United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 1, 2011 Decided June 14, 2011
No. 10-3019
UNITED STATES OF AMERICA,
APPELLEE
v.
EHIGIATOR O. AKHIGBE,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cr-00151-1)
Veronica Renzi Jennings argued the cause for appellant.
With her on the briefs were Lisa H. Schertler and David
Schertler.
Leslie Ann Gerardo, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Ronald C.
Machen Jr., U.S. Attorney, and Elizabeth Trosman, Assistant
U.S. Attorney. Roy W. McLeese III, Assistant U.S. Attorney,
entered an appearance.
Before: GINSBURG, TATEL, and BROWN, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
2
TATEL, Circuit Judge: Appellant, a primary care
physician who served Medicaid patients in the District of
Columbia, appeals his convictions for health care fraud and
for making false statements relating to health care matters, as
well as his 53-month sentence. Finding no merit in appellant’s
assertions of trial errors, we affirm the judgment of
conviction. But because the district court gave an inadequate
explanation for its above-Guidelines sentence and because
this procedural defect amounted to plain error, we vacate the
sentence and remand.
I.
During the time period relevant to this case, the
Amerigroup Corporation, a private insurance company,
served as the Medicaid administrator for the District of
Columbia. Appellant Ehigiator Akhigbe entered an agreement
to join Amerigroup’s network of Medicaid providers as a
primary care physician in December 2001.
To receive payments from Amerigroup for services
provided to Medicaid patients, doctors submit claim forms—
which at the time relevant to this case were called “HCFA
1500” forms or “HCFA” forms—on which they record their
patients’ identifying information, the dates of services,
diagnosis information, and procedure codes specifying the
type and level of service the physician provided (which in
turn dictate the final charges). Although doctors have no
obligation to personally fill out the forms, they must sign
them and certify that the services not only were provided, but
also were medically appropriate and necessary. Once
Amerigroup receives and processes the forms, it sends
providers an explanation of payment and, if appropriate, a
check.
3
During Akhigbe’s participation in Amerigroup’s
network, the company began noticing unusual trends in his
claims, including billings for an abnormally large number of
high-level visits, numerous claims for certain procedures that
primary care physicians rarely perform, and repeated
instances where visits following such procedures were billed
as new diagnoses rather than as uncompensated follow-up
visits. Prompted by these observations, Amerigroup launched
an investigation of Akhigbe’s practice and conducted an
onsite audit in May 2004. Based on the sample of patient files
audited, Amerigroup discovered that Akhigbe had
documentation for only six percent of the services billed.
Several weeks later, the company terminated its provider
agreement with Akhigbe.
The matter was then referred to the FBI. At the
conclusion of the FBI investigation—which involved
surveillance, interviews with several of Akhigbe’s patients
and employees, and the seizure of records from Akhigbe’s
office—the government indicted Akhigbe on one count of
health care fraud in violation of 18 U.S.C. § 1347 and 18
counts of knowingly and willfully making false statements in
connection with the delivery of or payment for health care
services in violation of 18 U.S.C. § 1035. In the health care
fraud charge, the government alleged that over a period of
several years, Akhigbe intentionally defrauded Amerigroup
by submitting claims for visits and surgical procedures that
never took place. The false statement charges related to 18
specific false HCFA claims, all submitted in June 2004. After
dismissing one of the false statement counts, the government
proceeded to trial on the other claims.
At trial, the government supported its allegations with
testimony from patients and employees that numerous visits
and procedures for which Akhigbe had billed Amerigroup
4
either never occurred or were misrepresented, as well as with
evidence that he had created false progress report notes for
patient files to cover up discrepancies. Over Akhigbe’s
objection, the government also introduced documentation of
HCFA claims dating back to December 2002 that Akhigbe
had submitted to Amerigroup. It used this evidence to
demonstrate that Akhigbe had billed for so-called impossible
days—i.e., days where the sum of the claim forms indicated
Akhigbe had worked more than 24 hours. To link Akhigbe to
false HCFA forms, the government relied on testimony by
two former employees who claimed they could identify
Akhigbe’s handwriting on such forms. One of the former
employees also testified that Akhigbe had told him that he did
his own billing, although that employee never actually saw
the doctor complete HCFA forms.
For its part, the defense denied that Akhigbe intentionally
committed fraud or knowingly made false statements, arguing
instead that any billing discrepancies were the result of
negligent oversight. Defense counsel claimed that because
Akhigbe had a busy medical practice, he delegated billing
responsibilities to others who may have recorded false
information. Although Akhigbe never testified, the defense
did call two individuals who said they worked for the doctor.
Both witnesses claimed they never saw Akhigbe fill out
HCFA forms or otherwise involve himself with billing. They
testified that Akhigbe relied on an employee named Ibrahim
Mohammad to carry out such administrative tasks. According
to those witnesses, Mohammad died of cancer in 2007.
Based on its mismanagement defense, Akhigbe’s counsel
asked the district court to provide a “good faith” instruction to
the jury, which would have explained that good faith by
Akhigbe constituted a complete defense to the charged
offenses and that evidence proving only that he made “a
5
mistake in judgment or an error in management” could not
establish fraudulent intent. Although declining to give that
instruction, the district court did instruct the jury that the
government had to prove beyond a reasonable doubt that
Akhigbe defrauded a health care benefit program knowingly
and willfully and that he knowingly made false statements in
connection with such a program.
The jury convicted Akhigbe of the healthcare fraud
charge and all but one of the false statement charges. At the
sentencing hearing, Akhigbe and the government agreed that
the applicable advisory Guidelines range was 33 to 41
months’ imprisonment, and each argued for a within-
Guidelines sentence—albeit at opposite ends of the range.
The district court, however, sentenced Akhigbe to 53 months’
imprisonment—an upward variance of 12 months.
On appeal, Akhgibe urges us to vacate his conviction,
arguing that the district court committed evidentiary errors
and improperly refused to give the good faith instruction he
requested. Akhigbe also contends that we should vacate his
sentence as procedurally unreasonable.
II.
Akhigbe first argues that the district court erred by
admitting evidence of false HCFA claim submissions that
predated the 17 remaining specific false statements from June
2004 charged in the indictment. According to Akhigbe, the
district court should have excluded this evidence under
Federal Rule of Evidence 403 because although the past
claims were relevant to proving health care fraud, such
evidence was cumulative given the government’s ability to
rely exclusively on evidence regarding the specific false
statements. Admitting evidence concerning prior HCFA
submissions, he asserts, risked confusion and prejudice
6
because it could have led the jury to convict Akhigbe for
making false statements based on evidence that he made
similar false statements in the past. In addition, Akhigbe
faults the district court for failing to explain its Rule 403
balancing on the record.
We see no abuse of discretion in the district court’s
admission of evidence relating to false claims submitted
before June 2004. See Henderson v. George Washington
Univ., 449 F.3d 127, 132–33 (D.C. Cir. 2006) (describing the
standard of review for Rule 403 challenges). Moreover,
although the district court never expressly weighed the
prejudicial effect of the evidence against its probative value,
“reversal or remand for failure to make such a balancing on
the record is inappropriate” because “the considerations
germane to balancing probative value versus prejudicial effect
are readily apparent from the record.” United States v.
Manner, 887 F.2d 317, 322 (D.C. Cir. 1989) (internal
quotation marks omitted). As the district court explained in
ruling on Akhigbe’s pretrial motion to exclude, the contested
evidence was “highly probative on the issue of the existence
of a scheme to defraud.” Mem. & Order at 7, United States v.
Akhigbe, No. 1:09-cr-00151-1 (D.D.C. Dec. 2, 2009), ECF
No. 27 (included at J.A. 61). Specifically, the evidence
allowed the government to establish a pattern of false claim
submissions spanning the full period of the charged health
care fraud, as well as to show that Akhigbe had billed for
impossible days. Akhigbe contends that the probative value of
this evidence was greatly diminished because the government
had “evidentiary alternatives.” Old Chief v. United States, 519
U.S. 172, 184 (1997). But the “mere showing of some
alternative means of proof” does not necessarily indicate an
abuse of discretion. Id. at 183 n.7. In any event, evidence
relating to discrete false statements from a single month in
2004 was hardly equivalent in probative value to the evidence
7
Akhigbe sought to exclude. Balanced against its probative
value, the risk that this earlier evidence of false HCFA
submissions confused and prejudiced the jury with respect to
the separate and discrete false statement charges seems
minimal, particularly given that the district court instructed
the jury that it could not consider this evidence for any
purpose other than to decide whether Akhigbe was guilty of
health care fraud. See United States v. Douglas, 482 F.3d 591,
601 (D.C. Cir. 2007) (explaining how jury instructions
concerning the permissible and impermissible uses of
evidence may decrease the risk of prejudice from the
admission of prior bad act evidence).
Reduced to its core, Akhigbe’s argument is that Rule 403
precluded the government from introducing highly probative
direct evidence that he engaged in healthcare fraud over a
several year period because the government also charged
Akhigbe with making specific false statements during one
month within that period. Given the implausibility of that
Rule 403 argument, we have no trouble affirming the district
court’s admission of this evidence even absent express on-the-
record balancing.
Next, Akhigbe contends that the district court improperly
prevented him from introducing testimony by his former
counsel, Jacob Stein, who, apparently to bolster Akhigbe’s
good faith defense, would have testified about his efforts to
clear up whether Akhigbe owed money to Amerigroup after
their contractual relationship ended. Akhigbe claims this
evidentiary ruling violated his Fifth and Sixth Amendment
right to call favorable witnesses. Although we normally
review constitutional questions de novo, see United States v.
Young, 107 F.3d 903, 910 (D.C. Cir. 1997), the
misapplication of established evidentiary rules gives rise to a
constitutional violation only in “rare” cases where “the error
8
deprives a defendant of a fair trial,” United States v. Lathern,
488 F.3d 1043, 1046 (D.C. Cir. 2007). Because Akhigbe has
come nowhere close to showing that the error he asserts rises
to that level, we apply ordinary abuse of discretion review.
See id.
Akhigbe insists there was a nonhearsay purpose for
Stein’s planned testimony about a conversation he had with
an unidentified individual at Amerigroup who allegedly
assured Stein that the letter the company sent Akhigbe
concerning his negative balance was “a mistake.” But the
record demonstrates that Akhigbe actually sought to introduce
this out-of-court statement for the truth of the matter asserted.
See Fed. R. Evid. 801(c) (defining hearsay). Responding to
the government’s objection to Stein’s proposed testimony,
Akhigbe’s counsel pointed out that a government witness
testified about Akhigbe’s outstanding debt to Amerigroup,
leading counsel to ask the district court, “Your Honor, how
does the court intend for me to dispute the evidence as laid
out there now . . . that he still owes it?” Trial Tr. at 78 (Dec.
14, 2009). Stein’s testimony, Akhigbe’s counsel indicated,
was “the only way [he could] get in evidence . . . that
[Akhigbe] did not owe that money.” Id. at 79. Using Stein’s
testimony about what an Amerigroup representative told him
to show that Akhigbe owed no money would have been
classic hearsay not covered by any authorized exception. See
Fed. R. Evid. 802; Muldrow ex rel. Estate of Muldrow v. Re-
Direct, Inc., 493 F.3d 160, 167 (D.C. Cir. 2007).
Akhigbe argues that the proposed testimony was relevant
to establishing his state of mind because it showed that he
acted diligently upon receiving the letter from Amerigroup
and that he reasonably believed the matter was resolved after
Stein’s conversation with the company. Under such a theory,
Akhigbe contends, the testimony would have been relevant
9
regardless of whether he really did owe Amerigroup money
because it would have helped to bolster his good faith
defense. But by assuring the district court that Stein would
refrain from discussing any attorney-client conversations to
avoid opening the door to privileged communications,
Akhigbe ruled out that nonhearsay purpose. Given this self-
imposed limitation, and absent other evidence concerning
what Stein told Akhigbe about his conversation with
Amerigroup, we see no error in the district court’s conclusion
that Akhigbe lacked any relevant nonhearsay use for Stein’s
testimony.
This brings us finally to Akhigbe’s argument that the
district court erred by refusing to give the good faith
instruction he requested. A defendant is entitled to a requested
theory-of-defense instruction if the record contains “sufficient
evidence from which a reasonable jury could find” for the
defendant on his theory. United States v. Glover, 153 F.3d
749, 754 (D.C. Cir. 1998) (internal quotation marks omitted).
Such evidence may be direct or circumstantial. See United
States v. Hurt, 527 F.3d 1347, 1351 (D.C. Cir. 2008)
(concluding that the defendant was entitled to a good faith
instruction even though he had declined to testify because
circumstantial evidence permitted a reasonable jury to find
that he had acted in good faith). In reviewing de novo a
challenge to the district court’s refusal to give a requested
instruction, we “view[] the instructions as a whole,” United
States v. Gambler, 662 F.2d 834, 837 (D.C. Cir. 1981), and
reverse only where the court failed to convey adequately to
the jury “the substance of [a] requested instruction” to which
the defendant was entitled, Hurt, 527 F.3d at 1351.
Here, we have no need to decide whether the district
court should have given the requested good faith instruction
based on the two defense witnesses’ testimony that Akhigbe
10
relied on others to prepare HCFA forms because the court
adequately conveyed the substance of that instruction in its
explanation of the state of mind elements of the charged
offenses. The district court instructed the jury that to convict
Akhigbe of health care fraud, it had to find beyond a
reasonable doubt that he
engaged in the scheme knowingly and willfully, and
that is with the intent to defraud. The term
knowingly means that the act was done voluntarily
and not because of mistake or accident. . . . The term
willfully means that the defendant knew his conduct
was unlawful and intended to do something that the
law forbids. That is to find the defendant acted
willfully you must find that the evidence proved
beyond a reasonable doubt that he acted with a
purpose to disobey or disregard the law.
Trial Tr. at 39 (Dec. 16, 2009) (emphasis added). The court
explained that the false statement charges had the same
knowledge requirement, which the government also had to
establish beyond a reasonable doubt. Id. at 43. These
instructions “substantially covered the same ground” as the
good faith instruction Akhigbe sought, Hurt, 527 F.3d at
1352, because they made clear to the jury that if it believed
Akhigbe’s argument and concluded that he submitted false
claims to Amerigroup due to mere negligence, then it had to
acquit.
Akhigbe nonetheless argues that the instructions were
inadequate because they nowhere “addressed explicitly [his]
defense that he had a good faith but mistaken belief that the
HCFA claims were being submitted accurately by his medical
practice.” Appellant’s Reply Br. 17. But the instruction he
proposed was also fairly general, stating that “[e]vidence
11
which establishes only that a person made a mistake in
judgment or an error in management, or was careless, does
not establish fraudulent intent.” To be sure, the district court’s
instruction, although stressing that the jury was to convict
only if it found intentional wrongdoing as opposed to
mistakes or accidents, never used the phrase “error in
management,” but that provides no reason to believe the jury
might have conflated mismanagement with knowing and
willful misconduct.
For all of these reasons, we affirm Akhigbe’s conviction
and turn to his sentencing challenge.
III.
Akhigbe argues that the district court committed
procedural error by failing to give specific, individualized
reasons—both orally and in writing—for the non-Guidelines
sentence it imposed.
“Given the broad substantive discretion afforded to
district courts in sentencing, there are concomitant procedural
requirements they must follow.” In re Sealed Case, 527 F.3d
188, 191 (D.C. Cir. 2008). A district court begins by
calculating the appropriate Guidelines range, which it treats as
“the starting point and the initial benchmark” for sentencing.
Gall v. United States, 552 U.S. 38, 49 (2007). Then, “after
giving both parties an opportunity to argue for whatever
sentence they deem appropriate,” the court considers all of the
section 3553(a) sentencing factors and undertakes “an
individualized assessment based on the facts presented.” Id. at
49–50. If the court “decides that an outside-Guidelines
sentence is warranted,” it must “consider the extent of the
deviation and ensure that the justification is sufficiently
compelling to support the degree of the variance.” Id. at 50.
Once the district court determines the sentence, section
12
3553(c) requires it to “state in open court the reasons for its
imposition of the particular sentence,” and if the sentence falls
outside the advisory Guidelines range, to provide “the specific
reason” for the departure or variance. 18 U.S.C. § 3553(c)(2).
The court must also articulate in writing and “with
specificity” its reasons for departing or varying from the
advisory Guidelines. Id. “When a district judge fails to
provide a statement of reasons, as [section] 3553(c) requires,
the sentence is imposed in violation of law.” In re Sealed
Case, 527 F.3d at 191.
In sentencing Akhigbe, the district court mentioned three
section 3553(a) factors that it said were significant to its
sentence: the severity of the offense, deterrence, and the need
to protect the public from the defendant and his actions. 18
U.S.C. § 3553(a)(2)(A)–(C). Beginning with severity, the
court remarked:
Even as we speak right now, a raging debate going
on in this country is the matter of healthcare. And
Congress is going to decide whether there should be
a healthcare bill, or there should not be a healthcare
bill. And regardless of what side you fall on, . . . both
sides agree that the system is broken and should be
repaired. And one of the faults of the healthcare
system in this country is the cost. And much of the
cost is generated by fraud in the system. And it is
people like Dr. Akhigbe who have committed fraud
that drives up the cost of the healthcare numbers.
Taxpayers have to pay for this fraud. That’s in
general. Specifically, individual patients have to pay
for this fraud.
Sent’g Tr. at 23 (Mar. 19, 2010). The district court then
described “a couple of things that . . . stood out in [its] mind
13
during this particular trial,” such as the testimony that
Akhigbe submitted claims for office hours allegedly held on
Thanksgiving Day, as well as the testimony of one of
Akhigbe’s female patients who had appeared “shocked,
surprised[,] and angered” when she was asked about treatment
for a cyst on her ovary that never actually took place. Id. at
23–24. For the district court, this woman’s testimony brought
to mind the possibility that “should [she] in the future apply
for medical insurance, . . . she could possibly be denied
insurance because of a pre-existing condition.” Id. at 24.
Turning to the other two section 3553(a) factors, the district
court stated that because “Dr. Akhigbe will no longer be able
to practice medicine . . . any sentence that he gets will be a
deterrent.” Id. “And also,” the court added, “with respect to
protecting the public from Dr. Akhigbe and people like [him],
that will also be addressed when sentence is imposed.” Id.
After reciting the undisputed Guidelines range of 33 to 41
months, the district court stated that it was “convinced that a
sentence outside of the guideline range is appropriate” and
announced a sentence of 53 months’ imprisonment. Id. at 25.
Subsequently, in its written Statement of Reasons—which
remains under seal except to the extent this opinion refers to
information therein, see United States v. Wilson, 605 F.3d
985, 1035 n.7 (D.C. Cir. 2010) (providing the same)—the
district court gave the following explanation:
A) Defrauding the health care system contributes to
the rising cost of health care in this country. In
addition, a sentence above the guidelines will
promote respect for the law and provide just
punishment for the offense. B) 12 months above the
guidelines is reasonable. It will provide adequate
deterrence and protect the public.
14
Ordinarily, we review a district court’s sentence for abuse
of discretion. See Gall, 552 U.S. at 51. The first step of that
review, and the only one at issue here, requires that we ensure
the district court “committed no significant procedural error,”
which includes “failing to adequately explain the chosen
sentence—including an explanation for any deviation from
the Guidelines range.” Id. In this case, however, our review is
for plain error because, as Akhigbe concedes, he failed in the
district court to object to the adequacy of that court’s
reasoning. To establish plain error, Akhigbe must show that
“(1) there is in fact an error to correct; (2) the error is plain;
(3) it affects substantial rights; and (4) it seriously affects the
fairness, integrity, or public reputation of judicial
proceedings.” United States v. Mahdi, 598 F.3d 883, 888
(D.C. Cir. 2010) (internal quotation marks omitted).
Reviewing the sentencing proceedings as a whole,
including the district court’s oral and written statements, we
conclude that the court plainly erred in failing to provide an
adequate explanation for the unsought above-Guidelines
sentence it imposed. Although the district court did recite
sentencing factors that it said informed its decisionmaking,
contrary to section 3553(c) and controlling case law it never
explained why those factors justified Akhigbe’s particular
sentence.
Devoting most of its discussion at sentencing to its views
about the severity of Akhigbe’s offense, the district court
commented generally and somewhat hyperbolically about the
negative consequences of health care fraud, which the court
said generates “much of the cost” in the United States health
care system. Sent’g Tr. at 23. Although these broad
observations about the social costs of health care fraud—
assuming their correctness—are certainly relevant to
sentencing, they would apply equally to any defendant
15
convicted of this offense and thus provide no individualized
reasoning as to why the court believed a sentence 12 months
above the Guidelines range was appropriate for this particular
defendant. True, as the government emphasizes, the district
court did go on to discuss specific evidence from Akhigbe’s
trial, saying that it would “never forget” the testimony that
Akhigbe submitted claims for office visits on Thanksgiving.
Id. The district court also noted the effect Akhigbe’s fraud
had on his patients, as exemplified by the woman who had to
testify that Akhigbe never treated her for an ovarian cyst and
who, the district court surmised, might face impediments to
obtaining health insurance due to Akhigbe’s fraud. But the
district court never explained whether or why this testimony
demonstrated that this defendant’s fraud was more harmful or
egregious than the typical case. Nor did the district court
suggest that it believed the Guidelines range for health care
fraud was too low even in the mine-run case. See Kimbrough
v. United States, 552 U.S. 85, 101–02, 109 (2007) (indicating
that a district court generally may “consider arguments that
‘the Guidelines sentence itself fails properly to reflect
§ 3553(a) considerations’ ” but also suggesting that “closer
[appellate] review may be in order when the sentencing
judge” reaches such a judgment (quoting Rita v. United
States, 551 U.S. 338, 351 (2007))). As a result, we can only
speculate as to why the district court believed the severity of
Akhigbe’s offense merited a 53-month sentence.
The district court’s brief mention of two other section
3553(a) factors sheds no additional light on the sentence. As
to the need to “protect[] the public,” the court said that this
factor would “be addressed when sentence is imposed.”
Sent’g Tr. at 24. But mere “recitation of [a] § 3553(a) factor[]
without application to the defendant being sentenced does not
demonstrate reasoned decisionmaking or provide an adequate
basis for appellate review.” United States v. Carter, 564 F.3d
16
325, 329 (4th Cir. 2009). As to deterrence, the court indicated
that “any sentence that [Akhigbe] gets will be a deterrent”
because he “will no longer be able to practice medicine.”
Sent’g Tr. at 24 (emphasis added). But if in the district court’s
view any sentence would “afford adequate deterrence to
criminal conduct,” 18 U.S.C. § 3553(a)(2)(B), then this factor
could provide no support for sentencing Akhigbe to 53
months’ imprisonment, see id. § 3553(a) (“The court shall
impose a sentence sufficient, but not greater than necessary,
to comply with the purposes set forth in [section 3553(a)(2)].”
(emphasis added)).
Finally, the district court’s written statement of reasons
was even less specific than its oral explanation. The court’s
assertions that the sentence would “promote respect for the
law[,] . . . provide just punishment for the offense[,] . . .
provide adequate deterrence[,] and protect the public” fall
well short of section 3553(c)(2)’s requirement to state the
reasons for giving a non-Guidelines sentence “with
specificity.” And as the government conceded at oral
argument, the district court’s reference to healthcare fraud
“contribut[ing] to the rising cost of health care in this
country” would have applied to any defendant convicted of
health care fraud. See Oral Arg. Tr. at 22:05–22:20, 23:16–
23:25, 25:03–25:12. Although acknowledging the statement’s
deficiencies, the government suggests that what the district
court wrote was good enough when read in conjunction with
its oral explanation. But section 3553(c)(2)’s writing
obligation is no “mere formality.” In re Sealed Case, 527 F.3d
at 192. “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.” Id. Written statements offering only vague
generalities that fail to discuss meaningfully the particular
17
defendant and his particular crime do not serve these
important purposes.
In In re Sealed Case, we found plain procedural error
where the district court imposed an above-Guidelines
sentence “without providing any explanation at all” in open
court and also submitted no written statement of reasons. Id.
at 192–93 (indicating that the error was “obvious enough”).
To be sure, the facts of this case are not quite so extreme, but
we nonetheless believe that the district court’s oral and
written statements are clearly insufficient. We thus conclude
not only that the district court erred procedurally in
sentencing, but also that its error was plain. In reaching this
conclusion, we recognize that district courts necessarily and
appropriately exercise professional judgment in determining
how much reasoning to give when explaining discretionary
sentencing decisions. In many cases, such as where the parties
have presented only “straightforward, conceptually simple
arguments” and the district court concludes a Guidelines
sentence is appropriate, a fairly brief recitation of reasons will
satisfy the court’s procedural obligations. Rita, 551 U.S. at
356–57. Moreover, although a district court must explain its
decision to impose a non-Guidelines sentence with specificity
and “ensure that the justification” for its sentence “is
sufficiently compelling to support the degree of the variance,”
Gall, 552 U.S. at 50, we do not ask the court to do the
impossible and provide detailed reasoning as to why it chose,
for example, to vary upward by 12 months rather than by 11
or 13. But under the circumstances of this case, where the
district court imposed a sentence that varied significantly
from both the advisory Guidelines range and from the
sentences the parties sought, the brief and generalized
explanation the court provided is plainly inadequate to satisfy
section 3553(c)’s requirements.
18
Under In re Sealed Case, Akhigbe has also established
the other elements of plain error review. The district court’s
failure to explain adequately the sentence it imposed is
“prejudicial in itself because it precludes appellate review of
the substantive reasonableness of the sentence, thus seriously
affect[ing] the fairness, integrity, or public reputation of
judicial proceedings.” 527 F.3d at 193 (internal quotation
marks and citations omitted). Furthermore, a satisfactory
statement of reasons is essential “to promote the perception of
fair sentencing” and to allow “the public to learn why the
defendant received a particular sentence.” Id. (internal
quotation marks omitted).
Accordingly, we exercise our discretion to notice this
plain sentencing error, vacate the sentence, and remand for
resentencing.
So ordered.