United States v. Simmons

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0403p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 07-3449
v.
,
>
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Defendant-Appellant. -
CURTIS A. SIMMONS,
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Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 06-00051—George C. Smith, District Judge.
Argued: December 3, 2008
Decided and Filed: November 23, 2009
*
Before: BOGGS and CLAY, Circuit Judges; BERTELSMAN, District Judge.

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COUNSEL
ARGUED: Steven S. Nolder, FEDERAL PUBLIC DEFENDER’S OFFICE, Columbus,
Ohio, for Appellant. Benjamin C. Glassman, ASSISTANT UNITED STATES
ATTORNEY, Cincinnati, Ohio, for Appellee. ON BRIEF: Steven S. Nolder,
FEDERAL PUBLIC DEFENDER’S OFFICE, Columbus, Ohio, for Appellant. Kevin
Winters Kelley, ASSISTANT UNITED STATES ATTORNEY, Columbus, Ohio, for
Appellee.
BOGGS, J., delivered the opinion of the court, in which BERTELSMAN, D. J.,
joined. CLAY, J. (pp. 25-76), delivered a separate dissenting opinion.

*
The Honorable William O. Bertelsman, United States District Judge for the Eastern District of
Kentucky, sitting by designation.

1
No. 07-3449 United States v. Simmons Page 2

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OPINION
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BOGGS, Circuit Judge. On three separate occasions within an 18-month period,
Simmons was arrested in possession of both crack cocaine and a firearm. He pled guilty
to one count of possession of more than five grams of crack cocaine with intent to
distribute and one count of being a previously convicted felon in possession of a firearm.
The district court sentenced Simmons to 116 months of imprisonment and three years
of supervised release, which is within the range supplied by the advisory Sentencing
Guidelines. In this appeal, Simmons contends his sentence was procedurally and
substantively unreasonable. While we hold that the district court’s sentencing was
adequate, the Guidelines have since been revised to lower the range for certain crack
offenses and Simmons may be eligible for a sentencing reduction. Therefore we affirm
and remand.

I

A federal grand jury indicted Simmons on six separate counts of firearms and
narcotics offenses arising out of three separate arrests. The first arrest occurred on
December 30, 2004. When officers approached his vehicle pursuant to a traffic stop,
Simmons left the car, dropping a loaded handgun as he fled on foot. After arresting
him, the police uncovered 3.5 grams of crack in his car. The next arrest took place
roughly a year later. On February 19, 2006, police found Simmons unconscious behind
the wheel of a car at an intersection. He did not have his driver’s license, and he had 5.3
grams of crack in his possession. An inventory search of his car turned up yet another
loaded handgun. Simmons was prohibited from possessing a firearm because he had
previously been convicted of a felony.

On February 23, 2006, a federal grand jury returned an indictment charging
Simmons with two counts of being a previously convicted felon in possession of a
firearm, one count of possession of crack cocaine with the intent to distribute, and one
No. 07-3449 United States v. Simmons Page 3

count of possession of more than five grams of crack cocaine with intent to distribute.
See 18 U.S.C. § 922(g)(1); 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). An arrest warrant was
issued, but Simmons was not ultimately detained until May 12, 2006, in the course of
still another traffic stop. On this occasion, officers found 2.9 grams of crack cocaine in
his possession and retrieved a loaded 9-mm firearm from the backseat of his car. At this
point, Simmons was arrested and taken into custody pursuant to the February indictment.
On June 29, 2006, a federal grand jury returned a superseding indictment charging
Simmons with two additional offenses in connection with his latest arrest. In total,
Simmons was charged with three counts of being a convicted felon in possession of a
firearm, two counts of possession with intent to distribute crack cocaine, and a single
count of possession with intent to distribute more than five grams of crack cocaine.

Pursuant to a plea agreement, Simmons pled guilty to one count of being a
previously convicted felon in possession of a firearm (Count 3) and one count of
possession with intent to distribute over five grams of crack cocaine (Count 4). He
entered this plea with full knowledge of the potential penalties. For Count 3, the statute
provided for a maximum sentence of ten years of imprisonment, a fine of up to
$250,000, and a three-year term of supervised release. For Count 4, the statute provided
for a minimum sentence of five years of imprisonment, a maximum sentence of forty
years, a maximum term of five years of supervised release, and a fine up to $2 million.
At his change of plea hearing, Simmons indicated that he understood this sentence would
be determined by the court, using both the Sentencing Guidelines and the factors
enumerated in 18 U.S.C. § 3553(a).

Simmons’s plea agreement expressly stated that his conduct would be considered
under § 2D1.1 and § 1B1.3 of the Sentencing Guidelines. The parties also agreed to a
sentencing enhancement under § 2K2.1(b)(5), which applies if a firearm was used in
connection with another felony offense. The Assistant United States Attorney in turn
agreed to recommend that Simmons had timely accepted responsibility for the offense.
The Presentence Investigation Report found that Simmons had in his possession a total
of 11.7 grams when the crack from all three drug counts was added together, which led
No. 07-3449 United States v. Simmons Page 4

to a base offense level of 26 for the offense in Count 4. With a two-level enhancement
for the firearm and a three-level reduction for accepting responsibility, the adjusted
offense level was 25. Finally, the probation officer found Simmons had 15 criminal
history points, making him a Category VI offender. The advisory sentencing range was
thus 110 to 137 months.

Prior to the sentencing hearing, Simmons filed a sentencing memorandum,
arguing that he was entitled to a downward variance on the basis of § 3553(a). This
memorandum argued that a downward variance was warranted because of the
Guidelines’ disparate treatment of similar quantities of crack and powder cocaine. The
government chose not to file a response, and the sentencing hearing took place on March
7, 2007. At this time, the defense again argued that the disparity in penalties for crack
and powder cocaine offenses made the Guidelines range excessive and entitled the
defendant to a lower sentence.

The Probation Officer recommended a sentence of 110 months, and the
sentencing judge ultimately sentenced Simmons to 116 months of imprisonment and
three years of supervised release. This sentence was in the lower half of the Guidelines
range and, in computing the sentence, the judge referenced several of the relevant
§ 3553(a) factors and discussed some of the individual circumstances of the crime. In
explaining the sentence, the judge did not address the Guidelines’ disparate treatment
of crack and powder-cocaine offenses. At the conclusion of the proceedings, the court
asked the parties whether they had any additional objections in accordance with United
States v. Bostic, 371 F.3d 865 (6th Cir. 2004). Defense counsel indicated that she
objected to the sentence “on both procedural and substantive grounds.” The defendant
now appeals the district court’s sentence, contending that it was procedurally and
substantively unreasonable.
No. 07-3449 United States v. Simmons Page 5

II

Before we can determine whether the defendant’s sentence was procedurally or
substantively objectionable, we must first determine what standard of review to apply
to these claims. As a general proposition, the Federal Rules of Criminal Procedure
distinguish between cases in which a party objects to a court’s decision and those in
which a party neglects to make an objection, despite an opportunity to do so. Fed. R.
Crim. P. 51(b). This court reviews the former category of cases under a reasonableness
standard and the latter category under a plain-error standard. Ibid. The application of
this rule poses many difficulties in the context of sentencing proceedings because of the
inherent difficulty of determining when a party has had “a meaningful opportunity to
object.” Bostic, 317 F.3d at 873 n.6.

In Bostic, we sought to clarify matters by suggesting that, after pronouncing the
defendant’s sentence, the district court “ask the parties whether they have any objections
to the sentence . . . that have not previously been raised.” Id. at 872. This approach not
only ensures that parties may object to the court’s reasoning or failure to address a
particular argument, it also affords the district court an opportunity to correct errors right
away and facilitates appellate review by identifying “precisely which objections have
been preserved.” Id. at 873. Indeed, it seems especially pertinent with respect to
objections that concern the adequacy of the court’s explanation precisely because such
objections cannot be made until after the court states its reasoning in the course of
sentencing the defendant.

In United States v. Vonner, this court determined the standard of review to apply
when “a sentencing judge asks this question and . . . the relevant party does not object.”
516 F.3d 382, 385 (6th Cir. 2008) (en banc). After pronouncing the defendant’s
sentence in that case, the district court asked both parties whether they “ha[d] any
objection to the sentence just pronounced.” Id. at 384. Vonner’s counsel replied, “No,
Your Honor.” Ibid. On appeal, the defendant claimed for the first time that his sentence
was procedurally inadequate because the district court’s pronouncement of the sentence
did not address specifically defendant’s arguments for a downward variance. Vonner
No. 07-3449 United States v. Simmons Page 6

held that the more exacting “plain error” standard of review, not reasonableness, should
apply to this objection. “No doubt, we could encourage district courts to ask the Bostic
question without imposing any consequences on a party’s failure to answer it. But that
would undermine its effectiveness.” Id. at 391. Vonner emphasized that substantive and
procedural claims made by counsel prior to sentencing are reviewed for reasonableness,
regardless of how counsel subsequently answers the Bostic question. Id. at 386 (holding
defense counsel’s answer to the Bostic question “did not undermine Vonner’s right to
appeal issues that he had ‘previously raised’”). After all, “[t]he point of the question is
not to require counsel to repeat objections or, worse, to undo previously raised
objections.” Id. at 390. Imposing a more exacting standard of review to any claim that
has not been previously raised, however, encourages parties to give the district court one
opportunity to address these arguments.

The case at bar involves a slight variation on the facts presented in Vonner, but
requires only the application, not extension, of the underlying rule set forth in that case.1
Simmons’s trial counsel devoted much of her argument to the idea that a downward
variance was warranted under 18 U.S.C. § 3553(a)(6), because of the Guidelines’
disparate treatment of crack and powder cocaine offenses. The district court failed to

1
The dissent contends faithful application of our precedent does not compel our holding in this
case. Slip op. at 35–36. But Vonner involved a very similar question to the one now before us: what
standard of review should be applied to a procedural objection that is not made when the party articulated
the underlying substantive argument on which it is based? Moreover, both the case at bar and Vonner
involved a challenge to the procedural adequacy of the district court’s explanation.
The dissent’s position is built almost exclusively on disagreement with our en banc decision in
Vonner and recent cases of marginal relevance filed during the last seven months while this case was under
submission. The lone exception, United States v. Blackie, 548 F.3d 395 (6th Cir. 2008), is not relevant
in the way suggested by the dissent, which contends Blackie’s appeal re: family ties was presented to us
as a procedural objection based on the district court’s purported failure to address a substantive argument.
Slip op. at 26–27, 41–42.
In fact, the Sentencing Transcript and our decision leave no doubt that the district court dealt with
Blackie’s substantive argument and that his appeal concerned whether the district court “properly
considered” his family circumstances, not whether the district court failed to address this argument. Id.
at 399 (“Blackie argues that the district court did not properly consider his family circumstances before
sentencing him. Reviewing for reasonableness, we find that this claim is without merit.”).
United States v. Herrera-Zuniga, 571 F.3d 568 (6th Cir. 2009), is not on point because of the very
unique facts of that case: the defendant’s counsel breached attorney-client privilege and submitted a letter
to the court, addressed to the defendant, indicating counsel believed the defendant posed a serious threat
to society. Id. at 575. The government used this letter in urging the court to depart upward. Id. at 576.
Although defense counsel urged the court to stay within the Guidelines, we believe defense counsel’s
conduct raises very serious questions about the integrity of the sentencing proceedings and whether
defense counsel was acting in his client’s interest, which dwarf our concerns about ensuring the parties
give the district court an opportunity to correct errors and develop the record for appeal.
No. 07-3449 United States v. Simmons Page 7

address this argument explicitly in sentencing the defendant. Unlike in Vonner,
however, Simmons’s counsel answered the Bostic question in the affirmative,
proclaiming, “Your Honor, I object just for the record for the procedural, substantive
aspects.” In this appeal, Simmons repeats his claim that a within-the-Guidelines
sentence for possession of crack is substantively objectionable. For the first time, the
defendant also contends that the district court failed to address this substantive argument
in pronouncing a within-the-Guidelines sentence and that the sentencing judge’s failure
to state affirmatively that he agrees with the policies underlying the disparate treatment
of crack and powder cocaine, or that he does not believe a categorical departure is
warranted in this case, renders the proceeding procedurally inadequate.

In ascertaining the standard of review, we must distinguish between Simmons’s
substantive and procedural objections. Defense counsel’s answer to the Bostic question
is immaterial to the standard of review we apply in evaluating Simmons’s substantive
argument for a below-the-Guidelines sentence under the § 3553(a) factors. Afer all,
defense counsel clearly argued before the sentencing court that the disparate treatment
of crack and powder cocaine requires a downward variance, and it is unnecessary for a
party to repeat previously made objections in order to secure the lower standard of
review on appeal.

The defendant makes a total of three procedural claims on appeal: (1) the district
court failed to address defendant’s argument for a downward variance based on the
disparate treatment of crack and powder cocaine; (2) the district court’s analysis of
§ 3553(a)(2) was inadequate, because the judge failed to consider whether drug
treatment would be available to the defendant even if he were given a lower sentence;
and (3) the district court improperly treated the Guidelines as mandatory. Br. of
Appellant 13-23. The last two arguments were not raised before the district court on any
reading of the record, and therefore they are subject to plain error review. See Vonner,
516 F.3d at 385. Determining what standard of review applies to Simmons’s other
procedural claim poses a more complex inquiry.
No. 07-3449 United States v. Simmons Page 8

Responding to the Bostic question, defense counsel objected to the “procedural
. . . aspect[]” of the sentence just pronounced by the district court but did not allege that
the sentencing judge failed to address her policy argument or specifically object to this
purported failure.2 We must determine whether defense counsel’s vague response to the
Bostic question is sufficient to secure a lower standard of review for the defendant’s
procedural objection, or whether a party’s answer must be specific enough to afford the
district court an opportunity to address the particular claim.

To resolve this issue, we must reference the rationale for asking the Bostic
question and for applying a higher standard of review to those objections that are not as
a preliminary matter presented to the district court. The first goal is to help the court of
appeals ascertain whether a party had an opportunity to make additional objections.
Bostic, 317 F.3d at 872-73. This end is served by asking the question, no matter what
the party answers. Because the record in this case makes apparent the question was
asked and, accordingly, that both parties had an opportunity to make further objections,
there is no need to impose a higher standard of review under these circumstances to
vindicate this objective.

The second justification for the Bostic question is to ensure the district court has
an opportunity to correct any error “on the spot,” id. at 873, and it would be sacrificed
if a higher standard of review were not applied in cases like this one.3 Providing

2
According to the dissent, bifurcating procedural objections from their related substantive
arguments is to make “a distinction without a difference.” Slip op. at 59. The dissent’s own recognition
that the question of which arguments a district court must address is legally and “technically
speaking . . . distinct” from which arguments the law compels it to adopt belies the notion that procedure
and substance are inextricably interwoven. Slip op. at 58. In certain cases, a district court may have a duty
to address arguments that it has discretion to reject and, in others, it has no such obligation.
3
Indeed, this is why United States v. Grams, 566 F.3d 683 (6th Cir. 2009) (per curiam) is
distinguishable. In that case, the government informed the district court that the sentence it imposed was
procedurally in error. Id. at 685. The district court then acknowledged the mistake, but declined to correct
it, remarking that it believed the error was “negligible.” Ibid. We held that even though the government,
not the defendant, presented the objection to the district court, we could review the same argument
presented by the defendant on appeal for reasonableness. Id. at 686 n.1.
The district court in Grams had an opportunity to correct the error (and chose not to) and the court
of appeals had the benefit of the district court’s explanation in reviewing the defendant’s claim. Ibid.
(stressing that both “considerations were satisfied”). Neither of these considerations was vindicated here,
where the district court had no opportunity to address Simmons’s objection and we do not have the benefit
of a detailed record to review.
No. 07-3449 United States v. Simmons Page 9

disincentives for parties who do not give the district court an opportunity to resolve
objections helps conserve judicial resources by deterring unnecessary delay and the need
to appeal. In this case, defense counsel’s response to the Bostic question may have been
in the affirmative, but it was not specific enough to give the district court an opportunity
to correct the alleged error. Indeed, the defense never questioned the adequacy of the
court’s explanation or the court’s failure to address Simmons’s argument about the
disparate treatment of crack and powder cocaine, at best leaving the sentencing judge to
guess what additional objections defense counsel sought to preserve.4

If a party need only say that he has further objections and wishes to preserve
them, omitting any explanation as to what they are, the Bostic question would be a
meaningless formality whereby certain magic words are uttered and any new claim may
be raised on appeal without consequence. In fact, this formal interpretation would likely
deprive district courts of an opportunity to correct errors by penalizing a party’s
specificity: vague responses would guarantee that any new objection made on appeal
will be subject to a less deferential standard of review and specific responses would
result in the forfeiture of all other objections that were not explicitly made. In the
alternative, it would transform the Bostic question from a single question into an

4
Defense counsel clearly could have made a more specific procedural objection without having
to repeat the underlying substantive objection about the Guidelines’ disparate treatment of crack and
powder cocaine. Even if we agreed that there is no difference between making a substantive argument and
identifying a substantive argument in connection with a procedural objection, this would not justify the
application of reasonableness, rather than plain-error, review in this case. After all, Simmons’s defense
counsel easily could have informed the district court of a claim that it had failed to address any of her
substantive arguments without identifying the specific claim now before us. Instead, she said, “Your
Honor, I object just for the record for the procedural . . . aspects.”
Contrary to the dissent, attributing to counsel only the objections she actually made does not mean
we are adopting an “inflexible rule” that disregards “earlier stages of the sentencing proceeding.” See slip
op. at 40, 49. We are not saying that the context in which a party answers the Bostic question must never
be considered. Prior arguments may illuminate the content of an objection that is made at a later point in
the proceedings. They cannot, however, excuse a party’s failure to make a new and different objection.
In this case, the problem is not the context, but defense counsel’s response. Although she used
the words “object” and “procedural,” the statement was so nebulous that to construe it as signaling, “Your
Honor failed to address my argument about the 100:1 ratio,” would require not just reading between the
lines, but writing on a blank page. Any other conclusion would directly contradict Vonner, which
explicitly anticipated this scenario and rejected the notion that advocating for a downward variance on the
basis of policy and answering yes to the Bostic question would alone preserve all procedural and
substantive grounds. Vonner, 516 F.3d at 391 (“Nor is it the case that a request for a variance in the
district court by itself preserves all procedural and substantive challenges to a sentence.”) (emphasis in the
original).
No. 07-3449 United States v. Simmons Page 10

interrogation, whereby the district court is obligated to badger parties into making their
case or guess their objections whenever they answer in evasive, but affirmative, terms.

The third and final goal for asking the Bostic question is to create “a more
reliable record” for appeal. Id. at 873. Requiring a party to detail an objection not
previously made can facilitate the appellate process, and this case illustrates how. As
discussed below, it is unnecessary for a sentencing judge to respond to frivolous or
purely legal arguments. If Simmons’s defense counsel had made a more specific
objection, the judge might have defended his decision and we, in turn, would have the
benefit of his explanation in assessing the adequacy of the proceedings. The sentencing
judge might have said, as we conclude is the case, that the court had already addressed
the argument in a satisfactory manner. Or the judge could have chosen to obviate the
issue entirely by expounding his reasons at some length. The Bostic question was
intended to reduce the need for context-based inquiry by the courts of appeals into
sentencing decisions,5 and the application of a higher standard of review in cases like
this one will discourage parties from making vague objections that deprive this court of
a more complete record to review.

We hold that Vonner requires the application of plain-error review to procedural
claims like this one, where a party answers the Bostic question in the affirmative, but at
such a high degree of generality that the district court has no opportunity to correct its
purported error and the court of appeals has been deprived of a more detailed record to
review.

5
The dissent supports a “context-based approach” that asks not just whether a party made an
objection, but whether a party intended to make a related and distinct objection without actually making
it. Slip op. at 45. The dissent further contends that “our sister circuits overwhelmingly have recognized
that ‘a general objection may suffice to preserve an issue for appeal’ where the party already has raised
the specific substantive grounds for the objection at earlier stages of the sentencing proceeding . . . .” Slip
op. at 49 (citations omitted). The dissent fails to note, however, that these sister circuits must engage in
a “context-based” inquiry precisely because they lack the clarity and certainty that the required Bostic
question brings to sentencing proceedings in our circuit. A holistic review of the record is a more
important part of the appellate process where no formal rule of procedure guarantees parties the
opportunity to object to all aspects of the proceedings. Bostic, 371 F.3d at 872 n.6 (invoking the court’s
supervisory powers “[d]ue to the difficulty of parsing a transcript” of “less formal” sentencing hearings).
No. 07-3449 United States v. Simmons Page 11

III

Sentencing determinations have both procedural and substantive components.
United States v. Borho, 485 F.3d 904, 908 (6th Cir. 2007). Simmons objects to his
sentence on both grounds. His procedural objection about the district court’s failure to
address the disparate treatment of crack and powder cocaine is reviewed for plain error,6
and the underlying substantive argument on which it is based is reviewed for
reasonableness under an abuse of discretion standard. We proceed to consider each in
turn.

A. Procedural Adequacy

A sentence is procedurally inadequate only if the “district judge fails to
‘consider’ the applicable Guidelines range or neglects to ‘consider’ other factors listed
in 18 U.S.C. § 3553(a), and instead simply selects what the judge deems an appropriate
sentence without such required consideration.” United States v. Webb, 403 F.3d 373,
383 (6th Cir. 2005), cert. denied, 126 S. Ct. 110 (2006). The district court is not
required to refer explicitly to each of the statutory sentencing factors when imposing a
sentence. United States v. Morris, 448 F.3d 929, 932 (6th Cir. 2006). However, the
district judge must “make an individualized assessment based on the facts presented,”
and must discuss all relevant statutory factors to facilitate “reasonable appellate review.”
Gall v. United States, 128 S. Ct. 586, 596-97 (2007); Morris, 448 F.3d at 932.

In this case, there is no question that the district judge considered the Guidelines
range, that he understood the Guidelines were advisory,7 and that he considered several

6
For the sake of clarity, we stress that the defendant’s failure to present an objection to the
sentencing court is “forfeited” only in the sense that the claim is subject to a more deferential standard of
review on appeal. Bostic, 371 F.3d at 872-73 (“If a party does not clearly articulate any objection and the
grounds upon which the objection is based, when given this final opportunity speak, then that party will
have forfeited its opportunity to make any objections not previously raised and thus will face plain error
review on appeal.”) (emphasis added).
7
In his brief, the defendant suggests otherwise because the district court said that the within-the-
Guidelines sentence being imposed was reasonable. Br. of Appellant 22-23. Although a sentencing judge
may not presume a sentence within-the-Guidelines range is reasonable, Nelson v. United States, 129 S. Ct.
890 (2009), a sentencing judge’s use of the word reasonable to describe the sentence he is imposing does
not necessarily “eclipse” the valid application of § 3553(a). United States v. Cruz, 461 F.3d 752, 755-56
(6th Cir. 2006) (holding that a district court did not commit reversible error or improperly apply the
§ 3553(a) factors despite using the word “reasonable” three times in describing the sentencing process);
No. 07-3449 United States v. Simmons Page 12

of the § 3553(a) factors in imposing the sentence. Contrary to the defendant’s allegation
that the trial judge’s entire analysis is “perfunctory” and little more than “ritualistic
incantation,” Br. of Appellant 13, the court did in fact consider some of the individual
circumstances of this case, referencing the defendant’s specific crimes, the defendant’s
“extensive criminal history,” and the defendant’s “history of substance abuse [and his]
need for substance abuse treatment.” The record strongly suggests that the sentencing
judge believed these facts were the most critical elements of his decision and justified
sentencing the defendant within the advisory Guidelines range.

The sentencing judge’s analysis of § 3553(a) factors is two-and-a-half pages,
which is terse, but certainly not per se inadequate. At times, the trial judge uses generic
language to describe the defendant’s crimes. He states the precise details of the drug and
gun offenses and without elaboration characterizes the “nature and circumstances” of the
offenses as “serious.” In light of the judge’s brevity, such analysis is short of ideal in
assuring this court that the trial judge in fact did his full duty. On its own, however, it
surely does not overcome the deference we must accord lower courts in sentencing
criminal defendants. Vonner, 516 F.3d at 392 (“[D]istrict courts have considerable
discretion in this area . . . .”). The defendant makes three additional arguments in
support of remand: (1) the district court’s analysis of § 3553(a)(2); (2) the district court’s
analysis of § 3553(a)(6); and (3) the district court’s failure to acknowledge expressly its
power to vary from the Guidelines based on policy disagreements.

1. The District Court’s Analysis of § 3553(a)(2)

The defendant contends that the district court failed to address his “cogent
explanation as to why a sentence below the advisory Guidelines range satisfied
Congress’ mandate in sentencing.” Br. of Appellant 21. Under § 3553(a)(2), a court

United States v. Davis, 458 F.3d 505, 510 (6th Cir. 2006) (holding that a sentence was procedurally
reasonable “despite the district court’s repeated enunciation [six occasions] of ‘reasonableness,’ [because]
it nonetheless appears that the district court was concerned with imposing a sentence that was sufficient
but no greater than necessary to comply with § 3553(a).”). As here, where the district court applied all the
relevant § 3553(a) factors, repeatedly characterized the Guidelines as advisory, and only once described
the sentence being imposed as “reasonable,” there is absolutely no legal support for concluding that the
district court committed plain error.
No. 07-3449 United States v. Simmons Page 13

must consider whether the sentence reflects the seriousness of the offense, promotes
respect for the law, provides just punishment, deters similar criminal conduct, protects
the public from the defendant, and provides the defendant with medical treatment or
educational training. In imposing the 116-month sentence, the district court explicitly
considered Simmons’s “history of substance abuse” and “need for substance abuse
treatment,” the risk he poses to the public as a repeat offender “in possession of
numerous firearms,” and the interest in deterring other potential drug offenders.
Although the defendant claims the district court unreasonably failed to consider that
Simmons is ineligible for a sentencing reduction contingent on his completion of the
Federal Bureau of Prisons Drug Treatment Program, Br. of Appellant 21-22, Simmons
never presented this argument to the district court, and an adequate explanation requires
no such analysis. Even if correctional treatment of this variety is available to prisoners
with shorter sentences, the district court might still conclude that the possibility of
recidivism and the need to deter criminal conduct nevertheless make a 116-month
sentence “not greater than necessary.” 18 U.S.C. § 3553(a).

2. The District Court’s Analysis of § 3553(a)(6)

Defendant’s argument concerning the district court’s analysis of § 3553(a)(6),
which provides that a judge may deviate from the advisory Guidelines range “to avoid
unwarranted sentence disparities,” is stronger but still ultimately fails. A sentencing
judge must explicitly consider factors that are raised by the defendant or that are
otherwise especially relevant to the case at bar. United States v. (Kossie Lamon)
Simmons, 501 F.3d 620, 625 (6th Cir. 2007). Here, the defendant invoked § 3553(a)(6)
and the court expressly considered the factor in sentencing him. The sentencing judge
remarked,

[T]he Court has considered the advisory Sentencing Guidelines and the
need to avoid unwarranted sentencing disparities. The defendant’s
sentencing range is 110 to 137 months imprisonment. The Court has
considered this advisory range in determining the appropriate sentence,
and the sentence is within that range. Therefore, it is unlikely to result
in unwarranted disparities.
No. 07-3449 United States v. Simmons Page 14

The procedural adequacy of Simmons’s sentence hinges not on whether the district court
discussed § 3553(a)(6), but on the quality of the district court’s explanation.

The record squarely indicates, and the government in fact concedes, that defense
counsel made a substantive claim regarding the Guidelines’ disparate treatment of crack
and powder cocaine. Br. of Appellee 16-17 (“[T]he district court did not explicitly
distinguish or reject his argument on the potential impact of the 100:1 crack to powder
cocaine ratio.”). Because no corresponding procedural objection to the district court’s
failure to directly address this argument was made during sentencing proceedings, the
defendant must demonstrate that the district court’s omission was plain error to obtain
relief. This entails proving the district court made (1) an error, (2) that was obvious or
clear, (3) that affected defendant’s substantial rights, and (4) that affected the fairness,
integrity, or public reputation of the judicial proceedings. United States v. Houston, 529
F.3d 743, 750 (6th Cir. 2008); see also Fed. R. Crim. P. 52(b) (“A plain error that affects
substantial rights may be considered even though it was not brought to the court’s
attention.”).

The first step in our inquiry is to determine whether an adequate explanation of
§ 3553(a)(6) compelled the court to respond to Simmons’s assertion that the disparate
treatment of similar quantities of crack and powder cocaine created unwarranted
sentencing disparities. Even under the less onerous abuse-of-discretion standard, district
courts are entitled to a great deal of deference in explaining a sentence that falls within
the Guidelines. “When a district court adequately explains why it imposed a particular
sentence, especially one within the advisory Guidelines range, we do not further require
that it exhaustively explain the obverse—why an alternative sentence was not selected
in every instance.” United States v. Gale, 468 F.3d 929 (6th Cir. 2006); see also United
States v. Fernandez, 443 F.3d 19, 30 (2d Cir. 2006) (“[W]e will not conclude that a
district judge shirked her obligation to consider the § 3553(a) factors simply because she
did not . . . address every argument relating to those factors that the defendant
advanced.”), cert. denied, 127 S. Ct. 192 (2006).
No. 07-3449 United States v. Simmons Page 15

The Second Circuit even accords “a strong presumption that the sentencing judge
has considered all arguments properly presented to her, unless the record clearly
suggests otherwise.” Fernandez, 443 F.3d at 29. Although we have not adopted this
position, the Supreme Court has prescribed a very deferential standard that we have
adhered to. Under United States v. Rita, 127 S. Ct. 2456 (2007), “[t]he sentencing judge
should set forth enough to satisfy the appellate court that he has considered the parties’
arguments and has a reasoned basis for exercising his own legal decisionmaking
authority.” Id. at 2468. This explanation can be “brief,” ibid., and need only explain the
court’s reasoning in a manner sufficient to permit meaningful appellate review. United
States v. McGee, 494 F.3d 551, 556–57 (6th Cir. 2007).

Still, our case law and the Federal Rules of Criminal Procedure indicate that, as
a procedural matter, the district judge must generally speak to arguments that are clearly
presented and in dispute. United States v. Gale, 468 F.3d 929 (6th Cir. 2006) (“When,
on appeal, a defendant’s argument and supporting evidence presents [sic] an arguably
meritorious claim for a lesser sentence, but there is little to suggest that the district court
actually considered it, then remand may be appropriate.”); Fed. R. Crim. P. 32(i)(3)(B)
(“[T]he court must—for any disputed portion of the presentence report or other
controverted matter—rule on the dispute or determine that a ruling is unnecessary either
because the matter will not affect sentencing, or because the court will not consider the
matter in sentencing.”). The Supreme Court has likewise held that a district court’s
thorough explanation “serve[s] a salutary purpose” and “can provide relevant
information to both the court of appeals and ultimately to the Sentencing Commission,”
which will facilitate appellate review and will “help the Guidelines constructively evolve
over time, as both Congress and the Commission foresaw.” Rita, 127 S. Ct. at 2469.
Once a defendant disputes a particular issue, the district court becomes obligated to find
any facts that are essential to the “clarity of the record.” United States v. White, 492
F.3d 380, 415 (6th Cir. 2007) (citations omitted). In White, for example, we reversed
the sentencing court when it “blindly embraced the figures set forth in Defendant
White’s PSR-figures” without comment. Id. at 416.
No. 07-3449 United States v. Simmons Page 16

There are certain exceptions to this rule. A district court, for example, is not
obligated to review defendant’s argument when it lacks any factual basis or legal merit.
See United States v. Richardson, 437 F.3d 550, 554 (6th Cir. 2006); Gale, 468 F.3d at
940 (“[A]rguments clearly without merit can, and for the sake of judicial economy
should, be passed over in silence.”), cert. denied, 127 S. Ct. 3065 (2007). However,
Simmons’s argument regarding the disparate treatment of crack and powder cocaine
does not fall within this exception, because it is a non-frivolous claim that some courts
have accepted. Kimbrough v. United States, 128 S. Ct. 558 (2007) (reversing the Fourth
Circuit and “[g]iving due respect to the District Court’s reasoned appraisal” that the
disparate treatment of crack and powder cocaine warranted a downward variance). The
sentencing disparities that result from crack and powder-cocaine convictions have
engendered extensive discussion by the Sentencing Commission and, more recently, a
modification of the Guidelines. 28 U.S.C. § 994(a), (p).

Another exception to the requirement of explicit discussion applies when the
defendant presents issues that are “conceptually straightforward,” Vonner, 516 F.3d at
388, such that we may assume, even absent express analysis by the judge, that the
sentence reflects consideration of the argument. Ibid. (holding that the judge evidenced
his consideration of an argument for a downward variance simply “by declining to give
[the defendant] a lower sentence.”). The government takes this tack in characterizing
the district court’s judgment as a rejection of an argument without merit that required no
further explanation. “[T]he sentencing court obviously felt the most relevant factors for
consideration were Simmons’s history and characteristics along with the seriousness of
the offense.” Br. of Appellee 19. And by not varying downward, the judge indicated
his belief that crack and powder cocaine do not necessarily warrant the same treatment.

Finally, the rule that a sentencing judge must address every disputed argument
that a defendant makes generally has been read as only applying to factual disputes and
not legal arguments. United States v. Cunningham, 429 F.3d 673, 678 (7th Cir. 2005)
(“The rule may be limited to factual disputes. The cases so assume, without so stating
outright.”); United States v. Nelson, 356 F.3d 719, 722-23 (6th Cir. 2004) (vacating
No. 07-3449 United States v. Simmons Page 17

defendant’s sentence when the “district court gave no indication as to how it calculated
the loss and determined that the government’s calculations were correct [and failed to]
respond to Nelson’s specific objections.”). At oral argument, the government
emphasized that Simmons’s counsel at sentencing merely reiterated standard legal
arguments that did not incorporate the personal characteristics of the defendant and
specific circumstances of his crime, contending that the district court’s failure to grapple
in explicit terms with a standard legal argument does not render his sentence
procedurally inadequate.8

Although Simmons’s argument was non-frivolous, defendants convicted for
possession of crack have routinely made the same underlying substantive claim, and
therefore the sentencing judge was no doubt familiar with this line of reasoning.
Moreover, it involved a legal, not factual, matter. Where a party makes a conceptually
straightforward legal argument for a lower sentence under one of the § 3553(a) factors,
the district court’s decision not to address the party’s argument expressly is not an error
when the court otherwise discussed the specific factor and appears to have considered
and implicitly rejected the argument. In this case, there is nothing in the record to
suggest the judge did not understand defendant’s argument regarding the disparate
treatment of crack and powder cocaine, as it was made repeatedly and adamantly by
counsel, or recognize his ability to vary on the basis of a categorical disagreement with
the crack Guidelines. The judge repeatedly observed that the Guidelines were advisory,
concluding with respect to this individual defendant that sentencing disparities were less
likely to result from a sentence within the Guidelines range.

The distinction between legal and factual arguments seems especially pertinent
in this context, because requiring courts to respond to categorical disagreements
explicitly would compel the district court to defend the underlying policies the
Guidelines embody. District courts may not assume, as we do on appeal, that a sentence
within the Guidelines is presumptively reasonable, Nelson, 129 S. Ct. 890; Rita, 551

8
The only particularized information proffered by defense counsel in support of a downward
variance was to calculate the Guidelines range had Simmons been charged with possession of the same
quantity of powder cocaine rather than crack.
No. 07-3449 United States v. Simmons Page 18

U.S. at 351, but we may assume they considered the policies underlying the advisory
range if there is no evidence to the contrary. With respect to arguments under
§ 3553(a)(6), in particular, the Supreme Court has held, “avoidance of unwarranted
disparities was clearly considered by the Sentencing Commission when setting the
Guidelines ranges,” and the district court’s very act of correctly calculating and
reviewing the advisory range indicates that a district judge “necessarily gave significant
weight and consideration to the need to avoid unwarranted disparities.” Gall, 128 S. Ct.
at 599.

Adequately explaining the reasons for sentencing does not require expressly
defending the abstract justifications for the sentencing range. Of course, if adhering to
the Guidelines were sufficient to eliminate all unwarranted sentencing disparities, then
there would be no need for the independent consideration invited by § 3553(a)(6). But
the substantive arguments that a district court must address involve allegations that, were
the Guidelines followed, an unwarranted disparity would result because other judges
have departed from the same guideline with respect to similarly situated offenders.
(Kossie Lamon) Simmons, 501 F.3d at 623-24.

Here, Simmons is objecting to “the district court’s mere failure to fully explain
the extent of its consideration of sentencing factors,” Houston, 529 F.3d at 751, which
it appears to have fully considered. In short, this claim does not demonstrate Simmons’s
sentencing was marked by “significant procedural error,” Gall, 128 S. Ct. at 597,
constituting a plain error, such that remand is necessary.

3. The District Court’s Power to Depart Categorically

Simmons’s final argument relies on recent Supreme Court cases, decided after
his case, and an allegation that the district judge erroneously believed he could not vary
from the Guidelines on the basis of policy disagreements as opposed to the personal
characteristics of the defendant or the circumstances of the crime. See Kimbrough, 128
S. Ct. 558; Moore v. United States, 129 S. Ct. 4, 4 (2008) (“[T]he [district] court showed
that it did not think it had the discretion later upheld by Kimbrough.”); Spears v. United
States, 129 S. Ct. 840 (Jan. 21, 2009) (holding that district courts may vary from the
No. 07-3449 United States v. Simmons Page 19

Guidelines on the basis of categorical policy disagreements with the crack Guidelines).
Like Simmons’s previous procedural claims, this one is reviewed only for plain error,
since it was not made before the district court.

In one of the cases defendant cites, Moore v. United States, the Supreme Court
indicated that a judge commits error if he said that the court did not have the authority
to depart from the Guidelines range on the basis of substantive disagreements with the
Guidelines’ determinations about the seriousness of the crime. 129 S. Ct. at 4 (“[T]he
[district] court showed that it did not think it had the discretion later upheld by
Kimbrough.”). Moore vacated a sentence when the district court explicitly held that the
disparate treatment of crack and powder cocaine is not a reasonable grounds on which
to depart from the Guidelines range. We echoed this conclusion in United States v.
Johnson, 553 F.3d 990 (6th Cir. 2009), holding that when a district court made express
statements that “the [c]ourt must apply the Guidelines,” id. at 996 n.1 (emphasis in the
original), remand was necessary “to give the district court an opportunity to impose a
sentence with full recognition of its authority to reject and vary from the crack-cocaine
Guidelines based solely on a policy disagreement with those Guidelines.” Id. at 991; see
also United States v. Porter, No. 07-5714, 2009 WL 440269, at *4-5 (6th Cir. Feb. 24,
2009) (observing that “we did not merely assume in Johnson that the district court
lacked ‘full awareness of this authority,’ but we instead relied on the district court’s
express statements at the sentencing hearing” indicating it lacked the power to vary
categorically based on policy disagreement).

Simmons alleges that “the [district] court [in sentencing him] . . . essentially
treated the 100:1 ratio as a mandatory guideline,” making his case indistinguishable from
Moore and Johnson. Br. of Appellant 16. The record, however, belies the defendant’s
claim. At Simmons’s sentencing, the district court observed at five separate points that
the Guidelines were advisory. There is simply no indication whatsoever that the judge
believed the Guidelines were mandatory, or that the court believed it was not free to vary
downward based on both particularized circumstances of the crime and defendant or
No. 07-3449 United States v. Simmons Page 20

based on substantive disagreement with the crack Guidelines.9 Indeed, Simmons’s
sentencing is different from Moore and the other cases in this line because the district
court never expressly held, or even intimated, that he was not free to depart from the
Guidelines on the basis of either a categorical policy disagreement or the personal
circumstances of the defendant. It would be a misreading of the Supreme Court’s cases
to say that a sentencing judge must explicitly recognize that such variances are permitted
when the court has given no indication that it believes they are prohibited and explicitly
recognizes the advisory nature of the Guidelines. Therefore we decline to accept this
interpretation, and we instead hold that when a district court observes that the Guidelines
are advisory and provides no indication that policy disagreements are not a proper basis
to vary, then a sentence within the Guidelines range remains presumptively reasonable
on appeal.

Although the defendant contends this circuit “impliedly” held district courts were
not allowed to vary based on categorical disagreements, Br. of Appellant 19, we reject
the defendant’s position that our law in any sense precluded downward variances of this
kind or that the district court was therefore unaware of its power to categorically vary.10
Where the sentencing record is at worst ambiguous with respect to the district court’s
awareness of its authority to depart, the question is not whether Simmons suffered
prejudice, but whether he can even show an error.11

9
Although there are no affirmative statements that categorical departures are permissible in this
context, the defendant bears responsibility for this silence in the sentencing record under our adversarial
system as interpreted in Vonner. Our case is highly illustrative of the risk of sandbagging where parties
are not provided with any incentive to elicit a clarification from the district judge in response to the Bostic
question. United States v. Cope, 312 F.3d 757, 778-79 (6th Cir. 2002) (recognizing the interest in crafting
rules that do not encourage parties to withhold objections, or delay making them, to strengthen their case
on appeal).
10
In support of his position, the defendant cites language from United States v. Caver, 470 F.3d
220 (6th Cir. 2006). However, the language at issue states only that, “while a departure from the 100:1
ratio may well be reasonable in a particular case, applying the ratio does not, ipso facto, make a sentence
unreasonable under existing law.” Id. at 249. This language indicates that courts may reasonably apply
the ratio. It does not indicate that courts lack the power to vary categorically.
11
In certain instances, plain error can be inferred from the legal regime in which a judge is
sentencing the defendant. Following Booker, 543 U.S. 220, for example, any sentence rendered under the
mandatory guideline scheme required resentencing unless “the trial record contains clear and specific
evidence that the district court would not have . . . sentenced the defendant to a lower sentence under an
advisory Guidelines regime.” United States v. Barnett, 398 F.3d 516, 529 (6th Cir. 2005).
Defendants were not required to show prejudice in light of the fact the district courts were
No. 07-3449 United States v. Simmons Page 21

Therefore we cannot say the district court’s explanation constitutes an error, let
alone an error that “was obvious or clear,” affecting the defendant’s substantial rights
and calling into doubt “the fairness, integrity, or public reputation of the judicial
proceedings.” United States v. Gardiner, 463 F.3d 445, 459 (6th Cir. 2006). We are
applying, after all, a deferential standard in which sentences are reversed only in
“exceptional circumstances . . . where the error is so plain that the trial judge . . . [was]
derelict in countenancing it.” Ibid. Such is not the situation in this case, where the
district court explicitly recognized the advisory nature of the Guidelines, considered all
the relevant sentencing factors, including the need to avoid unwarranted sentencing
disparities. The district court’s failure to speak directly to its own power to depart from
the Guidelines for policy reasons does not supply a basis for inferring plain error. Nor
does it warrant appellate remand.

B. Substantive Adequacy

A sentence within the Guidelines range is presumptively reasonable. Rita, 127
S. Ct. at 2459; United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006). Our circuit
takes a deferential approach to this type of substantive sentencing challenge. See
Vonner, 516 F.3d at 392 (“[T]he central lesson [of recent Supreme Court activity is] that
district courts . . . deserve the benefit of the doubt when we review their sentences and
the reasons given for them.” ). As the Supreme Court has explained, when a sentencing
judge’s determination falls within the Guidelines range, “that double determination
significantly increases the likelihood that the sentence is a reasonable one.” Rita, 127
S. Ct. at 2463. There may be occasions when a sentence within the Guidelines range is
substantively unreasonable. But we have held this is no small burden and that we will
not generally “second guess” sentences on substantive grounds when they fall in the
range prescribed by the Guidelines. United States v. Davis, 537 F.3d 611, 618 (6th Cir.
2008).

unquestionably operating under a mandatory, and thus illegal, sentencing system, and it would have been
“exceedingly difficult” for a plaintiff to prove that his sentence would have been different even if the
district court had treated the Guidelines as only advisory. Id. at 528. There is no reason to extend this rule
to the present context where we had not erroneously confined the district court’s authority to depart.
No. 07-3449 United States v. Simmons Page 22

Despite Simmons’s allegation, there is no evidence that the lower court selected
Simmons’s sentence arbitrarily, based its determination on impermissible factors,
disregarded any relevant concern, or gave unreasonable weight to any of the § 3553(a)
factors. Although the district court clearly placed great weight on Simmons’s criminal
history, the nature and circumstances of the offense, the need to rehabilitate Simmons,
and the need to deter other potential drug offenders, the court did not weigh these factors
so heavily as to make the sentence substantively unreasonable. The district court also
stressed the need to avoid “unwarranted sentencing disparities” in punishing similarly
situated people, and found that a sentence within the Guidelines range was likely to
serve this end in this case.

For Simmons’s sentence to be substantively unreasonable, we would have to hold
not that district courts may vary from the Guidelines based on the disparate treatment of
crack and powder cocaine, but that crack sentences are unreasonable unless the district
judge varies from the Guidelines. Although the defendant takes for granted that the
disparate treatment of crack and powder cocaine is unfair, there are reasons to punish a
person in possession of crack cocaine more harshly than a person who possesses a
similar quantity of powder cocaine. After all, crack is a more concentrated form of
powder cocaine, is more addictive, and is associated with higher levels of crime. U.S.
SENTENCING COMMISSION, SPECIAL REPORT TO THE CONGRESS COCAINE AND FEDERAL
SENTENCING POLICY (1995), http://www.ussc.gov/CRACK/CHAP6.HTM. For these
reasons, we have repeatedly held the disparate treatment of crack and powder cocaine
advised by the Guidelines is not per se unreasonable or unconstitutional. United States
v. Caver, 470 F.3d 220, 249 (6th Cir. 2006) (holding “while a departure from the 100:1
ratio may well be reasonable in a particular case, applying the ratio does not, ipso facto,
make a sentence unreasonable under existing case law.”); United States v. Blair, 214
F.3d 690, 702 (6th Cir. 2000) (“The law is well settled in this circuit that the 100:1 ratio
withstands constitutional scrutiny.”).
No. 07-3449 United States v. Simmons Page 23

IV

Although we affirm the district court’s sentence for the reasons set forth above,
we nevertheless remand because Simmons is entitled to a “second look” consideration
pursuant 18 U.S.C. § 3582(c). On May 1, 2007, the Sentencing Commission submitted
amendments to the federal Sentencing Guidelines to Congress, and they took effect on
November 1, 2007. One of the amendments lowered the Guidelines range for certain
crack offenses by certain offenders, providing for a downward adjustment of two levels
to each threshold quantity enumerated in § 2D1.1. (The new Guidelines retain a very
substantial differential.) On March 3, 2008, the amendments to the crack Guidelines
were made retroactive, so that thousands of defendants serving certain sentences can file
a motion for a sentence reduction. U.S.S.G. App’x C Supplement, Amendment 706
(Nov. 1, 2007) (regarding two-level reduction); U.S.S.G. App’x C Supplement,
Amendment 713 (Mar. 3, 2008) (regarding retroactivity).

We have already issued a decision concerning the retroactive crack cocaine
amendments, and the government does not appear to dispute that the revised Guidelines
require the resentencing of certain defendants who have been convicted of possession
of crack. See United States v. Poole, 538 F.3d 644, 645 (6th Cir. 2008) (“The
government agrees that the case should be remanded . . . .”). When applicable, the
proper procedure for this court to follow is to affirm the sentence and remand if the
amendment would alter the Guidelines range for this particular defendant. Id. at 645;
U.S.S.G. § 1B1.10(a)(2)(B) (Resentencing a defendant “is not consistent with this policy
statement and therefore is not authorized under 18 U.S.C. 3582(c)(2) if” the reduction
“does not have the effect of lowering the defendant’s applicable guideline range . . . .”).
If Simmons were resentenced today, he would start out with a base offense level of 24
(more than 5 grams, but less than 20 grams of cocaine base). He would then get a two-
level enhancement for a firearm, and a three-level reduction for accepting responsibility,
leaving him with a total offense level of 23. The Guidelines range for a Category VI
offender is 91-115 months. As a result, the two-level reduction would have the effect
No. 07-3449 United States v. Simmons Page 24

of lowering his guideline range from his current range of 110-137 months, and therefore
the Guidelines do not preclude application of § 3582(c).

V

For the foregoing reasons, we AFFIRM Simmons’s sentence and REMAND the
case for possible consideration under the 2007 Amendments.
No. 07-3449 United States v. Simmons Page 25

_________________

DISSENT
_________________

CLAY, Circuit Judge, dissenting. On direct appeal, Defendant Curtis A.
Simmons (“Simmons”) argues that his 116-month sentence, a term within the range
recommended under the advisory Sentencing Guidelines, is procedurally and
substantively unreasonable. In challenging the procedural aspects of his sentence,
Simmons contends that the district court failed to consider all of the arguments that he
raised under 18 U.S.C. § 3553(a) in support of a lower sentence. Although Simmons
raised a number of arguments before the sentencing court, his central argument was that
the then-applicable sentencing range recommended under the Guidelines for offenses
involving crack cocaine was significantly and unjustifiably harsher than the range
recommended for offenses involving powder cocaine.

Simmons first raised this “crack/powder disparity” argument in the sentencing
memorandum he filed prior to his sentencing hearing. The government did not file a
response to Simmons’ memorandum or otherwise challenge his crack/powder disparity
argument at the time. Simmons reiterated this argument at the sentencing hearing,
arguing that the 100-to-1 sentencing ratio prescribed by the Guidelines at that time
“results in a huge disparity in sentencing.” J.A. 70. In presenting this argument,
Simmons urged the court to consider that the Guidelines’ “100-to-1 ratio is advisory.”
J.A. 70. Although Simmons repeatedly raised this crack/powder disparity argument as
the basis for a downward variance, and despite the fact that defense counsel asserted this
argument mere moments before the court began pronouncing Simmons’ sentence, the
district court did not address the issue.

After pronouncing Simmons’ sentence, the district court asked, as required by
our decision in United States v. Bostic, 371 F.3d 865, 872 (6th Cir. 2004), whether the
parties had “any objections to the sentence just pronounced that have not been previously
raised?” J.A. 77 (emphasis added). Although defense counsel responded in the
No. 07-3449 United States v. Simmons Page 26

affirmative, she objected “just for the record for the procedural, substantive aspects.”
J.A. 77.

On appeal, Simmons challenges, inter alia, the district court’s failure to consider
and adequately explain its reasons for rejecting his crack/powder disparity argument.
Before evaluating the merits of Simmons’ claim, we first must determine what standard
of review applies, which in turn requires us to determine whether Simmons preserved
this claim for appeal.1 According to the majority, whether Simmons forfeited this claim
hinges entirely on the adequacy of defense counsel’s post-sentencing objection, which,
the majority insists, must be considered in isolation. I strongly disagree. Not only is the
majority’s reasoning contrary to our prior published precedent, it also directly conflicts
with Supreme Court authority and is in tension with the fundamental principles
underlying our decisions in this area.

For whatever reason, the majority has chosen to ignore the fact that this Court
has expressly held that a defendant’s arguments during sentencing raising a basis for a
downward departure are sufficient—standing alone and without a distinct, post-
sentencing objection—to preserve for appeal a failure-to-consider procedural claim.
See, e.g., United States v. Blackie, 548 F.3d 395, 398 (6th Cir. 2008) (“We review for
reasonableness [defendant’s] claim that the district court failed to consider his family ties
and responsibilities at sentencing because he had raised the issue prior to and during

1
Confusingly, the majority relies on Bostic to “stress” that defense counsel’s failure to articulate
the specific substantive basis for her objection implicates the standard of review in that “the claim is
subject to a more deferential standard of review on appeal.” Majority Opinion (“Maj. Op.”) at 11 n.6. For
what purpose the majority “stresses” this point is unclear, but, regardless, it rests on a false distinction.
In contrast to claims of error that a party properly preserves for appeal pursuant to Federal Rule of
Criminal Procedure 51(b), the plain-error standard set forth in Rule 52(b) applies only to those “errors that
were forfeited because not timely raised in district court.” United States v. Olano, 507 U.S. 725, 731
(1993) (emphasis added). Notwithstanding the majority’s suggestion, nothing in this Court’s decision in
Bostic is to the contrary. In fact, the sentence immediately preceding the line from Bostic on which the
majority relies makes clear that the rule announced in that case was intended to help this Court determine
what claims a party had “forfeited” by failing to raise them below. 371 F.3d at 872 (“If the district court
fails to provide the parties with this opportunity, they will not have forfeited their objections and thus will
not be required to demonstrate plain error on appeal.” (emphasis added)). This Court’s subsequent
application of Bostic confirms that this rule relates to a party’s right to raise a claim of procedural error
on appeal. See, e.g., United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc) (holding that
defendant’s failure to object at the time of sentencing “undermine[s] his right to challenge the adequacy
of the court’s explanation for the sentence” (emphasis added)). Not only is the distinction that the majority
attempts to draw contrary to our case law, it is especially confusing given that the majority repeatedly
states that plain-error review applies in this case because Simmons’ general objection was insufficient to
“preserve” his procedural claims for appeal. See Maj. Op. at 9.
No. 07-3449 United States v. Simmons Page 27

the sentencing hearing, thus preserving it for appeal.” (emphasis added)). In other
words, regardless of whether Simmons’ counsel raised an adequate post-sentencing
objection, our decision in Blackie indicates that Simmons’ arguments “prior to and
during the sentencing hearing” were sufficient on their own to preserve his claim that the
district court failed to consider his crack/powder disparity argument.

Even if we were to disregard this approach, our case law also suggests that
defense counsel’s post-sentencing objection, although imprecise, was sufficient to
preserve this claim because it expressly brought to the district court’s attention
Simmons’ concern that the court had committed a “procedural” error in pronouncing
sentence. While it is true that “[n]o one would call this [objection] ideal,” Vonner, 516
F.3d at 386, it nevertheless was sufficient under our case law to preserve Simmons’
procedural claims for appeal. See United States v. Herrera-Zuniga, 571 F.3d 568, 581
n.7 (6th Cir. 2009) (“Regardless of whether defense counsel had asserted a more detailed
objection at the time of sentencing, the sentencing transcript indicates that the district
court was not going to correct this issue ‘on the spot,’ as the sentencing judge already
had stated that he believed that he had the authority to reject the advisory sentencing
range on this basis. In this circumstance, it is difficult to imagine any practical reason
to require a defendant to raise an objection that is patently futile. Vonner does not
require such formalism.”). At a minimum, defense counsel’s objection was sufficient
to satisfy the majority’s concern that an objection must “signal[]” to the district court
that the defendant is asserting a “new and different objection.” See Maj. Op. at 9 n.4.

According to the majority, Simmons’ arguments prior to and during the
sentencing hearing raised a substantive claim that is distinct—purportedly in some
significant way—from his procedural claim that the court failed to consider his disparity
argument. Based entirely on that technical distinction, the majority concludes that
defense counsel “never questioned the adequacy of the court’s explanation or the court’s
failure to address Simmons’s argument about the disparate treatment of crack and
powder cocaine.” Maj. Op. at 9. This argument is unpersuasive. Even if the majority
is correct that Simmons’ prior substantive arguments are distinct from the procedural
No. 07-3449 United States v. Simmons Page 28

claims he raises on appeal, defense counsel’s post-sentencing objection undoubtedly
signaled to the sentencing judge that Simmons was raising a new and different
“procedural” objection. According to the majority, Simmons’ prior arguments could not
have preserved his “procedural” claim for appeal because any such claim did not arise
until the district court finished pronouncing Simmons’ sentence. But if that is true, then
defense counsel’s post-sentencing “procedural” objection necessarily asserted a “new
and different objection” because Simmons’ procedural claim did not exist until that
moment. The only question, therefore, is whether defense counsel’s objection was
sufficiently specific to preserve this specific procedural claim for appeal.

As to this issue, the majority concludes that defense counsel’s objection “was not
specific enough to give the district court an opportunity to correct the alleged error . . .
[because it left] the sentencing judge to guess what additional objections defense counsel
sought to preserve.” Maj. Op. at 9. I disagree. In light of Simmons’ repeated arguments
regarding the crack/powder disparity, and considering that this was Simmons’ central
argument in favor of a downward departure and that defense counsel had raised this
issue mere moments before the district court began sentencing Simmons, it would be
unreasonable to expect defense counsel to rehash the issue for a third time when she
voiced her new “procedural” objection. See Herrera-Zuniga, 571 F.3d at 581 n.7
(rejecting the notion that defense counsel is required to assert “a more detailed objection
at the time of sentencing” where such an objection would not “help clarify the record or
encourage the resolution of the issue”). If the district court was at all confused about
what “procedural” claim defense counsel was seeking to preserve for appeal, then he
should have asked for clarification.

The majority concludes that defense counsel’s objection was too vague only
because it has defined the parameters of our inquiry so narrowly that Simmons’ prior
arguments are rendered entirely irrelevant. In defending the narrow scope of its inquiry,
the majority lays out a jumbled confusion of maxims that are contrary to our prior
precedent and internally inconsistent. The majority insists that “[w]e must determine
whether defense counsel’s vague response to the Bostic question is sufficient to secure
No. 07-3449 United States v. Simmons Page 29

a lower standard of review for the defendant’s procedural objection.” Maj. Op. at 8
(emphasis added). The majority defends this narrow focus by arguing that the rule we
adopted in Bostic somehow obviates the need to conduct a contextual inquiry when
considering the adequacy of a party’s objection. See Maj. Op. at 10 n.5.

As I explain below, our decision in Bostic did nothing of the sort. As the
majority is well aware, our decision in Bostic certainly did not speak to any issues
regarding the nature of our inquiry into whether a party’s post-sentencing objection is
sufficient to preserve a claim for appeal. Nor did our decision in Bostic address in any
way whether a party’s arguments during sentencing are sufficient to do so. In fact, our
decision in Bostic imposed upon the sentencing judge—not the defendant—a new
procedural requirement to help this Court determine whether the sentencing judge
provided the parties an adequate opportunity to object. 371 F.3d at 872. If anything,
then, our decision in Bostic implies that it is the sentencing judge’s responsibility to
make sure that the record is clear, and thus suggests that follow-up inquiry by the court
in this case would have been appropriate. Nor did our decision in Vonner address either
of these issues. In fact, our decision in Vonner encouraged “a common-sense application
of the plain-error doctrine,” and specifically emphasized that we apply that standard
“with an eye to the realities of the facts and circumstances of each sentencing
proceeding.” 516 F.3d at 391. Rather than eliminate the need for a contextual inquiry,
Vonner thus actually seems to require one. Id. at 390 (requiring that we review whether
an objection has been “previously raised”). Despite the majority’s best efforts, the
narrow inquiry it endorses cannot be squared with the “common-sense” approach
endorsed by, and indeed required under, our decisions in Bostic and Vonner. See, e.g.,
Herrera-Zuniga, 571 F.3d at 580-81 (emphasizing the “practical” underpinnings of the
Bostic procedure and Vonner’s forfeiture rule).

In any event, regardless of whatever the majority believes our decisions in Bostic
and Vonner imply with respect to the scope of our inquiry, the Supreme Court has made
clear that, in determining whether a party has preserved a claim for appeal, we are
obliged to consider the context in which a party raises (or fails to raise) an objection,
No. 07-3449 United States v. Simmons Page 30

including the substance of a party’s prior arguments. In Osborne v. Ohio, 495 U.S. 103
(1990), for instance, the Court explicitly reviewed the “sequence of events” that
transpired in the proceedings at issue in that case before concluding that “counsel’s
failure to object on this point does not prevent us from considering [defendant’s]
constitutional claim . . . because we are convinced that [defendant’s] attorney pressed
the issue . . . before the trial court and, under the circumstances, nothing would be
gained by requiring [defendant’s] lawyer to object a second time.” Id. at 124-25
(emphasis added). The majority’s insistence that defense counsel’s post-sentencing
objection must stand “on its own” is directly contrary to the approach endorsed by the
Supreme Court.

For these and the reasons set forth below, I cannot support the scope of the
inquiry conducted by the majority, nor its determination that plain-error review applies
here.

I also cannot accept the majority’s determination that, regardless of what
standard of review applies, remand is not required. Our case law makes abundantly clear
that a district court commits procedural error by failing to address a defendant’s central
argument in favor of a below-Guidelines sentence. Ignoring the overwhelming weight
of controlling authority, the majority concludes that the district court’s failure to address
Simmons’ central argument in favor of a lower sentence was “not an error” in this case
because the court “appears to have considered and implicitly rejected the argument.”
Maj. Op. at 17 (emphasis added). The majority is able to reach that conclusion only by
accepting the government’s unfounded assertion that a sentencing court can rule on a
defendant’s nonfrivolous claims by implication if it finds them to be without merit. See
Maj. Op. at 17-18. Both the majority’s holding and the reasoning underlying it are
directly contrary to the overwhelming weight of authority. In literally dozens of reported
cases, this circuit has rejected the majority’s approach, holding instead that a district
court is required not only to consider a defendant’s claims, but also to adequately
explain its reasons for rejecting them. See infra Part V.C. Even under the deferential
No. 07-3449 United States v. Simmons Page 31

plain-error standard, the district court’s utter failure to address Simmons’ patently
nonfrivolous argument constitutes reversible error.

Even more troubling, however, is just how fundamentally unbalanced and unjust
the approach endorsed by the majority is. On the one hand, the majority is willing to
speculate as to what the district court “appears” to have “implicitly” considered, while
on the other hand faulting defense counsel for not “specifically” identifying the
procedural errors to which she was objecting. The majority also insists that the
procedural rule confirmed in Vonner somehow eliminates the need for a contextual
inquiry when determining the sufficiency of a defendant’s objection, despite the fact that
Vonner explicitly requires us to conduct such a contextual review when evaluating the
sufficiency of the district court’s sentencing pronouncement. See Vonner, 516 F.3d at
387 (explaining that a “lengthy explanation” of the sentence chosen may not be required
in all cases “because ‘[c]ircumstances may well make clear that the judge rests his
decision upon the Commission’s own reasoning that the Guidelines sentence is a proper
sentence’” (quoting Rita v. United States, 551 U.S. 338, 357 (2007)); see also Rita, 551
U.S. at 356 (“The appropriateness of brevity or length, conciseness or detail, when to
write, what to say, depends upon circumstances.”).

In both respects, the majority’s decision typifies a troubling imbalance that
plagues our case law in this area. It also reveals that the majority’s professed concern
for clarity in this area is disingenuous. If the majority truly was interested in adopting
rules that will lead to a clear record for appeal, then its first order of business obviously
should be to hold the district court accountable for failing to address Simmons’ primary,
repeated, and nonfrivolous argument in favor of downward departure. Instead, the
majority bends over backward to guess at whether the court considered Simmons’
argument. It makes no sense, and is fundamentally unfair, to place the burden for
creating an adequate record for appeal on criminal defendants rather than district court
judges.

Let me be clear: I acknowledge that we are bound to apply the rule that the en
banc majority announced in Vonner, but I emphatically reject the assertion that Vonner
No. 07-3449 United States v. Simmons Page 32

requires the outcome reached by the majority. The narrow scope of the majority’s
inquiry and its insistence on a rigid application of the plain-error standard is contrary to
the “common-sense” approach required under Vonner, and repeatedly confirmed in
subsequent reported decisions. If the majority is right, however, and Vonner requires
either the inquiry undertaken or the outcome reached by the majority, then the time has
come for this Court to reconsider the wisdom of our decision in Vonner. And if this
Court is unwilling to acknowledge its mistake, then perhaps the Supreme Court should
intervene to rectify this imbalance.

I.

On June 29, 2006, a federal grand jury returned a superseding indictment
charging Simmons with six counts of various firearms and narcotics offenses.
Specifically, Simmons was charged with three counts of being a previously convicted
felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2),
two counts of possession with intent to distribute crack cocaine, in violation of 21 U.S.C.
§ 841(a)(1), and one count of possession with intent to distribute over five grams of
crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii). The charges
against Simmons stemmed from three separate incidents, each involving Simmons being
arrested while in possession of crack cocaine and a loaded weapon.

On October 11, 2006, Simmons pleaded guilty, pursuant to a plea agreement, to
one count of being a felon in possession of a firearm and the count charging him with
possession with intent to distribute over five grams of crack cocaine. Consistent with
the plea agreement, the Presentence Investigation Report (“PSR”) found that Simmons
was responsible for a total of 11.7 grams of crack cocaine, an amount equal to the total
weight of all three possession charges listed in the indictment. The PSR determined that
the amount of crack cocaine at issue supported a base offense level of 26.2 The PSR also

2
Effective November 1, 2007, United States Sentencing Guideline (“U.S.S.G.”) § 2D1.1(c) was
amended to reduce by two offense levels the base offense level for most crack cocaine offenses. See
U.S.S.G., App. C, amend. 706. Effective March 3, 2008, Amendment 706 was made retroactive, thus
permitting defendants serving eligible sentences to file a motion for a sentence reduction under 18 U.S.C.
§ 3582(c)(2). See 73 Fed. Reg. 217, 220 (Jan. 2, 2008).
No. 07-3449 United States v. Simmons Page 33

concluded that the felon-in-possession charge supported a two-level enhancement. The
PSR thus recommended a total offense level of 28. Simmons’ offense level then was
reduced by 3 levels based on his timely acceptance of responsibility. The probation
officer also determined that Simmons had a total of 15 criminal history points, and thus
was a category VI offender. Taken together, these elements supported an advisory
sentencing range of 110 to 137 months imprisonment.

Although neither party objected to the PSR’s Guidelines calculations, Simmons
filed a sentencing memorandum prior to the sentencing hearing urging the district court
to impose a sentence below the advisory Guidelines range and outlining several factors
pursuant to 18 U.S.C. § 3553(a) that he believed supported such a downward variance.
The memorandum raised issue regarding Simmons’ personal history, his character, and
the nature of his offenses. Primarily, however, Simmons’ memorandum focused on the
fundamental unfairness of the “100-to-1 sentencing ratio” then applicable under the
Guidelines to offenses involving crack cocaine as compared to offenses involving
powder cocaine. The government did not file a response to Simmons’ memorandum.

At the sentencing hearing, the government urged the court to impose a sentence
at the low end of the advisory sentencing range. The court then heard argument from
defense counsel and Simmons himself. As with his sentencing memorandum, the
primary focus of Simmons’ argument in favor of a below-Guidelines sentence was that
the crack/powder sentencing disparity was fundamentally unfair and resulted in an
advisory sentencing range for crack offenses that was unnecessarily harsh. After hearing
from both sides, the district court sentenced Simmons to 116 months imprisonment. In
pronouncing Simmons’ sentence, the court briefly discussed Simmons’ personal history
and characteristics, as well as the nature and circumstances of the offenses. The district
court never addressed Simmons’ arguments regarding the crack/powder disparity.

After pronouncing Simmons’ sentence, the court asked the parties whether they
had “any objections to the sentence just pronounced that have not been previously
raised?” J.A. 77. Defense counsel responded in the affirmative, stating: “Your Honor
I object just for the record for the procedural, substantive aspects.” J.A. 77.
No. 07-3449 United States v. Simmons Page 34

II.

The first question we face is what standard of review applies to Simmons’ claim
that the district court failed to consider and failed to adequately explain its reasons for
rejecting his crack/powder disparity argument. For its part, the majority concludes that
Simmons has forfeited this claim and thus our decision in Vonner requires that plain-
error review applies. I respectfully disagree.

A.

“Post-Booker, we review a district court’s sentencing determination, ‘under a
deferential abuse-of-discretion standard,’ for reasonableness.” United States v. Bolds,
511 F.3d 568, 578 (6th Cir. 2007) (quoting Gall v. United States, 552 U.S. 38, 128 S. Ct.
586, 591 (2007)); see also Rita, 551 U.S. at 347-50. This standard applies “[r]egardless
of whether the sentence imposed is inside or outside the Guidelines range.” United
States v. Studebaker, 578 F.3d 423, 430 (6th Cir. 2009) (quoting Gall, 128 S.Ct. at 597).

To determine whether a defendant’s sentence is “reasonable,” this Court must
examine both the procedural and substantive aspects of the sentencing court’s decision.
United States v. Jones, 445 F.3d 865, 869 (6th Cir. 2006). Whereas a sentence is
substantively unreasonable if the length of the sentence is “greater than necessary” to
achieve the sentencing goals set forth in 18 U.S.C. § 3553(a), the district court commits
“significant procedural error” by “failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing to consider the
[18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence – including an explanation for any
deviation from the Guidelines range,” Gall, 128 S.Ct. at 597.

Unlike claims relating to the substantive aspects of his or her sentence, a
defendant generally must preserve procedural challenges for appeal. See Vonner, 516
F.3d at 385-86. Any claim not preserved for appeal is subject to review for plain error.
Id.; Fed. R. Crim P. 52(b). This forfeiture rule, however, applies only where the relevant
party was given an adequate opportunity to object. Fed. R. Crim. P. 51(b) (“If a party
No. 07-3449 United States v. Simmons Page 35

does not have an opportunity to object to a ruling or order, the absence of an objection
does not later prejudice that party.”).

In many cases, this Court “wrestled with the difficulty of ‘parsing a [sentencing]
transcript to determine whether . . . a party had a meaningful opportunity to object’ and
of determining whether plain-error review should apply.” Vonner, 516 F.3d at 385
(quoting Bostic, 371 F.3d at 873 n.6). Therefore, “[i]n an effort to bring some clarity to
the matter and to ensure that plain-error review applied only when the parties fairly were
given a chance to object to the sentencing procedure,” Vonner, 516 F.3d at 385, we
adopted a rule requiring district courts, after announcing the defendant’s sentence, to
“ask the parties whether they have any objections to the sentence . . . that have not
previously been raised,” Bostic, 371 F.3d at 872. Where the sentencing judge asks this
question but a party fails to raise any objections “not previously raised,” the defendant
forfeits all unpreserved claims and plain-error review applies on appeal. Vonner, 516
F.3d at 385-86.

In defending this rule, the en banc majority in Vonner explicitly encouraged “a
common-sense application of the plain-error doctrine,” and instructed reviewing courts
to consider “the realities of the facts and circumstances of each sentencing proceeding”
before concluding that plain-error review was required. Id. at 391. Our subsequent
decisions have confirmed this flexible approach, explaining that “the Bostic procedure
and the Vonner forfeiture rule were adopted to serve practical ends, [and thus] it would
be inappropriate to construe those requirements as formal and inflexible procedural
protocols.” Herrera-Zuniga, 571 F.3d at 580.

B.

Despite the obvious and significant differences between the issues we addressed
in Bostic and Vonner and those we confront in this case, the majority insists that
resolving Simmons’ claims requires “only the application, not extension, of the
underlying rule set forth in [Bostic and Vonner].” Maj. Op. at 6. I respectfully disagree.
No. 07-3449 United States v. Simmons Page 36

Although Bostic and Vonner provide a general framework for determining what standard
of review applies, they do not dispose of the unique questions we face in this case.

There is no dispute that Simmons repeatedly asserted during earlier stages of his
sentencing proceedings the substantive argument that he alleges the district court failed
to consider. There also is no question that, unlike the facts presented in either Bostic or
Vonner, defense counsel asserted a post-sentencing procedural objection. For that
reason, determining the applicable standard of review in this case forces us to confront
two related questions that we simply did not address in either Bostic or Vonner: first,
whether Simmons’ prior arguments standing alone were sufficient to preserve his right
to challenge the procedural aspects of his sentence on appeal; and second, whether
defense counsel’s objection, taken together with Simmons’ prior arguments, was
sufficient to preserve his procedural claims. Other than a few comments in dicta, our
decisions in Bostic and Vonner provide little to no guidance in resolving either of these
questions.

The question before us in Bostic was not whether or under what circumstances
a general objection is sufficient to preserve an issue for appeal, but rather how we are
to determine whether a party was “given an opportunity to argue its opposition either
before or after the district court pronounced [the defendant’s] sentence.” 371 F.3d at
870. The defendant in that case, pursuant to a written plea agreement, pleaded guilty to
two firearms charges. Prior to sentencing, the defendant filed a motion for a downward
departure. The government “did not file any papers opposing that motion.” Id. at 870.
At the sentencing hearing, the district court questioned the defendant about the issue and
then asked, “Now, what does the U.S. Attorney have to say about this?” Id. at 870.
Counsel responded that the government was aware of the motion but then changed the
subject and began discussing an unrelated “evidentiary matter.” Id. After hearing from
both sides on the evidentiary issue, the district court returned to the defendant’s motion
and granted a downward departure under U.S.S.G. § 5H1.1 based on “the defendant’s
age, infirmity and poor health.” Id. at 867. After pronouncing sentence, the district
No. 07-3449 United States v. Simmons Page 37

court adjourned the sentencing hearing without explicitly giving the government an
opportunity to object. Id. at 870.

On appeal, the government challenged the reasonableness of the district court’s
sentence, arguing, inter alia, that the district court should not have granted the
defendant’s motion for a downward departure. In determining what standard of review
applied, we considered whether the government’s failure to lodge an objection to the
defendant’s motion for a downward departure should be “excused” because, according
to the government, the sentencing judge failed to provide the government an adequate
“opportunity to object” as required under Rule 51(b). Id. at 870-71.

In resolving the matter, we noted the difficulty of “parsing a [sentencing]
transcript to determine whether . . . a party had a meaningful opportunity to object” to
the sentence pronounced by the district court. Id. at 873 n.6. Exercising our inherent
supervisory powers over district courts, we announced a “new procedural rule” requiring
district courts, after pronouncing sentence, “to ask the parties whether they have any
objections to the sentence just pronounced that have not previously been raised.” Id. at
872 (emphasis added). We reasoned that this new procedural rule would serve several
related goals, including: (1) providing the parties “a final opportunity” to make “any
objections not previously raised”; (2) alerting the sentencing judge to any mistakes
which may have been made in pronouncing the defendant’s sentence, and thus providing
the court an opportunity “to correct on the spot any error it may have made”; and
(3) creating a more reliable record for this Court to determine “precisely which
objections have been preserved” for appeal. Id. at 872-73 (citations omitted). In
defining the scope of this new rule, we repeatedly emphasized that the rule applied only
to those objections that “have not previously been raised.” Id. at 872-73 (emphasis
added).

Our decision in Bostic thus requires that, to avoid plain-error review on appeal,
a party must raise any objections regarding the district court’s application of the
§ 3553(a) factors during the sentencing hearing. But nothing in our decision in Bostic
suggests that a post-sentencing objection is the only way to preserve a claim for appeal.
No. 07-3449 United States v. Simmons Page 38

Nor does Bostic impose upon the defendant the obligation to challenge the “procedural
reasonableness” of his sentence before the district court. In fact, because reasonableness
is the appellate standard of review, Rita, 551 U.S. at 351, it would be improper for a
defendant to raise such issues before the sentencing court. See United States v. Cruz,
461 F.3d 752, 754 (6th Cir 2006) (“[R]easonableness represents the standard of appellate
review, not the standard by which a district court imposes a sentence.”).

On any reading, our decision in Bostic also does not speak to whether a general
post-sentencing objection is sufficient to preserve a procedural claim where that party
already has asserted the substantive grounds for that objection at earlier stages of the
sentencing hearing. Our decision in Bostic did not address that issue for the obvious
reason that the government had failed to advise the district court of its opposition to the
defendant’s request for a downward departure at any point during the sentencing
proceedings. As the Bostic court explicitly noted, the government not only failed to file
“any papers opposing that motion,” the government’s statements at the sentencing
hearing also “did not inform the district court or defense counsel whether or not the
government opposed the downward-departure motion.” Id. at 870, 871.

The only aspect of our decision in Bostic that is even arguably relevant is the
statement in dicta that a party “must ‘object with that reasonable degree of specificity
which would have adequately apprised the trial court of the true basis for his objection.’”
371 F.3d at 871 (quoting United States v. LeBlanc, 612 F.2d 1012, 1014 (6th Cir. 1980)).
We reasoned that “[r]equiring clear articulation of any objection and the grounds
therefor, ‘will aid the district court in correcting any error, tell the appellate court
precisely which objections have been preserved and which have been [forfeited], and
enable the appellate court to apply the proper standard of review to those preserved.’”
Id. at 873 (quoting United States v. Jones, 899 F.2d 1097, 1102-03 (11th Cir. 1990),
overruled on other grounds by United States v. Morrill, 984 F.2d 1136 (11th Cir. 1993)).
Because the government had failed to make any objection, however, our decision in
Bostic offers absolutely no guidance as to what constitutes a “reasonable degree of
specificity.” Nor did we consider in Bostic whether arguments made at earlier stages of
No. 07-3449 United States v. Simmons Page 39

the sentencing hearing affect the obligation to state “the grounds” for any objection. In
other words, these statements are dicta in the truest sense.

Our decision in Vonner is similarly unhelpful because, once again, the defendant
in that case failed to assert a post-sentencing objection. Contrary to the majority’s
suggestion, our decision in Vonner thus offers little to no insight into how we are to
determine whether a general objection is sufficient to preserve a procedural claim for
appeal. If anything, our decision in Vonner supports a broader review than that
conducted by the majority here.

Over several vigorous dissents, the en banc majority in Vonner put teeth to the
rule announced in Bostic, essentially bifurcating the procedural burden for defendants
who seek to challenge their sentence on appeal. In clarifying the “import” of the Bostic
rule, however, the Vonner majority emphasized:

The point of the [Bostic] question is not to require counsel to repeat
objections or, worse, to undo previously raised objections. It is simply
to give counsel one last chance to preserve objections for appeal that
counsel has not yet seen fit to raise or has not yet had an opportunity to
raise.

516 F.3d at 390 (emphasis added). The Vonner majority also explained that defendants
are not required to challenge the reasonableness of their sentences in front of the district
court, and explicitly stated that “neither the defense nor the government, in response to
the Bostic question, has any obligation to raise objections already made.” Id.
Reiterating a fundamental premise of Bostic, the Vonner majority also emphasized that
plain-error review applies only to “arguments for leniency that the defendant does not
present to the trial court.” Id. at 392 (emphasis added).

Our decision in Vonner thus expressly and unequivocally limits the scope of the
plain-error standard to those claims that a party “never presented . . . to the district
court,” and requires a post-sentencing objection only as to those claims that the party
No. 07-3449 United States v. Simmons Page 40

“has not yet had the opportunity to raise.”3 Id. (emphasis added). Because we confront
neither of those circumstances here, Vonner does not require the application of plain-
error review in this case.

Our decision in Vonner also does not support the majority’s suggestion that a
post-sentencing objection is required to preserve a procedural claim for appeal. In
Vonner, we held only that, “[i]f a sentencing judge asks this question and if the relevant
party does not object, then plain-error review applies on appeal to those arguments not
preserved in the district court.” 516 F.3d at 385 (emphasis added). We did not hold,
however, that raising an objection after the court pronounced sentence is the only way
to preserve an argument for appeal. In fact, the numerous assurances in both Bostic and
Vonner that this new procedural rule applied only to those arguments that a party “had
never presented” to the district court strongly suggest that a post-sentencing objection
is not always required.

In any event, to read our decision in Vonner as creating some inflexible rule that
demands application of plain-error review any time a defendant fails to raise a post-
sentencing objection, as the majority does today, would be contrary to the
“common-sense application of the plain-error doctrine” explicitly endorsed by the en
banc majority in that case. Id. at 391; accord Herrera-Zuniga, 571 F.3d at 580
(confirming that “the Bostic procedure and the Vonner forfeiture rule were adopted to
serve practical ends, [and thus] it would be inappropriate to construe those requirements
as formal and inflexible procedural protocols”).

3
Although purely dicta, the Vonner majority did surmise that, “[a]s best we can tell from our
cases applying Bostic, the rule is thus apt to be relevant in three principal settings—where it is unclear
whether the district court, in announcing its proposed sentence, considered all of the § 3553(a) factors,
adequately explained its reasons for imposing the sentence or adequately addressed the parties’ sentencing
arguments.” 516 F.3d at 390. Critically, however, the Vonner majority did not venture a guess as to
whether a defendant also is required to restate the substantive basis of his or her objection in any of those
three situations if he or she already had set forth the substance of the objection at an early stage of the
sentencing hearing and subsequently responded to the Bostic question in the affirmative, as occurred here.
No. 07-3449 United States v. Simmons Page 41

C.

The majority’s determination that Simmons has forfeited his procedural claims
not only reaches beyond the scope of our decisions in Bostic and Vonner, it also is
contrary to our subsequent case law.

In United States v. Blackie, supra, the defendant, Kerry Blackie (“Blackie”),
claimed on appeal that the district court had “failed to consider” various arguments that
he had raised under § 3553(a) in favor of a lower sentence. 548 F.3d at 398. As in
Simmons’ case, one of Blackie’s arguments related to unwarranted sentencing
disparities. Also like Simmons’ case, although Blackie had raised his disparity argument
“prior to and during the sentencing hearing,” defense counsel made “no objection”
regarding the court’s failure to address his disparity argument. Id. Notwithstanding
defense counsel’s failure to raise the issue in a post-sentencing objection, we held that
plain-error review did not apply to the defendant’s (technically distinct) procedural
claim. On the contrary, we explicitly held that Blackie’s prior arguments were sufficient
to “preserv[e] it for appeal.” Id.

Because the facts and circumstances of this case are on all fours with those
presented in Blackie, we are compelled to follow the reasoning and holding of Blackie.4
See 6 Cir. R. 206(c) (“Reported panel opinions are binding on subsequent panels. Thus,
no subsequent panel overrules a published opinion of a previous panel.”); Salmi v. Sec’y
of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985) (holding that prior
reported panel decisions are binding on all subsequent panels “unless an inconsistent
decision of the United States Supreme Court requires modification of the decision or this
Court sitting en banc overrules the prior decision”). In fact, there is a greater argument

4
The majority misrepresents both the dissent’s argument regarding the import of Blackie and the
holding of the case itself. Blackie’s objection to the court’s alleged lack of consideration of his family ties
was procedural as well as substantive. Blackie alleged that the district court had not properly considered
the relevant § 3553(a) factors, which this Court reviewed for reasonableness by first concluding that the
district court had addressed the factors, i.e., this aspect of the sentencing was procedurally reasonable, and
that the district court’s weighing of those factors was not an abuse of discretion, i.e., the sentence was
substantively reasonable. Therefore, Blackie does direct this Court to engage in a reasonableness review,
rather than a plain error review, of a procedural objection that was not raised post-sentencing but was
raised “prior to and during the sentencing hearing.” 548 F.3d at 398.
No. 07-3449 United States v. Simmons Page 42

that plain-error review does not apply here given that Simmons’ counsel, unlike
Blackie’s counsel, at least raised a procedural objection “for the record” after sentencing.

Our holding in Blackie that post-sentencing objection is not required to preserve
a procedural claim for appeal does not stand alone. On the contrary, this Court
repeatedly has held that a party is not always required to assert a post-sentencing
objection to preserve such claims. See Herrera-Zuniga, 571 F.3d at 581 n.7 (rejecting
the notion that defense counsel is required to assert a post-sentencing objection to
preserve certain procedural claims for appeal); United States v. Grams, 566 F.3d 683,
686 n.1 (6th Cir. 2009) (per curiam)5 (declining to apply plain-error review even though
defense counsel did not object after sentencing). The majority’s application of plain-
error review cannot be squared with the holding and reasoning of these controlling cases.

III.

Not only is the majority’s ultimate conclusion that Simmons forfeited his
procedural claims in error, so too is its entire approach to this question. In defining the
parameters of its forfeiture inquiry, the majority insists that defense counsel’s post-
sentencing objection must stand on its own. Maj. Op. at 8 (stating that “we must
determine whether defense counsel’s vague response to the Bostic question is sufficient
to secure a lower standard of review for the defendant’s procedural objection”).
According to the majority, Simmons’ arguments prior to and during the sentencing
hearing are irrelevant to the forfeiture inquiry because the rule we adopted in Bostic
somehow obviates the need for us to consider such contextual factors in determining
whether a party has preserved a claim for appeal.

5
In Grams the government brought the procedural error to the attention of the Court post-
sentencing, which did not happen in Simmons’ case. However, it does not follow that in Simmons’ case
neither Bostic consideration – whether the district court had an opportunity to address the objection and
whether we have a detailed record to review – was “vindicated here.” Maj. Op. at 8 n.3. Since defense
counsel had repeatedly discussed Simmons’ 100:1 disparity argument and his procedural objection to a
sentence that did not consider that disparity, the district court had ample opportunity to address the
argument and to develop the record for review. The former Bostic consideration is certainly vindicated
here, and Simmons should not be held to a plain error standard for the district court’s error in failing to
vindicate the latter by failing to make a clear record for review.
No. 07-3449 United States v. Simmons Page 43

The approach endorsed by the majority is profoundly flawed and fundamentally
unjust.

A.

The Bostic Procedure Did Not Eliminate the Need for a Contextual Inquiry

The majority contends that the rule we adopted in Bostic has brought “clarity and
certainty” to sentencing proceedings in this circuit, and thus we no longer need to
conduct a “holistic review of the record” to determine the sufficiency of a party’s
objection. Maj. Op. at 10 n.5. Generally speaking, the majority is correct that the rule
we adopted in Bostic was intended to bring clarity to our review of sentencing
challenges. However, whatever limited clarity that the Bostic procedure has brought to
sentencing procedures in this circuit is entirely irrelevant to the question we confront in
this case.

As explained above, the issue before us in Bostic had nothing to do with
determining the adequacy of a party’s post-sentencing objection. Rather, the confusion
with which we were concerned in that case related specifically to the “difficulty of
parsing a transcript to determine whether . . . a party had a meaningful opportunity to
object.” 371 F.3d at 872 n.6. The Bostic procedure was intended to address only the
unique difficulties related to that particular issue, it was not intended to alleviate all
potential uncertainties in the sentencing process.

Nor has the Bostic procedure had any unintended effect on our obligation to
conduct a contextual inquiry in determining the adequacy of a party’s objection. An
appellate court encounters unique difficulties in trying to read between the lines to
determine whether a party had a “meaningful” opportunity to object because the
sentencing transcript cannot reflect pauses, nonverbal cues, and other elements of the
exchange between counsel and the court that may have affected whether an opportunity
was meaningful rather than fleeting. Because of this unique concern, our subsequent
case law has insisted upon a strict application of the requirements that the Bostic
procedure imposes on district courts. See United States v. Gapinski, 561 F.3d 467, 473-
No. 07-3449 United States v. Simmons Page 44

74 (6th Cir. 2009) (refusing to apply plain-error standard where the district court’s post-
sentencing inquiry was vague); United States v. Thomas, 498 F.3d 336, 340 (6th Cir.
2007) (same); United States v. Clark, 469 F.3d 568, 570 (6th Cir. 2006) (“A district
court can satisfy the requirements of the Bostic rule only by clearly asking for objections
to the sentence that have not been previously raised, and the context of the transcript in
this case reveals why this is so.”). But, because we do not confront these same concerns
in all other contexts, we have not construed the forfeiture rule we announced in Vonner
in the same manner. See Herrera-Zuniga, 571 F.3d at 581 n.7 (declining to apply plain-
error review even though defense counsel failed to include all procedural claims in the
post-sentencing objection because a holistic review of “the sentencing transcript
indicate[d] that the district court was not going to correct this issue ‘on the spot,’ as the
sentencing judge already had stated that he believed that he had the authority to reject
the advisory sentencing range on this basis”); Grams, 566 F.3d at 686 n.1 (declining to
apply plain-error review even though defense counsel “did not object [after sentencing]
to the district court’s failure to explain adequately its 72-month sentence” because “the
government brought the procedural error at issue to the district court’s attention after it
imposed sentence”)6; Vonner, 516 F.3d at 391 (“Better, we think, to leaven the rule with
a common-sense application of the plain-error doctrine and with an eye to the realities
of the facts and circumstances of each sentencing proceeding.”).

In fact, our decisions in both Bostic and Vonner expressly and repeatedly note
that plain-error review applies only to those objections that “have not previously been
raised,” see, e.g., Bostic, 371 F.3d at 872; Vonner, 516 F.3d at 390, which actually seems
to require that we review the record to determine what arguments a party already had
raised. As our decision in Vonner expressly states, a reviewing court should consider
the “circumstances of each sentencing proceeding” to determine whether plain-error
review is appropriate. 516 F.3d at 391.

6
This aspect of our decision in Grams is significant because Vonner, if read strictly, states that
plain-error review applies whenever “the relevant party does not object.” See Vonner, 516 F.3d at 385
(emphasis added). Our holding in Grams thus supports a flexible, contextual application of Vonner’s
forfeiture rule, and provides a persuasive case study as to why construing Vonner more strictly would be
counterproductive, unjust, and rather absurd.
No. 07-3449 United States v. Simmons Page 45

A review of our post-Bostic case law demonstrates that the Bostic procedure did
not eliminate the need for a contextual review beyond the limited issue we faced in
Bostic. As the majority acknowledges, “our case law and the Federal Rules of Criminal
Procedure indicate that as a procedural matter, the district judge must generally speak
to arguments that are clearly presented and in dispute.” Maj. Op. at 15. There are,
however, a few very limited exceptions to this rule. One such exception is that the
district court need not directly address “attenuated” arguments that a party raises merely
in passing. See United States v. Liou, 491 F.3d 334, 339 n.4 (6th Cir. 2007) (rejecting
the notion that a district court is required to address “each argument, whether frivolous
or non-frivolous, that a defendant even arguably raises in support of a lower sentence”
(emphasis in original)); United States v. McGee, 494 F.3d 551, 557-58 (6th Cir. 2007)
(concluding that the district court need not address arguments that are “attenuated”).
What the majority seems to overlook, however, is that this determination obviously
requires us to evaluate the manner and circumstances in which the defendant raises his
or her claim.7 If this Court has no trouble conducting such an inquiry to determine the
extent of the district court’s obligation to explain its reasoning, then we should have no
trouble conducting a nearly identical inquiry to determine the standard of review that
applies. The contextual review of the record we conducted in these decisions casts
serious doubt on the majority’s claim that the Bostic rule eliminated or in any way
diminished our obligation to consider context in assessing the sufficiency of a party’s
response to the Bostic question.

The narrow scope of the majority’s inquiry also is inconsistent with this Court’s
context-based approach to resolving other procedural sentencing errors. For instance,
Rule 32(i)(1)(A) of the Federal Rules of Criminal Procedure requires that sentencing
judges “verify that the defendant and the defendant’s attorney have read and discussed
the presentence report.” Recognizing the significant role that this requirement plays “in
ensuring a just adjudication at the sentencing hearing,” United States v. Mitchell, 243

7
Not surprisingly, our sister circuits also conduct a contextual review of the record when
evaluating whether the district court committed other procedural errors. See, e.g., United States v.
Severino, 454 F.3d 206, 214 (3d Cir. 2006) (“Isolating certain statements of the court to suggest that the
court somehow felt obligated to follow the Guidelines ignores the context of those statements.”).
No. 07-3449 United States v. Simmons Page 46

F.3d 953, 955 (6th Cir. 2001), we have required “literal compliance” with its mandate,
United States v. Tackett, 113 F.3d 603, 613 (6th Cir. 1997). Like the rule announced in
Bostic, we adopted this “literal compliance” requirement because it “helps to ensure that
defendants are sentenced on the basis of accurate information and provides a clear record
for appellate courts, prison officials, and administrative agencies who may later be
involved in the case.” Id. at 613-14 (citing United States v. Fry, 831 F.2d 664, 667 (6th
Cir. 1987)).

Notwithstanding this “literal compliance” requirement, a review of our case law
makes clear that we are willing to overlook the district court’s failure to comply with this
strict requirement where the record demonstrates that the underlying purpose of the rule
has been fulfilled. In United States v. Osborne, 291 F.3d 908 (6th Cir. 2002), for
instance, the district court unquestionably failed to inquire whether the defendant and
his counsel had reviewed the presentence investigation report. Id. at 910. Overlooking
this technical error, we conducted a “review of the hearing transcripts” to determine
whether there was any indication that the defendant and his counsel had in fact done so.
Id. at 911. We conducted a similar “review of the record” in United States v. Tate, 516
F.3d 459 (6th Cir. 2008), concluding that “the record, when viewed as a whole, does
support the inference that [the defendant] had had an opportunity to read and discuss the
revised PSR with [his counsel].” Id. at 466 (emphasis added).

The narrow and rigid inquiry conducted by the majority stands in stark contrast
to this practical approach, and the majority can offer no persuasive justification for this
discrepancy. Because the same interests underlie both the rule we adopted in Vonner
and our “literal compliance” reading of Rule 32(i)(1)(A), our review of any deviation
from those requirements should be based on similar factors, including the context in
which the alleged deviation occurred.
No. 07-3449 United States v. Simmons Page 47

B.

The Supreme Court Has Endorsed, if not Required, a Contextual Inquiry

Regardless of whatever ad hoc procedural rules this circuit has adopted, the
Supreme Court’s forfeiture jurisprudence suggests that a party’s prior arguments are
relevant in determining whether a more specific objection, or indeed any subsequent
objection, is required to preserve a claim for appeal. Our sister circuits uniformly have
adopted this approach. The majority’s insistence that Simmons’ counsel’s post-
sentencing objection “must stand on it own” thus cuts a troubling path that sets this
circuit at odds with the approach endorsed by the Supreme Court.

In order to preserve a claim for appeal, a defendant generally is required to raise
an objection which has “a specific substantive basis.” United States v. Grissom, 525
F.3d 691, 694 (9th Cir. 2008). The reason for this requirement, as we recognized in
dicta in Bostic, is that “[r]equiring clear articulation of any objection and the grounds
therefor, ‘will aid the district court in correcting any error, tell the appellate court
precisely which objections have been preserved and which have been [forfeited], and
enable the appellate court to apply the proper standard of review to those preserved.’”
371 F.3d at 873 (quoting Jones, 899 F.2d at 1102). Requiring a specific objection thus
“‘serve[s] the dual purposes of permitting the district court to correct on the spot any
error it may have made and of guiding appellate review.’” Id. (quoting Jones, 899 F.2d
at 1102).

The majority construes this requirement strictly, insisting that Simmons’ claim
is forfeited because his counsel failed to “specifically” identify the argument that the
district court failed to consider. What the majority fails to consider, however, is that
providing a “specific substantive basis” for an objection is not always necessary. Rather,
a general objection is sufficient to preserve a claim for review so long as the objection
“is ample and timely to bring the alleged . . . error to the attention of the trial court and
No. 07-3449 United States v. Simmons Page 48

enable it to take appropriate corrective action.”8 Douglas v. Alabama, 380 U.S. 415, 422
(1965). In fact, the Court has held that, in certain circumstances, a subsequent objection
is not necessary at all. See Osborne, 495 U.S. at 124 (“[C]ounsel’s failure to object on
this point does not prevent us from considering [defendant’s] constitutional claim. . . .
because we are convinced that [defendant’s] attorney pressed the issue . . . before the
trial court and, under the circumstances, nothing would be gained by requiring
[defendant’s] lawyer to object a second time.”). In both Douglas and Osborne, the
Supreme Court conducted precisely the type of inquiry that the majority claims is not
required here.

The Supreme Court’s decision in Rita also suggests that a contextual inquiry is
appropriate in this context. One of the issues the Court considered in Rita was whether
the district court satisfied its statutory obligation to “state in open court the reasons for
its imposition of the particular sentence.” 18 U.S.C. § 3553(c). The Court emphasized
that this requirement “reflects sound judicial practice” and helps promote the “public’s
trust in the judicial institution.” 551 U.S. at 356. The Court noted, however, that the
“appropriateness of brevity or length, conciseness or detail, when to write, what to say,
depends upon circumstances.” Id. The Court then went on to explain a district court
could rely on “context and the parties’ prior arguments” to make its reasons for
choosing a particular sentence clear. Id. (emphasis added). The Court’s decision in Rita
thus assumes that the appellate courts are able to, and perhaps implies that we must,
consider “context and the parties’ prior arguments” in determining whether the district
court provided an adequate explanation for its chosen sentence. If the parties’ prior
arguments are relevant in that context, certainly those same factors are relevant to
determining whether a defendant’s objection was sufficient to preserve a claim for
appeal. At the very least, Rita casts serious doubt on the majority’s supposition that a
contextual inquiry is somehow too difficult in this context.

8
Although Douglas addressed whether a defendant’s general objection raising a federal claim in
state court was adequate to preserve the federal issue for review, this same standard also governs in other
contexts, including the situation before us here. See, e.g., United States v. Williams, 985 F.2d 749, 755
(5th Cir. 1993) (applying the “general principle” announced in Douglas on direct appeal in determining
the sufficiency of defense counsel’s objection “to an earlier version of [a disputed jury] instruction” where
defense counsel “made no further objection”).
No. 07-3449 United States v. Simmons Page 49

Following Douglas, our sister circuits overwhelmingly have recognized that “a
general objection may suffice to preserve an issue for appeal” where the party already
has raised the specific substantive grounds for the objection at earlier stages of the
sentencing proceeding and the record demonstrates that the district court was—or at least
should have been—aware of the issue. See Grissom, 525 F.3d at 694-95 (finding the
government’s general objection sufficient to preserve claim because the government
“consistently advanced its view” throughout the sentencing hearing and the record
indicates that “the district court was indeed fully aware of the government’s position”);
United States v. Pineiro, 470 F.3d 200, 204-05 (5th Cir. 2006) (holding that a party is
not required “to express its objection in minute detail or ultra-precise terms,” and
concluding that the government preserved its opposition to recalculating the defendant’s
sentence by arguing throughout the sentencing hearing that the prior calculations were
still appropriate); United States v. Curry, 461 F.3d 452, 459 (4th Cir. 2006) (excusing
the government’s failure to object at the end of the sentencing colloquy where the
government argued the point vigorously throughout the hearing, such that it “made
unmistakably clear its position”); United States v. Toribio-Lugo, 376 F.3d 33, 41 (1st
Cir. 2004) (recognizing that the number of prior objections raising the same issue is
relevant to evaluating defense counsel’s failure to object yet again); United States v.
Shumard, 120 F.3d 339, 340 n.1 (2d Cir. 1997) (finding that the government “clearly
preserved [its] claims for appellate review” by “argu[ing] each of these claims at the
sentencing hearing prior to the district court’s disputed ruling”); United States v.
Thomas, 953 F.2d 107, 109 n.2 (4th Cir. 1991) (finding defense counsel’s “previous[]
object[ions]” to admission of testimony and ruling that attorney-client privilege had been
waived “were sufficient to preserve for appeal” defendant’s procedural challenge to the
propriety of the district court’s in camera proceeding because those prior objections
challenged “the basis” for the court’s ruling); United States v. Rothbart, 653 F.2d 462,
464 (10th Cir. 1981) (finding defense counsel’s general objection “lacked specificity”
but was “sufficient” to preserve claim for appeal based on prior arguments raising the
same substantive argument); see also United States v. Clark, 434 F.3d 684, 686 n.1 (4th
Cir. 2006) (declining to review the government’s argument for plain error even though
No. 07-3449 United States v. Simmons Page 50

the government “failed to object at the second sentencing hearing to the district court’s
consideration of state sentencing practices” because the government had raised the claim
in a supplemental brief submitted at an earlier stage of the sentencing proceedings). This
rule applies, according to our sister circuits, even where the party’s objection lacks a
“specific substantive basis” and regardless of the “seeming facial inadequacy of the
objection.” Grissom, 525 F.3d at 694-95. In other words, our sister circuits have roundly
rejected the proposition that a party’s objection must be adequate “on its own” to
preserve a claim for appeal.

Although the decisions of our sister circuits are not binding, we consistently have
recognized their persuasive authority. See Ass’n of Cleveland Fire Fighters v. City of
Cleveland, 502 F.3d 545, 553 n.6 (6th Cir. 2007) (“[W]hile analogous decisions from
our sister circuits are not binding, we have repeatedly recognized their persuasive
authority.”). This dictate applies with particular force in this context, both because of
the overwhelming number of other circuits to have reached the same conclusion and
because the rationale underlying those decisions flows directly from binding Supreme
Court precedent. See Osborne, 495 U.S. at 124-25; Douglas, 380 U.S. at 422 (“No
legitimate state interest would have been served by requiring repetition of a patently
futile objection, already thrice rejected, in a situation in which repeated objection might
well affront the court or prejudice the jury beyond repair.”).

As explained above, I disagree with the majority’s contention that Bostic and
Vonner instruct us to disregard a defendant’s arguments prior to and during the
sentencing hearing when determining whether a post-sentencing objection is sufficient
(or even necessary) to preserve a claim for appeal. If the majority is correct, however,
then that aspect of our decisions in those cases is contrary to Supreme Court precedent
and at odds with the overwhelming weight of persuasive authority from our sister
circuits.
No. 07-3449 United States v. Simmons Page 51

C.

A Contextual Inquiry Offers the More Sound Approach

Not only is a broader review of the record supported by the overwhelming weight
of authority, it also offers the more sound approach.

From a practical perspective, taking context into account offers the superior
approach because it eliminates the need for a defendant to reassert a claim after
sentencing where the defendant already has “made unmistakably clear its position.”
Curry, 461 F.3d at 459. Insisting that a defendant repeatedly raise the specific
substantive basis for a procedural objection also ignores that there may be legitimate
reasons for the defendant to not want to continue to press a particular argument. See
Douglas, 380 U.S. at 422. Where, as here, it is clear that a post-sentencing objection
would do nothing to advance the goals identified in Bostic, it serves no practical purpose
to punish a defendant for failing to abide by empty protocol.

Ignoring these practical concerns, the majority argues that requiring defense
counsel to restate the specific substantive grounds for any post-sentencing procedural
objection is necessary because otherwise “the Bostic question would be a meaningless
formality whereby certain magic words are uttered and any new claim may be raised on
appeal without consequence.” Maj. Op. at 9. On the contrary, although a post-
sentencing objection is not necessary to preserve for appeal those claims that the
defendant already has asserted prior to or during the sentencing hearing, the Bostic
question still helps ensure, as our decision in Bostic explained, that the parties have an
opportunity to raise any objections not previously raised.

In fact, it is the approach endorsed by the majority that effectively elevates form
over substance and improperly vests a party’s response to the Bostic question with
talismanic significance. Requiring a party to raise a post-sentencing objection makes
little sense where the party already has made its position clear or where further objection
would be futile. See Herrera-Zuniga, 571 F.3d at 581 n.7 (“it is difficult to imagine any
practical reason to require a defendant to raise an objection that is patently futile”). By
No. 07-3449 United States v. Simmons Page 52

turning a blind eye to context and circumstances, the rule adopted by the majority would
“‘force resort to an arid ritual of meaningless form,’ . . . and would further no
perceivable [governmental] interest.” James v. Kentucky, 466 U.S. 341, 349 (1984)
(quoting Staub v. City of Baxley, 355 U.S. 313, 320 (1958)). Simply put, ignoring a
party’s prior arguments transforms the “common-sense” rule we adopted in Vonner into
a rigid procedural protocol, something this Court has made clear it is “loathe to do.”
Herrera-Zuniga, 571 F.3d at 580.

As this case demonstrates, the majority’s approach also risks unfairly punishing
a defendant for inartfully phrasing an objection to a sentence that was announced
literally moments earlier, disregarding the practical difficulties that defense counsel
confront in making such objections on the spot and without the benefit of having
reviewed the transcript to determine what issues the sentencing judge failed to address.
While I believe that the record in this case shows that the district court failed to provide
an adequate explanation of its decision to reject Simmons’ crack/powder argument, the
majority evidently does not share that view. In fact, the majority is of the opinion that
the record “strongly suggests” that the sentencing judge adequately addressed the issue.
Maj. Op. at 12. If fair-minded appellate court judges who have the benefit of being able
to review and dissect the minutiae of the transcript can disagree about such matters, it
is fundamentally unfair to punish a defendant for his or her counsel’s failure to identify
the issue on the spot. The Supreme Court recognized as much in Estelle v. Smith, 451
U.S. 454 (1981), where it affirmed the Fifth Circuit’s determination that a defendant did
not forfeit his Fifth and Sixth Amendment claims by failing to raise them when objecting
to testimony introduced during his sentencing. Id. at 468. As the Fifth Circuit reasoned,
defense counsel “[could] scarcely be faulted for failing to enumerate all of the many
constitutional rights that the state violated” so soon after the state unexpectedly
presented the disputed testimony. Smith v. Estelle, 602 F.2d 694, 709 n.19 (5th Cir.
1979). Without the benefit of the transcript, it may not be possible for defense to
identify those specific aspects of the sentencing pronouncement that he or she contends
No. 07-3449 United States v. Simmons Page 53

is legally insufficient.9 The narrow scope of the majority’s inquiry fails to take into
account, as the Supreme Court has instructed, “the realities of trial.” Lee v. Kemna, 534
U.S. 362, 382 (2002).

D.

The Majority’s Stated Justification for Applying Plain-Error Review is
Fundamentally Unfair, Unpersuasive, and Contrary to Law
Notwithstanding these countervailing considerations, the majority argues that
“application of a higher standard of review in cases like this one will discourage parties
from making vague objections that deprive this court of a more complete record to
review.” Maj. Op. at 10. This argument is completely unpersuasive and reveals that the
majority fundamentally misunderstands the principles involved. Punishing Simmons for
the district court’s oversight is counterintuitive and will do almost nothing to encourage
better sentencing practices.

The record undeniably shows that Simmons raised his crack/powder disparity
argument at least twice prior to the district court’s pronouncing his sentence. The record
also makes clear that this was Simmons’ primary argument in favor of a lower sentence
and that defense counsel raised this issue for the final time mere moments before the
district court began pronouncing sentence. Because Simmons vigorously pursued this
argument at every opportunity, the sentencing court already was—or at least should have

9
The unfairness of the majority’s approach is amplified in this context because of the lingering
confusion in this circuit as to what types of claims relate to the “procedural” aspects of a defendant’s
sentence. Contrary to the majority’s suggestion, we repeatedly have recognized that the procedural and
substantive components of the reasonableness inquiry are inextricably interwoven. See United States v.
Jones, 489 F.3d 243, 252 n.3 (6th Cir. 2007) (acknowledging that the procedural and substantive
components of our reasonableness inquiry “appear to overlap”). Consequently, defense counsel may be
justifiably confused as to what types of claims need to be preserved via a post-sentencing objection, and
which require no such objection. See, e.g., United States v. Carson, 560 F.3d 566, 585 (6th Cir.2009)
(confusingly identifying “failing to consider the § 3553(a) factors” as a basis for finding a sentence
“procedurally unreasonable” and “fail[ing] to consider pertinent § 3553(a) factors” as a basis for finding
a sentence “substantively unreasonable”); United States v. Brinda, No. 07-6357, 321 F. App’x 464, 467
(6th Cir. Apr. 15, 2009) (“Here, [the defendant] says that the sentence was substantively unreasonable
because the district court failed to consider unwarranted disparities as required by 18 U.S.C.
§ 3553(a)(6).”). Given that Simmons’ claim relates to the district court’s failure to consider a pertinent
§ 3553(a) factor, the fact that this Court has identified such claims as relevant to both the substantive and
procedural aspects of our reasonableness inquiry strongly militates against applying plain error review
simply because defense counsel did not raise the issue in response to the Bostic question. See Herrera-
Zuniga, 571 F.3d at 579-81.
No. 07-3449 United States v. Simmons Page 54

been—fully aware of Simmons’ argument. Despite Simmons’ more than adequate
efforts to bring this issue to the court’s attention, the sentencing judge completely failed
to explain his reasons for rejecting the argument. Instead, the district court made one
vague reference to “unwarranted” disparities.

While there is no doubt from the record as to the substantive basis of Simmons’
request for a lower sentence, it is entirely unclear whether the sentencing judge ever
considered the issue. The majority, however, concludes that Simmons is to blame for
this mistake, reasoning that “If Simmons’s defense counsel had made a more specific
objection, the judge might have defended his decision and we, in turn, would have the
benefit of his explanation in assessing the adequacy of the proceedings.” Maj. Op. at 10.
But, as this statement reveals, even if defense counsel had raised a more specific
objection, the best we could have hoped for is that the judge “might” have provided a
fuller explanation of his reasoning. According to the majority, the district court’s initial
failure to address Simmons’ argument did not constitute procedural error. Presumably,
then, neither would the district court’s failure to provide a fuller explanation of its
decision in response to a post-sentencing objection.

In other words, the reason that we do not “have the benefit of [the district court’s]
explanation in assessing the adequacy of [these] proceedings” is not that defense
counsel’s objection was too vague, but rather that this Court too often has been willing
to overlook the failure of sentencing judges to fulfill their obligation to adequately
explain the reasons for their sentencing decisions. This trend obviously cannot be cured
by applying Vonner’s forfeiture rule more strictly because applying plain error review
does nothing to resolve the more fundamental shortcomings of our sentencing
jurisprudence. In fact, as this case demonstrates, insisting on plain error review actually
masks the failure of the district court to provide an adequate explanation of its
sentencing decisions.

The Supreme Court understandably reasoned in Rita that the adequacy of the
district court’s sentencing explanation may “depend[] upon circumstances.” 551 U.S.
at 356. When this deference to the district court is combined with Vonner’s forfeiture
No. 07-3449 United States v. Simmons Page 55

rule, however, it creates a palpably unfair dynamic. If the district court is not required
to address every argument raised by the defendant, then requiring a defendant to raise
a post-sentencing objection does absolutely nothing to further the practical goals we
identified in Bostic, and the entire procedure becomes a hollow, meaningless formality.
The entire process becomes a one-way ratchet that raises the bar for all defendants, while
doing almost nothing to help clarify the record for appeal.10 If we were genuinely
interested in achieving the goals we identified in Bostic, then Vonner’s forfeiture rule
must be combined with a sensible, practical rule requiring district courts to consider and
adequately address all nonfrivolous arguments raised by a defendant. If clarity is not
required, then there is no point in requiring a defendant to ask for clarification. Where
a defendant repeatedly raises a nonfrivolous argument and the district court fails to
explain its reasons for rejecting that argument, we should hold the court accountable, not
the defendant. That is precisely why, as I explain below, our sentencing decisions have
gone beyond the rule announced in Rita to require that the district court adequately
explain its reasons for rejecting any and all nonfrivolous arguments raised by a
defendant.

By placing the onus for creating an adequate record on the defendant rather than
the sentencing judge, the majority does nothing to address the fundamental problem.
After today’s decision, we still will be forced to parse the sentencing transcript to
determine whether the district court conducted the requisite individualized assessment
of the § 3553(a) factors, and we still will be left guessing at whether the court considered
all of a defendant’s nonfrivolous arguments. And where a defendant raises a post-
sentencing objection asking for clarification, we still will be left merely hoping that the
court provides a more adequate explanation for its sentencing decisions. In other words,

10
Even a cursory review of our sentencing cases demonstrates that this is no hollow concern. In
far too many cases, sentencing judges refuse to provide a more specific explanation of their reasoning even
where the parties request clarification. See, e.g., Herrera-Zuniga, 571 F.3d at 577 (although defense
counsel advised the district court of the substantive basis of a potential error in the sentencing
pronouncement, the court responded by stating only that “You have a right to appeal this sentence, Mr.
Herrera.”); Grams, 566 F.3d at 685 (although the government advised the court of a potential error in the
court’s sentencing pronouncement, the court responded by stating that it was “well aware” of the error but
that it considered the issue “negligible”).
No. 07-3449 United States v. Simmons Page 56

the practical implication of the majority’s approach is that poor sentencing practices will
continue to get swept under the rug.

The only reliable way to overcome these problems is to require greater clarity in
the court’s sentencing pronouncement, not just in the defendant’s post-sentencing
objections. See Grams, 566 F.3d at 686 (recognizing that “greater clarity [on the part
of the sentencing judge] in open court would have aided our appellate review”); Blackie,
548 F.3d at 401-03 (explaining that our procedural requirements regarding the district
court’s sentencing pronouncement are “more than mere administrative burdens or
meaningless formalities, but rather assure that . . . adequate explanation is provided to
allow for meaningful appellate review and the perception of a fair sentence”).
Addressing the court’s errors directly would do much more to achieve the majority’s
professed concern for clarity in the sentencing record than applying plain-error review.
Instead, the majority overlooks the district court’s failure to address Simmons’ central
argument on the grounds that the district court “‘deserve[s] the benefit of the doubt,’”
despite the fact that, as the majority acknowledges, its sentencing explanation is “short
of ideal in assuring this court that the trial judge in fact did his full duty.” Maj. Op. at
22 (quoting Vonner, 516 F.3d at 392), 12. Therein lies the real problem.

The only justification the majority offers for its counterintuitive approach is the
baseless assertion that Simmons alone “bears responsibility for this silence in the
sentencing record under our adversarial system as interpreted in Vonner.” Maj. Op. at
20 n.9. This reasoning is profoundly flawed. Regardless of how the parties respond to
the Bostic question, the district court always is obliged to “provide a clear explanation
of why it has either accepted or rejected the parties’ arguments.” Bolds, 511 F.3d at 580.
This requirement reflects the fact that the Federal Rules of Criminal Procedure require
the district court to rule on all disputed matters in pronouncing sentence, see Fed. R.
Crim. P. 32(i)(3)(B), as well as the statutory requirement that the court, “at the time of
sentencing, shall state in open court the reasons for its imposition of the particular
sentence,” 18 U.S.C. § 3553(c). In discussing this obligation, the Supreme Court has
emphasized that a “statement of reasons is important” because it is the only way a
No. 07-3449 United States v. Simmons Page 57

district court can demonstrate to reviewing courts that it fulfilled its statutory obligation
to consider the factors set forth by Congress § 3553(a). Rita, 551 U.S. at 356 (“The
sentencing judge should set forth enough to satisfy the appellate court that he has
considered the parties’ arguments and has a reasoned basis for exercising his own legal
decisionmaking authority.”). In other words, this circuit’s case law, controlling Supreme
Court precedent, the Federal Rules, and the governing statute all reject the majority’s
assertion that Simmons somehow bears “responsibility for this silence.”

Perhaps not surprisingly, this discomforting aspect of the majority’s holding
reflects a central flaw with our decision in Vonner, where the en banc majority denied
the defendant’s procedural reasonableness challenge despite acknowledging that “[n]o
one would call [the district court’s] explanation ideal,” and conceding that the district
court “did not specifically address all of [the defendant’s] arguments for leniency” and
thus “failed to ensure that the defendant, the public and, if necessary, the court of appeals
understood why the trial court picked the sentence it did.” 516 F.3d at 386. What makes
such statements all the more troubling is that the Vonner majority was so tolerant of the
sentencing judge’s mistakes despite noting that “[c]riminal sentencing is a serious
business, and we should encourage district court judges to adopt sentencing practices
that resolve potential sentencing disputes at the hearing, not on appeal.” Id. at 391.

At some point, this disturbing pattern should alert us to the obvious fact that the
far better approach to this problem is to articulate, once and for all, a clear and
unequivocal requirement that district court judges must consider and address every
nonfrivolous argument raised by a defendant in support of a lower sentence. So long as
we continue to tolerate such obvious deficiencies, we cannot seriously expect to achieve
the type of clarity that the majority contends is so important.
No. 07-3449 United States v. Simmons Page 58

E.

Judicial Economy Does Not Support the Majority’s Flawed Approach

The majority also attempts to justify its approach on the basis of judicial
economy, reasoning that “[p]roviding disincentives for parties who do not give the
district court an opportunity to resolve objections helps conserve judicial resources by
deterring unnecessary delay and the need to appeal.” Maj. Op. at 8–9. But that “sensible
and useful feature of Bostic,” Vonner, 516 F.3d at 391, while undoubtedly important,
cannot possibly outweigh the fundamental unfairness that results.11

Even when the majority’s concern is taken into account, it would be more
practical and effective to require district courts to address a defendant’s arguments in the
first place. And while I fully agree that “[a] district judge should not have to guess what
arguments an objecting party depends on,” Lockert v. Faulkner, 843 F.2d 1015, 1019
(7th Cir. 1988), and that the sentencing judge should not be “‘sandbagged’ by a [party’s]
failure to object,” Howard v. Sec’y of Health & Human Servs., 932 F.2d 505, 509 (6th
Cir. 1991), the test set forth in Douglas and confirmed in Rita already addresses those
concerns by asking whether the party’s prior arguments adequately apprised the district
court of the issue.

F.

The Technical Distinction to which the Majority Retreats Is Unpersuasive

Nor is the majority’s position justified because Simmons initially raised the
crack/powder disparity issue as the basis for his request for a lower sentence, which,
technically speaking, is a distinct claim from the procedural error he claims the district
court committed by failing to adequately explain its reasons for rejecting that argument.
According to the majority, a party is required to specifically allege the substantive
grounds for any post-sentencing procedural objection because such claims arise only

11
In fact, the approach endorsed by the majority turns Bostic on its head. The majority transforms
what obviously was intended as a procedural rule that would assist district courts in fulfilling their
obligation to create an adequate record for appeal, see Bostic, 371 F.3d at 872, into an onerous burden on
defendants. The interests identified in Bostic do not support the majority’s misguided approach.
No. 07-3449 United States v. Simmons Page 59

after the district court has pronounced sentence and thus the party’s prior arguments
could not have preserved them. See Maj. Op. at 8 (characterizing such procedural claims
as “additional objections” and “further objections”). Wielding this distinction like a
sword, the majority effectively dismisses all of Simmons’ prior arguments as irrelevant.

The majority’s reliance on this technical distinction is misplaced and
unpersuasive. Although Simmons’ requests for a below-Guidelines sentence technically
raises a distinct claim from his procedural claim, it is a distinction without a difference.
Simmons’ prior arguments in favor of a lower sentence and his procedural objection are
based on and arise out of the same substantive issue. Consequently, Simmons’ prior
arguments inform any reading of his subsequent objection. See Osborne, 495 U.S. at
124-25; Douglas, 380 U.S. at 422.

It is for that reason that the courts do not attach significance to this technical
distinction in other contexts. For example, where a party moves to exclude certain
evidence from trial and the district court denies that request, the party is not required to
contemporaneously object when the evidence is admitted, and certainly not moments
after the court rules on the motion. See Fed. R. Evid. 103(a) (“Once the court makes a
definitive ruling on the record admitting or excluding evidence, either at or before trial,
a party need not renew an objection or offer of proof to preserve a claim of error for
appeal.”); see also United States v. Carpenter, 494 F.3d 13, 18-19 (1st Cir. 2007)
(holding that once the court rules on a party’s motion to exclude, a contemporaneous
objection is not required because “a renewed objection or offer of proof at the time the
evidence is to be offered is more a formalism than a necessity” (citation omitted)).
Although the claim on appeal in such cases technically is distinct from the claim
underlying the party’s motion in limine, it is a distinction to which courts attach no
significance.
No. 07-3449 United States v. Simmons Page 60

G.

The Imbalance of the Inquiry Conducted by the Majority is Fundamentally
Unfair
While there is no doubt from the record as to the substantive basis of Simmons’
request for a lower sentence, it is entirely unclear whether the sentencing judge ever
considered the issue. The majority bends over backwards to accommodate the district
court’s oversight, grasping at straws to locate any crumb of support for its contention
that the district court considered Simmons' argument. In doing so, the majority
hypocritically conducts precisely the type of contextual review of the record that it
claims Bostic rendered unnecessary and that it insists we should not afford to the
defendant. This inconsistency is troubling in the extreme.

Frankly, it is stunning to consider the lengths to which the majority apparently
is willing to go to explain away the district court’s errors, while at the same time strictly
construing the procedural hurdles a criminal defendant must clear before being entitled
to have the reasonableness of his or her sentence reviewed by this Court. For instance,
the majority finds it important, if not dispositive, that Simmons’ crack/powder disparity
argument was a “substantive claim regarding the Guidelines’ disparate treatment” Maj.
Op. at 14, but seems unconcerned by the fact that the district court’s one-sentence
dismissal of any concern about “unwarranted disparities” amounts to mere sentencing
boilerplate.

Something is profoundly wrong with a rule that requires a defendant to articulate
the specific substantive basis for his objection to a perceived error, and yet tolerates a
sentencing court’s utter failure to articulate any basis for rejecting a defendant’s primary
argument in favor of a lower sentence. As the Supreme Court has recognized:

Rules of practice and procedure are devised to promote the ends of
justice, not to defeat them. A rigid and undeviating judicially declared
practice under which courts of review would invariably and under all
circumstances decline to consider all questions which had not previously
been specifically urged would be out of harmony with this policy.
Orderly rules of procedure do not require sacrifice of the rules of
fundamental justice.
No. 07-3449 United States v. Simmons Page 61

Hormel v. Helvering, 312 U.S. 552, 557 (1941). For that reason, the Supreme Court’s
default and forfeiture decisions, “while recognizing the desirability and existence of a
general practice under which appellate courts confine themselves to the issues raised
below, nevertheless do not lose sight of the fact that such appellate practice should not
be applied where the obvious result would be a plain miscarriage of justice.” Id. at 558.
And as I noted in a similar case decided under Vonner: “To uphold such a procedurally
infirm sentence, as the majority seems content to do, is to abdicate this Court’s
responsibility to insure constitutionally sound sentencing practices.” Houston, 529 F.3d
at 759 (Clay, J., dissenting).

H.

Perhaps the Time Has Come to Revisit the Holding of Vonner

As I explained above, I do not believe that the inquiry conducted by the majority
is compelled by, or even supported by, our decision in Vonner. However, if the
majority’s forfeiture ruling in fact is required under Vonner, then the time may have
come for the en banc Court to revisit the rule we announced in that case. In putting teeth
to the rule announced in Bostic, the Vonner majority reasoned:

No doubt, we could encourage district courts to ask the Bostic question
without imposing any consequences on a party’s failure to answer it. But
that would undermine its effectiveness. Better, we think, to leaven the
rule with a common-sense application of the plain-error doctrine and
with an eye to the realities of the facts and circumstances of each
sentencing proceeding. And if that does not work, we of course have the
right to reconsider the application of the rule in a future case.

516 F.3d at 391. In light of the majority’s ruling today, it is obvious that the time has
come already for us to “reconsider the application” of this deeply flawed rule. Today’s
ruling demonstrates that we must craft a more practical and just means of achieving the
interests identified in Bostic.
No. 07-3449 United States v. Simmons Page 62

IV.

Because Bostic and Vonner do not provide the framework necessary for resolving
the question now before us, let alone dictate the outcome here, we should be guided by
the “general principle” announced by the Supreme Court in Douglas and Osborne.
Under that approach, Simmons’ arguments prior to and during the sentencing hearing
are critical: either because they were sufficient, standing alone, to preserve his right to
raise a procedural claim on appeal, see Blackie, 548 F.3d at 401; or because they must
be considered in determining whether defense counsel’s post-sentencing objection was
sufficient to preserve Simmons’ procedural claims for appeal, even if that objection was
facially inadequate, see Grissom, 525 F.3d at 694-95. Either way, Simmons did enough
to preserve his right to challenge the procedural aspects of his sentence on appeal.

As the record demonstrates, Simmons first raised the crack/powder disparity
argument in the sentencing memorandum that he submitted to the court prior to his
sentencing hearing. Simmons’ memorandum specifically identified the crack/powder
disparity issue as “the preeminent guideline issue that must be considered” in this case,
J.A. 24, and vigorously argued in favor of a below-Guidelines sentence on the grounds
that the 100-to-1 sentencing ratio endorsed under the Guidelines was greater than
necessary to accomplish the sentencing goals set forth by Congress in § 3553(a) and led
to unwarranted sentencing disparities. At the sentencing hearing, Simmons’ counsel
reiterated this line of argument, expressly arguing that the “100-to-1 ratio results in a
huge disparity in sentencing.” J.A. 70.

On this record, there can be no doubt that the sentencing judge was fully aware
of the substantive grounds underlying Simmons’ argument in favor of a below
Guidelines sentence. In fact, the sentencing transcript indicates that defense counsel
raised the crack/powder disparity issue for the last time mere moments before the district
court began pronouncing Simmons’ sentence. Under these circumstances, whether
defense counsel could have articulated her “procedural” objection more artfully or with
more detail is irrelevant. See Grissom, 525 F.3d at 694-95. Considering that Simmons
had raised the specific substantive basis for the objection twice already, the sentencing
No. 07-3449 United States v. Simmons Page 63

judge was—or at least should have been—fully aware of the substantive issues
underlying any new procedural objection. Because the record makes clear that insisting
on a more specific objection would serve no practical ends, there is no justification for
imposing plain error review. See Herrera-Zuniga, 571 F.3d at 581 n.7; Middleton v.
Ercole, No. 07-CV-2810, 2007 U.S. Dist. LEXIS 88308, at *29 (E.D.N.Y. Dec. 3, 2007)
(“Since the purpose of the contemporaneous objection rule is to give trial courts the
opportunity to correct their own errors, it might make sense to require less precision in
specifying the error objected to when the error is so obvious that the trial court is, or
should be, already aware of it.”).

Because the record shows that Simmons repeatedly “pressed the issue” both in
his sentencing memorandum and during the sentencing hearing, the rationale underlying
Bostic is satisfied and “nothing would be gained by requiring [Simmons’] lawyer to
object a [third] time.” Osborne, 495 U.S. at 124.

V.

In assessing Simmons’ claims, the majority acknowledges that the district court’s
sentence is “terse,” but concludes that it is “not per se inadequate.” Maj. Op. at 12. The
majority reaches that conclusion despite conceding that the district court’s analysis was
“short of ideal in assuring this court that the trial judge in fact did his full duty.” Maj.
Op. at 12. The majority’s conclusion is contrary to controlling precedent and makes a
mockery of this Court’s sentencing jurisprudence. Even applying the burdensome plain-
error standard of review, the district court’s failure to consider and adequately explain
its reasons for rejecting Simmons’ central argument in favor of a lower sentence was
procedurally unreasonable.

A.

The reasonableness of a district court’s sentence “has both substantive and
procedural components.” Jones, 489 F.3d at 250. Thus, the Court’s “reasonableness
review requires [inquiry] into both ‘the length of the sentence’ and ‘the factors evaluated
and the procedures employed by the district court in reaching its sentencing
No. 07-3449 United States v. Simmons Page 64

determination.’” Liou, 491 F.3d at 338 (quoting United States v. Webb, 403 F.3d 373,
383 (6th Cir. 2005)).

In order for a defendant’s sentence to be procedurally reasonable, the district
court cannot presume that the sentencing range recommended under the Guidelines is
mandatory or even reasonable. Gall, 128 S. Ct. at 596-97. Instead, the court must
“make an individualized assessment based on the facts presented.” Id. at 597.

In United States v. Bolds, this Court laid out the three steps involved in the
procedural-reasonableness review. “First, we must ensure that the district court
‘correctly calculat[ed] the applicable Guidelines range’ which [is] ‘the starting point and
initial benchmark’ of its sentencing analysis.” 511 F.3d at 579 (quoting Gall, 128 S.Ct.
at 596) (footnote omitted). “[O]ur second task is to ensure that the district judge gave
‘both parties the opportunity to argue for whatever sentence they deem appropriate’ and
then ‘considered all of the § 3553(a) factors to determine whether they support the
sentence requested by [each] party.’” Id. at 579-80 (quoting Gall, 128 S.Ct. at 596).
“[O]ur final task is to ensure that the district court has ‘adequately explain[ed] the
chosen sentence to allow for meaningful appellate review and to promote the perception
of fair sentencing.’” Id. at 580 (quoting Gall, 552 U.S. at 597). Because there is no
dispute that the sentencing judge in this case satisfied the first requirement, we need
address only whether the district court “considered all of the § 3553(a) factors” and
“adequately explained” the sentence it imposed.

B.

For its part, the majority concludes that the district court satisfied both
requirements. That conclusion, however, is utterly unsupported in the record and based
on exceptions that are contrary to controlling authority.

In defining what constitutes an “adequate explanation” of a chosen sentence, this
Court has reached seemingly inconsistent conclusions that turn heavily on the specific
factual circumstances of a given case. For instance, the Court has held at times that “a
sentencing judge is not required to explicitly address every mitigating argument that a
No. 07-3449 United States v. Simmons Page 65

defendant makes,” United States v. Madden, 515 F.3d 601, 611 (6th Cir. 2008), while
at other times proclaiming that, “when the judge makes only a ‘conclusory reference’ to
the § 3553(a) factors and does not address the defendant’s arguments regarding
application of those factors, then this court will find the sentence unreasonable.” United
States v. Klups, 514 F.3d 532, 537 (6th Cir. 2008) (quoting United States v. Thomas, 498
F.3d 336, 340-41 (6th Cir. 2007)). Because Simmons’ appeal lies at the fracture point
of this Court’s still-developing procedural reasonableness jurisprudence, it is critically
important to distill the guiding principles that underlie our decisions in this area, and to
identify those factors that explain and account for these seemingly divergent outcomes.

Much of the diversity in the outcomes of these cases stems from the fact that
district courts “may exercise discretion in determining how much of an explanation of
the sentence is required because ‘the amount of reasoning required varies according to
context.’” United States v. Jeross, 521 F.3d 562, 582-83 (6th Cir. 2008) (quoting Liou,
491 F.3d at 338). In Madden, for instance, the Court considered whether the district
court failed to consider the defendant’s contention that she should receive a reduced
sentence because of her “diminished capacity.” 515 F.3d at 611. After reviewing the
record, the Court acknowledged that “[t]he district court, to be sure, did not specifically
address each of the reasons for a lower sentence that [the defendant] set forth in her
motion.” Id. Nevertheless, the Court affirmed the sentence, holding that “[e]ven where
. . . the defendant presents an arguably nonfrivolous reason for imposing a sentence
below the Guidelines range, the judge is not always required to address the specific
argument.” Id. at 611-12 (citing Rita, 551 U.S. at 356-57).

The principle announced in Madden, however, cannot be reconciled with the
controlling principles announced by the Supreme Court in Rita. In Rita, the Supreme
Court explained that, generally, “[t]he appropriateness of brevity or length, conciseness
or detail, when to write, what to say, depends upon circumstances.” 551 U.S. at 356.
Thus, in the Court’s view, “[s]ometimes a judicial opinion responds to every argument;
sometimes it does not . . . . The law leaves much, in this respect, to the judge’s own
professional judgment.” Id. The Court clarified, however, that in the context of
No. 07-3449 United States v. Simmons Page 66

determining what sentence is appropriate in light of the factors explicitly set forth by
Congress in § 3553(a), the sentencing judge at least “should set forth enough to satisfy
the appellate court that he has considered the parties’ arguments and has a reasoned basis
for exercising his own legal decisionmaking authority.” Id. The Court then noted that,
“when a judge decides simply to apply the Guidelines to a particular case, doing so will
not necessarily require lengthy explanation.” Id. The Court explained further, however,
that:

Where the defendant or prosecutor presents nonfrivolous reasons for
imposing a different sentence, however, the judge will normally go
further and explain why he has rejected those arguments. Sometimes the
circumstances will call for a brief explanation; sometimes they will call
for a lengthier explanation. . . . By articulating reasons, even if brief, the
sentencing judge not only assures reviewing courts (and the public) that
the sentencing process is a reasoned process but also helps that process
evolve.

Id. at 357 (emphasis added).

The Supreme Court’s decision in Rita thus suggests that, where a defendant
raises a nonfrivolous argument in favor of a reduced sentence, the district court, at a
minimum, should “articulat[e] reasons, even if brief,” for rejecting each argument.
Notwithstanding the discretion of the district court recognized in Rita, this Court has
held that a sentencing judge “must . . . at least ‘set forth enough [explanation] to satisfy
the appellate court that he has considered the parties’ arguments and has a reasoned basis
for exercising his own legal decisionmaking authority.’” Jeross, 521 F.3d at 583
(quoting Rita, 551 U.S. at 356) (emphasis added). Relying on Rita, this Court repeatedly
has held that, even though the district court need not “recite” all of the factors set forth
in § 3553(a) in announcing a defendant’s sentence, it nonetheless “must articulate its
reasoning in deciding to impose a sentence in order to allow for reasonable appellate
review.” United States v. Kirby, 418 F.3d 621, 626 (6th Cir. 2005). As we recognized
in United States v. Gale, 468 F.3d 929 (6th Cir. 2006), where “a defendant’s argument
and supporting evidence presents an arguably meritorious claim for a lesser sentence,
but there is little to suggest that the district court actually considered it, then remand may
No. 07-3449 United States v. Simmons Page 67

be appropriate.” Id. at 940. This point seems well-settled enough that even the majority
recognizes, to its credit, that “our caselaw and the Federal Rules of Criminal Procedure
indicate that the district judge must generally speak to arguments that are clearly
presented and in dispute.”12 Maj. Op. at 15.

This Court articulated perhaps its strongest statement to this effect in United
States v. Richardson, 437 F.3d 550 (6th Cir. 2007), where we stated:

We emphasize the obligation of the district court in each case to
communicate clearly its rationale for imposing the specific sentence.
Where a defendant raises a particular argument in seeking a lower
sentence, the record must reflect both that the district judge considered
the defendant’s argument and that the judge explained the basis for
rejecting it. This assures not only that the defendant can understand the
basis for the particular sentence but also that the reviewing court can
intelligently determine whether the specific sentence is indeed
reasonable.

Id. at 554 (emphasis added). Thus, while there is no requirement that the district court
“engage in a ‘ritualistic incantation to establish consideration of a legal issue’” or that
the court “make specific findings relating to each of the factors considered,” the
sentencing court still “must articulate at least enough of its reasoning to permit an
informed appellate review.” United States v. McClellan, 164 F.3d 308, 310 (6th Cir.
1999) (quoting United States v. Washington, 147 F.3d 490, 491 (6th Cir. 1998)); accord
United States v. Penson, 526 F.3d 331, 338 (6th Cir. 2008) (“[T]he district court
provided virtually no explanation giving insight into the reasons for the specific sentence
given.”); Bolds, 511 F.3d at 580 (“The district court must provide a clear explanation
of why it has either accepted or rejected the parties’ arguments and thereby chosen the
particular sentence imposed, regardless of whether it is within or outside of the
Guidelines.”); Thomas, 498 F.3d at 340 (vacating sentence as procedurally unreasonable
because “[t]he record ma[de] clear that the district court considered the applicable
Guidelines range, but not much else”); Jones, 489 F.3d at 252 (“The record reflects that

12
One is left to wonder how the majority could possibly reach the outcome it does here having
recognized that this is the controlling rule.
No. 07-3449 United States v. Simmons Page 68

the district court considered all of Jones’s arguments, the applicable Guidelines range,
and the relevant § 3553(a) factors, and we therefore conclude that Jones’s sentence was
procedurally reasonable.”); see also Liou, 491 F.3d at 340 (finding the record did not
demonstrate procedural unreasonableness but emphasizing that “the better practice,
post-Rita, is for a sentencing judge to ‘go further and explain why he has rejected [each
of the defendant’s nonfrivolous] arguments’ for imposing a sentence lower than the
Guidelines range” (quoting Rita, 551 U.S. at 357) (alteration in Liou)).

C.

Despite the fact that the district court did not so much as mention Simmons’
primary and, as the majority concedes, nonfrivolous argument in favor of a lower
sentence, the majority nevertheless concludes that the record “strongly suggests” that the
district court considered the issue and found that other factors were simply more
important, Maj. Op. at 12. In reaching that conclusion, the majority accepts the
government’s baseless argument that the district court’s judgment should be construed
as “a rejection of an argument without merit that required no further explanation.” Maj.
Op. at 16. Not only is that conclusion utterly unsupported by the record, it also is
directly contrary to this Court’s controlling precedent—and the very fact that the
majority is willing to make such bald inferences is troubling in the extreme.

As the litany of cases just discussed demonstrates, although the district court is
not required to explicitly recount every aspect of that assessment in pronouncing
sentence, the court must, at the very least, “‘set forth enough [of a statement of reasons]
to satisfy the appellate court that he has considered the parties’ arguments and has a
reasoned basis for exercising his own legal decision making authority.’” United States
v. Lalonde, 509 F.3d 750, 769-70 (6th Cir. 2007) (alteration in original) (quoting Rita,
551 U.S. at 356). Doing its best to concoct an exception to this rule, the majority
suggests that we can infer from a district court’s silence that it in fact has fulfilled that
obligation with regard to an argument that the majority itself recognizes as nonfrivolous.
But our case law unequivocally holds otherwise. As the en banc Court concluded in
Vonner, the question in each case “is whether ‘[t]he record makes clear that the
No. 07-3449 United States v. Simmons Page 69

sentencing judge listened to each argument,’ ‘considered the supporting evidence,’ was
‘fully aware’ of the defendant’s circumstances and took ‘them into account’ in
sentencing him.” 516 F.3d at 387 (quoting Rita, 551 U.S. at 358) (alteration in original)
(emphasis added). The majority’s conclusion that a ruling by implication satisfies this
requirement stretches the rule of Vonner to the breaking point.

Notwithstanding the majority’s suggestion to the contrary, this Court consistently
has held that, “[w]hen a defendant raises a particular[, nonfrivolous] argument in seeking
a lower sentence, the record must reflect both that the district judge considered the
defendant’s argument and that the judge explained the basis for rejecting it.’” Lalonde,
509 F.3d at 770 (internal quotation marks omitted) (emphasis added); accord United
States v. Grossman, 513 F.3d 592, 595 (6th Cir. 2008) (holding that the district court
must “properly calculate the guidelines range, treat the guidelines as advisory, consider
the § 3553(a) factors and adequately explain the chosen sentence” (citing Gall, 128 S.
Ct. at 597)); United States v. Peters, 512 F.3d 787, 789 (6th Cir. 2008) (holding that a
sentence is not procedurally reasonable if, “[w]hen the defendant or prosecutor ‘presents
nonfrivolous reasons for imposing a different sentence,’ . . . a sentencing judge [fails to]
address the ‘parties’ arguments’ and ‘explain why he has rejected those arguments’”
(quoting Rita, 551 U.S. at 357)); United States v. Richardson, 437 F.3d 550, 554 (6th
Cir. 2006) (“Where a defendant raises a particular argument in seeking a lower sentence,
the record must reflect both that the district judge considered the defendant’s argument
and that the judge explained the basis for rejecting it.”); United States v. Buffington, 310
F. App’x 757, 763 (6th Cir. 2009) (“Although the district court appears to have
evaluated most of the § 3553 factors during the colloquy and commented on [the
defendant’s] criminal history, the judge never specifically addressed three of [the
defendant’s] four arguments in favor of a 180-month sentence. The judge’s failure to
respond to these three arguments provides neither [the defendant] nor this Court with any
insight into why he found them unpersuasive. . . . Because the district court failed to
provide a sufficient basis for its rejection of [the defendant’s] arguments for a lower
sentence, we conclude that the sentence is procedurally unreasonable.”). This Court’s
sentencing jurisprudence thus unequivocally requires an “articulation [on the record] of
No. 07-3449 United States v. Simmons Page 70

the reasons the district court reached the sentence ultimately imposed.” United States
v. Jackson, 408 F.3d 301, 305 (6th Cir. 2005) (emphasis added); see also Gall, 128 S.
Ct. at 599 (noting that, “[h]ad the prosecutor raised the issue, specific discussion of the
point might have been in order” (emphasis added)).

Therefore, to evaluate procedural reasonableness, an appellate court must
“review the sentencing transcript to ensure . . . that the sentencing judge adequately
considered the relevant § 3553(a) factors and clearly stated his reasons for imposing the
chosen sentence.” Liou, 491 F.3d at 339 (emphasis added). In reviewing the sentencing
transcript, the Court must determine whether the district court “provide[d] a clear
explanation of why it has either accepted or rejected the parties’ arguments and thereby
chose the particular sentence imposed, regardless of whether it is within or outside of the
Guidelines.” Bolds, 511 F.3d at 580 (emphasis added). Requiring district court’s to
articulate their reasoning for the record makes perfect sense, otherwise the transcript
would be devoid of any evidence that the district court ever considered the parties’
arguments, let alone ruled on those issues.13 Absent such a rule, this Court would be
forced to make inferences and guess at what factors the district court actually
considered—just as the majority does here.

The majority’s conclusion that a implied ruling on a nonfrivolous argument is all
that is required rips the heart out of this rule, ignoring this Court’s consistent conclusion
that it is the district court’s obligation to create an appropriate record for appeal. See,
e.g., Bostic, 371 F.3d at 873 n.6 (adopting a new procedural rule to offset the inherent
“difficulty of parsing a [sentencing] transcript”); Herrera-Zuniga, 571 F.3d at 580
(explaining that we adopted the Bostic procedure “to help create a more reliable record
for appeals, which we believed would help ‘guid[e] appellate review’” (quoting Bostic,
371 F.3d at 873)); United States v. Johnson, 553 F.3d 990, 996 n.1 (6th Cir. 2009)
(vacating defendant’s sentence on the ground that, “on the record before us, we have no
way of ascertaining whether the district judge would have imposed the same sentence

13
A clear explanation of the court’s reasons for imposing the chosen sentence also “enable[s] the
public to learn why [a] defendant received a particular sentence.” United States v. Molina, 356 F.3d 269,
277 (2d Cir. 2004).
No. 07-3449 United States v. Simmons Page 71

if he had known of his discretion to vary categorically from the crack-cocaine Guidelines
based on a policy disagreement”); Grams, 566 F.3d at 686 (stating that “the district court
should still have stated in open court whether it adopted in part or full the sentencing
range and factual findings suggested by the probation office” because “greater clarity in
open court would have aided our appellate review”); Blackie, 548 F.3d at 401-03
(explaining that our procedural requirements regarding the district court’s sentencing
pronouncement are “more than mere administrative burdens or meaningless formalities,
but rather assure that . . . adequate explanation is provided to allow for meaningful
appellate review and the perception of a fair sentence”); Jackson, 408 F.3d at 305
(explaining that the sentencing court’s failure to provide an adequate of its reasons for
imposing a chosen sentence “renders our reasonableness review impossible”).

Although the district court has some discretion in determining how much of an
explanation is required, our case law makes clear that simply ignoring a defendant’s
central and unequivocally nonfrivolous argument is never acceptable.14 At a minimum,

14
The government emphatically argues that sentencing courts are not required to explicitly
discuss each § 3553(a) factor in announcing sentence. To be sure, the government’s position finds some
support in our case law. See United States v. Williams, 436 F.3d 706, 708-09 (6th Cir. 2006) (collecting
cases). As noted above, this Court expressly held in Madden that, “[e]ven where . . . the defendant
presents an arguably nonfrivolous reason for imposing a sentence below the Guidelines range, the judge
is not always required to address the specific argument.” 515 F.3d at 611-12 . And in United States v.
Johnson, 403 F.3d 813 (6th Cir. 2005), we similarly concluded that, “[a]lthough the district court may not
have mentioned all of the [§ 3553(a)] factors . . . explicitly, and although explicit mention of those factors
may facilitate review, this court has never required the ‘ritual incantation’ of the factors to affirm a
sentence.” Id. at 816.
Given the factual circumstances presented here, however, the government’s reliance on these
cases is misplaced. In Madden, the Court affirmed the district court’s sentence only because the “broader
‘context and record’ of the sentencing hearing” demonstrated that the district court “adequately considered
[the defendant’s] mitigating arguments.” 515 F.3d at 611. Specifically, the Court noted that, during the
hearing, the sentencing court “engaged in an extended discussion with both attorneys” about the
defendant’s mitigating arguments. Id. In addition, the terms of the sentence reflected that the district court
had taken the defendant’s particular circumstances into account. Id. (noting that the sentencing judge
“repeatedly demonstrated that he was familiar with Brown’s background and personal history, including
her minimal role in the offense and her lack of a criminal history”). Finally, the Court noted that
defendant’s argument for a reduced sentence based on her “diminished capacity” or “aberrant behavior”
was raised “only in passing.” Id. In light of all these factors, the Madden Court reasoned that the district
court’s failure to explicitly discuss every argument raised by the defendant was not procedurally
unreasonable. Unlike Madden, however, the record does not expressly show that the district court “was
familiar” with Simmons’ argument. Nor can it be said that Simmons raised the crack/powder issue “only
in passing.” Consequently, Madden offers no support for the government’s position.
Our decision in Johnson also is inapposite because the Court’s decision in Johnson Court did not
confront the procedural unreasonableness issue. Indeed, this Court had yet to recognize procedural
unreasonableness as a distinct sentencing error. Not until United States v. McBride, supra, did this Court
explicitly recognize that there are “both substantive and procedural components to our reasonableness
review.” 434 F.3d at 475 n.3. Johnson thus sheds very little light on the issue before us here.
No. 07-3449 United States v. Simmons Page 72

the sentencing transcript must demonstrate “that the sentencing judge adequately
considered the relevant § 3553(a) factors and clearly stated his reasons for imposing the
chosen sentence.” Liou, 491 F.3d at 339 (emphasis added); accord Houston, 529 F.3d
at 760 (Clay, J., dissenting) (“In short, well-established precedent requires reversal
where the sentencing court fails to explain to the defendant, and this Court, how it
arrived at its sentencing determination, including how it considered defense arguments
and the § 3553(a) factors.”). If the record does not indicate that the district court fulfilled
that obligation, the Rules of Criminal Procedure and this Court’s controlling precedent
do not permit us to begin making excuses to explain away that error.

D.

Applying that rule here, it is evident that the sentencing judge failed to “provide
a clear explanation,” Bolds, 511 F.3d at 580, as to why it rejected the § 3553(a)
arguments raised by Simmons in favor of a downward variance, in particular, his
crack/powder disparity argument. There is simply nothing in the record to suggest, let
alone strongly suggest, that the district court ever considered Simmons’ primary
argument in favor of a lower sentence. For that reason, even if the majority were correct
that the plain-error standard of review applies, controlling authority dictates that we find
the district court’s utter failure to explain its reasons for rejecting Simmons’ arguments
constitutes plain error. For that reason, I would set aside Simmons’ sentence as
procedurally unreasonable.

In announcing Simmons’ sentence, the district court properly recognized that
“Booker requires judges not only to consider the guideline range but also to consider
other factors listed in [18 U.S.C. § 3553(a)] in determining the appropriate sentence.”
J.A. 75. The district court then proceeded to consider the various factors at issue. As
to “the nature and circumstances of the offense,” the district court concluded that the
sentence was “justified” in light of “the serious nature of the crimes committed by the
defendant.” J.A. 75. The court also weighed the “need for the sentence to reflect the
seriousness of the offense,” concluding that the sentence “provid[ed] a fair and just
punishment for the defendant.” J.A. 75, 76. The court also considered the need “to
No. 07-3449 United States v. Simmons Page 73

provide an adequate deterrence to others,” as well as “the need to protect the public from
further crimes of the defendant.” J.A. 75, 76.

The record also indicates that the district court evaluated, if only briefly, “the
history and characteristics of the defendant.” J.A. 75. In particular, the court considered
whether the sentence was appropriate in light of “the defendant’s extensive criminal
history and in conjunction with his reported history of substance abuse,” as well as
Simmons’ “need for substance abuse treatment.” J.A. 75. Ultimately, the sentencing
court concluded that its chosen sentence would “afford the defendant the appropriate and
necessary means of rehabilitation and the five years of supervised release will offer the
defendant time to readjust his life.” J.A. 77.

Although, at times, the district court’s consideration of these issues is
perfunctory, the record demonstrates, at the very least, that the court evaluated these
factors in determining the appropriate sentence. As to Simmons’ crack/powder disparity
argument, however, nothing in the sentencing transcript indicates that the district judge
considered the issue, much less explained the basis for rejecting that argument. Indeed,
the record is entirely silent on the issue.

Only the following generalized and conclusory statement even arguably comes
close to addressing the issue:

Finally, the Court has considered the advisory Sentencing Guidelines and
the need to avoid unwarranted sentencing disparities. The defendant’s
sentencing range is 110-137 months imprisonment. The Court has
considered this advisory range in determining the appropriate sentence,
and the sentence is within that range. Therefore, it is unlikely to result
in unwarranted disparities.

J.A. 76. The majority relies heavily on this statement to conclude that, even though the
district court did not expressly articulate its rationale for rejecting Simmons’ particular
argument, it can be inferred that the district court ruled on Simmons’ argument by
implication. On careful reading, however, this passage indicates precisely the opposite.
No. 07-3449 United States v. Simmons Page 74

Contrary to the majority’s dubious suggestion, this vague passage suggests not
that the court considered Simmons’ crack/powder disparity argument, but rather that the
district court considered only whether Simmons’ sentence would result in an
unwarranted disparity when compared to sentences imposed in other crack cases.
According to the sentencing court, Simmons’ sentence “is unlikely to result in
unwarranted disparities” merely because it “is within [the advisory Guidelines] range.”
The fundamental premise of Simmons’ argument, however, was that the sentencing
range itself was unfair when compared to the range that would have been recommended
had his offense involved powder as opposed to crack cocaine. Therefore, if the district
court actually had considered Simmons’ argument, as the majority claims, the court
would have compared the difference between crack and powder sentencing ranges
(plural). Instead, as this passage makes clear, the court considered only “this advisory
range in determining the appropriate sentence.”15 J.A. 76 (emphasis added).

The most plausible reading of this passage suggests that the district court
improperly limited its consideration of the appropriate sentence to the advisory
Guidelines range, and thus never considered Simmons’ argument that a sentence below
that range was more appropriate and more just. The majority’s quip in reference to
defense counsel’s objection is more appropriate here: although the court used the words
“unwarranted” and “disparities,” nothing in this passage even remotely indicates that the
court considered Simmons’ distinct crack/powder disparity argument. To the contrary,
this statement “strongly suggests,” to borrow another line from the majority, that the
district court misunderstood or effectively ignored Simmons’ argument that there is an
unfair disparity between the recommended sentencing ranges for offenses involving
crack cocaine and those involving powder cocaine.16

15
The district court’s conclusion that no unwarranted disparities would result simply because the
sentence it chose to hand down was within the advisory Guidelines range also improperly presumes that
the range recommended under the Guidelines was inherently fair. That improper assumption, standing
alone, is sufficient to support remand. See Cruz, 461 F.3d at 754.
16
The very fact that we are forced to engage in this type of review is precisely why this Court
should require district court judges to explicitly respond to all nonfrivolous arguments rather than
speculating as to whether a district court considered and ruled on an issue by implication.
No. 07-3449 United States v. Simmons Page 75

In any event, even if we could infer from the district court’s vague statement
regarding “unwarranted disparities” that the sentencing judge considered Simmons’
argument, there can be no dispute that the sentencing judge plainly failed to explain why
he rejected that argument as a basis for imposing a sentence lower than the Guidelines
range. The district court provided absolutely no rationale for its conclusion, rejecting
the notion of unwarranted disparities out of hand without any substantive explanation.
As this Court previously has concluded, such generalized and conclusory statements are
insufficient to demonstrate that the district court conducted the requisite individualized
consideration of the factors set forth in 18 U.S.C. § 3553(a). See Penson, 526 F.3d at
338 (vacating sentence as unreasonable because “[t]he district court’s statement was
inadequate to explain why it considered a sentence within the Guidelines range
appropriate”); Thomas, 498 F.3d at 340-41 (vacating sentence as procedurally
unreasonable where defendant raised a variety of § 3553(a) factors, “but those arguments
went unmentioned and unaddressed, save the general statement by the district court that
it had received, read, and understood the sentencing memorandum”). Absent a more
substantive consideration of Simmons’ particular argument, this Court cannot be certain,
as it must be under Rita, that the district court complied with its obligation under
§ 3553(a) to evaluate whether Simmons’ argument provides a valid basis for a
downward departure.

Contrary to the conclusion reached by the majority, these facts demonstrate that
the district court committed significant procedural errors that rendered Simmons’
sentence unreasonable, even under plain-error review.

E.

Contrary to the majority’s suggestion, we cannot simply overlook the district
court’s utter failure to address Simmons’ primary argument in favor of a downward
variance, even if, according to the majority, Simmons’ argument “involved a legal, not
factual, matter.” Maj. Op. at 17. Despite the majority’s effort to manufacture a new
exception to our procedural reasonableness inquiry, this Court has never held that a
district court can simply ignore its statutory obligations under § 3553(a) to consider a
No. 07-3449 United States v. Simmons Page 76

defendant’s nonfrivolous arguments merely because they involve purely legal questions.
Not only is the majority’s willingness to give the district court the “benefit of the doubt,”
Maj. Op. at 22 (quoting Vonner, 516 F.3d at 392), and to explain away the district
court’s error by making unsubstantiated inferences about what the court may have been
thinking contrary to controlling precedent, it also reveals a fundamental and deeply
troubling imbalance that is inherent in the approach endorsed in Vonner.

VI.

Although the district court stated that it considered all of the arguments raised
in Simmons’ sentencing memorandum, there is no indication in the record that the court
in fact considered Simmons’ particular crack/powder disparity argument, despite the fact
that it was Simmons’ central argument in both his sentencing memorandum and at the
sentencing hearing. Absent some explanation of the district court’s basis for rejecting
that argument, the sentencing record does not permit meaningful review of the
reasonableness of Simmons’ sentence.

I therefore respectfully dissent.