United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 21, 2015 Decided December 15, 2015
No. 13-3062
UNITED STATES OF AMERICA,
APPELLEE
v.
JAMES WENDELL BROWN, ALSO KNOWN AS JIMMY,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:12-cr-00155-1)
Barbara E. Kittay, appointed by the court, argued the
cause and filed the briefs for appellant.
Lauren R. Bates, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Vincent H.
Cohen Jr., Acting U.S. Attorney, and Elizabeth Trosman,
Assistant U.S. Attorney.
Before: HENDERSON, Circuit Judge, and EDWARDS and
SENTELLE, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
2
Dissenting opinion filed by Senior Circuit Judge
SENTELLE.
EDWARDS, Senior Circuit Judge: The Sentencing Reform
Act of 1984, governing imposition of criminal sentences in
federal courts, 18 U.S.C. § 3551 et seq., imposes certain
“indispensable” procedural obligations on sentencing judges.
In re Sealed Case, 527 F.3d 188, 191 (D.C. Cir. 2008).
Among these obligations are the requirements of 18 U.S.C. §
3553(c), which prescribe how trial judges must explain their
sentencing decisions. See id.
The nature and degree of explanation required by
§ 3553(c) varies depending on how a proposed sentence
compares to the recommended sentencing range calculated
under the advisory United States Sentencing Guidelines
(“Guidelines”). When the District Court imposes a term of
incarceration that is outside the Guidelines range, as is the
case here, it “must consider the extent of the deviation and
ensure that the justification is sufficiently compelling to
support the degree of the variance.” Gall v. United States, 552
U.S. 38, 50 (2007). In addition, the trial judge must, in open
court, state “the specific reason for the imposition of a
sentence different from that described” by the appropriate
Guidelines calculation. 18 U.S.C. § 3553(c)(2). Section
3553(c)(2) additionally requires that those reasons “be stated
with specificity” in writing. Moreover, when the prison term
imposed is above the properly calculated advisory Guidelines
range, the district judge must “state ‘the specific reason’ . . .
why the defendant’s conduct was more harmful or egregious
than the typical case” represented by that range. United States
v. Nicely, 492 F. App’x 119, 121 (D.C. Cir. 2012) (quoting 18
U.S.C. § 3553(c)(2)) (citing United States v. Akhigbe, 642
F.3d 1078, 1086 (D.C. Cir. 2011) and In re Sealed Case, 527
F.3d at 192). “This . . . precedent reflects the Supreme Court’s
3
interpretation of the Sentencing Act’s requirements in Gall,
552 U.S. at 49-51, and Rita v. United States, 551 U.S. 338,
356 (2007).” Nicely, 492 F. App’x at 121.
Before the District Court, appellant James Brown pled to
one count of distribution of child pornography based on the
internet transmission of three photographs in violation of
18 U.S.C. § 2252A(a)(2). The offense is punishable by a
mandatory minimum of no less than five years of
imprisonment and no more than 20 when, as here, a defendant
has no prior convictions of a similar nature. See 18 U.S.C.
§ 2252A(b)(1). The Guidelines sentencing range applicable to
Brown is 97 to 121 months, reflecting an eleven-level
increase based on four offense-characteristic enhancements
and one three-level reduction. Government and defense
counsel both argued for a bottom of the range 97-month (eight
years and one month) term of incarceration. The trial judge
sentenced Brown to 144 months (12 years) to be followed by
240 months (20 years) of supervised release. This period of
incarceration exceeded the high end of the Guidelines range
by 23 months and the low end by 47 months.
Brown offers two procedural arguments in support of his
contention that his sentence was illegally imposed. First, he
argues that the above-Guidelines sentence should be set aside
because it resulted from the trial judge’s mistaken belief that
the applicable Guidelines calculation did not take account of a
five-level offense-characteristic enhancement to which Brown
admitted as part of his plea. For the reasons discussed below,
we find that this contention is not supported by the record.
Brown also argues that the District Court’s explanation
of the above-Guidelines sentence was insufficient as a
procedural matter under § 3553(c)(2). We agree. Because we
are unable to discern from the trial judge’s unparticularized
4
in-court and written explanations why he found the
defendant’s conduct more harmful or egregious than that
typically falling within the properly calculated Guidelines
range of 97 to 121 months, the sentence violates § 3553(c)(2).
See Akhigbe, 642 F.3d at 1086-88. Although Brown failed to
preserve a § 3553(c)(2) challenge, the District Court’s clearly
insufficient explanation of the sentence meets the four-part
plain error test under the law of the circuit. See id. at 1087-88
(citing In re Sealed Case, 527 F.3d at 193). We therefore
exercise our discretion to notice the error, vacate the sentence,
and remand for resentencing.
Appellant also challenges the substantive reasonableness
of his sentence. Because we are unable to discern the
sentencing judge’s rationale for imposing an above-
Guidelines sentence, we are unable to address appellant’s
substantive claim. See Gall, 552 U.S. at 51.
I. Background
Brown’s plea was the result of an online conversation
that he initiated with a Metropolitan Police Department
undercover detective in March of 2012. During that
conversation, Brown expressed an interest in meeting the
detective’s fictional 12-year-old daughter for the purpose of
engaging in sexual acts. He also described sexual acts that he
had previously engaged in with his then three-year-old
granddaughter and sent the detective three images of child
pornography. During the subsequent investigation into the
online chat, law enforcement authorities confirmed that there
were open charges in Fauquier County, Virginia, involving
allegations that appellant had sexually abused two of his
granddaughters. The U.S. Attorney’s Office additionally
learned that Brown’s 14-year-old daughter had, at age six,
alleged that when she was approximately three years old
5
Brown had sexually abused her. Statement of the Offense,
reprinted in Joint Appendix (“J.A.”) 33-37.
The Government charged Brown by information with
one count of distribution of child pornography. Brown entered
a pre-indictment plea on January 30, 2013, based on a
Statement of the Offense that included facts supporting the
allegations that Brown had sexually abused his daughter and
granddaughters. At some point before the sentencing date, the
prosecutor and defense counsel realized that the plea
agreement included a stipulation to an incorrect Guidelines
calculation. The parties’ agreement listed five offense-
characteristic enhancements. First Plea Agreement, reprinted
in J.A. 16-17. One, a four-level enhancement for pornography
involving masochistic material, was mistakenly included
without a basis in either law or fact. See Plea Tr., reprinted in
J.A. 86-88; see also Sent. Tr., reprinted in J.A. 115-16. With
the improper inclusion of that four-level offense
characteristic, the recommended Guidelines incarceration
range was 151 to 181 months. First Plea Agreement, J.A. 17.
At the suggestion of the trial judge, the initial plea was
withdrawn. See Plea Tr., J.A. 86. On June 19, 2013, appellant
pled pursuant to a new agreement based on the original
Statement of the Offense; however, the agreement
incorporated a stipulation to a properly calculated Guidelines
range. See id. at 87-88. The recalculated range retained (1) a
two-level increase under § 2G2.2(b)(2) because the offense
involved minors under age 12; (2) a two-level increase under
§ 2G2.2(b)(6) for use of a computer; (3) a two-level increase
under § 2G2.2(b)(3)(F) because the distribution at issue did
not fit within any other section 3 category; and (4) a five-level
pattern of activity increase under § 2G2.2(b)(5) made possible
by Brown’s admissions regarding his granddaughters and
daughter. This calculation, like the first one, included a three-
6
level decrease for acceptance of responsibility. The resulting
sentencing range was 97 to 121 months. See Second Plea
Agreement, reprinted in J.A. 25-26.
The second agreement, like the first, provided that in
consideration of Brown’s plea, the U.S. Attorney’s Office for
the District of Columbia would not further prosecute him for
any conduct set forth in the Statement of the Offense, the U.S.
Attorney’s Office for the Eastern District of Virginia would
not prosecute him for possession or receipt of child
pornography, and the Fauquier County prosecutor’s office
would not prosecute him for the behavior on which the five-
level pattern of activity enhancement was based. See id. at 16,
25.
In a Memorandum in Aid of Sentencing, as well as
during the sentencing colloquy held on June 26, 2013,
Government counsel maintained that a 97-month term of
incarceration was appropriate in light of the sentencing factors
specified in 18 U.S.C. § 3553(a). Noting the “deeply
disturbing” nature of Brown’s solicitation of the undercover
officer’s fictional 12-year-old daughter, Brown’s sexual
contact with his daughter and granddaughters, and the harm
inflicted on children who are the subject of pornography, the
prosecutor argued that a 97-month prison term would
adequately protect the public and punish Brown. See
Government’s Memorandum in Aid of Sentencing (“Gov’t
Memo”), reprinted in J.A. 50-54; see also Sent. Tr., J.A. 120-
21. Government counsel also cited two comparable cases in
which a similar sentence had been imposed by other District
Court judges in the Circuit. See Gov’t Memo, J.A. 53-54; see
also Sent. Tr., J.A. 122-24 (discussing one of those cases). In
concluding the colloquy, the prosecutor explained that while
the Government was bound not to oppose a sentence at the
low end of the Guidelines range as a result of the plea
7
agreement, it was, “frankly,” seeking a 97-month sentence
“because it’s a just sentence in this case.” Sent. Tr., J.A. 125.
Defense counsel initially argued for a downward
variance resting largely on the argument that the Guidelines
provisions pertaining to child pornography are viewed by
many courts with skepticism as having been driven more by
congressionally imposed mandatory minimum sentences than
the sort of empirical data and national experience that shapes
much of the Sentencing Commission’s work. See Brown’s
Memorandum in Aid of Sentencing, reprinted in J.A. 58-62.
Defense counsel pointed out that individuals like Brown, who
email a few images only to one person, receive nearly the
same enhancements as large-scale commercial traffickers in
child pornography. See id. at 61. Thus, according to defense
counsel, a number of judges in other courts and in this Circuit
have imposed below-Guidelines sentences in cases
comparable to appellant’s. See id. at 62-69; see also Sent. Tr.,
J.A. 128-30.
In response to defense counsel’s argument for a
downward variance, the trial judge stated that he had a “track
record” “of rejecting time and again the government’s
request[s] as too low.” Sent. Tr., J.A. 130. The judge also
stated that there was “no chance, zero, that [he] would vary
below the guideline range,” id. at 132, and suggested that
counsel focus her argument on how “the low end of the range
applying those 3553 factors . . . makes sense,” id. at 133.
Defense counsel then joined the Government in advocating
for a 97-month prison term. See id. at 133-38.
At the conclusion of counsels’ arguments and after
hearing from Brown and Brown’s mother, the District Court
offered its explanation of the sentence imposed. It began by
noting that it understood its duty to consider the § 3553(a)
8
factors in evaluating the Guidelines range and determining an
appropriate sentence. See id. at 142. The trial judge then
asserted that Brown was a danger to the public, saying:
“There’s just no question about that in my mind, zero.” Id.
After pointing out that by pleading, appellant had avoided, “at
least in this Court[,] . . . a very high sentence over and above
the guideline range,” the judge, invoking four of the § 3553(a)
factors, noted that his aim in imposing the sentence was to
protect the public, deter appellant and others, and ensure that
Brown was adequately punished for the seriousness of his
conduct. Id. at 143. Observing that “this is not conduct we
normally get around here,” id., the trial judge said:
Here we have the Internet, interstate transmission of
these images. We have that combined with what I’ve
referred to as predatory conduct i.e., reaching out to
others to help them – to use them to help you find
access to minor children. And what makes it even
more unusual as a case there’s actual, actual abuse of
children that occurred here. And not just once, over a
period of time.
Id. at 143-44. The trial judge concluded, stating that “if ever
there was a case . . . . that required at a minimum the high end
of the guideline range if not a variance,” this is it. Id. at 144.
Turning to the request for a below-Guidelines variance,
the trial judge advised Brown that his counsel had “ask[ed]
for the moon” in seeking such a sentence. Nevertheless, the
judge noted that Brown should give his counsel credit for
getting “such a good deal.” Id. at 144-45. The trial judge
stated that, as he saw it, Brown should be pleased because
defense counsel had locked the Government into arguing for a
low-end sentence, the Virginia authorities had passed on
9
prosecuting him, and the low end of his newly calculated
Guidelines range was 97 months. Id. at 144-45.
At this point, the judge again listed the four § 3553(a)
factors on which he was relying and pointed out that
appellant’s conduct was “very serious.” Id. at 145-46.
Without further reference to the particulars of Brown’s
conduct or the conduct accounted for by the applicable
Guidelines calculation, the District Court stated:
In my judgment, this is one of those unusual cases
that requires a variance upward. In my judgment,
121 is not enough. A higher sentence is warranted
here to reflect the seriousness of your conduct, to
punish you appropriately, to protect the public and to
deter others who may be similarly inclined.
Id. at 146. The judge then imposed a 144-month prison term,
47 months in excess of the jointly requested low end of the
Guidelines range and 23 months in excess of the high end. Id.
The trial judge signed a Statement of Reasons form the
next day. On the form, under “Reason(s) for Sentence Outside
the Advisory Guideline System,” the judge checked four
boxes to indicate that he had taken into account the factors
listed in 18 U.S.C. § 3553(a)(1), (a)(2)(A), (a)(2)(B), and
(a)(2)(C). Under the subsection titled “Explain the facts
justifying a sentence outside the advisory guideline system,”
the trial judge simply stated: “Defendant transmitted child
pornography interstate via the internet; engaged in predatory
behavior; and had actual hands-on victims. Court also referred
to pertinent factors under 18 USC § 3553(a).” Statement of
Reasons, reprinted in J.A. 81. The space available on the form
for the judge to offer “Additional Facts Justifying the
Sentence in This Case” is blank. Id. at 82.
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II. Analysis
A. Standard of Review
As a result of the Supreme Court’s decisions in United
States v. Booker, 543 U.S. 220 (2005), and Gall v. United
States, 552 U.S. 38 (2007), we review District Court
sentences pursuant to a two-step analysis. See In re Sealed
Case, 527 F.3d at 190-91. First we determine whether the
District Court committed significant procedural error. See id.
at 190. Only if there is no such error, do we consider the
overall reasonableness of the sentence in light of the
sentencing factors listed in 18 U.S.C. § 3553(a). See id. at
191. There is no preservation requirement for reasonableness
review. See United States v. Bras, 483 F.3d 103, 113 (D.C.
Cir. 2007). However, claims of procedural error, if not
preserved, are reviewed under the four-part plain error test.
See Akhigbe, 642 F.3d at 1085-86.
B. The District Court’s Understanding of the Applicable
Offense Characteristics
Brown’s first procedural claim, which was properly
preserved, is that the trial judge did not understand which
specific offense characteristics were included in the
Guidelines calculation to which the parties stipulated in the
second plea agreement. Br. for Appellant at 5, 9-10; see also
Reply Br. for Appellant at 13-15. In support of this argument,
Brown relies primarily on two statements made by the District
Court during the sentencing hearing. See Reply Br. for
Appellant at 13-15. Near the beginning of the hearing, the
trial judge attributed the wrong value to the properly removed
four-level masochistic materials offense characteristic,
referring to the enhancement that was “taken away” as the
11
“five credit enhancement.” Sent. Tr., J.A. 114. Similarly, near
the end of the hearing, the trial judge incorrectly identified the
five-level pattern of activity offense characteristic that was
properly included in the calculation as the “four-point
enhancement.” Id. at 153.
While these statements suggest some confusion on the
part of the trial judge, the Statement of Reasons form clarifies
his understanding. Typed on the form is the sentence: “Court
found that the 4 level enhancement, pursuant to USSG
§ 262.2(b)(4) does not apply.” Statement of Reasons, J.A. 79.
Although the reference should have been to Guidelines
§ 2G2.2(b)(4), not § 262.2(b)(4), this statement supports the
conclusion that the court understood that it was the four-level
masochistic materials offense characteristic, not the pattern of
activity characteristic, that was removed from the corrected
Guidelines calculation. We therefore reject appellant’s first
procedural challenge to the sentence.
C. The Adequacy of the District Court’s § 3553(c)(2)
Statements
Appellant did not preserve a claim that the District Court
failed to adequately explain its above-Guidelines sentence.
Therefore, our review is pursuant to the four-part plain error
test. Akhigbe, 642 F.3d at 1085-86. Under this test, appellant
must show: “(1) there is in fact an error to correct; (2) the
error is plain; (3) it affects substantial rights; and (4) it
seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Id. (citation omitted). Reviewing the
sentencing proceedings as a whole, including the arguments
of the prosecutor and defense counsel as to why a 97-month
sentence was appropriate in light of the § 3553(a) factors, we
conclude that the District Court plainly erred in failing to
12
provide adequate in-court and written explanations of the
unsought above-Guidelines sentence.
During his in-court explanation of the sentence, the trial
judge several times asserted that he was imposing an above-
Guidelines sentence “to reflect the seriousness of [Brown’s]
conduct, to punish [Brown] appropriately, to protect the
public and to deter others who may be similarly inclined.”
Sent. Tr., J.A. 146; see also id. at 143, 145-46. “But mere
recitation of . . . § 3553(a) factor[s] without application to the
defendant being sentenced does not demonstrate reasoned
decisionmaking or provide an adequate basis for appellate
review.” Akhigbe, 642 F.3d at 1086 (citation omitted).
Moreover, contrary to our instruction in Nicely, and in direct
contradiction to § 3553(c)(2), the District Court never
articulated the “‘specific reason’” why he found Brown’s
“conduct . . . more harmful or egregious than the typical case”
accounted for in the properly calculated Guidelines range of
97 to 121 months. Nicely, 492 F. App’x at 121 (quoting 18
U.S.C. § 3553(c)(2)). Nor could it, at least based on the
descriptions of Brown’s criminal conduct contained in the in-
court and written explanations of the sentence.
The spare and unparticularized characterization of
Brown’s conduct that the judge offered during his in-court
explanation closely tracks the code provision to which Brown
pled, 18 U.S.C. § 2252A(a)(2), and two of the specific offense
characteristics included in his Guidelines calculation –
§ 2G2.2(b)(5) (a pattern of activity involving the sexual abuse
or exploitation of minors) and § 2G2.2(b)(6) (use of a
computer). And the trial judge’s unparticularized references to
“actual abuse of children” and “predatory conduct” provide
no basis for suggesting why the conduct described was more
harmful or egregious than that accounted for in the Guidelines
calculation, let alone why that conduct merited a sentence 23
13
months in excess of the high end of the applicable Guidelines
range.
“Sexual abuse or exploitation,” as used in § 2G2.2(b)(5),
is defined, in part, by reference to a list of federal criminal
offenses, some of which include “actual” (hands-on) “abuse
of children.” See Application Note 1 to § 2G2.2 Guidelines
Manual (Nov. 1, 2012) [hereinafter “Application Note 1”]
(defining “[s]exual abuse or exploitation” as including, for
example, 18 U.S.C. § 2241(c) (Aggravated Sexual Abuse with
Children) (“Whoever . . . knowingly engages in a sexual act
with another person who has not attained the age of 12
years . . . .”)). And predatory crimes – defined as “crime[s]
that involve[] preying upon and victimizing individuals,”
BLACK’S LAW DICTIONARY (10th ed. 2014) – aptly describes
all of the offenses which define the § 2G2.2(b)(5) offense
characteristic. See Application Note 1 (defining “[s]exual
abuse or exploitation” by reference to federal offenses
included within U.S. Code, Title 18, ch. 117 (Transportation
for Illegal Sexual Activity and Related Crimes); ch. 110
(Sexual Exploitation and Other Abuse of Children); and ch.
109A (Sexual Abuse)). Similarly, the District Court’s
unparticularized reference to abuse “over a period of time”
provides no basis for suggesting that Brown’s behavior was
more egregious than that captured in § 2G2.2(b)(5) because,
as defined in the Guidelines, a pattern of abuse or exploitation
necessarily includes actions over some period of time. See
Application Note 1 (defining the two or more instances of
abuse or exploitation necessary to form a “pattern” as
“separate instances” of misconduct).
The District Court’s comment that the combination of
behaviors to which Brown pled is “not conduct we normally
get around here” is equally unenlightening in terms of
explaining why Brown’s conduct was more egregious or
14
harmful than that accounted for by the applicable Guidelines
calculation. Most obviously, this is because, as noted, the 97
to 121 month Guidelines range accounts for all of the criminal
conduct described by the trial judge in justifying the above-
Guidelines sentence. In addition, however, the District Court
employed the wrong measure of atypical conduct. It is the §
3553(a)(4) Guidelines calculation for the applicable category
of offense committed by the applicable category of defendant,
not the individual judge’s experience in his or her district, that
provides the bench mark for assessing whether criminal
behavior merits an upward variance under the § 3553(a)
sentencing factors. See Nicely, 492 F. App’x at 121 (citing 18
U.S.C. § 3553(c)(2); Akhigbe, 642 F.3d at 1086; and In re
Sealed Case, 527 F.3d at 192).
In Akhigbe, we said that when observations about an
offense “apply equally to any defendant convicted of th[at]
offense,” those observations “provide no individualized
reasoning as to why . . . a sentence . . . above the Guidelines
range [is] appropriate for th[e] particular defendant.” Akhigbe,
642 F.3d at 1086. Applying the logic of that reasoning here,
we do not see how the trial judge’s in-court description of
Brown’s conduct (which includes no particulars
distinguishing that conduct from conduct encompassed within
the base offense and specific offense-characteristic
enhancements comprising his Guidelines calculation) can
demonstrate that Brown’s behavior was more egregious than
that accounted for in the 97 to 121 month Guidelines
calculation.
To be sure, “it is not error for a district court to enter
sentencing variances based on factors already taken into
account by the Advisory Guidelines.” United States v.
Ransom, 756 F.3d 770, 775 (D.C. Cir. 2014) (citation
omitted). However, in doing so, the District Court must
15
demonstrate how the case before it is one with respect to
“which the Guidelines do not fully account for those factors.”
Id. (citation omitted). In Ransom, we upheld an above-
Guidelines sentence for a defendant who operated a property
management company that embezzled from its clients. The
trial judge’s in-court and written explanations for the above-
Guidelines sentence, which were “extensive and
individualized,” relied, among other things, on the fact that
Ransom was on probation for embezzlement when he
committed the offense for which he was being sentenced. Id.
at 774. On appeal, Ransom argued that in justifying the
variance on this ground, the District Court committed both
procedural and substantive error when it failed to take into
account that the Guidelines calculation included a two-point
increase because Ransom had committed the crime for which
he was being sentenced while on probation. See id. at 773,
775. We rejected Ransom’s argument because the trial
judge’s comments made plain that the two-point increase did
not account for the fact that the offense for which Ransom
was on probation involved the same type of embezzlement
scheme, committed with the same partner, as the
embezzlement scheme for which he was being sentenced. See
id. at 774, 775.
Here, in contrast, the District Court’s in-court
justification provided no explanation as to why the Guidelines
calculation applicable to Brown does not fully account for the
described criminal conduct. Nor did the District Court offer
any factual findings about Brown – no information regarding
his history or characteristics beyond that captured in the
description of his criminal conduct – on which it might have
relied to explain why the Guidelines do not fully capture
Brown’s criminal behavior. Moreover, the District Court’s in-
court explanation of the sentence included no findings with
respect to Brown’s victims that the court might have used to
16
explain why Brown’s behavior was not fully accounted for by
the recommended Guidelines range.
The District Court’s written statement is even less
informative than its in-court explanation of the above-
Guidelines sentence. This is a serious problem because the
trial judge’s in-court statement is, itself, insufficient.
It is fair to say that the two sentences offered by the trial
judge in the Statement of Reasons form are very nearly
devoid of individualization and analysis. The District Court
provides not an iota of information as to how it assessed
Brown’s conduct within the framework provided by the cited
§ 3553(a) factors. And, like the in-court justification, the
District Court’s written rationale incorporates no information
about Brown beyond a brief characterization of his criminal
conduct. Neither does the written statement include any
particularizing information regarding Brown’s victims on the
basis of which the trial judge might have justified the
conclusion that Brown’s behavior was worse than that typical
of defendants who, as part of a pattern of sexually abusing or
exploiting minors, distribute child pornography. Standing on
its own, as it must under § 3553(c)(2), the District Court’s
written statement entirely “fail[s] to discuss meaningfully the
particular defendant and his particular crime.” Akhigbe, 642
F.3d at 1087. Thus, it does not serve the “important
purpose[]” of “ensur[ing] a sentence [that] is well-
considered.” Id.
The Government suggests that the District Court may
have imposed an above-Guidelines sentence to compensate
for the “benefits” that appellant received as a result of the
declination of prosecution by Virginia authorities and the
lower Guidelines range applicable after the masochistic
materials offense characteristic was properly removed from
17
the calculation. See Gov. Br. at 21, 25-26. The District Court,
however, made no mention of these considerations in its
written statement. While the judge did reference them during
his in-court explanation, he did so only in the context of
explaining to Brown what a good deal he was getting, despite
the denial of a downward variance. See Sent. Tr., J.A. 144-45.
The trial judge never discussed the declination of prosecution
or the change in the Guidelines range within the framework of
the § 3553(a) factors, and he never stated that he was
imposing an above-Guidelines sentence because of these
considerations.
In both its in-court and written explanations, the District
Court listed the § 3553(a) factors informing its thinking and
provided a brief and unparticularized description of Brown’s
criminal conduct. But in neither statement did the court
explain (let alone explain with specificity) why Brown’s
conduct, assessed in light of the § 3553(a) factors, was more
harmful or egregious than that addressed by the properly
calculated Guidelines range. Moreover, the District Court
never in any way addressed its particular choice of a sentence
– one that exceeds the high end of the Guidelines range by 23
months and the term of imprisonment sought by the
Government by 47 months. Without an explanation of the
“‘degree of the variance,’ Gall, [552 U.S. at 50][, s]o far as
we can tell, the district judge’s choice of [144 months] was
arbitrary.” In re Sealed Case, 527 F.3d at 192. As in Akhigbe,
we find that, while the District Court’s in-court and written
statements “recite sentencing factors[,] . . . contrary to section
3553(c) and controlling case law, [those statements do not]
explain[] why those factors justified [Brown’s] particular
sentence.” Akhigbe, 642 F.3d at 1086. As such, both are
clearly insufficient and independently amount to plain error.
As we explained in Akhigbe and In re Sealed Case:
18
The district court’s failure to explain adequately the
sentence it imposed is “prejudicial in itself because it
precludes appellate review of the substantive
reasonableness of the sentence, thus seriously
affect[ing] the fairness, integrity, or public reputation
of judicial proceedings.” Furthermore, a satisfactory
statement of reasons is essential “to promote the
perception of fair sentencing” and to allow “the
public to learn why the defendant received a
particular sentence.”
Id. at 1087-88 (alteration in original) (quoting In re Sealed
Case, 527 F.3d at 193).
III. Conclusion
We hereby vacate the sentence and remand for
resentencing in adherence with the principles stated above.
SENTELLE, Senior Circuit Judge, dissenting: While I agree
with the majority’s description of the facts and history of this
case, I find that I am unable to join the majority’s conclusion.
This appears to me to be one of the not unusual cases which is
determined by the standard of review. As the majority
acknowledges, in this case the standard of review is plain error.
However, I do not agree with the majority that the application of
that standard demands reversal.
As the majority acknowledges, appellant did not preserve
the alleged errors in the district court. That is why our review
is under the plain error standard. As the majority agrees, under
that standard
appellant must show: “(1) there is in fact an error to correct;
(2) the error is plain; (3) it affects substantial rights; and (4)
it seriously affects the fairness, integrity, or public
reputation of judicial proceedings.”
Maj. Op. at 11 (quoting United States v. Akhigbe, 642 F.3d
1078, 1085-86 (D.C. Cir. 2011)).
Even conceding that appellant has shown error, I do not see
that the error is plain, affects substantial rights, or seriously
affects the fairness, integrity, or public reputation of judicial
proceedings. The errors alleged by appellant and recognized by
the majority focus on the significance or clarity of various
statements by the court in the sentencing proceedings. Granting
that these might benefit from a clearer record, that appears to me
to be precisely what the requirement for raising the error in the
court of first instance is designed to provide. That is to say, we
are giving the record only plain error review precisely because
defendant appellant did not give the trial court the opportunity
to clarify its statements at the trial level. I do not see the sort of
plainness of error that should survive the litigant’s failure to
2
provide the trial court that opportunity.
I will agree that in the broadest sense if there is an error, it
could affect substantial rights of the defendant, although a
sentence which appears sustainable upon an adequate record
may not affect those substantial rights very much. I certainly do
not see how on the complete record as it now stands, the
fairness, integrity or public reputation of the proceedings is in
danger.
Therefore, although I fully respect the concerns of my
colleagues, I cannot agree that appellant has established a right
to relief under the plain error standard.