail to explain the
chosen sentence and any deviation from the Guidelines range.
Id.; see also 18 U.S.C. § 3553(c) (“The court, at the time of
sentencing, shall state in open court the reasons for its
imposition of the particular sentence” and must give “the
specific reason for the imposition of a sentence” outside the
Guidelines range.).

A

In this case, the District Court committed no procedural
error, much less “significant procedural error,” under Gall.

The District Court’s hearing on whether to revoke the
defendant’s supervised release lasted more than eight hours.
After listening to testimony and argument, the District Court
found that the defendant had repeatedly violated his
supervised release. The District Court thoroughly detailed the
defendant’s violations, including three instances of the
defendant’s leaving the judicial district without permission,
two instances of the defendant’s failing to follow the
probation officer’s instructions, and the defendant’s repeated
failure to provide “complete and truthful financial
information” to verify his income. Nov. 27 Tr. at 298.
 4
In light of those facts, the court possessed authority under
18 U.S.C. § 3583(e) to revoke the defendant’s supervised
release. See also U.S. SENTENCING GUIDELINES MANUAL
§ 7B1.3(a). The court did so, stating: “I find that [the
defendant] has violated the conditions of supervised release
and his supervised release is revoked.” Nov. 27 Tr. at 296.

The District Court then correctly calculated the
Guidelines range of three to nine months applicable to
ordinary violations of supervised release. See U.S.S.G.
§ 7B1.4. But the court pointed out that it had discretion under
United States v. Booker, 543 U.S. 220 (2005), and later cases
to sentence the defendant up to the statutory maximum of 60
months. See 18 U.S.C. § 3583(e). The court stated that it
would consider a sentence above the Guidelines range and
gave each side an opportunity to make its case for the
appropriate sentence.1

The Assistant U.S. Attorney suggested a sentence of 12
months but said it would defer to the probation office’s
recommendation. The probation officer then stated that the
defendant was not amenable to supervision and was unwilling

1
I refer to the recommended range under § 7B1.4 as a
Guidelines range even though it is technically a policy-statement
range. See U.S.S.G. ch. 7, pt. A, introductory cmts. 1, 3 (“After
considered debate,” the Commission “has chosen to promulgate
policy statements only” – not Guidelines – with respect to
supervised-release revocation to give “greater flexibility to both the
Commission and the courts” and to “provide better opportunities
for evaluation by the courts and the Commission. . . . After an
adequate period of evaluation, the Commission intends to
promulgate revocation guidelines.”). Because I would rule in favor
of the Government in this case, I need not address the question
whether a district court has even broader discretion to depart or
vary from a policy-statement range.
 5
to cooperate with conditions of supervised release. He
expressed particular concern with the defendant’s failure to
verify his income so as to justify what he was spending. The
probation officer argued that the defendant’s string of
violations presented “a serious matter” and ultimately
recommended the statutory maximum sentence of 60 months’
imprisonment, stating that it was the first time in his career he
had recommended the maximum sentence for violations of
supervised release. Nov. 27 Tr. at 302.

The defendant’s counsel argued that under Application
Note 1 to § 7B1.3, revocation is appropriate only for a second
adjudication of this kind of supervised-release violation
(although, in fact, the Application Note does not say that).
Because this was the defendant’s first such adjudication,
defense counsel argued that revocation was inappropriate. He
also stated that the defendant had worked as an informant for
the Government and had a family to support. He further
argued that if the court were to decide to revoke the
defendant’s supervised release, any upward departure or
variance from the three-to-nine-month range would be
unwarranted.

After hearing from the parties, the District Court stated
that the defendant’s initial sentence of no prison time was the
result of a downward departure and that the court could have
sentenced him at that time to 108 months in prison. The court
explained that it had granted the defendant a downward
departure because “he had demonstrated that he was amenable
to supervision, but he’s now demonstrated that he’s not.”
Nov. 27 Tr. at 304-05. The court emphasized that the
defendant “never once ever verified” his income, as required
by the probation officer, and stressed again that the defendant
was “not amenable to supervision.” Id. at 305, 307. The
court also reminded the defendant of its warning at the initial
 6
sentencing that a break in sentencing “comes once in a
lifetime.” Id. at 308. The court then sentenced the defendant
to prison for 18 months, above the general three-to-nine-
month Guidelines range but below the probation office’s
recommendation of the statutory maximum of 60 months.

I would hold that the District Court correctly calculated
the Guidelines range, adequately considered the §3553(a)
factors,2 did not rely on clearly erroneous facts, did not treat
the Guidelines as mandatory, and sufficiently explained the
reasons for the above-Guidelines sentence. There was no
procedural error, much less “significant procedural error,”
under Gall.

B

The majority opinion vacates the sentence because it says
the District Court did not give “any explanation at all” for
imposing an 18-month sentence. Maj. Op. at 7. As the above
recitation shows, however, the record contradicts the majority
opinion’s conclusion.

In support of its holding, the majority opinion contends
that “the district judge mentioned his conclusion that [the
defendant] cannot be supervised only in reference to his
decision to revoke his release.” Id. The opinion mistakenly
divides the sentencing proceeding into a “revocation” phase
and a “sentencing” phase. The opinion cites no authority for
requiring a rigid temporal divide between a court’s decision to
revoke supervised release and its imposition of the ultimate

2
See United States v. Godines, 433 F.3d 68, 70 (D.C. Cir.
2006) (“[W]e begin our review with the presumption that the
district court knew and applied the law correctly.”) (internal
quotation marks omitted).
 7
sentence for the violation of supervised release. The
Guidelines contemplate a single proceeding: “When the court
finds that the defendant violated a condition of supervised
release, it may continue the defendant on supervised release,
with or without extending the term or modifying the
conditions, or revoke supervised release and impose a term of
imprisonment.” U.S.S.G. ch. 7, pt. A, introductory cmt. 2(b).
In this case, the fair implication – indeed, the only implication
– from the hearing transcript is that the District Court’s stated
reasons supported both revocation and the ultimate sentence
of 18 months. By constructing an arbitrary divide between
revocation and sentence, the majority opinion refuses to give
the District Court’s statements their fair import.

Even on its own terms, moreover, the majority opinion’s
reasoning is flawed because the District Court’s opinion
satisfies this rigid divide. After the District Court stated that it
would revoke the defendant’s supervised release, the District
Court heard argument about the length of the sentence. It
then reiterated several reasons that justified not only
revocation, but also the sentence it planned to impose. The
court underscored “the most significant violation”: that the
defendant had “never once ever verified” his income, making
it impossible for the court to verify that “the earnings were
not from drug dealing.” Nov. 27 Tr. at 298, 305. The court
stated twice that the defendant was “not amenable to
supervision.” Id. at 307; see also id. at 304-05. The court
also referred to its downward departure from the
recommended Guidelines range at the defendant’s original
sentencing (from a possible 108-month prison term to
supervised release), and it reminded the defendant of its
warning that such a break would come “once in a lifetime.”
Id. at 308.
 8
To be sure, the District Court gave all of these reasons
before it said “18 months.” But I am not aware of any
requirement that sentencing judges articulate the length of the
sentence before the reasons, as opposed to articulating the
reasons before the length of the sentence.

The majority opinion also claims that the District Court
provided no justification “for the particular degree of the
variance” from the three-to-nine-month Guidelines range.
Maj. Op. at 8 (internal quotation marks omitted). The opinion
emphasizes that the 18-month sentence is “twice the
Guidelines maximum for this defendant and greater than the
maxima for Class C violators with much more serious
criminal histories.” Id. This analysis reflects a
misunderstanding of the relevant Guideline and ignores the
District Court’s reasoning. The defendant here received a
major downward departure at his initial sentencing. The
Guidelines recognize this situation as a special case.
Application Note 4 to Guidelines § 7B1.4 states: “Where the
original sentence was the result of a downward departure
(e.g., as a reward for substantial assistance), . . . an upward
departure may be warranted” when sentencing for a violation
of supervised release. The majority opinion dismisses the
Application Note as a “post hoc” appellate argument because
the District Court did not specifically refer to it during the
sentencing proceedings. Maj. Op. at 8. Yet the majority
opinion cites no authority for the proposition that a district
court must cite the relevant provision of a Guidelines
Application Note each time it imposes a sentence. As we
have said repeatedly, a sentencing court is presumed to know
the law. See United States v. Godines, 433 F.3d 68, 70 (D.C.
Cir. 2006). The District Court here referred to its earlier
downward departure, which is exactly what the Application
Note contemplates a district court should do. See Nov. 27 Tr.
at 304 (“[W]hen I sentenced him in July of ’06 and gave him
 9
that break, I could have sentenced him then to 108
months . . . .”). We must presume that the District Court
knew that the earlier downward departure was relevant to
whether an upward departure or variance from the three-to-
nine-month range was warranted under Guidelines § 7B1.4.

Moreover, in saying the District Court should have
provided more explanation, the majority opinion gives undue
weight to the fact that the 18-month sentence was “twice the
Guidelines maximum.” Maj. Op. at 8 (emphasis added). The
Supreme Court has rejected “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.” Gall, 128 S. Ct. at 595
(emphasis added). Of direct relevance here, the Supreme
Court has explained that “deviations from the Guidelines
range will always appear more extreme – in percentage terms
– when the range itself is low.” Id. Although the absolute
amount of a departure or variance is apparently relevant under
Gall to the extent of explanation required, the percentage
increase from the departure or variance is not. Because a
nine-month additional sentence is not a particularly
significant increase, there is no basis to require the District
Court to give any more detailed explanation than in an
ordinary outside-the-Guidelines case. The majority opinion
does not acknowledge this point.

In sum, the majority opinion’s reasons for vacating the
District Court’s 18-month sentence are unpersuasive in light
of the record in this case.3
3
Although the District Court stated in open court its reasons
for departing from the Guidelines range, it did not issue a written
statement of those reasons. See 18 U.S.C. § 3553(c)(2) (“[I]f the
sentence . . . is outside the [Guidelines] range, . . . the specific
reason for the imposition of a sentence different from that
 10
C

Because I would reject the defendant’s procedural
argument, I also must consider his contention that his 18-
month sentence is substantively unreasonable. That argument
both misreads the Guidelines and, in any event, overstates the
current appellate role in enforcing the Guidelines.

First, even under the Guidelines, an upward departure to
18 months was entirely appropriate in these circumstances.
Remember that the Guidelines Application Note states that
“[w]here the original sentence was the result of a downward
departure (e.g., as a reward for substantial assistance), . . . an
upward departure may be warranted.” U.S.S.G. § 7B1.4 app.
n.4. This case thus plainly falls within the category of
expressly authorized departures.

Second, in any event, the Guidelines are no longer
mandatory. And under the Booker-Rita-Kimbrough-Gall
system, the District Court’s decision to impose a sentence of
18 months (that is, to depart or vary upward by nine months)

described . . . must also be stated with specificity in the written
order of judgment and commitment . . . .”). Because the defendant
failed to raise this issue below, our review is for plain error. See
United States v. Simpson, 430 F.3d 1177, 1183 (D.C. Cir. 2005). A
district court’s failure to memorialize in writing the reasons the
court gave orally cannot constitute plain error: Failing to do so
could not possibly “affect[] the outcome of the district court
proceedings” or “seriously affect[] the fairness, integrity, or public
reputation of judicial proceedings.” Id. at 1183 (internal quotation
marks omitted); see also United States v. Verkhoglyad, 516 F.3d
122, 133, 137 (2d Cir. 2008) (finding “no plain error” and stating
that omitting written statement “in the face of sufficient oral
reasons will rarely rise to the level of plain error”); United States v.
Loggins, 165 Fed. App’x 785, 788-89 (11th Cir. 2006) (same).
 11
is not substantively unreasonable. The defendant – who had
previously pled guilty to serious drug-trafficking and gun
offenses but had not been sentenced to imprisonment – was
not amenable to supervision and had repeatedly violated his
supervised release. Moreover, “both the sentencing judge and
the Sentencing Commission” have “reached the same
conclusion” – that an upward departure or variance above
nine months is warranted in these circumstances. Rita v.
United States, 127 S. Ct. 2456, 2463 (2007). As when a
District Court gives a defendant a within-Guidelines sentence,
this “double determination significantly increases the
likelihood that” departure or variance is reasonable. Id.

The defendant’s argument ignores critical language from
Gall rejecting a presumption of unreasonableness or a
heightened standard of review for non-Guidelines sentences –
whether “just outside” or even “significantly outside the
Guidelines range.” 128 S. Ct. at 591. Abuse-of-discretion
review takes into account “the totality of the circumstances,
including the extent of any variance from the Guidelines
range,” but “must give due deference to the district court’s
decision that the § 3553(a) factors, on a whole, justify the
extent of the variance.” Id. at 597. “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.” Id.

Given the totality of the circumstances in this case, the
18-month sentence is substantively reasonable.

II

By treating the Guidelines range as talismanic for our
appellate review, the defendant’s argument demonstrates a
serious misunderstanding of the impact of Booker,
 12
Kimbrough, Rita, and Gall on the current sentencing regime.
To satisfy the Sixth Amendment, the Supreme Court has said
the Guidelines must be and are advisory. Our substantive
review of district court sentences accordingly must be limited.
Otherwise, the term “advisory” will lose all meaning, and the
Sixth Amendment problem with the Guidelines will persist.
See Kimbrough v. United States, 128 S. Ct. 558, 577 (2007)
(Scalia, J., concurring); United States v. Henry, 472 F.3d 910,
918-22 (D.C. Cir. 2007) (Kavanaugh, J., concurring).

Taken together, Booker, Rita, Kimbrough, and Gall mean
something that courts of appeals can be loath to admit: At
sentencing, different district judges can now do things
differently. One district judge may be more lenient; another
more stringent. One may tend to sentence within the
Guidelines; another may not. One may vary downward from
the crack Guidelines; another may not. This kind of
sentencing-judge-to-sentencing-judge disparity cannot be our
concern as an appellate court, at least so long as the sentence
in a particular case is generally reasonable and the sentencing
court has met its procedural obligations.4 For defendants, this
new world means their sentences will sometimes be shorter
than under the old mandatory Guidelines system and
sometimes longer (as in this case). Sentencing inevitably will
be less predictable. Whether a sentence will be within,
shorter than, or longer than the Guidelines range for any given
defendant will depend largely on one primary factor: which
district judge is assigned to the case.

4
However it came about, the system now is one of advisory
Guidelines where district judges must “explain their sentencing
decisions on the record, with the availability of appellate review
under an abuse-of-discretion standard” – just as Professor Stith and
Judge Cabranes proposed a decade ago as a policy matter. KATE
STITH & JOSÉ A. CABRANES, FEAR OF JUDGING 172 (1998).
 13
To be sure, the sentencing-judge-to-sentencing-judge
disparities that may develop under this Booker-Rita-
Kimbrough-Gall regime are cause for serious concern. See
Gall v. United States, 128 S. Ct. 586, 604-05 (2007) (Alito, J.,
dissenting). But as I understand the state of the case law, that
concern must be addressed by Congress. For example,
Congress could decide to make the Guidelines mandatory
again, with the jury finding key sentencing facts so as to avoid
the Sixth Amendment problem the Supreme Court found in
Booker. In the meantime, I believe we are constrained by
Booker, Rita, Kimbrough, and Gall to exercise very
deferential substantive review of sentencing decisions. Along
the same lines, the Supreme Court’s decisions counsel that
our procedural review not become a backdoor way of
effectively mandating within-Guidelines sentences.

***

On remand, I expect that the District Court will simply
state (actually, re-state) its findings that the defendant
repeatedly violated the conditions of release and is not
amenable to supervised release; explicitly invoke Application
Note 4 to Guidelines § 7B1.4; say the facts warrant revocation
and an upward departure or variance to 18 months; and issue
a written order. Because I believe the District Court has
already provided the explanation that the Supreme Court in
Gall required – and indeed has already provided the
explanation that the majority opinion seems to require – I
respectfully dissent.