United States v. Jimenez-Beltre

United States Court of Appeals
For the First Circuit
No. 05-1268

UNITED STATES OF AMERICA,

Appellee,

v.

LENNY JIMÉNEZ-BELTRE,
a/k/a TONY PÉREZ, HÉCTOR CINTRÓN,
HÉCTOR GUZMÁN-RIVERA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor, U.S. District Judge]

Before
Boudin, Chief Judge,
Torruella, Selya, Lynch, Lipez, and Howard,
Circuit Judges.

James B. Krasnoo, by appointment of the court, with whom Law
Offices of James B. Krasnoo was on brief for appellant.
Peter Goldberger, Joshua Dratel, Charles W. Rankin, Rankin &
Sultan, and Carmen D. Hernandez Gil on brief for The National
Association of Criminal Defense Lawyers and the Criminal Justice
Act Board for the United States District Court for the District of
Massachusetts, Amici Curiae.
Judith H. Mizner, Assistant Federal Public Defender,
Massachusetts Federal Defender Office, Amy Baron-Evans, National
Sentencing Resource Counsel, Federal Defender Office, Miriam
Conrad, Federal Public Defender, Districts of Massachusetts, New
Hampshire and Rhode Island, Joseph C. Laws, Federal Public
Defender, District of Puerto Rico, and David Beneman, Federal
Public Defender, District of Maine, on brief for the Federal Public
Defenders for the Districts of Massachusetts, New Hampshire and
Rhode Island, the District of Puerto Rico and the District of
Maine, Amici Curiae.
 Cynthia A. Young for appellee.
Michael J. Sullivan, United States Attorney, and Paul G.
Casey, Assistant United States Attorney on brief for appellee.
Paula D. Silsby, United States Attorney, Margaret McGaughey,
Assistant United States Attorney, H.S. Garcia, United States
Attorney, Nelson Perez-Sosa, Assistant United States Attorney,
Robert Clark Corrente, United States Attorney, Donald C. Lockhart,
Assistant United States Attorney, and Patty Merkamp Stemler, Chief,
Appellate Section, Criminal Division, United States Department of
Justice, on supplemental/en banc brief for appellee.
____________________

OPINION EN BANC

March 9, 2006
 BOUDIN, Chief Judge. A year has now passed since the

Supreme Court's decision in United States v. Booker, 125 S. Ct. 738

(2005), and courts are being asked to review sentences imposed

under the post-Booker advisory guidelines regime. See United

States v. Pho, 433 F.3d 53 (1st Cir. 2006); United States v.

Robinson, 433 F.3d 31 (1st Cir. 2005). We have heard this case en

banc to provide stable guidance in this circuit for the

determination and review of post-Booker sentences.

The facts of the present case are generally not in

dispute. Cambridge, Massachusetts, police arrested Lenny Jimenez-

Beltre on drug trafficking charges in March 2000. He pled guilty

to distributing cocaine and doing so within 1,000 feet of school

property. He was sentenced to two and one-half years of

imprisonment and, on March 19, 2002, released and deported to the

Dominican Republic.

Without the necessary permission from the Attorney

General or Secretary of Homeland Security, 8 U.S.C. § 1326 (2000),

Jimenez-Beltre unlawfully re-entered the United States. On October

1, 2003, he was arrested on drug charges (of which he was later

convicted) by the Fitchburg, Massachusetts, police. Thereafter,

he was indicted under 8 U.S.C. § 1326 by a federal grand jury for

illegal re-entry into the United States. On October 20, 2004, he

pled guilty to the charge.

-3-
 The district court held the sentencing hearing on

February 15, 2005, just over a month after Booker had been handed

down. At sentencing, the district court began, with clarity much

appreciated by us, with an explanation that it would first

calculate the guideline sentence, then determine whether departures

were warranted under the guidelines, and finally determine whether

a non-guideline sentence was warranted by the relevant factors set

forth in 18 U.S.C. § 3553(a) (2000). The court offered this

concise summary:

I'm certainly treating the Guidelines as
advisory, not mandatory, but I feel I need to
start someplace, and that's where I'm going to
start. I do intend to give them substantial
weight, but they don't have controlling
weight; and if there are clearly identified
and persuasive reasons why I should not impose
a Guidelines sentence, I will consider those
and impose a sentence accordingly.

The judge then calculated the guideline sentence. For

Jimenez-Beltre's crime, the base offense level is eight. U.S.S.G.

§ 2L.1.2(a). The court added sixteen levels because Jimenez-Beltre

had "previously [been] deported . . . after . . . a conviction for

a felony that is . . . a drug trafficking offense for which the

sentence imposed exceeded 13 months." Id. § 2L.1.2(b)(1)(A)(i).

Three levels were subtracted for acceptance of responsibility, id.

§ 3E1.1(b), making the adjusted offense level twenty-one.

For criminal history, the pre-sentence report assigned

Jimenez-Beltre five points, placing him in category III. Jimenez-

-4-
Beltre asked the district court to depart on the ground that he did

not have an extensive criminal history and that the Fitchburg

offense had involved a small quantity of drugs. The district court

denied the request for a departure, saying that the amount was

uncertain but the offense had been a felony and the court deemed

the matter to be within the guideline "heartland."

Jimenez-Beltre also argued that the guideline sentence

should not control, saying among other things that "fast-track"

federal courts in the Southwest gave lower sentences in comparable

cases, that he had already served some period in the custody of

state and immigration authorities before being turned over for

federal prosecution, and that re-deportation was in itself

punishment and would protect the public.

The district court, after calculating the guidelines

range and considering the above-described arguments, said that it

recognized that the guidelines were only advisory but saw "no

clearly identified and persuasive reasons to impose a nonguidelines

sentence." The guideline range, for level 21 and criminal history

category III, was 46 to 57 months. The court sentenced Jimenez-

Beltre to 46 months, saying that "a higher sentence is not

necessary to achieve the various goals of sentencing." This appeal

followed, primarily urging that the sentence is unreasonable.

At the threshold, we face the government's position that

a sentence within the guidelines is inherently unreviewable on

-5-
appeal on grounds of "unreasonableness." The argument is based on

the structure of the review provisions of the statute governing

appeals from sentences, 18 U.S.C. § 3742(a), and on the analogy to

the case law governing review of district court decisions in the

pre-Booker era; the case law, it will be recalled, precluded review

of a refusal to depart unless the district court misapprehended its

authority. See United States v. Ruiz, 536 U.S. 622, 627 (2002).

Whatever its logic (a matter on which reasonable people

can differ), the government's position in this court is hopeless.

A majority of Justices said explicitly in Booker that sentences

would be reviewable for reasonableness whether they fell within or

without the guidelines,1 and for us that is the end of the matter.

The government says that this was merely "dicta"; but "considered

dicta . . . of recent vintage" are effectively binding on us.

Rossiter v. Potter, 357 F.3d 26, 31 (1st Cir. 2004) (quoting McCoy

v. MIT, 950 F.2d 13, 19 (1st Cir. 1991)).

Central to the merits of this appeal is the question of

what role the advisory guidelines should play in a post-Booker

sentence. To begin with the conclusion, the guidelines continue in

our view to be an important consideration in sentencing, both in

the district court and on appeal, which should be addressed in the

1
Justice Breyer's remedial decision for five Justices is
unqualified on this point, Booker, 125 S. Ct. at 765, and Justice
Scalia's dissent agrees that this is what is entailed by the
majority position, id. at 792-93.

-6-
first instance by the sentencing judge. We do not find it helpful

to talk about the guidelines as "presumptively" controlling or a

guidelines sentence as "per se reasonable,"2 and believe that the

district judge's adroit one-paragraph summary (quoted above) is a

more useful compass.

Our conclusion is rooted in both parts of the Booker

decision. In holding the mandatory regime unconstitutional, the

flaw discerned by the five-Justice majority was that mandatory

guidelines created mini-crimes requiring jury findings. Booker,

125 S. Ct. at 750-52. Although making the guidelines "presumptive"

or "per se reasonable" does not make them mandatory, it tends in

that direction; and anyway terms like "presumptive" and "per se"

are more ambiguous labels than they at first appear.

At the same time, the guidelines cannot be called just

"another factor" in the statutory list, 18 U.S.C. § 3553(a) (2000),

because they are the only integration of the multiple factors and,

with important exceptions, their calculations were based upon the

actual sentences of many judges, Booker, 125 S. Ct. at 766-67; 28

2
Several circuits have used the presumption language. United
States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005); United
States v. Tobacco, 428 F.3d 1148, 1151 (8th Cir. 2005); United
States v. Williams, 2006 WL 224067, at *1 (6th Cir. Jan. 31, 2006);
United States v. Green, 2006 WL 267217, at *5 (4th Cir., Feb. 6,
2006). The per se label has also been urged, United States v.
Webb, 403 F.3d 373, 385 (6th Cir. 2005) (Kennedy, C.J., concurring
in part and dissenting in part), but has thus far been rejected,
Webb, 403 F.3d at 385 n.9. United States v. Talley, 431 F.3d 784,
786-87 (11th Cir. 2005); United States v. Cunningham, 429 F.3d 673,
676 (7th Cir. 2005).

-7-
U.S.C. § 994(o). The Sentencing Commission is also an expert

agency charged by Congress with the task of promulgating guidelines

and keeping them up to date. 28 U.S.C. § 994(c). In its remedial

opinion, the Supreme Court has stressed the continuing role of the

guidelines in promoting uniformity and fairness. Booker, 125 S.

Ct. at 757-64.

Yet the guidelines are still generalizations that can

point to outcomes that may appear unreasonable to sentencing judges

in particular cases. Some of the guidelines in particular cases

were not reflections of existing practice but were deliberate

deviations or turned tendencies into absolutes. Others have been

affected by directions from Congress. See, e.g., Pho, 433 F.3d at

61-63. Booker's remedial solution makes it possible for courts to

impose non-guideline sentences that override the guidelines,

subject only to the ultimate requirement of reasonableness.

Accordingly, at sentencing, the district court must

continue to "consider the Guidelines 'sentencing range.'" Booker,

125 S. Ct. at 764 (quoting 18 U.S.C. § 3553(a)(4)). In most cases,

this will mean that the district court will have to calculate the

applicable guidelines range including the resolution of any factual

or legal disputes necessary to that calculation--unless they do not

matter--before deciding whether to exercise its new-found

discretion to impose a non-guidelines sentence. Robinson, 433 F.3d

at 35.

-8-
 In sum, we agree with the district court's general

approach, quoted above, and we find very helpful the district

court's sequential determination of the guideline range, including

any proposed departures, followed by the further determination

whether other factors identified by either side warrant an ultimate

sentence above or below the guideline range. To construct a

reasonable sentence starting from scratch in every case would

defeat any chance at rough equality which remains a congressional

objective.

This brings us to Jimenez-Beltre's detailed objections on

appeal, which focus upon the district court's treatment of various

factors cited by Jimenez-Beltre at sentencing as reasons urged for

a sentence below the guideline range. To sum up again at the

outset, our emphasis in reviewing such claims will be on the

provision of a reasoned explanation, a plausible outcome and--where

these criteria are met--some deference to different judgments by

the district judges on the scene.

Whether the sentence falls inside or outside the

applicable guideline range, it is important for us to have the

district court's reasons for its sentence; 18 U.S.C. § 3553(c) so

requires for sentences outside the guidelines range (or within it

if the range is broad) and this is even more important in the more

open-ended post-Booker world. Yet a court's reasoning can often be

-9-
inferred by comparing what was argued by the parties or contained

in the pre-sentence report with what the judge did.

Assuming that the district court correctly calculates the

guidelines range and its reasoning is express or can be discerned,

the remaining question on appellate review is one of reasonableness

which Booker expressly held to be reviewable. Often, there can be

more than one reasonable way of assessing a factor and more than

one reasonable result. Assuming a plausible explanation and a

defensible overall result, sentencing is the responsibility of the

district court.

In this case, Jimenez-Beltre asked the district court for

a below-guidelines sentence on several grounds, four of which are

pressed on appeal. The first is that a below-guidelines sentence

was necessary to avoid the "unwarranted sentencing disparity," 18

U.S.C. § 3553(6), between those districts that have so-called

"fast-track" systems for prosecuting and sentencing illegally re-

entering aliens and other districts, like Massachusetts, that do

not.3

This certainly permits disparities but they are the

result of a congressional choice made for prudential reasons,

3
Under these procedures, meant to cope with heavy case loads
in border courts, Congress has authorized special downward
departures for defendants who waive certain procedural rights in
districts where the Attorney General has authorized "fast-track"
procedures. United States v. Martinez-Flores, 428 F.3d 22, 24 (1st
Cir. 2005).

-10-
implicitly qualifying the general aim of equality. The impact is

probably more modest than the decision of a United States Attorney,

in a district with a heavy case load, to forgo entirely some

prosecutions that would routinely be brought in other districts.

Whether it would even be permissible to give a lower sentence on

the ground sought is itself an open question. Martinez-Flores, 428

at 30 n.3.

In any event, the district court ruled that the defendant

had not furnished a factual basis for assessing the extent of the

disparities or provided a reason why to take them into account. As

with departures, the proponent of a factor that would work in the

proponent's favor has to provide the basis to support it. United

States v. Derbes, 369 F.3d 579, 582 (1st Cir. 2004). In declining

to alter the sentence on this ground, the district court did not

act unreasonably.

Jimenez-Beltre's second argument for a lower sentence was

based on his claim that his prior, predicate drug conviction

involved only two bags of cocaine and was therefore "minor"

compared to larger quantities handled by other alien drug dealers.

The district court did not credit Jimenez-Beltre's (unsworn)

statement as to the amount and concluded--permissibly in our view--

that it was enough to adhere to the guidelines sentence that the

predicate conviction was for felony drug dealing and carried a

sentence of the requisite length.

-11-
 Next, Jimenez-Beltre asked the district court to adjust

the sentence to account for the time that he spent in state custody

and that of the federal Immigration and Customs Enforcement ("ICE")

authorities. The district court quite reasonably disregarded the

time spent in state custody--apparently five weeks; Massachusetts,

a "separate sovereign" (as the district court pointed out), was

holding Jimenez-Beltre in aid of new drug charge, not illegal re-

entry.

As for the time Jimenez-Beltre spent in ICE custody, it

amounted to 30 days, and he was sentenced at the bottom of the

guidelines range whose breadth was 11 months. Jimenez-Beltre does

not claim that he was legally entitled to an automatic credit under

the guidelines. The district court was uncertain whether the 30-

day period was an appropriate basis to adjust the sentence, decided

not to do so and--we conclude--did not act unreasonably.

Next, Jimenez-Beltre says that the district court should

have given a non-guidelines sentence to account for his immediate

detention and likely future deportation once released from prison.

This, said Jimenez-Beltre, made a normal guideline sentence

unnecessary for deterrence or public protection and was a pertinent

factor under 18 U.S.C. § 3553(a)(2). Framed as a generic argument,

this is unpersuasive on its face.

The crime in question--re-entry after deportation--is

ordinarily going to be committed by persons who will be deported

-12-
after their sentences have been served. The guideline sentencing

range was likely predicated on this understanding. And Jimenez-

Beltre, who himself did re-enter after deportation, is hardly in a

good position to argue for a shorter sentence on the ground that

another deportation of him will protect the public adequately

against yet another repetition.

Finally--and independent of the reasonableness of his

sentence--Jimenez-Beltre argues that, under the Sixth Amendment,

the fact and nature of his prior state conviction should have been

proved to a jury beyond a reasonable doubt. The Supreme Court held

to the contrary in United States v. Almendarez-Torres, 523 U.S. 224

(1998), but Jimenez-Beltre contends that Almendarez-Torres has been

"eviscerated" by the Supreme Court's more recent decisions in

Apprendi v. New Jersey, 530 U.S. 466 (2000), Booker, and Shepard v.

United States, 544 U.S. 13 (2005).

Whatever the continuing viability of Almendarez-Torres,

we have previously held that we are bound to follow it until it is

expressly overruled, United States v. Ivery, 427 F.3d 69, 75 (1st

Cir. 2005), and we see no reason to revisit that conclusion here.

As it happens, Jimenez-Beltre admitted his prior conviction which,

under Booker and Blakely v. Washington, 542 U.S. 296 (2004), would

avoid the constitutional issue in this case even if Almendarez-

Torres were to be overturned.

-13-
Affirmed.

Concurring and dissenting opinions follow.

-14-
 TORRUELLA, Circuit Judge (Concurring). Since Booker was

decided, district courts have been forced to navigate murky waters.

I write separately to articulate my reasons for joining the

majority's central holding, for the benefit of district judges who

must interpret and apply it to the difficult task of sentencing

defendants in their courtrooms.

I am in agreement with the majority opinion to the extent

that it establishes a post-Booker sentencing regime wherein the

guidelines enjoy no presumption of reasonableness. I also agree

that, procedurally, district judges should first calculate the

guideline range including any proposed departures, as they did

before Booker was decided.

Further, I agree with the majority opinion to the extent

that it requires the district court to explain the reasoning for

the sentence imposed, whether it falls within the guidelines range4

or outside of it. I do not think the majority's suggestion that a

district court's reasoning can "often be inferred" should be

interpreted as an exception to the rule set forth in 18 U.S.C.

§ 3553(c) that the district court must "state in open court the

reasons for its imposition of the particular sentence." In other

words, the district court's obligation to explain is not excused by

our discretion to discern its reasoning from the record on appeal.

4
Of course, there is no statutory obligation to explain a
sentence within the guidelines range where the applicable range is
less than 24 months. 18 U.S.C. § 3553(c)(1).

-15-
 Finally, I think it is of critical importance that the

majority opinion be understood to reinforce our commitment to the

statutory requirement that, in all cases, district courts must

impose sentences that are "sufficient, but not greater than

necessary" to effectuate the goals of criminal punishment, as

articulated in 18 U.S.C. § 3553(a). In articulating its reasons

for imposing any sentence, the district court must make clear

reference to this central principle.

As the case law develops, the standards we announce today

will evolve. District courts will more substantively contribute to

the development of our jurisprudence and less frequently confront

remand if they comply with our instructions to make sentencing as

transparent a process as possible.

Concurrence follows.

-16-
 HOWARD, Circuit Judge, concurring in part and concurring

in the judgment. The Supreme Court's opinions in Booker left many

questions unanswered. While my views overlap to some extent with

those of the majority, I write separately to emphasize that

sentencing courts are still to accord the guidelines substantial

weight and that sentences outside the guidelines sentencing range

are reasonable only so long as and only to the extent that they can

be said to comport with the Sentencing Reform Act of 1984 (which

remains a legitimate expression of congressional purpose post-

Booker). Moreover, I have come to accept the government's position

that sentences within the guidelines sentencing range are

reasonable, absent a claim of error in calculating the range.

Certainly, I cannot say that these positions are required by the

language of Booker (nor, however, are they inconsistent with that

language). But they are, I believe, likely to yield a federal

sentencing regime that accords with Congress's policy preferences.

I shall explain briefly, organizing my comments around three

propositions that have received less prominent consideration in the

post-Booker cases than I think is warranted.

1. "Reasonableness" within the meaning of Booker is not

common-law reasonableness; it is "reasonableness in light of

Congress's purposes in enacting the Sentencing Reform Act of 1984."

Booker invalidated a means -- guidelines sentences premised on

mandatory judicial factfinding -– by which Congress sought to

-17-
achieve its goals with respect to federal sentencing. But it in no

way called into question the legitimacy of Congress's purposes in

passing the Act. On the contrary, the primary theme of Justice

Breyer's remedial opinion is that Congress's purposes were and are

valid, and that federal judges should strive to apply the Act (and

the regime created by the Act, almost all of which was left intact)

to further those purposes. See 125 S. Ct. at 757-59 & 767. Thus,

it remains crucial for federal judges to sentence (and to review

sentences) with an eye toward what Congress sought to accomplish.

Doing so requires an appreciation of the Act's history and context.

Prior to the Act, federal district court judges had

almost unbounded discretion to sentence within statutory limits --

a discretion that was largely exempted from appellate review. As

a result, federal defendants with similar criminal backgrounds who

engaged in similar unlawful conduct could receive vastly different

sentences. Congress determined that this lack of uniformity --

described in the Act's legislative history as "astounding,"

Comprehensive Crime Control Act of 1984, S. Rep. No. 98-225, at 41,

reprinted in 1984 U.S.C.C.A.N. at 3224 -- was fair to neither

defendants nor the public. The result was the Act, which had as a

"primary" goal the elimination of unwarranted sentencing

disparities. Id. at 52, reprinted in 1984 U.S.C.C.A.N. at 3235;

see also Mistretta v. United States, 488 U.S. 361, 363-67 (1989)

(discussing the Act and its legislative history).

-18-
 The Act sought to accomplish this goal in a number of

ways. It created an expert Sentencing Commission to collect data

and write sentencing guidelines "intended to treat all classes of

offenses committed by all categories of offenders consistently."

S. Rep. No. 98-225, at 51, reprinted in 1984 U.S.C.C.A.N. at 3234.

It identified explicitly the four purposes a sentencing judge

should consider in imposing sentence. See 18 U.S.C. 3553(a)(2)(A)-

(D) (the sentence should reflect the seriousness of the offense,

afford adequate deterrence, protect the public from the defendant,

and provide the defendant with needed vocational training or

medical care). It required the Commission to consider these four

sentencing purposes in fashioning and periodically revising the

guidelines. See S. Rep. 98-225, at 59-60 & 178, reprinted in 1984

U.S.C.C.A.N. at 3242-43 & 3361. It instructed federal judges to

sentence within the guidelines unless an aggravating or mitigating

circumstance existed that was not adequately considered in the

formulation of the guidelines. See id. at 52, reprinted in 1984

U.S.C.C.A.N. at 3235. And it provided the government and defendant

with limited rights to appeal to "assure that the guidelines are

applied properly and [to] provide case law development of the

appropriate reasons for sentencing outside the guidelines." Id. at

151, reprinted in 1984 U.S.C.C.A.N. at 3334.

The guidelines therefore are not only central to the

uniformity that Congress sought to bring about in passing the Act;

-19-
they also are the data-driven and experience-based manifestations

of Congress's considered views on how, in the usual case, to

accomplish the purposes of federal sentencing. Thus, while there

surely is more play in the joints following Booker, it would not

serve the Act's purposes to regard the guidelines as merely one

factor among many that are relevant in arriving at an appropriate

sentence. For the Act's purposes to be served, the guidelines --

which, as matters stand, are the only conceivable centers of

gravity around which some semblance of uniformity in federal

sentencing might be maintained, and which, again, reflect

Congress's considered judgments about the range of appropriate

sentences for federal crimes -- must be accorded substantial

weight. Otherwise, federal sentencing practices are likely to

revert to the free-for-all which marked the pre-guidelines regime.

Whether federal judges believe such a system would be better or

worse than the guidelines-based system is immaterial. What matters

is that such a system would exist only in defiance of the expressed

will of Congress.

2. In terms of Congress's purposes, there is no one

"reasonable" federal sentence in a given criminal case; rather,

there is a range of "reasonable" sentences which always will

include within it the guidelines sentencing range but, post-Booker,

may frequently be broader. That a properly calculated guidelines

sentence always is "reasonable" in terms of Congress's purposes may

-20-
be inferred from the fact that Congress did not give the appellate

courts jurisdiction to review challenges to such a sentence. See

18 U.S.C. § 3742(a), (b); United States v. Ruiz, 536 U.S. 622, 627

(2002) (noting the unanimous view of the appellate courts that §

3742(a) does not permit appellate review of arguments that a

sentence within a properly calculated guidelines sentencing range

was unreasonably high or that the sentencing court abused its

discretion in refusing to depart downward); United States v.

Tucker, 892 F.2d 8, 10 (1st Cir. 1989). The question, then, never

has been whether it is lawful to impose a sentence within the

properly calculated guidelines sentencing range. The answer to

that question always has been "yes." The question, rather, always

has been whether the facts of a particular case also make it lawful

for the sentencing judge to impose a sentence that is outside the

properly calculated guidelines sentencing range. Booker doubtless

makes it easier to answer that question "yes" as well, so long as

the purposes of the Act are not undermined. But Booker did not

fundamentally alter the nature of the questions to be asked.

See 125 S. Ct. at 765-68.

3. Congress created appellate jurisdiction to ensure

that its preferred, more uniform sentencing regime would emerge; it

did not create appellate jurisdiction to allow the government or a

defendant to challenge a district court's discretionary

determination that a case is sufficiently ordinary to warrant a

-21-
sentence within the properly calculated guidelines sentencing

range. Admittedly, in Booker, Justice Scalia reads Justice

Breyer's remedial opinion to authorize appellate challenges to the

reasonableness of sentences imposed within the properly calculated

guidelines sentencing range, and Justice Breyer said nothing in

response to disabuse him of the notion. Compare 125 S. Ct. at 793-

94 (Scalia, J., dissenting in part) with 125 S. Ct. at 766 (Breyer,

J., delivering the opinion of the Court in part). I shall leave

aside the vexing question how, notwithstanding Justice Breyer's

silence, excision of those portions of the Act which made the

guidelines mandatory (which is all that the Booker remedial opinion

purports to accomplish) reasonably might be thought to alter the

settled meaning of 18 U.S.C. § 3742(a) and (b) and to confer

appellate jurisdiction where it did not exist before. See supra at

6; see also United States v. Cooper, ---F.3d---, 2006 WL 330324 at

*7-12 (3d Cir. Feb. 14, 2006) (Aldisert, J., concurring and

dissenting) (elaborating with admirable thoroughness the argument

that Booker should not be read to resolve whether the courts of

appeals have jurisdiction to entertain challenges to sentences

within the properly calculated guidelines sentencing range).

Although I think the government has the better of the

jurisdictional argument, and although I would hold that there still

is no right to appeal discretionary decisions to sentence within

the properly calculated guidelines sentencing range, the issue is

-22-
better left to the Supreme Court. In the interim, it does not much

matter whether we reject such appeals on jurisdictional grounds or

on the merits. Because a sentence within the properly calculated

guidelines sentencing range is per se reasonable when

"reasonableness" is assessed, not "in the air, so to speak" cf.

Palsgraf v. Long Island R. Co., 248 N.Y. 339, 341 (N.Y. 1928)

(Cardozo, C.J.) (citation and internal quotes omitted), but in

terms of Congress's purposes, the result is the same either way.

Given the much-publicized dissatisfaction with the

guidelines in a number of quarters, it is not surprising that the

federal courts have tended to answer the questions left open by

Booker in such a way as to return to federal judges some of the

powers over federal sentencing that Congress appropriated to itself

(or shifted to the executive branch) when it passed the Act. There

may be reason to hope that the post-Booker regime will be viewed

not only as tolerable, but even as an improvement over guidelines

sentencing. But if post-Booker sentencing practices come to be

perceived as resembling too much the non-uniform sentencing that

gave rise to the guidelines, Congress may well respond with

legislation that circumscribes judicial power and discretion even

more tightly. And there is for certain good reason to doubt that

criminal justice interests would be better served by such a system.

Dissent follows.

-23-
 LIPEZ, Circuit Judge, dissenting. I agree with some of

the majority's description of the role that the advisory guidelines

should play in the determination of post-Booker sentences, and its

rejection of the reasoning of Judge Howard's concurring opinion.

The guidelines remain an important consideration in sentencing.

The guidelines should not be presumptively controlling, and a

guidelines sentence should not be deemed per se reasonable. The

guidelines are generalizations that can be unreasonable in

particular cases.

But the district court's approach to the guidelines in

this case was inconsistent with these principles. I do not say

this to be critical of the district court. It was operating in an

uncertain environment. Its discussion of the guidelines was

careful and thoughtful. However, this statement of the district

court, quoted by the majority, is the problem:

I am certainly treating the guidelines as advisory, not
mandatory, but I feel I need to start someplace and
that's where I am going to start. I do intend to give
them substantial weight, but they don't have controlling
weight; and if there are clearly identified and
persuasive reasons why I should not impose a guidelines
sentence, I will consider those and impose a sentence
accordingly.

The majority characterizes this paragraph as "adroit" and a "useful

compass." I disagree. There is a significant difference between

treating the guidelines as important and giving them substantial

weight. There is scant difference between treating a guidelines

sentence as presumptively controlling and stating that the court

-24-
will depart from that sentence only for "clearly identified and

persuasive reasons."5 Here, the judge gave the guidelines a weight

and a centrality that uncomfortably approximate the mandatory

guidelines system that the Supreme Court found unconstitutional in

Booker. To steer a sensible course between the Supreme Court's

rejection on constitutional grounds of mandatory guidelines and

Congress's continuing reliance on the guidelines to achieve

uniformity in sentencing, I think that a different approach to

sentencing post-Booker is required.

I.

There is useful guidance for this approach in the

Sentencing Reform Act ("SRA") itself, and particularly 18 U.S.C. §

3553, which describes the procedures that courts must follow in

sentencing. Although that statute now identifies the guidelines

sentencing range as only one of the sentencing factors to

consider,6 I believe that the district court should first calculate

5
The district court's decision to give substantial weight to
the guidelines and its requirement that a party demonstrate
"clearly identified and persuasive reasons" before the court will
consider and impose a non-guidelines sentence tracks the language
used by the district court in United States v. Wilson, 350 F. Supp.
2d 910, 912 (D. Utah 2005). In that case, which was decided just
one day after Booker, the district court determined that "in all
future sentencings, the court will give heavy weight to the
Guidelines in determining an appropriate sentence. In the exercise
of its discretion, the court will only depart from those Guidelines
in unusual cases for clearly identified and persuasive reasons."
Id. For the reasons discussed below, I reject this approach.
6
Section 3553(b)(1) of the SRA made the guidelines mandatory,
stating that a sentencing court "shall impose a sentence of the

-25-
the guidelines sentence range ("GSR"), including any departures, as

it did pre-Booker.7 See 18 U.S.C. § 3553(a)(4)(A) ("The court, in

determining the particular sentence to be imposed, shall consider

. . . the kinds of sentence and the sentencing range established

for . . . the applicable category of offense committed by the

applicable category of defendant as set forth in the guidelines .

. . ."). This first step is sensible. The guidelines are the only

sentencing factor that yield a measure of time. That fact alone

establishes their continuing importance. Hence, I find meaningless

the debate over whether the guidelines post-Booker are more

important than the other sentencing factors in section 3553(a) or

whether they are simply as important and no more. That comparison

involves incommensurable factors because the guidelines suggest a

temporal outcome whose appropriateness must then be assessed in

kind, and within the range, referred to in [the guidelines]"
(except in circumstances justifying a departure). Finding this
provision "incompatible with [its] constitutional holding," the
Supreme Court severed and excised it. United States v. Booker, 543
U.S. 220, 245 (2000).
7
In this case, the district court (after addressing the
defendant's legal and factual objections to the Presentence Report)
properly began its sentencing determination by calculating the
guidelines sentencing range. This approach was consistent with
that prescribed by the majority of circuits that have addressed
this issue. See, e.g., United States v. Kristl, ---F.3d---, 2006
WL 367848, at *4 (10th Cir. Feb. 17, 2006); United States v.
McBride, 434 F.3d 470, 476 (6th Cir. 2006); United States v.
Hughes, 401 F.3d 540, 546 (4th Cir. 2005); United States v. Mares,
402 F.3d 511, 519 (5th Cir. 2005); United States v. Dean, 414 F.3d
725, 727 (7th Cir. 2005); United States v. Mashek, 406 F.3d 1012,
1017 n.7 (8th Cir. 2005); United States v. Shelton, 400 F.3d 1325,
1332 n.9 (11th Cir. 2005).

-26-
light of the case-specific factors identified in section 3553(a).

Indeed, with their focus on the bottom line, the prosecution and

defense counsel will inevitably address their arguments to the

appropriateness or inappropriateness of a guidelines sentence.

The statute then tells the district court how it must

evaluate these arguments. The court should determine whether a

sentence within the GSR is "sufficient, but not greater than

necessary,8 to comply with the purposes set forth in [section

3553(a)(2)],"9 based on the "nature and circumstances of the

8
The so-called "parsimony" provision, which requires that
sentences be only as long as necessary to serve the purposes listed
in section 3553(a)(2), has received scant attention from courts.
Commentators note that this provision, which was originally part of
the House sentencing reform bill and was later added to the Senate
resolution and adopted in committee, "is not just another 'factor'
to be considered along with others set forth in Section 3553(a) .
. . – it sets an independent limit on the sentence a court may
impose." David L. Mccolgin & Brett G. Sweitzer, Grid & Bear It, 29
Champion 50, 50 (2005); see also United States v. Foreman, ---F.3d-
--, 2006 WL 287365, at *6 n.1 (6th Cir. Feb. 8, 2006) ("[A]
district court's mandate is to impose 'a sentence sufficient, but
not greater than necessary, to comply with the purposes' of section
3553(a)(2).") (quoting 18 U.S.C. § 3553(a)); Richard S. Frase,
Punishment Purposes, 58 Stan. L. Rev. 67, 83 (2005) (stating that
"the structure of section 3553(a)," which lists the parsimony
principle first, suggests that this principle "set[s] overall
limits on the crime-control and other purposes which follow").
9
These purposes are:

(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

-27-
offense and the history and characteristics of the defendant," "any

pertinent policy statement . . . issued by the Sentencing

Commission," "the need to avoid unwarranted sentence disparities

among defendants with similar records who have been found guilty of

similar conduct," and "the need to provide restitution to any

victims of the offense." 18 U.S.C. § 3553(a). Importantly, there

is no assumption here that a guidelines sentence complies with the

purposes of the sentencing statute. Instead, that compliance must

be tested by consideration of the multiple factors set forth in the

sentencing statute, with particular attention to the factors

identified by the parties in their arguments.

If, after conducting this multi-factor analysis, the

court concludes that a sentence within the GSR does not comply with

the purposes set forth in section 3553(a)(2), the court should

impose a non-guidelines sentence. See Booker, 543 U.S. at 245-46

(stating that the SRA, as amended by Booker, "requires a sentencing

court to consider Guidelines ranges, see 18 U.S.C.A. § 3553(a)(4)

(Supp. 2004), but it permits the court to tailor the sentence in

light of other statutory concerns as well, see § 3553(a)(Supp.

2004)"). To be sure, because a court begins its analysis with a

calculation of the guidelines sentence, a court that chooses a non-

(D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional
treatment in the most effective manner

18 U.S.C. § 3553(a)(2).

-28-
guidelines sentence will have the burden of explaining its choice.

But this explanatory burden is not a function of the special weight

or status of the guidelines. It is a function of the sentencing

statute itself, which requires that any sentence that the court

imposes, within or without the guidelines, comply with the purposes

set forth in the statute.

Before Booker, the mandatory guidelines overwhelmed the

other sentencing factors set forth in section 3553. There was

scant need to look beyond the guidelines system (including its

departure standards) to justify a sentence. That is no longer

true. All of the sentencing factors in section 3553 are now fully

in play. As a matter of statutory construction, there is nothing

in the language of section 3553(a) that justifies attributing to

the guidelines "substantial weight" in the sentencing decision.

There are some who contend that the advisory guidelines

largely account for all of the relevant sentencing factors. See,

e.g., Shelton, 400 F.3d at 1332 n.9 ("The factors the Sentencing

Commission was required to use in developing the Guidelines are a

virtual mirror image of the factors sentencing courts are required

to consider under Booker and § 3553(a)."); see also Prepared

Testimony of Judge Ricardo H. Hinojosa, Chair, United States

Sentencing Commission Before the Subcommittee on Crime, Terrorism,

and Homeland Security, Committee on the Judiciary, United States

House of Representatives (Feb. 10, 2005), available at

-29-
http://www.ussc.gov/Blakely/bookertestimony.pdf (last visited Feb.

25, 2006) (same). That being so, the argument goes, there must

still be primary reliance on the guidelines in sentencing.

This argument is too facile. As the majority points

out, the guidelines are inescapably generalizations. They say

little about "the history and characteristics of the defendant."

Indeed, the guidelines prohibit consideration of certain

individualized factors, namely, lack of guidance as a youth and

similar circumstances; drug or alcohol dependence or abuse and

gambling addiction; personal financial difficulties and economic

pressures upon a trade or business; post-sentencing rehabilitative

efforts; diminished capacity where the offense involved violence or

serious threat of violence, or where diminished capacity was caused

by voluntary use of drugs or other intoxicants; and aberrant

behavior involving, among other things, a serious drug trafficking

offense. U.S.S.G. §§ 5K2.0(d)(1), 5K2.13, 5K2.20(c). The

guidelines also discourage - except in "exceptional cases" -

consideration of other individualized factors, including: age, §

5H1.1; education and vocational skills, § 5H1.2; mental and

emotional conditions, § 5H1.3; physical condition, § 5H1.4;

employment record, § 5H1.5; family ties and responsibilities, §

5H1.6; and civil and military contributions, §5H1.11. These

prohibited and discouraged factors are in tension with the

holistic, personalized view of the defendant required by section

-30-
3553(a)'s other factors. See, e.g., Stephen G. Kalar et al., A

Booker Advisory: Into the Breyer Patch, 29 Champion 8, 15 (2005)

(stating that "prohibited or discouraged departures" are "tailor-

made for the broader equitable analysis under § 3553(a)"); see also

Foreman, 2006 WL 287365, at *5 ("A sentence within the Guidelines

carries with it no implication that the district court considered

the 3553(a) factors if it is not clear from the record, because, of

course, under the Guidelines as mandatory, a district court was not

required to consider the section 3553(a) factors.").

The very mention of these prohibited and discouraged

factors dismays some critics of sentencing who see in them the

potential for unseemly consideration of a defendant's plight and a

return to the sentencing abuses and disparities that inspired the

guidelines. That potential is surely there. We must be concerned

about it. But it is also true that the old system operated in the

complete absence of guidelines. We now have an advisory guidelines

system whose consequences are unforeseeable. Despite the dire

predictions of some, there is also the possibility that this new

system will permit the individualized sentencing absent under the

mandatory guidelines system without repeating the disparities so

troubling to Congress. As the remedial majority in Booker states,

the "features of the remaining system, while not the system

Congress enacted, nonetheless continue to move sentencing in

Congress's preferred direction, helping to avoid excessive

-31-
sentencing disparities while maintaining flexibility sufficient to

individualize sentences where necessary." 543 U.S. at 264-65.

Section 3553(a)'s other factors are not necessarily antithetical to

Congress's "preferred direction," and may be part and parcel of it

– "maintaining flexibility sufficient to individualize sentences

where necessary." Id.

II.

I have focused on the procedural role of the advisory

guidelines post-Booker because I believe that focus captures the

importance of the guidelines in the most balanced way. I also

agree with the Second Circuit that this focus on procedure is "more

consonant with the day-to-day role of district judges in imposing

sentences and the episodic role of appellate judges in reviewing

sentences . . . to permit the concept of 'consideration' [as

required by Booker] in the context of the applicable guidelines

range to evolve as district judges faithfully perform their

statutory duties." United States v. Crosby, 397 F.3d 103, 113 (2nd

Cir. 2005).

The key is the faithful performance of the statutory

duties set forth in section 3553. That faithful performance will

require more than the formulaic invocation of the words of the

statute by sentencing judges. There will have to be explanations

that are responsive to the sentencing issues raised by the parties

and that relate the court's decisions on those issues to the

-32-
multiple purposes and factors of section 3553. See United States

v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005) ("[W]e have to

satisfy ourselves, before we can conclude that the judge did not

abuse his discretion, that he exercised his discretion, that is,

that he considered the factors relevant to that exercise."). The

burden of explanation for the district courts is inescapably

greater than it was before because of the more open-ended nature of

sentencing post-Booker.10 Although the guidelines were legally

complex, and the fact-finding required by the guidelines could be

burdensome at times, the bottom-line judgments were largely

mechanical once the offense level and the criminal history numbers

were calculated. All of that guidelines work is still there

because the guidelines are still there. But now the bottom-line

judgments are not mechanical. They must now be more nuanced

judgments that reflect both the guidelines analysis and the larger

context of the sentencing factors and purposes identified in

section 3553.

Given this daunting task, there is value in procedural

regularity that begins with the guidelines analysis and then, with

10
As the Federal Public Defenders point out in their amicus
curiae brief, we required, even before Booker, that a court's
explanation of its sentence "sufficiently show[] a thoughtful
exercise of the court's sentencing responsibility and a degree of
care and individualized attention appropriate to the solemnity of
the sentencing task." United States v. Vazquez-Molina, 389 F.3d
54, 59 (1st Cir. 2004), cert. granted, judgment vacated, and case
remanded on other grounds, 125 S. Ct. 1713 (2005).

-33-
particular attention to the sentencing issues raised by the

parties, moves on to the additional analysis required by section

3553. While the district court's reasoning can, as the majority

states, "often be inferred by comparing what was argued by the

parties or contained in the presentence report with what the judge

did," our ability to infer from the record should be no substitute

for the trial court's obligation to explain. That obligation is

particularly important in these early days post-Booker, when the

district courts must view and apply the guidelines in a new way.

The guidelines are no longer self-justifying. They are not the

safe harbor they once were. However, if district courts assume

that the guidelines sentence complies with the sentencing statute,

and focus only on the compliance of the non-guidelines sentence

urged by the defendant, the district courts will effectively give

the guidelines a controlling weight and a presumptive validity that

-34-
is difficult to defend under the constitutional ruling in Booker.11

That is precisely what happened in this case.

III.

The district court began its sentencing analysis with a

calculation of the guidelines sentencing range and the rejection of

any guidelines departures. As I have indicated, I think that

guidelines calculation is a sensible beginning point. But the

district court then made a mistake because of its view that a

guidelines sentence should be accorded substantial weight and that

any deviation from the guidelines must be based on clear and

11
Many commentators argue that by giving the guidelines
controlling weight, and abdicating the responsibility to take
account of the other section 3553(a) factors, courts "effectively
mak[e] the guidelines as binding as they were before Booker,"
thereby violating Booker's constitutional command. Mccolgin &
Sweitzer, supra, at 53; see also Frank O. Bowman, III, Beyond Band-
Aids: A Proposal for Reconfiguring Federal Sentencing After Booker,
2005 U. Chi. Legal F. 149, 183 (2005). Justice Stevens made a
similar point in his dissent in Booker, stating that the
"sentencing range is now nothing more than a suggestion that may or
may not be persuasive to a judge when weighed against the numerous
other considerations listed in [section 3553(a)]." 243 U.S. at 300
(Stevens, J., dissenting in part). Justice Scalia wrote to the
same effect, stating that "logic compels the conclusion that the
sentencing judge, after considering the recited factors (including
the Guidelines), has full discretion, as full as what he possessed
before the Act was passed, to sentence anywhere within the
statutory range. If the majority thought otherwise . . . its
opinion would surely say so." Id. at 305 (Scalia, J., dissenting
in part). To be sure, these are dissents to the remedial decision
in Booker, which does not elaborate on its statement that the
guidelines must be "consider[ed]" post-Booker. But given the close
divisions on the Court about the post-Booker role of the
guidelines, and given the new composition of the Court, it would be
foolhardy to ignore the constitutional dangers of adopting an
approach to the guidelines post-Booker that approximates, in a new
guise, the mandatory guidelines.

-35-
persuasive reasons. Having completed the guidelines analysis, the

court said to defense counsel: "All right. Let's turn then to a

– whether a nonguideline sentence will be appropriate under –

taking into account the factors set forth at [section 3553(a)]."

This question assumed that a sentence within the calculated

guidelines range complied with the multi-purpose, multi-factor

requirements of section 3553(a). The court stated that it would

only subject any non-guidelines sentence urged by defense counsel

to the analysis required by the sentencing statute.

Although defense counsel, wittingly or unwittingly, tried

to shift the focus, arguing at length that a guidelines sentence

would not comply with the requirements of section 3553(a), and a

sentence below the guidelines would, the district court did not

shift its focus. After hearing the government's predictable

argument for a guidelines sentence – "the guidelines in this

particular case take into account all of the considerations and all

of the goals set forth in section 3553(a)" – the district court

stated its conclusion:

-36-
 So, for those reasons,12 I'm not inclined to impose a
nonguideline sentence in this case. I have the authority
to do so, and I have considered the various factors set
forth in [section 3553(a)], and have listened to the
eloquent argument of [defense counsel], but I think under
the circumstances I'm going to impose a sentence that is
within the sentencing guidelines even though they are
part advisory and not mandatory.

After announcing its specific sentence, which included

imprisonment for a term of 46 months (a sentence at the bottom of

the guidelines range), the court stated that "a higher sentence is

not necessary to achieve the various goals of sentencing." It then

added: "For the reasons previously indicated, I see no basis for

a departure from the guidelines within the guidelines framework and

no clearly identified and persuasive reasons to impose a non-

guidelines sentence."

In the end, the court applied the approach to the

guidelines that it announced at the beginning of the sentencing

hearing. Given the substantial weight that it gave to the

appropriateness of a guidelines sentence, it required clearly

identified and persuasive reasons to impose a non-guidelines

sentence. Finding none, and having therefore concluded that a non-

12
Before stating its conclusion, the district court carefully
explained why defense counsel's arguments about the country's
policy toward illegal immigration, the disparities generated by
fast-track sentencing, the poverty and difficult family
circumstances of the defendant, and the eventual deportation of the
defendant, did not justify a non-guidelines sentence. This careful
explanation was characteristic of the district court's work
throughout the proceedings. My objection to the district court's
work relates only to its erroneous approach to the guidelines.

-37-
guidelines sentence did not comply with the purposes and factors of

the sentencing statute, it imposed a guidelines sentence whose

compliance with the sentencing statute was assumed.

Does it matter that the district court's negative finding

that a non-guidelines sentence did not comply with the sentencing

statute might imply a positive finding that a guidelines sentence

did comply with the statute? Does it matter that the specific

sentence that the district court imposed here might seem

reasonable?13 In my view, it does not.

Word choices matter because they reflect mental

processes, and mental processes matter because they organize

information for the decision-maker. Here, in explicit terms, the

district court organized all of the information it received from

the parties around the wrong proposition – could a non-guidelines

sentence be justified? The court never questioned the assumption

13
I must also acknowledge my uneasiness with the majority's
suggestion that "a plausible outcome" translates into a reasonable
sentence. I would prefer that we not prematurely offer glosses on
the content of "reasonableness." We should give content to the
concept of reasonableness through our review of specific sentences,
especially given the increased importance of appellate review post-
Booker. See Foreman, 2006 WL 287365, at *5 ("Under the mandatory
Guideline system, appellate review was not integral to assuring
uniformity. Now, with the advisory Guidelines and more sentencing
variables, appellate review is all the more important in assuring
uniformity and reducing sentencing disparities across the board.").
I am concerned that the majority's language needlessly dilutes an
already deferential standard of review. See United States v. Pho,
433 F.3d 53, 61 (1st Cir. 2006) (stating that the abuse of
discretion standard, and by extension, the reasonableness standard,
"contemplates substantial deference to the judgment calls of a nisi
prius court").

-38-
that the guidelines sentence complied with the statute. In the

future, when district courts have adjusted to the new way of

thinking about the guidelines required by Booker, there may be some

justification for greater tolerance of word choices and implied

findings. But not yet.

Moreover, there is not one reasonable sentence.

Reasonableness covers a wide span of possibilities, including

possibilities outside the guidelines. The district court gave

insufficient consideration to those possibilities because of its

assumption that a guidelines sentence complied with the sentencing

statute. That assumption was a legal error, and "errors of law

render a sentence per se unreasonable." Pho, 433 F.3d at 60-61.

Resentencing is therefore required. I respectfully dissent.

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